Law Matters | Summer 2013

ISSN 1704 – 9377

Vol. 38 No. 2 Summer 2013

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Law Matters | 1

Editor’s

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IN THIS ISSUE President’s Report

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Marian De Souza, Pres. 2013-14

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Back to Basics

5

What’s Happening

6

View from the Bench

7

Practice Pointers

8

The focus of this edition of Law Matters is criminal law.

We received some excellent contributions from Alberta lawyers, both criminal and employment lawyers, on recent criminal jurisprudence and changes to criminal law that will be of interest to all Alberta lawyers.

Unsung Hero

10

Avoiding & Resolving Disputes

11

Judicial Update

11

Front and Centre

12

Alberta Branch News

13

CPLEA

14

Health Matters

14

CBA National News

16

LESA

18

Pro Bono Law Alberta

19

Cross-Section North

20

Cross-Section South

21

Assist

21

Student Perspective

22

Contributing Authors this Issue

Alberta’s Tough New Impaired Driving Laws

23

Changes to Criminal Law are Eroding our Charter Rights

24

ALRI

25

The Counsel Network

26

Classified et Cetera

27

Katherine Bilson Danusia Bourdon Marian V. De Souza D’Arcy DePoe Jennifer Flynn Hon. Judge A. A. Fradsham Katherine Fraser

Non-Profit Announcements

27

Shannon McGuinty, Editor

Danusia Bourdon provides insight into the muchdiscussed changes to drinking and driving laws, to criminal sanctions, and describes how the changes to these laws affect Albertans.

In her article, Katherine Bilson covers the potential for criminal sanctions in accordance with the Criminal Code resulting from violations of the Occupational Health and Safety Act. We also have two thought-provoking analyses of the impacts of political influence and change in the realm of criminal law from D’Arcy DePoe and Michael Bates.

By Shannon McGinty

Coming up shortly is the Canadian Legal Conference, running from August 18 through 20 in Saskatoon. The CLC gives you an opportunity to take in informative professional development sessions, networking opportunities, and great events. If you have not already registered, you can read our What’s Happening and CBA National News columns for more information.

You will note references throughout this edition of Law Matters to the recent flooding that affected Southern Alberta. Ola Malik profiles four CBAAlberta members who helped organize and lead legal information sessions for flood victims in Southern Alberta. Gillian Marriott, QC, makes note of the many legal services offered to Albertans in wake of the flood in her article from Pro Bono Law Alberta. Support services are also available to members of the profession affected by the flood and their families, as noted in the article from incoming President Marian De Souza on Assist.

On behalf of CBA-Alberta we offer our strength and support to our colleagues, particularly those in the hard-hit areas of High River and Canmore as you recover and rebuild. a

Cyril S. Gurevitch, QC Hon. Judge Don Higa Rochelle Johannson Patty Johnston Maureen Killoran Anne Kirker, QC Jeremiah Kowalchuk

Erica Lind Peter J.M. Lown, QC Ola Malik Gillian Marriott, QC Melissa Morrison Devin Mylrea Ed Picard Anthony Young, QC

e d it o r i a l c o m m ittee

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

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

2 | Law Matters

P r esi d en t ’ s

REPORT

Cyril S. Gurevitch, President

By now, many of you with a September membership renewal will have received your invoice, and had a chance to peruse the information regarding the new membership model. This initiative is NOT a means to generate more revenues - quite the contrary. Our goal is to make membership more valuable, more responsive, and more practical in terms of rewarding the choice to belong to the CBA.

Research made clear that the one-size-fitsall membership model didn’t work. Responding to the diversity of the profession, CBA membership is now more accessible to more lawyers in alternate circumstances. For instance, we now offer discounts on membership fees for non-practicing lawyers, new lawyers, articling, and bar admission students.

By Cyril S. Gurevitch, QC

Law for embracing the objectives of the project, and providing, where practical, the support of their staff to the cause. Through pilot projects and outreach in Medicine Hat and Grande Prairie this past year, we have laid the groundwork, and I am hopeful that continued promotion and awareness can make a permanent difference in the number of lawyers who choose to practice in communities across the province.

This past year, 69 sections provided programming for Alberta CBA members, and Alberta Law Conference in Edmonton provided firstrate CLE for those who attended. In the coming year, we will extend our webcasting capability in both the North and the South offices. Be sure to take a look when you complete your Section enrollment form.

We will also continue to grow value through geographic sections.

Three communities, Grande Prairie, St. Paul, and Lethbridge are now actively pursuing CBA programming of interest to members in their communities. We need this to continue and to expand into smaller and regional centres throughout Alberta.

We are most excited about the “Portfolio” and “Portfolio Plus” options that you can purchase over and above your CBA membership. They contain savings that active CBA members will appreciate, including an Education Credit that offers a discount of 20% on CBA Professional Development, education activities and Sections involvement. On top of these savings, you will receive a 3% to 5% rebate on anything else you purchase from the CBA through the year, as a straight reduction off your membership renewal cost the following year. These new options are available to purchase now and become effective September 1.

However, you may choose to simply renew your membership without changing anything.

Mark your calendars for Alberta Law Conference 2014, taking place in Calgary January 30 - 31. Our chairs Loretta Bouwmeester and Jennifer Baugh are planning some great professional development, and the conference, as always, provides excellent networking, with the chance to connect with colleagues from around the province.

The other part of the redeveloped model is that our membership renewal dates are changing. All CBA members will now renew their membership on September 1 each year. The transition process begins September 1, 2013, and will be completed by September 1, 2014. If your renewal date has been other than September 1 in the past, you will be receiving your renewal notice one month prior to the end of your membership year, as usual. From then on, you will renew on September 1. The CBA will be offering you payment options to facilitate the introduction of this change.

This, of course, means this is my final report to you as President. I want to take this opportunity to express a few concluding remarks. I feel sincerely honoured to have been able to represent CBA Alberta this year as your President. The individuals you meet, the issues that we tackled, and the incredible progress that we made on so many fronts were amazing. Credit is due to the entire Executive and our staff, who worked tirelessly to meet our goals. I thank them all for their hard work and dedication to this organization. One fact that may not be widely known is that Alberta leads the rest of Canada in membership growth, in terms of raw numbers. The next closest jurisdiction was over 90 persons behind us.

The new fee structure was not the only major initiative over the past year. Council passed a three-year Strategic Plan in January, which focuses on the common national goals of Influence and Leadership, Community, Education, Cohesion and Organizational Excellence. In Alberta, our plan places special emphasis on engaging young lawyers, recognizing and mentoring volunteers, incorporating succession planning into all aspects of the Branch structure, and building community, especially for those members outside of Calgary and Edmonton.

I am particularly proud of what has been accomplished in just one short year in regards to Small Communities initiatives. The objective of attracting and retaining practitioners in rural and smaller communities is not something our Branch can accomplish alone, and we are pleased to be working with many other organizations which share our concerns and are prepared to do what they can to assist. I would especially like to thank Dean Ian Holloway of the University of Calgary Faculty of Law, and Dean Phillip Bryden of the University of Alberta Faculty of

Following the Canadian Legal Conference in Saskatoon in August, Marian De Souza will start her term as President, with Steve Mandziuk, QC as Vice President, and Wayne Barkauskas as Treasurer. We warmly welcome Jeremiah Kowalchuk as our new Secretary. With a lot of fond memories of a great year, I will shuffle off to the role of Past President.

Nationally, the CBA is working diligently to lead the profession. We have the new Futures Project Initiative, led by incoming President Fred Headon, dealing with where the profession is going, in a number of different areas. I urge you all to become part of the solution and to provide your input into setting this direction.

Much work needs to be done, and our volunteers are our life blood. So we must renew our efforts for succession planning and recognition.

Let us know what you think and how this might be improved. We also need to work harder at revenue generation, to increase our educational offerings, particularly in concert with the Law Society of Alberta, Pro Bono Law, Assist, and other groups in order to avoid duplication of resources, both human and financial. We also need to expand our relations with the Court and we hope to initiate a series of Court/Bar roundtable discussions in the new fiscal year. a

Law Matters | 3

Marian De Souza: 2013-2014 CBA Alberta Branch President “Vision, Intellect and Humanity”

By The Hon. Judge Don Higa From the exotic plains of Kenya, to the majesty and tradition of England, and on to the arctic charm of Edmonton, Canada. The start of a great novel or the musings of a mischievous travel agent? No my friends, this describes part of the life journey of the new President of the Canadian Bar Association, Alberta Branch.

Marian is well known to the Alberta Bar through her involvement with CBA Alberta and presently as the Executive Director of Assist. Marian began her CBA journey as a member of the Alberta Council, and then became a member of CBA’s National Council. She has served as Section Coordinator, Communications Committee Chair, and volunteered for countless stints on Law Day and Alberta Legal Council committees. She even displayed her acting talents as the “Lass of Consortium” in a skit performed at an Alberta Legal Conference. Let your imaginations run wild as to what that entailed.

Marian Veronica De Souza was born in February, 19__ in Nairobi, Kenya (Author’s Note: blank space inserted to preserve friendship with the new President). Marian is a proud Goan, the smallest state of India known for Marian De Souza its coastal beauty, pristine beaches, and bohemian Marian’s ascension to branch presidency was preceded CBA Alberta President lifestyle. Compare that with the mosquitoes, potholes by superb work as Branch Secretary, Treasurer, and Viceand bad hockey teams offered by Edmonton, and one President. She is a fixture at national CBA events and is might briefly question the residence choices of Marian’s family. But to well-known throughout Canada for her involvement provincially the benefit of us all, she’s here! and with the national Legal Professional Assistance Conference. As with many spouses of “CBA Junkies”, her husband Alban Carvalho has Marian is an Aquarian and those born under that astrological sign become an honorary junkie. are said to have a keen social conscience. They are sympathetic, compassionate, philanthropic and keenly interested in making the Marian has also been involved with a number of professional world a better place. Marian is a true Aquarian. In her daily life, and organizations, including the Canadian Institute of Mortgage Brokers as the current Executive Director of the Alberta Lawyers’ Assistance and Lenders, and the National Association of Office and Industrial Society, Marian continuously exhibits her astrological personality Properties. Marian was instrumental in establishing the Calgary traits. chapter of the US based Commercial Real Estate Women (CREW) and was the founding chapter President. She is currently a director of Marian’s formative years were spent in Cheshire, England outside Aiyana, a charitable foundation serving the needs of children at home Manchester. This explains Marian’s British accent (tomAYto v. and abroad. tomAHto) and the use of obscure English references (at least to a person of Japanese descent). The term “chuffed” I have learned to my It might be said that Marian has found her true calling as the great relief, is a good thing.

Executive Director of Assist. The services provided by Assist for our friends, colleagues, and the profession are literally life-saving. Marian The De Souza family moved from England to Canada and Marian is passionate about Assist and the role it plays. As members of the attended high school in Edmonton. She survived that cultural Alberta law fraternity, we are all fortunate Assist exists and that Marian shock and obtained an honours English degree from the University is at the helm. of Alberta. Marian started her career as a banker with RBC. Tired of wearing a name tag and saying “no” to loan applicants, Marian enrolled Of course, Assist is a strong proponent of work/life balance, and in law school. Longing for suet pudding and damp and dreary English Marian certainly practices what she preaches. She is an avid golfer, winters, Marian returned to jolly old England. She attended Law and enjoys tennis and cycling. She loves reading, classic movies, School at Leeds University and came back to Canada to complete the and Apple products; tequila shooters, not so much. Her collection of Canadian equivalency courses at the University of Calgary. formal gowns is stunning.

Marian was called to the Alberta Bar in 1996 and articled at Van Harten, O’Gorman, Foster. After a few years of private practice, Marian moved into the corporate world and secured a position with First Canadian Title as operations manager and legal counsel. Her success in that role led to her appointment as Director of Commercial Division for Western Canada. From commercial real estate, Marian commenced a career in management consulting for INTP Consulting, an Edmonton-based professional services company.

4 | Law Matters

A search of the internet discloses the following: “The great attributes of the Aquarius-born are their vision, intellect and humanity. They are determined to make the world a better place and to help everyone they can along the way.” Marian De Souza is a perfect example of such an individual. She will be an outstanding leader for the legal profession. Just don’t ask her age! a

BACK TO BASICS

Health and Safety in the Workplace: A Cautionary Tale in Corporate Responsibility

By Katherine Bilson The summer sun is beaming through my office window. There are cowboy hats and checkered shirts bobbing around everywhere on the street below. It is Stampede time again and Calgary has started to bounce back, at least in part, from the devastating floods at the end of June. Typically, this is a happy time of year in the city, but it also marks the anniversary of a tragic workplace accident that is now winding its way to the Alberta Court of Appeal. Alberta v. XI Technologies Inc., 2012 ABQB 549, 2013 ABCA 368 provides a stark reminder to employers about the Katherine Bilson underlying purpose of occupational health and safety legislation and the consequences that can flow from failing to properly protect the safety of employees.

In 2007, a summer student working as a software developer and data analyst was helping out with a client event during Stampede. Tragically, he died as a result of serious head injuries sustained after being hit in the head by a steel lever on a defective calf roping machine, which had been set up for the clients’ enjoyment at the company’s party which he was assisting to operate. Notwithstanding evidence of defects and a complete absence of suitable instruction in how to use the machine, it continued to be used at the event. XI Technologies Inc. was charged under the Occupational Health and Safety Act, RSA 2000, c. O-2 (OHSA), and its associated regulations “with failing to ensure [the employee’s] health and safety as far as reasonably practicable, and with failing to ensure that the [machine] would safely perform the function for which it was intended or designed.” While the Provincial Court acquitted the employer on the basis that it had successfully established a defence of due diligence, the Court of Queen’s Bench disagreed that the evidence supported the trial judge’s verdict and overturned the acquittals. Leave to appeal at the Court of Appeal was granted in November.

Under the OHSA, an employer must “ensure, as far as it is reasonably practicable for the employer to do so” the employees health and safety in the workplace: see section 2(1). Similarly, the federal legislation generally requires that “[e]very employer shall ensure that the health and safety at work of every person employed by the employer is protected”: see section 123 of the Canada Labour Code. In each case, the duty on the employer gives rise to a strict liability offence in cases where the duty is not adequately met. Further, it is in this vein that employers can become exposed to criminal sanction in accordance with the Criminal Code. Such sanction can extend to include personal liability for individuals within an employer organization. Possible criminal sanctions include both monetary fines and imprisonment.

The extended reach of the Criminal Code to workplace health and safety related incidents was introduced in 2004 following the introduction of legislative amendments that now render criminal breaches of an employer’s duty of care to protect the health and safety of its employees.

It also bears noting that personal liability is not exclusively reserved for those at the helm of a corporation, but can encompass other levels of management, as well as small employers: see, for example, the recent duo of decisions in R. v. Metron Construction Corporation, 2012 ONCJ 506 and R. v. Swartz, 2012 ONCJ 505, in which significant fines were imposed both on the company and its owner as a result of their collective failure to adequately protect the health and safety of employees after four

employees were killed and another seriously injured when a swingstage carrying them down a high-rise building collapsed.

Currently, there are very few cases that address how to determine the appropriate scope of penalties in workplace health and safety cases following the 2004 Criminal Code amendments, although the legislation itself may set out a range of fines and/or terms of imprisonment. What can be gleaned to date, however, is that the current direction of Canadian law reflects an ever growing accountability on both corporations and their managers to ensure that workplaces are indeed safe and, thus, an increasingly stringent duty of care. Moreover, factors such as a corporation’s or an individual’s financial position may be considered in determining what a reasonable penalty will be. For the time being, Canadian courts appear to be shying away from imprisonment as an appropriate penalty in workplace health and safety cases.

The threshold, as highlighted in the XI Technologies Inc., supra, decision is not whether the accident was reasonably foreseeable, but instead “whether a reasonable man wold have foreseen a potential source of danger.” Employers must be alive to the risk of harm and active steps must be taken to protect employees, however remote the potential harm may be. a

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Law Matters | 5

W hat ’ s

HAPPENING August

4-5: The Canadian Bar Association presents the 2013 Leadership

presents CBA Canadian Legal Conference and Expo. Saskatoon, SK. Details provided on the website at www. cba.org.clc

9: The Canadian Bar Association British Columbia Branch presents

18-20: The Canadian Bar Association

28:

Patty Johnston, QC

By Patty Johnston, QC

The Canadian Bar Association Ontario Branch presents Effective Examinations: Things They Never Told Us (moderated webcast). Contact 1-800668-8900 or registrations@oba.org

29: The Canadian Bar Association Ontario Branch presents The Renaissance: Family Law Restoration, Reformation, and Transformation (moderated webcast). Contact 1-800-668-8900 or registrations@oba.org

September

6: The Calgary Bar Association presents Charity Golf Tournament

at the Banff Springs Golf Course. Final details will be provided on the website at www.calgarybarassociation.com.

Conference for Professional Women. Marriott Château Champlain Hotel, Montreal, Quebec. Contact Leslie Huard at 1-800-267-8860, ext.

186 or via email leslieh@cba.org.

The Extradition Act (Canada) and Your Client: Letting your Bygones Be “Be-Gones”? (webinar only). Contact 1-888-587-3404 or pd@bccba.org.

16: The Canadian Bar Association British Columbia Branch presents New Developments in Cross-Border Tax: US Citizens Resident in Canada (webinar only). Contact 1-888-587-3404 or pd@bccba.org.

November

4: The Canadian Bar Association presents Are You Under-Valuing Your Legal Department? Edmonton, AB. Contact Kristina Unsworth at kunsworth@ccca-cba.org.

5: The Canadian Bar Association presents Are You Under-Valuing Your Legal Department? Petroleum Club, Calgary, AB. Contact Kristina Unsworth at kunsworth@ccca-cba.org.

29-30: The Canadian Bar Association presents the 14th Annual

12: The Canadian Bar Association British Columbia Branch

presents Following Daniels V. Canada: What’s Next in Aboriginal Law? (Webinar). Contact 1-888-267-8860 or pd@bccba.org.

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.

16: The Canadian Bar Association British Columbia Branch presents Using Social Media Evidence in Litigation: CuttingEdge Practical and Ethical Issues (online). Contact 1-888-267-8860 or pd@bccba.org.

Please send your notices to Patricia (Patty) Johnston, QC c/o Energy Resources Conservation Board Phone: 403-297-4439 E-mail: patricia.johnston@ercb.ca

17: The Canadian Bar Association presents Workplace Privacy Regimes Across Canada and in the EU: (web conference). Contact pd@cba.org or call 1-800-267-8860.

19-20: The Canadian Bar Association presents 9th Annual PanCanadian Insolvency and Restructuring Law Conference, Hyatt Regency, Calgary AB. Contact Lauren DalBello at 1-800-267-8860 or via email laurend@cba.org.

27-28: The Canadian Bar Association presents the 4th Annual Access to Information and Privacy Law Symposium, Westin Hotel, Ottawa, ON. Contact Leslie Huard at 1-800-267-8860 ext.

186, or via email at leslieh@cba.org.

October

2: The Canadian Bar Association presents Privilege Issues for InHouse Counsel, (online).

3-4: The Canadian Bar Association presents the 2013 Annual

Competition Law Fall Conference. Ottawa Convention Centre, Ottawa, ON. Contact Mahoganey Jones at 1-800-267-8860, ext.

189 or mahoganeyj@cba.org.

4: The Canadian Bar Association Ontario Branch presents Strategic Legal Writing: Preparing Persuasive Documents (online).

Contact 1-800-668-8900 or registrations@oba.org.

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6 | Law Matters

V I E W F RO M T H E

BENCH

By Hon. Judge A.A. Fradsham

When I sit in one of our busy docket courts, I will have, on average, 20 pages of cases to be spoken to during the day. Those pages represent a large number of persons, some of whom have no familiarity with the legal system, and I know the legal system can be quite intimidating to the neophyte. It behooves us to be gentle and patient, and particularly so with self-respresented accused persons. While I like to think my Hon. Judge colleagues and I are sensitive to the issue A.A. Fradsham even in the face of long lists, it is good when the lesson is reinforced for judges as it was recently reinforced for me.

airline that I should be checked in at the airport no later than two hours before my flight to the U.S. I took that reference to “no later” to mean it was preferable practice to “be checked in more than two hours before the flight time.” I then found out that U.S. customs would not accept you more than two hours before your flight. In other words, it will take you a minimum of two hours to get through the screening process in a timely fashion, and so as to keep this as a sporting proposition, that is all we will give you.

As experienced and accomplished as the legal system is in making members of the public feel as though they are aliens in their own land, the health system could give us lessons. When an “outsider” shadows a judge or a police officer, little more is required than silence at appropriate times, and an ability to stay where one is put. Contrast that with my experience when I was counsel for a Calgary hospital.

As a part of the regime of “familiarizing one’s self with the client’s business”, I shadowed a surgeon as he performed disc surgery on a patient. At the designated hour, I reported to the appropriate location in the hospital’s surgical area, and was nicely, but firmly, told to go into a locker area, take off my clothes, and put on a baggy pants and top affair, the ability of which to stay in place I doubted throughout the entire morning.

In due course, I heard a name called that seemed to have a passing resemblance to “Allan”, followed by a sound which may have been the mating call of some endangered species. Working on the theory that it was unlikely that two “Allans” would have appointments for the same time, I presented myself, and asked if she had called “Fradsham”. She smiled, and said “Oh, is that how you said it, I just made something up.”

“Yes,” I thought, “I’ve met witnesses like you.”

So, upon reflection, I should not have been surprised by what awaited me when I recently ventured back into the medical system for some tests ordered as part of the physical examination which I faithfully and regularly get once every decade. That I had not been a regular visitor to my family physician became evident when the doctor, with raised eyebrows, noted that my file was still in paper form, and had not been converted to the computer system. When did they give up leeching patients?

My step-daughter, who kindly keeps me informed (on a need to know basis) of how the modern world works, informed me that I could now book an appointment at a specific date and time for laboratory tests.

No more setting up camp in the lab’s waiting room, and having one’s mail redirected there. That was convenience unheard of the last time I went to a laboratory... or a courtroom, come to think of it. So, I booked an appointment online, taking the earliest possible appointment so that I would not be late for the morning’s court sitting, and waiting for the designated day to dawn.

The day before my appointment, I received an e-mail reminding me of the appointment, and sternly directing me to be at the laboratory “a minimum of 10 minutes” before my allotted time. That was no doubt to accommodate the medical profession’s notorious habit of running ahead of schedule.

So, when the laboratory opened its doors, the throng which had gathered at the entrance made its way as one into the waiting room... and waited, all the while playing the time honoured game of silently guessing what particular problem brought each of the other attendees to this very un-Tim Horton’s-like early morning destination.

Off to a room I was sent, and again, off with the short. Once all the necessary readings had been taken, the technician announced that she had typed the wrong name into the computer (I assumed just another bout of her creativity), and scurried out of the room saying, to no one in particular, that she had to call some IT department and correct the error. I wasn’t sure if she was going to permanently change my name, or just her entry of it. I was left alone in the room pulling sticky bits of tape off various parts of my body.

When she did not return in a reasonable time, I assumed I was done, dressed, and left, making a mental note to be much more attentive the next time I found myself in a docket court. At least the most I ask of people to take off is their ball caps. a

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Law Matters | 7

PRACTICE POINTERS

Request for Comments 2013-1 Schedule C - Tariff of Recoverable Fees

By Maureen Killoran and Anne Kirker, QC

Maureen Killoran

The new Rules which came into effect on November 1, 2010 did not make any changes to the amounts of the assessable costs in Schedule C - the Tariff of Recoverable Fees.

The Alberta Law Reform Institute, which was instrumental in drafting the new Rules, viewed the appropriate amounts as being beyond the scope of the project. As a result of inquiries received, the Rules of Court Committee has decided to re-examine the Schedule.

The Rules of Court Committee is now requesting comments from the Bar on the Tariff of Recoverable Fees, and on a related issue with respect to charging contingency fee on disbursements. Submissions are Anne Kirker, QC requested by September 30, 2013, and should be sent to: RCC@albertacourts.ca, or Barb Turner, QC, Secretary, Rules of Court Committee, 9833 - 109 Street, Edmonton, AB T5K 2E8. The Bar is invited to comment on any aspect of the Schedule, although the following discussion document is intended to highlight some of the issues identified to date.

1. Background Subject to the overall discretion of the Court, assessable court costs in Alberta are generally set by reference to the Tariff of Recoverable Fees set out in Schedule C to the Rules of Court (R. 10.31(3), Sch. C, R.1(1)).

That schedule specifies the quantum of assessable fees for particular steps. The assessable amounts vary depending on the amount in dispute in the litigation. The Schedule contains five columns, each column giving a dollar amount range for the purpose of determining the assessable fees. In addition to assessable fees, R. 10.31 allows the recovery of reasonable and proper costs incurred to bring an action, generally known as “disbursements”.

Schedule C was last substantially modified in 1998. At that time the list of steps, the ranges covered by each column, and the quantum of the assessable fees were substantially changed.

2. Basic Principles Underlying Costs Awards In 2005, ALRI issued Consultation Memorandum No. 12.17 Costs and Sanctions (www.law.ualberta.ca/alri/docs/cm01217.pdf ). It identified the following basic principles underlying costs: - They should strike a balance between the interests of plaintiffs and defendants; - They should provide an incentive to settle early in the action and at difference stages of action; - They should facilitate access to justice; - Their calculation should be a simple, workable process; and - They should be predictable at each stage of an action.

The primary purpose of a costs award is to partly indemnify the successful litigant for some of the expenses or pursuing the litigation: 8 | Law Matters

British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 at paras. 21, 26 [2003] 3 SCR 371. Costs awards also serve other purposes: they can be used to encourage settlement, or to prevent frivolous, vexatious, or harassing litigation, and they can also be used to encourage economy and efficiency during litigation.

Costs awards are not designed to fully indemnify the successful litigant.

While the winning party is entitled to some compensation for legal costs incurred, full indemnity would significantly hamper access to justice, and might promote excessive and oppressive litigation strategies. The Alberta rules have generally aimed for recovery of 30 to 50% of actual legal fees.

3. The Overall Quantum of Recoverable Fees The first issue is whether the overall amount of recoverable fees should be increased. Inflation since the last major amendments in 1998 has been about 35%.

Some litigants argue that they should be entitled to recover a greater proportion of their expenses. Other litigants argue that the existing tariff is already generous, and any further increase would hamper access to justice. As the Consultation Memorandum reported: [12] ...Generally, plaintiffs’ lawyers viewed present costs as too high and expressed concerns about the “ceiling effect” that significant costs could have on meritorious claims. Conversely, defence lawyers suggested that costs were not high enough and should be increased to defeat frivolous claims...

Increased attention has recently been directed at access to justice issues, and particularly the impact that the high cost of litigation is having on litigants. Rural practitioners argue that the scale of costs is insensitive to the legal fees charged in smaller centers. Would any increase in the Scheduled amounts be a further barrier to access?

While legal fees (like most expenses) have likely increased with inflation, the recoverable costs may still be within the 30 to 50% range. Of course, the actual percentage recovered in any case depend on what steps were required, and any tariff of costs might well give results outside that range in any particular litigation.

Further, attempting to set recovery within a given range (such as 30 to 50%) is only meaningful where the client is being billed on an hourly or tariff basis. Where fees are payable on a contingency basis, the fee is disconnected from any steps actually taken in the litigation. A very large fee might be generated by a small number of assessable steps and vice versa. Contingency agreements commonly give the lawyer a percentage of the recovered costs, as well as a percentage of the recovered damages, further disconnecting the costs award from the client’s recovery of litigation expenses.

The Consultation Memorandum considered recommending a mechanism to adjust Schedule C for inflation (e.g. by tying it to the Judgement Interest Act, amending it annually to reflect inflation, or setting an inflationary factor by regulation) but was unable to reach a consensus. Some Queen’s Bench Judges have used their discretion to

award an inflation factor in a variety of ways - by applying the Bank of Canada inflation rate, using a multiplier, or awarding a lump sum that includes some value for inflation.

The Rules of Court Committee invites input on: a) the proper proportion of actual fees that a winning litigant should be entitled to recover. b) whether the present amounts in Schedule C are adequate and fair, or whether they should be varied, because of inflation or otherwise. c) any other issues relating to the overall quantum of recoverable fees.

The Committee particularly invites commentators to relate their recommendations to the principles of costs awards identified above.

4. Assessable Steps The present Schedule C identifies a number of steps in litigation that generate assessable fees. Not all possible steps are measured, and that arise in all different kinds of litigation.

Should any particular steps be added or removed from the Schedule?

Are the assessable fees for any particular step out of proportion to the fees recoverable for other steps?

For example, R. 10.31(2)(c) excludes the recovery of costs of dispute resolution processes, except in the case of misconduct, as was recommended in the Consultation Memorandum at para. 73. Costs generally are awarded to the successful party, and it is perceived that no one “wins or loses” a dispute resolution process. Dispute resolution is undertaken for the benefit of both parties, regardless of which ends up being successful. Further, one of the purposes of costs awards is to promote early settlement, and imposing costs on dispute resolution might arguable be contrary to that objective and discourage settlement efforts.

5. Limiting Rules At one time the Rules of Court contained a “limiting rule” (old R. 609), which limited the amount of assessable costs to a percentage of the eventual recovery in the litigation. New R. 1.2(4) adopts the “proportionality” principle, which means that the quantity and intensity of litigation should be proportional to the amounts in issue.

Is it appropriate to re-introduce some kind of limiting rule, as a way of recognizing the proportionality principle?

For example: a) Should the amount of assessable costs be capped at a percentage of the recovery in the litigation? Should there only be a limit on certain kinds of litigation, for example debt recovery, or proceedings that go to judgement by default? (Some provinces have different schedules for default judgements and actions that settle.) b) Should there be a cap on the quantum of costs for particular steps for example (unless otherwise ordered) should costs for questioning be limited for smaller claims? (e.g. Claims under $100,000 could be limited to one day of questioning.) c) Should there be a cap on disbursements, to ensure that they are proportional to the amounts in issue? Should disbursements (for example, for expert reports) be limited to a percentage of the eventual recovery?

d) The present rules do not allow a full recovery of legal expenses by the winning party, but rather are aimed at recovery in the 30 to 50% range. It is felt desirable to leave some of the expense on the winning party, in order to discourage frivolous litigation, and to promote economy in the prosecution of litigation. Do the same arguments apply to disbursements? Should recovery of disbursements be limited, for example, to a percentage of disbursements only (e.g. 75% of actual expenses)? e) Are there any other limits on costs that would promote efficiency in litigation, early settlement, and access to justice?

6. Contingency Fees on Disbursements An issue has arisen as to whether it is permissible or appropriate for a lawyer to charge a contingency fee on a recoverable disbursement.

If a disbursement is incurred during the litigation, and the litigant subsequently recovers costs that include that disbursement, should the lawyer be entitled to charge the contingency fee against the disbursement?

The Rules of Court Committee would be interested to know whether it is the practice of the Bar to charge a contingency fee on disbursements.

The following points have been made: a) If the contingency fee applies to all the recovery, including costs, it would on the face of it cover the disbursements as well.

It is suggested that the marketplace is competitive enough that this practice should not be prohibited. On the other hand, it is suggested that many clients are not sophisticated enough to understand the implications of having the fee apply to disbursements. b) If a lawyer funds the disbursements during the litigation, there is a risk that the litigation will be unsuccessful, and the lawyer will be out of picket for the disbursements. This justifies a contingency fee to reflect the risk. Alternatively, it is suggested that where liability is not really in dispute, there is no real risk. c) If a lawyer funds the disbursements during litigation, he or she is at least entitled to interest. As an alternative to allowing a contingency fee on disbursements, the rules should permit interest at some rate. This would be more fair than allowing a contingency fee on a recovered disbursement where the client is funding the disbursements, the disbursements are paid along the way by the defendant, or the lawyer has only funded the disbursements for a short period of time. d) Allowing a contingency fee on disbursements provides an incentive to incur disbursements that are disproportionate to the issues. It is arguable contrary to the public interest to encourage unnecessary or excessive disbursements (for example, for expert reports that are ordered prematurely, or from multiple experts, or which may never serve a purpose). The tariff of recoverable fees does not provide for full indemnity of fees in order to moderate the intensity of litigation, and for that same reason contingency fees on disbursements should not be allowed.

This consultation document is designed to generate discussion on assessable costs and the Tariff of Recoverable Fees, without limiting the topics that might be considered at this time. The Rules of Court Committee encourages input on all aspects of this issue. a

Law Matters | 9

Unsung Hero

By Ola Malik

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. services and advice. Ben is no stranger to volunteerism and community involvement, having previously served on the regional council for the Canadian Red Cross and as a volunteer chef with the Feed the Hungry Program for over a decade.

In this feature, we are delighted to introduce you to several Unsung Heroes who helped lead the volunteer response and organize legal information sessions which were provided to victims of the recent floods in Southern Alberta. (You’ll find more information about the volunteer outreach to flood victims in Gillian Marriott’s column on page 19).

These Unsung Heroes are: Fraser Gordon of Legal Aid Alberta, Jennifer Costigan of Calgary Legal Guidance, Eleanor Carlson of Pro Bono Students Canada, and Ben Leung of Student Legal Assistance (U of C). We chose to feature these Unsung Heroes because of the commitment they have demonstrated in their personal and professional lives to helping those in need and making the legal system more fair, equitable and just.

Fraser Gordon

Fraser Gordon is a lawyer in the civil law section of Legal Aid Alberta where he provides Jennifer Costigan advice over the telephone and in-person on areas such as landlord-tenant law, civil litigation, insurance law and government benefits. Fraser joined Legal Aid because he wanted to get his hands dirty by providing those entering the legal system with nuts-and-bolts practical advice. Fraser volunteers with Calgary Legal Guidance, provides advice in wills and estates to the Kerby Centre, and he previously served on the Regional Appeal Committee for Legal Aid from 2005 until 2013.

Jennifer Costigan is the administrative law lawyer at Calgary Legal Guidance where she conducts administrative appeal hearings before various tribunals including the Citizen’s Appeal Panel, WCB, Social Security Tribunal and the Human Rights Commission relating to disability matters. What brought her to Calgary Legal Guidance was her passion for advocacy on behalf of those who cannot advocate for themselves due to indigence, abuse, or marginalization. As if working during her day time hours wasn’t enough, she volunteers at the evening clinic with Calgary Legal Guidance providing legal advice to low income individuals on issues of landlord tenant, criminal and family law.

Eleanor Carlson is a second year law student at the U of C where she serves as Program Coordinator of the U of C chapter for Pro Bono Students Canada. Eleanor joined Pro Bono Students Canada because of her passion for increasing access to justice for those who needed it, a passion that brought her to law school, continues to motivate her today and which she will undoubtedly pursue throughout her career.

She volunteers with Student Legal Assistance, serves as a director on the board of the Accessible Housing Society, and is the current cochair of the U of C branch for the Legal Education Action Fund.

Ben Leung is a third year law student at the U of C, and is the Student Director of Student Legal Assistance. Ben realized how fortunate he was to be given the opportunity to study law and he wanted to apply his legal training and skills to those who needed access to legal

10 | Law Matters

Eleanor Carlson

Fraser Gordon, Jennifer Costigan, Eleanor Carlson and Ben Leung are Unsung Heroes.

Each of them has quietly committed to the most noble mission of all - that of helping others. It is their determined pursuit of this mission which brings a tremendous credit to our profession, and should be celebrated.

Fraser, Jennifer, Eleanor and Ben represent some of the finest qualities of our profession and serve as an inspiring force for us all. a

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

Avoiding and Resolving Disputes

By Anthony Young, QC

Anthony Young, QC

I was asked to write an article on the general topic of avoiding and resolving disputes.

Isn’t this what lawyers are supposed to be good at? Sadly, many of us seem to be far better at ramping up the rhetoric than calming inflamed nerves. Some lawyers even seem to relish an opportunity to vilify an opposing party or even the opposing party’s counsel. Such an approach is certainly not conducive to resolution. It simply polarizes the people involved.

There are certain lawyers that we all dread having on the other side of a file. It is not because they are exceptional or formidable counsel. It is because some of them make the conduct of the file seem distasteful and unpleasant. A natural reaction is to respond in kind. This, however, is not conducive to avoiding or resolving conflict.

Under all circumstances, you should remain calm. Composure and clear thinking are attributes that help solves problems. Knee-jerk reactions to personal slurs or magniloquence can often do more harm than good. The age of email has taken away that second set of eyes and passage of time for sober second thought that some of us require for thoughtful reflection on what is said. Keeping that in mind, it is okay for you to draft a ripping reply to what you may believe is an attack on your good character and conduct. This exercise can be very cathartic. The only thing is, that in most circumstances, you should refrain from actually sending this type of correspondence out. If, in the words of a good friend of mine, you find that you are reacting by having your “head pop off”, and your “eyes squirt blood”, you should complete your thoughts and then put them away for review by a colleague or for reflection at a time when you have calmed down.

In any conflict, it is important for opposing parties to listen to what the other has to say. Offensive communication may, on occasion, actually make a valid point. Take the time to review what the message is behind the hyperbole. You may find that you understand the point being made.

We have all heard the saying that “it is easier to catch more flies with honey than with vinegar”. Care must be taken, however, to avoid the appearance of condescension. When attempting resolution of a difficult matter, make it your habit to be polite and respectful. In my experience you can never go wrong with this approach. Remaining polite and respectful may even serve to avoid minor misunderstandings in the first place.

Many disputes have a personal relationship element. Any principled resolution must separate the person from the problem. The focus should be on the substantive issues, not on perception or emotion.

There is nothing more personal than making an accusation.

Attempting to attach blame will only result in failed communication without resolution.

Resolution of a dispute usually focuses on what can be changed. It serves very little purpose to make something that cannot be changed the focal point of discussion. Acknowledge the past, however it has unfolded, and move on. Emphasis should be upon what can be changed (the future). Leave what happened in the past to the historians. Dwelling on it will only serve as a barrier to settlement.

Fight the important battles. When you are faced with an intransigent issue in a dispute, decide whether the issue is so important that you are willing to fight for it “at all costs”. Is this “the hill to die on”? If not, concede the point and move on to what is really important.

Finally, be creative and confident. a

Judicial Update Court of Queen’s Bench: Supernumerary Justice Allen B. Sulatycky retired on June 13, 2013.

Master Keith Roy Laycock was appointed as a half-time Master in Chambers, effective July 1, 2013.

Provincial Court: Supernumerary Judge Alberta George Chrumka retired on May 8, 2013.

Judge Terrence J. Matchett was appointed as Chief Judge, effective May 12, 2013. He replaced Judge A. Gail Vickery whose term as Chief Judge expired on May 11. Judge Vickery currently sits in Calgary Family and Youth.

Judge Lawrence (Larry) G. Anderson was appointed as the Assistant Chief Judge for Edmonton Criminal, effective May 14, 2013. He replaced Judge James K. Wheatley whose term as ACJ expired on May 13.

Judge Ernest J.M. Walter (Edmonton Criminal) was appointed as a part-time judge, effective June 1.

Judge Kenneth Arnold Holmstrom, QC, has been appointed as a Provincial Court Judge to Edmonton Family and Youth, effective June 18, 2013.

Judge Justina M. Filice has been appointed as an Assistant Chief Judge. She replaced Judge J.G. Easton. court of appeal Supernumerary Justice Keith G. Ritter retired on May 1, 2013.

Law Matters | 11

Fr o n t & C en tre Leaders Appreciation Events

Leaders Appreciation Event, Edmonton, June 25

Cyril Gurevitch, QC, presents appreciation gift to outgoing North Section Coordinator and incoming Branch Secretary Jeremiah Kowalchuk

Leaders Appreciation Event, Calgary, May 28

Law & Literature XXI: Old Enough to Vote...

Law & Literature XXI hosts (l to r) the Hon. Mr. Justice Jack Watson, Brian Vail, QC, & Susan Yake Phillipe.

Inns of Court

Attendees enjoy Law & Literature XXI on June 20 in Edmonton.

People and Places Please send us your news! peopleplaces@cba-alberta.org Calgary: Darren Folkerson is now a partner at Niblock & Company LLP. Michael Wolpert joins Lawson Lundell LLP in the Pensions & Employee Benefits Group.

Edmonton: Kirk Lambrecht, QC will be practicing with Shores Jardine LLP as of September 2013.

Long Term Disability Claims?

Call Allan Bayda Another successful Inns of Court dinner attended by a record number of junior lawyers. (l to r) Frank Friesacher, the Hon. Madam Justice Greckol, J. Cameron Prowse QC, Dawn Pentelechuk QC, and the Hon. Mr. Justice Germain.

Bayda Law Firm Now located at: #9, 1915 - 32 Avenue NE Calgary, AB T2E 7C8 Ph. (403) 670-0070 or toll-free 1-855-670-0070

Disability Insurance Claims with CPP, Group Insurance and Private Plans 12 | Law Matters

Alberta Branch News

section enrollment

new cba alberta team member

The CBA Alberta Branch offers 69 different Sections in which our members can enroll. This year, we will be offering a total number of 23 webcasting South Sections. We are also pleased to announce that there will be 10 North Sections available for webcast as well. Section registration is open starting August 15.

We want to welcome Lee-Anne Wright to the role of Communications and Marketing Specialist at the CBA office in Calgary. Lee-Anne has a background in the not-for-profit sector, most recently with Habitat for Humanity Southern Alberta where she was responsible for social media, marketing, and communications. She will be taking over production of Law Matters, among many other marketing and communications activities for the CBA. You can contact her at communications@cba-alberta.org, or by phone at 403-218-4310.

If you plan to purchase a Portfolio or Portfolio Plus option, please do so before you register for your sections to ensure that you can apply your education credits towards your section enrollment fees.

Canadian Bar Association - Alberta Chapter Section Membership: h t t p : / / w w w. c b a . o rg / A l b e r t a / m a i n / S e c t i o n M e m b e r s h i p / sectionmembership.aspx Canadian Bar Association Membership Information: http://www.cbamembership.org/

Law student send-off barbeques The pilot communities under the Small Communities Initiative are planning to host send-off barbeques to connect with students from their area who are heading off to law school in the fall. Medicine Hat will host their event on August 22, while Grande Prairie plans theirs for August 28. A tremendous thank you to the members of the local bar who have embraced and supported this concept, and to the Deans and staff at the Alberta law schools who have cooperated to help make it happen. A special thank you to Maryanne Forrayi, Director, Career & Professional Development Office in the Faculty of Law at the University of Calgary and Patricia Neil, Career Development Officer at the University of Alberta Faculty of Law for their efforts in support of the Small Communities Initiative.

Alberta law conference Mark your calendars for the Alberta Law Conference, in Calgary on January 30 - 31. The ALC is a great opportunity for professional development and networking within the CBA Alberta community.

Further information about the conference will be provided once it is available. Thank you to ALC chairs Loretta Bouwmeester and Jennifer Baugh for taking on this event.

Alberta floods The staff at the CBA Alberta Branch want to send our best wishes to everyone in Southern Alberta that were affected by the recently flooding. We also want to extend a special thanks to everyone who either volunteered for, or supported any flood-related initiatives in our communities.

save the date 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.

Gala: Thursday, April 10, 2014 6:30pm Cocktails; 7:30pm Dinner

Symposium: Friday, April 11, 2014 8:30am - 4:00pm Law Matters | 13

Do You Know About the Centre for Public Legal Education Alberta?

By Rochelle Johannson, BA, LLB Centre for Public Legal Education Alberta (CPLEA) The Centre for Public Legal Education Alberta (CPLEA) is a non-profit organization whose sole purpose is public legal education. The services that we provide help people understand how the law affects their daily lives and where they can go to access the legal services they need. We develop information in print and digital formats and distribute legal information through presentations, social media, online Rochelle Johannson resources and through our community partners located across the province. With the help of our 90 volunteers, we distributed 64,000 print materials to over 40 communities in Alberta last year.

Timely access to accurate legal information can help with the prevention of legal problems, and can help to lessen the severity of problems that are already occurring in people’s lives. Legal

information is a tool that is available, alongside legal advice and representation, to help Albertans access justice. Our resources reach many rural communities that would otherwise have little to no access to legal services.

The materials that we develop are aimed primarily at the general public and are written in plain language. While we do conduct information sessions for the general public, the majority of our training and workshops are provided for intermediaries, who are front line service providers. We teach social workers, health care workers, librarians and other professionals about the law as it affects their clients, and provide the intermediaries with resources and direction to help their clients access the legal help that they need.

We have many different programs that focus on a variety of legal topics. For a full list, please go to www.cplea.ca. con’t on page 15...

H E A LT H M AT T E R S Food: You Do the Crime... You Do the Time

By Devin Mylrea When it comes to eating habits and diet, if you do the crime, you do the time. A lifetime of criminal eating habits is bound to catch up to your body. No one wants to be subject to doctor-imposed probation, shackled by excess weight, sentenced to a long stay in a hospital, or worse.

As lawyers, we are committed to a career that entails stress, heavy workloads, and long sedentary hours. It is vital to Devin Mylrea do the little things on a daily basis that cumulatively give us a better chance of achieving and maintaining good health. There are endless health tips that help combat the hit your cardiovascular health takes as a result of stress and inactivity. One of the most important changes that you can make, and the focus of this note, is to commit to a heart-friendly diet. I am.

If you are looking to change over to a heart-friendly diet, some of the nutrients and vitamins you should consider adding to your daily diet and routine are discussed below in an edited excerpt from the blog article “Help for Heart Month!” (http://physioworksbc.tumblr.com) written by staffer Patty Gomez, a Registered Holistic Nutritionist at Physioworks in Vancouver, BC (http://www.ptworks.ca). See Patty’s personal site at www.whole-nourishment.com.

Nutrients and Vitamins for Your Heart • Phytosterols are plant sterols that chemically resemble cholesterol - and seem to reduce blood cholesterol. All nuts and seeds, including wheat germ, have phytosterols.

• B-complex vitamins - like Vitamin B-12 (folate) and Vitamin B-6 - protect against blood clots and atherosclerosis, or hardening of the arteries. Niacin (Vitamin B-3) helps increase HDL “good” cholesterol.

14 | Law Matters

• • •

Vitamins C and E - antoixidants that protect your cells from free radical damage.

Magnesium, potassium, and calcium can help lower blood pressure.

Fibre - rich foods help lower cholesterol levels.

Increasing your intake of the above nutrients and vitamins through supplements can be beneficial to your health, so talk yo your doctor about supplements. However, it is also important to eat whole foods that provide the benefit to your heart and the rest of your body.

Heart Loved Foods • Kale - Full of flavonoids, omega 3s, and vitamin K, which are all anti-inflammatory.

• Omega 3s - Wild local salmon, flaxseeds, flaxseed oil, walnuts, sea vegetables like dulse, arame, nori.

• Nuts - Lower cholesterol and good sources of fibre.

• Garlic - Slows hardening of the arteries and helps lower blood pressure.

• Lentils - Helps lower homocysteine levels, increases blood flow and oxygen.

• Berries - Rich in fibre, antioxidants, full of beta-carotene, carotenoids, vitamin c, folate, magnesium, potassium.

• Whole grains - Brown rice, quinoa, buckwheat, millet, barley, etc. Loaded with fibre.

One cannot survive on these foods alone for too long before reaching for the salt and vinegar chips, so mix these foods, cooked and raw, with your regular dishes, salads, and desserts. You will find that increasing the frequency of “heart loved foods” in your own diet becomes easier, even habit forming. And your heart will love you for it. a

con’t from page 14...

•

LawNow - a free legal education magazine that features columns, special reports and themes that highlight the best in practical public legal information and education. LawNow (www.lawnow.org) offers a monthly email subscription service so that readers can receive updates on new content.

•

Canadian Legal FAQs - an online encyclopedia of frequently asked questions about the law in Alberta and Canada. The website (www.law-faqs.org) is one of our most popular, with over 160,000 visitors last year.

•

OAKNet - The Older Adult Knowledge Network (www.oaknet.ca) has information on wills and estates, personal and family relationships, AGTA, elder abuse, and other topics of interested to an aging population.

•

Laws for Landlords and Tenants in Alberta - has information for both landlords and tenants about rights and obligations in residential tenancies in Alberta (www. landlordandtenant.org). Resources includeYouTube videos and a smartphone app, Can My Landlord? (app.cplea.org)

•

Charity Central - helps registered charities learn about their responsibilities under the law for accountability and transparency in the charity’s operations (www.charitycentral.ca).

•

Youth Program - provides school-related materials (www.lawcentralschools.ca), and resources for marginalized youth. This project received the 2012 Award of Merit at the Service Alberta Consumer Champion Awards.

We are always looking for new and creative ways to help people learn about the law. We welcome volunteers in all practice areas and in a variety of capacities, from providing feedback on new resources, to writing for LawNow or for our blog (cplea.ca/blog). Volunteering with us is a flexible way to give back to the public, by sharing your knowledge and expertise. If you would like to learn more about us, or would like to volunteer, please email us at info@cplea.ca, or contact Rochelle Johannson at 780-451-8764. You can also follow us on Twitter @cplealberta. a

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Law Matters | 15

CBA National News CBA Legal conference 2013 This year’s CBA Legal Conference (CLC) is taking place this year August 18 to 20 in neighbouring Saskatoon. With very little time left to registration, the CLC holds so much for CBA Alberta members.

Highlights include: - The Big Shift, as keynote speakers Darrell Bricker and John Ibbitson will discuss the shift of power taking place within Canada.

- An easy round trip, with up to four direct flights daily to Saskatoon from Calgary and Edmonton. Or hop in the car and make it a road-trip. Be sure to take advantage of the available CLC travel discounts too.

- Day Passes are available to CBA members who can’t join us for the entire three days of action-packed programming.

Be a part of the must-attend event for Canadian legal professionals.

To learn more and to register visit www.cba.org/clc, or follow the CLC on Twitter to get the latest program updates (#CLC2013).

New Volume of The Canadian bar review now online Catch up with another edition of the CBA’s learned journal, frequently cited at the Supreme Court of Canada. Free to CBA members, Vol. 91, No. 1 of The Canadian Bar Review is now online and features new articles on: legal ethics versus political practices, the rise of self-representation in family court, assessing tort damages in the conflict laws, and so much more.

Access it online now at www.cba.org/CBR

Supreme court ruling brings clarity to conflicts rules On July 5, the Supreme Court of Canada brought clarity to the practical application of the conflicts rule with the release of the McKercher decision.

This clarification substantially reduces concern that clients would be needlessly deprived of their choice of lawyer, said Malcolm Mercer, pro bono lawyer for the CBA which had intervened on the issue of the scope of the duty to avoid conflicts of interest.

McKercher LLP was acting for the representative plaintiff in a class action lawsuit against CN Railway, for whom the firm was acting on other matters. CN argued that McKercher owed a “duty of loyalty” and applied to disqualify McKercher from acting on the class action suit. The CBA argued that this duty does not categorically prohibit acting directly adverse to the immediate legal interests of a current client.

The top court has limited the scope of the bright-line rule by making it clear that it only applies where “the immediate interests of clients are directly adverse in the matters on which the lawyer is acting.” The rule does not apply where it is “unreasonable for a client to expect that its law firm will not act against it in unrelated matters.”

In order to make that determination, courts are directed to consider the relationship between the law firm and client, terms of the retainer and the types of matters involved - all factors that the CBA said should be considered, Mercer said.

The court concluded that lawyers should only be disqualified to avoid the risk of improper use of confidential information; to avoid the risk of impaired representation and/or to maintain the repute of the administration of justice.

“This means that clients should not have their lawyers disqualified without good reason which has been the essential position of the CBA,” Mercer added.

“We’re pleased that the Court has brought to the profession and the public the clarity that the CBA has been urging.”

Read CBA’s factum: http://www.cba.org/CBA/groups/PDF/factum_of_the_canadian_bar_ association_intervener.pdf LINK TO CBA’S VIDEO: http://player.vimeo.com/video/58099764

bill c-377 amended by senate A Bill the Canadian Bar Association (CBA) cautions could impede upon Canadians’ privacy and constitutional rights has been blocked by the Senate. The Senate, by a vote of 49-33 on June 26, has made several amendments to Bill C-377 which requires labour organizations to publicly disclose their financial activity and political dealings. The Bill will now be returned to the House of Commons to consider the amendments after it passed the Bill in its original form.

Supporters of the private member’s Bill claim that the Bill would create greater union transparency, as well as bring labour organizations in line with charities that face the same public disclosure rules. Specifically, labour organizations would have had to disclose contributions of $5,000 or more, and divulge employees making more than $100,000.

The CBA and other opponents of C-377 say the bill is an infringement of privacy and constitutional laws, and contravenes rights protected under The Charter. The CBA has continually asked for the Bill to be defeated, or in the least, amended. con’t on page 15...

CBA on Facebook, LinkedIn, & Twitter!

The CBA is on Facebook! Become a fan by “lik ing” our page and keep us in your newsfeed: www.facebook.com/CanadianBarAssociation. And be sure to follow us on Twitter @CBA_News, and LinkedIn at www.linkedin.com/company/canadian-bar-association.

16 | Law Matters

CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS

con’t from page 16...

In a statement to the Commons finance committee last October, CBA’s Pensions and Benefits Law Section Chair Michael Mazzuca said:

Michael Mazzuca, CBA Pensions and Benefits Law Section Chair

Alberta Panel

“To the extent that the Bill requires the reporting and making publicly available details of salary benefits for all officers, directors, trustees and employees (of labour groups), we believe it would infringe upon privacy concerns and existing privacy laws.”

When the House of Commons initially voted on the Bill last December, it passed in a marginal 147-135 vote. The Senate, after having heard from more than 40 witnesses at committee stage, voted 49-33 to adopt amendments at third reading and send the Bill back to the House of Commons. Due to the June Senate vote, Bill C-377 will be sent back to the House of Commons, which is currently in recess until the fall.

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.

join the conversation with futures With the release in June of The Future of Legal Services in Canada: Trends and Issues, t h e C B A m ove d i nto t h e consultation stage of its Legal Futures Initiative, launched in August, 2012.

I n this phase, the CBA is reaching out to legal industry stakeholders – legal and nonlegal professionals, as well as clients and academics – for their input about what the profession must do in order to position itself for relevance into the next decade and beyond.

Trends and Issues, which is available on the Futures website, is a synopsis of the data and insights from industry leaders assessing the current state of the legal profession, and the issues it is likely to face. It is accompanied by a consultation document and a list of questions which are meant to stimulate discussion. Stakeholders are invited to answer some of the questions, or all of them – to take the opportunity to add their observations to the information being gathered.

As well as opening up the floor to comments from the legal industry as a whole, the Futures steering committee has also formed teams whose job it is to drill down into some of the more complex issues facing the profession: legal training and education; business ethics and structures; and ethics and regulation.

“One of the goals of the Futures initiative, the first comprehensive study of its kind in Canada, is to create a framework for ideas and to identify ways to help the legal profession understand the challenges ahead, and shape the direction of the future – to the extent that that is possible,” says CBA Vice-President Fred Headon, who chairs the Futures steering committee. “And we want to do so in such a way as to best serve the changing legal needs of the public and clients – to create a win-win situation.”

Visit the www.cbafutures.org to have your say, or join the conversation on Twitter at #cbafutures.

Harold W. Veale, Q.C. Law Matters | 17

1.800.856.5154

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Fight Procrastination

By Jennifer Flynn, Executive Director, Legal Education Society of Alberta September 6 is Fight Procrastination Day. I like to think of myself as a “get-things-done” kind of person, but even I suffer from the occasional bout of procrastination.

Like many of the busy professionals I know, I tend to prioritize work and family commitments over everything else. Having recently stepped into the role of Executive Director here at LESA, and with two active young boys to keep on top of at home, it often feels like there isn’t adequate time to devote to other things. This makes me susceptible to Jennifer Flynn procrastination. I find my best weapon in the fight against procrastination is a solid plan and a clear sense of what my next action should be.

What about you? Do you find yourself procrastinating when it comes to your professional development plan? If so, take this opportunity to celebrate Fight Procrastination Day a little early. Take five minutes to review your CPD plan and schedule any outstanding CPD activities. If your CPD plan includes attending any LESA seminars, register now before they’re sold out!

LESA has a great variety of programs being offered between September and December 2013, including: - Interest Based Negotiation (Edmonton), Basic Collaborative Law (Red Deer), and Mediation of Family and Divorce Conflicts (Calgary) - Essential for collaborative practice.

- Microsoft ® Word 2012 Training (Lethbridge) - Tips and shortcuts to help you be more productive at work (specially designed for law offices).

- 3rd Annual Law and Practice Update (Edmonton) - A comprehensive two-day conference with updates in a full range of practice areas, plus a wealth of practical take-home strategies for general practitioners and those practicing in small firms.

- Analyzing Financial Statements - Fundamentals of accounting and related documentation.

- Running Your First Real Estate Transaction - Basics of a real estate transaction, including a thorough review of trust conditions, reporting letters, real property reports, holdbacks, title insurance, and protocol closings.

- Constitutional Symposium (Edmonton) - Topics include the right to die, polygamy, the Whatcott decision, a discussion of the Caron case, and how to run a constitutional trial.

- Estate Litigation - Issues unique to estate litigation under the new rules, using the courts as a tool, alternatives to litigation, and questioning on an estate file.

- Immigration - Topics covering changes to Citizenship and Immigration in Canada including business matters, refugee status changes, and immigration appeal procedures.

- Criminal Advocacy - Judicial Interim Release - A comprehensive overview of the conduct of an effective judicial interim release hearing incorporating substantive legal principles with demos and panel discussions, plus an optional afternoon skills workshop.

- Introduction to Arbitration - An introduction to the process of arbitrations and identification of the benefits and techniques to best utilize the arbitration process.

- Matrimonial Property Issues - Going beyond the basics to look at common law relationships and property claims including support issues, unjust enrichment, and Family Trusts.

- Desk Divorces (for Legal Support Staff ) - Desk divorce procedure and strategy, along with a detailed review of the documents required.

18 | Law Matters

- Advising Charities and Not-For-Profits - Updates on Canada Revenue Agency policies and practices, rulings and audits, anti-spam legislation, the “social enterprise movement,” and the potential effect of law reform.

- Drafting Personal Directives and Enduring Powers of Attorney - Amending PDs and EPAs, drafting for blended families, international assets, and second marriage situations.

And a “fight procrastination” must-have: - Get Organized and Get things Done! Practical Time Management for Lawyers - Strategies and techniques for taking control with effective planning and scheduling, focusing on priorities, and working more productively.

Remember to save the date for the 47th Annual Refresher at Lake Louise from April 27 to 29, 2014. The focus this year is Civil Litigation; the conference will address key issues affecting all Alberta lawyers whose practices touch on civil litigation. You won’t want to miss it.

As you get ready for a new educational year, LESA is here to support you in your fight against procrastination. We look forward to hearing from you soon! a 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.

RESEARCH AND COMMUNICATIONS

Free Legal Sessions Offer Information and Resources to Flood Victims

By Gillian Marriott, QC, Executive Director, Pro Bono Law Alberta

Gillian Marriott, QC

The recent flooding in late June 2013 was devastating to thousands of people in Southern Alberta, resulting in loss of life as well as loss of shelter, income, family security and personal health and safety. Although it may take several weeks or months for the full ramifications of this natural disaster to become evident in a legal sense, several groups in Calgary quickly responded in the short term to provide legal information and resources to those affected by the flooding.

Similar to the ‘Legal Response Team’ which assisted the Slave Lake community following the wild fires in May 2011, another group of legal organizations collaborated to host four public legal information sessions in early July which provided fact sheets, answers to legal questions and options for further assistance. The response to the fires two years ago in Slave Lake provided the basis for the plan in 2013 to assist those affected by the floods.

These sessions were planned in just a few days and over a long weekend to boot, as an immediate response to providing legal information as a result of the flooding. It is anticipated that more organized sessions will be offered as the need arises and as more people become aware and ready to deal with their own legal matters pertaining to the flood.

Many people are still in crisis mode and will seek legal help or direction as time goes on and we will be prepared for that by being proactive, responsive and sensitive.

There so many people to thank for pulling together to help us organize these sessions and provide this information to flood victims, that we can’t possibly name you all. You know who you are, and we thank you for your flexibility, your expertise and your willingness to leap outside the box and extend yourself to others in a time of need.

On behalf of Pro Bono Law Alberta, Calgary Legal Guidance, Pro Bono Students Canada, Student Legal Assistance and Legal Aid Alberta, thank you for your support and help with this initiative. a

Pro Bono Law Alberta (PBLA), Calgary Legal Guidance (CLG), Pro Bono Students Canada (PBSC), Student Legal Assistance (SLA) and Legal Aid Alberta collaborated to organize and host two sessions in Calgary on July 3 and two sessions in Okotoks on July 4. In each location and at each session, a moderated panel of volunteer lawyers highlighted various legal issues related to the flood including Tenants; Insurance; Employment Issues; Mortgage and Creditor/Debtor; Condominium Owners; Property Damage; Family Law and Emergency Financial Assistance.

The sessions were followed by a ‘Q and A’ session and the opportunity for individuals to meet on site with a volunteer lawyer to discuss their particular legal situation. Students from PBSC and SLA guided people to the specific legal area and assisted in the intake process for those who met financial eligibility criteria. The public sessions were an opportunity for people to share their experiences and reach out for help, and to learn about each other’s challenges with regard to loss of property, destruction of homes or businesses and the general sense of loss and despair that was common among all audience members.

Participation at the four information sessions and the development and review of accompanying legal fact sheets required the commitment of many volunteers in a very short time. Several lawyers vetted the fact sheets which were then professionally designed and made available for people to take away and also to download on each group’s web site. The fact sheets will be helpful as a starting point for people who may not even know where to begin in their ‘rebuilding’ process. These resources are available at http://www.pbla.ca/events/item.4592Southern_Alberta_Flood_Legal_Help.

Several lawyers volunteered to be part of the panels to provide information in their respective area of law and to answer questions.

They also took the time to individually meet with people following the sessions. We could not have hosted these sessions without the assistance from the lawyers who came on board with very short notice. The law students were enthusiastic and engaged in many aspects in the planning and hosting of these sessions, even providing media interviews.

Law Matters | 19

c ro s s - s e c t i o n From the desk of Jeremiah Kowalchuk Section meetings are over for another year, but the staff in Edmonton’s CBA office still have plenty of work to get through over the summer - they are hard at work on sections budgets, membership packages for the law students, and the section handbook for 2013-2014. The online registration will open up some time in mid-August for the Karen McDougall 2013-2014 season. We trust that all of the Section executives have been successful in recruiting new volunteers for their executive positions. The summer is a good time to start thinking ahead to topics for your section meetings starting in the fall. Remember that not all meetings need to have the “meetingroom-with-a-speaker” format.

Provided the section budget can bear it, you can be creative and schedule field trips, social events, joint meetings with other sections, and speakers from out of town. Also, if you are interested in getting involved in CBA activities, but did not find a spot on one of Jeremiah Kowalchuk the section executives, there are committees that need volunteers such as the Alberta Law Conference, and Law Day. Starting in the fall, both the North and South sections of Family Law and Civil Litigation are going to be the test pilots for our Bench and

N o rt h Bar initiative, a great idea from Chief Justice Wittman. The plan is that each section will have one meeting a year that will feature a Bench and Bar roundtable on a predetermined topic of interest to the section.

The section members and judiciary groups will have the opportunity to discuss the topic in a comfortable, informal setting in small groups, with the goal of facilitating frank discussion and forging connection.

The Chairperson’s Appreciation dinner was held at the Faculty Club on June 25 and was a great success. They tried to lock us out of the buffet area at one point for some reason, but faced with a room of hungry lawyers, they let us back in for seconds and dessert. Thanks to Heather Walsh for organizing the event, which was a very pleasant evening featuring good food and great company. Frank Friesacher from McCuaig Desrochers will be taking over my role as North Section Coordinator with Karen McDougall, who is going into her unprecedented third year as North Section Coordinator. Karen has graciously agreed to stay on for a third year to ensure a smooth transition for Frank and whoever takes over from Karen in 2014.

Finally, I would like to congratulate Katherine Fraser, one of the CoChairs of our Law Students section, for having won the Canadian Bar Association’s Edward K. Rowan-Legg Award. This is very exciting news for the Alberta Branch and marks the first time this award has been own by someone from Alberta. The award was established by Judi RowanLegg in honour of her late husband, Edward K. Rowan-Legg who was a dedicated and active member of the CBA. It is meant to recognize student contribution to the CBA and promote student attendance at the annual Canadian Legal Conference. Katherine has been involved with the Law Students section since her first month of law school, and has co-chaired the executive of that section since the fall of 2012. Katherine will receive a cash prize of $1000, a complimentary registration to the CLC in Saskatoon, Saskatchewan, and the Alberta Branch will cover her travel expenses. Congratulations, Katherine! a

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Learn more about our complete list of PD offerings: 20 | Law Matters

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c ro s s - s e c t i o n So u t h From the desk of Melissa Morrison On May 28, I had the pleasure of attending the annual Chair Appreciation Dinner held at Fort Calgary. Once again, I’d like to thank all of the volunteers who have worked so hard at organizing meaningful section meetings and networking opportunities. This year, we had some remarkable programming and all of the section executives deserve a big round of applause for their efforts.

Melissa Morrison

Curtis Serra

I’d also like to take this opportunity to acknowledge my co-coordinator Curtis Serra, who will be ending his term as a South Section Coordinator. He has been an absolute pleasure to work with and has made my first year in this role effortless. I am sad to announce that this will be my last year as South Section Coordinator as I will be welcoming my second child in early December. That being said, I am thrilled to welcome two amazing additions to take over where we left off; Jenny McMordie and Anthony Strawson. I’d also like to acknowledge Linda Chapman, who is rushing around in the background to make sure that all the sections run smoothly.

Finally, I’m excited at what 2013-2014 will bring and encourage everyone to watch for the 2013-2014 Section Handbook. Have a fantastic summer! a

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13-05-14 10:36 AM

By Marian V. De Souza, Executive Director

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Putting Back the Pieces The title doesn’t quite capture the gumption of the Stampede slogan, “Come Hell or High Water.” Still, I hope it conveys the calm spirit and determination of our colleagues, friends, family, and fellow Albertans, in the aftermath of the recent flooding.

While the floodwaters and the devastation left in the wake were overwhelming, equally powerful was the demonstration of community support and courage.

Marian V. De Souza

Sadly, the highest price paid was loss of life, including one among our own legal community, taken in pursuit of caring for others.

Perhaps the shock of it all was tempered by attending to basic needs of food and shelter, digging through sludge, hauling heaps of saturated insulation and demolishing drywall. Many firms and companies allowed employees time off for clean up and even those who usually push paper took up shovels. The community opened their homes, shared meals, children baked cookies to hand out, and offered cards of condolence, all offering hope, encouragement, and inspiration to move forward.

As with any natural disaster, the physical destruction is all too clear: countless images of the need to restore infrastructure, rebuild homes and restore possessions. Less obvious is the possible psychological impact of the disaster. Whether it is for self-help or helping others, it is important to understand the possible impact of experiencing a traumatic experience. Visit www.albertalawyersassist.ca/resources/physicaland-mental-health/ to read and share a guide designed for this purpose.

Also, Assist’s professionals are available to take calls and provide on-site services to deal with possible trauma and provide advice to those supporting others. Assist provides confidential professional psychological services and peer support at no cost to members of the profession and their families, and in unusual times like these, Assist will go beyond this immediate mandate, as necessary.

I have no doubt that the spirt of Albertans and the legal community will prevail to rebuild lives, homes, and businesses. If you, a loved one, or a colleague is struggling, call 1-877-498-6898, or go to www.albertalawyerassist.ca for additional resources. a

There were isolated reports of looting and vandalism by misguided individuals, and reports of vendors taking advantage of those requiring shelter. No less injury to insult for these victims. Still, examples of generosity by others including restaurants offered free food and retailers offering free shoes, hopefully tipped the scales in favour of humanity over commercialism.

Law Matters | 21

THE STUDENT PERSPECTIVE The 2013-2014 academic year is upon us. As the last few weeks of summer wind down, law students are set to return to, or perhaps, begin their law school experience at the University of Alberta.

Katherine Fraser

Those who are just starting 1L will quickly realize that law school will be a lot more than what is learned in the classroom. At every school, there is always a wide range of extra-curricular activities to join. In the midst of all of the programs and activities that U of A law students can sign up for at the Clubs Fair in September, one of the most beneficial is the CBA mentorship program. To participate in the program, students simply have to be part of the U of A Law Student CBA section, which is open to all student members of the CBA.

The mentorship program matches students with lawyers in the community who share practice area Jared Laneus interests. Mentors can provide advice about both law school and the profession of lawyer. The student and their mentor will get to shape the direction of the commitment, be it from meeting once or twice for coffee or lunch throughout the academic year, to attending CBA section meetings together and keeping in touch throughout all of law school and beyond.

I am sure almost every lawyer remembers the array of emotions

U o fa

experienced during the first year of law school- from perhaps sheer terror at the start of the year to utter exhaustion during mid-terms or moot season to the pure elation felt upon completing the last final exam. Think back: what was the most frightening thing about your first day of law school? What was the most exciting part of first year?

Hearing from a lawyer about their law school experience will unquestionably help alleviate the fear and uncertainty for new students in navigating law school and learning about the legal profession.

The CBA Law Students Executive at the U of A encourages lawyers to please consider signing up for the mentorship program. The mentorship program is a wonderful opportunity for both mentors and mentees. Mentors can be living proof that people who perhaps did not have it all figured out when they were in first year law school now have successful careers and have found their niche in the legal world. That can really help to put things in perspective for a student struggling to understand the rule against perpetuities or writing that first law school exam.

Additionally, for the incoming 1L class, we will also be recruiting members for our Student Executive committee. Aside from participating in the Clubs Fair Day, our plans for the Fall semester will include a welcome-back reception for students, promotion of the noon hour section meetings at the CBA office downtown and a lunch-hour meeting with guest speakers held at the school during the latter part of the semester. a

U o fc

Erica Lind

As August nears an end, the new school year is fast approaching. Many incoming students are likely both eager and nervous at the same time, wondering what this academic year has in store for them. The new 2L students have kind of figured things out now and are looking forward to catching up with their friends after the summer. The new 3Ls on the other hand are mostly just looking forward to being done law school. As a recent graduate I thought I would reflect on my law school career and what I found to be the best aspects of law school.

It is probably not that surprising that my favourite parts of my law school experience were those that occurred outside of the classroom. While I had some excellent and engaging professors and many classes that catered to my interests, getting David Louie involved in extra-curriculars was one of the best decisions I made. University of Calgary has many clubs and organizations to join, many of which allow students to learn the law in a practical way. Student Legal Assistance provides a great opportunity for students to gain hands-on experience while serving the community, allowing students to take on various civil, criminal, traffic and family law matters for which they represent their clients in legal proceedings. Pro Bono Students Canada also has a variety of different projects to get involved in, depending on your interests. Some projects are research related while others involve working directly in the community, such as assisting a lawyer at Civil Claims Duty Counsel, a joint project with Pro Bono Law Alberta. Volunteering at Duty Counsel was also a fantastic way for me to get to know lawyers in the community and to learn about their practice areas and experiences.

22 | Law Matters

If you’re already interested in a certain area of law there is often a student club you can join such as the Business Law Association or the Environmental Law Society. Or, you can start your own club. These clubs often host lunch seminars with lawyers from the community who can impart their expertise in their specific practice area. Often, participation in such clubs is a minimal time commitment so you don’t have to worry about your membership interfering with your studies.

Being a CBA member has also been a valuable experience. I’ve taken advantage of the opportunity to attend subsection lunch meetings to learn more about various areas of law. Through the CBA’s Mentorship Program I’ve gained a couple of great mentors over the years as well. I’ve been able to ask candid questions of them and receive honest replies without the pressure of worrying about recruitment and getting hired. Being a CBA member has also been a fantastic way to help develop my professional network.

But while professional relationships are important, developing friendships with your classmates is also essential. Law school can be very stressful and very time consuming, and having a network of friends who can relate to your issues is vital. There are always lots of social events to attend, or you can get involved in the Society of Law Students. Whatever you decide, be sure to make time to have some fun and get some exercise. There are a variety of intramural sports teams at a variety of skill levels so consider signing up for your favourite sport or learning a new one.

At the end of it all I still know very little about the law but I feel confident that I’ve been given the tools to learn and have gained a support system to help me succeed as an articling student. Best of luck to everyone in the coming school year. a

One Year On: Alberta’s Tough New Impaired Driving Laws

By Danusia Bourdon

Danusia Bourdon

On July 1, 2012, the Government of Alberta followed Prime Minister Harper’s lead and decided to “get tough” on crime; specifically, impaired driving. Criminal law is under federal jurisdiction, but each province has control over an individual’s driving privileges and driver’s license - this is how Alberta has been able to weigh in on the consequences for drunk driving. So what were the changes, and what change, if any, have they effected?

The most significant change Alberta has been able to enact is to suspend a person’s driver’s license until they have resolved their matter in court. Prior to July 1, 2012, a person charged with impaired driving and/or driving with a blood alcohol level over 0.08 (I will refer to both charges as “impaired driving” for ease) lose their licence for three months pursuant to the Alberta government. That person could then get their licence back after three months, and they would have their licence until their court date. If they were found guilty after their trial, that person would lose their licence again for a minimum of 12 months - pursuant to the Criminal Code of Canada (hereinafter Criminal Code).

The “new” law in Alberta changed one’s ability to get his/her licence back after three months; essentially, a person is not permitted to get their licence back until they have either: 1. Pleaded guilty in court (in which case they will lose their licence for 12 months pursuant to the Criminal Code), or 2. Have run a trial and been convicted by a judge (in which case they lose their licence for 12 months pursuant to the Criminal Code), or 3. Have run a trial and won, in which case they will be permitted to get their licence back.

So what’s the problem? Consider this scenario (a real case): A woman - Ms. Unfortunate - and her boyfriend go to the bar for the evening and each enjoy a few alcoholic beverages. The couple leave the bar, with the boyfriend driving, and get into a fight. The boyfriend pulls over onto the side of the road and, in a huff, leaves the vehicle and Ms. Unfortunate on the side of the road. Ms. Unfortunate, knowing she has had too much to drink to safely drive, takes the keys out of the ignition and gets into the backseat of her vehicle. She begins to call friends and family from her cell phone to see if someone can come pick her up. In the meantime, the police arrive and ask her what she is doing. She tells police she was at the bar with her boyfriend, who has since left her, and is now calling around for someone to come pick her up. The police arrest her for impaired care and control of a motor vehicle. They take her to the police station where she blows over the legal limit. She is charged with two criminal charges: (1) impaired care and control, and (2) care and control of a motor vehicle with a blood alcohol over the legal limit. According to the “new” Alberta laws, she loses her licence immediately and cannot get it back until she resolves her matters in court. Her first court date is two months from the date of the alleged offence, and if she wants to plead “not guilty” and set her matter for trial, she will be given a trial date 10 to 12 months after that. So, by the time she concludes her matter in court, she will have gone 12 to 14 months without a licence, for a crime which she has not

been found guilty.

This is where we see one of the major problems with the “new” laws - Albertans are losing their licences (a major punishment for most) before they have been found guilty of a crime. The worst case scenarios are illustrated by the above example. In that case, Ms. Unfortunate had done nothing legally wrong; she is not guilty of care and control of a vehicle, and should never have been charged. But once the legal ball starts rolling, an individual is at the mercy of the judicial, and now provincial, system.

One of the most unfortunate outcomes of the new law is having innocent people plead guilty to a criminal offence just to get their licence back sooner. When we look at the above scenario, Ms. Unfortunate has two options: (1) plead “not guilty” and set her matter for trial, or (2) plead guilty to the offence. A defence lawyer will tell Ms. Unfortunate not to plead guilty because she is not guilty of the offence, and should not have been charged. But if Ms. Unfortunate pleads “not guilty”, she will have to wait approximately 10 to 12 months for a trial and go that entire time without a licence. If she pleads guilty on her first court appearance, she will have a criminal conviction and lose her licence for 12 months, BUT, she can apply for the interlock device after three months from the day she pleads guilty, and hence get her licence back sooner than if she exercises her constitutional right to a trial.

Having a driver’s licence has become essential for most Albertans, especially those who live in rural areas. We need our driver’s licences to work, take our kids to school and activities, go grocery shopping, take our ailing parents to their medical appointments, etc. When faced with the reality of not being able to drive for 10 months or more, many Albertans are making the unconscionable decision of pleading guilty for the sole reason of getting their licences back sooner. They are not making the decision based on the law or the strengths/weaknesses of their case. Some, like Ms. Unfortunate, are pleading guilty when they are innocent - all because they cannot live their lives for 10+ months without a driver’s licence.

Alberta’s new laws have taken away the right to be presumed innocent and have extorted guilty pleas by dangling a person’s driver’s licence before them as an incentive to forgo a trial in order to have their licence returned sooner. These are not the kind of laws and government tactics we as Albertans, and Canadians, expect to face in a free and democratic society. a

Law Matters | 23

Changes to Criminal Law are Eroding our Charter Rights

By D’Arcy DePoe We’ve come a long way since the Charter of Rights and Freedoms came into force in 1982.

D’Arcy DePoe

From one perspective, some very basic rights have become so entrenched that it would be difficult to foresee them ever being intruded upon. For example, the basic right to be Informed of the Right to Counsel under Section 10(b) of the Charter, or the necessity of police obtaining a warrant prior to entering private property, are taken for granted.

However, considering recent case law, and examining recent amendments to the Criminal Code, it would seem that our liberty and our rights are now being eroded in favour of a more “law and order” approach.

Our government has pursued a law and order agenda since coming to power in 2006. For example, they have enacted dozens of new mandatory minimum sentences, for offences of all kinds. This has the effect of creating arbitrariness in the sentencing process. A mandatory minimum sentence may bear no relation to the objective of sentencing in part XXIII. Mandatory minimums do not allow for a complete assessment of important sentencing principles such as proportionality, restraint or rehabilitation. These matters are now in many cases taken away from the courts consideration. Judges feel forced to mete out arbitrary and unjust sentences, without regard to the circumstances of an individual case. Charter challenges to the worst of the mandatory minimums have already found their way into our courts. R. vs. Smickel (2012) ONSC 602 is the most noteworthy. There, an accused with no record faced a mandatory 3 year sentence for a brief and relatively innocuous handling of a restricted firearm. He was given Charter relief in that the court found this would amount to a cruel and unusual punishment under Section 12 of the Charter; he was sentenced to a 12-month conditional sentence instead. Smickle is under appeal, but has been followed in 3 other cases. One wonders how many other have felt the undue harshness of these laws without being able to seek a remedy.

Back in the 1990s, an enlightened government introduced the concept of the Conditional Sentence. This has been steadily eroded by legislative changes, particularly in the last 5 years, making Conditional Sentences unavailable for more and more offences.

All of this is being done without any empirical evidence that it will make our communities safer. It seems simply born of a desire to punish, without regard for the human and financial costs.

Punishment has also been increased by the imposition of an ever widening array of ancillary orders, including orders to provide DNA, to enter into a sex offender registry, for weapons and firearms prohibitions, driving prohibitions, forfeiture of proceeds and property, and enhanced Victim Fine Surcharges.

The latter is particularly egregious. The recent decision to basically double the amount of the victim fine surcharge imposed along with a sentence, and to remove any judicial discretion to waive it, amounts 24 | Law Matters

to nothing more than an attack on the poor and marginalized Canadians who disproportionately find themselves in front of Canadian courts. This will inevitably force those who can’t pay into serving jail time. Welcome to debtors prison in 21st century Canada.

The cost to us all will be enormous.

One could also consider the Conservative attempts to enhance police powers to compel internet service providers to give up information about their subscribers, and to increase other police powers, to see that our rights continue to be incrementally attacked.

It is not just Parliament that has moved to erode our Charter rights.

Our courts seem to be retrenching and rethinking earlier Charter jurisprudence. The best example of this is the Supreme Court of Canada’s trio of decisions in Oickle, Singh, and Sinclair, which arguably together, have had devastating effects on the Section 7 right to silence and right to counsel under 10(b).

In R. v. Oickle, [2000]2 SCR 3, the courts’ modern restatement of the confessions rule greatly circumscribes which statements be detainees to police will be considered involuntary. One academic commentator wrote that this case amounts to “a recipe for coercive interrogation practices.”

The court in R. v. Singh [2002]SCR 405 held that a detainee’s right to silence under Section 7 is subsumed by the confessions rule, as outline in Oickle. The court in Singh also held that, no matter how many times the detainee insists that they do not wish to make a statement, the police have no corresponding duty to cease questioning. Rather, any statement made will have its admissibility assessed based on the common law confessions rule. We have seen several cases where despite dozens of assertion of the right to silence, the police have continued to interrogate a suspect and obtain inculpatory evidence, later rules admissible.

Lastly, the court in R. v. Sinclair [2010]SCR 310 held that the right to counsel is a one-time right, following which a detainee has no further right to speak to counsel regardless of how long or oppressive a police interrogation may become. The minority in that case (Lebel and Fish JJ) in dissent called this the “Oickel and the Singh, Sinclair Squeeze.”

Taken together, these decisions have this effect: once detainees are given a consultation with counsel, no matter how brief, they can be subjected to long and oppressive interrogations by police investigators. No matter how much they assert their Charter protected right to silence, the police have no duty to cease questioning. The only protection a detainee may have is after the fact, through the application of an inadequate confessions rule that ignore the insidious ways in which contemporary interrogation techniques are prone to producing confessions. There is good evidence from the United States, where the law protecting detainees is more robust, that some confessions produced this way are simply false.

There is no doubt that crime is a threat to our civil society; but it can also be said that overzealous and ill thought out criminal law is a threat to our rights and liberties, without which, civil society is seriously diminished. a

A L B E RTA L AW R E F O R M I N S T I T U T E Reform Matters

By Peter JM Lown, QC, Director At our June Board meeting, Board and staff collectively reviewed suggestions for law reform projects which will fit the Institute’s capacity for the next 18 months. ALRI sets its own agenda and so the process of project selection is an extremely important one to ensure that the Institute is selecting relevant projects on important issues, which are aligned with possible implementation.

Let me provide some background on the Peter J.M. Lown, QC way in which we approach the task. First, we have a set of selection criteria, which guides us through the selection and project processes. There are four criteria, which are: Need to Reform - Each project must meet a perceived community need by providing a remedy for a deficiency in the law or the administration of justice.

Appropriate Body - A project must be one that neither the political process nor the administrative process is likely to deal with effectively.

Resource and Expertise - Each project must be one that falls within the capability of the institute and its network.

Overall Program - The total program must make contributions both to technical areas of law and to areas of law involving society.

Second, since we receive suggestions from many sources, we have developed a process for reviewing and prioritizing the suggestions.

The process follows four stages: • • • •

Initial screening of the suggestions to remove non-legal topics and establish rough priorities; A preliminary assessment to identify issues, assess the scope of the project, and gauge interest; A project plan to define scope and methodology, outline outcomes and determine needed resources; and finally A project decision that approves the project, establishes a project management committee, allocates resources and establishes a schedule for the project.

Finally, we will be continuing existing work dealing with revamping the Societies Act and Part 9 of the Companies Act to create modern notfor-profits legislation; continuing our research in a number of issues arising under the Matrimonial Property Act; and clarifying a number of technical issues relating to beneficiary designations. At the same time, we will commence preliminary assessment work on issues arising under Builder’s Lien Act and on what are the property expectations or rights of persons who cohabit in a non-married relationship.

The Uniform Law Conference of Canada is a body that the Canadian Bar Association helped to create in 1918. It reviews areas that are appropriate for harmonized or uniform legislation across the country and produces draft legislation and commentaries. Law reform agencies are a significant contributor to the work of the Conference. Often, as was the case with Trusts and Reviewable Transactions, an agency will postpone its final recommendations until uniform legislation has been created. ALRI has a significant involvement with the Conference.

The Director is Chair of both the Advisory Committee on Program Development and Management and the International Committee, cochaired the working group on the Trustee Act, and sits on the Joint Committee with the US on Recognition of Substitute Decision-Making Documents. Sandra Petersson sits on the working group creating a new Uniform Interpretation Act, and Professor Tamara Buckwold, of the Faculty of Law at the University of Alberta, was the primary researcher and author of the Reviewable Transactions Legislation. The Conference is an important network through which harmonized legislation can be developed and the provinces benefit from implementation.

The project selection process is a vital one for the Institute, and we depend on your input to ensure that our program responds to the needs of the legal community. If you have suggestions for areas that require attention or new issues that need to be dealt with, be sure to let us know so that your suggestions are included in our project selection review. a Website: www.alri.ualberta.ca Email: reform@alri.ualberta.ca Twitter: @ablawreform

As part of the preparation for the June Board meeting, background research was carried out on 15 suggestions, which were then screened down to 5. These, along with existing potential projects, were then ranked from several perspectives, and priorities established for when new project capacity becomes available. The next 18 months will be very busy for the Institute. We will be completing work on three projects - a major project on estate administration, and the last piece of our suite of succession law proposals; reconciling a number of difficult operational issues which have arisen under the Arbitration Act; dealing with the rights of posthumously conceived children, an issue which is not dealt with in the relatively recent provisions of the Family Law Act. We will also be picking up topics that have been completed by the Uniform Law Conference of Canada. The Conference has approved a Uniform Trustee Act, and a Uniform Reviewable Transactions Act, which would replace our Fraudulent Preferences and Fraudulent Conveyances legislation. The Institute will report on how both of the pieces of legislation can be implemented in Alberta.

Law Matters | 25

THE COUNSEL NETWORK

The New School: The ABCs of Retaining Junior Associates

By Ed Picard What’s the deal with young lawyers today?

That was the question on everyone’s mind at the 2013 Alberta Law Conference. The Law Society of Alberta Plenary sought to uncover the reasons for the departure of many young lawyers from the profession, while a subsequent panel delved deeper still, focusing on the prominent contrasts between “old school” senior practitioners Ed Picard (members of the “baby boomer” generation born between 1945 - 1965), and “new school” junior practitioners (members of the “millennial” generation born between 1980 - 1995). These and other ALC panels aimed to address a very real and deleterious “generation gap” threatening to undermine the success of those firms which continue to view the next generation of lawyers through a traditional lens, views reinforced in Joel Stein’s TIME Magazine cover story famously characterizing the millennial generation as a group of “lazy, entitled, narcissists.”

As a legal recruiter, I see the dangers of this mindset reflected time and time again in daily conversations with associates at the junior and intermediate levels. All too often, today’s associates feel misunderstood, undervalued, and under-utilized in the workplace, concerns which can compel even the best and brightest young professionals to seek greener pastures elsewhere. Understanding the values, priorities, and goals common to the next generation of lawyers thus becomes a necessary, even crucial, first step for today’s firms to effectively support and retain their top associates. When dealing with the new school puts you to the test, here’s a handy study guide to keep in your back pocket: A is for Approach Young lawyers aren’t lazy: they take a non-traditional view to their career trajectory. Junior associates have internalized the law school maxim that no problem has only one answer. Similarly, they recognize that there are not one or two, but rather many potential roads leading to a rewarding career. Enterprising young lawyers, at home in an age of start-ups, have proven both willing and able to carve out their own paths to success. The traditional vertically-integrated model which has long defined the legal profession consequently holds less sway in a market where fewer associates see partnership as the de facto end goal of their legal career.

Notwithstanding that partnership no longer serves as a primary motivator, today’s associates are no less motivated to undertake hard work and no less devoted to growing a profitable practice. To the contrary; most young lawyers are keenly aware that marketing and client development efforts will bring in business for the firm, satisfy their bottom line, and increase their professional reputation, results which will benefit their practice and firm and regardless of where the associate’s career path takes him or her in the long run. In an increasingly lateral market, retention is now the name of the game. What factors will solidify your firm as the most attractive career option for your young practitioners?

26 | Law Matters

B is for Balance Young lawyers aren’t entitled: they have different personal and professional priorities. Today’s law school graduates enter the workplace weighed down by mountains of post-secondary debt.

They have watched their parents work grueling hours in a mad scramble for hallmarks of social status and financial independence.

They have integrated technology into every facet of daily life, working flexibly on the go and in constant interaction with others.

Accordingly, this group of young professionals has developed a unique set of workplace and lifestyle priorities, culminating in a “work to live, not live to work” philosophy, which frequently clashes with traditional expectations.

Don’t be fooled into thinking that millennials’ devotion to worklife balance means that they don’t value job stability, career advancement, or financial rewards. While these factors are highly important to today’s young lawyers - especially considering their mounting debtload on average and increased standard of living - they are nevertheless generally unwilling to pay for such professional gains at a high cost to their personal lives. Junior associates today tend to employ a holistic view when considering career opportunities; depending on the individual associate, a higher base salary or a lucrative bonus structure may not be as desirable as a generous maternity policy, flex days, or vacation time for travel. Bear these and other lifestyle incentives in mind when dangling the carrot for associates; you may see better results from a different vegetable.

C is for Collaboration Young lawyers aren’t narcissists: they thrive on engagement.

What strengths previous generations equate with independence, millennials equate with cooperation. Accordingly, young associates are hungry for the chance to work closely with knowledgeable practitioners on a variety of challenging work touching on diverse practice skills and areas of law; they see immense value in oneon-one mentorship and any chance to assist senior counsel in a meaningful way on an interesting file. As early adopters and heavy users of Facebook, Twitter, LinkedIn, and other social media, millennials are natural networkers, deriving greater benefit from tasks performed with other people over tasks performed for other people. The more frequently junior associates are included in client meetings, questionings, JDRs, trials, business development activities, and other opportunities for relationship-building, the more abundantly their productivity and job satisfaction will improve as a result.

Use the above guide to dispel preconceptions about your junior associates and you’ll be sure to receive passing grades in the retention department. Firms that recognize the unique needs and strengths of the next generation of lawyers are better poised to attract, maintain, and strengthen their associate base, leading to greater profitability, sustainable growth, and smooth succession planning. It’s often said that each new acquaintance is a learning

classified et cetera

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announcements the st. thomas more lawyers’ guild of northern alberta will be holding the annual Red Mass at the St. Thomas More Parish Church, 210 Haddow Close, Edmonton, on Saturday, October 5, 2013. Event begins at 5:00pm, with a family dinner and dance to follow in the Parish Hall.

Details to follow. nominations are now open for the women in law leadership awards. Take a moment to consider whether you know a lawyer who has worked hard throughout her career to achieve a high level of contribution to our legal profession. Nominate her for a WILL award in recognition of her efforts, achievements and contributions. www.willawards.ca This text-only section is provided for non-profit organizations free of charge. To include your organization’s announcement please contact the Communications & Marketing Specialist at 403-218-4310 or newslet@cba-alberta.org.

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Publication of advertising in Law Matters by the Canadian Bar Association Alberta is not an endorsement of the advertiser or of the product or service advertised. No contractual or other relationship between the advertiser Law Matters | 27

CBA-ALBERTA

L

e d u C at i o n

Vice President

Lega

Cyril S. Gurevitch, QC

Marian V. De Souza

Secretary

Co

in nt

g uin

President

Section Handbook 2013-2014

Treasurer

EXECUTIVE

Visit: www.cba.org/alberta INSIDE: The centerfold insert has a complete list of South and North Section Chairpersons and Section Coordinator information.

Executive Director

Beginning August 20, sign up for the 2013-2014 Sections and take advantage of easy online registration and payment.

Wayne Barkauskas

Past President

Steven Mandziuk, QC

Jeffrey D. Wise, QC

Maureen Armitage

Law Matters is published by The Canadian Bar Association Alberta four times annually. Submissions are subject to approval and editing by the Editorial Committee. Law Matters is intended to provide general information only and not specific legal advice. The views and opinions expressed here are those of the writers and do not necessarily reflect the position of the publisher. Direct submissions and enquiries to Law Matters, Attention: Publications, Southern Office. Law

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