Law Matters | Fall 2011 by Canadian Bar Association, Alberta Branch

ISSN 1704 – 9377

Vol. 36 No. 3 Fall 2011

Law Matters | 1

E d i t o r ’s

PAGE

IN THIS ISSUE President’s Report

The “New Rules” - One Year Later

Back to Basics

What’s Happening

Team “Kelly’s Law” Runs for the Cure

View from the Bench

Practice Pointers

The Rules Formerly Known as the “New Rules”

Alberta’s Rules of Court New Rules - One Year Later

People & Places

Front & Centre

Mandatory Mediation under the New Alberta Rules of Court

Touchstone Award Presented to Patricia Blocksom, QC

LESA

Health Matters

Making the Most of the Year End Review

Fall Back to Pro Bono

Cross-Section North

Cross-Section South

Faculty of Law Welcomes a New Dean 21 Assist

Classified et Cetera

New Initiatives: Case Management Counsel at Queen’s Bench

Judicial List

This edition of Law Matters focuses solely on the new Alberta Rules of Court. After a quick thumb through the edition, you will likely ask yourself “How is it possible to devote an entire edition to the same topic?” Dragana Sanchez Glowicki, Editor

Consider this edition of Law Matters like a favourite cookie recipe. A good recipe is generally easy to remember, quick to make, and the results are very satisfying. This edition of Law Matters is your recipe to navigating through the new Rules of Court. The five articles build on each other, which makes familiarizing yourself with the changes easy. Each article is broken up into paragraphs that reference and explain the important rules and how that rule has changed court practice, or not. The result is that you will have your very own quick reference guide to the new rules. Tony Young’s article outlines the plain English replacements for terms such as “Examination for Discovery”, “Cross Examination on Affidavit” and “Motions”. The use of simple language is not a new concept. In fact, I recall when I was articling, the buzz word was “plain language” writing. Well, almost two decades later, plain language has made its way into the Rules of Court. Robert Harvie’s article outlines the practical changes made by the new Rules. For instance, Rule 1.2(1), the “Purpose and Intention” Rule, requires

By Dragana Sanchez Glowicki that each practitioner have a firm understanding of the motivation behind the “Foundational Rules” and an expectation as to how these Rules will be employed by the court, particularly with respect to the rules governing “delay” and “filing orders”. One thing is for sure, the new rules are designed to keep litigation moving along. Robin Camp’s article summarizes the basics of several other important changes. For instance, Rule 9.2, which allows an order to be entered without approval of opposing counsel if they have not responded within 10 days. And, the new Rule dealing with what happens when additional relevant documents are identified, and should supplemental affidavits of record continually be filed. The Honourable Justice R.A. Graesser’s article deals with, in detail, the Drop Dead Rule Changes, Limited Retainers, Pre-Trial Conferences, and much more. Sabri Shawa, who has made mediation the focus of his Advocacy business, sets out the new requirements imposed by the Rules for Mandatory Mediation. Counsel is now required to undertake a dispute resolution process before a trial date can be assigned. This edition of Law Matters is a “must read”. If you do not have the time to read all the articles right now, we suggest you file it next to your Rules of Court, and use it as your quick reference to the Rules and their intention and meaning. However, these articles are not a substitute to reading the actual Rules!

Contributing Authors this Issue Dragana Sanchez Glowicki Jeffrey Wise Robert Harvie Patty Johnston, QC Jennifer Flynn Gillian Marriott, QC Hon. Judge A. A. Fradsham Curtis Serra Karen McDougall Shekhar Parmar Anne Kirker 2 | Law Matters

Karl Seidenz Robin Camp Hon. Mr. Justice R.A. Graesser Sabri Shawa Glenn Solomon, QC Allan Shewchuk, QC Odette Diaz-Tully Sandra L. Schulz, QC Hon. Chief Justice N.C. Wittmann Karen McGowan Tony Young, QC

EDITORIAL COMMITTEE

L-R top row: The Honourable Madam Justice E.I. Picard (Edmonton); Terrence A. Cooper, QC (Fort McMurray); Jason Schlotter (Calgary); Tony Young, QC (Calgary); and, Devin Mylrea (Calgary). L-R bottom row: Robert Harvie (Lethbridge); Michele Hollins, QC (Calgary); Shannon McGinty (Calgary); and, Gillian Marriott, QC (Calgary).

P re s i d e n t ’s

REPORT I am very honoured to be writing this report, to the members of the Canadian Bar Association, as your President. As I have received so much from the CBA I am now very excited to have the opportunity to give back to our members and to the legal profession.

I joined the CBA in 1986. As a young lawyer starting out I felt overwhelmed. The CBA gave me balance, was always there for me, Jeffrey Wise, President gave me an opportunity to network with other lawyers, allowed me to keep up-todate in the law, and receive mentorship from senior legal counsel whenever I needed it. The lifelong friends and confidantes I have made through the years while being involved in the CBA, however, have been my greatest reward. After joining, I began by attending at Section meetings. The Section meetings gave me an opportunity to network with colleagues in my preferred area of practice and to keep up-to-date in the law. In our branch we have 33 North Sections and 39 South Sections. These Sections represent all areas of practice and support lawyers who practice alone, lawyers in large and small firms, and lawyers who face the challenges of being in a group that is considered a minority. Later I became a Council member. My experience on Council has brought me closer to the changes in our justice system and allowed me to be included in making decisions that affect the legal profession. Through Council I came to recognize that the CBA really is “the voice of the legal profession”. As time progressed I became more and more involved in Law Day. This really became a significant passion for me and I was given the opportunity to Co-Chair in Calgary and at a Provincial level for many years. Law Day brings our justice system close to the public with the theme “Access to Justice”. Members of the public are invited into Court Houses across the Province to experience and learn more about various aspects of our justice system and enjoy entertaining and light-hearted trials, among many other activities. Law Day is on April 21, 2012 this year. My next adventure with the CBA was to volunteer on the Alberta Law Conference Organizing Committee and later Co-Chair the conference (happening this year on January 26th and 27, 2012 at the Westin Hotel in Calgary). This annual conference is a great opportunity for our members to maintain their professional development responsibilities by attending at continuing legal education panels conducted by

2012 Distinguished Service Award Nominations Open Do you know a lawyer whose profession is their passion? Nominate a lawyer today in any of four categories.

By Jeffrey Wise

members of the Bench, experienced legal counsel and various experts in multiple areas of practice. It is also one of the best opportunities for members of our profession to network. The most challenging and rewarding adventure that I have had however, has been my roles on the Executive Committee. To stand in the same shoes as those great lawyers that have been a part of the CBA – Alberta Branch Executive is both humbling and overwhelming. I am very fortunate to be working with a fantastic Executive Committee who support and guide me. With the help of our hard working and dedicated staff, we will ensure that our members are receiving the greatest possible benefits of CBA membership. My goal is to make sure that you have as rich and as rewarding of an experience with the CBA as I have had. To prepare for the 2011-2012 year, the branch hired a facilitator to conduct a Strategic Planning Session. The objective of the session was to identify ways to invigorate the Alberta Branch. With the input of our Council in May 2011, we revisited the role of Council and looked at ideas to capitalize on our meetings and encourage members to become more actively engaged in our organization at all levels. We know that council members value the CBA as a place they can come together, network and receive valuable information; becoming part of a community of like-minded people fostering professionalism. The goal of your Executive and Council in the coming months is to address ways to improve our organization. From restructuring the physical room set-up for meetings to requesting written reports from our partners in the justice system and focusing more time on interesting dialogue, we have started implementing some of the recommendations that came out of the Strategic Planning Session. We want to make sure that our Branch continues to be one of the most involved and envied branches in Canada. I would like to thank Gillian Marriott, QC, Analea Wayne, Michele Hollins, QC and Judge Diane Young, Past Presidents of the Alberta Branch, for their very valued mentorship, wisdom, and guidance. Thank you also to Cyril Gurevitch, QC, Vice President, for keeping me on the straight and narrow, Marian De Souza, Treasurer, for helping to maintain my creative juices and finally Steve Mandziuk, QC, Secretary, for his thoughtful insight. Finally, I would like to thank our staff at the CBA offices in Calgary and Edmonton. Without their hard work and dedication our branch would not be able to do the work for our members that it does. For more information about events, membership, member resources, publications, and sections, I invite you to visit our website. www.cba. org/alberta

The Canadian Bar Association - Alberta Branch will hold its

Annual General Meeting

following the afternoon Winter 2012 Council Meeting January 25, 2012 in the CBA-AB Branch Southern Offices 1725, 311 - 6 Avenue S.W. Calgary

For details and a form visit www.lawsociety.ab.ca Law Matters | 3

The “New Rules” - One Year Later By Robert Harvie I have been given the task of reporting on the impact of the “New” Alberta Rules of Court, one year after they came into effect on November 1, 2010. I confess that I may not be the best person to ask about the impact of the Rules, being that my practice is solely restricted to Family Law, where concepts such as “Rules” and “Laws” are often considered “indications of good intention”. Nonetheless, I am a sociable sort, and am acquainted with many general civil litigators, and am in fact married to one, so, with their assistance, I’ll offer some thoughts on the impact of the Rules one year later. Consensus of the general litigation bar is, “so what’s the big deal?” By and large the process is pretty much as it was. The Rules are laid out in a more logical fashion than in their predecessor, following the path of the litigation process – which is good. The “drop dead” rule has been substantially shortened, from five years to two years, which is also a good thing – encouraging prompt resolution of disputes as opposed to the potential for five years passing between steps in a litigation. But, for the most part, litigators I have encountered have seen the Province wide educational roll-out as much ado about nothing, and, many note that, in fact, some of the suggestions made during the courses as being a little specious. Firstly, for all the talk during the roll out of the rules about a “new paradigm”, and specifically, about how the “old” law no longer applies, in fact, the Courts have quickly acknowledged that, except where inconsistent with the New Rules, jurisprudence arising under the Old Rules continues to be applicable. Some of the sillier changes have also been made the stuff of ridicule, particularly the need to change the former process of “discovery” to the new nomenclature of “questioning”. I mean, really? Like that, somehow, has made a difference to… well, anybody. One interesting change under the New Rule which does seem to be attracting some substantive changes in the law relates to the “purpose and intention” Rule, summarized in Rule 1.2 (1):

The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

Rule 1.2 has been referred to, and applied, by our Courts in several cases, particularly on applications to sever issues in a law suit. Where the previous law under the former Rule 221 suggested severance would be granted only in “exceptional” cases, in Envision Edmonton Opportunities Society v. Edmonton (City)1, the Alberta Court of Queen’s Bench found that while the general rules relating to severance were similar in the old and new rules, the “purpose and intention” outlined in the New Rules softened the requirements of previous established case law, and state that, as a result “the court should be more willing to grant remedies with the potential to provide a more timely and cost-effective result without sacrificing fairness and justice.” Several other cases have also commented on the impact of the “purpose and intention” provisions, and it is submitted that counsel may wish to review the law in that regard and consider the utility of referencing the “purpose and intention” provisions where the effort is to speed up or simplify litigation. The courts appear to be willing to modify previously existing case-law if it is not completely consistent with those intentions. Other changes are less clear in terms of their impact. Procedurally, it was suggested that Rule 9.2 has made it easier to enter Orders in a timely fashion – allowing for entry of an Order without approval of opposing counsel if they have not returned the Order within 10 days of a draft being provided to them. I might beg to differ, however, in one case I had this year where my Order was objected to by an unrepresented litigant, but did not bring application to settle the terms. Because an objection WAS made, the Clerk would not enter the Order, and took the position, in consultation 4 | Law Matters

with the Justice granting the Order that the application would have to be brought back to the Justice who made it – who was not scheduled to be in our Judicial Centre for some time and who refused to entertain such Robert Harvie an application until the Clerk first obtained a transcript of the proceedings and sent them to all parties to see if that would induce approval of the Order. It did not. It might be noted that there is no longer any ability to set an appointment to settle minutes before the Clerk as there had been under the Old Rules. Application must be brought to the Court. Hence a further application had to be brought, on notice. As the Justice making the Order declined to make himself available for a prompt application, I nonetheless filed application in normal chambers for directions, on the basis that more than three months had now passed (on an Order requiring compliance within 30 days) and to wait until the out of town Justice made himself available defeated the intent of the order in the first place, and secondly, that to require these procedural gymnastics was contrary to the “purpose and intention” of the New Rules, which included providing “ an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.” The irony? Upon filing the new application, the Respondent, fearing another cost order, approved the form of order – however, upon presenting it to the Clerk, it was rejected as it hadn’t been filed within 90 days, and I was required to obtain entry of the Order on application in any event. Net result? Order granted December 7, 2010, directing the Defendant to comply with the Order by January 7, 2010 was not entered until May 9, 2011 – five months and an added thousand dollars in legal fees to my client later. So much for speedy, efficient litigation. So the new rules aren’t perfect. The mandatory dispute resolution requirements have been found, by most counsel I’ve spoken to, to simply delay and add to costs – seldom resulting in settlement. Leading horses to water and all that. Then again, perhaps it is just a case of old dogs not wanting to learn new tricks. Bottom line - my take and the take of most litigation counsel I have surveyed – is that there have been a few positive changes, though nothing earth-shattering, and in the bargain there have been some backward moves actually making the process more cumbersome and, hence, expensive to our clients. Well intentioned, but, perhaps, not completely well thought out. But, well, what are you going to do about it? Alberta lawyers are a dedicated lot. Like Marines, we “improvise, adapt and overcome.” Semper Fi… a Envision Edmonton Opportunities Society v. Edmonton (City), (2011) CarswellAlta 72, 2011 ABQB 29, [2011] A.W.L.D. 1091, 78 M.P.L.R. (4th) 300, 20 Admin. L.R. (5th) 342, 44 Alta. L.R. (5th) 1 (Alta. Q.B.)

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

PLAINTIFF LONG-TERM DISABILITY CLAIMS (WCB Claims Excluded) 27 years of experience in this field 4, 12110 - 40 Street SE, Calgary, AB T2Z 4K6 Tel: 403-640-1300

Toll Free: 1-866-640-1077 Also serving Edmonton

BACK TO BASICS

Moving Along By Tony Young, QC

It has been a year since the Alberta’s new Rules of Court came into force. Over the past year, many litigators have been getting acquainted with the new tome dedicated to ensuring that “claims may be fairly and justly resolved by the court process in a timely and cost-effective way. “ Terms of art, such as “Examination for Discovery” and “cross-examination on affidavit” have been replaced by “questioning”. The Court no longer hears “motions”. It now entertains “applications”. The new terms alone, have taken some getting used to. Many of us start speaking in the language of the old rules before pausing midsentence to correct ourselves to reference the current “plain English” replacement.

Delay may no longer be seen as the defence’s ally. The old paradigm, exemplified by a quote paraphrased from the late Evelle Younger, Tony Young, QC former Attorney General of California, stated that “An incompetent lawyer could delay a trial for years or months. A competent lawyer could delay one even longer.” is no longer acceptable. The New Rules are designed to keep litigation moving. It has already been noted by the Court that “scheduling and moving the matter forward is no longer primarily the obligation of the Plaintiff; … the Defendant must shoulder some of the responsibility.”

The good news is that a brief inquiry of the Alberta Lawyers Insurance Association (ALIA) revealed that there had been no noticeable impact of the New Rules on claims. More guarded news may be that it should not be expected that a change would be noticed within such a short period of time after the new Rules have come into force. The anecdotal information that claims have not increased as a result of the new Rules is not assurance that such claims will not arise in the future. It may simply be that it takes much more than a year for such claims to evolve.

The old “drop dead” rule 244.1 which stated that “where 5 or more years have expired from the time that the last thing was done in an action that materially advances the action, the Court shall, on the motion of a party to the action, dismiss that portion or part of the action that relates to the party bringing the motion” has been changed to 2 years. Recent case law suggests that the change of the words in the old rule, “materially advanced” to the new rule “significantly advanced” is a “difference without a difference” and therefore the jurisprudence relating to the old rule still applies. The significant change relates to a shortening of what was once considered to be “acceptable” delay.

The main message that the New Rules convey is set out in the Foundational Rules. The long and the short of it is that “the purpose of the Rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost effective way (Rule 1.2). The duty of a lawyer is “to conduct the action in a manner that furthers the purpose and intention of the rules described in rule 1.2” (Rule 2.25). This responsibility extends to the parties (Rule 4.1). As such, it is important that every practitioner have a firm understanding of the motivation behind the Foundational Rules and an expectation as to how they will be employed by the Court. In addition to understanding the Foundational Rules, practitioners should strive for awareness and understanding in many additional areas of the New Rules. The scope of this discussion does not permit a fulsome review. Only two areas have been chosen, based on discussions with other lawyers. These include the rules regarding delay and the filing of orders. They could just have easily been discussions with respect to pretrial information disclosure, the obligations surrounding a continuing duty to disclose or a host of other important changes.

BOARD MEMBERSHIP The Alberta Law Reform Institute seeks expressions of interest in Board membership. For details on qualifications, term and responsibilities, see www.alri.ualberta.ca

Although many practitioners have now had the opportunity to encounter the new rule regarding the preparation of Orders the message is worth repeating. The New Rules clearly set out the obligations as to who must prepare and approve an order or judgment and when this must be done. Rule 9.2 states that “the Court may direct which party is to prepare a draft of the judgment or order pronounced by the Court, but if the Court does not do so, the successful party is responsible for preparing the draft.” This draft must be prepared within 10 days after the judgment or order is pronounced and served on every party in attendance at the hearing. If the responsible party does not prepare and serve the draft then any other party may do so and follow the procedure set out in the rule to have the draft signed and entered. Rule 9.5 highlights that “A judgment or order is not to be entered more than 3 months after it is pronounced except with the Court’s permission, which may only be obtained on application and after notice is served on each of the other parties.” a

Long Term Disability Claims Call Allan and James Bayda Ludwar Law Firm #310 - 433 Marlborough Way NE Calgary, AB T2A 5H5 Phone: 403-670-0055 or toll-free 1-877-682-3476

Disability Insurance Claims with CPP, Group Insurance and Private Plans Law Matters | 5

W h a t ’s

HAPPENING

NOVEMBER 17: The Calgary Bar Association will be hosting the Annual General Meeting and Fall Bash. Flames Central, Calgary, Alberta. Please check www.calgarybarassociation. com for details.

Patty Johnston, QC

18: The Canadian Bar Association presents Business Basics in Changing Times: Small, Solo and General Practice Forum. Westin Harbour Castle, Toronto, Ontario. Contact: Leslie Huard (CBA National Office). Phone: (613) 237-2925 or Toll Free at 1-800-2678860, Ext. 186 or via e-mail: leslieh@cba.org.

25 & 26: The Canadian Bar Association presents the National Administrative Law, Labour and Employment Law Conference. Westin Hotel, Ottawa, Ontario. Contact: Leslie Huard (CBA National Office). Phone: (613) 237-2925 or Toll Free at 1-800-267-8860, Ext. 186 or via e-mail: leslieh@cba.org. DECEMBER 1: The Ontario Bar Association presents the 2011 OBA Class Action Colloquium. The Conference Centre at the OBA, Toronto, Ontario. Contact: Phone: (416) 869-1047 or Toll free at 1-800-668-8900 or via e-mail: registrations@oba.org.

JANUARY 26 & 27: The Canadian Bar Association Alberta Law Conference 2012 will be held at the Westin Hotel, Calgary, Alberta. For further information please call: 403-263-3707; email: mail@cba-alberta.org; or see www.cba.org/alberta. FEBRUARY 10 - 12: The Canadian Bar Association Mid-Winter Meeting of Council, Fairmont Mayakoba, Mayan Riviera, Mexico. Registration details TBA. 23: The Canadian Bar Association presents Environmental Law: Can’t See the Forest for the Trees? Understanding the Environmental Issues in the Natural Resources Sector that can Arise During Bankruptcy. Contact: Ontario Bar Association. Phone: (416) 8691047 or 1-800-668-8900; e-mail: registrations@oba.org; website: www.oba.org JUNE 14 & 15: The Canadian Bar Association presents 2012 National Aboriginal Law Conference: Aboriginal Peoples and Natural Resources. Delta Bessborough, Saskatoon, SK. Contact: Mahoganey Jones (CBA National Office). Phone: 1-800-267-8860, ext. 189 or via e-mail: mahoganeyj@cba.org. Please send your notices to Patricia (Patty) Johnston, QC c/o Energy Resources Conservation Board Phone: (403) 297-4439 e-mail: patricia.johnston@ercb.ca

5: The Canadian Bar Association presents Tax Lawyers: Professional Responsibility & Ethics Series Dealing with Tax Opinions Retroactivity, Retrospectively and Backdating. Toronto, Ontario. Contact: Ontario Bar Association. Phone: (416) 869-1047 or 1-800-6688900; e-mail: registrations@oba.org; website: www.oba.org

Team “Kelly’s Law” Runs For the Cure Kelly Mah was a 42 year old Crown prosecutor with Alberta Justice and the wife of my co-worker, Rick Stroppel QC who works at the Youth Criminal Defence Office. Together they have a beautiful little 4 year old girl, named Audrey. Kelly was well liked and well respected by her coworkers, the defence bar and the judiciary. Over 20 months ago Kelly was diagnosed with stage four metastatic breast cancer, which was devastating news to her, her family and people in the legal community.

By Karen McGowan

donating $1,025 for Kelly’s Law. Sadly, Kelly died on September 19, 2011, just 2 weeks before the Run For the Cure. On October 2, 2011 we ran and walked for Kelly Mah, a woman who touched the lives of so many people. Kelly’s Law raised nearly $38,000 winning The Corporate Spirit Award for top corporate fundraiser, and was the top team across all categories. I won The Determination Award for being the top participant fundraiser, raising over $14,000 in donations. Including Calgary Kelly’s Law the total for our joint teams was nearly $41,000. This was an amazing testament to Kelly’s spirit!

Kelly was prescribed a promising new drug called Tykerb, which wasn’t covered by Alberta Health Care and cost over $4000 a Kelly’s Law Edmonton are: From YCDO, month. Kelly made her struggle with breast Karen McGowan, Rick Stroppel QC, Pat cancer public, appearing on several news Photo Courtesy of Mark Ohman 2011 Yuzwenko, John Radosh, Judy Demonchannels in an attempt at pressuring the tigny, Holly Dreger, Lorena Melara, Maria Gallo, Alison Ogunlola, Cyndi government to pay for this drug. It was Kelly’s sense of public duty, Brand; From Crown’s Office: Kevin Mott, Natalie Lenz, Avril Inglis, Lawfairness and justice that ultimately led to the government agreeing to rence Van Dyke, Eman Joumma; Private bar: Bob Aloneissi, Gloria pay for Tykerb. There are now nearly 50 women in this province who Grieco, Gail Gerhart, Traci Overacher, Michelle Daneliuk (B.C.), Donn have been given this drug and a fighting chance to beat breast cancer. MacDougall (N.W.T.); others: Karyn Mott, Angel Allin, Kevin Taron. I suggested that we could organize a team for the CIBC Run For the Kelly’s Law Calgary are: Nancy Cush, Greg Francis, Cathy Lane GoodCure to show Kelly that we all cared, and wanted to support her in her fellow, Diana Mah-Smith, Nicole Mizzi, Leea Rampenan, Diane Rampfight against breast cancer. We named it Kelly’s Law with myself as the ersaud, Patricia Suteu, Cristy Goodfellow, Amber Heffernan, Christine Edmonton captain, and Nancy Cush as the Calgary captain. Crowns, Hutchison, Amanda MacLean, Christopher Meyer, Mihnea-Dan Suteu, defence lawyers, judges and people who never met Kelly joined or doRoxana Suteu, Jenni Theunissen. a nated to our team. Legal Aid Alberta held a Wii Olympics fundraiser 6 | Law Matters

VIEW FROM THE

BENCH

In the July 2, 2011 edition of the Calgary Herald, there appeared a wee article about a British banking consultant who has retrained as a witch doctor. I shouldn’t have thought that retraining was necessary. The article said that his training included giving up sleep for three days, dancing for the tribal ancestors at 2:30 a.m., and vomiting goats’ blood. Except for the bit about goats’ blood, it sounded remarkably similar to the life of an articling student, Hon. Judge or at least the CPLED part of it. In fairness, A.A. Fradsham students are not required to vomit goats’ blood; the accepted practice is that the students supply their own. The banking consultant turned witch doctor (with the current state of the world’s economies, I really do think that is redundant) also had to sleep in the bush, wear traditional robes, and hunt for animal parts hidden in the village. Is it just me, or does that sound like a newly admitted lawyer? Finding animal parts in the village is just a natural consequence of the Legal Aid cutbacks. Finally, the article says that Dr. No (well, that is what I have named him because in my experience, “no” is what people in banks always say) was banned from contact with family and friends while he was being trained. That seals it; the guy was articling. I would think that the demand for places in witch doctor schools has increased dramatically with the proliferation of Information Technology departments in businesses and governments. The people from IT have to be trained somewhere, and my observations of IT people at work suggest to me that schools of witch doctoring would be perfect training facilities. Whenever IT visits my computer, there is a great flurry of hand activity over the keyboard; it could easily be the casting or breaking of some dark spell. The person then turns to me, and says two things: (1) the problem is solved; and (2) all my files have

By Hon. Judge A.A. Fradsham

been irretrievably erased. The first comment is made in a tone and with a sneer which leaves no doubt that in the eyes of IT, my ignorance should disqualify me from having a computer, and perhaps even the right to vote. I am told of the loss of my files as though the destruction of all my efforts was a small, and probably unworthy, sacrificial offering demanded by the technology gods in return for the restored health of my computer. In spite of the disdain in which I am held by IT, they have recently provided me with a Blackberry. Now, I have never, ever had a Blackberry other than those upon which one pours milk. I, obviously mistakenly, thought my life had been pretty satisfactory up to this point. However, I have been dragged into the current century. I must say that this device is a constant source of amazement to me. For example, I am amazed at how small the Blackberry people think my fingers are. I am amazed at how addictive the silly thing is. I actually find myself surreptitiously looking at it when I am engaged in a conversation with someone who is right in front of me. The thing must have some sort of hypnotic powers. Maybe it is the little red light which blinks in a naughty “come hither” fashion whenever there is a new message. I confess that giving me a Blackberry does allow me to enjoy the feeling of complete and utter technical incompetence all the time. No longer do I need to be at my computer to feel helpless. I can now be dominated by a collection of wires and “electronic thingeys” no matter where I go. Yes, IT, that collection of witch doctors in Dockers, has, through the Blackberry, made significant progress towards achieving complete domination of me. And to add insult to injury, they have bewitched me into feeling duty bound to go to the trouble of carrying it around wherever I go, much as a criminal wears an electronic bracelet. Vomiting goats’ blood may be the least offensive thing they do. a

CUMING & GILLESPIE Litigation Associate Cuming & Gillespie, one of Alberta’s premier personal injury law firms, is looking for an associate to join our growing practice. If you have an entrepreneurial spirit, a strong academic background, and the ability to work as part of a team in a fast paced environment, this is your chance to be part of a long term and rewarding practice. We offer a competitive compensation package and a balanced lifestyle. Please email your resume in confidence to Craig Gillespie at Craig@cglaw.ca.

FAMILY LAW LAWYER WANTED Join Us! All levels of experience considered. Please fax resume to Wise Walden Barkauskas, 403-269-6785 or email cscheible@divorceinc.com Only selected applicants will be contacted.

Law Matters | 7

PRACTICE POINTERS Keeping Up with the New Code of Conduct By Anne Kirker and Karl Seidenz

Maureen Killoran

Anne Kirker

On November 1, 2011, the Law Society of Alberta’s new Code of Conduct will take effect, replacing the existing Code, which has been in place since 1995. With the everincreasing numbers of people representing themselves, in and out of Courtrooms,1 we thought it might be helpful to highlight the provisions concerning a lawyer’s professional obligations when dealing with unrepresented persons. Although the new Code contains several references to obligations to unrepresented persons,2 Rule 6.02(11) is of primary importance:

When a lawyer deals on a client’s behalf with an unrepresented person, the lawyer must: (a) advise the unrepresented person to obtain independent legal representation; (b) take care to see that the unrepresented person is not proceeding under the impression that his or her interests will be protected by the lawyer; and (c) make it clear to the unrepresented person that the lawyer is acting exclusively in the interests of the client. The following is also set out in the Commentary: If an unrepresented person requests the lawyer to advise or act in the matter, the lawyer should be governed by the considerations outlined in this rule about joint retainers. When dealing in a professional capacity with a non-lawyer representing another person, or with a person not represented by counsel, a lawyer has the same general duties of honesty, courtesy and good faith that are owed to professional colleagues. The reference in this rule to unrepresented party is not intended to include professional advisors or persons having special qualifications who are retained for the purposes of negotiation, such as insurance adjusters and bank managers. The lengths to which a lawyer must go in ensuring a party’s understanding of these matters will depend on all relevant factors, including the party’s sophistication and relationship to the lawyer’s client and the nature of the matter. Rule 6.02(11) replaces Rule 5 of Chapter 11 of the 1995 Code (the “1995 Rule”), which set out a lawyer’s duties when “negotiating” with an “unrepresented party”, and incorporates duties that were set out in

8 | Law Matters

various other sections of the 1995 Code3 and its Commentaries.4 Rule 6.02(11) differs from the 1995 Rule in the following ways: •

The duties set out in Rule 6.02(11) are not limited to when a lawyer is “negotiating” with an “unrepresented party”. Rather, they apply when a lawyer is “dealing” with an “unrepresented person” which is broader in scope.

•

The 1995 Rule required a lawyer to “advise” the unrepresented party to retain counsel. The wording of Rule 6.02(11)(a) (“a lawyer must take care to see that the unrepresented person …”) and of Rule 6.02(11(b) (“a lawyer must make it clear to the unrepresented person …”) goes further and requires that a lawyer take steps to ensure the unrepresented person understands that the lawyer is not acting for or protecting the unrepresented person’s interests;

•

The Commentary to the 1995 Rule also stated that if a lawyer complied with his or her duty to advise the unrepresented party to retain counsel, the lawyer could then “represent [his or her] client in the same manner as though the other party were represented by counsel.” This latter statement is absent from the Commentary on Rule 6.02(11), suggesting the obligation to take care with unrepresented persons is ongoing and that a single warning may not be enough; and

•

Finally, the Commentary under Rule 6.02(11) makes it clear that if an unrepresented person requests a lawyer to advise or act on his or her behalf, the lawyer should be governed by the considerations outlined in the Rule about joint retainers.

As before, the new Commentary acknowledges that the lengths to which a lawyer must go to ensure an unrepresented person’s understanding will depend on several factors, including the person’s sophistication, the relationship with the lawyer’s client, and the nature of the matter. The practice point here is that lawyers should remain mindful of these professional obligations and pause to consider how best to discharge them in any circumstance where unrepresented persons are involved. a

Luis Millan, “Judges grapple with unrepresented litigants”, The Lawyers Weekly, November 5, 2010 issue. Kirk Makin, “Access to justice becoming a privilege of the rich, judge warns”, The Globe and Mail, February 10, 2011 Issue.

See commentary on Rule 2.02(9) (Dealing with unrepresented complainants in regulatory criminal or regulatory proceedings); Commentary on Rule 4.01(2) (Lawyer who represents an accused dealing with unrepresented complainants); and Commentary on Rule 4.01(4) (Duties of prosecutors in dealing with an unrepresented accused).

Rule 6.02(11)(a) incorporates Rule 5(b) and part of Commentary C.5.2. Rule 6.02(11)(b) and (c) incorporate Rule 5(a) and Commentary C.5.2.

Part 2 of the Commentary on Rule 6.02(11) incorporates the duties of honesty, courtesy, and good faith previously set out in Commentary G.2 on Rule 4. Part 3 of the Commentary on Rule 6.02(11) about professional advisors mirrors the definition set out in Commentary C.5.1 under Rule 5 to Chapter 11.

The Rules Formerly Known as the “New Rules” By Robin Camp The “new Rules” have been with us for over a year, it is time to comment on how they are working.

Robin Camp

• Some are disappointed that not all counsel have grasped the philosophy that cooperation and efficiency are the touchstone, and that time limits should be adhered to. Some counsel get the impression that the Courts are not as firm with backsliders as had been hoped in view of the Foundational Rules.

• Mandatory Dispute Resolution has generally received favourable reviews. There is disappointment that JDR’s are still hard to book. There is concern that there is no item in Schedule “C” to allow costs for dispute resolution attempts to a successful plaintiff where dispute resolution was unsuccessful. • The provision that an order be drafted within 10 days, and that the other side must respond within 10 days, and failing such response the order can be filed “as is”, has been met with approval. The flaw in this provision is that some counsel have responded positively, but then failed to sign the order. In these circumstances the clerks are loathe to file the order. • The new Rule to the effect that when additional relevant documents are identified, supplemental affidavits of records do not continually have to be filed, but a supplemental affidavit of records before trial is sufficient,

has been met with approval. • Some counsel have experienced delay and difficulty from the very innovations which were supposed to speed things up: litigation plans, filing of expert reports before set down, compulsory dispute resolution procedure, the distinction between “standard” and “complex” cases, and even the preparation of orders, have in some cases provided opportunities for disputes and delay. Some say that in order to make the system work, the Courts will have to bear down hard on recalcitrance. • It is not clear what the benefit is to exchanging expert reports before a matter can be set down for trial. This is an example of a situation where a difficult defendant can game the system. • In regard to the presumed admission of the authenticity of a record which has been “produced”, in the absence of formal objection within one month: often, copies are provided too late for this time period to be fair. The Rule would have been better if it provided that authenticity is presumed within “one month from the date on which a copy is provided”. • Concern has been expressed in regard to the “Proportionality Principle” contained in Rule 1. What is of importance to an individual or a small operation is trivial to an international corporation; a hundred thousand dollar claim is often more important to a plaintiff in an accident or employment matter, than a dispute between two huge corporations involving an extra two zeros. There is concern that there might be one legal standard for the rich, and another for the poor. a

GREAT RATES ON HOME AND AUTO INSURANCE

Judge for yourself Introducing the new home and auto insurance program for all members of the legal profession. CBIA Insurance Services offers home and auto insurance, complete with additional features and options that go beyond standard protection – all at exceptionally great rates.

77 8 1-

2 14-6

GET A HOME OR AUTO INSURANCE QUOTE See how easy it is to switch your insurance company…and save money. CALL OR CLICK

1-877-314-6274

www.barinsurance.com/homeauto

The Canadian Bar Insurance Association Sponsored Home & Auto Insurance is underwritten by The Personal General Insurance Inc. in Quebec and by The Personal Insurance Company in all other provinces and territories. Certain products and services may not be available in all provinces and territories. CBIA Insurance Services is a division of 3303128 Canada Inc., a licensed insurance broker.

LawLaw Matters Matters |9 |9

Alberta’s Rules of Court New Rules - One Year Later By Hon. Justice Robert A. Graesser Court of Queen’s Bench of Alberta I. INTRODUCTION

2. DISPUTE RESOLUTION

Alberta’s new Rules of Court came into force on November 1, 2010. With nearly a year of litigation behind us, the purpose of this article is to remind lawyers and litigants of some of the changes of which they should be aware, review some of the important changes and analyze the effects of the new Rules on civil litigation and - an exciting new initiative. Has anything really Hon. Mr. Justice changed - yes, including the new initiative. R. A. Graesser If so, are the changes positive? And how have the Courts interpreted the new Rules in the context of the “foundational rules” emphasizing fair and just resolution in a timely and cost-effective way?

One of the other significant changes was the requirement that the parties engage in a dispute resolution process (DR) before they could have the matter set for trial (Rules 4.16 and 8.4(3)). It is unclear as to the extent litigants are turning to private mediators to satisfy the DR requirement. Of course, the intent of requiring DR was not to add another step in the litigation, but rather to encourage the parties to make meaningful efforts to settle their dispute, recognizing that settlement likely satisfies the foundational principles better than does a trial.

As a general observation, it might be said that not much has changed. There are still pleadings; still applications without notice, there are still affidavits of records and questioning; there are still contested chambers and special chambers applications; there are still trials. Litigation remains a slow and expensive process. But there have been some changes, and many will agree that there have been some improvements in civil practice.

Counsel should become familiar with other forms of DR, including mediators who may be able to provide effective services in a timely manner.

II. NEW RULES - THINGS TO BE MINDFUL OF

Self-represented litigants are also included in this requirement, and will likely be participating in mediations and JDRs much more frequently than before. They may benefit by reading some of the many excellent books on ADR.

The impact of this new requirement has yet to be assessed. It is clear that the demand for Judicial Dispute Resolutions (JDR) with a judge has increased, and it is, in many cases, theoretically possible to get a trial date long before a JDR date can be arranged.

Counsel should take training in mediation theories and skills, and should read up on the processes so that they can more effectively represent their clients.

1. DISMISSAL FOR DELAY One of the most significant changes was the lowering of the 5 year period to have lawsuits dismissed for delay to 2 years (the “Drop Dead” Rule, Rule 4.33). Formerly, a defendant could apply to have a lawsuit dismissed if the plaintiff had not taken a meaningful step to move the action along for more than 5 years. The new Rules shortened that period to 2 years.

3. IMPORTANT CHANGES A. Limited Retainers Rule 2.27 appears to have encouraged lawyers to get involved in a matter for the purpose of preparing a pleading or arguing a motion, without fear of being dragged into the lawsuit more deeply than they wish. This is a benefit to litigants who may not want to be fully represented in their dispute, or may not be able to afford to be fully represented.

The change affects all civil litigation and absent careful management, strict application of the Rule may be draconian, resulting in the lawsuit being dismissed irrespective of the merits, and despite ignorance of the rule or inadvertence.

B. Pre-Trial Conferences The abolition of pre-trial conferences (PTCs) has freed up judicial time for other tasks, such as JDRs, case management, special chambers applications and trials, but there remain problems with some matters being heard which are not really ready for trial. However, check out the case conference provisions (Rule 4.10) which may replicate PTCs. There appears to have been very little activity under this Rule over the last year.

Everyone should, well before October 31, 2012, review each civil litigation files to ensure that there is no delay approaching 2 years that does not fall within the narrow exceptions to dismissal spelled out in R. 4.33(1). The plaintiff must have done something that has “significantly advanced the action” within the last 5 years on an ongoing basis, and in any event within 2 years from November 1, 2010.

C. Self-appointment of Litigation Representatives (Rule 2.14) This has lessened the number of applications to appoint a “next friend” (as the litigation representative was called under the old Rules). This has undoubtedly resulted in a cost saving to litigants, speeds up the process of commencement of the action, and avoids a court application.

These are limited exceptions, and are likely to be strictly interpreted. As noted, this new Rule impacts all lawsuits. It should be noted that new Rule 4.33 did not extend the time for any lawsuits where there had been ongoing delay before November 1, 2010. It did have the effect of shortening the period, such that if the delay began on January 10, 2010 (before the new Rules came into effect), the period will now expire on October 31, 2012 and not January 9, 2015 as would have been the case under the old Rules.

INTERPRETATION ISSUES There have been a number of cases interpreting the new Rules, and commenting on, or applying the foundational rules. From my perspective, there have been no “earthshaking” decisions or particularly surprising ones. con’t on page 11...

10 | Law Matters

con’t from page 10...

It is probably too early to analyze whether there has been any change in mind set in civil litigation in Alberta, and while the Courts have been armed with the foundational rules, there are few tools available to the Courts to prevent the train wreck of some litigation where both parties appear bent on using a scorched earth policy towards their opponents. III. CONCLUSION The new Rules have provided no magic paths to faster, cheaper, more effective and fairer litigation. While there are some improvements to the system, if there are to be significant improvements in access to justice in Alberta, there will have to be major changes in mind set, and system-imposed limits on the steps that can be taken in any given lawsuit. Ultimately, the attitude towards the new Rules and the impact they have lies mainly with the judiciary, and its willingness to put teeth into them. It is too early to tell what the long-term impact of the new Rules will be. PLEASE NOTE: The views expressed in this paper are the writer’s, and do not necessarily reflect the views of the Court of Queen’s Bench of Alberta or the Rules of Court Committee.

People & Places Please send us your news! peopleplaces@cba-alberta.org Calgary: Laura MacFarlane has joined Field Law as the newest member of their Intellectual Property and Technology Group. Roland Hung has joined McCarthy Tetrault. Bryan Ede has joined McMillan LLP as a partner. Edith (Edie) Gillespie is now at Apache Canada Ltd. Craig McMahon has joined Field Law. Edmonton: Wendy Thiessen is now with Alberta Justice – Environmental Law at 9820 – 106 Street. Patty Ko has joined Bishop & McKenzie LLP. Robert J. Collier is now at Venture Law Group LLP. Jennifer McDonald’s last name has changed to Halloran. Peace River: Lorne Mann and Monica Robinson are at Mann & Robinson, 9902 – 97 Avenue. Firms: Taylor Law Office has relocated to 401, 10722 – 103 Avenue, Edmonton, AB T5J 5G7. Phone and fax remain the same. Department of Justice Canada’s Edmonton office has relocated to EPCOR Tower, 300, 10423 – 101 Street, Edmonton, AB T5H 0E7. For more information call 780495-2983. Moe Hannah McNeill LLP proudly announces its new office location to 800, 635 – 8 Ave SW Calgary, AB T2P 3M3. MacLeod Dixon to merge with Norton Rose effective January 1, 2012. Widdowson Kachur Ostwald Menzies LLP is at 2250, 801 - 6 Avenue SW Calgary, AB T2P 3W2. Cyndy Morin and Julia Coombe are pleased to announce the opening of their new firm, Resolve Legal Group, with a focus on Family Law, Real Estate, Wills & Estates, and Immigration. A: 903, 1333 8 Street SW; P: 403-229-2364; E: resolve.legal.group@live.ca. Correction from last issue: Kara Gillespie, Alberta Health Services correct contact information: P: 403-943-0902; E: kara.gillespie@albertahealthservices.ca. Law Matters | 11

FRON T & C E N T RE Cocktail Reception for Justice P. Clark & Justice B. Rawlins, hosted by the South Wills & Trusts Section

L-R: Justice P. Clark, Justice B. Rawlins, Roy Boettger, Chair of Wills & Trusts (S), Shelley Waite

Law Student South Welcome Reception

CBA Canadian Legal Conference & Expo, Halifax, August 14 - 16, 2011. Photos courtesy of Michael Creagen.

CBA Past President Rod Snow and CBA President Trinda L. Ernst, QC, 2011 - 2012

12 | Law Matters

Arman Chak, recipient of the 2011 Young Lawyers Pro Bono Award, with Loreley Berra

CBA President (‘10-’11) recognizes Analea Wayne, CBA-AB President (‘10-’11) at the end of her term on the National Board of Directors

CBA Alberta Council Meeting

President Jeff Wise presents PastPresident Analea Wayne with a gift in recognition of her year of service as President

Jeff Wise, President; Cyril Gurevitch, QC, Vice President; Marian De Souza, Treasurer; Analea Wayne, Past President

South Mentor Reception

A Big Thank You to All Who Helped Make the Mentor Reception a Huge Success!

Andrew Lau; Tony Young, QC; Gillian Marriott, QC; and Ana Dzitac

Members of the North Criminal Justice Section with Guest Speaker Judge Larry Anderson

L-R: Curtis Serra, Richard Jones, Birch Miller, and CBA President Jeff Wise speak to the students

Attendees of the inaugural meeting of the North Solo, Small & General Practice Section

Guess who is wearing these great Louboutin shoes!

CBIA President Virginia Engel, QC addresses the crowd

James McGinnis awards Arman Chak with the Eileen Nash Award at the Edmonton Bar Association Judges Dinner in September. Photo taken by Fred Katz Photography.

Law Matters | 13

Mandatory Mediation under the New

Alberta Rules of Court - the First Year

1. The requirement

Sabri Shawa

The new Rules of Court require that parties undertake a dispute resolution process (read mediation including, but not necessarily, JDR) before a trial date can be assigned (Rules 1.2, 4.2, 4.16, 8.4, 8.5, and 15.3). In other words, the Rules impose mandatory mediation as a precondition to completing litigation. The same Rules, however, afford the possibility of an exemption from the requirement (see below).

Some argue mandatory mediation is an oxymoron and, in some cases, that it limits the scope of litigation strategies that should legitimately be available to a party. I have also heard it argued an emphasis on settlement sometimes leads to cynical manipulation of the system and adds a transactional cost to business affairs; there are those who will simply refuse to honor their obligations knowing that if they are sued, they will end up compromising the claim and having to pay less than their full obligation. Others take the view that, since all that is required is that people make an attempt to mediate, the Rules merely provide another opportunity to avoid the cost and risk of trial. In my view, requiring that parties put themselves into a circumstance conducive to resolution (a mediation), when nothing more is required than that they attend in good faith, cannot be a bad thing. Mandatory mediation also has the advantage of eliminating any strategic disadvantage, real or perceived, associated with appearing weak by proposing mediation. Although I am sympathetic to the argument that an effective and respectable judicial system must afford litigants the right to have their case heard and determined by a judge if that is what they wish, I do not see that right abrogated by the new Alberta Rules. A party who is prepared to take the associated risk - and incur the associated expense - ought to have the right to go to court. Mandatory mediation under the new Alberta Rules does not, however, impair that right; it only requires the parties sit down, in good faith, with a mediator, and make an effort to resolve the matter. In my view, a legitimate discharge of that obligation could include a party simply reiterating the same position it has adopted in its pleadings, provided it listens to whatever response the other side makes, and gives it genuine consideration before rejecting it. The Rules do not require that a party compromise its claim, agree to anything they are uncomfortable with, or make any concession at all with respect to any facts, damages or legal issues. 2. The past year There is no doubt that the number of mediations taking place in Alberta since the advent of the new Rules has increased significantly. I see that in my own practice and hear it from other mediators, some of whom have spoken of increases in volumes of more than 50% this year over last. JDRs too have increased significantly, with about 700 so far in 2011. Presumably, at least some of that increase must be attributable to the new Rules. It is less clear though whether the increase is an aberration due to the advent of the Rules, or a sustainable trend. It may simply be that much of that increase comes from cases which would have gone to mediation just before trial, but are now going to mediation earlier so that a trial date can be secured. If that is the case, once it stabilizes, the increase may not be as dramatic as it currently appears. Of course, since mediation is mandatory, and assuming waivers are not routinely granted, the overall numbers will presumably remain somewhat elevated, even given the always diminishing percentage of cases that actually go to trial. 14 | Law Matters

By Sabri Shawa

Since the introduction of Judicial Mediation in Alberta in the mid 1990s, JDRs have grown in popularity to the point where now, when JDR dates are released, they are fully booked within hours. This, despite the fact more and more dates are being made available than ever before. The popularity of JDRs can, as best as I can determine, be attributed to the fact that: a) a justice is seen as having clout and insight sufficient to influence parties away from unreasonable positions, and b) they are less expensive because there is no charge for a judge’s mediation services. It is worth noting there is no fee item in Schedule C for mediation (it seems to me there should be, just as there is for questioning) but the cost of a private mediator would presumably be added to the other disbursements when it comes time to deal with costs, now that mediations are mandatory. There is jurisprudence under the old Rules that says mediation expenses should not be included in taxable costs. Predictably, some parties resist the mediation requirement. I have even been contacted by counsel who say they are only calling to arrange a mediation because they have to, but know it will be unsuccessful and, therefore, only need to schedule a short period of time. Interestingly, every one of those has resulted in a settlement at mediation. On other occasions, the resistance manifests itself in the form of an application for an exemption from the mediation requirement. That experience has demonstrated an interesting, and perhaps counterintuitive fact. In the cases where the parties have gone into the mediation without any expectation of success, briefs have, not surprisingly, been succinct. Despite that, and despite an apparent lack of confidence in the process, those cases have resulted in resolution. Though the sample size is small (I am talking about fewer than 10 cases) the success rate has been every bit as high (actually higher) than the success rate in cases where much more extensive briefs have been prepared. In those cases where parties have started out with an apparent presumption of failure, they have, as far as I have observed, quickly adopted the spirit of the event and engaged in a genuine effort to resolve the claims once the mediation starts. Thus, the initial approach is different (limited briefs) but the ultimate approach becomes the same (parties want to settle, and given conducive circumstances, will). The Rules do provide that parties can be granted an exemption from the requirements that they participate in mediation as a precondition to getting a trial date where: • a mediation was undertaken before litigation commenced, • the nature of the claim is such that an agreement is unlikely, • there is a compelling reason not to attempt a mediation, • the court is satisfied mediation would be futile, and • the nature of the claim is such that a court decision is necessary or desirable. The court has issued a directive requiring that, at least for the time being, applications for exemptions be made to Chief Justice Wittmann (in Calgary), or Associate Chief Justice Rooke (in Edmonton). As I understand it, very few applications for exemptions have been made, but of those made, most have been granted. I am unaware of any written decisions on exemption applications, although one is apparently pending from Calgary. The dearth of decisions on exemptions means there is little guidance on when they will be granted or what exactly the 5 listed circumstances justifying an exemption mean. They do appear to be somewhat overlapping and certainly afford the court a great deal of discretion. Clearly, in cases where a declaration is sought, the case is con’t on page 15...

conâ&#x20AC;&#x2122;t from page 14...

an all or nothing proposition, or where a mediation would place an unconscionable burden on a party (imagine a claim alleging sexual misbehavior where requiring the parties to mediate may well further victimize the plaintiff ) mediation may not be helpful and an exemption could be expected. Similarly, where parties all agree mediation is futile or counterproductive, particularly where all parties are represented, and tell the court they believe that to be so, one presumes the judge will give considerable weight to counselâ&#x20AC;&#x2122;s request that they be exempt from mediation. Other circumstances are less clear. What will happen when: one party wants to mediate and the other does not; the parties want to mediate, but one or both will only agree to do so in the context of a JDR and suitable JDR dates are unavailable; or one or both parties simply want to have a judge decide and are not interested in a compromise, for whatever reason. Is an exemption appropriate in these circumstances? Time (actually the court) will tell. Having conducted hundreds of mediations over the past many years, there is no doubt in my mind that mediation is an indispensible tool in litigation. That view is, I know, shared by other private mediators and many of the judges who do JDRs. Mandatory mediation does not appear, at least in the one year experience in Alberta, to have done anything but increase the number of cases going to mediation, with presumably a concomitant increase in the number of cases resolved before trial, or at least resolved at an earlier stage. Of the 700 cases that went to JDR so far this year, 80% settled. That does not include the cases that settled after the conclusion of a JDR, but still as a result of it. My experience - and that of at least the mediators I spoke to in preparing this article - has been even better, in the sense that the number of mediations has increased in a similar way and the success rates are even higher. To the extent there is any real downside associated with mandatory mediation, it might be that parties, knowing they will be at a mediation at some point, make no, or limited, efforts to resolve claims early on. Settlement offers, even before pleadings close, are common place, as are casual settlement discussions among counsel. It would be a shame if there develops an expectation that the only time for a settlement discussion is after the preparation of a brief and in the presence of a mediator, at the point when a trial date is being sought. 3. The future It is difficult to imagine a reason to eliminate the mandatory mediation requirement in our Rules. Similarly, there does not appear to be any reason, at this stage, to make any significant changes to it. Although, the absence of a fee item in schedule C seems to be a minor flaw. The one unknown revolves around the criteria for exemptions. If the law in that regard becomes confusing, or if exemptions were ever to become routine, amendments might be desirable. One concern that has arisen though is the heavy reliance on JDRs. Parties have no right to a JDR; it is a service offered by the courts without statutory obligation. If it comes to pass that demand for JDRs continues to outstrip supply - either because of sustained high demand, or because the court does not have the resources to continue to increase the availability of judges for JDRs - a process intended to accelerate resolution could end up delaying it. Remember too that every judge-day dedicated to a JDR reduces the availability of judges for trials. To the extent that JDRs continue to be successful at eliminating trials, that balance produces a net benefit. But should the balance tip the other way, obtaining trial dates could become more difficult and those cases that are not resolved pretrial will take longer to get to trial. Finally, the Canadian Judicial Counsel is set to examine the propriety and desirability of judicial mediations. However, given the apparent success of court based mediation programs in a number of provinces, a significant change seems unlikely. a

Law Matters | 15

Touchstone Award Presented to Patricia Blocksom, QC

By Allan Shewchuk, QC

Photo courtesy of Michael Creagen

Twenty years ago, a junior female lawyer in Calgary with a young family and a busy practice took on an appointment from Madam Justice Bertha Wilson as a founding member of the CBA’s National Task Force on Gender Equality in the Legal Profession. For Patricia Blocksom, it was the beginning of a commitment to the improvement of the status of women in the practice of law in Canada and a first step in what has become a lifetime of championing equality around the world. On August 16, 2011 the indomitable Ms. Blocksom, QC was recognized by our profession for being a shining example for equity when she was presented with the CBA Touchstone Award in Halifax at the CBA Annual Meeting. It was a well deserved tribute to a brave woman who went into the almost exclusively male boardrooms of law offices across the country to fight for her sister lawyers and to break new ground which has led to fairer workplaces and places at those very boardroom tables for women.

It was also an emotional moment for Pat because she had been mentored by Madam Justice Wilson and by the then National President of the CBA Cecelia Johnstone, QC both of whom did not live to see the many strides made due to their work in promoting gender equality. In concluding her remarks, Pat quoted her dear friend “Bertha” from a speech that she gave at a conference organized by the Task Force in 1992. For Pat, and for all of us as lawyers, her words still ring true today: “A societal attitude towards issues such as gender bias is akin to racism or anti-Semitism: it seeps like a noxious pollutant into the fibers of society in ever new and subtle forms. In this, as in other matters, the price of freedom is eternal vigilance. I would like to ask you where would we be without the strident voice of the extremists who have the pristine courage to call ugly things by their proper names? The stance of the moderate is so often polite, respectable, soft-voiced and, worse still, tamely accommodating.

Equality Committee Chair Aleem Bharmal and Touchstone Award Recipient Patricia Blocksom, QC

Those of us lucky enough to hear Pat’s speech learned that her initial work on the Task Force has led her on a journey for equality for all women and that currently as a director of the charity Partners in the Horn of Africa, she is changing the lives of girls and women in Ethiopia and that as a board member of Future Generations Canada she is fighting for equality in oppressive Afghanistan.

Just look at history - it is the vigor and the energy of the extremist who paints issues in bold colors that has been the engine of historical change, whose voice has been a call to action and who will brook no delay.

They may walk a hard and rough road but their spirit rides in style.” Pat Blocksom continues her work and surely her spirit will continue to ride in style. a

LEGAL EDUCATION SOCIETY OF ALBERTA - Test Your Knowledge! The Legal Education Society of Alberta (“LESA”) has been a pillar in the Alberta legal community since 1975. How well do you know this institution? Test your knowledge! By Jennifer LC FLynn, Managing Director 1. LESA is the educational department of the Law Society of Alberta. True or false? False. While we are proud to have a very close working relationship with the Law Society of Alberta, LESA is a separate, independent, legal entity. Our Board is drawn from the Law Society of Alberta, the Canadian Bar Association (Alberta Branch), the Universities of Alberta and Calgary, the judiciary, and the profession at large.

5. LESA launched the first Annual Refresher Course in 1975 when LESA was formed. True or false? False. Our flagship Annual Refresher actually predates LESA’s formation! Now in its 45th year, the Refresher is still an ideal way to get up-to-date. Our 2012 Refresher focuses on Real Estate. Join us in spectacular Lake Louise to benefit from six half-day sessions, while enjoying beautiful scenery and excellent networking opportunities. Register early to secure your spot!

2. LESA delivers the CPLED Program on behalf of the Law Society of Alberta. True or false? True. Every year, we oversee the education and assessment of more than 320 CPLED students seeking admission to the Alberta Bar. We administer approximately 1,000 learning exercises, 2,000 assignments, and more than 3,200 competency evaluations annually.

6. LESA offers many print and electronic legal resources, in addition to seminars. True or false? True. In addition to our Practice Manual Series, we publish several other resources including “Business Law Fundamentals”, “Criminal Law Fundamentals”, and the “New Wills & Succession Act: Transition Guide”. We also publish more than a hundred quality papers annually, and host dozens of lessons in our online classroom.

3. LESA receives funding for its continuing legal education activities. True or false? False. We operate as a not-for-profit entity incorporated under the Societies Act. We do not receive funding for our general CLE activities. Only the CPLED Program attracts regular external funding—from the Law Society of Alberta and the Alberta Law Foundation—to offset student tuition costs. Other LESA programs and resources are currently funded from course and publication revenue.

7. LESA recruits hundreds of volunteers each year. True or false? True. We recruit for more than 500 volunteer assignments every year. In addition to presenters and authors, we are on the lookout for blog contributors, wiki editors, and content reviewers. We also have several open contract positions for CPLED learning group facilitators and evaluators, and for legal writers and researchers.

8. LESA is based in Alberta, but is recognized worldwide for its contributions to continuing legal education. True or false? True. In the past two years alone, we have achieved international recognition through three prestigious awards. The international association of lifelong learning programming also awarded us a LERN Award for Excellence in Marketing. From the international Association of Continuing Legal Education, we received awards for Professional Excellence in both Technology and Programming. For more information about the Legal Education Society of Alberta, please visit www.lesa.org. 4. LESA offers more than 250 unique hours of live CPD programming each year. True or false? True. We offer approximately 285 unique hours of live programming each year, with an average of 40 different live event titles. We program across all major practice areas, learning levels, and formats. For details, check out our Educational Calendar.

16 | Law Matters

H E A LT H M AT T E R S The Rules of Court - A Retrospective Psychoanalysis By Glenn Solomon, QC “There is no terror in the bang, only in the anticipation of it.” Alfred Hitchcock When I was asked to write something for the “Health Matters” column, I immediately thought: “Have you seen me?” The Health Matters theme was clarified for me - the connection is whether the stress anticipated by lawyers as a result of the advent of the new Rules of Court has materialized. I was told that this is intended to be less academic, and more practical, anecdotal and entertaining. Glenn Solomon, QC I’m not sure how I could possibly be less academic - or for that matter less practical or entertaining. I have three main premises to share: 1. The primary effect of the new Rules of Court is… wait for it… we have to look stuff up. 2. We are actually now at the easy part of the new Rules. For now they mean what they say. History tells us that this will not remain the case. 3. Nothing has actually changed. We have to look stuff up. Let’s face it, unlike criminal lawyers or tax lawyers who must constantly fear that the repeal of a single statute could put them out of business, civil litigators will always find issues to argue about. We are not on the cusp of good will and a spirit of understanding among all people in society. We have been given a blank slate to make law. That’s like a blank cheque. There is a process we follow, no matter what Rule we’re dealing with. First, we realize

that there must be a Rule about this, because there used to be one. Second, we go online and look up what the Rule is, or we practise law by opinion poll by visiting a few of the people in neighbouring offices to ask them if there’s a Rule about this. We read the Rule, we apply it to our facts, and we look up whether there are any cases on it that suggest otherwise (here’s a shameless plug - my firm has a cumulative summary of all cases on the new Rules on our website, organized by Rule number, at www.jssbarristers.ca - this has been a public service announcement). What would have taken a matter of seconds a year ago, now takes a few minutes, or maybe even an hour. In the days of global economic woes, and fears of double dip recessions, the new Rules have had an important impact on lawyers. The nuisance of looking stuff up is made bearable by the fact that, for lawyers, time is money. This is the easy stage. The Rules of Court in Alberta were effectively introduced in 1914. Major amendments were introduced in 1944, and then in 1968. Next was 2010. Rules of Court tend to have a shelf life of between 24 and 42 years in Alberta. Why? Simple. One need only think of the only lawyer in a small town who couldn’t make ends meet. Another lawyer moved in to town. They both thrived. The Rules are presently quite clear. They mean what they say, and they say what they mean. Two things will happen to those Rules. First, lawyers will spend mental energy trying to find ways to apply those Rules to gain advantages for their clients. Second, Judges will see the injustice of the plain meaning of the Rules in certain instances, and will “fix” it. That is why the Rules had to be changed. Just prior to November 1, 2010, you could pick any Rule, read it, understand it, and see for yourself how the cases interpreting the Rule caused it to move a significant distance from what the Rule actually said. That also explains all prior major amendments to the Rules. Two important points to be taken from this are that (1) we are at the easy stage, and (2) we have the opportunity to make history for our clients (clients love that!). Nothing has actually changed. Really. I’ve read almost every written decision issued under the new Rules (remember the cumulative summary, supra). Most cases seem to apply the Rule as it is written. The Rules as written don’t actually change much, other than the Rule numbers, calling Discoveries “Questioning”, and a few deadlines. Almost half of the decisions issued to date refer to the “old” Rules in order to determine the meaning of the “new” Rules. A significant number of those cases find that nothing has changed - except that we have to look stuff up. Quod erat demonstrandum. a

HIGH QUALITY Reliable Legal Research Experienced Research Lawyers Barbara E. Cotton, B.A., LL.B. PHONE : (403) 240-3142 FAX: (403) 242-5756

barb@bottomlineresearch.ca RESEARCH AND COMMUNICATIONS

w w w. b o t t o m l i n e re s e a rch .ca

Alberta Lawyers Assistance Society (Assist) recently engaged in a letter campaign to the practicing Alberta bar to profile the programs and services offered and request financial support to help fund important initiatives. On behalf of the Board of Directors and our volunteers, thank you for your financial contribution. With your support, Assist is able to better serve lawyers, law students and their families in helping overcome personal difficulties. For more information about our programs and services and to see the results of your donations, please visit us at albertalawyersassist. ca. If you are a donor and would like your name to be published on our website in recognition of your contribution, please email Carolyn McCartney at: cmcartney@albertalawyers.ca or call at (403) 537-5508. Marian V. De Souza, LL.B. Executive Director Law Matters | 17

Making the Most of

The Year End Review (Part 1 of 2)

By Shekhar Parmar

As a recruiter, I regularly deal with queries from parties preparing to participate in their organization’s yearly performance and compensation reviews for in-house counsel. Both parties (those conducting the review and those being reviewed) want to ensure that the review is both taken seriously and is beneficial. Often, queries stem from uncertainty around the process and the information available, due to a perceived lack of comparable data relating to inShekhar Parmar house counsel in other organizations. Unlike private practice, where compensation and career paths are broadly similar across the board for associates in “same tier” firms, no two inhouse legal roles are alike.

What Am I Worth?

Uncertainty can be frustrating for both in-house counsel and their reviewer. In-house counsel want a meaningful discussion about their career progression (both in terms of roles and compensation) but may feel hampered by a lack of knowledge about what the rest of the market is doing. Likewise, a reviewer wants to retain and motivate inhouse counsel over the long term, within the boundaries of what is reasonable in the wider legal market.

Where Am I Going – Outwards Not Upwards?

It is not all bad news. If viewed differently, uncertainty can also create opportunities for both parties. The lack of rigid career paths for inhouse lawyers allows them to actively shape their role. In particular, yearly performance reviews are an excellent tool for both parties involved, but work best only with careful preparation. In this two part series I offer some suggestions for preparing for such a review. This first part will provide advice to those facing a review. Take Stock Where Am I Now? Few organizations remain static from year to year, and successful inhouse counsel adapt accordingly. A yearly review is a good excuse to take stock, and ask non-legal colleagues for their view of the state of the organization. For example, has the past year seen expansion, perhaps a private company preparing an IPO, contraction of business, opening in new market places, legislative changes? How, on a broad level, has this affected the organization as a whole? In particular, understanding how your commercial and financial colleagues view both the current landscape and how the legal function fits into it can be invaluable to determining how to take the role forward.

Inevitably, yearly reviews focus on compensation issues. As with any discussion or negotiation, careful research is crucial. For an overview of compensation trends, The Counsel Network in conjunction with Ipsos Reid and The Canadian Corporate Counsel Association periodically publishes in-house counsel compensation and career surveys that report and benchmark compensation-related topics for Canada’s in-house counsel community. In addition, a professional recruiter will be able to provide “real time” information on compensation structures in the local market, and the strength of the in-house counsel job market generally. Depending on the organization, a better comparator may be the compensation of other in-house professional advisors within the organization itself, such as executive peers (finance and human resources colleagues) rather than in-house counsel elsewhere.

One of the biggest risk factors lawyers face going in-house is a general lack of guaranteed career progression, along with the perception that their technical development may stagnate as a result. In addition, compensation discussions are tied closely to the scope of the role itself, which can present challenges in justifying a pay rise without a corresponding promotion with the organization. However, one way to approach this is to consider how the in-house counsel role can be adapted, both to allow the job to remain challenging, and to better service the organization as it evolves. For example, in-house counsel may want to expand their role beyond strictly legal to other areas such as training, compliance, or matters traditionally outsourced. One counsel recently noted that at her yearly review, she proposed simple changes including updating precedent contracts and devising a training program for commercial managers on contract negotiation for lower value contracts. The net result was to free up more time for the lawyers to deal with complex and high risk contracts rather than farming them out to external counsel. This provided tangible evidence on which to justify both her request for a pay rise, and to expand her role out to compliance and policy matters affecting the organization. Keeping the above in mind will allow you to make the most of your next year end review. Next issue will cover what reviewers need to be cognizant of when conducting reviews in order to make the most of them. a Shekhar Parmar is a Director with The Counsel Network and can be reached at sparmar@thecounselnetwork.com

Leanne Cherry BA

LLB ACC

Career Coach for Lawyers Facilitator for Law Firms

403.202.8756 leanne@equilibriumfound.com www.equilibriumfound.com 18 | Law Matters

Fall Back to Pro Bono!

By Gillian Marriott, QC Summer is over and the busy Fall season has begun with an exciting cornucopia of events and projects hosted by Pro Bono Law Alberta that will create opportunities for Alberta lawyers to become involved in pro bono service delivery. Just Take 2 The Volunteer Lawyer Services (VLS) program expansion continues with the announcement of a new volunteer lawyer recruitment program called “Just Take 2”. The Just Take 2 campaign encourages current VLS volunteer lawyers through an incentive program, to refer a colleague to VLS and double the impact of this service to low income Albertans. VLS encourages all Alberta lawyers to consider joining the VLS program. To sign up call 403-541-4803 or email vls@pbla.ca. SMALL CLAIMS DUTY COUNSEL (SCDC) The SCDC Project was launched as a pilot project at the Calgary Courts Centre on October 4, 2011. The goal of the SCDC Project is to provide legal assistance to low income Albertans engaged in proceedings before the Small Claims Court who would benefit from advice from legal counsel. PBLA has been working with Pro Bono Students Canada (PBSC) on this project. The following law firms have agreed to provide volunteer lawyers for the pilot phase of the SCDC Project: McCarthy Tétrault LLP, Borden Ladner Gervais LLP, Fraser Milner Casgrain LLP and Gowlings LLP. The Small Claims Duty Counsel clinic will operate every Tuesday and Friday and will be ‘staffed’ by one lawyer and one PBSC student enrolled in the University of Calgary Faculty of Law. Lawyers who are volunteering with the SCDC Project will be providing summary legal advice and services, which may include attending court, to self-represented individuals who are engaged or are considering in engaging in civil litigation in Small Claims Court in Calgary. There are no financial eligibility requirements for clients of the SCDC Project. The SCDC project is designed to improve access to justice for Albertans and provide lawyers and law students with meaningful and rewarding volunteer opportunities. LEGAL GROUNDS ADVICE CLINIC Good things will be brewing at the Calgary Public Library on October 26, 2011 at the Legal Grounds Advice Clinic, held in conjunction with a Legal Resources Fair and noon hour information session on the justice system in Alberta. These three events will provide a ‘one stop legal shop’ for Calgarians to access free legal information from community agencies and free, confidential advice from volunteer lawyers. The goal of the Legal Grounds Advice Clinic is to provide free legal advice and information to Calgarians in a friendly, approachable environment. The Legal Grounds Advice Clinic is a one-day joint initiative between Pro Bono Law Alberta (PBLA), Calgary Legal Guidance (CLG), the Calgary

Public Library (CPL) and Macleod Dixon LLP. It is hoped that up to 100 people will receive legal advice provided by up to 20 – 24 volunteer lawyers. During the Legal Advice Clinic two other services will be provided for the public. An ID Clinic will be hosted by Calgary Legal Guidance and a documents assistance booth will be set up to provide assistance to individuals who need help with the completion of court forms and other documents.

Gillian Marriott, QC

In addition to Legal Grounds Advice Clinic, the Legal Resource Fair, held all day on the main floor of the Calgary Public Library, will provide Calgarians with the opportunity to learn about the legal services available in our community. “Alberta and the Justice System” is a noon-hour question and answer session hosted by Canadian Bar Association Alberta that will allow participants to learn about the justice system from a Judge, Prosecutor and Defense Lawyer. Both Legal Grounds and the noon hour presentation will be held on the second floor of the Calgary Public Library, at the John Dutton Theatre. PBLA is excited to be spearheading the Legal Grounds Advice Clinic in Calgary and hopes that it will become an annual event and perhaps hosted in other communities in Alberta in the future. LEGAL RESOURCE MANUALS AND ONLINE RESOURCE BANK This summer, PBLA updated our Legal Resource Manuals and distributed the updated information to all pro bono clinics in Alberta. In addition, a new online Resource Bank was created at http://www. pbla.ca/resourcebank/ The online Resource Bank will become a valuable resource for the clinics. The Resource Bank will include many of the resources found in the Resource Manuals, in addition to: links to relevant websites, court forms, automatically updated legislation and other resources available only online. As the Resource Bank has the ability to be updated in real-time – without the cost and labour involved in preparing manual updates – it is hoped that the Resource Bank will prove to be a valuable resource. The online Resource Bank will not be a public site, but will be available to volunteer lawyers, members of legal clinics, and law students. In addition to being able to access the resources already posted on the online Resource Bank user members will be able to host resources online for others to access. The idea is to promote the sharing of information, resources and knowledge between pro bono organizations from across the province. a

Law Matters | 19

c ro s s - s e c t i o n

Karen McDougall

N O RT H

From the desk of Karen McDougall

Welcome to another great season of CBA activity and CLE in Alberta! Jeremiah Kowalchuk and I are pleased to be taking over as the North section co-ordinators for the next two years. We replace and sincerely thank our predecessors, Jane Corns and Steve Mandziuk QC, who have both moved on to new challenges. In particular, Steve has joined the CBA-Alberta executive as secretary.

The SOGIC section will be a forum for discussion and the exchange of ideas among the CBA’s LGBTQ members and their supporters. It will focus this year on substantive programming in areas like criminal law, education, human rights and privacy law. Meetings will likely alternate between Edmonton and Calgary, involving attendees in the non-host city via Skype. The first meeting took place on Friday, October 14th. The topic was “Hate Crimes and Bullying”, and was to feature members of the Crown, the Calgary Police Service, a representative from the U of A’s Institute for Sexual Minority Studies and Services, and a co-chair of the Alberta Hate Crimes Committee.

Things are in full swing already. The fall workshop for new and returning chairs has taken place and most sections have held one or more section meetings. Congratulations to the inaugural executives of two new sections: Solo, Small and General Practice (North) and SOGIC (South and North) [Sexual Orientation, Gender Identity].

The first of only two Inns of Court evenings takes place (or took place, depending upon when this edition hits your desk) on Tuesday, November 15th, 2011. This program is sponsored by CBA Alberta, the Junior Lawyers North section and the Edmonton Bar Association. It involves a presentation by 4 members of the bench and bar on a particular topic, followed by an informal discussion among participants. This is a rare opportunity for junior barristers to dine out with members of the bench and discuss with them various legal topics. Because of the nature of this event, it is limited to 20 participants (each with their very own member of the bench at his/her table), so act early. If you miss November’s event, consider attending the second. Details TBA.

The Solo, Small and General Practice section is jointly chaired by Frank DeAngelis and Ed Gallagher. Ed says that they were looking for an opportunity to “bring together the Jeremiah Kowalchuk collective wisdom of solo, small firm and general practice lawyers” and to provide them with the means for networking, small firm advocacy and information on practice efficiency. The section met for the first time in September, with Ed as the speaker on the idea of “Dumping the Billable Hour”. The section will meet three more times this season, at the end of the work day to give out-of-town practitioners a chance to attend (and have a glass of wine). Their next meeting, scheduled for November 17th, will feature Cote J.A. on the topic of “Who’s In Control of Your Life – Time Management for Lawyers”. Plan to attend; if you can make the time. The other new section, SOGIC, is a provincial section, co-chaired by Frank Durnford and Alexander Yiu. The idea germinated in 1997, when SOGIC was established nationally as a new CBA Conference. Provincial sections have been popping up ever since. According to Frank, in 2010 the National SOGIC executive decided to focus on bringing SOGIC to Alberta. Interested people met in May of that year, and, by June had created the Alberta section, complete with an executive.

Mark your calendars and plan to attend the 2012 Alberta Law Conference, to be held in Calgary on January 26, and 27, 2012. Program details and registration information will be sent out to the membership in November. Lastly, warm congratulations on two counts to Arman Chak, counsel for the Alberta Human Rights Commission. Arman has been awarded the National CBA Young Lawyers Pro Bono Award, which recognizes outstanding pro bono legal services by a Canadian lawyer younger than 40 or practicing for less than 10 years. Arman is also this year’s recipient of the Eileen Nash award, which recognizes the pro bono support of Edmonton area charitable causes by a lawyer. He accepted that award at the annual EBA judge’s dinner, held on September 29th in Edmonton. More section news in the next Law Matters. Until then, we hope you are having a wonderful fall. a

PREMIUM FURNISHED OFFICE SPACE AVAILABLE IN NEW LAW FIRM Canyon Meadows - Elbow Drive & Canterbury Drive SW One large executive office on main floor. Cost-sharing with nine other lawyers in two floor building built in 2010. Two large boardrooms, reception area and lunch/TV room available. Legal Assistant space available, if required. Onsite parking available for clients and your vehicle.

Contact L. James Thornborough Thornborough Smeltz LLP Barristers, Solicitors & Notaries Public 11650 Elbow Drive SW Calgary, AB T2W 1S8 (403) 271-3221

20 | Law Matters

everard & kubitz Ron Everard, Q.C. Walter Kubitz Susan Fisher

260, 600 Crowfoot Cr NW Mailing Address: Box 1020, 105-150 Crowfoot Cr NW Calgary, AB T3G 3T2

(403) 250-7100

S OUT H

From the desk of Curtis Serra

c ro s s - s e c t i o n

Welcome back to the section lunch seminar season and thank you once again to those who volunteer their time and efforts to be section Chair Persons and executive members. These volunteers, along with the CBA staff, ensure that CBA meetings provide professional developmental benefits, networking and learning opportunities to all association members.

On September 12th, 2011 Birch Miller and I attended the CBA’s welcome reception at the University of Calgary to introduce the CBA and its benefits to law students. The reception was very well attended and had a significant number of students enrolled.

I would also like to thank those who volunteer for the CBA mentor program, which has been a huge success. The Mentor Reception was held on October 14th, 2011.

I’d also like to give you a quick reminder that the Alberta Law Conference is being planned with comprehensive continuing legal education, including a special panel on advocacy to be attended by members of the Court of Queen’s Bench and the bar together. Watch for the brochure in this issue.

The CBA has a lot of new initiatives and developments for the 20112012 Section Year. In August of this year the CBA rolled out a new online registration system, which has been a great success and allows members to easily register for sessions. In October our two new sections (Sexual Orientation, Gender Identity Law and Sole, Small Firm and General Practice Law) had their inaugural section meetings and both groups have strong membership numbers.

Birch Miller

We’re looking forward to a great year at the CBA! a

Please note that Immigration (South) is also offered via webcast $50 plus GST, available to CBA members outside of Calgary To add this to your sections registration please email sections@cba-alberta.org or register online www.cba.org/alberta

Curtis Serra

FACULTY OF LAW WELCOMES A NEW DEAN By: Odette Diaz-Tully, Development, Communications & Alumni/ae Affairs Officer, University of Calgary

From unpacking boxes to Stampeding to meeting with members of the University community, it’s been non-stop for Dr. Ian Holloway, who commenced a five-year term as Dean of the Faculty of Law effective July 1, 2011. The Calgary Stampede provided a warm Western welcome and plenty of opportunities to network with the campus and downtown communities. “It’s a thrill to join the University of Calgary at this exciting time in its development, and I can’t imagine a better way to be introduced to the city of Calgary than through the Stampede!”

About his move to Calgary, Holloway states, “The UofC has a long-standing tradition of excellence that is recognized across Canada and around the world. What makes Calgary Law stand out is its dual focus on skills education and on natural resources, energy and environmental law. In no other law school can one find the same blend of student-centeredness, commitment to skills development, and focus on the challenges facing the Canadian and global economies in the twenty-first century.”

With the recent QS World University Rankings and an upcoming fundraising campaign to support the goals of the Faculty’s strategic plan, Dean Holloway is Dr. Ian Holloway well positioned to strengthen the faculty, enrich the Dr. Holloway served as Dean of Law at the University student experience, focus on research, and build closer of Western Ontario from 2000 to 2011. His deanship connections to the legal community. at Western Law involved an extended period of institutional Faculty, staff and students are excited to work with Dean renewal, characterized by sharpening the school’s strategic Holloway and have been impressed by his energy and keen focus and a significant thrust towards internationalization. interest in learning about the law school’s operations and ambitions as well as cultivating relations with local and national A native of New Brunswick, Holloway has studied and worked law firms and various institutions and centres. in the US, Australia, Great Britain, Singapore and Oman. He is the author of several book chapters and law review articles. Holloway is both a Queen’s Counsel and an elected member Known for his inclusive and collaborative management style, of the American Law Institute. Before joining the academy, Dr. Dr. Holloway has already enjoyed over 30 introductory and Holloway worked in private practice with the Halifax law firm exploratory meetings since his arrival. His interpersonal skills of McInnes Cooper, focusing on labour and administrative law. will surely be one of the Faculty of Law’s strongest assets over the next five years. a Law Matters | 21

22 | Law Matters

ADVERTISING INTELLECTUAL PROPERTY. Let us work with you in protecting your clients. Patents, Trademarks, Copyright. Stemp & Company, Lawyers and Patent Agents, 233, 1100 - 8 Avenue S.W. Calgary, AB, T2P 3T8. 1-800-665-4447. TOP OF GOOGLE – We will get your name To the Top of Google whenever anyone, anywhere searches for a lawyer in your exact practice area in your city. 3 ways - we do them all. ONE is via the Google Adwords system. TWO is we help you set up your Google “Place” page (free). THREE is INCREDIBLE. We put your name (exclusive) and logo etc. on our websites that are already at the Top of Google. We make them totally yours. Call Keith Perkins (16-year lawyer) at Canadian Lawyer Websites Inc. 780-909-5610. NW CALGARY OFFICE SPACE AVAILABLE (Independent Practice) established law office in the Market Mall Professional Centre. Confidential inquiries to Blake Nichol 403-288-6500 x 229. SALE OF LAW PRACTICE I have decided to retire after 31 years of practice and would like to pass my clients on to another lawyer who shares my views of the practice of law. My law firm is located in Sherwood Park with most of my clients coming from the greater Edmonton area. My major areas of concentration are corporate/commercial, real estate and estate matters. In my view, this would be an excellent opportunity for a young lawyer to take over a “turnkey” practice which ahs an established client base and low overhead. I would be prepared to assist my successor in ensuring a smooth transition. For further details, please contact me in confidence at nicolian@connect.ab.ca. EXPERIENCED LEGAL ASSISTANT/SECRETARY available to work from home evenings/weekends. Jennifer Dentzien 780-691-8559. SEEKING LAST WILL AND TESTAMENT of LARRY EUGENE FIELD of NE Calgary. Died April 23, 2010. Will believed to be made within the last 7 years. Please reply: S. Edgar 5024 - 47 Street Innisfail, AB T4G 1M3. P: 403-227-2976. SEEKING LAST WILL of JOHN YUK LUNG WONG of Calgary, Alberta, who died on July 2, 2011 in Hong Kong at age 67. Contact Alice Ho or Lena of Ho MacNeil at 403-233-2812 or lena@homacjen.ab.ca. URGENT: Seeking last will and testament of WALTER FRED NEESER of High River, AB, who died on October 3, 2011 at his residence. Please contact his daughter, M. Storey at 403-202-3088 or margi@newstartventures.ca.

CLASSIFIED LINE RATES: Lawyers, for non-profit purposes $15 (i.e. will search) Lawyers, for profitable purposes $22 (i.e. employment) Commercial - any company or $33 association (except lawyers)

DISPLAY RATES: Business card size One-quarter page One-third page One-half page Two-thirds page Three-quarters page Full page

INSERTIONS: Per piece - distribution over 9,500 $3,300 Specific postal code areas Pro-rated (Printing not included)

$440 $880 $1,100 $1,540 $1,980 $2,530 $2,970

Rates effective September 1, 2010. A 10% discount is applied on a four issue commitment. G.S.T. not included. Publication of advertising in Law Matters by the Canadian Bar Association Alberta is not an endorsement of the advertiser or of the product or service advertised. No contractual or other relationship between the advertiser and the publishers is implied merely by publication of any advertisement in Law Matters. For complete advertising information, visit cba.org/alberta.

classified et cetera NO TIME OR RESOURCES FOR RESEARCH? Over 10 years as research lawyer. Derek Jackson, Barrister & Solicitor, Legal Research (AB ‘87, B.C. ‘89). Toll-free 1.888.875.4785, E-mail derekjackson@telus.net or go to www.derekjackson.ca. Quality Research Gives You The Edge. THOMPSON WOODRUFF INTELLECTUAL PROPERTY 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. DOWNTOWN EDMONTON LAW OFFICES. Opportunity for two lawyers to share space in Sun Life Place (near Court House and Land Titles Office) with opportunity for commercial litigation referrals from three solicitors. Turn-key support available. Contact Terry at (780)423-2481 or by email at tmcevoy@braullaw.ab.ca WORK IN THE PARK - PLAY IN THE CITY Want to fly solo yet have the security of practicing in association with other lawyers? General solicitor’s practice for sale in Sherwood Park. Primarily wills and estates, small business, and real estate. Will provide lengthy transition and locum coverage for vacations or leaves. Call Hilary Tanasichuk at The Law House 780-449-3741, ext 222. OFFICE SPACE ON A COST SHARING BASIS available for lawyer with independent practice with an established general practice firm in N.W. Calgary, Alberta. Some referral work available. If interested forward resume to lena@homacjen.ab.ca. FOR SALE: THRIVING SOLICITOR’S PRACTICE consisting of real property, corporate, wills and estates and municipal for sale in Pincher Creek, Alberta. Owner would work part time for purchaser for 5 years. Potential for matrimonial, civil litigation and criminal. Purchaser must relocate to the Pincher Creek area. Pincher Creek, population approximately 3700, is a progressive service centre for southwestern Alberta. The rural area, approximately 3600 population, consists of ranching and farming. Pincher Creek is 60 kms north of Waterton Park and close to Castle Mountain Resort, a major ski hill. For details, please contact Douglas J. Evans, QC, of P.O. Box 2530, 985 East Avenue, Pincher Creek, Alberta, phone (403) 627-2877, fax (403) 627-4495, e-mail jasman_evans@shaw.ca.

Post Conference Training

May13 13--17, May 15, 2012 2012

Different Types of Reasons for Different Types of Cases May 16, 2012

National Administrative Administrative National Conference Law Law Conference in Calgary Calgary, AB

Interpreting Legislation May 16 & 17, 2012

www.ccat-ctac.org

www.foaj.ca

www.foaj.ca Law Matters | 23

CBA-ALBERTA

This initiative is governed by Notice to the Profession NO#2011-03 dated September 30, 2011. The overall objective of this initiative is to assist in the orderly, proportionate, focused and expeditious handling of civil files (including family) streamed into case management in the Judicial Centres of Edmonton and Calgary. Actions in Case Management may be referred by the Court to Case Management Counsel for an initial meeting or in circumstances deemed appropriate by the Case Management Justice. While our job descriptions are a work in progress, and to the extent that this is a dynamic issue, it is expected that the duties and responsibilities of Case Management Counsel may include: • • •

Vice President Marian V. De Souza

Past President

Assisting to narrow and or resolve issues; Assisting with scheduling and the development of litigation plans; Providing guidance to parties, including discouraging unnecessary/inappropriate applications; • Vetting applications to ensure parties are in a position to proceed; • Monitoring and assisting in the management of the litigation; • Facilitating the preparation of consent orders for presentation to the Case Management Justice; • Directing parties to appropriate services and procedures, including dispute resolution processes; • Attending Case Management meetings between the Case Management Justice and parties/counsel as directed by the Case Management Justice; and • Reporting and providing advice to the Chief, Associate Chief and or Case Management Justice as required. In Edmonton, meetings with Case Management Counsel, Sandra L. Schulz, QC, can be booked through the Case Management Coordinator, Sharon Hinz, at (780) 644-7389.

Cyril S. Gurevitch, QC

Jeffrey D. Wise

Secretary

One of the new initiatives for which the Alberta Government and the Court of Queen’s Bench should be commended is the creation of two new positions for Case Management Counsel and the recent appointment of myself, Sandra Schulz, QC, in Edmonton, and Susan BorsicDrummond, in Calgary, to fill these positions.

Steven Mandziuk, QC

Executive Director

By Sandra L. Schulz, QC

President

Case Management Counsel at Queen’s Bench

EXECUTIVE

Treasurer

New Initiatives:

Analea M. Wayne

Terry Evenson

In Calgary, meetings with Case Management Counsel, Susan Borsic-Drummond, can be booked through the Case Management Coordinator, Sheila O’Brien, at (403) 297-2455.

JUDICIAL LIST COURT OF QUEEN’S BENCH Craig M. Jones, QC was appointed Justice of the Court of Queen’s Bench of Alberta in Calgary effective September 30, 2011. Judge B.A. Millar (Calgary Provincial Court, Criminal) has been appointed to Calgary Court of Queen’s Bench, effective October 21, 2011.

PROVINCIAL COURT Judge K.L. Rostad (Camrose) was reappointed as a part-time judge for 1 year effective September 7, 2011. Judge R.J. Wilkins (Calgary) was designated as Acting Assistant Chief Judge for 1 year effective September 16. Judge P.M. Caffaro (Edmonton) was reappointed as a supernumerary judge effective October 16, 2011. Judge C.L. Daniel (Calgary) was appointed as a part-time judge effective November 6, 2011.

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

Matters’ e-mail: communications@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