BarNotes Summer 2019

THE CANADIAN BAR ASSOCIATION • SASKATCHEWAN BRANCH

SUMMER 2019

VOL. 33.3

Section Registration Open | Order your Legal Directory at www.cbasask.org

IN THIS ISSUE

The Canadian Bar Association Saskatchewan Branch 305, 135-21st Street East Saskatoon SK S7K 0B4 www.cbasask.org

BARNOTES Editorial Board HANNAH ZIP Editor NICOLE HAMM Olive Waller Zinkham Waller LLP

FEATURE COMMENTARY 10

11

CREATE Justice Update: Data Informed DecisionMaking and Saskatchewan's Justice Sector Inventory Project

Diversity and Inclusion

15

The Bumpy Road to Inclusion

BRANCH NEWS 3

Editor's Notes

5

Presidents Reports 2019-2020 Board of Directors

COMMENTARY 9

Closely Held Corporations: Avoiding the Messy Breakup

18

Tax Litigation 101: Objections and Appeals

20

When Can an Employee Sue an Employer? A Primer on S. 43 of The Workers' Compensation Act 2013

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BRANCH AWARDS

TONYA LAMBERT Student − College of Law

Service Award

AMJAD MURABIT Saskatchewan Human Rights Commission

Connie den Hollander was awarded the 2019 Community Service Award.

JAMES STEELE Robertson Stromberg LLP

FROM THE BENCH

MONTEEN DENT Executive Director CBA Saskatchewan

6 Community

Canadian Bar Association Access to Justice Sub Committee Report

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28

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22

LEAH HOWIE Law Reform Commission of Saskatchewan

Update from the Courts: Court of Appeal

23

Update from the Courts: Court of Queen's Bench

24

Update from the Courts: Provincial Court

27 STUDENT HUB U of S Graduate to Clerk for Supreme Court Chief Justice Wagner

30 PRO BONO

SPOTLIGHT PBLS Launches Two New Clinic Programs

ITEMS OF INTEREST Advertiser Index

31

Calendar of Events

31

LAYOUT & DESIGN Katrina Forgrave Graphic Designer

BarNotes is a publication of CBA Saskatchewan which is published 3 times a year. This publication is intended for information purposes only and should not be applied to specific fact circumstances without the advice of counsel.

CBA Saskatchewan represents more than 1,100 members and is dedicated to improving access to justice, reviewing legislation and advancing the administration of justice.

Contact Monteen Dent, monteen@ cbasask.org for information on advertising. © CBA Saskatchewan 305,135 – 21st Street East Saskatoon, SK S7K 0B4 www.cbasask.org

EDITOR’S NOTES

JUSTICE FOR ALL HANNAH ZIP LETTERS TO THE EDITOR hannahzip@gmail.com

Access to justice is by no means a new topic, but it is increasingly relevant and this issue of addresses the different elements of access to justice, as named by the Chief Justice of Canada in his quote above.

National statistics and studies abound, but specific figures relating to Saskatchewan’s population are a missing piece in the puzzle. How can we fix something when we don’t know exactly which components are broken? In this issue of you will see that data collection in Saskatchewan is currently being conducted by CREATE Justice’s Justice Sector Data Inventory Study to address how to best provide access to justice provincially by gathering data to fill in this gap. If your firm would like to participate in this endeavour, you can find Brea’s

contact information at the bottom of her article.

The national CBA Access to Justice Subcommittee, with the mandate to improve and promote access to justice for the poor and middle class, is chaired by Saskatchewan’s own Kylie Head, Q.C. Pro Bono Saskatchewan is doing their part with the launching of two new legal clinic programs to service the francophone community and those going through family disputes. You can read about these important initiatives and more in the pages ahead.

While access to justice and legal services is certainly an issue for those with economic restraints, there are other marginalized members of society that struggle with enforcing their legal rights, particularly the LBGTQIA+ community. Barton Soroka has written a thought-provoking article in which he challenges us to examine our definition of “diversity” and to question whether we merely tolerate diversity, with the caveat that it isn’t noticeable, or if we actively encourage diversity.

Client’s want lawyers who remind them of themselves. How can this be accomplished without noticeable diversity within the profession?

to promote equality and inclusion within the legal profession that is facing opposition by its members.

Racism and discrimination are a barrier to access to justice, as we carry our biases with us. Surely the public can pick up the cues that makes them feel uncomfortable, leading to a mistrust and avoidance of the justice system.

The articles contained in this issue of raise some tough questions that require difficult conversations.

In ensuring everyone has access to justice, we need to consider every one.

In her article, Beth Bilson, Q.C., draws attention to the persistence of racism and discrimination within our profession, as illustrated by the Law Society of Ontario’s efforts

SUMMER 2019 3

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BRANCH NEWS

PRESIDENTS REPORTS NICHOLAS CANN MCKERCHER LLP

The obligatory format for all “outgoing president” messages is to note how much you appreciated the position, highlight some activities of the past year, thank the people who really did all the work, and introduce the incoming President. So, here goes…

It has been my absolute privilege and pleasure to serve as President of the Saskatchewan Branch over the past year. It was an unparalleled opportunity to meet with friends and colleagues from all over Saskatchewan and Canada who are members of our outstanding organization.

In 2018 – 2019, the Branch coordinated a number of activities, including the 2019 Mid-Winter Meeting in Saskatoon, participating in the Access to Justice Forum at the University of Saskatchewan College of Law, and our Law Day events. These valuable services can only be provided as a result of the hard work of volunteers from the Saskatchewan Bar and the Judges and Justices of our Courts who generously devote their time to benefit the profession and the public. At the Provincial and National level, the CBA continues to promote inclusivity, access to justice, connecting members to the people, knowledge, skills in order to be successful within the profession, and advocacy on issues that shape our profession and advance the rule of law.

Our Saskatchewan Branch remains as strong as it is due to the generous service of its volunteers and I am

very grateful to Monteen Dent and Jodi Snow at the CBA Saskatchewan office and the Branch Council and Section Chairs for their hard work and dedication. My particular thanks to the CBA Saskatchewan Board members: Loreley Chekay, Chris Weitzel, Reché McKeague, Charmaine Panko, Kathryn Gilliss, and Past President, Mr. Justice Neil Robertson. It has been a rewarding and fulfilling year and I am pleased to pass the torch to your incoming President, Loreley Chekay.

LORELEY CHEKAY SASKATCHEWAN GOVERNMENT INSURANCE lchekay@sgi.sk.ca (306) 751-1221

Following in the footsteps of Nicholas Cann Q.C. and other great CBASK Presidents will be no small feat.

However, given the leadership, guidance and friendship they have all shown, which no words can express how much I value, I am up for the challenge.

As I begin this new journey with you, I want to share some of the priorities that CBASK is looking to work on over the next year or more. This coming year will be one of excitement and challenges. As you are all aware the CBA has changed and transformed over the last few years. The organization continues to make efforts to modernize and adapt to the needs and demands of the membership.

Sections has been identified as one of our key priorities. They provide a multitude of benefits to members including substantive content, legal discussion with colleagues and

opportunities to meet with members of the Judiciary. For the 2019-20 year, Sections will have the ability of operating from September through to June allowing for greater flexibility in providing valuable content and opportunities to members. I invite every member to access the Sections you find interesting and relevant.

Sections can only be as great as the members who use them. So please attend and enjoy.

As members of the legal profession, it is imperative that we identify and develop a strategic plan for how the Branch and we legal professionals can participate and respond to the Calls to Action as outlined in the Truth and Reconciliation Commission Report.

The Branch is planning to incorporate aspects throughout the year utilising section topics and the Presidents Forum at the Mid-Winter meeting.

With input from our members and our communities, we hope to begin this journey and develop strategies for the long term.

And of course, Access to Justice continues to be a key initiative across the country.

I am looking forward to an exciting and challenging year as President, along with the other members of your Board: Chris Weitzel, Reché McKeague, Kathryn Gilliss, Jana Linner and Charmaine Panko.

There is no CBA without you, the members. So please provide me or any of the other Board members with ideas and suggestions on how we can serve you better. And of course do not hesitate to contact any of us with questions or concerns.

SUMMER 2019 5

BRANCH AWARDS

CELEBRATING OUR VERY BEST 2019 COMMUNITY SERVICE AWARD RECIPIENT - CONNIE DEN HOLLANDER || INTRODUCTION CHARMAINE PANKO

balanced her professional life with volunteer activity, mentorship in the legal profession, and parenting her two children.

Connie den Hollander has an extensive history of contribution to community. She has been a Member of, on the Board and Executive of, and/or a Presenter to: • The Saskatoon Women’s Network • Women Entrepreneurs of Saskatchewan • Third Avenue Centre CONNIE DEN HOLLANDER || KNOTT DEN HOLLANDER

The Canadian Bar Association Community Service Award recognizes the valuable service of our members serving the communities in our province who have demonstrated outstanding dedication, service, and commitment to the community.

In order to be considered for this prestigious award, the nominee must have made exceptional contributions and/or achievements using volunteer skills for the betterment of the community or a non-profit organization and to have exhibited the highest standard to professional conduct and competence.

The recipient of this year’s award was raised and educated in Saskatoon, was called to the Bar in 1992, has been a partner for over 20 years at the Knott den Hollander law firm, and has

6 BARNOTES

• Betty Ann Heagie Women-torship Program • Home Based Business Association • Public Legal Education Association • U of S College of Law, the CPLED program, the Legal Aid Commission, SKLESI (as it was then), the Law Society of Saskatchewan, the International Academy of Collaborative Professionals, the Collaborative Practice Canada Steering Committee, the Law Reform Committee, and the CBA.

And the list does not end there.

Connie has been a long term member and contributor to three more extremely important organizations, all of whom wrote letters in support of her nomination: Family Service Saskatoon is a non-

profit, community-based organization that serves individuals, families and the community to nurture safe, healthy and respectful relationships.

Connie has been a volunteer on the Board of Directors since 2011 and the Chair for the last 6 years with well over 500 hours of service to the agency. Her overall leadership and expertise has been invaluable to this organization.

CLASSIC is the community legal clinic in Saskatoon providing free, professional legal services for low income members of our community who otherwise cannot afford legal advice or representation. CLASSIC operates a few different program areas and one of their programs is the Legal Advice Clinic referred to as LAC. LAC allows clients who have legal issues in the areas of criminal, family, or civil law to speak to a practicing lawyer for a half hour appointment. These appointments are to assist people who do not have legal counsel and who are self-represented. As a LAC volunteer for over 10 years, Connie has met with and provided summary advice to over 200 clients in the area of family law. Not only has Connie contributed by assisting these clients but by doing so she has also mentored countless students who work alongside her as note takers, helping them learn about different practice approaches and areas of law.

The Collaborative Professionals of Saskatchewan Inc. (CPSI)

BRANCH AWARDS

promotes and trains professionals in collaborative process which is a form of alternate dispute resolution. CPSI operates with a volunteer board, the member of which do not receive any remuneration and have to cover their own expenses. Connie was first on the CPSI board in 2004 until 2012 and then again from 2013 onwards. She is described as positive, hard-working, talented and very knowledgeable, having a passion and vision for the organization, never shying away from difficult work. Connie works tirelessly to promote this form of dispute resolution by offering workshops, training and presentations at the College of Law, CBA, and through the CPLED program while also serving as a judge for moot competitions, and as a coaching assistant for the Family Law Negotiation Moot Team. She is identified as a mentor and role model by her thoughts, words and deeds, having been formally recognized for her excellent reputation by being designated as one of Canada’s leading practitioners in Family Law by the Canadian Legal Lexpert® Directory.

And all that while keeping the tidiest desk I’ve ever seen!

I am honoured to have known Connie over the years as a trusted colleague, mentor, role model, wine connoisseur, and most importantly, my friend.

Please join me in congratulating Connie den Hollander, this year’s recipient of the CBA community Service Award!

NOW ACCEPTING NOMINATIONS Queen’s Counsel Designation October 3

Distinguished Service Award November 15

Saskatchewan Branch Treasurer December 15

Elected Members of Council December 15

Nomination Forms & Information: cbasask.org

SUMMER 2019 7

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8 BARNOTES

COMMENTARY

CLOSELY HELD CORPORATIONS: AVOIDING THE MESSY BREAK-UP TRAVIS KUSCH ROBERTSON STROMBERG LLP

Introduction

In Saskatchewan, particularly in the farming realm, family members are often eager to enter into business together with a goal of building a sustainable future.

When they choose to incorporate, they often name their wives, husbands, children and/or parents as shareholders.

The parties then draft simple articles and bylaws that provide little to no guidance on the structure and practices of the business. Of course, being family, when they set out to start this corporation, no one envisions it could end unpleasantly.

Without proper documentation of each shareholders rights and obligations, the parties leave the future of their corporation to chance. In the event the parties can no longer work together or there happens to be a divorce in the family, the parties are left without any guidance on how to dissolve the working relationship. The parties, already frustrated and unwilling to work together, are often forced to liquidate and wind-up their life’s work, leaving everyone dissatisfied with the result.

By implementing standard procedures early on in the relationship, the family business can be preserved.

How to Avoid the Breakdown

A common problem with the closely held family corporation is the handshake agreement. Family members typically don’t foresee a breakdown in communication and think formal

documentation is unnecessary. Funds are used as the parties see fit without planning and documentation. Parties don’t record how and when to issue dividends, how decisions on purchasing equipment and inventory should made, or which shareholders have decision making power.

In order to avoid these, and other problems, it is suggested that the parties document their planned business practices. The most common form of doing so is a Unanimous Shareholders’ Agreement.

A Unanimous Shareholders’ Agreement governs the rights and responsibilities of current shareholders. It also provides guidance for new shareholders going forward. Pursuant to s. 140 of (Saskatchewan) (and s. 146 of the ), all new shareholders are also bound by the Unanimous Shareholders’ Agreement.

In the family setting, where there is the possibility of marriage or children being born, it is important that new shareholders are aware of their rights, responsibilities and obligations prior to becoming a part of the business. The Unanimous Shareholders’ Agreement does just that.

Have Difficult Conversations Before it is Too Late Not only are parties unaware of how their interests will be affected while the business is running smoothly, they often do not face the difficult conversation of what happens when the business relationship goes south.

In order to avoid these issues, a Unanimous Shareholders’ Agreement should contemplate the inclusion of a

“shotgun clause.” While each clause is unique, generally the shotgun clause provides a method for valuing shares of a company and contemplates how a buy out might take place. From there, the shotgun clause can do one of two things: 1. Provides the shareholder wishing to sell their shares with the ability to offer them to the remaining shareholders at a value dictated by the terms of the agreement. Should the remaining shareholders refuse to purchase same, the shareholder who initially wished to sell their shares may purchase all shares in the company for the same value originally offered; or 2. If neither party wishes to sell their shares, per se, but can simply no longer work together, they each submit a sealed bid for the other’s shares.

The highest bidder is left to purchase all of the shares in the corporation at the bid price.

Where there are more than two shareholders and different classes of shares, the shotgun clause will be tailored to meet each corporation’s specific needs.

The above suggestions are presented as alternatives to prolonged litigation to decide the fate of the family business.

Often when the Court becomes involved, there are no winners, but rather broken family relationships and frustrated individuals.

Conclusion

When it comes to family corporations it is best to plan for the worst and hope for the best. Entering into a Unanimous Shareholders’ Agreement should be at the forefront of every shareholder’s mind.

A thorough Unanimous Shareholder Agreement puts every shareholder on notice as to their rights and obligations.

Most importantly, it provides the shareholders with a method to leave the corporation without leaving the business or family relationship in turmoil.

SPRING 2019 9

FEATURE COMMENTARY

CREATE JUSTICE UPDATE: DATA INFORMED DECISION-MAKING AND SASKATCHEWAN’S JUSTICE SECTOR INVENTORY PROJECT HEATHER HEAVIN

MICHAELA KEET

ASSOCIATE DEAN RESEARCH AND GRADUATE STUDIES

PROFESSOR , COLLEGE OF LAW, U OF S

BRENT COTTER, Q.C.

BREA LOWENBERGER

PROFESSOR , COLLEGE OF LAW, U OF S

DIRECTOR OF CREATE JUSTICE AND ACCESS TO JUSTICE COORDINATOR, COLLEGE OF LAW, U OF S

Research Team: Heather Heavin, Associate Dean Research and Graduate Studies, Michaela Keet, Professor, Brent Cotter, Q.C., Professor and Brea Lowenberger, Director of CREATE Justice and Access to Justice Coordinator, College of Law, University of Saskatchewan. 1

access to justice research centre at the College of Law, University of Saskatchewan, engages in research, data collection and evaluation, and promotes action towards achieving access to justice provincially and nationally. Our revelation was this: As we engage in national efforts to develop “metrics” to measure Access to Justice, we would benefit from first taking stock of the Saskatchewan information base.

To align justice services with the needs of Saskatchewan people, we need to better understand the needs of those “system users”. We need to better understand who is accessing services and who is not, the quality and nature of their experiences, and what impediments exist to accessing justice services.

CREATE Justice has begun to try to fill that information gap in Saskatchewan.

Inspired by conversations at the Saskatchewan Access to Justice Network meetings and the 2018 Dean’s Forum on Access to Justice and Dispute Resolution (“the Dean’s Forum”)2, CREATE Justice decided to begin with taking stock of what information is being collected by a variety of civil justice sector service providers in Saskatchewan. CREATE Justice, the

10 BARNOTES

Purpose of the study:

The Justice Sector Data Inventory Study is grounded in the premise that data informed decision-making should be utilized to guide decisions about resource allocations and systemic improvements in the justice sector. ‘Data informed’ is distinct from ‘data-driven’ as data informed suggests other considerations, such as values and principles, may play an important role in system design and improvements. The other premise of this research was that the justice sector does not currently have a good understanding of what data is being collected in Saskatchewan about the civil justice sector (as opposed to the criminal justice, corrections and policing sector). As a result, the research team designed an on-line survey tool with the Social Sciences Research Lab (SSRL) at the University of Saskatchewan to help understand: • What information is being collected; • The purposes for which data is being collected; and • Whether information is being shared between justice sector organizations.

The project has encouraged us to use our collaborative “muscle”, as a sample of justice organizations shared information with us. It is also a good opportunity to encourage all involved in justice service delivery (including lawyers and law firms) to think about what information they collect. We have some ideas (and an invitation) to share with you below.

Another aim of the study was to identify impediments or gaps to data collection experienced in the Justice Sector and/or to identify whether any organizations that participated in the survey appear to be collecting and using data in ways that may be helpful to other organizations.

Twenty-four organizations

justice sector were invited to

Continued on page 13

FEATURE COMMENTARY

CANADIAN BAR ASSOCIATION ACCESS TO JUSTICE SUBCOMMITTEE UPDATE KYLIE HEAD, Q.C. CHAIR, CBA ACCESS TO JUSTICE SUBCOMMITTEE

Historically the CBA had three national committees with an access to justice focus: the Legal Aid Liaison Committee (created 1950); the Pro Bono Committee (created 2003); and the Access to Justice Committee (created 2011). These three committees merged into the Access to Justice Subcommittee in 2017 as part of the CBA Rethink governance restructuring process. I chair this fiveperson national Subcommittee.

The Subcommittee’s mandate is to coordinate and integrate activities of the CBA to improve and promote access to justice for the poor and middle class in Canada; to facilitate information sharing about legal aid and pro bono across Canada; and to liaise with legal aid and pro bono organizations. The Subcommittee has a number of activities underway which will be of interest to Saskatchewan members.

1. Federal Election Engagement Strategy #LegalAidMatters

In June the CBA unveiled its new federal election engagement strategy.

Its aims include: • to increase public awareness of the importance of legal aid and access to justice; and • to encourage political parties to commit to increased federal legal aid funding.

Tools have been developed to make

it easy for members to engage with both party leaders and candidates in the upcoming federal election. In particular, there is a letter writing tool on the CBA website which allows for the easy creation of customized letters to candidates in the election. The website will even provide the addresses of candidates as they are finalized in each riding. You can find key messages, information and statistics on the value of legal aid. Both CBA members and the public can download materials for social media use as part of a public awareness campaign. The CBA wants to engage the general public in the campaign because legal aid and access to justice are of concern to everyone. Head over to the CBA website and check out the options waiting there for you!

2. Experiential Learning Guide for Law Students

The Subcommittee, under the guidance of a Working Group of academics from various law schools, including the University of Saskatchewan, developed the in recognition of the value of experiential learning in building an access to justice consciousness in law students. The Guide aims to bridge learning in law school with work integrated learning experience. It explains the theory underlying experiential learning and provides a workbook with reflective practices and exercises to support students’ experiences. The Guide was launched during this academic year in law schools across Canada.

3. New Legal Health Checks

We will soon publish three more of our popular Legal Health Checks (Parenting

Plans, Tax Tips on Breaking Up, and Pensions Legal Health), with content developed by CBA Sections. There are currently 29 Legal Health Checks on a range of topics available on the CBA website, aimed at providing the public with tips to identify and avoid legal problems. For lawyers, these materials are a way to start conversations with people about the law, how to get legal help and how to work effectively with a lawyer. Diverse topics covered include wills, appearing before a tribunal, dealing with debt, separation and divorce, and immigration.

4. National Action Committee (NAC) on Access to Justice in Civil and Family Matters

The NAC is a prominent national network that facilitates collaboration amongst access to justice stakeholders.

The NAC Steering Committee meets in person once per year, typically in the spring. The CBA is pleased to represent the voice of the profession, and lawyers’ experiences with low-income clients, at NAC’s leadership level.

5. Recognition Awards

Once each year the Subcommittee will award the and the . Watch your inbox for a nomination call for each of those awards in the near future!

Additional Information

More information about each of these topics, and other access to justice focused work being undertaken by the CBA, can be found on the CBA website, www.cba.org.

SUMMER 2019 11

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12 BARNOTES

FEATURE COMMENTARY

Continued from page 10

participate and 19 did (2 declined and 3 did not respond to email requests).

The research team engaged SSRL to complete the data collection and worked with SSRL in the preparation of the report, which is available on the CREATE Justice website at law. usask.ca/createjustice.

Sample highlights from study:

• Almost all organizations surveyed are collecting some data (n = 18; 95.0%); • Most common impediments to data analysis: • Time (n = 15; 78.9%); • Personnel (n = 14; 73.7%); and • Technological infrastructure (n = 11; 57.9%), • User Feedback: • Very few collect any user feedback data; the category most collected is whether users were satisfied with the service (31.6%).

Most organizations surveyed collect data. The significant impediments to analyzing and implementing the results from data collection is concerning, and confirms the need for dedicated support and expertise to advance the goal of data informed

decision-making. The lack of user feedback collection is another concern and opportunity that CREATE Justice seeks to partner with organizations to advance.

Next steps:

The research team is currently considering next steps in response to the results of the study. One such step is coordinating with organizations to improve the collection of user feedback, and to conduct a publicfocused assessment of unmet justice needs in Saskatchewan. Recent national reports indicate that Canadians get help from lawyers for only 11.7% of their justiciable events3, however, the Saskatchewan-specific details of this statistic are unknown at this time. Conducting a public-focused assessment of unmet justice needs in Saskatchewan is an unprecedented step to establish a foundation and baseline for data informed decisionmaking for years to come.

CREATE Justice is interested in partnering and collaborating with interested lawyers on a variety of projects, including the needs assessment. One example of how

law firms could contribute to an assessment of unmet justice needs in Saskatchewan is sharing information with CREATE Justice relating to types of claims that potential clients have chosen not to proceed with and their reasons for abandoning the claim. If you are a lawyer or judge interested in learning more or getting involved with this or other projects4 at CREATE Justice, please email Brea Lowenberger at b.lowenberger@ usask.ca. For more information on CREATE Justice projects, please visit law.usask.ca/createjustice.

1 Thank you to Jessica McCutcheon and Stan Yu, SSRL, Janelle Anderson, former Crown Counsel, Justice Innovation Division, Ministry of Justice, and Melissa Nelson, CREATE Justice Summer Research Assistant for their contributions.

2 See related reports by former Dean’s Forum students Claire McCashin, Alex Santos, and Desiree Steele at law. usask.ca/deansforum.

3 Ab Currie, The Legal Problems of Everyday Life – The Nature, Extent and Consequences of Justiciable Problems Experienced by Canadians (Ottawa, Department of Justice Canada, 2015).

4 For example, CREATE Justice is a key coordinating organization of the Saskatchewan Access to Legal Information Project, the Saskatchewan Legal Coaching and Unbundling Project, the emerging Medical-Legal Partnership Project, and more.

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FEATURE COMMENTARY

DIVERSITY AND INCLUSION BARTON SOROKA MERCHANT LAW GROUP LLP

My name is Barton Soroka. I am a white, queer, cisgender man who graduated from the Schulich School of Law at Dalhousie University in 2017. I was the LGBTQ representative on the Dalhousie Student Union, a member of OUTLaw (our LGBTIQQ2SA+ campus group) and served on our Law Student Society Executive as first year exec rep, VP External, and President.

I was surrounded by incredible people from all sorts of backgrounds. Black and Indigenous People of Colour, non-binary folk, trans people, queer men and women across the spectrum.

I could spend every word of this article giving thanks, so I will single out Lee Staps. She was instrumental in radicalizing the way I exist. Thank you.

This is written to ask for introspection.

Look at your firm, and yourselves, and think about what “diversity and inclusion”—three words plastered on every hiring notice in this country— mean to you.

Jaime Burnet (credited as Mary Burnet) wrote an excellent piece while articling at Pink Larkin about “professional presentation” (Link: https://bit.ly/2Yvvelp) and its specific effects on queer legal professionals.

I asked a group of lawyers during a “Dress for Success Event” how they adjusted for their bias against individuals who dressed in a way that was unexpected. I will forever appreciate the honesty that I received: “I don’t. I hire people who fit my client’s culture.”

My résumé is full of Queerness.

I’ve represented and advocated for queerness and LGBTQ+ initiatives for years. I’m thankful—most firms won’t throw out a résumé because I’m a queer man anymore. I’m not sure if that was true ten years ago. When I submit a queer resume, I worry that people will assume I won’t fit in with their client, or their firm’s, culture.

Lawyers need to eat and advocate, and in about equal measure. Without clients, we wouldn’t be able to do either. We think we know what our clientele will be. We think that the average client is going to balk at the idea of Jon Lawsmith doing their intake with a fresh manicure of brightly painted nails. I’ve never seen the data to back it up, but studies are expensive and risk is risky. The traditional look has worked for so long, change seems like an unnecessary gamble.

When the person you’re interviewing clarifies that they use gender-neutral pronouns, the person you code as a woman corrects you and says “it’s he”, or you see the side of the head shaved with a pattern tattooed under it, you know that they just won’t fit in.

It is not exclusively queer people who are asked to dress differently in

a professional environment. Nobody wants to see the partner in a bathrobe.

But look at your firms hiring guidelines. If they talk about Diversity and Inclusion, ask yourself what that means. That you would be happy to hire someone who was LGBTQ+, but only if you couldn’t tell? Does that mean that you’ll stand by the new lawyer if the client says they don’t want to work with a “fag”? There’s no magic checklist here. There will always be people saying you haven’t gone far enough. But be honest about how far you’re willing to go. Do you accept diversity and inclusion, or do you encourage it?

While in law school, I was surrounded by people who not only accepted my Queerness, but celebrated it. In first year I wore makeup, tights, and heels to a major law school event. I was surrounded by peers I had known for a few months, professors from my classrooms, and members of the administration. After a few shocked looks, the rest of the night was full of kindness. Then my peers elected me to represent them as their VP External. Not once did I have to deal with anything mean-spirited. I credit that to a bit of “crowd control”— people who might have wanted to say something rude, mean, or cruel saw other people staying positive and kept their thoughts to themselves.

I am asking you to think about what you’d do if someone you perceived as a man applied with rainbow painted nails, or someone you thought was a woman in a suit and tie, or someone Continued page 16

14 BARNOTES

FEATURE COMMENTARY

THE BUMPY ROAD TO INCLUSION BETH BILSON, Q.C. UNIVERSITY OF S ASKATCHEWAN

These have been turbulent times for the Law Society of Ontario. As part of an ongoing effort to develop strategies for promoting equity in the profession, the Benchers decided in 2017 to require all practising lawyers to “create and abide by an individual Statement of Principles [SOP] that acknowledges your obligation to promote equality, diversity and inclusion generally, and in your behaviour towards colleagues, employees, clients and the public.”

The LSO left it up to its members to formulate their own statements, though they helpfully provided a template suggesting that the following elements should be included: • A recognition that the Law Society is committed to Inclusive legal workplaces in Ontario, a reduction of barriers created by racism, unconscious bias and discrimination and better representation of Indigenous and racialized licensees in the legal professions in all legal workplaces and at all levels of seniority; • My special responsibility as a member of the legal profession to protect the dignity of all individuals, and to respect human rights laws in force in Ontario; • A commitment to advance reconciliation, acknowledging that we are collectively responsible to support improved relationships between Indigenous and non-Indigenous peoples in Ontario and Canada; and,

• An acknowledgement of my obligation to promote equality, diversity and inclusion generally and in my behaviour towards colleagues, employees, clients and the public.

Though this was by no means the first Law Society initiative on this topic, it was certainly the one that provoked the most sustained and focused opposition.

In the Bencher elections of May 2019, 22 of the candidates running under the banner of “StopSOP” were elected, making them a majority of the lawyer members of Convocation. A “StopSOP” candidate also ran unsuccessfully in an unprecedented attempt to prevent the incumbent Treasurer of the society, Malcolm Mercer, from being elected to the customary second term. At the Convocation of June 27, 2019, the Bencher engaged in an eight-hour debate over a motion to repeal the SOP requirement. The status quo was in place at the end of this discussion, though it was clear that the issue would be brought forward at a future meeting.

I hasten to make it clear that I have not been involved in the discussion about this initiative, and cannot comment on whether the project was sufficiently consultative, whether the rationale was sufficiently well-articulated or what the full story of the StopSOP campaign might have been. I have, however, found it instructive to observe the exchanges from afar.

The commentary that surrounded the SOP issue was voluminous, largely articulate and mostly civil in tone.

Supporters of the StopSOP campaign presented the SOP as an assault on personal freedom inconsistent with the traditions of the legal profession

and reiterated their commitment to equality, while supporters of the initiative argued that, since earlier attempts to address the marginalization of lawyers from equity-seeking groups had not been successful, it was high time to try something more comprehensive.

These exchanges raised many important issues – whether a compulsory regime can be effective, whether the existing rules and policies had been demonstrated not to work, whether sufficient consultation with members of the profession had been carried out.

What is of concern to me, however, is the extent to which commentators opposed to the SOP denied the existence of racism and discrimination in the legal profession, and, indeed, seemed offended by the suggestion.

While it is true that more research needs to be done on the status of racialized and Indigenous lawyers and lawyers with disabilities, we can be sure on the basis of the information that we have now that those lawyers have more difficulty finding articling positions and subsequent positions, that they face discouragement and misunderstanding, and that they leave the legal profession in significant numbers. If the SOP is not the best route to a profession characterized by equality and inclusion, denial that there is an issue of discrimination to be faced does not seem like the best start to identifying what the best route would be. As one pro-SOP lawyer attending the marathon discussion on June 27 plaintively said, “I hear what you are trying to dismantle, but I don’t hear what you are trying to build.”

SUMMER 2019 15

FEATURE COMMENTARY

Continued from page 14

who indicates their preferred pronouns during their interview— especially if they’re “they/them”. What if your Articling Student suggested putting a “pronoun” section on your intake form. Or if Adam came to your office in a skirt and told you her name was Eve, and correspondence should reflect that from now on.

Diversity and inclusion are not—in my opinion—accepting people who are different from you when you can’t tell. I stand in thanks for every man who brought their male partner and woman who brought their female partner to events in the past.

But to me, diversity and inclusion

16 BARNOTES

mean work. They mean going above and beyond candidates you would normally hire and accepting someone who might not win on your “softs”— someone who’s qualified, intelligent, and hardworking, but otherwise does not fit in with what you’d traditionally consider to be in your client’s “culture”.

I do have an economics background.

I understand looking at every potential employee as a bundle of billables. Look at your current lineup of talent in the bullpen—what kind of clients your lawyers bring in. I’d suggest to you that there’s a growing group of sexual/gender diverse folk who are looking for lawyers who respect their identities and support their community. Not to mention

all the talented LGBTQIA+ people graduating from law school every year. In my opinion, it’s not only right to make room for genuine diversity.

It’s a competitive advantage.

I’ve spoken a lot from personal experience in this article. If you think there might be something I’m exaggerating, maybe your local LGBTQIA+ colleague could give you their thoughts. I bet they disagree with something I have to say. And if there’s nobody in your office that can offer that perspective, ask yourself why not.

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SUMMER 2019 17

COMMENTARY

TAX LITIGATION 101: OBJECTIONS AND APPEALS AMANDA S.A. DOUCETTE STEVENSON HOOD THORNTON BEAUBIER LLP

CHRISTINE LIBNER STUDENT-AT-LAW STEVENSON HOOD THORNTON BEAUBIER LLP

When a taxpayer files a tax return with Canada Revenue Agency (“CRA”), CRA will review the return and issue a “Notice of Assessment”. This document will identify what (if any) taxes are owing in the year, as well as any applicable penalties and interest.

Typically, the content of the Notice of Assessment mirrors the content of the tax filing.

However, even once a Notice of Assessment has been issued, CRA may contact the taxpayer to request further information about the original tax filing and/or to commence an audit. This can result in a change to the original Notice of Assessment, referred to as a “Notice of Reassessment”.

For individuals, the general rule is that an income tax year becomes “statutebarred” three full years after the date of the original Notice of Assessment, meaning that CRA can no longer reassess

18 BARNOTES

past that point. For a corporation, the statute-barred period is dependent on whether or not the corporation was a “Canadian-controlled private corporation” (CCPC) at the end of the tax year. If the corporation is a CCPC, the tax year becomes statute-barred within three full years after the date of the original Notice of Assessment. For non-CCPCs, the statute-barred period ends four full years after the date of the original Notice of Assessment.

There are a number of exceptions to this general rule regarding limitation periods. For example, there is no limitation on a reassessment by CRA due to a misrepresentation by a taxpayer that is “attributable to neglect, carelessness, or willful default”. The limitation period can also be extended in certain circumstances to permit a carry-back of a loss.

If a taxpayer does not agree with CRA’s assessment or reassessment, the taxpayer has the right to file a “Notice of Objection”. The objection process is an internal appeals process that must be commenced within 90 days from the “date of mailing” noted on the Notice of Assessment or Reassessment (as the case may be). It is possible to get an extension of time to file an objection up to one year after the original filing deadline. In order to get an extension, the taxpayer must ask CRA to grant the extension and provide the following particulars: • Within the original time limit, the taxpayer was unable to file an objection or instruct another person to file an objection on his/ her/its behalf or the taxpayer had a bona fide intention to object; • It would be just and equitable to grant the extension;

• The application was made as soon as circumstances permitted.

Extension requests are typically granted

by CRA so long as they are made within these parameters. It is important to note that no right of objection exists past this “extension” period. Further, these deadlines apply regardless of whether the taxpayer actually received the Notice of Assessment/Reassessment in the mail. It is the responsibility of the taxpayer to make sure that CRA always has his/her/its most up-to-date contact information.

There is no prescribed form for a Notice of Objection. However, CRA does have a template form available at www.craarc.gc.ca/E/pbg/tf/t400a/t400a-fill09e.pdf that can be used. In addition, if a taxpayer has set up a “My Account” through CRA’s website, it is possible to file an electronic objection through the “Register a Dispute” function on the website. At a minimum, we suggest that the following information should be included in the Objection: • The full name and contact information of the taxpayer. If the taxpayer is represented by a lawyer/accountant with respect to the objection, the advisor will need to make arrangements with the taxpayer to become “authorized” to make submissions on his/ her/its behalf. For further information, please see: https://www.canada.ca/en/ revenue-agency/services/tax/individuals/ topics/authorizing-a-representativeoverview.html • The tax year(s) subject to objection.

• A brief summary of what the taxpayer does not agree with and why.

• The following items should be attached to the Objection:

COMMENTARY

• Duly-executed authorization forms (if the taxpayer is represented by an advisor); • A copy of the Notice of Assessment/ Reassessment that the taxpayer is appealing; and • Any supporting documentation that helps to explain the taxpayer’s position.

This objection package can be mailed to the nearest Tax Services Office.

In Saskatchewan, there are offices in Regina and Saskatoon. We suggest that the taxpayer keep a full copy of the objection package for their records.

Approximately 30 days after filing the objection, the taxpayer will receive a form letter in the mail confirming that the objection has been filed, and asking the taxpayer to gather any additional documentation to ensure that he/she/ it is ready to discuss the objection when an appeals officer is assigned.

The wait time for a CRA appeals officer to be assigned to review an objection varies depending on the nature of the tax matters at issue. The wait time can range from 3 months to over a year.

An appeals officer can be assigned from anywhere in the country. As such, the taxpayer is typically communicating by phone or fax with the appeals officer to discuss the objection.

The appeals officer has three options in responding to the objection: (1) they can confirm the original assessment/ reassessment and issue a “Notice of Confirmation” (i.e., no changes); (2) they can vary the original assessment/ reassessment; or (3) they can “vacate” the original assessment/reassessment (i.e., the taxpayer wins). If a taxpayer is not satisfied with CRA’s decision regarding the objection, the taxpayer has 90 days from the date of mailing of the Notice of Confirmation or Reassessment (as the case may be) to appeal to the Tax Court of Canada (“TCC”). Appeals to the TCC can be commenced online through the electronic filing system of the Court.

There are two different routes that can be taken with a TCC appeal, depending on the circumstances. First, the TCC’s “informal procedure” is an expedited process (akin to small claims procedure) that is available in the following cases: • The aggregate of all amounts in issue does not exceed $25,000; or • The aggregate of all losses at issue does not exceed $50,000; or • The only matter in dispute is the amount of interest assessed.

There are a number of benefits to proceeding by way of informal procedure, including that the matter proceeds to a hearing following the close of pleadings without a requirement for formal discoveries or document exchange, and that a taxpayer does not need to have legal representation.

However, if your matter does not qualify for the informal procedure, then the appeal will proceed pursuant to the “general procedure” rules, which requires the payment of filing fees, legal representation (in most cases), and a more expansive set of procedural and evidentiary rules. In addition, because general procedure appeals require the completion of formal document disclosure and examinations for discovery, it can take much longer to reach the hearing stage.

Though this article has focused on income tax objections and appeals, it should be noted that it is also possible to object to reassessments for GST, payroll, CPP, EI, entitlement to different tax benefits, and other determinations made by CRA. The procedure for objecting may differ depending on the type of reassessment at issue.

SUMMER 2019 19

COMMENTARY

WHEN CAN AN EMPLOYEE SUE AN EMPLOYER? A PRIMER ON S. 43 OF THE WORKERS' COMPENSATION ACT. 2013 CURTIS CLAVELLE ROBERTSON STROMBERG LLP

This article addresses a single but important issue: when can a worker sue an employer for personal injury damages? For those who practise outside the employment law area, s.

43 of 2013, SS 2013, c W-17.11 (the “Act”) is not something lawyers encounter regularly. However, for anyone who may ever be called on to advise a business client who is facing a claim, or, perhaps a potential claimant themselves, this article will contain useful information for your practice.

Put simply, s. 43 of the Act provides that no worker has a right of action against an employer with respect to an injury to a worker arising out of and in the course of employment. To invoke s. 43, the Act does not say the employer must actually “employ” the very same worker who suffered the injury. In other words, any “employer” is provided with protection regardless of whether they employ the injured individual or not. S. 43 also provides that no employer can sue another employer in relation to injuries that a worker sustains on another employer’s premises.

The purpose behind this lies in a historical trade-off inherent in workers’ compensation legislation throughout Canada, whereby workers lost the right to sue their employers for work-

20 BARNOTES

related injuries, diseases, and deaths, but receive no-fault compensation. In principle, the trade-off is similar to the no-fault automobile insurance scheme operating in Saskatchewan.

S. 43 of the Act provides: Certain actions barred 43 No employer and no worker or worker’s dependant has a right of action against an employer or a worker with respect to an injury to a worker arising out of and in the course of the worker’s employment.

To explain s. 43 in real life, take the following example: a courier is delivering a parcel to a business. The courier slips and falls on a staircase located on the premises of the business.

The courier can no longer walk properly and may never deliver parcels again. Luckily for the business, which was registered with the Saskatchewan Workers’ Compensation Board (the “Board”), it will not face a lawsuit. The courier is statute barred from bringing a claim against either the business or the courier company by reason of the Act. The courier, in most cases, will be limited to claiming benefits from the Board.

The definitions of “employer” and “worker” are broad under the Act. “Worker” is defined as a person who works under a contract of service or apprenticeship, written or oral, express or implied, by way of manual labour or otherwise.

The Act provides protection to a wide range of employers. “Employer” is defined as any person, association, or

body having in its service any worker engaged in any work in, about, or in connection with, an industry in Saskatchewan. It specifically includes a list of employers, such as municipalities and school boards, to which the Act applies. There are exceptions to this rule for certain industries pursuant to s.

3(1) of the Act and s. 3 of (the “Regulations”). A notable exception is the farming industry. Any employer in the farming industry could not invoke s. 43 of the Act. Some of the other industries and workers excluded from the Act’s application include: • Artists and entertainers; • Owners who employ persons to construct or alter a residence; • First Nations Bands; • School teachers employed by a board of education; and • Voluntary workers, except those working in mine rescue or a municipal fire brigade.

It should be borne in mind that for an employer to gain the protection of s. 43 of the Act, the worker must injure him or herself in the course of their work duties.

One decision of the Board, referenced in passing in the decision in , 2018 SKQB 224, shows the extent of how broadly the term “injury” can be construed.

In an application before the Board, certain employees alleged that the floor manager of an esthetics supply wholesaler had committed sexual assault and battery during the course

COMMENTARY

of their employment. The employees sued the employer. The employer in turn brought an application before the Board for a ruling that the plaintiffs’ actions in tort were barred by the Act, as being in relation to injuries arising out of and in the course of the plaintiffs' employment with the employer.

The Board agreed, and found that the allegations of negligence, breach of trust and breach of fiduciary duty against the employer were claims that were barred by s. 43 of the Act. There are certain circumstances in which a worker can sue an employer for injuries arising in the course of the worker’s employment duties: • As previously mentioned, one such exception occurs when the worker and employer operate in an industry excluded from the Act’s protection, such as the farming industry;

• If the worker is excluded from the Act’s application but the employer is not, the worker can still sue the employer for personal injury damages since the worker does not fall within s. 43 of the Act. For example, s. 3(u.1) of the Regulations excludes from coverage any person who is employed by a university and who serves as a professor. If a university professor is injured on the job, he/she may sue the university, although the university itself is not exempt.

• Similarly, if the employer is excluded from the Act’s application but the worker is not, the worker could sue the employer for personal injury damages. For example, a truck driver delivering goods to a farm would not be prevented from suing the farm for personal injuries received from tripping on a hazard located on the farm. This is because farms are excluded from the Act’s application.

3(7) Nothing in this Act precludes a worker employed in an industry not covered by this Act or the worker’s dependants from taking legal action to recover damages if the worker suffers injuries arising out of and in the course of employment.

Conclusion:

Each year, there are a number of reported decisions in which Courts are called on to apply the statutory bar contained in workers’ compensation legislation. The fact that such cases continue to arise demonstrates that not all parties understand or agree upon the scope and effect of s. 43. It is hoped that this article will provide some general guidance in this area.

S. 3(7) of the Act reinforces these examples. It reads:

SAVE THE DATE 2020 MID-WINTER MEETING TOGETHER TOWARDS TOMORROW January 30 & 31, 2020 | Delta Regina SASKATCHEWAN

SUMMER 2019 21

FROM THE BENCH

UPDATE FROM THE COURTS: COURT OF APPEAL THE HONOURABLE CHIEF JUSTICE ROBERT RICHARDS COURT OF APPEAL

I appreciate this opportunity to once again report on the activities of the Court of Appeal and to bring the CBA and its membership up to date on some of the goings on at the Court. The past year has been a busy one in which some significant files have been dealt with and some important personnel changes have occurred. Our goal through all of this, as always, has been to deliver legally sound and practically workable decisions and to do that in a timely fashion.

On the personnel front, Justice Herauf retired in August of 2018. Justice Jackson elected supernumerary status in December of 2018 and Justice Whitmore did the same in April of this year. As well, an eighth full-time position was added to the Court in June of 2018. The upshot of all of this is that there have been plenty of vacancies in our ranks.

I am happy to report that those vacancies were filled expeditiously and with excellent jurists. Since my last report one year ago, Justices Bob Leurer, Brian Barrington-Foote, Jerome Tholl and Jeff Kalmakoff have joined the Court. These are all highly regarded and very able judges. They will make a strong Court stronger and I am delighted to have them on board.

In terms of what the Court has been doing over the past year, I can report that we have been carrying a rather

22 BARNOTES

heavy load. In 2018, the Court of Appeal disposed of 277 appeals. In the course of doing that, it rendered 71 civil decisions and 68 criminal decisions. These overall numbers have not jumped appreciably from recent years, but the average or typical complexity of what we are dealing with has definitely been increasing. As every lawyer knows, not all files are the same. One complex or involved matter can demand more time than several straightforward ones. In broad brush terms, this is where the Court is at – not more files but more heavy files.

Let me also briefly mention a few of the initiatives ongoing at the Court that might be of interest.

First, as some readers will recall, the Honourable Stuart Cameron (a former member of the Court) put together an annotation of and the Court’s civil rules that was published in book form in 2015. It is now available online on the Court’s website and we have also made available online what will be an ongoing update of the Cameron annotations. We think these should be very helpful tools for counsel.

Second, the Court is nearing the completion of a project aimed at establishing formal guidelines governing criminal appeals in which there is an allegation that trial counsel was incompetent. Such allegations are increasingly common and we want to ensure there is a clear and well understood procedure for handling them.

Third, we continue with a number of projects designed to improve access

to justice and to assist self-reps in particular: (a) an online “how to” manual explaining how to prosecute or defend an appeal, (b) on-site courtroom orientation sessions in advance of the argument of appeals, (c) plain language correspondence from the Registry office, and (d) a continuing emphasis in the Registry office on being as helpful as possible to litigants.

Finally, let me add a word about how the Court has opened itself up to the broadcast media. We have a formal “cameras in the courtroom” policy and have now had six of our proceedings either broadcast, livestreamed or recorded so they can be broadcast in ways that respect publication bans.

In the current calendar year, we have had cameras in our courtroom for the Woods appeal, the Greenhouse Gas Reference, the Good Spirit school case and the La Loche shooting case.

So far this has all worked well and the feedback from all directions has been positive. The Court sees a great deal of upside in letting the public understand what actually happens in a Court of Appeal hearing.

Let me close by acknowledging the ongoing accomplishments of the Canadian Bar Association and its membership. The CBA’s efforts on many fronts are appreciated by the members of my Court and by the judiciary generally. We are fortunate to live in a jurisdiction where there is such a strong and cooperative relationship between the bench and the bar. At a point in history where democratic institutions of all sorts are under pressure, it is essential that the CBA keep up its good work.

FROM THE BENCH

UPDATE FROM THE COURTS: COURT OF QUEEN'S BENCH THE HONOURABLE MADAM JUSTICE L.L. KROGAN COURT OF QUEEN'S BENCH

Good afternoon. I am stepping in for Chief Justice Popescul today. He was delighted to again be invited to speak at the annual meeting. Unfortunately, another work obligation has taken him out of province and Chief Justice Popescul sends his regrets. In his stead, I am certainly pleased to be here.

RULE CHANGES

There are a few Rule changes of note.

Foreclosure Proceedings

At the June , the Court approved a Rule amendment that will see a standardized Affidavit of Default in foreclosure proceedings. Currently, information in affidavits of default vary. A standardized form will make clear what information the Court needs and expects to have.

The form has yet to be finalized, but that will occur in the near future.

Request for Recording of Civil or Criminal Proceeding

Rule 9-34 addresses a request for a recording of a civil proceeding by a lawyer or a person other than a lawyer. There is a form for a lawyer to complete when requesting a recording and a separate form for a non-lawyer to complete when making an application for a recording. This Rule has been in place for about a year and a half.

What is new are the modifications to the forms to ensure that the recordings

are not improperly disseminated.

These amendments were approved at as well. our recent

This change to Chambers on Tuesdays will be implemented in September of this year.

These amendments came about as a result of the implementation of Criminal Practice Directive #7 which speaks to requests for recordings of criminal matters by the Crown, defence and other parties.

RENOVATIONS TO SECOND FLOOR REGINA COURT HOUSE

The Rule with forms, and Criminal Practice Directive #7 with forms, now mirror each other.

Two final points regarding recordings: The first is that Rule 9-34 makes clear that no Court records are made of Chamber proceedings, pre-trial conferences or case management conferences.

Lastly, those recordings, which will usually be on a CD or perhaps a flash drive, are to be returned to the court in accordance with the timeline set out in the form.

CHAMBERS DATES IN SWIFT CURRENT, MOOSE JAW, ESTEVAN, YORKTON, MELFORT

Currently in Swift Current, Moose Jaw, Estevan, Yorkton and Melfort, Chambers is set for Monday afternoon at 1:30 on identified and Gazetted weeks. Chambers will be moving from Monday afternoons to Tuesday mornings at 10:00 am.

Chambers will not be set for every Tuesday morning, but on those Tuesdays listed in the Gazette. There will be the same number of Chambers dates at each Judicial Centre as in the previous year.

We are seeing an ever-increasing volume of criminal, family and civil matters all over the province. To address these court room pressures in Regina, space on the second floor of the Court House will be converted and construction will soon begin to create three new pretrial rooms and three break-out rooms. One of the pretrial rooms will be larger than the other two and will have video conference capacity.

The space earmarked for these additional pretrial and break out rooms is space currently occupied by the Law Society Library. The library's space on the second floor will be reduced to enable the court to increase its ability to conduct pretrials and reduce the wait by litigants for a pretrial date.

This decision was made in consultation with the Law Society. The Law Society is confident that its previous excellent level of library service can be maintained in this reduced space.

FEE PAYMENT BY CREDIT OR DEBIT CARD

The Court of Queen's Bench now has the ability to accept fees by debit or credit card in the registry offices throughout the province. Previously, unless an account had been established, payment occurred only by cash or cheque.

Continued on page 25

SPRING 2019 23

FROM THE BENCH

UPDATE FROM THE COURTS: PROVINCIAL COURT THE HONOURABLE JUDGE M.T. BEATON ASSOCIATE CHIEF JUDGE, PROVINCIAL COURT

The Provincial Court attempts to administer justice in ways that acknowledge and address the circumstances and needs of justice system participants. We have domestic violence, mental health and drug treatment courts that address the root causes of criminal behaviour in an effort to end the cycle of offending.

Judge Mary McAuley, who replaced Judge Gerald Morin, presides in the Cree circuit court. Her ability to speak Cree allows many First Nations participants to use their first language in the courtroom, thereby improving their understanding of the proceedings. Circuit points in rural and Northern communities bring access to justice closer to home for more Saskatchewan residents.

The Provincial Court uses video conferencing technology at many of its locations, including circuit points. The use of video conferencing reduces the need to transport accused who are held in custody, allows the Court to sit when weather conditions prevent travel and is useful to allow persons to participate or view court proceedings without having to travel to a court location. The Court supports expanded use of CCTV technology wherever possible as long as high quality sound and visual are maintained.

24 BARNOTES

The Evolution of the Provincial Court of Saskatchewan publication

The Provincial Court was created in 1978. The Court’s history was captured in a book authored by Amy Jo Ehman and commissioned by the Saskatchewan Provincial Court Judges Association with support from the Law Foundation of Saskatchewan, to mark the Court’s 40th anniversary.

It was released last fall and can be obtained online in PDF at: https:// sasklawcourts.ca/index.php/home/ provincial-court/about-the-court/ history Court Locations

Between our 13 permanent offices and our 60 circuit points, we hold court in 73 communities. From time to time the Court adds or closes a circuit location, although no circuit locations have been closed since 2017.

At this point the Court is reluctant to open new circuit points as the RCMP and the Province are still having discussions about changes to prisoner transportation and court security.

Judiciary

When at full complement, the Provincial Court is composed of 49 judges. This number fluctuates periodically because of the timing of retirements and appointments.

A number of appointments have occurred since we last spoke at the CBA annual meeting. Judge Erin Layton was appointed to La Ronge November 1, 2018; Judge Michelle Brass was appointed to Estevan November 22, 2018; and Judge Brian Hendrickson was appointed to Moose Jaw November 22, 2018.

Judge Layton was appointed to the La Ronge Chambers to fill the vacancy left by Judge McAuley’s transfer to Prince Albert. Judge Brass was appointed to Estevan following the transfer of Judge Wiegers to Regina.

Judge Hendrickson was appointed to Moose Jaw to replace Judge Kovatch who also transferred to Regina. Judges Halliday and Morin have retired and are on the list of temporary judges.

We currently have a vacancy in Saskatoon as Justice Natasha Crooks, who previously sat as a Provincial Court judge in Saskatoon, was appointed to the Court of Queen’s Bench in May. Justices of the Peace

The Chief Judge oversees the Justice of the Peace program although the Supervising Justice of the Peace Melissa Wallace handles the administration and supervision of Justices of the Peace.

There are three Justice of the Peace categories in Saskatchewan: (1) Justices of the Peace, (2) Senior Justices of the Peace and (3) Justices of the Peace who are court officials. Justices of the Peace who are court officials do not have judicial decision-making authority and typically are court clerks employed by the Ministry of Justice.

Justices of the Peace who are not court officials have judicial decision-making authority and handle judicial interim release proceedings, search warrant and arrest warrant consideration and general court document processing on a province-wide basis. Senior Justices of the Peace have additional authority to handle trial and case management work. For example, they sit bylaw

FROM THE BENCH

and traffic safety courts in a number of locations throughout the province.

They also handle case management hearings for small claims matters in Regina, Saskatoon and Prince Albert.

Next Available Trial Date/Jordan Compliance

Since 2015 the number of accused persons appearing in our courtrooms has increased dramatically, likely due to the arrival of crystal meth in the province. However, the numbers of adults have plateaued in the last year and the number of youth being charged has continued to decline from previous years.

Continued from page 23

For firms using account cards, this will remain a valid method of payment.

Court Services is looking at how a credit card payment system could also be implemented for firms. The ability to do that is not, however, expected in the immediate future.

ACCESS TO JUSTICE ISSUES

A number of access to justice initiatives have been implemented.

For example, Rule 4-4 provides for Case Conferencing. Rule 4-5 allows for Case Management. Part 7 addresses the resolution of claims without a full trial.

Part 7 includes Summary Judgment applications which the Court has seen an increasing number of.

As a consequence of the Summary Judgment applications, which, of course are presented on the basis of affidavit evidence, there is an increased workload on the Judge who is called upon to read, rather than hear the evidence, and then determine the issue.

While the summary judgment process is a sound one, the workload of the court has increased.

Trial delay continues to be monitored closely, particularly in the northwest where seasonal inclement weather will prevent travel and sometimes court matters need to be adjourned.

The Court publishes its next available trial dates on sasklawcourts.ca every three months. For the most part the Provincial Court is well within the Jordan compliance range. If local judges are unable to schedule trial dates into their regular sitting we have shifted judges from other locations or arranged relief judges to ensure Jordan compliance.

COURT VACANCIES

Last year at this time, the Court was functioning with 7 vacancies. On a court with 33 full time judges, the vacancies were certainly felt. More recently, there were 3 vacancies and now only one. That vacant position is in the family law division in Regina.

Recently, Justice Natasha Crooks has joined the court in Saskatoon, and Justices Bev Klatt and Neil Robertson have joined the court in Regina. We are very pleased to have these new colleagues.

QUEEN'S BENCH BAR JUDICIAL COUNCIL

The Queen's Bench Bar Judicial Council met at lunch today.

The Council is comprised of representatives of the CBA (Saskatchewan Branch), the Law Society of Saskatchewan and the Trial Lawyers Association. Discussion focus on how the administration of justice in Saskatchewan can be improved.

Matters of concern are discussed.

If anyone has thoughts or concerns about improving the administration of

cbasask.org justice, suggestions can be passed along through members of this Council.

THANK YOU

I would like to commend you, the members of the CBA, for the remarkable work that is undertaken in the promotion of the rule of law, in suggestions for law reform, in seeking to improve the administration of justice and access to justice and in the promotion of equality in the legal profession and the justice system.

It bears saying at every opportunity that judges are grateful to the CBA for being a voice in situations where Judges or Jurors are unable to provide an explanation or express a contrary point of view in the face of unwarranted criticism which undermines the administration of justice.

The CBA fills that void and provides a thoughtful response to the public and fulfills an educative function for members of the public.

Thank you so much on behalf of the Chief Justice and the Court for the invitation to participate in this meeting and thank you for your kind attention.

SUMMER 2019 25

BUILDING COMMUNITIES. BUILDING SOCIETY. Each and every day, our alumni make meaningful contributions to policies, laws, technology and positive societal change.

Our alumni are exactly what the world needs.

26 BARNOTES

STUDENT HUB

U OF S GRADUATE TO CLERK FOR SUPREME COURT CHIEF JUSTICE WAGNER TONYA LAMBERT

UNIVERSITY OF SASKATCHEWAN LAW STUDENT

Katherine Starks has an interesting few years ahead of her. The recent graduate of the University of Saskatchewan College of Law is clerking at the Saskatchewan Court of Appeal in 2019-2020 after which she will take her freshly-honed skills all the way to the Supreme Court of Canada, where she has been selected to clerk for Chief Justice Richard Wagner in 2020-2021.

Starks came to the study of law with a Master’s degree in English Literature, a background which prepared her very well for law school and for clerking. “Having done graduate work in literature, she had done past studies that involved lots of reading and writing combined with issues like interpretation but also the social significance of what she was engaging with,” explains Dr. Dwight Newman.

It was Starks’ love of reading, writing and researching which first attracted her to law. Having worked for a few years after completing university, she was seeking a career that would allow her to engage and develop her talents in these areas. Law seemed like a perfect fit.

Newman believes it was these skills which brought Starks to the attention of the Chief Justice. “I think it’s key that she has superb skills at legal research, analysis, and writing – basically a lot of the same skills I got

to see firsthand in her work with me as a research assistant – combined with some distinctive understanding of how the law fits with broader societal issues,” he says.

Starks was invited to interview for positions with several justices of the Supreme Court, but only completed one interview. She explains, “There is an order in which the judges and the committee hire out of the pool of applicants. The Chief Justice conducts his interviews and does his hiring first. So, for me, I had some interviews scheduled with other judges, but the week before I was scheduled to go to Ottawa for those interviews, I had a Skype interview with the Chief Justice and then he hired me. So, I didn’t go to Ottawa for the rest of the interviews.” Starks booked a study room in the Law Library to do her interview with the Chief Justice. “It was a really enjoyable conversation. There were a lot of the sorts of questions that you would expect in a job interview and then also a little bit of substantive law, discussing a recent decision of the Supreme Court,” explains Starks.

Chief Justice Wagner, like his predecessor, former Chief Justice McLachlin, is a strong advocate for improving access to justice in Canada.

“We talked a fair bit about Access to Justice issues in my interview,” says Starks. “I think that some of the opportunities that I’ve had, such as taking Professor Buhler’s Access to Justice seminar and learning about those issues at CLASSIC, allowed me to speak to those issues in an informed way which I think helped the interview go well.”

Newman agrees that Starks’ engagement with social justice issues would have made her an appealing candidate. “She has done ongoing volunteer work on social justice causes through which she also has a broader perspective on the world,” states Newman. “And, frankly, her clinical work at CLASSIC would also have involved her in connecting the law with broader social issues that means she brings some fresh perspectives to the Court. They’re ultimately looking for students with all the important technical legal skills combined with something extra in terms of some sophisticated understanding of the law, and Kath brings all of that.”

Starks is very much looking forward to her time clerking at the Supreme Court, where her days will be filled with researching. “I am excited to continue learning about how

SUMMER 2019 27

STUDENT HUB

the justice system in Canada works. I’m excited to work on complicated legal problems with an interesting and brilliant group of people. I hope to keep developing as a legal researcher and problem solver,” says Starks. “I am interested in litigation, so I am excited to be exposed to current litigation at the highest level in Canada to learn more of the ins and outs of how that works.”

Newman, who himself clerked for Chief Justice Lamer and Justice LeBel at the Supreme Court, outlines what Starks can expect from her time at the country’s top court. “It’s a unique opportunity to get a peek inside the Supreme Court right at the start of a legal career – to work with a judge (and in her case, the Chief Justice of Canada!) and get to talk with that judge about the law and what’s going into the decision-making. It’s a chance to work with a group of very talented recent law graduates from across the country.

It’s a chance also to see the advocacy that comes before the Supreme Court of Canada, some of it at the very top of the profession but also with learning chances from seeing when advocacy doesn’t work out as well too. So, it’s a superb learning opportunity in many respects.”

CBA Saskatchewan congratulates Katherine Starks on her achievements and wishes her the best of luck in her future endeavours.

CBA SASKATCHEWAN 2019-2020 Board of Directors PRESIDENT Loreley Chekay SGI - Saskatchewan Government Insurance 306.751.1221 | lchekay@sgi.sk.ca VICE-PRESIDENT Christopher Weitzel SGI - Saskatchewan Government Insurance 306.775.6432 | cweitzel@sgi.sk.ca TREASURER Reché McKeague City of Saskatoon Solicitor’s Office 306.975.3270 reche.mckeague@saskatoon.ca PAST PRESIDENT Nicholas Cann | McKercher LLP 306.565.6526 | n.cann@mckercher.ca EDUCATION DIRECTOR Jana Linner | MLT Aikins LLP 306.347.8427 | JLinner@mltaikins.com

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28 BARNOTES

LEGISLATION & LAW REFORM DIRECTOR Charmaine Panko Panko Collaborative Law & Mediation 306.975.7152 cpanko@commonsenselawyer.com PUBLIC OUTREACH DIRECTOR Kathryn Gilliss | Trobert Law Firm 306.634.2616 kek.trobertlaw@sasktel.net EXECUTIVE DIRECTOR Monteen Dent CBA Saskatchewan Branch 306.244.3898 monteen@cbasask.org

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SUMMER 2019 29

PRO BONO SPOTLIGHT

PBLS LAUNCHES TWO NEW CLINIC PROGRAMS PIERRE E. HAWKINS PRO BONO SASKATCHEWAN

RPL Family Law Clinic

Pro Bono Law Saskatchewan is pleased to announce the successful launch of the Regina Public Library Family Law Clinic. Unlike other PBLS clinics, this clinic uses a walkin model. This allows low-income clients with immediate family law needs to proactively seek legal advice and address their matters promptly.

Thanks to the efforts of a dedicated inaugural group of volunteers, this clinic has taken on a life of its own.

Initially conceived to address long wait times in family law appointments at the Regina Free Legal Clinic, this new initiative now serves to address client needs in a comfortable, neutral community hub. PBLS is proud to partner with the Regina Public Library to serve the needs of the community together.

A bit of advice at the early stages of a family law dispute can go a long way to establishing an orderly transition in the lives of litigants and their children.

As family law practitioners well know, an amicable and orderly separation is usually in the best interests of all involved. By providing legal advice to clients on a walk-in basis, volunteer lawyers leverage short appointments into a significant and positive impact on families.

30 BARNOTES

PBLS strives to meet client needs where and when they arise. Lowincome clients often have unique restraints in time and mobility, particularly when family breakdown is involved. Thanks to a wonderful group of volunteer lawyers, PBLS is a step closer to achieving this goal.

French Language Free Legal Clinic

Last year, PBLS was approached by the Association des juristes d'expression française de la Saskatchewan, loosely translated as the Association of French-Speaking Lawyers of Saskatchewan, seeking to establish a free legal clinic providing services to French speakers in Saskatchewan.

We are proud to announce the launch of this new clinic, allowing an even broader group of low-income clients to obtain free legal services NEW! in Saskatchewan.

This clinic is driven by the hard work and expertise of AJEFS staff and members.

The French Language Free Legal Clinic, or Clinique juridique gratuite qui offer des conseils juridiques en français, would not be possible without the hard work and expertise of this enthusiastic

group of staff and volunteers. The unique nature of this clinic requires the host organization to take on the majority of the work associated with the clinic, and AJEFS has shown itself to be more than up to the task.

Saskatchewan’s francophone community comprises a wide swath of people, including newcomers, descendants of homesteader families, Métis people, and a host of others.

PBLS is proud to partner with AJEFS and its Centre Info-Justice to serve such a dynamic and important community.

If you are interested in volunteering for PBLS programs, please contact the writer at pierre.hawkins@pblsask.ca.

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CALENDAR OF EVENTS Aug 31

Annual Membership Expires - Renew Online

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Sep 1

New CBASK Board of Directors Intalled

Sep 4

Legal Directory Order Deadline (to Guarantee delivery)

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Sep 12

Welcome Reception College of Law

College of Law, U of S

Sep 15

Section Meetings Begin - register free online

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Oct 3

Q.C. Nomination Deadline

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Nov 15

Distinguished Service Award Nomination Deadline

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Dec 15

Treasurer & Elected Members of Council Nomination Deadline www.cbasask.org

Jan 30

Council Meeting, Delta Regina

Regina

Visit cbapd.org and learn about great webinars, conferences and documents relevant to your areas of practice and interest which you can access as part of your CBA membership.

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LET US KNOW! We do our best to keep our Legal Directory up to date. If you’ve moved offices or changed jobs, let us know! Send to: info@ cbasask.org.

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SUMMER 2019 31

E V I D E N C E FIND THE DIG ITAL TRU TH

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32 BARNOTES