November/December 2012 - Law Society of the Northwest Territories

Transcription

ARCTIC OBITER
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PLANNING
AHEAD
THE LAW SOCIETY AND CANADIAN
BAR ASSOCIATION GEAR UP TO
TACKLE UPCOMING CHANGES TO
THE PROFESSION AS THE LEGAL
LANDSCAPE CONTINUES TO SHIFT
2
| ARCTIC OBITER
4th Floor, Diamond Plaza PRESIDENT
5204 – 50th Avenue Caroline G. Wawzonek
INSIDE
P.O. Box 1298 VICE-PRESIDENT
Yellowknife, NT Karen Wilford
X1A 2N9
SECRETARY
TEL: (867) 873-3828 Margo Nightingale
FAX: (867) 873-6344
TREASURER
info@lawsociety.nt.ca J.M. Alain Chiasson
10
Highlights of the Law Society’s
35th Annual General Meeting
13
Executor’s Insurance
13
Why is Your Law Firm Merging?
www.lawsociety.nt.ca LAYPERSON
Peter Hall
by Jordan M. Atin
by Jordan Furlong
P.O. Box 1985 PRESIDENT
Glen Rutland
Yellowknife, NT
X1A 2P5 VICE PRESIDENT
Sandra MacKenzie
TEL: (867) 669-7739
SECRETARY / TREASURER
FAX: (867) 873-6344 Karin Taylor
info@cba-nt.org PAST PRESIDENT
cba.org/northwest Malinda Kellett
MEMBERS OF COUNCIL
Sheldon Toner
Caroline Wawzonek
Charlene Doolittle
BettyLou McIlmoyle
Jeannie Wynne-Edwards
3
President’s Message
20 NWT Legislative News
4
Bar Notes
21 NWT Decision Digest
5
Executive Director’s Message
6
Membership News
28 Supreme Court of Canada
Update
8
CBA National News
31 Resources
EXECUTIVE DIRECTOR
Linda Whitford
linda.whitford@lawsociety.nt.ca
DIRECTOR OF COMMUNICATIONS
LEGAL EDUCATION COORDINATOR
Ben Russo
ben.russo@lawsociety.nt.ca
FROM THE EDITOR
ADMINISTRATIVE ASSISTANT
Liz Jackson
Another year has come to an end. My “to do” list lingers amid piles of paperwork,
and the office closes for the holidays tomorrow.
liz.jackson@lawsociety.nt.ca
The Law Society’s AGM in December sparked much discussion on a variety of
Arctic Obiter is a joint publication of the Law Society of
the Northwest Territories and the Northwest Territories
Branch of the Canadian Bar Association. It is published
on a bi-monthly basis to keep lawyers practicing in the
NWT informed of news, announcements, programs and
activities. Comments, articles and photos for
consideration can be submitted to Ben Russo. Past and
current issues are available on the Law Society website.
issues. So, to draw 2012 to a close, a summary of the AGM is included, along with
an overview on the newly available Executor’s Insurance by Jordan Atin and piece
of mind for law firms by Jordan Furlong.
Thanks to all our contributors over the last year, and to all our readers. Have a
great holiday and a happy new year.
-Ben
NOVEMBER/DECEMBER 2012 |
3
PRESIDENT’S MESSAGE
On the Horizon
With a new year approaching, we will soon be hearing about new
is sufficiently served by a legal profession that understands who
years resolutions and be bombarded with advice about how to
they are, where they are and the context in which they live and
make successful changes. It is a fitting opportunity to write about
conduct their business. We are increasingly working in a context
some of the changes on the near and distant horizon for the Law
where legal services are becoming financially out of reach to a large
Society, and some of the strategies we can use and have used to
proportion of the population. In the North, it is not only money
weather those changes successfully.
that makes legal services inaccessible but the fact of a small private
bar. Does the lack of private counsel change the kind of
The practice of law, admittance into practice and
conversation that we having about mobility? Or is
regulation of the practice are all in the midst of
the crisis in access to justice a national problem
change across the country, and we can engage
from which we can potentially draw nationally
these processes of change while still maintaining
sourced solutions?
consistency and stability for our membership and
to the public we serve.
On a more “personnel” front, the Law Society will
begin the process of replacing our long standing
One of the biggest potential sources of long term
Executive
change continues to be mobility. A review of the
challenges that prevent full mobility will be
begin in the new year in order to ensure the same
jurisdiction unique. The process will require
high standards we have come to enjoy from our
creativity in order to protect the values, services
Executive Director.
and features that distinguish our jurisdiction. At
we
must
be
honest
in
has
nevertheless be found. This process of change will
examine and advocate for what makes our
time
Whitford
Society. Linda is irreplaceable, but a new ED must
two years. We must be prepared to critically
same
Linda
will be 18 years of dedicated service to the Law
presented to the Federation of Law Societies in
the
Director.
announced a well-earned retirement after what
Caroline G. Wawzonek
One development that exemplifies our ability to
acknowledging similarities with our counterparts across the
successfully navigate change is the agreement renewal with the
country.
NWT Branch of the Canadian Bar Association. The Law Society
Another major change that is still only on the very distant horizon
is the prospect of national standards for admission to the legal
profession. The Federation of Law Societies has recently approved
National Competency Standards. The project is now moving to the
next phase of examining consistency in good character and
suitability requirements.
and NWT CBA have enjoyed a long standing collaborative
relationship. The need to formally renew this relationship was an
opportunity to consider what both entities needed while looking to
where we are heading in the future. I believe our new contract
accomplishes those goals. We took positive steps towards ensuring
that we are both looking at the same horizon while clarifying what
makes each of our organizations unique. Very importantly,
The issues surrounding national mobility and national standards
channels and opportunities for communication have been more
are not a call to arms to defend ourselves against invaders from
clearly established.
unknown reaches. This is an opportunity to do what lawyers do
well: problem solve, advocate, mediate and think creatively. It can
also be an opportunity to consider ways in which to improve our
“brand.” For example, this can be an opportunity to look at
recruitment and retention and promote what we offer that is
unique from other jurisdictions.
At the same time, we must also remain vigilant of the public
interest that we serve. We must ensure that the public in the north
We can continue to be a distinct jurisdiction and still carve out our
place within a changing national landscape. It is not only possible,
it is essential. I look forward to working with my colleagues on the
Executive, Law Society staff, committee chairs and interested
members to ensure that we continue to move confidently towards
the ever changing horizon.
Warmest wishes for a happy holiday season and 2013 filled with
positive changes!
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BAR NOTES
Planning for the Future
The CBA nationally has a new strategic plan that focuses on five
submissions were discussed. We are also looking for volunteers to
key areas of importance to our members: Influence and Leadership,
serve on national pro bono and equity committees. If you are
Community, Education, Cohesion, and Organizational Excellence.
interested, please contact me directly to discuss.
The local branch will begin its own strategic planning process
based on these priorities in the next few months, but in the interim I
ORGANIZATIONAL EXCELLENCE
want to report on our local initiatives in each of these five areas.
I am pleased to report that an agreement has been reached to renew
the contract for the Law Society to provide administrative services
INFLUENCE AND LEADERSHIP
and support to the CBA-NT. This agreement will
We are increasing advocacy efforts on behalf of the
ensure that both organizations can continue to
profession and in the area of law reform. Recently,
fulfill the important roles they play, while clearly
the Criminal Law Section submitted its views on a
delineating
new Legal Aid Act and changes were made to the
organizations. The new agreement also clearly sets
Bill to address the concerns raised. The branch
ou t
continues its advocacy efforts on the issue of
communications.
courthouse meeting rooms and reinstatement of
the
differences
expe c tati ons
f or
between
acti vi ties
the
and
Also, mark your calendars now, as the CBA-NT
the Queen’s Counsel designation. Finally thanks
Mid-Winter Meeting will be held on January 29,
to our Criminal Law Section Chair, Caroline
2013. We expect that both candidates for CBA 2nd
Wawzonek for responding to a recent editorial on
Vice-President will be coming to Yellowknife to
bail.
join us for our Mid-Winter meeting.
COMMUNITY
Finally, I would like to close by wishing everyone
CBA-NT Vice-President Sandra Mackenzie spoke
about the CBA at the annual Meet the Students
and New Associates night. The branch has also
a happy holiday season and all the best for the
Glen W. Rutland
new year.
paid for CBA memberships for four articling
NOTA BENE: As many of you are aware, we recently lost Paul
students in the Northwest Territories. The branch also pays student
Smith. Paul was a committed supporter and volunteer for the CBA
memberships for law students from the NWT.
both nationally and here at the Branch. Paul is a former President of
the Branch, the founding Chair of the Branch’s Labour &
EDUCATION
Employment Section, and was currently serving as Chair of the
Our branch, in partnership with CBA National, is the single-largest
National Administrative Law Section. Paul also served as Co-Chair
provider of CPD in the Northwest Territories. This year, the CBA
of the CBA 2008 Mid-Winter Meeting held in Yellowknife.
offered 17 hours of in person CPD, 14.5 hours of section meetings,
and 37.5 hours of substantive law and skills-based CPD online.
Paul was a candidate for CBA National President in 2008, in a race
There are some exciting CPD initiatives underway for the new year,
that was described by the then CBA president, Bernard Amyot, as a
including events for public sector lawyers and a national in-person
historic first for the organization. It was the first time the candidates
CPD being offered by the Environmental, Energy and Resources
were from the North. This will be recognized as his greatest legacy
Law Section.
with the CBA, as it was Paul, who in 2004, put forward the
recommendation that Northern lawyers be added to the geographic
COHESION
rotation for the CBA presidency.
CBA-NT Vice-President Sandra Mackenzie and I recently met with
Section Chairs to discuss plans for the upcoming year and
expectations of sections. The need for local, in-person CPD and
engagement
with
National
Sections
through
newsletter
On a personal note, Paul remained an active supporter of our
branch, and I will miss his phone calls where we discussed the CBA
issues of the day with him, and his heartfelt advice and support.
5
THE DIRECTOR’S CHAIR
Remembering Paul
Events of the past week have pre-empted my usual ramblings to touch
up for an at-home dinner, a CBA tradition at the annual CLC.
briefly on the loss of a friend. Family, friends and colleagues from
across Canada were shocked at the untimely and sudden death of Paul
At the time of his death, Paul was the National Chair of the CBA’s
N. K. Smith. For those who have wondered over the years, the N. K.
Administrative Law Section. Just prior to my leaving on vacation early
stands for “Norman Keays”.
this
month
we
talked
about
arrangements
for
the
national
Administrative Law Section meeting being held here in June. He was
Paul graduated from the University of Alberta in 1997 and came to the
very much looking forward to hosting his colleagues at the event and
Northwest Territories to article with Austin Marshall.
being able to once again, showcase our community.
As a student, he was an avid participant in the
Society and quickly teamed with the likes of Messrs.
It was my pleasure to work with him on a number of
Toner and Himmelman. I used to be able to rely
levels, but more importantly, to be his friend.
highly on the theory - find one and you found all
sincere condolences go out to his family at this most
three! He swore his oath of office before the Hon.
challenging of times. The Law Society and the CBA
Justice J. E. “Ted” Richard and was admitted to the
have both made contributions to charities in his
Bar in the NWT on 23 October 1998. On November
memory.
23, 1998 he joined the firm of Gullberg Wiest &
Our
All of this leads me to a topic that becomes even more
McPherson, now known as Lawson Lundell. He left
important as the age demographic of the profession
that firm in June 2012 and set up shop as a sole
shifts and the number of Sole Practitioners rises. Do
practitioner.
you have a checklist for succession planning? Are
The majority of Paul’s practice was dedicated to
you prepared? Do you have a disaster plan? What
Labour and Employment Law with the balance
plans are in place in the case of a catastrophic event?
consisting of Administrative Law, Regulatory Law
What happens to your practice if something happens
and Civil Litigation.
to you? Those of you in the queue for a random
He served on various Law
Society Committees and was our appointee to the
review will be asked this question.
Linda G. Whitford
What will you
say? Need some help? We have several resources on
NWT Judicial Council for Territorial Court Judges.
Additionally, he served on the Law Society Executive Committee as
hand that are relevant and helpful. Remember, it can happen to you!
Treasurer in 2005 and Vice-President in 2006. He was also instrumental
None of us are immune. I am still trying to get it right, but can advise
in spearheading the tradition of the President’s Dinner, a practice
that some of my house is in order and the rest is shaping up - both
common in many other jurisdictions.
personally and professionally.
In 2000, Paul became the Secretary/Treasurer of the Northwest
January will come soon enough with all sorts of administrative
Territories Branch of the Canadian Bar Association. A ladder position,
responsibilities including the beginning of the annual renewal process.
he went on to become President in 2002-2003. During this term, he,
Those of you who attended the AGM or read the material will know
with Kathryn Vennard and Mike Himmelman, lobbied for the NWT to
that there are rule changes and a fee increase for active members. You
once again host the Annual Mid-Winter Meeting in Yellowknife; and
will find highlights of the Annual General Meeting in other parts of this
he, Sheldon Toner and their colleagues from the Yukon, championed
edition of the Obiter so I will not reiterate them here. However, I do
the Territories’ right to be included in the rotation of the Presidency for
want to recognize Sarah Kay, the most recent recipient of the
the CBA. Both causes were successful and in 2008 we hosted a “still
much talked about awesome event” and Paul ran unsuccessfully against
Rod Snow of the Yukon for the position of CBA 2nd Vice-President. On
learning of the news of Paul’s death, Rod noted that “… we got to know
each other well as candidates for CBA 2 nd VP when we joked that we could each
give the others stump speech. And Paul was kind and gracious whenever I saw
him in the years after that.” When the Law Society hosted the Federation
of Law Societies in March of this year, Paul was among the first to sign
President’s Award. Congratulations Sarah, you continue to raise the
Bar!
I will close by wishing you all a Mele Kalikimaka & me ka Hau'oli
Makahiki Hou! I survived the Honolulu Marathon and look forward to
working with you all in the year to come. As noted in my report to the
AGM, a succession plan is in my future.
Be safe, be well, be happy, and see you on the trails.
6
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MEMBERSHIP
In Memoriam
justice and peace. After spending his
PAUL N.K. SMITH
Arthur went to law school in 1976 so
SMITH & ASSOCIATES—YELLOWKNIFE, NT
that he could further his commitment
early career as a teacher and journalist,
On December 15, 2012, Paul N.K. Smith
to social justice and Aboriginal issues.
died suddenly and unexpectedly in
Arthur and his best friend, Rick Salter,
Yellowknife.
started the law firm Pape and Salter in
A long time Yellowknifer and lawyer,
1982. Jean Teillet became a partner and
Paul primarily practiced labour and
the firm is now Pape, Salter and
administrative law for 14 years, most
Teillet. Arthur represented Aboriginal
recently through this firm, Smith &
people in several provinces and
Associates.
territories and argued many cases
before the Supreme Court of Canada.
He was an active member of the
community and the legal profession,
Arthur married Maxine Thomas in
having served as president of the
1968. He raised her daughter Lisa as
Canadian
his own and together they had Jada
Bar
Association (NWT
Branch) and as Chair of the CBA’s
and Josh. The marriage ended in 1995.
P. Smith
National Administrative Law Section.
Paul was also a member of the Nunavut
In 2002 Arthur married his high school
donations to be made in Paul’s memory
sweetheart, Judith Hashmall. He was
to
ch oi ce .
embraced by her family and friends
Caroline
Condolences to family and friends may
who felt incredibly fortunate to have
Wawzonek noted, “The entire NWT
be sent via McKenna Funeral Home:
Arthur in their lives. Arthur will be
legal
janicemckenna@theedge.ca
greatly missed by his wife Judith
and Alberta Law Societies.
Law
Society
President
community
is
shaken
and
saddened by Paul’s death. Paul was a
consummate professional, committed to
his clients and to the betterment of the
practice of law.”
a
cha ri t y
of
y ou r
Hashmall, Carolyn Pape Cowan and
ARTHUR C. PAPE
Phil Cowan, Audrey Cole and Allan
PAPE, SALTER AND TEILLET—TORONTO, ON
Arthur
Pape
died
Kennedy, his children Lisa and Clint
on
Dafoe, Jada Pape and Josh
December 6th surrounded by
Pape, and his grandchildren
Paul is survived by his wife Kimberly
family at The Kensington
Williams, his son Zachary, his mother
Hospice in Toronto. He was
Elizabeth Smith (Sault Ste Marie,
born on April 3, 1942 in
Ontario), his brother Ben (Dawn),and
Toronto and grew up with
his nephew Jeffery (Calgary), his father
his
and mother in law, Walt and Carol
Audrey. After their mother's death his
Williams of Tumbler Ridge, B.C. He is
father married Lee Soboloff. Lee's
predeceased by his father Ben Smith
children Michael and Joan joined the
(Sault Ste. Marie, Ontario).
family.
“Our thoughts and prayers are with his
Arthur was a lawyer who spent most
family, particularly Kim and Zachary, at
of his career fighting for Aboriginal
this difficult time” said Wawzonek.
and workers' rights across Canada.
In lieu of flowers, the family requests
sisters,
Carolyn
and
Sarah, Nora and Clayton. He
will also be missed by his
stepchildren Daniel Copeland
A. Pape
From a young age he fought for social
and Joanne Terrence, Jeremy
Copeland
and
Anna
Wieselgren, Lia Copeland, and his step
-grandchildren Jesse, Cara and Logan.
The family requests that any donations
be made to the Arthur Pape Prize for
Students of Aboriginal Law, at Alumni
Office, Osgoode Hall Law School, York
University, 4700 Keele Street, Toronto,
ON, M3J 1P3, (416) 736-5638.
MEMBERSHIP STATS
New Members
MICHAEL J. BAILEY
MAURICE LAW— CALGARY, AB
Michael practices civil litigation and
represents many clients through a
wide
spectrum
of
struggle
and
resolution: in mediation, arbitration,
Active Residents:
140
Active Non-Residents:
264
Inactive Members:
487
(Restricted Members:
76)
Energy Board, the Energy Resources
Conservation Board, Alberta Utilities
Commission, Joint Review Panels
established
under
Environmental
83
Total Membership:
7
the
Canadian
Assessment
Act, the
Alberta Environmental Appeals Board,
the Mackenzie Valley Land and Water
Board and the Nunavut Water Board.
trial and appellate advocacy, and from
the
cl ai ms
of
i ndi vi dual s
RACHELLE K. ROBERTS
to
commercial (particularly construction
practiced at another major national
FIELD LAW — EDMONTON, AB
and insurance) matters and
law firm in Calgary and completed a
Rachelle
disputes, as well as cross-
clerkship with the
jurisdictional
Court of Canada in Ottawa.
matters
and
major aboriginal litigation.
Federal
OSLER, HOSKIN & HARCOURT LLP —
CALGARY, AB
the Business Law Course at
the University of Calgary and
M.J. Bailey
and
Education Society of Alberta and the
strategies
for
A l be r t a
necessary
sponsored
as industry
seminars
for
the
approvals
R.K. Roberts
2004.
practice
focuses
on
member of the firm's legal team
executing
representing
obtaining
large
in
Aboriginal Law and she is currently a
hundreds
of
Aboriginal clients in pursuing
regulatory
for
h e r
admittance to the
Rachelle's
developing
Association, as well
an
s i n c e
regulatory and environmental
education seminars for the Legal
Lawyers’
been
bar
law. He has extensive experience in
T ri a l
has
Martin’s practice focuses on
also presents at many professional
C i vi l
with Field LLP and
associate of the firm
MARTIN K. IGNASIAK
Michael has assisted teaching
articled
claims for damage suffered
scale
industrial projects, including
while
construction and insurance industries.
oil sands facilities, coal mines
Government run Residential
TERRI-LEE OLENIUK
and
OSLER, HOSKIN & HARCOURT LLP — CALGARY, AB
electric
generation
M.K. Ignasiak
facilities. In his capacity as a regulatory
and
Schools.
PAULA M. MACFADYEN
lawyer,
project-related
advises clients on aboriginal
DEPT. OF INDUSTRY, TOURISM & INVESTMENT
(GNWT) — YELLOWKNIFE, NT
concerning natural resource
issues
Paula joins the Government of the
development
impact benefit agreements.
with
a
specialization in regulatory,
He
environmental and Aboriginal
law issues. She acts for a
T. Oleniuk
variety of companies in environmental
assessments
and
regulatory
proceedings and frequently advises
clients on a variety of agreements with
First Nations and Métis groups and
negotiates impact benefit agreements.
Prior
to joining Osler, Terri-Lee
and
has
has
regularly
Church
Terri-Lee’s practice focuses on
issues
Martin
at
negotiated
appeared
before,
among others, the National
Northwest Territories from Prince
Edward Island, where she practiced
Family Law, Real estate Law and in
Wills and Estates.
MEMBERSHIP RENEWALS
The annual deadline for membership renewals is March 31st.
Renewal notices and instructions will be delivered to all members by email
in mid-January. Further questions or concerns may be directed to the Law
Society at (867) 873-3828 or info@lawsociety.nt.ca.
8
| ARCTIC OBITER
CBA NATIONAL NEWS
Envisioning Equal Justice:
discussion paper & summit
Work continues on the CBA Access to
planning
Justice Committee’s Envisioning Equal
Justice
Justice initiative.
Vancouver.
On the research and consultation side
of the project, the Committee is
seeking members’ input on the first of
five discussion documents, “Tension
the
Envisioning
Summit,
April
Through
Equal
25-27
in
educational,
interactive sessions, attendees will
explore
solutions
and
develop
practical
strategies to address a
growing gap in access to justice.
at the Border: Pro Bono and Legal
Read Tension at the Border:
Aid”, until January 15. Feedback
http://j.mp/probonolegalaid
questions can be found on the final
Envisioning Equal Justice Summit:
page of the paper.
http://j.mp/equaljusticesummit
Photo courtesy of Daniel Sabourin (Laforest et Sabourin)
The Committee is also in the midst of
CBA welcomes
Mr. Justice
Richard Wagner
Leave to intervene in CN v.
McKercher LLP and Wallace
The Supreme Court of Canada has
articulated in R. v. Neil and Strother v.
granted the CBA leave to intervene in
3464920 Canada Inc.
the appeal in CN v. McKercher LLP and
Wallace on the issue of the scope of the
duty to avoid conflicts of interest. On
January 24, the CBA will argue that
this
duty
does
categorically
not
Mr. Justice Richard Wagner, the newest member of the Supreme Court of
Canada, was welcomed at a ceremony
Malcolm Mercer, Eric Block, and
last month.
Brendan
McCarthy
Brun, QC, was on hand to greet the
Tétrault LLP are acting as pro bono
new justice on behalf of the Associa-
counsel for the CBA.
tion.
Brammall
of
CBA President Robert
prohibit
Praising the new justice’s strong sense
acting directly adverse to
of public service, knowledge of the
the immediate interests of
legal community and leadership tal-
a current client.
ents, Brun took the opportunity to rec-
The
McKercher
provides
opportunity
appeal
the
for
first
the
Supreme Court to squarely
address the application of
the “bright-line rule” it
ognize Justice Wagner’s reputation as a
‘straight shooter.’ “His peers in the
legal community often cite his clear
reasoning – and writing – as one of his
most invaluable talents, as well as his
patience and his willingness to listen,”
he said.
Mid-winter
Meeting of
Council, Mont
Tremblant
FAQs on solicitor-client privilege
for in-house counsel
9
The CCCA and CBA Ethics and
practice, the new FAQs cover the
Professional
Responsibility
basic principles and offer practical
Committee have produced a series of
guidance for difficult situations. A
FAQs and answers about solicitor-
live webinar on this topic is scheduled
The 2013 Mid-Winter Meeting of
client privilege and confidentiality
for February 7, 2013. Watch for details
National Council will be held at Mont
aimed to meet the needs of in-house
and registration information early in
-Tremblant, Quebec, from February
counsel.
the new year.
15-17.
Following
the
popular,
recently
Attendees will help shape the future
updated 2010 FAQs on Privilege and
of the CBA and the legal profession
Confidentiality for lawyers in private
Read the FAQs: http://www.cba.org/
CBA/activities/code/privilege.aspx
by participating in a roundtable
issues, public policy, and governance.
Deanna Ludowicz of BC
receives Legal Aid Leader Award
There will also be ample time to enjoy
Deanna Ludowicz of Grand Forks,
the many activities that Tremblant is
BC, is the CBA’s most
to promote and defend the
famous for, and connect with your
recent winner of the Legal
legal aid system.
colleagues at evening social events.
Aid Leader Award.
discussion on the Envisioning Equal
Justice
initiative
and
voting on
resolutions concerning current legal
spent
For more about Deanna,
Details and registration:
Having
legal
and how you can nominate
www.cba.org/tremblant2013
career assisting clients in
a deserving colleague for
need, Ludowicz has built a
the award, visit:
reputation as a champion
www.cba.org/CBA/
for
Advocacy/legalAid/
those
her
advocate and for encouraging others
without
an
Judges Act amendments lauded
The CBA applauds the government’s
response to the quadrennial Judicial
clear and public response to the
Compensation
independent
for
Commission from six months to four,
judicial compensation contained in
and to introduce legislation in a
amendments to the Judges Act included
timelier manner.
review
process
in the latest omnibus budget bill. In the
amendments, the federal government
has proposed to reduce the time for its
News release:
and
Benefits
http://www.cba.org/
CBA/News/2012_Releases/2012-11-22judgesact-eng.aspx
10 | ARCTIC OBITER
ANNUAL GENERAL MEETING
THE 35TH ANNUAL GENERAL MEETING OF THE LAW SOCIETY OF THE NORTHWEST TERRITORIES WAS HELD ON SATURDAY,
DECEMBER 1, 2012, IN YELLOWKNIFE. THE FOLLOWING ARE SOME OF THE HIGHLIGHTS FROM THE MEETING.
Is National Mobility Possible in the North?
The Territorial Mobility Agreement (TMA), signed by all
jurisdictions in December 2006, was a five-year agreement
parallel with the National Mobility Agreement (NMA).
It
contained the permanent mobility provisions found in the
NMA, but still allowed the three territories to manage
temporary mobility on terms tailored for the unique Northern
legal climates.
In December 2011, Federation members
renewed the TMA indefinitely. It was decided that, although
intervener status in this challenge.
“Several factors suggest that it is time to take a close look at
our position on temporary mobility,” says former President
Cayley Thomas, recognizing the Nunavut challenge and FLSC
review. “Technology and the global marketplace have blurred
geographic borders to the extent that some see a ‘national law
society’ in the not-so-distant future.”
a suitable alternative had not been tabled to address the
The push for national standards by the FLSC’s members
differences between the two agreements, a review of the
comes with its own pressures on the territories, as well as
factors and challenges impeding the territories from signing
Quebec.
onto the NMA is still very necessary.
Member and NWT Representative, reported to members that
The FLSC is set to
complete this review by December 2014.
In the interim, a constitutional challenge in Nunavut has
intensified the issue.
The challenge targets the admission
requirements of the Law Society of Nunavut, which
However, Sheila MacPherson, FLSC Council
Quebec is now proposing to fully sign onto the NMA, thereby
moving the spotlight squarely on the territories. In her report,
Sheila cautions that “both the Quebec initiative and the
Nunavut challenge make this review timely and important.”
purportedly breach various sections of the Charter. Having
Echoed by Sheila’s report, Cayley urged members to approach
similar requirements, and recognizing the impact this
this issue proactively and “review this requirement and
challenge will have on all territories, the Northwest Territories
consider what impact temporary mobility would have on our
and Yukon have requested (and have been granted)
ability to be an independent self-regulating body.”
Interest Rates on Trust Accounts
by Emerald Murphy, Chair, Law Foundation of the NWT
At the recent Law Society General Membership Meeting, I
promised to let Members know about the interest rates being
paid by the chartered banks on trust accounts:
accounts held at the Scotia Bank for the 2 ½ to 3 years.
When
choosing
depositing
a
your
BMO
Prime minus 2.00 (yields 1.00%)
accounts,
CIBC
remember that interest
Royal
TD
Scotia
The Law Foundation has received no interest on trust
bank
trust
please
earned on the trust
accounts are the only
funds
the
Foundation
Law
receives,
aside from our share of
national Cy-Pres awards.
for
NOVEMBER/DECEMBER 2012 | 11
Recruitment & Retention an Ongoing Challenge
Following its formation at the AGM in 2003, the Recruitment
& Retention Committee made initial recommendations to
promote the North on the Law Society website, distribute
promotional materials, consider career fair participation and
develop a colleague network/mentorship program.
the committee was no longer there.
During the discussion at the 2012 AGM of sunsetting the
committee, it was suggested that the Law Society staff is
equipped to maintain and expand on the recommendations
made by the committee in the last year and in previous years.
In later years, it was recognized that there was a “serious
As such, using these various recommendations as a guide,
crisis” regarding the size and availability of the private bar,
Executive Director Linda Whitford assured members the
and of the profession in general.
However, committee
office will continue to promote the North to new lawyers and
participation from the private bar was limited or non-
develop & improve strategies to retain existing lawyers.
existant, preventing the committee from plotting a proper
Currently, the Law Society maintains a “Prospects” sub-site
course of action. In short, it became apparent that the private
(which includes promotional videos, testimonials, job
bar wasn’t hiring.
opportunities, and facts on the NWT), and continues to
That realization has been echoed in recent meetings: a
shortage of Northern law firms directly impacts the ability of
a new lawyer to find employment in the North. There is no
longer a shortage of lawyers seeking employment, but rather
a shortage of employers.
distribute a “Look Up” DVD and accompanying booklet. It
is also developing a social mentorship program for new
lawyers
to
get
acquainted
with
the
Northern
legal
community, both socially and professionally.
The motion to sunset the ad hoc Recruitment & Retention
It was therefore decided at the last committee meeting that
the committee has likely run its course, and that the need for
Committee was voted in favour amidst members seeking to
continue the discussion through some other venue.
Rule Amendments
A total of five amendments were proposed, adopted and
PRACTICE CESSATION
registered in December. The amendments, as proposed, are
The rules now provide clarification on the requirements of
available on the Law Society website.
members ceasing to practice in the Northwest Territories. A
The following is a
summary of the amendments:
LAW SOCIETY EXECUTIVE
Following the current Executive, the Law Society Executive
will be comprised of five members (the fifth being a member-
“cessation of practice plan” is required from those ceasing the
private practice of law in the NWT and/or ceasing active
membership. Details of the requirements and deadlines are
also found in the rules.
at-large) and one lay-member. As well, elected members will
ANNUAL MEMBERSHIP FEE
now serve a three-year term.
As of April 1, 2013, the annual active membership fee will be
ELECTRONIC BALLOTS AND FILING
increased by $150 to $1250.00.
Elections may now be conducted by electronic ballot, and
EDUCATION PLAN
forms and notices may be received and delivered by electronic
As of April 1, 2013, Students-at-Law will be required to
format.
complete an education plan as part of their application
The use of these rules is at the discretion of the
Executive.
package.
12 | ARCTIC OBITER
Kay Receives President’s Award
Sarah A.E. Kay of Yellowknife was presented with the 2012
President’s Award at the 35th Annual General Meeting of
the Law Society.
Sarah, a member of the NWT bar since 1993, is a Past
President of the Canadian Bar Association - NWT Branch
(1999-2000) and the Law Society of the Northwest Territories
(2002), and former Council Member at the Federation of Law
Societies of Canada. She has also participated in numerous
committees and sections, often leading as chair.
In 2012
alone, she was Chair of the Rules Committee and the Court
Library Review Committee (ad hoc), Vice-Chair of the
Discipline
committee,
a
member
of
the
Admissions
Committee, and a representative on the Court Library
Committee.
Her strongest traits are arguably in mentorship and
education.
In
recent
years,
partnering
with
TIME FOR TIME: President Cayley Thomas [left] presents award to Sarah Kay.
Sheila
been
provide insight, guidance and advice. She was always a
committed to the success of an ongoing Intensive Trial
wonderful colleague and a resource to talk about legal issues
Advocacy Program geared towards Northern lawyers. As
with, or simply to bounce ideas off of.”
MacPherson
and
other
volunteers,
Sarah
has
Chair of the CPD Committee for a number of years, she also
played a pivotal role in the implementation of Mandatory
CPD, following suit with neighboring jurisdictions.
Outside the office, Kay’s community involvement is
seemingly endless. Over the years, she has contributed her
time and efforts to the Lottery Authority Board (1999 to
One-on-one, her role as principal has greatly affected a
2010), Stanton Territorial Hospital Foundation (2001-2006),
number of lawyer’s careers. As her most recent articling
Labour Standards Board of the NWT (2003-2004), Certified
student turned lawyer, Alanhea Vogt, can attest, “[she] went
General Accountants Association (2002-2005), Yellowknife
above and beyond in ensuring that I had all the tools and
Condominium Corporation (1996-2003), and the NWT Law
support I required to be successful and to gain the skills I
Line (1993-2005).
required to be a competent and positive contributing
member of the legal profession.”
“Ms. Kay is one of the finest examples of a legal
professional,” adds Paul. “By her own actions, Ms. Kay has
Sarah’s role as a mentor still echoes even among the more
taught me that it is invaluable to our profession that lawyers
senior bar, as Paul Smith (Smith & Associates, Yellowknife)
give back to new practitioners.”
professes: “In terms of mentorship, I can think of no one I
have encountered in this Bar since my admission to it in 1998
who [better] exemplifies the qualities of leadership, care,
guidance and collegiality which are the hallmarks of our
profession and this Bar.”
“Sarah always took the time to discuss issues with me, to
The President’s Award is presented by the President of the
Law Society to a member who has shown exemplary
commitment to and involvement in the legal profession and
their community. The annual award was created in 2011,
when it was presented by then-President Sheila MacPherson
to Ian Rennie of Yellowknife.
Executor’s Insurance
by Jordan M. Atin, Counsel, Hull & Hull LLP1
At a seminar last week, a group of lay people were asked if
assets, or limit it to the extent that a right of indemnity exists
anyone had acted as an executor before. About ¾ of the
against such assets, but that depends essentially on the terms of the
group proudly raised their hands. The next question - would
contract with the third party…”3
any of you do it again? - resulted in many fewer raised
hands.
Where an executor hires a solicitor4, broker, realtor or
undertaker, the executor is the primary debtor, but the
For those who counsel executors, the reaction is not
creditor who provided the services may be subrogated to the
surprising.
from
executor's right of indemnity against the estate if it was an
beneficiaries about their inheritance, the stress of deadlines
expense properly incurred.5 Indemnification from the estate
and working with professionals, the necessity of keeping
is available only if the contract is a “proper one in the
meticulous accounting and even the rafts and rafts of paper
circumstances”6.
The
workload,
the
endless
calls
and documents that must be kept, make the thankless job
time-consuming and frustrating. More correctly, the job is
worse than thankless. How often do we see disgruntled
beneficiaries criticising the job the executor has done and
seeking to reduce the compensation that the executor has
sought?
But, it can get much, much worse. When one takes on the job
LIABILITY IN TORT
Negligence by the executor can render the executor
personally liable to the beneficiaries and creditors of the
estate. Some examples where executors could be found
negligent are:
1.
the terms of, the Will7;
of executor, she is putting her own personal assets on the
line. As Justice Maurice Cullity stated in his seminal article
improperly interpreting, or not properly following
2.
paying the wrong amounts to the wrong parties8;
3.
improper disbursements for funeral and creditor
(Personal Liability of Trustees and Rights of Indemnification):
“The risk of personal liability is an incident of the office of
claims9;
trustee.”2
Personal liability can result in contract and tort.
4.
improperly preferring one creditor over another 10 ;
LIABILITY IN CONTRACT
5.
missing an heir11;
An executor who contracts in relation to the estate is
6.
not prudently investing the estate assets12;
7.
breach of the even hand rule13;
8.
self-dealing14;
9.
delay in payment to beneficiaries15;
personally liable to the contractor.
“The starting point is, of course, that a trustee, in that capacity,
deals with third parties as a principal. Ignoring at this stage
situations in which relationships of trust and agency coincide, the
traditional rule has been that a trustee normally incurs personal
liability to the full extent when contracting with a third party. The
trustee may limit that personal liability to the value of the trust
10. not properly protecting estate assets, for example
not changing locks or purchasing fire insurance or
14 | ARCTIC OBITER
keeping a property in repair16;
11. not selling assets in a timely way17;
12. improvident sales of assets18;
13. failing to invest excess cash19;
14. unreasonably prosecuting or defending litigation on
behalf of the Estate20;
protect us when we act as an executor.
LawPro’s standard E&O policy insures lawyers in respect of
“Professional Services”. Those are defined as follows in the
2012 Policy:
“(z) PROFESSIONAL SERVICES means the
practice of the Law of Canada, its provinces
and territories, and specifically, those services
performed, or which ought to have been
15. not prosecuting a claim against a 3rd party in time21;
performed, by or on behalf of an INSURED in
16. improper delegation of duties22;
such INSURED’S capacity as a LAWYER or
member
17. improvident settlements; and
18. failure to keep accurate records of the
administration.
of
the
law
society
of
a
RECIPROCATING JURISDICTION, subject to
Part II Special Provision A; and shall include,
without
restricting
foregoing,
those
the
generality
services
for
of
the
which
the
Under Ontario’s Estates Act and in many other jurisdictions,
INSURED is responsible as a LAWYER arising
a Judge may order damages against the executor for
out of such INSURED’S activity as a trustee,
misconduct, neglect or default which results in loss to the
administrator, executor,
estate.
patent or trademark agent.”
arbitrator,
mediator,
There are many examples of cases where courts have found
The manner in which your appointment as Estate Trustee
that executor’s have breached their duty as fiduciaries. In
came about is particularly relevant to the coverage issue.
some cases, the executor’s compensation is reduced and no
LawPro’s current view is that if a lawyer was appointed as
additional damages are ordered against the executor.
Estate Trustee by a client of the lawyer’s firm, the lawyer’s
However, in the recent Ontario decision of Justice George
Strathy in Zimmerman v. McMichael Estate, (2010 CarswellOnt
3481) the trustee was found to have been negligent in the
administration of the trust. In addition to being deprived of
compensation, the court ordered that he reimburse the estate
personally. The trustee was also required to pay the
beneficiaries over $270,000 in costs from his own pocket.
Whether or not the allegation of negligence against an
executor is ultimately upheld by a court, the executor is still
put to the expense of defending such a claim. In many cases,
the costs awarded to a successful executor will not
completely indemnify him or her and thus, he or she is
services as Estate Trustee in the administration of the estate
falls under the definition of “Professional Services”. In those
circumstances, the appointment arose from the practice of
law. If, on the other hand, the lawyer was appointed as an
Estate Trustee by a family member or friend who is not a
client of the firm, LawPro takes the general view that your
executorship is not covered by the definition of Professional
Services.
A lawyer who is appointed as Estate Trustee by a client is
still covered even if he or she retains separate legal counsel
to act on his or her behalf and does not perform the legal
work relating to the estate himself or herself.23
personally liable to some extent, for his or her own defence
There is some coverage for retired lawyers who act as an
costs.
Estate Trustee in circumstances where that lawyer would
LAWPRO COVERAGE FOR EXECUTOR/LAWYERS
As lawyers, we have professional E&O insurance which may
otherwise have been covered (e.g. where the appointment
arose from her practice of law). This “run-off” coverage
continues, but unless excess coverage is purchased, is limited
to $250,000, in the aggregate. In any case, LawPro
recommends that a retired lawyer should advise LawPro of
any estates for which she is administering as Estate Trustee.
beneficiaries are the same.
The benefits seem clear—a client won’t have to put his or her
own house on the line when granted the “honour” of acting
as executor. The executor would also have some protection
Lawyers personally pay the premiums for that policy and, if
for legal costs incurred in defending a negligence claim by
a claim is made on it, the lawyer is responsible to pay the
the beneficiaries which might not be covered by the Estate.
increase in the premiums and the deductible.
EXECUTOR’S INSURANCE
A
relatively
Insurance 24
new
has
product
been
–Executor’s
unveiled
to
the
profession and the public.
Executor’s Insurance, like title insurance, 2
decades
ago,
may
become
a
routinely
recommended product to executors. The policy
provides coverage to executors for Damages
arising out of a Claim as a result of the
executor’s error, omission or negligent act in
the performance of, or failure to perform, an
executor’s duties. These damages include:
1. defence costs;
2. damages to correct the error or to make
the estate whole;
3. costs awarded against the Insured; and
4. reasonable expenses.
POLICY POINTS OF INTEREST
ERAssure’s policy contains a few notable points:
1. Coverage applies even before a formal claim is
commenced;
As well, assuming that the estate itself can look to the policy
to be made whole from the executor’s negligence without
having to chase the executor for damages would be
appealing to the beneficiaries. In the Zimmerman case, the
trustee ultimately died before repaying the estate. In the
Globe & Mail, one of the beneficiaries was quoted as saying
“I’m not sure that [we] will recoup anything, but we’ll see”.
POLICY PREMIUMS
2. Damages include compensatory damages, but do
Two questions immediately jump to mind: How much does
not cover a reduction of executor’s compensation;
it cost? Who is going to be responsible to pay the premiums?
3. The policy does not cover income or probate tax
The cost of the policy depends on the size of the estate. For
liability, but does cover certain defence costs in
an estate of $1,000,000 the cost for a three year policy is
certain circumstances; and
approximately $2,000. Coverage extends to estates of any
size, but certain limits of insurance may vary depending on
4. Coverage requires probate of the Will, but still
applies to multiple wills when the executors and
the circumstances of the estate.
16 | ARCTIC OBITER
The issue of whether the premiums can be paid from the
in cases where the executor is sued by the beneficiary.
estate or are the responsibility of the executor personally is
Common situations are where the executor claims that he
not
to
was not properly advised by the lawyer, for example, not
indemnification for costs incurred in his duties, a strong
clear.
As
an
executor
is
generally
entitled
being advised to keep proper records or the requirements of
argument can be made that a policy of insurance is an
the Trustee Act for prudent investing. These claims arise
indemnification of his possible costs. In addition, there is
once the beneficiaries commence a claim against the
likely a benefit to the beneficiaries. For example, the executor
executor.
incurs expenses in successfully defending a claim for
negligence brought by one of the beneficiaries. Without
Executor’s Insurance, the executor would look to the estate
to pay those expenses. If there is a policy of Executor’s
Insurance in place, the insurance will cover those expenses.
To date there has not been a judicial decision regarding this
issue.
BENEFITS/RISKS TO LAWYERS
Executor’s Insurance can provide protection to Lawyers.
Lawyers are increasingly being sued by their executor/clients
In situations where there is Executor’s Insurance, the
executor would not have to make a claim against the lawyer.
Instead, any damages and costs the executor incurs as a
result of the claim are covered and there is no need to bring
the lawyer in as a 3rd party.
ERAssure’s policy waives the subrogation rights against the
lawyer in every case.
For lawyers who are acting as executors, Executor’s
Insurance also provides an alternative to putting one’s own
E&O insurance on the line. If a claim is made against the
lawyer for negligence in respect of his administration of the
estate, the lawyer can rely on the Executor’s Insurance
policy, which has no increased premiums or trailer fees.
However, the very existence of Executor’s Insurance gives
rise to risks to lawyers as well.
Advising Clients about Executor’s Insurance
Take the following example: You are retained by an
executor. You do not mention the existence of Executor’s
Insurance. He is later sued by a beneficiary for not
discharging his executor’s duties and is found personally
liable for damages. His lawyer writes to you asking why you
did not advise him that he could have purchased Executor’s
Insurance.
As a matter of risk management, whether one is a proponent
of Executor’s Insurance or not, a simple statement that such
insurance is available will avoid this risk.
“I confirm that I advised you that:
improperly carrying out their duties. Your
personal assets may be at risk if you are found
liable;
determine(s) in his/her/their sole discretion is sufficient to
protect my Trustee(s) against claims and losses arising from
executors which could protect the executor’s
from incurring damages and costs of claims of
negligence.
If you are interested in finding out more about
Executor’s Insurance, please let me know.”
errors or omissions in the administration of the estate. The
cost of such insurance shall not be deducted from the
compensation to which my Trustee(s) is/are otherwise
entitled for so acting.
CLOSING
While it is clear that Executor’s Insurance will not cover all
If the client does not wish to pursue Executor’s Insurance
potential liability, it does provide similar coverage to
you may wish to confirm that in your reporting letter as
LawPro in respect of executor’s liability and perhaps even
well.
broader circumstances.
ADVISING THE TESTATOR
Whether or not, one is going to use Executor Insurance for
Similarly, a testator who wishes to protect her executor from
oneself, it is likely something that should be raised with
liability should be advised of the availability of Executor’s
every executor-client to not only protect the client, but also
Insurance. If the testator desires that the executor purchase
to protect the lawyer.
insurance, a clause authorizes its purchase and premium
payment from the estate may be indicated.
“I authorize my Trustee(s) to purchase, at the expense of my
estate, such errors and omission insurance as my Trustee(s)
1 The assistance of Noah Weisberg, Hull & Hull, LLP is gratefully acknowledged.
Jordan M. Atin is counsel at Hull & Hull LLP (Toronto) and maintains a
mediation practice at Hull Estate Mediation Inc. He is a frequent speaker
at Osgoode Hall Law School, Ontario Bar Association and Law Society of
Upper Canada programs on estate matters.
2 “Personal Liability of Trustees and Rights of Indemnification”, [1996] 16 E.T.J. 115
14 Daly v. Brown (1907), 39 S.C.R. 122 (S.C.C.); MacCulloch Estate (Trustee of) v.
MacCulloch (1986), 22 E.T.R. 34 (N.S. C.A.)
3 “Personal Liability of Trustees and Rights of Indemnification”, supra at 127
15 Seaman v. Dee (1672), 2 Lev. 40
4 See as an example: McComb Dockrill v. Kikas, 2007 CarswellOnt 171 (Ont. S.C.J.)
16 Davies v. Nelson (1927), 61 O.L.R. 457 (Ont. C.A.); Bentley v. Canada Trust Co.
(1992), 48 E.T.R. 111 (B.C. S.C.)
5 Weldon v. Canadian Surety Co. (1966), 64 D.L.R. (2d) 735 (N.S. Co.Ct.)
6 Halsbury's Laws of England, 4[th] Edition, Vol. 17(2), at para. 469
7 Patton, Re, [1931] 3 D.L.R. 544 (Ont. H.C.); Smullen Estate, Re(1995), 6 E.T.R. (2d)
299 (Ont. Gen. Div.); additional reasons at (June 26, 1995), Doc. A110/94 (Ont. Gen.
Div.); McRae v. McRae Estate (1994), 2 E.T.R. (2d) 225 (B.C. C.A.); leave to appeal
refused(1994), 4 E.T.R. (2d) 14 (note) (S.C.C.).
8 See Re Diplock Estate; Diplock v. Wintle, [1948] 1Ch. 465 in which it was held that
a claim could succeed against a beneficiary wrongly paid funds from an estate but
only for the shortfall after suing the executors.
9 Stag v. Punter (1744), 3 Atk. 119; Hancock v. Podmore(1830), 1 Barn. & Adol. 260.
Loewen Funeral Chapel Ltd. v. Yanz (1999), 27 E.T.R. (2d) 269 (Man. Q.B.); Midgley
v. Midgley, [1893] 3 Ch. 282 (Eng. C.A.)
10 Zajachowski v. Worebetz(1937), [1938] 2 W.W.R. 575 (Sask. C.A.).
11 See Re Gareau Estate, 1995 CarswellOnt 821, 9 E.T.R. (2d) 25 (Ont. C.J. (Gen.
Div.)
12 Tebbs v. Carpenter (1816), 1 Madd. 290; Fales v. Canada Permanent Trust
Company (1977), 2 S.C.R. 302
13 Smith, Re (1971), 18 D.L.R. (3d) 405(Ont. C.A.).
17 Kemp v. Kemp (1996), 12 E.T.R. (2d) 290(Ont. Gen. Div.); Zurosky Estate, Re,
[1992] O.J. No. 1294 (Ont. Gen. Div.)
18 Redmond v. Mitchell Estate (1995), 9 E.T.R. (2d) 203 (Alta. Surr. Ct.); Bronson v.
Hewitt, 2010 BCSC 169, 58 E.T.R. (3d) 14;
19 Litton v. Litton (1719), 1 P. Wms. 543; Morris v. Dillingham, 2 Ves. Jun. 170;
MacIntyre Estate, Re (1989), 92 N.S.R. (2d) 110 (N.S. Prob. Ct.).
20 Laird v. Lyne Estate, [2004] B.C.J. No. 45, 5 E.T.R. (3d) 132, 2004 CarswellBC 47,
2004 BCSC 39 (S.C. [In Chambers])
21 Hayward v. Kinsey(1701), 12 Mod. 568; Powell v. Evans (1801), 5 Ves. 838; Stiles
v. Guy (1849), 1 M. & G. 422.
22 Wagner v. Van Cleeff (1991), 5 O.R. (3d) 477(Ont. Div. Ct.); reversing (1989), 70
O.R. (2d) 641 (Ont. Surr. Ct.); additional reasons at (February 6, 1990), Doc. Ottawa
-Carleton 6065/88 (Ont. Surr. Ct.)
23 These statements represent LawPro’s current position in these general
circumstances. Each insured should satisfy himself or herself as to coverage in
specific circumstances.
24 The only current provider is ERAssure.
18 | ARCTIC OBITER
Why is Your Law Firm Merging?
by Jordan Furlong (Law21.ca)
What do you think of when you read the phrase “a large law
new mega-firm 17 years to reach the $10 billion mark. It can be
firm”?
done, and it may very well happen. But it won’t be overnight.
What type of law firm comes into your mind? How many
So when we talk about “large law firms,” we need to remember
lawyers does it have? In how many jurisdictions is it located?
that size is relative. The very last company listed in the most
What is its annual turnover? How you answer these questions
recent Fortune 500 reported annual revenue in the $22 billion
will vary according to your own market and how that market
range. Our largest law firms are pikers by comparison.
has shaped your expectations around size.
There are plenty of reasons cited to explain why law firms seem
If, like me, you’re based in Canada, a large law firm generally
to have a natural size limit, most prominently conflicts of
means an entity with more than 500 lawyers and a substantial
interest rules and other ethical or regulatory constraints.
presence in four or more major cities. (At least, up until this
Personally, I think that’s an excuse: if we really wanted 50,000-
week it did; but after Fraser Milner Casgrain agreed to join
lawyer law firms spanning the globe, we’d have found a way
SNR Denton and Norton Rose announced its merger with
around our self-imposed regulations before now.
Fulbright & Jaworski, that definition may be changing —
here’s a brief video of my thoughts on those two mergers.) But
“a large law firm” will mean something different in India,
Australia, the United Kingdom or the United States — and it
will vary again as between Delhi and Jaipur, Sydney and Perth,
London and Glasgow, New York and Denver.
The real explanation, to my mind, is that law firms can only
grow so large before they transition from “difficult to manage”
to “utterly unmanageable.” Law firms of all sizes are unwieldy
collections of ferociously independent and self-interested
lawyers famously reluctant to place organizational gain above
personal advancement. These are character traits, it should go
No matter how you measure size, however, you would
without saying, deeply inimical to building a world-class
probably agree that the world’s biggest firms are behemoths.
enterprise.
They employ more than 2,000 lawyers (sometimes many more),
they maintain more than 25 offices in numerous countries, and
they generate in the neighbourhood of $2 billion in revenue
every year. Norton Rose, following the completion of its
Fulbright merger next June, will have an astonishing 3,800
lawyers in 55 offices worldwide. These are our profession’s
giants, the legal colossi of the globe.
I once had lunch with a partner in a Big Four accounting firm,
and I noticed that he constantly spoke in “we.” He talked first
and foremost about the firm’s work and the firm’s objectives,
the firm’s future plans, competitive strengths and long-term
strategies. His own expertise was important insofar as it
contributed to and reinforced what the firm was doing. Contrast
that with the way many lawyers usually talk: in the first-person
Now, stack the planet’s biggest law firms up against the Big 4
singular. They refer to their law firm not as the strategic core of
accounting firms. George Beaton of Beaton Consulting in
their work, but as a beneficial platform or vehicle for what they
Australia did just that in an article published earlier this
do. The firm’s attributes are important for how they support the
fall. Each of these four firms, George pointed out, employs
lawyer’s personal focus and expertise, rather than the other way
upwards of 100,000 people. The smallest of the four generates
around.
$20 billion annually. Each is larger than many of its big clients.
If you merged the world’s two largest law firms and gave the
new enterprise 5% annual growth, he noted, it would take the
That’s why, if you’re looking to build a really huge law firm —
whether you go the full merger route or take the Swiss Verein
path or choose some other way there — you’re probably going
Similarly, disruption has come to the legal talent model. If you
to want to find a way to reduce the importance of lawyers in
can get good, solid work from a contract lawyer, or a lawyer in
revenue generation.
Mumbai or Manila or Belfast, or in an innovative firm like
Start by asking yourself: why do we want our firm to be bigger?
Why do we want to expand? There are plenty of good answers
to that question, most of them to do with serving multinational
clients, following them around the globe, picking up new
business in emerging economies, and so forth. There are also
Axiom Law or Keystone Law, or from the lawyer’s own home
— and you can — why would you put that lawyer in your
expensive offices, on your full-time payroll, with salary and
benefits and overhead? What’s so all-fired great about having
tons of lawyers on hand?
bad answers, including hubris, management ego, and expansion
The answer to that question used to be self-evident: Leverage.
as a substitute for strategy.
Billable hours. Profit generation by the simple expedient of
But if you’re looking to get bigger so that you can better serve
your clients, then maybe, as my Edge colleagues Pam Woldow
and Doug Richardson suggest, you should ask your clients
what they think about that. Chances are they’ll tell you that
adding bodies to files. Those days, as I’m sure you’ve noticed,
are gone. The business rationales that promoted “lawyer
growth” as a stand-alone and sufficient profitability strategy are
gone.
they’re not terribly excited by the prospect of their firm getting
And lawyers, as I noted above, are often stumbling blocks to
bigger. Very few people have ever found themselves saying,
growth. Lawyers thrive on being big fish, and the bigger the
“Why yes, I’d love to have more lawyers.”
pond, the smaller and less satisfied they’re going to feel.
Moreover, as Gerry Riskin and Mike White explain, simply
adding lawyers in another city or state or country is no
guarantee that a client with business in that jurisdiction will
automatically give that business to you. Think about it: if a
competitor opened up an office in one of your current locations,
would you expect your own clients to instantly decamp to the
Lawyers want control over their environments, and as the
environment expands, their control lessens. Expansion requires
short-term risk for long-term gain, and lawyers tend to dislike
both. Lawyers are hard to manage, and thousands of lawyers
are thousands of times harder to manage. There’s a pattern
emerging here.
competition’s new office? Wouldn’t you be shocked and
“More lawyers in more offices in more locations” is not an end
outraged if they did? Then why would you adopt expansion
in itself. More revenue, higher efficiency, and greater profit, all
strategies that employ exactly that line of reasoning in the other
delivered courtesy of satisfied clients — that’s the end you have
direction?
in mind. Mergers and quasi-mergers might well be the perfect
Here’s the thing: Growth in a law business is not the same thing
vehicle to get you there. But there are other routes, too.
as adding more lawyers. Law firms do not exist in order to
If you want your firm to grow, then you need to clarify exactly,
provide steady employment to the maximum number of
precisely, in show-your-work detail, why that is. And you need
lawyers — or, if they ever did, they don’t any longer. Law firms
to remember that lawyers are no longer the only or best
exist to provide legal services to the market in a cost-effective
available driver of revenue in law firms. I suggest you take
and profitable manner. “Adding more lawyers” is no longer the
these two thoughts with you into your next law firm strategy
first and only way to make firms bigger and better.
meeting.
Technological advances are disrupting many traditional ways in
which legal work is done. Automated contract creation, ediscovery packages, data-crunching analysis systems, expert
applications that answer regulatory and compliance questions,
online dispute systems powered by game theory — all these
programs and functionalities are available on the market,
right now. They do work that lawyers used to do. Full stop.
Jordan Furlong delivers dynamic and thought-provoking presentations to
law firms and legal organizations throughout North America on how to
survive and profit from the extraordinary changes underway in the legal
services marketplace. He is a partner with Edge International and a
senior consultant with Stem Legal Web Enterprises.
This article was originally published on Law21.ca on November 15, 2012.
20 | ARCTIC OBITER
NWT LEGISLATIVE NEWS
by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice
CREDIT UNION ACT
parties in the course of a court process.
An Act to Repeal the Credit Union Act,
S.N.W.T. 2012, c.13, came into force on
Assent on November 6, 2012. The Act
repeals the Credit
Union
Act and
consequentially amends two statutes.
VITAL STATISTICS ACT
The Vital Statistics Act, S.N.W.T. 2011,
c.34, summarized in the July / August
LEGAL AID ACT
The Legal Aid Act, S.N.W.T. 2012, c.17,
received Assent on November 6, 2012,
and will be brought into force by future
order of the Commissioner. The Act
2011 NWT Legislative News, will be
brought into force on January 1, 2013 by
order of the Commissioner registered
December 7, 2012 as SI-004-2012. The
Act replaces the present Act of the same
HUMAN RIGHTS ACT
replaces the Legal Services Act, continues
An Act to Amend the Human Rights Act,
the Legal Services Board of the
No. 2, S.N.W.T. 2012, c.14, came into
Northwest Territories as the Northwest
force on Assent on November 6, 2012.
Territories Legal Aid Commission and
The Act amends the Human Rights Act
provides a modernized framework for
to add, as a prohibited ground of
the operations of the legal aid program
The
discrimination, a conviction that is
in the Northwest Territories.
registered December 7, 2012 as R-086-
S.N.W.T. 2012, c.16, came into force on
Assent on November 6, 2012. The Act
includes amendments that will allow a
adoptions, stillbirths, marriages and
deaths in the Northwest Territories.
Vital
Statistics
Regulations,
addition to setting out the fees payable
IT’S ALL ONLINE!
An Act to Amend the Judicature Act,
framework for the registration of births,
2012, come into force January 1, 2013. In
subject to a record suspension.
JUDICATURE ACT
name and provides a comprehensive
under the Vital Statistics Act and the
Find Certified Bills, Consolidations of
Acts, Regulations and Court Rules, and
the Northwest Territories Gazette at the
GNWT website:
content of forms, the regulations set out
http://www.justice.gov.nt.ca/
Legislation/SearchLeg&Reg.shtml
vital statistics information and establish
the evidence required to support
various applications for registration of
who may have access to information
person to file with the Clerk of the
from
Supreme Court a trade order made
regulations made under the present
against
the
Government
of
the
under
the
vital statistics records.
All
Vital Statistics Act will be repealed on
LEGAL PROFESSION ACT
the expiry of December 31, 2012 (see the
authority of the Agreement on Internal
The Rules of the Law Society of the
three repealing instruments registered
Trade (AIT). Upon filing, a trade order
Northwest Territories were amended by
as R-083-2012, R-084-2012 and R-085-
is deemed, for the purposes of enforcing
five regulations, each approved at the
2012, respectively).
payment, to be an order of the Court.
Annual General Meeting of the Law
These amendments were made to meet
Society on December 1, 2012. The five
an obligation agreed to by parties to the
amendments
AIT respecting the enforceability of
December 4, 2012 as R-077-2012, R-078-
trade orders. The Act also amends the
2012, R-079-2012, R-080-2012 and R-081-
regulations-making authority to allow
2012, respectively.
Northwest
Territories
were
registered
on
The NWT Legislative News is not a
comprehensive report of legislative
enactments. Only items considered to be of
interest to the Bar are listed.
for the establishment of fees for persons
who provide services to a court or to
CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS
The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to
their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is
available on the CBA-BC website: cba.org/bc
NWT DECISION DIGEST
by Maureen McGuire, Appellate Counsel, Alberta Justice
COURT OF APPEAL
CRIMINAL LAW – JURY TRIALS –
CROWN OPENING STATEMENT
R v Lafferty
2012 NWTCA 13 (CanLII) | November 6, 2012
Presiding: Justice C. Hunt
judge must be correct in identifying the
least, instruct the jury about the
legal test for summary judgment. Here,
appellant’s
no palpable overriding error was made
emphasize that his guilt could not be
by the chambers judge in determining
determined from his failure to reveal his
that the issue of non-disclosure was
defence to the police. Absent such an
significant and amounted to a genuine
instruction, there was a serious risk that
issue for trial. The judge applied the
the evidence was misused by the jury.
right
to
silence
and
correct test and made no errors of
Justice K.G. Ritter
principle in reaching her conclusion.
Justice N.A. Sharkey
For the Appellant: C.B. Davison
For the Respondent: A.P. Godfrey
CRIMINAL LAW – REASONABLE
DOUBT – ASSESSMENT OF
CREDIBILITY
for a sexual assault charge, Crown
CRIMINAL PROCEDURE – CROSSEXAMINATION – RIGHT TO SILENCE
counsel asked the jury to watch the
R v Lafferty
appellant as the witnesses testified. The
trial judge gave defence counsel an
In the opening statement in a jury trial
for Crown counsel to ask the jury to
observe the appellant’s demeanour, that
statement did not result in trial
unfairness.
Defence counsel did not
object, and when given an opportunity
to respond, said nothing.
combined
with the
trial
This,
judge’s
instructions, reduced the effect of the
inappropriate and incorrect opening
statement.
CIVIL PROCEDURE – SUMMARY
JUDGMENT – STANDARD OF
REVIEW
Heron v Heron
For the Appellant: C.G. Wawzonek
the jury with a caution against reliance
on demeanour. While it was improper
Justice K.G. Ritter
Justice K.G. Ritter
opportunity to respond and instructed
For the Appellant: C.B. Davison
A conviction for assault causing bodily
The appellant was convicted following
harm was quashed and a new trial
a jury trial on charges of sexual assault
ordered where the trial judge did not
and assault causing bodily harm. The
follow R v W(D) with respect to the
case was essentially a credibility contest
resolution of discrepancies between
with the complainant alleging the
Crown and defence testimony. The trial
accused knocked her unconscious and
judge rejected a defence witness’s
then had sex with her.
The accused
evidence on a speculative basis, and
denied her version of events and
rejected the appellant’s testimony
asserted they had consensual sex earlier
somewhat based on the rejection of that
that week.
defence witness’s evidence.
Crown counsel cross-
judge also rejected the complainant’s
had failed to mention the earlier sexual
testimony based on her lack of sobriety.
activities when he gave a statement to
The conviction was based solely on the
police in response to the allegations. No
acceptance of her daughter’s testimony,
objection was made by defence counsel
which contained inconsistencies and
at trial.
discrepancies relevant to her reliability.
Appeal allowed and new trial ordered –
Justice K.G. Ritter
Defence counsel’s failure to object to the
cross-examination was unfortunate, as
For the Appellant: J.R. Scott
was counsel’s failure to ask the judge
For the Respondent: B. Rattan
for a limiting jury charge on the topic.
The reasonableness standard applies to
Nonetheless, in these circumstances it
review of a decision to grant or refuse
was incumbent on the judge to, at the
summary judgment, and the chambers
The trial
examined the accused about the fact he
2012 NWTCA 12 (CanLII) | November 9, 2012)
R v Gargan
There was no analysis of the daughter’s
testimony – the trial judge seems to
have convicted because he preferred the
daughter’s testimony to the defence
witnesses.
22 | ARCTIC OBITER
SUPREME COURT
FAMILY LAW – CHILD SUPPORT –
CUSTODY AND ACCESS
RETROACTIVE VARIATION
CUSTODY AND ACCESS
Ramm v Rice
Broadhead v Broadhead
2012 NWTSC 74 (CanLII) | October 1, 2012
Presiding: Justice K.A. Shaner
Presiding: Justice D.M. Cooper
For the Applicant: K. Wilford
For the Petitioner: self-represented
For the Respondent: self-represented
For the Respondent: E. Keenan-Bengts
The applicant and respondent have a
Maintenance Enforcement had been
one-year old child.
They have never
involved until the parties reached an
lived together. The child has lived with
alternate agreement permitting the
The respondent has been paying child
the applicant since birth, and the
Respondent to send money “at his own
support based on an imputed income of
respondent consented to her sole
discretion” to the children directly.
$53,000. Financial information provided
custody. The parties agreed on access,
When the petitioner felt the respondent
on this application established that his
except for the request of the applicant
was not abiding by the informal
annual income has fluctuated from
that the court impose a condition that
agreement
$27,261 to $44,455.
The applicant
the respondent not consume alcohol
Maintenance Enforcement
claimed the respondent is deliberately
within eight hours of exercising access
reopened. Arrears were then assessed
underemployed, and therefore should
or during access. The condition was not
on the basis of the full amount due over
continue to pay support based upon an
warranted. There was no evidence the
the
imputed income. The Court, however,
respondent was intoxicated during the
consideration to any money paid in
did not have enough information about
few visits he had with the child.
accordance with the agreement. While
the respondent’s education, experience
Without more, the terms of access
the agreement may not have vacated
and skills to conclude that he is
should presume the respondent will
the Order, it was reasonable for the
intentionally under-employed.
What
conduct himself as a prudent parent.
respondent to think it was his decision
had been imputed to him is not an
The respondent requested specified
when and how much to pay the
accurate reflection of what he can
access, but this was also denied.
A
children. Neither party can be faulted
reasonably be expected to make in a
specified access regime, while justified
for reaching the agreement they did or
year.
This amounts to a change of
in some cases, will necessarily interfere
for not keeping close track of the money
circumstances justifying an adjustment
with the flexibility that most parents
paid to the children.
of
require to make decisions that meet
being no means by which to determine
commensurate with his actual income.
their children’s needs.
arrears owed, if any, an Order was
Quantum of support and outstanding
Interim
arrears reduced.
accordance with the Child
The respondent also sought increased
Guidelines, without prejudice to the
There is no jurisdiction under the
access to the children. Decisions about
respondent to bring an undue hardship
Divorce Act to retroactively vary support
access are based upon the best interests
application. The respondent was also
when the child is not a ‘child of the
of
a
ordered to pay a share of the day care
marriage’ as defined in the Act at the
meaningful relationship with both
expenses (net of subsidies and tax
time of the variance application.
parents is in the best interests of
credits) in an amount proportionate to
petitioner’s application for a retroactive
children.
his share of the parties’ combined
increase in support for an older child
income.
was therefore dismissed.
Heron v Fabien
2012 NWTSC 72 (CanLII) | September 26, 2012
Presiding: Justice S.H. Smallwood
For the Applicant: self-represented
For the Children: K. Jackson
support
the
to an amount
children,
and
more
having
A graduated increase in
access was therefore ordered.
support
was
ordered in
Support
16
she
month
requested
period,
the
file be
without
However, there
granted vacating arrears for the period
August 2010 to November 2011.
The
Ongoing
support for the younger child, based
upon the Federal Child Support Guidelines
was ordered.
application of policies to the facts in the
in employing, training and promoting
appeal. The reasonableness standard is
qualified, suitable and eligible target
EMPLOYMENT LAW – STANDARD
OF REVIEW – AUTHORITY OF
STAFFING REVIEW OFFICER
therefore appropriate for judicial review
group persons.”
of his decision.
The process of
“Affirmative action candidates who
analyzing the reasons of a decision-
meet the screening criteria shall be
GNWT v DeGrow
maker to determine whether a decision
considered for an interview before non-
is reasonable involves a review of both
priority candidates.”
the reasons and the result.
clear
For the Applicant: E. Delaney
decision as a whole is reasonable or the
candidate must meet the screening
If the
that
an
Guideline 21 states,
These make it
affirmative
action
decision can be separated and what
criteria of a competition and cannot just
The Staffing Review Officer (SRO) is
remains is reasonable, then a court
be screened into a competition because
appointed pursuant to the Public Service
should consider letting the decision or
of his or her status as an affirmative
Act and regulations. It is expected that
the valid parts of the decision stand.
action candidate.
a SRO will have gained experience and
With respect to the issue of the
expertise in interpreting the Act and
jurisdiction of the SRO to make the
regulations and in the staffing processes
order he did, the correctness standard is
of the GNWT. The decision by the SRO
applicable.
required him to consider GNWT’s
human resources policy, consider facts
and come to conclusions regarding the
In this case, the SRO directed an
employment competition resume with
the respondent being screened into the
competition, granted an interview and
GNWT’s Affirmative Action Policy
the opportunity to complete the
states the GNWT “will give preference
competition process.
Pursuant to the
24 | ARCTIC OBITER
regulations, if a SRO grants an appeal,
significant departure from what both
he can make one of two directions: that
counsel had suggested. The sentencing
judge therefore had a duty to signal to
at which the error occurred, or be
CRIMINAL LAW – SENTENCING –
BREAK AND ENTER
redone.
the competition be restarted at the point
counsel her concerns.
The exchange
R v Minoza
that took place between the judge and
committee to screen the respondent into
counsel, combined with the sentencing
the competition, he exceeded his
judge’s decision to adjourn her decision,
authority.
For the Crown: D. Rideout
should have made it clear to counsel
In directing the selection
For the Accused: T. Boyd
Nine months’ incarceration and 18
CRIMINAL LAW – SENTENCING ROBBERY
R v Qitsualik & Michael
2012 NWTSC 73 (CanLII) | September 19, 2012
Presiding: Justice L.M. Charbonneau
For the Crown: M. Lecorre
For the Accused (Qitsualik): N. Homberg
months probation imposed following a
guilty plea to the offence of Break, Enter
and
Commit
Mischief.
It
was
aggravating that this was a domestic
assault type matter.
The victim was
essentially locked in her bathroom as a
prisoner in her own house.
that the position they had advanced
was problematic. Either counsel could
have requested to file authorities in
support of the range sought, but neither
chose to do so. A failure to state, in
explicit terms, that the judge is
considering
imposing
a
sentence
outside the range proposed is not an
error in principle if the record shows
For the Accused (Michael): P. Fuglsang
that counsel were, or ought to have
Sentencing of two offenders following
been, on notice that the sentencing
driver’s ribs, and $20-30 was stolen.
CRIMINAL PROCEDURE –
SENTENCING – EXCEEDING RANGE
PROPOSED BY COUNSEL
Both offenders were arrested shortly
R v Vegso
month
after the offence, and both provided
2012 NWTSC 77 (CanLII) | November 11, 2012
however, and did not sufficiently take
confessions to police. Michael was 20
into account the large gap in the
years old, and suffers from FASD.
For the Appellant: S. Fix
Qitsualik was 27 years old. Both were
For the Respondent: M. Johnson
aboriginal offenders, originally from
Appeal from a sentence of 9 months’
Nunavut.
incarceration plus 3 year driving
their guilty pleas for robbery of a taxi
driver.
Michael held a stick to the
Sentences of 30 months and 1 week, and
26 months and 1 week imposed – The
obligation of the court is, when possible,
to attempt to craft sentences that are
suited to aboriginal offenders given
their heritage.
However, that is not
guilty plea for one count of operating a
motor vehicle with excess bloodalcohol. In the court below, the Crown
a
sentence
of
In this case, the
sentencing judge’s comments were
sufficient to alert counsel.
sentence
was
The nine
excessive,
offender’s criminal record and the very
prohibition imposed following an early
sought
judge had concerns.
30
days’
incarceration plus a two year driving
early guilty plea.
CIVIL PROCEEDURE – COSTS – NONRESIDENT COUNSEL
WCB v Mercer
For the Appellant: S.R. Paul
prohibition, and the defence sought
For the Respondent (Mercer): A.F. Marshall
either a fine or imprisonment of 15-30
For the Respondent (NWTHRC): A. Akgungor
days, plus a 12-18 month driving
Mercer and the NWT Human Rights
prohibition. The appellant was subject
Commission sought costs in excess of
to a driving suspension at the time of
the tariff rate, following success on
the offence.
appeal from an administrative decision
probation and had other outstanding
Appeal allowed and sentence of
(WCB v Mercer, 2012 NWTSC 57, and
offences at the time of this offence. The
imprisonment reduced to six months.
Mercer v WCB, 2012 NWTSC 58).
guilty pleas were mitigating.
The sentence imposed constituted a
It is commonly accepted that the
always possible.
It was aggravating
that the offence was committed against
a taxi driver – a vulnerable and easy
target. It was also aggravating that a
weapon was used.
It was also
aggravating that Michael was on
successful party is entitled to costs. The
to a period when relatives provided
For the Respondent: M. Nightingale
amounts set out in the Rules are
childcare in exchange for a $500
The applicant brought an application
applicable unless otherwise ordered by
reduction in rent. Section 9(1)(a) of the
under the Interjurisdictional
the Court.
Child Support Guidelines indicates that
Orders Act.
costs in excess of the tariff amounts
child care expenses must be “incurred”
Court directed the applicant to provide
should
have
to be allowable expenses. A reduction
further information. She did not do so.
considered: the reasonableness of the
in rent payable in exchange for child
In the face of the applicant’s complete
fees, the inadequacy of the tariffs, the
care is not an “incurred” expense. The
lack of response and no request for
complexity of the matter, and whether
respondent claimed expenses for a
additional time, the application was
the issue(s) have important implications
nanny who cares for both the parties’
dismissed and the other relief sought by
for the parties or broader implications
child and the respondent’s child from
the respondent was granted.
for the community. The appeals were
another relationship. It would not be
sufficiently complex and novel to
fair to expect the applicant to assume
warrant costs in excess of the tariff
50% of the nanny’s salary in this
amount.
situation. The applicant is responsible
In determining whether
be
ordered,
courts
The issues involved had
importance
beyond
just
Mercer’s
situation, also warranting costs in
excess of the tarrif. Costs set at $5,500
for the Commission and $5,000 for
Mercer.
for his pro rata share of half the cost of
the nanny’s monthly salary.
Support
In that proceeding, the
REGULATORY OFFENCES –
CERTIORARI NOT AVAILABLE TO
CORRECT A WRONGFUL
CONVICTION
the
R v Schauerte
respondent in Saskatchewan.
The
2012 NWTSC 83 (CanLII) | December 5, 2012
applicant has specified access.
The
The
child
was
living
with
The Commission’s claim for travel
respondent claimed she should be
For the Applicant (ex parte): K.L. Penney
expenses for counsel from outside the
reimbursed for the costs of driving to
The respondent was prosecuted by the
NWT was disallowed. Parties are free
Edmonton where the applicant has
City of Yellowknife and was convicted
to retain any lawyer to represent them,
picked up the child. Traditionally, the
in absentia for driving without valid
but must recognize that claims for the
party who is exercising access is
insurance.
costs of non-resident counsel are
expected to bear the associated costs,
became aware that the respondent in
justified only in special circumstances.
barring unusual circumstances.
fact had valid insurance at the relevant
This generally requires the party to
there is no basis for determining this
time.
demonstrate there were no competent
case should deviate from the norm. If
application for certiorari, seeking to
counsel in the NWT who could
the parties continue to facilitate access
quash the conviction on the basis that
undertake the matter.
by having the respondent drive the
the Justice of the Peace breached the
child to Edmonton, then the applicant
rules of natural justice and exceeded his
will be responsible for reimbursing her
jurisdiction by proceeding in the
b a se d
absence of the accused.
FAMILY LAW – CHILD CARE
EXPENSES – COSTS OF EXERCISING
ACCESS
Zehr v MacConnell
For the Applicant: A. Duchene
For the Respondent: J.R. Scott
The parties have a three-year-old child.
on
the
cu rr e n t
Here
fe d e ra l
government mileage rate.
Subsequently, the City
The City brought an ex-parte
Application dismissed – The Summary
Conviction
Procedures
Act provides
jurisdiction for a prosecution to proceed
INTERJURISDICTIONAL SUPPORT
ORDERS
ex
Eyolfson v Buzzi
conviction.
The applicant claimed child care
expenses, including an amount related
For the Designated Authority: A. Vogt
parte where an accused fails to
appear. It is open to the respondent to
seek an extension of time to appeal his
26 | ARCTIC OBITER
CRIMINAL LAW – SENTENCING –
SEXUAL ASSAULT
Costs are a discretionary matter.
R v Littlechild
action is entitled to costs on a party-and
-party basis, calculated in accordance
CRIMINAL PROCEDURE – EVIDENCE
– CORBETT APPLICATION
with the Rules.
R v Lepine
For the Crown: J. Bond
solicitor-client basis is an exceptional
For the Accused: L. Stevens
measure, usually reserved for situations
Sentence of two years less one day
where one of the parties has displayed
For the Crown: D. Vaillancourt
imprisonment imposed following the
reprehensible conduct deserving of
offender’s guilty plea to sexual assault.
sanction. The purpose of Rule 180 is to
The offender had sexual intercourse
discourage speculative and frivolous
with the complainant after she had
applications for summary judgment. In
passed out from intoxication.
this case, the application for summary
Generally the successful party in an
The
Awarding costs on a
offender’s guilty plea was entered after
judgment was dismissed as an issue
hearing the evidence at the preliminary
was best left to be decided at trial. That
inquiry. The offender is an aboriginal
is not the same as to say the application
person with a tragic background. He is
was unreasonably brought. There was
an alcoholic.
nothing
He has an unrelated
reprehensible
in
the
criminal record. The prevalence of this
defendant’s conduct on the summary
type of crime is not something the Court
judgment application.
can lose sight of.
therefore, not be an order for solicitor-
Deterrence and
There should,
For the Defendant: P. Harte
During a trial for sexual assault, the
defence applied to prevent the Crown
from cross-examining the accused on
his criminal record.
Defence counsel
advised the court the accused would
rely on an alibi defence and planned to
give evidence on his own behalf. The
accused has a criminal record of 22
offences between 1986 and 2004,
including assault, threatening, assault
with a weapon, breaking and entering,
and possession of property obtained by
crime.
denunciation continues to be a serious
client costs against
consideration on sentencing. The fact
Whether costs should be in the cause, in
Application dismissed – Pursuant to s
that the victim was passed out is an
any event of the cause, or whether each
12 of the Canada Evidence Act, cross-
aggravating factor.
The early guilty
party should bear its costs of the motion
examination of an accused on his
plea was highly mitigating. The joint
is an issue best left in the discretion of
criminal record is presumed to be
submission was reasonable.
the judge who will hear the trial.
admissible.
CIVIL PROCEDURE – COSTS IN
SUMMARY JUDGMENT
APPLICATIONS – RULE 180
Paul’s Aircraft Services v Kenn Borek
Air Ltd.
For the Plaintiff: L. Semenchuk
For the Defendant: N. Nind
The plaintiff’s application for summary
judgment
was
dismissed.
The
defendant sought solicitor client costs,
payable forthwith. The plaintiff argued
costs should be limited to the tariff
amount and should be in the cause.
either party.
The trial judge has
discretion to disallow the cross-
was the father of the children following
2012 NWTTC 18 (CanLII) | November 30, 2012
examination where the prejudicial effect
DNA testing in November 2011, and
Presiding: Chief Judge R.D. Gorin
of allowing it will outweigh its
acknowledges his obligation to pay
probative
limiting
child support, but claims that he cannot
That the
afford to pay the Guideline amount
value,
despite
instructions to the jury.
accused’s
record
contains
no
convictions for sexual offences reduces
significantly the risk of prejudice. None
of the convictions on the accused’s
record were too remote to be probative
of credibility. The alibi defence would
necessarily require the jury to consider
the accused’s credibility. The criminal
record is highly probative of credibility
and does not contain convictions which
would lead the jury to engage in
propensity reasining, particularly if
they received appropriate instructions.
TERRITORIAL COURT
without undue hardship to him and his
family.
For the Crown: D. Vaillancourt
For the Accused: C. Wawzonek
Section 103(2)(b) of the YCJA allows the
court to convert community supervision
to
custody
where
satisfied
on
reasonable grounds that the young
Support ordered at the Guideline
person breached or was about to breach
amount - Undue hardship does not
one of his conditions, and the breach
mean some hardship or any hardship.
was “serious”. In this case, the young
The Respondent’s obligation to support
person
the twins will create a certain degree of
conditions, but argued none of the
economic hardship to his current
breaches were serious.
family, but that does not lead to the
were:
conclusion the hardship is undue.
address; failure to attend counselling;
“Undue hardship” is exceptional,
failure to comply with a curfew; failure
excessive, or disproportionate in the
to comply with the rules of his
circumstances.
residence; and consumption of alcohol.
The obligation to support children
The breaches took place within four
exists independently of any court
days of his release from custody.
admitted
to
breaches
of
The breaches
failure to reside at a specified
action, and arises when a child is born.
DAMAGES – DOG BITE
Conditional supervision order not
Non-payment of child support is
varied - “Serious” requires that the
Benoit v Pisz
deprivation to the child, and requires
breach be an “important” or “weighty”
2012 NWTTC 17 (CanLII) | October 31, 2012
the non-paying parent to make up
breach.
Presiding: Judge B.E. Schmaltz
amounts not previously paid. It is not
For the Plaintiff: self-represented
cases where any breach of a no-alcohol
necessary that the respondent have
For the Defendant: no appearance
condition will be “serious”, but nothing
notice of an intention to pursue child
The plaintiff was bit by the defendant’s
has been provided on this application to
support. In this case, although undue
dog, and as a result suffered severe pain
support a finding that use of alcohol
hardship was not found in relation to
and inability to pursue her usual
contributes to this young person’s
the support application, ordering the
activities for five days. Judgment in the
criminal behaviour.
respondent to pay the full support that
amount of $1,503.75 granted.
unable to conclude that any of the
should have been paid, retroactively,
breaches were “serious”, and therefore
would cause a hardship to his other
was unable to order that the young
children. Retroactive support ordered
UNDUE HARDSHIP
person remain in custody.
from
date
very short duration of supervision
parentage was confirmed through DNA
remaining, no variation of conditions
Ootoowak v Towtongie
testing.
was ordered.
November
2011,
the
There will undoubtedly be
The court was
Given the
2012 NWTTC 19 (CanLII) | December 03, 2012
Presiding: Judge B.E. Schmaltz
For the Applicant: no appearance
For the Respondent: M. Nightingale
For the Designated Authority: E. Delaney
The parties are the parents of four-yearold twins. The respondent accepted he
CRIMINAL PROCEDURE – YOUTH
CRIMINAL JUSTICE ACT – REVIEW
OF CONDITIONAL SUPERVISION
R v JS
Maureen McGuire is an Appellate Counsel
with Alberta Justice. She is a member of the
Bar in the NWT, Ontario, and Alberta. Any
comments or questions regarding case digests
would be welcomed at her email address,
Maureen.McGuire@gov.ab.ca.
28 | ARCTIC OBITER
S.C.C. UPDATE
by Eugene Meehan, QC, Partner, Supreme Advocacy LLP
Here is a summary of all appeals and
CRIMINAL LAW: CARE OR CONTROL
all leaves to appeal (ones granted –
R. v. Boudreault
so you know what areas of law the
(Qué. C.A., November 11, 2011) (34582)
S.C.C. will soon be dealing with in
2012 SCC 56 (CanLII) | October 26, 2012
case any may be an area of law
“Care or control”, within the meaning
you’re litigating/advising/managing).
of s. 253(1) of the Criminal Code,
For leaves, I’ve specifically added in
signifies (1) an intentional course of
both the date the S.C.C. granted
conduct associated with a MV; (2) by an
leave and the date of the C.A.
judgment below, in case you want to
track
and
check
out
the
C.A.
judgment.
impaired (3) in circumstances that
CRIMINAL LAW: PRIOR
INCONSISTENT (CIVIL) STATEMENTS
create a realistic risk, as opposed to a
R. v. Nedelcu
remote possibility, of danger to persons
(Ont. C.A., Feb. 24, 2011)(34228)
or property. [emphasis in original].
2012 SCC 59 (CanLII) | November 7, 2012
Trial judges must provide juries with
clear instructions as to the use they can
CRIMINAL LAW: DRINKING AND
DRIVING
make of the evidence given at the prior
R. v. Dineley
that trial judges have been providing in
(Ont. C.A., November 18, 2009)(33640)
cases where an accused has given alibi
evidence. The jury would be told that
The Tackling Violent Crime Act limits the
they could not use his discovery
evidence an accused can adduce to raise
evidence for its truth, but only to test
(Alta. C.A., Feb. 16, 2011)(34205)
doubt
of
his credibility and for no other purpose;
breathalyzer test results. To rebut the
if they were to reject the accused’s trial
The Alberta
Board
presumptions of accuracy and identity
evidence, they could not use that
considered the relevant provisions of
applicable to breathalyzer test results,
rejection to bolster the Crown’s case. To
the Code and facts presented to it by the
which favour the Crown, an accused
convict, the jury would have to be
parties, its interpretation of the Code and
can no longer simply rely on an expert
satisfied, on the basis of the remaining
conclusions reasonable, and its decision
opinion that the amount of alcohol
evidence, that the Crown had proved its
therefore entitled to deference.
consumed is inconsistent with the test
case.
APPEALS
ADMINISTRATIVE LAW: JUDICIAL
REVIEW; ADEQUACY OF REASONS
Construction Labour Relations v.
Driver Iron Inc.
Labour
Relations
about
the
reliability
proceeding, similar to the instructions
results — what is known as the “Carter
defence” (R. v. Carter (1985), 19 C.C.C.
BANKRUPTCY & INSOLVENCY:
ENVIRONMENTAL CLEAN-UP
Newfoundland and Labrador v.
AbitibiBowater Inc.
(3d) 174 (Ont. C.A.)). The legislation
does not apply retrospectively.
CRIMINAL LAW: SEARCH & SEIZURE
R. v. Aucoin
(N.S.C.A., July 13, 2011)(34349)
Securing an accused in the rear of the
2012 SCC 67 (CanLII) | December 7, 2012
CRIMINAL LAW: DRINKING AND
DRIVING
Environmental clean-up orders are
R. v. St‑Onge Lamoureux
prelude to doing so, is a breach of the
“claims” under the CCAA and do not
(Qué. C.A., Sept. 15, 2010)(33970)
Charter right against unreasonable
have any “super-priority”.
search and seizure. But s. 24(2) permits
Similar summary to that immediately
the cocaine found to be admitted into
above.
evidence.
(Qué. C.A., May 18, 2010)(33797)
cruiser and patting him down as a
for Viagra, thereby invalidating the
CRIMINAL LAW: FIREARMS
OFFENCES
patent.
MacDonald, et al. v. R., et al.
invention when it obtained the patent
ELECTIONS: CONTESTATION
Opitz et al. v. Wrzesnewskyj et al.
(N.S. C.A., May 11, 2012) (34914)
(Ont. C.A., May 18, 2012)(34845)
2012 SCC 55 (CanLII) | October 25, 2012
Only irregularities that affect the result
of an election and thereby undermine
the integrity of the electoral process are
grounds for overturning an election;
administrative errors and mistakes are
not.
LABOUR LAW: STAFFING;
TRIBUNAL REVIEW
2012 NSCA 50 (CanLII) | November 22, 2012
SCHOOLS: REMEDIAL SPECIAL
NEEDS EDUCATION
Were there firearms offences where a
Moore v. B.C. (Education)
door to a police officer.
person with a gun in his hand opens the
(B.C.C.A., Oct. 29, 2010)(34040/34041)
If a service is ordinarily provided to the
CRIMINAL LAW: INMATE TRANSFER
public, it must be available in a way that
does not arbitrarily — or unjustifiably
Diane Knopf, Warden of Mission
Institution, et al v. Foster
— exclude individuals by virtue of their
(B.C.C.A., November 9, 2011) (34608)
membership in a protected group.
2011 BCCA 451 (CanLII) | November 22, 2012
In what circumstances can an inmate
Canada (Attorney General) v. Kane
stop a transfer from medium security to
(Fed. C.A., Jan. 19, 2011)(34147)
maximum.
There is nothing in either the applicable
legislation or regulations which requires
a deputy head to utilize a particular
LEAVES TO APPEAL
GRANTED
the position at issue is either a new or
CRIMINAL LAW: CROWN/POLICE
MISCONDUCT
reclassified position.
Babos, et al. v. R., et al.
selection process depending on whether
2012 QCCA 471 (CanLII) | November 22, 2012
Teva Canada Ltd. v. Pfizer Canada
Inc
(B.C.C.A., November 9, 2011) (34607)
(Qué.. C.A., March 14, 2012) (34824)
PHARMACEUTICALS: GENERIC
VIAGRA
Institution, et al v. Zuria
Was there police interference in the
above.
context of this case involving arrest and
discovery
of
a
prohibited
semi-
automatic firearm.
(Fed. C.A., Sept. 23, 2010)(33951)
Institution, et. al v. Khela
(B.C.C.A., November 9, 2011) (34609)
Pfizer failed to properly disclose its
News
Events
Publications
Forms
www.lawsociety.nt.ca
It’s all online.
30 | ARCTIC OBITER
above.
CRIMINAL LAW: MENTALLY
DISORDERED ACCUSEDS
CRIMINAL LAW: SECURITY
CERTIFICATE REGIME; EVIDENCE
EXCLUSION
considered in sentencing.
Minister of Citizenship and
Immigration, et al. v. Harkat, et al.
LABOUR LAW IN QUEBEC:
PREGNANCY
(Fed. C.A., April 25, 2012) (34884)
Conception v. R., et al.
2012 FCA 122 (CanLII) | November 22, 2012
Dionne v. Commission scolaire des
Patriotes, et al.
(Ont. C.A., May 24, 2012) (34930)
There is a sealing order in the case, in
(Qué. C.A., Apr. 2, 12) (34854)
2012 ONCA 342 (CanLII) | November 22, 2012
the context of the constitutionality of
2012 QCCA 609 (CanLII) | October 25, 2012
Does consent have to be given for a
Canada’s security certificate regime and
What rights and benefits does a ‘casual
treatment order.
the exclusion/admissibility of CSIS
substitute teacher’ who is pregnant get.
‘human sources’ information.
CRIMINAL LAW: NECESSITY; DEATH
-ACCELERATION
CRIMINAL LAW: SEXUAL OFFENCES
LABOUR LAW: FREEDOM (NOT) TO
ASSOCIATE
Mailhot v. R.
R.L. v. R.
Bernard v. A.G. Canada, et al.
(Qué. C.A., May 23, 2012) (34881)
(Qué. C.A, Apr. 5, 2012) (34871)
(Fed. C.A., Mar. 16, 2012)
2012 FCA 92 (CanLII) | November 22, 2012
Is death-acceleration murder.
There is a publication ban in this case,
Where an employee chooses not to join
as well as a publication ban on the name
a union, can the employer be prevented
of the party, and the court file contains
f ro m
information not available for inspection
information to the union.
CRIMINAL LAW: PROSTITUTION;
BROTHELS
intellectually
challenged
charged with a series of sexual offences.
2012 ONCA 186 (CanLII) | October 25, 2012
Code prohibitions
brothels,
communicating
pimping,
for
the
and
purposes
constitutionally valid.
CRIMINAL LAW: THREATS;
WEARING A WIRE
R. v. McRae
LABOUR LAW IN QUEBEC: WAL
MART CLOSURES
United Food and Commercial
Workers, Local 503 v. Wal-Mart
Canada Corp.
(Qué. C.A, May 11, 2012) (34920)
(Qué. C.A., Feb. 3, 12) (34743)
What are the labour law issues when
2012 QCCA 236 (CanLII) | October 25, 2012
Wal-Mart closes a store in Quebec.
CRIMINAL LAW: PROVOCATION
In what circumstances can prison
Cairney v. R.
evidence from an inmate wearing a wire
(Alta. C.A., Oct 5, 11) (34848)
be admitted.
2011 ABCA 272 (CanLII) | October 25, 2012
Should provocation have been left with
the jury in this case.
co n t a ct
accused
(Ont. C.A., Mar. 26, 12) (34788)
against
h om e
by the police, in the context of an
A.G. Canada and A.G. Ontario v.
Bedford, Lebovitch, Scott
Are the Criminal
di s c lo s in g
IMMIGRATION & CRIMINAL LAW:
REMOVAL; SENTENCING
Pham v. R.
(Alta. C.A., June 28, 2012) (34897)
2012 ABCA 203 (CanLII) | November 8, 2012
Should immigration consequences be
LABOUR LAW: PHOTOGRAPHING
PICKET LINES
Information and Privacy
Commissioner v. United Food and
Commercial Workers, Local 401 et al.
(Alta. C.A., Apr. 30, 2012) (34890)
2012 ABCA 130 (CanLII) | October 25, 2012
Can a union photograph and publicize
workers who cross a picket line.
LANGUAGE RIGHTS: NONCERTIFIED TRANSLATIONS
What are the pension implications when
(N.B. C.A., Apr. 12, 2012) (34863)
a Crown Corporation becomes a public
2012 NBCA 33 (CanLII) | October 25, 2012
company.
Is there interference with economic
relations in the context of a family
Conseil Scolaire Francophone de la
Colombie-Britannique, et al. v. B.C.
(B.C.C.A., June 27, 2012) (34908)
Can non-certified translations be used
in court.
business.
TAX: FREEDOM OF INFORMATION
John Doe, Requester, et al. v. Minister
of Finance (Ontario) et al.
(Ont. C.A., Feb. 24, 2012) (34828)
November 15, 2012
There is a sealing order in this case, in
the context of pre-legislative material.
PENSIONS: CROWN CORP
BECOMES PUBLIC COMPANY
Telecommunication Employees
Association of Manitoba Inc. et al. v.
Manitoba Telecom Services Inc., et al.
(Man. C.A., Feb. 10, 12) (34763)
2012 MBCA 13 (CanLII) | October 25, 2012
TORTS: INTERFERENCE WITH
ECOMOMIC RELATIONS
Eugene Meehan, QC, is a Litigation Partner at
Supreme Advocacy LLP, Ottawa. His primary
area of work is with the Supreme Court of
Canada, mainly assisting other lawyers in
taking cases (both Leave to Appeal and
Appeal), and complex legal opinions. For
previous summaries, and to keep up-to-date
with all SCC appeals and leave to appeals,
contact Eugene at
emeehan@supremeadvocacy.ca.
A.I. Enterprises Ltd. and Alan
Schelew v. Bram Enterprises Ltd. and
Jamb Enterprises Ltd.
RESOURCES
The Legal Profession
The Law Society of the
Assistance Conference
NWT and the CBA-NT
(LPAC) of the Canadian Bar Assocation is
Branch have partnered
dedicated to helping lawyers, judges, law
with Human Solutions to offer members
students and their families with personal,
free, private and confidential professional
emotional, health and lifestyle issues
counseling
through a network of Lawyer Assistance
resolution of personal issues or work
Programs, a national 24-hour helpline and
related difficulties.
Provincial
Programs.
If
you
need
assistance, please call the helpline or visit
their website.
1-800-667-5722
and
consultation
for
the
This service is available 24 hours a day, 7
days a week. Call any time.
1-800-663-1142
www.lpac.ca
Mentor Program
Members from Northwest Territories and Nunavut are invited to call the office of the Alberta
Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors
may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839
Practice Advisors
The Practice Advisors from the
Law Society of Alberta are
available to discuss legal, ethical and
practice concerns, and personal matters
such as stress and addiction. Members are
invited to contact the Practice Advisors at
any time:
Ross McLeod (Edmonton)
Tel:
780-412-2301 or
1-800-661-2135
Fax: 780-424-1620
ross.mcleod@lawsocietyalberta.com
Nancy Carruthers (Calgary)
Tel:
403-229-4714 or
1-866-440-4640
Fax: 403-228-1728
nancy.carruthers@lawsocietyalberta.com
CPD in Your Own Backyard!
CBA’s National
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& Resources Law Summit
Natural Resources and Energy Legal
Developments: North and South of 60
Photo Courtesy of Diavik Diamond Mine
You won’t have to travel far this June to get your Professional
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This two day Canadian Bar Association (CBA) conference will feature leading experts discussing legal procedures and challenges associated with resource extraction projects: off-shore
resource development, environmental assessment issues, renewable energy, streamlining
regulatory processes, sustainable development, and corporate social responsibility.
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The Explorer Hotel, Yellowknife, N.W.T.
June 20-21, 2013
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www.cba.org/cbapd/environment.aspx

November/December 2012 - Law Society of the Northwest Territories

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