Law Matters | Winter 2013-14 by Canadian Bar Association, Alberta Branch

ISSN 1704 – 9377

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Vol. 38 No. 4 Winter 2013-14

Law Matters | 1

IN THIS ISSUE President’s Report

What’s Happening

View from the Bench

Practice Pointers

CBA’s Commercial Leasing Partner

Unsung Hero

Back to Basics: Common Law Relationships

Adapting to Change: Wills, A Family Law Perspective

Corporate Law for Family Practitioners

Disclosure Matters: Foreign Owned Assets

CBA National News

Front and Centre

Alberta Branch News

LESA: Annual Refresher

PBLA: Top 10 Reasons to do Pro Bono

Cross-Section North

Health Matters

Cross-Section South

Judicial Appointments

The Student Perspective

Assist: Hand-to-Hand Fundraising Dinner

Committee Update: 24 Access to Justice Committee ALRI: Reform Matters

In Memoriam: Hugh Robertson, QC

Non-profit Announcements

Classified, et cetera

E D I TO R ’ S

By Robert Harvie, QC

PAGE

Here I go putting my thoughts to paper for the first time as Co-Editor of Law Matters. I have been a volunteer on the Editorial Board and a contributor for quite some time – going back to early 2008. During that time, I have sat in on many editorial meetings, have written a few articles myself, and have read the magazine pretty much every single issue – but, candidly, until being asked to review as a co-editor, I don’t think it really struck me how much work and dedication goes into producing each issue.

As I sat down to read not only the articles of application and interest to me personally, but every single article (which I hate to admit, I don’t think I had done until now), I was embarrassed to have spent almost six years with Law Matters without fully appreciating the work that our contributors do.

This issue’s topic is Family Law, and it holds some excellent content from Enrique Dubon-Roberts highlighting the distinctions facing married and unmarried couples, to the very timely and somewhat confusing topic of Estate Planning in the context of Family Law by Terrence A. Cooper, QC. If the Estate issues don’t get your head spinning – some appropriate and important pointers regarding broad Corporate Law issues in the context of Family Law are also provided by Robert R. Worthington. Finally, completing the picture for this issue is the article re-enforcing the significance of understanding disclosure obligations in Family Law by Chad R. Johnson. Some great, and much appreciated, content indeed.

Contributing Authors this Issue Siwei Chen Terrence A. Cooper, QC Marian V. De Souza Enrique Dubon-Roberts Jennifer Flynn Judge A.A. Fradsham Frank Friesacher Robert Harvie, QC

In addition, there are some really great articles this in issue that, I think, serve to illustrate and hopefully encourage all of us who practice law to re-evaluated the need to “get off the treadmill” of churning out billable hours. The compelling example of this issue’s “Unsung Hero”, Carolyn Simpson, is a perfect illustration. Beyond a busy corporate practice with Stikeman Elliott LLP, Carolyn has devoted her time to a number of charitable organizations. And she’s not alone. Each contributor to this issue also gives of themselves for the betterment of the public and the legal profession. As do the lawyers working to deliver Pro Bono service discussed by Gillian Marriott, QC and Kendall Moholitny – who write about why we should do pro bono work – or volunteer (i.e. “free”) work generally.

Why Pro Bono? I think it’s a good question, and beyond the excellent points raised in the Pro Bono article, I would add another. It can make us happy. When we give of ourselves, when we do for our profession or others without expectation of return, we feel better about who we are, and it can turn a stressful practice into an enjoyable calling. Perhaps one of the best examples of this is Hugh Robertson, QC, who we said good-bye to with his passing this last year. Mr. Robertson was a great contributor to the cause of justice, not only to his community, but to our Province and the world.

Look to the example of all of our contributors, and to Carolyn Simpson and Hugh Robertson, QC, and maybe go out and do some pro bono or volunteer work today – not because you should, but because you can. a

John Hoyles Chad R. Johnson Patricia Johnston, QC Maureen Killoran Anne Kirker, QC David Louie Peter Lown, QC Ola Malik

Gillian Marriott, QC Jenny McMordie Kendall Moholitny Devin Mylrea Simon Shakibaei Robert R. Worthington

EDITORIAL COMMITTEE

Top Row (L to R): Katherine Bilson (Calgary); Terrence A. Cooper, QC (Fort McMurray); Enrique Dubon-Roberts (Calgary); Geoff Ellwand (Calgary), Melissa Gorrie (Edmonton). Bottom Row (L to R): Robert Harvie, QC (Lethbridge), Gillian Marriott, QC (Calgary), Shannon McGinty (Calgary), Devin Mylrea (Calgary), Dragana Sanchez-Glowicki (Edmonton); and Anthony G. Young, QC (Calgary).

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PRESIDENT’S

REPORT

As 2014 unfolds, I hope the New Year brings you continued success and happiness.

Marian V. De Souza, President as the polar vortex.

In 2013 the world said goodbye to Nelson Mandela who, as a man and ruler, transformed his nation and the world. Typhoon Haiyan hit the Philippines, forever changing the lives of many. Calgary endured a devastating flood. A government-wide strike shut down parts of the United States and unprecedented weather across North America disrupted air travel during the holiday season. Life can change as quickly and drastically as a weather stream known

The legal profession is less well known for change. After all, a fundamental principle of our system is reliance on precedent. Yet, the first quarter of the CBA year, and many new initiatives underway, tell us that the legal profession is changing rapidly.

The CBA is at the forefront of this progress, setting up members for success in the 21st century. CBA National has embarked upon a study of the future of the legal profession, an international, systemic look at the way we practice law and deliver legal services. The study considers the changing legal needs of citizens. As the needs of the consumer change, core competencies of lawyers are being redefined. In turn, adjustments to legal education are being made as methods of teaching and learning improve. The CBA embraces these developments to preserve access to justice and advance our justice system. Already, improvements to mobility rights for the profession and an alternative to the articling process in Ontario, mean changes for the profession in Alberta and CBA Alberta is enthusiastic about new opportunities to benefit our members.

For example, CBA Alberta participated in the Joint Action Forum, an initiative by the Alberta government to consider findings in a worldwide study outlined in Equal Justice Balancing the Scales. CBA Alberta, in partnership with government and other stakeholders, is committed to continual improvement of our justice system. I invite you to read the final Equal Justice Report available on the CBA website at http://www.cba.org/CBA/equaljustice/main.

Alberta’s Access to Justice Committee has compiled a report on Limited Scope Retainers in response to the need for information about ways to streamline practice and deliver legal services more effectively. The report includes authors such as Dr. Julie Macfarlane, and other experts providing a comprehensive look at this method of delivery of legal service.

It is thanks to the diligence of our volunteers, too many to name here, that CBA Alberta can deliver such work, in addition to core programming. On January 29, the Alberta Branch held the first meeting of council for 2014, followed by the annual general meeting. We welcomed CBA National President Fred Headon, who released the findings of the Futures Initiative and other news. We had the opportunity to hear from National Second Vice President candidates Dan MacRury, QC and René Basque, QC and thanked them for their vision and commitment to the organization.

By Marian V. De Souza

The Alberta Law Conference is still the premier legal event for the profession, combining continuing legal education with an opportunity to meet colleagues socially. The theme of the conference this year was “Communicate.” Panels offered the opportunity for delegates to discuss developments in the law and matters facing the profession. Highlights included guest speaker, The Honourable Jonathan Denis, QC, Minster of Justice and Solicitor General. Justice Peter Martin provided information on the process of federal judicial advisory committee. Fred Headon, National CBA President, delivered a keynote speech and Jason Hatcher, a communications expert with Navigator Ltd., shared his knowledge with the profession.

It was a pleasure to co-present with Carsten Jensen, QC at the 2014 Distinguished Service Awards. This long standing tradition during the closing lunch of the ALC allowed the bar to recognize the work of Norman F.W. Picard, QC for service to the profession; Lonny L. Balbi, QC, for service to the community; Professor Shannon K. O’Byrne for outstanding achievement in legal scholarship; and Erin J. Runnalls for pro bono legal service. Their example is a reflection of the strength of the Alberta bar as they join many outstanding individuals worthy of this recognition over the years. 2014 is a special year, as members of the legal profession have a once in a lifetime opportunity to celebrate the Court of Appeal centenary. To mark this momentous occasion, the CBA is excited to host a gala dinner on April 10 and a full day symposium on April 11, 2014. The Right Honourable Beverley McLachlin, Chief Justice of Canada, and The Honourable Catherine Fraser, Chief Justice of Alberta will be welcomed, along with the judiciary across Canada, to join the Alberta Bar and discuss topics such as 100 Years of Alberta Court of Appeal Constitutional Law, The Alberta Court of Appeal and Private Law, and Appellate Advocacy. Registration is open on the CBA Alberta website at www.cba-alberta.org. Law Day celebrations will also take place in April, with Lethbridge kicking off the festivities on April 5, and Calgary and Edmonton following on April 26. Activities include courthouse tours, mock trials, “Ask-a-lawyer” and “Try Judging” booths, citizenship ceremonies, and public speaking and mock trial competitions for students. Fort McMurray, Wetaskiwin, and Drumheller will also participate with their own Law Day activities. In conjunction with Law Day, the, “Dial-a-Lawyer” program will be offered once again as a way to reach the community across our vast province. The initiative began last year, designed by the Alberta Access to Justice Committee in partnership with Calgary Legal Guidance, the Centre for Public Legal Education Alberta, Edmonton Community Legal Centre, Legal Aid Alberta, and Pro Bono Law Alberta. It allows the public a free 15-minute consultation with a volunteer lawyer. More information about this and other activities planned for Law Day can be found on the new website at www.lawdayalberta.com. I hope this report provides an overview of the developments affecting the profession.

Law Matters is created to keep you up-to-date provide other CBA news. Visit us on our website at www.cba-alberta.org, follow us on Twitter @CBAAlberta, “like” us on Facebook, and follow us on LinkedIn. a Law Matters | 3

W H AT ’ S

HAPPENING February 20: The Canadian Bar Association presents Regional Approaches to Water Across Canada. Online. Contact 1-800267-8860 or pd@cba.org.

Patricia Johnston, QC

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

26: The Canadian Corporate Counsel Association presents Conducting Workplace Investigations: When, Why, and How? Online. Contact Kristina Unsworth at kunsworth@ccca-cba.org. 27: The Canadian Bar Association presents Evaluating Your Ethical Practices: Get It Right Before It Goes Left. Online. Contact 1-800267-8860 or pd@cba.org.

March 3: The Ontario Branch of the Canadian Bar Association presents Morelli, Cole & Vu - A Trilogy? Computer Searches and the Charter. Online. Contact 1-800-688-8900 or visit www.oba.org.

13: The Calgary Bar Association presents the 2014 QC Dinner. Members only. Visit www.calgarybarassociation.com for more information on how to become a member. For tickets, email qcdinner2014@dartnell-lutz.com

25: The Ontario Branch of the Canadian Bar Association presents Tax Update. Online. Contact 1-800-688-8900 or visit www.oba.org.

26: The Ontario Branch of the Canadian Bar Association presents Ethics and Immigration Law: Protecting Yourself and Your Client Without Losing Sleep. Online. Contact 1-800-688-8900, or visit www.oba.org. April 1: The Ontario Branch of the Canadian Bar Association presents Cyber Bullying in Our Schools. Online. Contact 1-800-688-8900 or visit www.oba.org. 6-8: The Canadian Corporate Counsel Association presents the 2014 CCCA National Conference. The Westin Calgary, Calgary, AB. Visit www.cancorpcounsel.org for further details.

12: The Canadian Bar Association presents 2014 National Criminal Justice Conference. Four Seasons Hotel, Vancouver, BC. Contact Lauren DalBello at 1-800-267-8860, ext.190 or laurend@cba.org. May 1: The Canadian Bar Association presents Regional Approaches to Toxic Substances Across Canada. Online. Contact 1-800-267-8860 or pd@cba.org.

4 | Law Matters

By Patty Johnston, QC

7: The Canadian Corporate Counsel Association presents Practical Solutions to Effectively Manage Your Commercial Real Estate. Online. Contact Kristina Unsworth at kunsworth@ccca-cba.org.

8: The Alberta Lawyers’ Assistance Society presents the Assist Hand to Hand Fundraiser. Sheraton Suites Calgary, Calgary, AB. Visit http://albertalawyersassist.ca/ for more information. 8-10: The Canadian Bar Association presents the 2014 National Immigration Law Conference. Hyatt Regency, Calgary, AB. Contact Nicole Suthers at 1-800-267-8860, ext.198 or nicoles@cba.org.

14: The Canadian Bar Association presents Pensions Case Law and Regulatory Update. Online. Contact 1-800-267-8860 or pd@cba. org.

15: The Canadian Bar Association presents Regional Approaches to Fracking Across Canada. Online. Contact 1-800-267-8860 or pd@cba.org. 25-30: The Canadian Bar Association presents the 2014 Tax Law for Lawyers Conference. Queen’s Landing Hotel, Niagara-on-theLake, ON. Contact Nicole Suthers at 1-800-267-8860, ext.198 or nicoles@cba.org.

29-30: The Canadian Bar Association presents the 2014 Annual CBA National Environmental, Energy, and Resources Law Summit. Ottawa Convention Centre, Ottawa, ON. Contact Lauren DalBello at 1-800-267-8860, ext.190 or laurend@cba.org. June 3-5: The Canadian Corporate Counsel Association presents the In-House Counsel World Summit 2014. Raffles City Convention Centre, Singapore. Visit the website at http://www.icwsingapore2014.sg/index.html 10: The Canadian Bar Association presents Cross-Border and Inter-Provincial Environmental Disputes. Online. Contact 1-800267-8860 or pd@cba.org.

12: The Canadian Bar Association presents Managing Your Client’s Expectations. Online. Contact 1-800-267-8860 or pd@cba.org.

19-20: The Canadian Bar Association presents the 2014 National Aboriginal Law Conference. Frobisher Inn, Iqaluit, Nunavut. Contact Nicole Suthers at 1-800-267-8860, ext.198 or nicoles@cba.org. a

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

VIEW FROM THE

BENCH

I confess that the concept of the “legal fiction” has long entertained me. Now, to refresh readers’ memories, a “legal fiction” (or a “fiction” being the term some books use) is:

Hon. Judge A.A. Fradsham

“a rule of law which assumes as true, and will not allow to be disproved, something which is false. Formerly the practice and jurisdiction of the courts rested largely on fictions....”: Jowitt’s Dictionary of English Law, Second Edition, by The Late The Right Honourable The Earl Jowitt and Clifford Walsh (London, Sweet & Maxwell Ltd, 1977), at p. 787.

What a wonderfully creative concept, and I am sure that the person who constructed it, after explaining it to the assembled awestruck audience, followed up with the words, “what could go wrong?” Even the term “legal fiction” is delightful because it is so much more palatable and easier to market than, say, “malicious lie” or “intentional deceit” or “bald-faced absurdity”.

By Hon. Judge A.A. Fradsham

in 1994, as a result of an application made by his not so grieving spouse, Mr. Miller was declared by an Ohio court to be legally dead. Well, in 2013, Mr. Miller, Lazarus-like, re-appeared, and petitioned the Court for an order reversing the previous declaration of death. Mr. Miller wanted to reactivate his Social Security number and get a driver’s licence.

The Judge concluded that he was bound to deny the application, and said: “We’ve got the obvious here. A man sitting in the courtroom, he appears to be in good health...I don’t know where that leaves you, but you’re still deceased as far as the law is concerned.”

I suspect where it left Mr. Miller was wondering how he was going to get the exhibit stamp ink off his forehead.

If, when in English literature courses in school, Mr. Miller had ever had difficulty understanding Oliver Twist, he at least now fully comprehends the comment of Mr. Bumble. And who says the dead cannot learn? a

Now, come on, admit it, such a concept has “fun” written all over it.

Unfortunately, the public often does not find the legal system’s game of “let’s pretend” to be nearly as amusing as I think it can be. For example, remember Mr. Bumble’s reaction in Oliver Twist when he was told that “...the law supposes that your wife acts under your direction.” Mr. Bumble’s heart-felt reply was described in these words: “If the law supposes that,” said Mr. Bumble, squeezing his hat emphatically in both hands, “the law is a ass - a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience - by experience.”

Now, Oliver Twist was published in 1838, but I find it comforting to know that the law has retained its quirky sense of humour over the intervening 176 years. On page A3 of the October 11, 2013 edition of the National Post there appeared the story of a Mr. Donald Miller, Jr. Coincidental to him owing a significant amount of child support, Mr. Miller “disappeared” for several years, and,

RESEARCH AND COMMUNICATIONS

Law Matters | 5

P R AC T I C E P O I N T E R S Gowning and Other Unwritten Customs By Maureen Killoran and Anne Kirker, QC

Maureen Killoran

Many of the customs and rules that govern the conduct of barristers in court have not been codified but are traditions that are passed on orally from generation to generation. One such tradition is the custom of gowning. In Alberta, members of the Bar are expected to wear gowns when they appear in certain proceedings. Specifics of when to gown, and when not to gown, are addressed in the Court of Queen’s Bench Consolidated Notices to the Profession, Part E.1 “Gowning”. The primary reason for gowning is to distinguish the advocates from the litigants. As the Honourable Justice Ferguson writes in Hall v. Schmidt, “There is a reason why counsel wear a gown: to visibly demonstrate the professional role they play in court and to separate them from the parties.”1

The above rationale has created a number of exceptions to the gowning Anne Kirker, QC custom that are often overlooked by counsel. For example, when a lawyer appears in Court on his/ her own behalf (i.e. as a self represented litigant), and not as an Office of the Court representing a client, the lawyer should not gown; as he/she is appearing as a litigant, not as an Officer of the Court. So, if a member of the Bar appears in his or her own family law proceeding (for instance), gowning is not appropriate. The same applies for an appearance in a matter related to the lawyer’s own practice - an appeal from a review of a solicitor’s account, for example.

The reference in the Tariff to “counsel fee” and to a fee for “junior counsel” is, to my mind, a reference to the right to indemnification relating to the role of the advocate at the trial or hearing. In our system, the advocates are gowned.4

Some additional notes about gowning and “unwritten customs”: •

•

Despite what some vexatious litigants might attest, the Alberta Court of Appeal has confirmed that a Court of Queen’s Bench Justice does not lose his or her jurisdiction, should he or she elect not to gown for Chambers.5 One place to look for otherwise unwritten traditions and customs regarding a lawyer’s conduct in court is the Honourable Mr. Justice D.S. Ferguson’s Ontario Courtroom Procedure 2009 (LexisNexis Canada Inc., 2008).

With thanks to Darren LaRose, Associate at Osler, Hoskin & Harcourt LLP. a _______________________________ 4 5

Ibid, at para 13. Henry v. EI, 2010 ABCA 312.

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Perhaps the only place that this has been committed to writing is in the 1961 English decision of Ex parte a Barrister2, wherein a junior lawyer appeared robed to make an application on his own behalf in a criminal matter, and was directed by the Court to make his application unrobed as a member of the public.

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It is interesting to note that one’s choice of whether to gown may also have a bearing on the ultimate cost reward. In Norigen Communications Inc. v. Ontario Hydro Energy Inc.3 the Court declined to award a party-and-party costs “counsel fee” for a junior lawyer who attended the proceedings and advised senior counsel, but was not gowned:

I do not think a “counsel fee” may be awarded for solicitors who attend at court to assist and give instructions, but who are not gowned. They are not “counsel” in that context.

____________________ 1 56 O.R. (3d) 257, [2001] O.J. No. 4274. 2 [1961] 1 WLR 257, [1961] A11 ER 319. 3 53 O.R. (3d) 91, [2001] O.J. No. 874.

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C B Aâ&#x20AC;&#x2122; S CO M M E R C I A L L E A S I N G PA RT N E R The Canadian Bar Association has entered into partnership with Newmarket Knight Frank Devencore as a direct result of our own experience with the firm. By John Hoyles, Canadian Bar Association CEO The CBA approached NKF Devencore for help with a commercial leasing issue after we realized that our tenant representative adviser was acting for the landlord as well. We wanted an organization that represented solely the interest of the tenants. The Ontario Branch of the CBA had been very pleased with the advice it received from NKF Devencore, Canadaâ&#x20AC;&#x2122;s largest tenant-focused brokerage firm. Its tenant representative philosophy removed the conflict of interest inherent in the traditional approach.

After conducting our own interview with the firm, the CBA was convinced that by having a tenant representative that did not also work for the landlord, our tenantsâ&#x20AC;&#x2122; leverage would be unrestricted, and we would be able to enjoy the full benefit of our negotiating power.

We engaged NKF Devencore to assist us with the lease for our Ottawa premises.

Our situation was challenging: we needed a little more space but the building was full and the expense of moving would have been prohibitive. NKF Devencore conducted a comprehensive market survey, testing the marketplace and finding alternative options. It proposed an approach and handled the negotiations, which resulted in an agreement with our current landlord on favourable business and financial terms. I was very impressed by the thoroughness, professionalism, attention to detail, confidentiality, and the level of analysis NKF Devencore displayed throughout the process.

As someone who has practised law and dealt with lease space, I know that many firms, particularly mid-size and smaller organizations, simply do not have the time or expertise to handle their own commercial leasing requirements. A partnership between the CBA and a tenant-focused commercial leasing

representative seemed to be a logical next step.

NKF Devencore will provide an approach that is all-encompassing: it will conduct studies and assist with project management, space planning; it can also address trends in law-firm workspace. As part of our partnership, NKF Devencore has agreed to provide a percentage of its fee to the CBA so that we can enhance programs for our members.

We outlined what we were looking for, and NKF Devencore provided us with good counsel, did all the negotiations, and consulted with us. It was simple. They were professional and we got a good deal. I would encourage everyone to reach out to NKF Devencore before making any commercial leasing related decisions. If you are interested, please get in touch with Patrick Langdon. a Patrick J. Langdon Vice President/National Director Business Development T 416-366-0366 ext. 258 C 416-452-1523 plangdon@devencorenkf.com

From left to right: David Fullerton, John Hoyles, David Dennis Law Matters | 7

UNSUNG HERO This feature titled “Unsung Hero” is intended to introduce a member of our profession who has demonstrated extraordinary leadership, innovation, commitment, or made significant contributions to social justice and community affairs. By Ola Malik We are delighted to introduce you to Carolyn Simpson.

When I met with Carolyn to discuss this column, she told me a story: an immigrant woman was badly beaten by her spouse. She’d had a few drinks and needed somewhere safe to sleep. The only place she could think of was her car. So she turned on her car to keep her warm and fell asleep. Later that night, she was arrested for drunk driving. She was convicted. She had been a nurse in her homeland and wanted to qualify as a nurse in Canada. But she can’t re-qualify to be a nurse because she has a criminal record and she doesn’t have the money to pay for the pardon application. She has 4 kids to take care of and her husband has left her. She has no money. She doesn’t understand how the legal system works. She didn’t know a lawyer could have helped her. At the time of the conviction, she knew very little English and it hasn’t improved much since then. She can’t seem to get ahead. She is fighting for her life. Why is this story important? It shows us how simple it can be for people living on the margins to lose hope of a better future. But it also reminds us that if we look hard enough, we’ll find countless opportunities to bring meaningful, transformative change to people’s lives. Carolyn is the daughter of child emigrants who grew up in post-WWII Glasgow, parents who instilled in her the belief that everyone has something to offer and that you share what you have because you never know when you’ll need a helping hand. Carolyn must have listened to her parents. From 20002006, Carolyn served in various roles including as a Director on the board of the Distress Centre, an organization which provides round-the-clock crisis counseling and resources referral to a network of social agencies. While in law school, Carolyn volunteered with Student Legal Assistance. She has volunteered with Calgary Legal Guidance as a new client interviewer and subsequently with Project Homeless Connect which provides Calgary’s homeless with various services, including government approved personal identification. Along the way, Carolyn met and worked with Catherine Christopher, Q.C., formerly the Senior Staff Counsel with Calgary Legal Guidance whose selfless advocacy on behalf of the vulnerable and marginalized provided Carolyn with a powerful role model and example of the difference that one person can make. 8 | Law Matters

Since 2010, Carolyn has served in various capacities with the Women’s Centre of Calgary, including as a Director of the board and by providing legal advice through the Centre’s legal clinics to low income and at-risk women. The Women’s Centre is committed to changing communities through empowerment. With over 500 volunteers (and, remarkably, only 11 paid staff), the Women’s Centre provides women in need with food, personal supplies, bus tickets, access to computers and phones, legal advice clinics, help with tax forms, referral services, workshops and community kitchens, a place for women to practice their English, and advocates for poverty reduction initiatives. How can Carolyn, a corporate lawyer, find the time to make a difference in her community? It’s because Carolyn’s firm, Stikeman Elliott LLP, is encouraging its lawyers to become actively involved in their communities. Stikeman’s Calgary Community Involvement program matches donations for their lawyers who sit on boards, conducts charity events throughout the year, regularly provides pro bono legal advice and, since 2009, has supported Inn from the Cold as its main charity partner. We celebrate Carolyn’s achievements – Carolyn is an “unsung hero” -- and she represents some of the finest qualities of our profession. a

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

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The Common Law Relationship Mystery: Are you an AIP in a JFV and don’t even know it? By Enrique Dubon-Roberts As a family law lawyer, I often find that couples, especially young ones, often ask: “as we considered common-law, yet?” This question is often followed by an awkward silence. The silence is due to the current state of the law in Alberta for unmarried couples, and because I know how difficult it is to give a simple answer to this question. Statistics Canada’s 2011 Census, as summarized in its Portrait of Families and Living Enrique Arrangements in Canada, showed that Dubon-Roberts common-law couples have increased by 13.9% since 2006, making common-law couple families account for 16.7% of census families. Therefore, I smile, and try to answer the questions; what follows is a shorter version of my basic overview of a very complex area of law. The rights of unmarried partners in Alberta can be better explained by dividing them in two categories: (1) the rights conferred on unmarried couples by legislation; and (2) the property rights that may arise due to the parties’ contributions to the relationship.

Firstly, in Alberta, Section 3 of the Adult Interdependent Relationship Act, SA 2002, c. A-4.5 defines an Adult Interdependent Partner (“AIP”) as a person who (a) has lived with another person in a relationship of interdependence (i) for a period of not less than 3 years, or (ii) of some permanence, if there is a child of the relationship by birth or adoption. The act outlines the indicia of an AIP relationship and it allows AIPs to enter into an agreement to be AIPs. Once this definition is met, unmarried partners may access rights and remedies under Part 3 of the Family Law Act, SA 2003, c. F-4.5, and Part 3 of the Wills and Successions Act SA 2010M c. W-12.2. Part 3 of the Family Law Act mostly deals with child support and AIP Support Rights. The Family Law Act outlines the factors that a court is to consider if/when an AIP makes a partner support application. The Wills and Successions Act deals with

the distribution of intestate estates and gives an AIP, whose partner has passed away without a will, the potential ability to inherit from the deceased partner’s estate. By no means are any of these rights guaranteed, but the potential claim is only available to those who meet the definition of an AIP. The Income Tax Act and pension legislation also prescribe further rights and obligations to unmarried partners.

There are no statutory property rights for unmarried couples (married couples enjoy a presumption of equal division of matrimonial property). The property rights and obligations of unmarried couples are dictated by the same rules that apply to other non-romantic relationships where unjust enrichment claims arise, as our Supreme Court outlines in its Kerr v. Baranow, 2011 SCC 10, decision. In short, when (1) one party receives a benefit/enrichment, (2) while the second party suffers a corresponding deprivation, and (3) there is no juristic reason for the same, the second party may have claim against the first. Once the case for an unjust enrichment has been met, our Supreme Court in Kerr gave our courts a bit of flexibility in relation to the remedies available to unmarried partners by introducing the idea of a Joint Family Venture (“JFV”). The direction from the SCC is that we are to consider the unmarried partners’: (1) mutual effort, (2) economic integration, (3) actual intent, and (4) priority of the family in establishing the existence of a JFV. The Supreme Court supplied us with some details of what evidence is needed to decide if a JFV exists by exploring the habits, behaviours and arrangements between unmarried partners. At this point, I usually stop and check to see if anyone is still listening, and I am often met with blank stares. I then assure my audience, who usually had no idea that moving in together could give rise to all these issues, that family law lawyers are eagerly reading up on reported decisions interpreting Kerr, in order to get a better grasp on this very difficult area of law. a

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Symposium: Friday, April 11, 2014 8:30am - 4:00pm

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

A Will? Why? The Family Law Perspective By Terrence A. Cooper, QC

When we were planning this edition of Law Matters the provincial government had concluded a consultation concerning the proposed Section 117 of the Wills and Succession Act (WSA). That section would have brought about significant changes to Alberta’s Matrimonial Property Act. We anticipated whatever changes the government decided to implement would be in place prior to our publication date. Instead, the decided not to move forward with Section 117 at this time.

share in an intestacy. Although s. 63 does provide a mechanism which would disentitle a separated spouse from sharing in an intestacy it is important to understand the requirements of s. 63. In the case of separation alone, the parties must be separated for more than two years. If your client dies before the two year mark without a will, their spouse shares in the estate. This happened on a file that I was involved in long before the WSA. A divorce had been started but went dormant; the husband dies a few years later without a will, with property in joint names and with the beneficiary designations unchanged. My client ended up receiving most of the property and the husband’s lawyer was sued.

Before the WSA in Alberta, marriage revoked an existing will (unless made in contemplation of marriage). Divorce or the termination of an adult interdependent relationship did not affect the will. The family law lawyer who did not recommend to every new client that they should make a will did so at their own peril as they faced the prospect of being named as a defendant in a claim commenced by some beneficiary who felt their inheritance went to the ex. The WSA does not change our need to make sure our family law clients are live to the need to develop an estate plan upon separation.

The WSA also recognizes that a person could die intestate with both a surviving spouse and a surviving adult interdependent partner. Although the WSA guides us through the distribution of such an intestacy, the goal should be to avoid an intestacy.

Terrence A. Cooper, QC

Perhaps our thunder has been stolen but the question remains as to how the changes in the WSA impacts a family law practitioner.

Under the WSA, marriage no longer affects the will but the breakdown of a marriage or interdependent partnership may affect the gift to the spouse. For married spouses separation by itself had no effect It is the granting of a Divorce Judgement or a declaration that the marriage is void that revokes any provision in the will that makes a gift to a former spouse. In the case of adult interdependent partners, the revocation of the gift occurs when the parties cease to be adult interdependent partners. The general public appears to be reluctant to make wills. Separation does not change this. When clients are involved in a divorce, their focus is elsewhere, and if they are making plans then they are moving on with their lives. They are not planning to die, and therefore have a sense of longevity. A misconception about what happens to wills upon separation may give them a false sense of security and create unexpected results. The family law lawyer has a unique opportunity to correct their misconceptions and reinforce the fact that separation is the time to reevaluate their estate planning.

A client with a will needs to understand that if s. 25 applies it does not revoke the will, but only the gift to their ex-spouse. If there are step children, the effect of s. 25 may be that the former spouse may not inherit, but the step children could. It is more likely that your client has no will when they retain you. The WSA makes changes to the intestacies that should reinforce the need for your client to put in place an estate plan and a will. Again, the WSA discusses the effect of separation on the right to

10 | Law Matters

In discussing an estate plan with the family law client, it is not enough to simply suggest they make a will. We also need to discuss changing beneficiary designations and ownership of jointly-owned property.

We also need to remember that our population is highly mobile and the rules governing wills and succession vary from province to province. Relocation is probably more likely for those experiencing a breakdown in their relationship. What happens when your divorce client finally makes that will, remarries believing that won’t affect the will, permanently moves to live in a jurisdiction where marriage revokes a will and then dies? What about the divorce client who had a will before he was divorced, understands that the divorce revokes the gift to his wife, and then dies owning land in a jurisdiction where divorce does not revoke a gift in a will? Is this a conflict of laws? Is your head hurting yet? The best remedy for that type of headache is to make sure your client knows that if they own land outside of Alberta, or if they move to another province or country, they need to have their will reviewed.

While you are seeking your client’s instructions for their will, you have the opportunity to discuss with the client the type of changes that Section 117 contemplated. Your client would be able to address their mind to the issue and express clearly their intention in the will. Don’t lose that opportunity. The changes contemplated by s. 117 may not be imminent, they may not be on the horizon, but it is still realistic to expect that there will be some changes in our legislation at some future date that will ensure that a spouse in a successful marriage has as much right to the property as a spouse in an unsuccessful marriage. a

W H AT A B O U T B O B ? R O B E R T A . R I VA R D McConnell MacInnes

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What Every Family Practitioner Should Know By Robert R. Worthington Where matrimonial property includes shares of a private corporation, several issues arise. The failure to establish communication with corporate and tax lawyers can lead to disastrous results. To avoid the possibility of clients becoming disgruntled, family law practitioners would be encouraged to take certain steps at the earliest stages in a matrimonial dispute.

One of the first tasks is to confirm the corporate structure. Clients will occasionally misapprehend the structure of their own business, or fail to describe it accurately. For example, a client may say the corporation is owned 50% by the client and 50% by the client’s spouse, where in fact the actual structure may be quite different. For example, there may be a holding corporation included in the structure, and that holding corporation would have different assets and therefore entirely different ramifications for purposes of division of matrimonial property. Robert R. Worthington

It is also not uncommon for shares of a private corporation to be owned by a discretionary family trust. In a typical family trust structure for a private corporation, all of the common shares would be owned by a trust, the beneficiaries of which might be the client, his or her spouse, and their children. Fixed-value preferred shares would often be owned directly by the client and his or her spouse. The interesting thing is that the common shares – representing all the growth of the corporation over and above the fixed value of the preferred shares – may not necessarily form part of the matrimonial property. If your client is not the party who will end up owning the business, it will be important for a settlement to be structured such that your client receives the economic equivalent of his or her fair share of the corporation. In the event of litigation, it could be argued that a discretionary interest in a family trust has no value. By being proactive on this issue, you can ensure that your client receives the economic equivalent of an appropriate share in the business. This could be achieved, for example, by structuring the settlement such that your client receives a disproportionate share in other property to account for the economic interest lost to the party who controls or is a beneficiary of the trust. What is the value of such an “economic interest”? Obtaining a valuation of the corporation can be critical where a trust is involved, and is important in any event. If the value of a business is significant, it may be advisable to engage a charted business valuator. If your client is a medical professional, lawyer, or accountant, and practices through a professional corporation, the spouse must be removed as a shareholder as soon as possible. Under the Health Professions Act, the Legal Profession Act, and the Regulated Accounting Professions Act, there are a limited number of days following the divorce or the breakdown of a common law relationship during which the spouse or ex-spouse must be removed as a shareholder. If this does not occur, the professional corporation will cease to be qualified as a professional corporation, exposing your client to risks in relation to their professional governing body.

Where a family-owned business is concerned, it is usually the case that one of the spouses will continue to run the business, and the other spouse will no longer be actively involved. For example, a corporation may own investment assets in addition to the assets used to operate the business. In such a case, the spouse who will cease to be involved in the business may wish to receive the investment assets from the corporation. From a tax perspective, splitting up the assets of a corporation is not as easy as it perhaps should be. Large amounts of capital gains taxes may be triggered. To split up corporate assets on a tax-deferred basis, it is often necessary to complete a tremendously complex series of transactions known as a “butterfly” reorganization. The planning required is extensive and time-consuming. In this connection, it will become important to manage the client’s expectations in terms of the speedy completion of a settlement versus avoiding a massive unwanted tax bill.

A strategy of gifting shares of the corporation or implementing “tracking shares” may occasionally be an alternative to a butterfly reorganization. From a client’s perspective, gifting shares to an estranged spouse may be viscerally distasteful. But if properly structured, such a strategy can be very tax-efficient and relatively simple.

On the topic of tax planning, clients might have the opportunity to utilize their capital gains exemption that may be available on the transfer of shares of a private corporation to the other spouse who will be carrying on the business. Currently in Alberta, this valuable tax incentive represents up to $156,000 of potential tax savings per person. However, the rules for qualification for the exemption are complex, and tax “purification” transactions may need to be completed in advance.

Additional considerations arise where there are minority shareholders, or where the spouse is a minority shareholder. If there is a unanimous shareholders agreement, it will need to be carefully reviewed and possibly amended. The acquiescence of any shareholders other than the two spouses will be required. It is also important to be aware that oppression remedies may be available under corporate law in addition to remedies under matrimonial law. If the settlement involves a change in control of a corporation, further tax issues arise. A deemed year end will be triggered and certain valuable tax pools – for example, historical capital losses – may be lost forever. With intelligent advice, however, certain negative tax consequences can be avoided while preserving the intended economic division of the value of the corporation. The above discussion highlights just some of the corporate law and tax issues that result from a matrimonial settlement. The minute books of the corporation or corporations (which in the writer’s experience are often delinquent or incomplete) must be reviewed immediately. Pitfalls can be avoided, and your client’s financial position can be greatly enhanced, with the involvement of competent corporate and tax law advisors at the earliest stages of the settlement discussions. a

Law Matters | 11

D I S C LO S U R E M AT T E R S

Foreign Owned Assets Must Be Fully Disclosed By Chad R. Johnson

Chad R. Johnson

Full disclosure is of critical importance in reaching a just and equitable division of property under the Matrimonial Property Act. Complete financial disclosure includes all assets held in Alberta and owned in foreign countries. The importance of the disclosure of all foreign-owned assets was recently reinforced by the decision of the Alberta Court of Appeal in Chikonyora v. Chikonyora, 2013 ABCA 320.

In Chikonyora, the parties owned a house in Zimbabwe. The wife who was self-represented in a Notice to Disclose Application took the position that the Court in Alberta did not have the authority to deal with the foreign property and that she did not have the provide disclosure about it. She allegedly was also receiving rental income from the Zimbabwe property. The disclosure related to this property was ordered by the Court of Queen’s Bench, but the wife still refused to provide any information with respect to the property in Africa. The Court of Appeal held that the courts have jurisdiction to compel disclosure of properties outside of Alberta under section 31 of the Matrimonial Property Act. Under this section of the Act, each spouse is obligated to disclose all particulars of all their property whether situated in Alberta or outside of the province, including property owned now and one year prior to the date of the application.

Accordingly, it is important for family lawyers to advise their clients in their financial disclosure to include all assets owned worldwide and to include such foreign assets in Schedule A of a Notice to Disclose. A respondent may be held in contempt for his or her failure to do so. Further, if one spouse deliberately does not make full disclosure about financial assets in foreign countries when negotiating a separation agreement, then the risk is that a court may find that the contract is unfair and therefore unenforceable. Most information is now collected and stored digitally, and the Internet may provide the lawyer with assistance in uncovering any suspected assets hidden in foreign jurisdictions. A forensic accountant may be another available tool in the discovery of foreign assets. 12 | Law Matters

Once full disclosure is exchanged, the tax consequences from the ownership of any foreign owned property must be carefully considered as part of any matrimonial settlement. In an equal division of property, there should be a sharing of the sale costs associated with any real properties and consideration given to the taxes resulting from any investments owned outside of Canada. With the recent downturn in the United States economy, vacation properties are more recently being sold at a loss from their original purchase price. Any resulting tax losses should be adjusted for in the distribution of all the matrimonial property. Correspondingly, as the U.S. real estate markets recover, clients will certainly face capital gains from the sale of secondary homes in the U.S. Retaining experts to assess such tax implications is necessary to negotiate a fair settlement, especially with assets outside of the country. Foreign owned properties will become more important in matrimonial settlements as the population ages and we are helping clients in their retirement with enjoying and preserving homes outside of Canada. The client’s children may often have a personal attachment and vested interest in any vacation homes, especially with regard to the client’s estate planning. To mitigate the future tax liabilities from vacation homes owned in the U.S. as part of a settlement, clients should consider establishing trusts for the ownership for U.S. properties for the benefit of their family.

Most importantly, it is best to refer your clients to financial planners in the settlement process as they need to determine which assets are best for him or her to retain, especially in retirement, before finalizing the property division. In addition, valuing foreign owned properties or businesses very likely necessitates retaining experts outside of Canada because this is clearly beyond the expertise of a family lawyer, and resident business valuators, or appraisers in Alberta. Therefore, in reviewing a client’s foreign assets, it is essential to consider the team of experts that you need to assemble for the client in order to fairly divide all their assets within Alberta and outside of Canada. We, as family lawyers in negotiating settlements, must also be cognizant of the use and sharing between the parties of a vacation property pending a sale, and addressing the ongoing maintenance costs. Any rental income from foreign properties or dividends from investments overseas should also be considered in both the property division and in regard to the issue of spousal support, once all such assets have been fully disclosed. a

CBA National News CBA IMMIGRATION LAWYERS LEAD PRO BONO SERVICE TO BOOST RELIEF EFFORTS IN THE PHILIPPINES In the wake of Typhoon Haiyan last month, a group of lawyers from the Canadian Bar Association’s (CBA) National Immigration Law Section is spearheading a pro bono initiative to help families in Canada sponsor relatives living in areas affected by the recent disaster in the Philippines to come to this country. Lawyers participating in the initiative are offering initial legal consultations and assistance in preparing immigration applications - without charge - for Canadians and permanent residents in Canada. Read more at: http://www.cba.org/CBA/News/2013_ Releases/12-18-philippines.aspx. CBA PRESIDENT FRED HEADON RESPONDS TO THE FLSC’S TWU DECISION Fred Headon released a statement in December in response to the Federation of Law Societies of Canada’s (FLSC) decision to grant preliminary approval to the accreditation of Trinity Western University (TWU) law school. In two letters sent to the FLSC in March 2013, the CBA and the CBA’s Sexual Orientation and Gender Identity Conference and Equality Committee articulated their views on the TWU accreditation. Read the President’s statement at http://www.cba.org/CBA/ News/2013_Releases/12-18-twu-statement.aspx. Read the letters to the FLSC at http://www.cba.org/CBA/ submissions/pdf/13-18-eng.pdf. CBA LAW SCHOOL ESSAY CONTESTS The Canadian Bar Association is offering a number of essay contests for current law students. In addition to monetary and other benefits, these competitions offer an excellent opportunity for students to expand their knowledge of a particular area of law and start to build their profile within the legal community. National Environment, Energy & Resources Law (NEERLS) David Estrin Prize Deadline: February 28, 2014 More Information: http://www.cba.org/CBA/sections_neerls/ pdf/NeerlsPosterEng2013.pdf

National Intellectual Property Law School Essay Contest Deadline: February 28, 2014 More Information: http://www.cba.org/CBA/Awards/IP_Essay_ Contest/Default.aspx Military Law Section “Sword & Scale” Essay Competition Deadline: April 30, 2014 More Information: http://www.cba.org/CBA/sections_military/ pdf/MilitaryPosterEng2014.pdf Competition Law Section - James H. Bocking Memorial Award Deadline: June 30, 2014 More Information: http://www.cba.org/cba/awards/jamesh_ bocking/

CBA ACCESS TO JUSTICE COMMITTEE RELEASES REACHING EQUAL JUSTICE REPORT: AN INVITATION TO ENVISION AND ACT On December 17, 2013, the CBA Access to Justice Committee released the Reaching Equal Justice Report: An invitation to envision and act, a detailed online version of the Committee’s summary report released at the CBA Legal Conference last August. It includes stories that illustrate how unchecked legal problems typically lead to more legal and personal problems, and featured infographics highlighting current trends. Both reports invite readers to contribute to the ongoing discussion or offer to be a partner in the changes required to make equal justice a reality. Visit the Reaching Equal Justice website at http://www.cba.org/ cba/equaljustice/main/default.aspx.

Read the full report at http://www.cba.org/cba/equaljustice/ pdf/EqualJusticeReport.pdf. OBA’S “WHY I WENT TO LAW SCHOOL” CAMPAIGN WINS GOLD The Toronto ad agency Agency59, designer of the Ontario Bar Association’s (OBA) innovative campaign, was recognized by the Association of Marketing and Communication Professionals, a USbased industry association, at the MarComm Awards. Agency59 won gold in the best ads and advertising campaign category for OBA’s successful “Why I Went To Law School” campaign. Read more about the award here: http://www.oba.org/NewsMedia/News/2013/November-2013/OBAs-Why-I-Went-ToLaw-School-campaign-gets-gold

CBA QUEBEC VICE-PRESIDENT, ANTOINE LEDUC, WINS AN AWARD FOR HIS RECENT BOOK PUBLISHED BY ÉDITIONS THÉMIS The author, a law partner with BCF, was awarded first prize in the 2013 Legal Competition sponsored by the Fondation du Barreau du Québec, ex aequo with Doris Farget. His 669-page book, Mondialisation et harmonisation du droit des sûretés, published by Éditions Thémis, was selected among 25 works submitted in the Monograph and Treatise category. In his book, Leduc describes and analyzes the emergence of harmonized legal rules in a large number of countries, a phenomenon he observed by carrying out an unprecedented comparative law study. This treatise will be of interest to all jurists, experts interpreting commercial case law, economists, sociologists, and historians who are watching these developments closely. Read more (French only): http://abcqc.qc.ca/fr/Publications/ Articles/ABC-Quebec/Novembre-2013/Le-vice-president-de-lABC-Quebec-Me-Antoine-Ledu

Law Matters | 13

FRONT & CENTRE Alberta Law Conference 2014

The Canadian Bar Association hosted the 2014 Alberta Law Conference, January 30 - 31 at the Westin Calgary.

(l to r) CBA Alberta Past President Cyril S. Gurevitch, QC, Treasurer Wayne Barkauskas, The Honourable Jonathan Denis, QC, President Marian De Souza, Vice-President Steve Mandziuk, QC (l to r) ALC Committee Members Aaron Bickman and Laura Easton, and GeneviĂ¨ve Gosselin-Cardif

CBA National was at ALC with the member services team, led by Sean Kelly (centre)

Friday morning keynote speech by Jason Hatcher of Navigator Ltd.

We look forward to seeing everyone again in January 2015 in Edmonton! Michele Hollins, QC, Past President of the Alberta Branch and current Second Vice-President of CBA National delivers grace prior to the Thursday lunch. 14 | Law Matters

CBA Albeta Mentor Receptions

Calgary Mentor Reception (l to r) James Stanger, Jim Thompson of Silverberg & Associates, John Lee

Edmonton Mentor Reception

Women Lawyer’s Forum & CCCA Joint Event

Inns of Court

(l to r) Shaina Leonard, Wendy Young, Bev Larbalestier, QC, The Hon. Judge G.W. Sharek, The Hon. Madam Justice J.M. Ross, Joe Miller, QC

University of Alberta Student’s Section Executive (l to r) Siwei Chen, George Wong, Lyndsay Butlin, Katherine Fraser, Amy Yeung

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(l to r) Kanchana Fernando, Keely Brown, Dena Mitchell, Michelle Plouffe, Barbara Ritzen, QC, Kirby Chown, Carrie Mandel

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Alberta Branch News SKILLED LAWYERS WEBINAR Coming March 19, 2014, the CBA Alberta Branch offers a Skilled Lawyers Webinar, from 5:00pm to 7:30pm. Geoffrey Holub, Partner at Stikeman Elliott LLP will be presenting on Settlement Strategies: Offers, Counteroffers, Tricks and Traps. This program was initially offered as a part of the highly successful CBA Skilled Lawyer series. CBA Alberta now invites you to come explore the key elements of successful settlement. Our expert panelists will enhance your understanding of settlement strategy and the impact of negotiation styles, and provide practical guidance on overcoming impasse and drafting the agreement. This program is loaded with tips on best practices and common pitfalls to avoid for you to put to immediate use.

LEGISLATIVE SUMMARY Legislative Summary 28th Legislature First Session Fall 2013

After receiving the results of a survey conducted in Spring 2013, the Legislative Summary document will no longer be printed and distributed with Law Matters. The document will continue to be available electronically online at www.cba-alberta.org, and the Legislative Summary from the Fall 2013 sitting of the Legislature is now available.

Visit www.cba-alberta.org for more information and to register.

A limited number of hard copies of the Legislative Summary will still be made available. To obtain your copy, please email communications@cba-alberta.org.

COURT OF APPEAL OF ALBERTA CENTENARY CELEBRATIONS

COUNCIL AND EXECUTIVE NOMINATIONS

Join the CBA Alberta Branch as we celebrate the centenary of the Court of Appeal of Alberta, April 10 and 11, 2014 in Edmonton. On April 10, we begin our celebrations by hosting a Centenary Banquet. We are pleased to welcome special guest speakers the Right Honourable Beverley McLachlin, Chief Justice of Canada, and the Honourable Catherine Fraser, Chief Justice of Alberta. The following day, we will host a Centenary Symposium, open to attendance by lawyers and judges. Topics covered will include 100 Years of Alberta Court of Appeal Constitutional Law, The Alberta Court of Appeal and Private Law, and Appellate Advocacy.

Registration is now open online. To register, or for more details, visit www.cba-alberta.org. You can also view more information on other Centenary celebrations on the Court of Appeal of Alberta website at http://www.albertacourts.ca/coacentennial/index.php. LIMITED SCOPE RETAINERS

Limited Scope Retainers

Limited Scope Retainers | 1

16 | Law Matters

The CBA Alberta Access to Justice Committee has released their electronic report on Limited Scope Retainers. The report was made available to all Alberta Law Conference attendees in their materials, and is also available on the CBA Alberta website at http://www.cba.org/Alberta/main/ pubs/reports.aspx.

Nominations will open on March 3 for positions on our Branch and National Council, as well as Branch and National Committees, and for our Branch Secretary position. Council positions are open to all current CBA members. By sitting on the Branch Council, you have the opportunity to provide input in decisions, policies, initiatives and projects. Current members of Council can either extend their appointments for an additional two years, or consider expanding their involvement by applying for a position on the National Council. Council appointments run for two years, beginning at the conclusion of the CBA Legal Conference in August 2014, and running through the end of the CBA Legal Conference in August 2016.

For those members with a passion for a particular area of practice or interest area, submissions will also be accepted for Branch and National Committees.

Lastly, nominations will also be open for the position of Branch Secretary. The election for the entry position on the Branch Executive is effective at the conclusion of the CBA Legal Conference in August, 2014. Once elected, the Secretary progresses each year to become, in turn, Treasurer, Vice-President, President, and Past President. Candidates must be current CBA members, and have been a member of the Council at any time during the last four years. In this yearâ&#x20AC;&#x2122;s election, the candidate must reside in South Alberta, which is defined in the Branch by-laws to mean that part of Alberta south of the south boundary of township 35. Nomination information will be sent to all CBA Alberta members at the beginning of March. For more information, visit www.cba-alberta.org, or email mail@cba-alberta.org.

POST ON OUR ONLINE JOB BOARD

LAW DAY 2014

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

The 2014 Law Day will take place on April 1 in St. Pail, April 5 in Lethbridge, April 25 in Wetaskiwin, and April 26 in Calgary and Edmonton. Festivities are also planned for Medicine Hat, Drumheller, and Fort McMurray.

LAW MATTERS READERSHIP SURVEY Participate in our readership survey and provide feedback to the Canadian Bar Association and it’s partners about the behaviour of Law Matters readers and CBA Alberta Branch members. Completion of the survey will allow us to better serve you by providing interesting and relevant content in law Matters, through our sections, and at our annual Alberta Law Conference.

Access the survey by scanning the QR code with your phone, or by visiting surveymonkey.com/s/cba-alberta.

The Calgary Law Day Committee is currently looking for volunteers for a number of Law Day activities. These include mock trial participants, “Ask-a-Lawyer” booth volunteers, and other positions. Volunteers must be available during the day on April 26. If you are interested in volunteering on Law Day in Calgary, please contact Jonathan Griffith at griffith@ddblaw.com. Law Day Edmonton is also looking for volunteers, and will be sending out more information in the coming weeks. Keep up to date with all of the latest and greatest Law Day information by visiting the new Law Day Alberta website at www.lawdayalberta.com. JOIN THE CBA ALBERTA ONLINE COMMUNITY The CBA Alberta Branch is now active on Facebook, Twitter, and LinkedIn. Come join the conversation and receive up-to-theminute updates on Branch initiatives. Follow us on Twitter @ CBAAlberta, on LinkedIn, and “Like” us on Facebook.

In pixels or print

The journal most frequently cited by the Supreme Court of Canada is free to CBA members. Read The Canadian Bar Review online at cba.org/cbr.

CBA member benefits also include access to other publications, Professional Development program discounts, advocacy and Sections & Conferences involvement.

cba.org/membership Law Matters | 17

L E G A L E D U CAT I O N S O C I E TY O F A L B E RTA 47th Annual Refresher: Refresh, Reflect and Reconnect at Lake Louise By Jennifer Flynn, Executive Director, Legal Education Society of Alberta At this point in the year, I have almost undoubtedly fallen behind on one or more of my New Year’s resolutions. With March CPD declaration time just around the corner, however, I feel as though I have a second chance to recommit to some personal and professional development goals. Jennifer Flynn

• • •

Without a doubt, my most-anticipated event at LESA is the Annual Refresher; it is the perfect opportunity for me to check off multiple items on my resolution list:

Refresh and deepen my legal knowledge Make time to reflect on the changing legal profession Reconnect with colleagues

Not only is the Annual Refresher packed with practical and substantive content, but it provides a change of scenery - both figuratively and literally. Getting away from the office for a few days - to one of the most beautiful places on the planet - is a chance to regroup and refresh. At the same time, it is a wonderful opportunity to connect with others who are grappling with similar issues and challenges. The focus of this year’s 47th Annual Refresher is Civil Litigation. The program, which runs April 27 to 29 in Lake Louise, is designated to appeal to lawyers across a broad range of practice areas. The program begins with a keynote session on the Changing Economics of the Practice of Law with noted lawyer/commentator

Jordan Furlong, and moves into sessions on ADR, Current Developments in Civil Litigation, Evidence and Experts, “Moving the File Along”, and Appellate and Chambers Advocacy. An underlying theme of how civil litigation has changed over the years has been woven throughout the three days of content. We are thrilled to have Justice Peter Michalyshyn of the Court of Queen’s Bench of Alberta as this year’s Honorary Chair.

“I see the Annual Refresher first as a learning opportunity, but also as a chance to connect or reconnect with civil litigators across the province,” Justice Michalyshyn notes. “As judges and even more as lawyers, we have fewer opportunities these days to gather and learn and to talk to each other in non-partisan settings.”

It it our hope that lawyers will leave not only with a wealth of knowledge and perspectives, but also having established or renewed connections with colleagues. Among all those present will, of course, be our Honorary Chair, our six outstanding Sessional Chairs, and our 16 distinguished faculty members who have donated their time to make the 47th Annual Refresher possible. Please join us - we look forward to seeing you there!

Detailed information about the program, networking opportunities, and chairs and faculty can be found at lesa.org/annualrefresher. Lawyers in their early years of practice, or more senior practitioners who don’t focus on litigation, will also want to add on (or attend separately), “Running Your First Questioning” - a one-day pre-conference seminary running in Lake Louise on the Saturday (April 26). a

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

Visit the Poole Lawyer Art Gallery at www.poolelawyer.com 403 685 2012

18 | Law Matters

Left to right: Larry Wu, Sarah McMillan, Jeffrey Poole, David Johnson, Veronica Miller and Matthew Parsons. Background: Barbara Milne “Gate” (1988) Oil on Panel, 76 cm by 203 cm. Foreground: Geert Maas “Joy” (1993) Bronze Group Sculpture on Black Marble Base (Edition of 12) 16.5 cm tall.

P R O B O N O L AW A L B E RTA Top Ten Reasons to Do Pro Bono in 2014 By Gillian Marriott, QC, Executive Director, & Kendall Moholitny, Program Manager, Pro Bono Law Alberta

Gillian Marriott, QC

The start of a new year is the perfect time to consider making a difference. We encourage you to make pro bono service your New Year’s resolution: use your unique skill set to assist those who do not have the means to obtain legal assistance. The following is a list of ten compelling reasons to make pro bono service part of your professional plan for 2014.

1. Public Service Giving your time and expertise to those who are in need is a richly rewarding experience on a personal level. Helping members of the public to access the justice system makes a positive difference in the lives of others.

2. Ethical Duty to Do Pro Bono As lawyers, we have an ethical duty to foster access to justice. We have a valuable skill that is in demand by all members of society, regardless of means. It is in keeping with the highest Kendall Moholitny traditions of the profession to provide pro bono legal assistance to individuals who otherwise could not obtain legal service. 3. Marketing and Reputation For individual lawyers and law firms alike, pro bono service is a respected endeavour by other members of the profession and by the general public. Doing pro bono can add to your professional profile. Some pro bono matters also make for good press if the subject matter is newsworthy. 4. Networking Pro bono service can lead to excellent networking opportunities, both with other lawyers and with the general public. For law firms, pro bono work may be important to commercial and institutional clients that have pro bono policies of their own. For individuals and firms, doing pro bono for non-profit organizations can lead to relationships with community leaders and other potential clients.

5. Professional Development For young lawyers, doing pro bono work is an opportunity to gain experience and to improve and refine important skills, such as client interviewing, advocacy, negotiation, drafting, and case management. For more senior practitioners, doing pro bono work can be an opportunity to step outside one’s comfort zone or area of practice to gain experience in another area of law. 6. Collegiality, Firm Cohesion and Morale Working with other lawyers on pro bono initiatives or at pro bono legal clinics fosters a sense of collegiality among professionals. For law firms, working together on pro bono

projects or programs improves teamwork, dedication and job satisfaction. 7. Recruitment A law firm’s commitment to pro bono work can be a significant fact in whether a student or lawyer decides to join a particular firm. The personal and professional benefits of pro bono make firms that encourage pro bono more attractive to students and lawyers.

8. Retention Pro bono work is rewarding as it increases morale and allows individual lawyers to pursue personal and civic passions. For firms, encouraging lawyers to do pro bono allows them to pursue these passions while remaining within the firm fabric. 9. Public Image of the Profession Pro bono work offers lawyers the opportunity to improve the image of the legal profession in the eyes of the public.

10. Benefits to the Justice System The justice system functions more effectively and efficiently when parties are represented by competent counsel. By assisting individuals or non-profit organizations that could not otherwise obtain legal representation, pro bono lawyers reduce the burdens on the courts and the legal system as a whole. ~~~

Make the choice to do pro bono work in 2014. Encourage your colleagues to do pro bono. By volunteering a few hours per month, as an individual practitioner or with a firm as a whole, lawyers can make a huge difference. For information about the pro bono opportunities available throughout Alberta, please contact Kendall Moholitny, Program Manager, Pro Bono Law Alberta at kmoholitny@pbla.ca. a _______________________________ This article was modified from a presentation by Mr. Edwin S. Maynard of Paul, Weiss, Rifkind, Wharton & Garrison LLP (New York) to Managing Partners of Calgary Law Firms, March 2011.

Nicholas Milliken BA, BCom, JD

Founder and CEO LAWYER AND STAFF RECRUITING 587.899.JOBS (5627) www.brollyrecruitment.com info@brollyrecruitment.com Law Matters | 19

CROSS SECTION It has been a long time since anyone other than Jeremiah Kowalchuk or Karen McDougall wrote this report... you must go way back to Summer 2011, before these two served consecutive terms as section coordinators! I am thrilled Karen remains in this role for a (perhaps unprecedented?) third year, and I eagerly step into Jeremiah’s shoes as he moves on as CBA Alberta Secretary. Karen McDougall

The 32 North sections are the focus of our efforts. CBA Alberta is proud of the breadth and depth of our section, and in an era of increasing requirements to be current and knowledgeable, regular and substantive meetings are key, and are an opportunity to network with professional peers, satiate your need for social sustenance, and fill up on lunch!

At our September workshop, we touched on succession planning. Sections, whether of sizeable membership and monthly meetings, or smaller and holding fewer meetings, should actively recruit from Frank Friesacher and encourage members to volunteer. Given our seasonal cycle, acting now to ask members to fill vacating executive positions ensures a smooth transition by May for the following September year start. For members interested in participating, let your executive know that you want to help, whether to find topics or speakers, write case commentaries, update members on developments, or even

H E A LT H M AT T E R S

By the time this issues hits the newsstand, many New Year’s resolutions will have been made, tested, and allowed to pass into memory. Many of those resolutions are to lose weight, or to live a healthier lifestyle. So, how can one stick to the resolution and succeed? Offer a reward of course - to yourself.

For 5 or 6 years running, Shea Nerland Calnan LLP has held a Fitness Challenge Devin Mylrea every year. We do this to promote and encourage healthy living firm wide. The challenge starts in early January and lasts the entire year. No challenge has been the same in any one year, and new requirements and measures are used to gauge the progress of the participants during the challenge. The challenge winner, whether a team or individual depending on the challenge and the year, is rewarded at our firm holiday party with cold, hard cash. This year, the challenge started with initial measurements for all participants taken on the morning of January 7, 2014, including yours truly. Measurements were taken by fitness trainers from the gym in our building (a neutral third party, of course) by using

20 | Law Matters

North From the desk of Frank Friesacher speak yourself!

If you know of colleagues that practice in a given area, but are not section members, invite them! It’s not too late to sign up and experience the second half of the year, plus access the ever-growing online content for past meetings. If not interested, ask them why not, and pass on those comments: this feedback is invaluable. Sections should dialogue on topics and speakers that appeal to current and prospective members. Remember that many sections have “siblings” in Calgary with great ideas. And contact us! You are all valued volunteers. It can be hard to find that “winning” topic with limited time and resources: we are happy to discuss “thinking outside the box.” Near to my heart is the Inns of Court program, with which I have been involved for over a decade. Our program harks back to the fourteenth century tradition of junior barristers learning from experienced members of the Bench/Bar on various topics focused on professionalism and advocacy. Last November’s topic “Experts 101” was excellent: watch for details on our May program. The Alberta Law Conference (theme: “Communicate”), recently concluded in Calgary. We trust that all found it educational and interesting. Details will be forthcoming for the January 2015 ALC in Edmonton.

Finally, Law Day! On Saturday, April 26 at the Edmonton Law Courts, the CBA will be holding entertaining mock trials, and other family-friendly activities. See www.lawdayalberta.com for details. Stay warm, and cheers to 2014! a

Resolve to Reward Yourself By Devin Mylrea a high-tech Tanita scale and a standard measuring tape. The measurements taken on the Tanita scale consisted of: Weight (in pounds), Body Fat Percentage, Muscle Mass, Visceral Fat, and “Metabolic Age”. I don’t know a scale could do all of that, and it was difficult to look at the numbers without visibly wincing and breathing in sharply. Measurements taken by the tape in inches consisted of: Chest, Abdomen, Hips, Thigh, Calf and Upper Arm/ Bicep.

I’m big-boned, but not that big so some of that must be turkey. Or butter tarts. I was clocked on January 7, 2014 doing 271.6lbs in a 240 zone. The whole of the exercise was, frankly, eye opening. The lead up to the holidays, dinners with families and entertaining friends had done their damage. Funny how so few heart smart foods made it on the menu from December 1 through to the New Year. So, I resolve to participate in the fitness challenge this year, the whole year, and reward myself with 31.6 pounds worth of skating, skiing, camping, and better habits. Maybe I’ll win a few team challenges, or maybe the all-star prize. I know for certain that I’ll feel better and live smarter during the challenge, and that’s the reward. The prizes are just gravy! a

CROSS SECTION

South From the desk of Jenny McMordie As we write this article, Christmas time is rapidly approaching, to be followed shortly by the New Year. We send best wishes to all section executives and thank you for an excellent season of quality programming and creative ways of reaching out to section members. The past few months have seen presentations on a great man topics, many of which have attracted interest from multiple sections. A few highlights include the ADR section welcoming four QB Justices, Administrative Law hosted Justice Bastarache, and Criminal Justice held two Town Hall Meetings (QB and Provincial). Please check the events calendar on our website at www.cba-alberta.org to find future programming of interest in yours and other sections.

Coming March 19, 2014, the Alberta Branch offers a Skilled Lawyers Webinar from 5:00pm - 7:30pm. Geoffrey Holub, Partner at Stikeman Elliott LLP, will be presenting on Settlement Strategies: Offers, Counteroffers, Tricks and Traps. This program was initially part of the highly successful CBA Skilled Lawyer Series. Our expert panelists will enhance your understanding of settlement strategy and the impact of negotiation styles, and provide practical guidance on overcoming impasse and drafting the agreement. Over the past months, we have noted a few suggestions that may help your section to run more effectively and smoothly, and offer these tips:

Have a Plan B: Each section executive should have a “Plan B” for a date when a speaker falls through. Rather than cancel your section meeting, this will be an excellent opportunity for a member of your executive to step in and present on a new case or rule, or to

facilitate a forum for the attending group to discuss practice issues.

Practice Pointer: Consider adding extra value to your section meetings by having an executive member offer a two-minute practice pointer before your main attraction begins presenting. This is also a great way to gain a little public speaking experience and to introduce the newer executive members to colleagues practising in the same area.

Jenny McMordie

Snazzy Titles: We encourage you to use a dynamic title for each presentation that highlights what you are offering and attracts the interest of your section members. Each section meeting should allow your members to come away thinking “I got one new idea or skill or precedent that will make a difference to my practice, so it was worth the effort/ time/cost of attending.” If your title creates that expectation, you will have more attendees!

Anthony Strawson Finally, it is heart-warming to see Sections organize to underwrite and prepare/serve dinner at the Mustard Seed over a number of dates in January. We extend our appreciation to Lonny Balbi, QC, for his efforts in organizing this important contribution, to section executives for supporting Lonny’s efforts, and to all members who have been able to contribute time and money. a

Judicial Updates COURT OF QUEEN’S BENCH Glenda A. Campbell (Calgary) was appointed as a judge of the Court of Queen’s Bench, effective November 7, 2013. Corina Dario (Calgary) was appointed as a judge of the Court of Queen’s Bench, effective November 7, 2013. Dawn Pentelechuk (Edmonton) was appointed as a judge of the Court of Queen’s Bench, effective November 7, 2013. Master W. Scott Schlosser (Edmonton) was appointed as a full-time master, effective November 20, 2013. Honourable Madam Justice L. Darlene Acton (Edmonton) elected to become a supernumerary judge, effective December 1, 2013. Frederica L. Schutz (Edmonton) was appointed as a judge of the Court of Queen’s Bench, effective December 1, 2013.

PROVINCIAL COURT Malcolm Alexander Brown (Calgary) has been reappointed as a part-time justice of the peace, effective November 16, 2013. Honourable Judge Harry Allan Bridges (Edmonton) was reappointed as a part-time judge, effective November 22, 2013. Jacqueline Elise Schaffter, QC (Edmonton) has been appointed as a Provincial Court judge, effective December 4, 2013. Honourable Judge Francis Lawrence Maloney (Calgary) was reappointed as a part-time judge, effective December 9, 2013. Honourable Judge Ernest Joseph McKee Walter (Edmonton) was reappointed as a part-time judge, effective December 12, 2013 Honourable Judge Allan H. Lefever (Edmonton) has been appointed as a part-time judge, effective January 1, 2014. Honourable Judge John Maher (Edmonton Region) has been reappointed as a part-time judge, effective January 4, 2014. Honourable Judge Peter P. Ayotte (Edmonton Region) has been reappointed as a part-time judge, effective January 18, 2014. Honourable Judge Stanley G. Peck (Edmonton Region) has been reappointed as a part-time judge, effective January 26, 2014. Honourable Judge Kenneth D. Hope (Edmonton) has been reappointed as a supernumerary judge, effective February 1, 2014. Steven M.L. Bilodeau, QC has been appointed to Edmonton Provincial Court, Criminal effective January 9, 2014. Karl R. Wilberg, QC has been appointed to Provincial Court, Edmonton Region, effective January 10, 2014

Law Matters | 21

T H E ST U D E N T P E R S P E C T I V E

Siwei Chen

It seems like only yesterday students were starting a brand new school year after a restful summer, but December exams were upon us before we knew it, and now it is 2014! Last semester’s student events were a great success and we hope to connect with even more students in different ways in the New Year. In this semester, students have many opportunities to engage with practitioners and learn more about the profession. Our fall semester saw the Welcome Reception for a new group of law students, and renewed student members. Nearly filling the Law Centre’s double lecture hall, students were welcomed to the CBA by lawyers and judges. The enthusiasm from the Welcome Reception carried over to the first Law Students’ section meeting on November 7, where students learned about what current lawyers wish they had known in law school. The school year is gathering steam, and 2014 promises even more exciting events.

First on the roster for 2014, the highlyanticipated Mentor Program that matches up practicing lawyers with law students, is underway. A mentor mixer was held on January 21 to introduce the new mentees to their mentors, giving each participant his or her first opportunity to get to know each other. The CBA’s mentor program has run for the last Katherine Fraser

Kathryn Kitchen

David Louie

Have you considered studying abroad? If you haven’t, you should. I recently returned from an international exchange at the University of Amsterdam and had the opportunity to travel elsewhere in my free time. The people I met, places I saw, and things I learned have impacted me greatly as a law student. From visiting the United Nations headquarters in Geneva, to sitting in a chair of the Judicial Committee of the Privy Council in London, it was an unforgettable experience.

Studying abroad presents a unique opportunity for us future lawyers. To spend four months in another country is a luxury that we may not have the chance to experience once we engage in full time practice. Studying abroad on exchange (for the most part) differs from simply travelling on vacation. Living in a foreign country allows you to immerse yourself in that culture far deeper than what you otherwise might experience during a short visit. You will learn the local secrets, slang and fashion. I found myself zealously reciting the local soccer chant.

What defines an exchange experience for many students is the people. International students from around the world meet in many of these schools. This diverse mix of backgrounds and culture is simply something that most of us are not exposed to back home.

22 | Law Matters

University of Alberta

13 years, and provides students with an individualized inside look at what practicing law might look like, and also gives practicing lawyers an opportunity to reflect upon their experiences and help shape the career of the budding lawyer. Students are encouraged to make the most of this opportunity as their mentors are volunteers who have a wealthy of knowledge that could be of great interest and use. We are greatly appreciative of the time and dedication put forth by lawyers who have volunteered to mentor law students. In order for the mentoring relationships to be fully realized, students should keep in regular contact with their mentors.

The Alberta Law Conference took place on January 30 and 31 in Calgary. As usual, it was an excellent learning and networking experience for students and lawyers alike. Student section members are able to attend the Alberta Law Conference for no charge; any University of Alberta students who were not able to make the trip to Calgary this year are encouraged to attend the event in Edmonton in 2015.

Finally, the last Law Students section meeting will take place in March 2014. The topic will be “Exam 101”, where students will learn about test-taking strategies before the April exam period. Although it will be of particular importance to first years, brushing up on one’s exam-taking skills regularly can make a significant difference in an student’s performance. We are all very excited about upcoming events and hope to see some of you there! a

University of Calgary Local students can show you the ropes of the city and help you integrate into their world. One of the hardest things about your exchange may be leaving these people at the end.

Learning about the law abroad is also a fruitful endeavour. While we may never apply foreign or international law to our practice in Canada, the comparative element is useful for our understanding of our own system. Discussing the differences in legal systems with other students was fascinating, even more so after a pint or two. There may also be courses offered at the host university that are not offered at your home university. Studying abroad may present some barriers. Time away from friends, family, and significant others may be a real concern. Perhaps the most common and understandable barrier is simply not knowing what you’re missing. Many of us struggle with change. However, change can be one of the most rewarding things you can do as you develop as a law student and as a person. Reflect on these barriers, as overcoming them may open up doors you never knew existed.

If you haven’t considered studying abroad, I encourage you to seek out more information. The University of Calgary offers exchange programs during the first semester of third year. There are numerous partner universities around the world, and you can even apply for university outside of that list on your own. Contact your school’s exchange office for more information. Perhaps better yet, talk to students who have made the decision to jump on a plane and study abroad. Many students from the University of Calgary go on an international exchange each year. From Australia, to China, to Europe, students return with new friends and unforgettable experiences. a

Hand to Hand Fundraising Dinner

A S S I ST

By Simon Shakibaei

During the summer of 2013, when Marian De Souza offered me an opportunity to volunteer with the Alberta Lawyers’ Assistance Society (Assist), I had no idea I was joining Assist at such an interesting and dynamic time for the organization. For the last few months, my fellow Assist volunteers have been working diligently in organizing the charity’s inaugural fundraising dinner: The Assist Hand to Hand Fundraiser. Assist is hosting the event on May 8, 2014, starting at 5:30pm, at the Sheraton Suites Calgary in Eau Claire. Simon Shakibaei The dinner event will feature retired Lieutenant-General and celebrated humanitarian Senator Romeo Dallaire as keynote speaker. Senator Dallaire’s story speaks for itself. He has a reputation for being a powerful and compelling speaker. One of our committee members heard him speak many years ago and still vividly recalls the talk he gave. While I have never had the opportunity to hear Senator Dallaire speak in person, I remember in the spring of 2005 being a young, naïve undergraduate and reading his book Shake Hands with the Devil: The Failure of Humanity in Rwanda. It had a profound effect on me. Nightmares of war and the genocide haunted me for weeks afterwards. Senator Dallaire’s story also alerted me to the danger of categorizing people as “other”; it can be called racism, tribalism, or nationalism.

Little did I know, one year later while living abroad, I would also find myself in a conflict situation during the 2006 Israel-Hezbollah War. The area in which I was living was being bombarded on a daily basis, and while I never felt my life was truly in danger (at least, that is what I was telling my parents back home), the sound of air-raid sirens would ring in my head for months following the end of the conflict. My experience in no way compares to that of those living with post-traumatic stress or mental illness. I am simply lucky in this regard. There are some in the legal profession who are not. Senator Dallaire keynoting Assist’s inaugural fundraising event is sure to be an insightful experience. The purpose of the event is not only to provide a source of independent funding for Assist, but also to raise awareness of mental health issues.

Assist is an independent charitable society that provides free confidential assistance to lawyers, law students, and their immediate families. Assist receives funding from many donors and in-kind supporters throughout Alberta. The Hand to Hand Fundraiser will be in the formal sit-down dinner format, seating ten per table. As the venue has capacity for only 350 individuals, the dinner will be limited to lawyers, members of the judiciary, and distinguished guests. The legal community at large will be able to contribute to the event through sponsorship opportunities and ticket purchases. It is anticipated that the Assist Hand to Hand Fundraiser will be a biennial event. a

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Law Matters | 23

1/8/14 9:32 AM

CO M M I T T E E U P DAT E

Access to Justice Committee By Ola Malik, Chair, Access to Justice Committee

On behalf of the Access to Justice to Committee, Canadian Bar Association, Alberta Branch, I am delighted to introduce you to the special electronic report which is devoted in its entirety to the issue of the Limited Scope Retainer (“LSR”).

The purpose of the publication is to provide a discussion regarding the opportunities and challenges which are presented by the LSR. Our contributors approach the LSR issue from different perspectives, offer a Ola Malik broad representation of views, and explore Chair, Access to many of the practical issues which you Justice Committee need to carefully consider before deciding whether to adopt the LSR as part of the menu of services which you’re prepared to offer. Ultimately, we leave it to you to decide whether the LSR model is right for your practice. We’re confident that the authors who have contributed to this publication will have provided you with the guidance you’re looking for. What is clear is that while the LSR model is usually spoken of in the context of unbundling legal services to better address the access to justice deficit, the LSR has significant benefits to the legal profession. Most people cannot afford the cost of a general service retainer and will therefore never ask a lawyer for help. But some legal help at an affordable cost is better than none. In appropriate circumstances, the LSR may enable those who cannot afford to pay for the cost of a general service retainer to get help with those legal tasks they feel they cannot perform themselves. This allows for the client to exercise control over those parts of the file they feel comfortable handling but recognizes that a client will need help from a lawyer along the way. The LSR provides lawyers who are prepared to offer limited scope representation with legal work they would previously not have had and with significant business opportunities for providing services to a much larger market. As Rob Harvie, QC, Marie Gordon, QC and Dr. Macfarlane note, the full cost of a general retainer is out of the grasp of most Canadians. In his article, Rob explains why the LSR may open up new market opportunities for enterprising lawyers and Ed Gallagher outlines how his law firm has gained a unique competitive advantage by adopting the LSR model as part of their service options. Marie Gordon, QC’s article articulates a powerful case for incorporating the LSR into a family law practice and Gillian Marriott, QC and Joshua Lam argue that the LSR model expands the opportunities for providing pro bono work. Mr. Justice Jerke’s perspective from the bench is encouragingly optimistic.

for professional malpractice and would therefore strongly suggest that you read Anne Kirker, QC and Jennifer Blanchard’s article which addresses some risk management strategies. The piece written by Jeannette Fedorak, QC piece provides some excellent practical tips to keep in mind as well. Michael Bates and Jennifer Ruttan provide a thoughtful explanation as to how and why most criminal practitioners should already be familiar with the LSR approach and provide a word of caution before embarking into the LSR in the criminal law context. Finally, Andrea Doyle and Jocelyn Hill discuss Legal Aid Alberta’s deliberative strategy in adopting the LSR and helpfully provide some links to precedents, including various court forms, FAQ sheets for clients and lawyers, and a sample LSR agreement. The Limited Scope Retainer publication is now available on the CBA Alberta website at http://www.cba.org/Alberta/main/pubs/ reports.aspx. ~~~

This project was possible because of the generous time and commitment which each of our contributors spent thinking about LSRs and writing their articles. I am very grateful to each of them. If you enjoyed any of the articles in particular, please let the contributors know – I’m sure they’d appreciate it. I want to thank Gillian Marriott Q.C. and Rob Harvie Q.C. who served with me on the CBA’s Access to Justice Committee in respect of this project. Lee-Anne Wright is the Communications and Marketing strategist for the CBA and did an absolutely outstanding job putting this publication together. a

Limited Scope Retainers

What is equally clear is that despite how badly you might feel for a client who cannot afford to pay for your services, the LSR may not always be an appropriate answer. You need to assess whether your client and their legal issues are good candidates for the LSR model, whether you properly understand the implications of adopting the LSR model and whether you can effectively manage the risk which may arise. In her article, Nancy Carruthers discusses the new rules and their accompanying commentaries which address LSRs in the Code of Conduct , including the new commentary to rule 2.01(2), new rules 2.01(1.1), 6.02(8.1), and existing rule 2.27 of the Alberta Rules of Court. I’m going to guess that most of you don’t like getting sued

24 | Law Matters

Limited Scope Retainers | 1

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

Reform Matters

By Peter Lown, QC, Director, Alberta Law Reform Institute

Peter Lown, QC

In the last issue of The Alberta Brief, the CBA Alberta Branch monthly email newsletter, we gave CBA members the opportunity to participate in an online survey about a potential project on Oaths and Affirmations. The invitation to participate represents one of the ways in which both the Branch and the Institute are changing their ways of communicating. The project also illustrates how the law must keep up with changes in our society.

The Alberta Evidence Act sets out a process for taking evidence in court or by way of documents. The process has not been changed for some time and it assumes that people have religious convictions which can be invoked in giving truthful evidence. A person who does not have those convictions can object, justify the objection and use an affirmation instead. Some commentators have informed us that this process was problematic, out-of-date and inappropriate. In applying our section criteria, we attempted to determine whether there was a legal issue which should be addressed. In doing so, we concentrated on two aspects: if the process is followed accurately, what are the consequences of doing so? If this process is not followed, what do people actually do instead? So far, 66 CBA members have gone online and answered the survey.

The notice in The Alberta Brief, and a place where individuals can go and complete the survey in 10 minutes or less, has at least two advantages. The questions were very specific to the issue we wanted to address. The timing of the survey was close to when we needed to make a decision. Hopefully the answers will avoid us having to rely on assumptions and be so timed as to avoid any wasted research effort. Most of us are not used to electronic communications of this type and for many, it has become our primary means of communication. The traditional methods of law reform communication was much more passive - circulate a document and wait for a response. However, the distribution of approximately 1600 hard copies takes time and costs money several thousand dollars for the mail out alone. Recently, we have made some changes by moving to electronic distribution of our consultation documents. From the Instituteâ&#x20AC;&#x2122;s point of view, we can avoid the costs of printing and mailing, but we can also avoid any delay by getting the consultation document to our recipients almost immediately after it is ready. We maintain and update an electronic distribution list, currently approximately 1200 recipients. We think that the more timely distribution of reports, and getting them to you in a format in which you are probably used to receiving a great deal of your information, is likely to be the most effective method of communication. At the present time we are considering whether we should move to complete electronic distribution,

including final reports, with a very small number of hard copies available for specialized libraries or recipients.

The online survey is a direct way of seeking feedback, allows us to target information very specifically, and allows the respondent to provide information in a reasonable time frame. I am sure there will be more instances where these requests are made, and your participation will help us make better informed decisions.

I should note that electronic distribution does not change the nature of the documents. They will still be comprehensively researched, give you the background information which is necessary for you to understand and respond to the issues, and will fully articulate our reasons for recommended changes. Often you will be directed to our website where any of the reports can be downloaded, without charge. There you can see what our recent publications are, what projects we are considering, which of our recommendations have been enacted and find links to other law reform agencies around the world. So just as the law must change to keep up-to-date and to meet new circumstances, so too must the process of law reform and in particular, our method of communication. We would love to have your input on how best to provide you with our work in progress, consultation documents, and final recommendations. If law reform is to be open, transparent and interactive, modernizing our communications process is essential. Hopefully, the example of the online survey is a portent of engaged and informed law reform decisions. Now if we could do the same for implementation? A topic for another column. Website: www.alri.ualberta.ca Email: reform@alri.ualberta.ca Twitter: @ablawreform

Law Matters | 25

IN MEMORIUM

By Robert Harvie, QC

Hugh Alexander Robertson, QC August 21, 1942 - October 19, 2013

Hugh Alexander Robertson, QC, passed away on October 19, 2013 at age 71 in Victoria, BC. Hugh Robertson was very well-known, respected, and valued as a major contributor to the legal profession, not only in Alberta, but throughout Canada and internationally.

College (University of Alberta), The Clifford E. Lee Foundation, and Rotary International in Edmonton and Victoria.

As chair of the Canadian Bar’s International Development Committee, Hugh accepted teaching engagements in China, Vietnam, Africa, and also served on CIDA and UN missions in Zimbabwe and Laos. He also served as a member of the Governing Council of the Commonwealth Lawyers Association.

Hugh Robertson received his B.A. and LL.B. from the University of Alberta in 1963 and 1966 respectively, and was called to the Alberta Bar in 1967. He practiced law with White Trott Robertson Barristers and Solicitors until 1984 when he became the Executive Director of the Legal Education Society of Alberta and Director of Bar Admissions to the Alberta Bar. Hugh retired in 2007.

In 1990, he was appointed Queen’s Counsel, in 1991, he received a Certificate of Management of Lifelong Education from Harvard University, and in 1996 he received an Honorary Doctorate from St. Stephen’s College for service to his community. In 2005, he received the Distinguished Service Award for Service to the Profession from the Law Society of Alberta and the Canadian Bar Association Alberta Branch. In 2009, he received an Alumni Honour Award from the University of Alberta. Hugh served his profession and community in many organizations: National and International Legal Education Societies, Commonwealth Lawyers Association, Canadian Bar Association, United Way of Edmonton and Canada, St. Stephen’s

Hugh Robertson’s contributions to continuing legal education raised professional standards provincially, nationally, and internationally. He was among the most respected executives of continuing legal education in North America, and under his guidance, LESA became regarded as one of the best continuing legal education service providers on the continent. He is a past president of both the Canadian and International Associations for Continuing Legal Education.

Provincially, Hugh was a representative to the Branch Council of the CBA and to the Benchers of the Law Society for over 20 years, serving on countless committees of those organizations. He played a major role in the initiative that harmonized the Bar Admissions programs of Western Canada, which let to the creation of CPLED.

Hugh exemplified the best of what makes a lawyer a member of his community and the broader society. He will be missed. a

ANNOUNCEMENTS

This text-only section is provided for non-profit organizations free of charge. To include your organization’s announcement, please contact the Communications and Marketing Specialist at 403-218-4310 or communications@cba-alberta.org. THE ASSOCIATION OF WOMEN LAWYERS is committed to promoting the advancement, interests, equality, and well-being of all women in the legal profession. CBA members are invited to join AWL. For more information about AWL and its membership, go to www.awlcalgary.ca. THE OFFICE OF THE PUBLIC TRUSTEE IN CALGARY HAS MOVED. You can now find them at 900, 444 - 7 Avenue SW, Calgary, AB T2P 0X8. The phone and fax numbers remain the same. http://www.humanservices.alberta.ca/guardianship-trusteeship/office-of-the-publictrustee.html.

JOIN THE FOUNDATION OF ADMINISTRATIVE JUSTICE FOR THE 2014 PROFESSIONAL DEVELOPMENT FORUM - Evidence: No Case Without It. Bringing People together for professional development and debate. April 8 & 9, 2014, Edmonton, AB. www.foaj.ca/conferences or 855-466-0501. MAY 23-24, 2014 EDMONTON HEROES HOCKEY CHALLENGE IS LOOKING FOR ORGANIZING COMMITTEE VOLUNTEERS! This gala dinner and hockey game with Edmonton Oilers alumni facing off against military veterans is in support of military members, their families, veterans, the wounded and the fallen. Please contact France at 780-973-4011 ext 6328 or funddev@mfrcedmonton.com. For more info: heroeshockeychallenge.com.

26 | Law Matters

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ADVERTISI N G NEWLY RENOVATED OFFICE SPACE AVAILABLE IMMEDIATELY. Beltline (203, 221 - 10 Avenue SE). Calgary office space available. Ample parking, spacious offices. Great atmosphere, working conditions, and flexible terms. Contact Greg Leia of Wolff Leia at 403-265-4122 or gleia@securities-lawyers.com.

LOST WILL. Richard Allen Degg of Calgary, DOD Dec 28, 2013. Contact Daryl Towns (519) 971-4637 or townsautoservice@hotmail.com.

NEED A NEW WEBSITE? TOP OF GOOGLE? We are very good at getting our practice specific, lawyer websites to the Top of Google. Then we put your name on them and make them “yours” across the board. Or we build you a whole new website, whatever you like. 100% performance-based billing. No long-term contracts. Ongoing support. Monthly reports. Quit anytime. Risk free. Very happy clients! References. Helping Alberta lawyers since 2007, Keith Perkins, (780) 909-5610, www.Canadian-Lawyer-Websites.ca.

ACTIVE LAW OFFICE FOR SALE in beautiful and booming Sylvan Lake. Retirement. Practice involves corporate and commercial, corporate and commercial and personal injury litigation, real estate and wills and estates. Contact Patrick J. Madden, QC at (403) 887-1070, email pjmadden@shaw.ca.

NW CALGARY OFFICE SPACE AVAILABLE. (Independent Practice) - established law office in the Market Mall Professional Centre. Confidential inquiries to Blake Nichol 403-288-6500 x229.

INTELLECTUAL PROPERTY. Let us work with you in protecting your clients. Patents, Trademarks, Copyright. Stemp & Company, Lawyers and Patent Agents, 233, 1100 - 8 Avenue SW, Calgary, AB T2P 3T8.

T H O M P S O N WO O D RU F F I N T E L L E C T UA L P R O P E RT Y LAW. Registered Patent Agents. Practice restricted to Patents, Trademarks, Designs, Copyright and related causes. 200, 10328 - 81 Ave., Edmonton, AB, Canada T6E 1X2 P: 780-448-0600; F: 780-448-7314 LOOKING TO ACQUIRE ESTABLISHED LAW PRACTICE. Our firm is ideally suited to assist in the smooth and orderly transition of your practice while still allowing you the flexibility to stay on as counsel should you wish. We are interested in expanding our corporate, commercial, commercial real estate, wills and estates, and trademarks practice, preferably in Calgary and the surrounding area. Terms are negotiable based on the practice. Please respond in confidence to selllawfirm@gmail.com. VANCE GORDON LICKISS, ESTATE. Looking for a current will. Please contact Myrna Lickiss at (403) 236-4615.

ASSOCIATE LAWYER WANTED FOR FAMILY LAW and related work, in downtown Calgary, on an ongoing, independent contractor basis. All office, computer, supplies, and some secretarial assistance provided. Please apply in confidence to fiona@mccleanlegalyyc.com.

DAVIDSON & WILLIAMS LLP, a full-service law firm in Lethbridge, AB is seeking an associate lawyer with two to six years experience in civil litigation practice. Please reply in confidence to Deirdre McKenna via email: deirdre@dwlaw.pro.

IF YOU HAVE THE ABILITY AND DESIRE TO WORK AS A CIVIL LAW FIRM LAWYER IN MEDICINE HAT a golden opportunity is available. Phone Wilton Thorsteinson (403) 504-8111.

DUNPHY BEST BLOCKSOM GIVING AWAY FREE SETS OF LIBRARY BOOKS: (1) Set of RFL - Vol.1 (1971 to current). (2) Set of WWR Vol.1 (new series) 1951 to 1974. Must be removed by February 28, 2014. Contact Kathy Badham, Administrator at badham@dbblaw.com. LONDON UK FLAT FOR RENT. Spacious 2 bedroom, 1 bathroom flat for short term rental in Chelsea, close to the Earl’s Court tube station. Contact Gloria@vinciphillips.com.

RATES

CLASSIFIED LINE RATES Lawyers, for non-profit purposes (i.e. will search)

Lawyers, for profitable purposes (i.e. employment)

DISPLAY RATES $15.00/line $22.00/line

Commercial - any company or $33.00/line association (except lawyers)

INSERTIONS

Business Card

$440.00

Half Page

$1,540.00

Quarter Page

One-Third Page Full Page

$880.00

$1,100.00

Per Piece $3,300.00 Distribution 10,000 Location Specific

Pro-rated

$2,970.00

Rates are effective as of February 2011. A 10% discount is applied on a four-issue commitment. GST not included. Visit www.cb-alberta.org, or email communications@cba-alberta.org for more details.

Publication of advertising in Law Matters by the Canadian Bar Association, Alberta Branch is not an endorsement of the advertiser or of the product or service advertised. No contractual or other relationship between the advertiser and the published is implied merely by publication of any advertisement in Law Matters. For complete advertising information, visit www.cba-alberta.org.

Law Matters | 27

CHOOSE FROM CANADA’S TOP MEDIATORS AND ARBITRATORS

CBA-ALBERTA

EXECUTIVE

President

Vice-President

Alberta Panel

Steven Mandziuk, QC

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

Treasurer

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

Secretary

Marian V. De Souza

Clint G. Docken, Q.C.

Past President

The Hon. Ernest Marshall, Q.C.

Jeremiah Kowalchuk

Executive Director

Wayne Barkauskas

Cyril S. Gurevitch, QC

E. David D. Tavender, Q.C.

Graham Price, Q.C.

Maureen Armitage

Law Matters is published by The Canadian Bar Association Alberta Branch 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 Matters’ e-mail: newslet@cba-alberta.org. CBA Alberta Branch Southern Office 1725, 311 - 6 Avenue SW Calgary, AB T2P 3H2 Phone: 403-263-3707 Fax: 403-265-8581 E-mail: mail@cba-alberta.org CBA Alberta Branch Northern Office 1001, 10235 - 101 Street Edmonton, AB T5J 3G1 Phone: 780-428-1230 Fax: 780-426-6803 E-mail: edmonton@cba-alberta.org

Harold W. Veale, Q.C.

www.cba-alberta.org 28 | Law Matters 1.800.856.5154

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