Legal Services Task Team Final Report Released

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By Barbra Bailey, Policy Counsel
Law Society of Saskatchewan

The Legal Services Task Team was appointed in 2017 as a joint initiative of the Ministry of Justice and the Law Society of Saskatchewan to examine whether service providers other than lawyers should be permitted to provide some legal services in Saskatchewan.

The Task Team has completed its work and released its final report.  The report includes a number of recommendations on how to improve the regulation and provision of legal services in the province.

The recommendations include:

  • providing greater clarity to service providers about what legal services are regulated;
  • expanding the list of exceptions to the prohibition against practicing law to recognize existing service providers;
  • providing the Law Society with licensing authority to allow service providers to practice law with a limited license on a case-by-case basis;
  • modernizing the legislation regulating legal services to provide more flexibility for future developments in this area;
  • creating guidelines to help educate the public about legal services; and
  • conducting pilot projects to help develop and test the recommendations.

The final report can be found here.

The report is now under the consideration of the Minister of Justice and the Benchers of the Law Society of Saskatchewan.  Members are encouraged to contact Benchers or Law Society Administration if they have comments on the recommendations.  The Benchers will be discussing the recommendations at the September 14th Convocation meeting in Regina.

National Restorative Justice Symposium 2018

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By Barbra Bailey, Policy Counsel
Law Society of Saskatchewan

This year, Saskatoon will be hosting the National Restorative Justice Symposium (NRJS) on November 18-20th. The Symposium will be part of the international Restorative Justice Week and will be an excellent opportunity for restorative justice professionals, Indigenous restorative justice practitioners, scholars, faith communities, and community leaders to network, share best practices, attend workshops, and discuss developments in restorative justice. Website: https://nationalrestorativejusticesymposium.ca.

The Symposium is currently looking for workshop presenters to showcase their knowledge and expertise to a national audience. If you have experience in restorative justice and want to share, apply today – the application deadline is approaching soon.

Research Tip Roundup

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By Alan Kilpatrick

Did you know that the Law Society Library has created over 100 legal research tips for Legal Sourcery since the blog was launched four and a half years ago?  The tips cover a variety of resources, tools, subjects, and search strategies.

Over the past year, we have highlighted many of these helpful tips through a series of research tip “roundup” posts.  Each roundup post presents a variety of tips on a particular resource or research subject.

You can use the links below to access our research tips on the following subjects:

If you have any questions about legal research, ask a Law Society Librarian! We are pleased to provide high-quality legal research services to Saskatchewan members in person, on the telephone, or by email.

 

AskLibnEmail reference@lawsociety.sk.ca
Call 306-569-8020 in Regina
Toll-free 1-877-989-4999
Fax 306-569-0155

Towards Cannabis Legalization in Canada

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By Alan Kilpatrick

Canada’s official cannabis legalization date is set for October 17th, 2018.  Legally, how did we get here?

In 2015, the Federal Government proposed legalizing cannabis.  Without a blueprint or roadmap to follow, the Government strove to explore the available evidence and balance a variety of health-related goals.  Behind their desire to consider legalization, the Government acknowledged that cannabis use is widespread, that criminalization has become a burden on the justice system, that organized crime benefits from criminalization, and that support for change is high among Canadians.

In December 2016, the Task Force on Cannabis Legalization issued its recommendation report, A Framework for the Legalization and Regulation of Cannabis in Canada.  After extensive consultations with domestic and international experts, Canadians, and interest groups, the Task Force brought forward almost 100 recommendations.  The report suggested a legislative framework for cannabis legalization in Canada.  Almost 30,000 submissions were made during the Task Force’s public consultations.

Five short months later in April 2017, the Government introduced Bill C-45, the Cannabis Act and Bill C-46, An Act to Amend the Criminal Code in the House of Commons.  Bill C-45 legalizes cannabis and advances several public health objectives.  They include protecting youth and controlling access.  More information about the Cannabis Act can be found here.

Bill C-46 amends the Criminal Code by creating new tools to identify drug impaired driving.  Identifying drug impaired driving is one of the larger challenges that has arisen due to legalization.  Several concerns still exist about the roadside screening procedures for cannabis use.

In the rapid leadup to legalization, each province has been required to draft its own cannabis legislation.  Legally, the Federal Government holds authority for cannabis production, licensing, tracking, and medicinal purposes.  Each Province is responsible for drafting a legislative framework to handle cannabis retail, distribution, public use, home cultivation, and minimum age limits.  You can learn more about the division of Federal and Provincial responsibilities here.

In the leadup to Saskatchewan’s own cannabis legislation, the Provincial Government conducted a province-wide survey in October 2017.  Notably, this survey received the highest response rate of any Saskatchewan Government survey ever.  Introduced in March 2018, Bill 121, The Cannabis Control (Saskatchewan) Act passed quickly through the Legislature and received royal assent in May 2018.

Saskatchewan’s bill aims to curtail criminal cannabis, protect youth, advance public health, and regulate legal use.  The legal age for cannabis use in the province has been set at 19.  Use in public spaces has been prohibited.  A zero-tolerance policy is in effect for driving.  Finally, the Province has established a private retail model for cannabis retailers that will be regulated by the Saskatchewan Liquor and Gaming Authority (SLGA).  Last month, the SLGA held a lottery to grant 51 cannabis retail permits to potential retailers.  SLGA has indicated that additional permits may be made available if demand warrants it.  You can read more about Saskatchewan’s Cannabis Framework here.

This post was inspired by a session at CALL/ACBD 2018: Cannabis Panel presented by Myrna Gillis, Matt Herder, Robert Strang, and Bob Purcell. 

 

Sources   

Gillis, M., Herder, M., Purcell, B., & Strang, R. (2018). Cannabis panel. Plenary Session at CALL/ACBD 2018.

Government of Canada (2018). Cannabis legalization and regulation.  Retrieved from http://www.justice.gc.ca/eng/cj-jp/cannabis/

Government of Canada. (2016). A Framework for the legalization and regulation of cannabis in Canada.  Retrieved from http://www.healthycanadians.gc.ca/task-force-marijuana-groupe-etude/framework-cadre/alt/framework-cadre-eng.pdf

Government of Canada. (2018). Introduction of the cannabis act: questions and answers.  Retrieved from https://www.canada.ca/en/services/health/campaigns/introduction-cannabis-act-questions-answers.html#a2

Government of Saskatchewan. (2018). Canada’s cannabis act. Retrieved from https://www.saskatchewan.ca/government/cannabis-in-saskatchewan/canadas-cannabis-act

Government of Saskatchewan. (2018). Saskatchewan’s cannabis framework: framework and survey results. Retrieved from http://publications.gov.sk.ca/documents/13/106026-SK-Cannabis-Framework.pdf

This Week in Legal Ethics – New Professional Conduct Ruling

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LegalEthicsBannerBy Melanie Hodges Neufeld

The Law Society’s Ethics Committee recently released the following Professional Conduct Ruling as guidance for the profession. For your convenience, I’ve listed the ruling below but it can also be found in our Professional Conduct Rulings Database.

If you have any questions or concerns  regarding this post, please contact the Law Society at (306) 569-8242 or 1-833-733-0133.

Date:                            April 26, 2018
Cite as:                        2018 SKLSPC 4
Classification:           Quality of Service, Rule 3.2-1 & Conflict of Interest, Rule 3.4
Practice Area:           Wills and Estates

Ethics Committee Ruling

Lawyer X represented Client A in the drafting of two wills, several years apart. Client A was referred to Lawyer X by Client A’s financial institution (the “Financial Institution”), as Client A did not have a lawyer of their own. The Financial Institution referred individuals needing estate planning to Lawyer X in the event they did not have their own lawyer. The Financial Institution, with the assistance of Client A’s child (“Child 1”), and Child B’s uncle (“Uncle D”), took will instructions from Client A. Lawyer X received the instructions from the Financial Institution and proceeded to draft a will for Client A (the “New Will”). Lawyer X reviewed the New Will with Client A.  The New Will was executed by Client A and witnessed by Lawyer X and Uncle D. The New Will was a significant departure from Client A’s previous will (the “Old Will”), which Lawyer X was not involved in. When compared to the Old Will, the New Will reduced the inheritance entitlement of another one of Client A’s children, Child 2 (“Child 2”), from 100% to 20% and increased the entitlement of Child 1 from 0% to 40%. Unbeknownst to Lawyer X was that Child 1 and Uncle D had an informal arrangement that would see some of Client A’s estate proceeds go to repay money owed to Uncle D (a board member of the Financial Institution) in respect of a failed business of Child 2.

Prior to the New Will, Client A had added Child 2 as a joint owner on some real estate, and a bank account at the Financial Institution. Several years later it was discovered that the Financial Institution added Child 1’s name to Client A and Child 2’s joint bank account, without Child 2’s consent, and possibly without Client A’s consent. Upon learning Child 1’s name had been added to the joint account, Child 2 withdrew the entire balance from the account. Thereafter, Child 1 and Uncle D approached Lawyer X, separately, and claimed that Child 2 had withdrawn all the money from Client A’s bank account, and that the account balance was intended by Client A to be part of the estate rather than Child 2’s property. In a phone call with Uncle D, Lawyer X ran through different scenarios for how to proceed and suggested revisions to Client A’s New Will to account for the property Child 2 had in their possession. Lawyer X then drafted another will (the “Third Will”) in such a way that Child 2’s gift in the Third Will would be nullified unless Child 2 returned the money taken from the joint bank account. Once the Third Will was drafted, Lawyer X attended upon Client A; Client A was in the hospital and was over the age of 90. Lawyer X proceeded to review the content of the Third Will with Client A and obtained Client A’s agreement with its terms and contents. Lawyer X reviewed the Third Will with Client A three times during that visit. Lawyer X assessed Client A’s competence while completing one of the reviews of the Third Will, during which another of Client A’s children (“Child 3”) was present. Lawyer X and a hospital nurse witnessed Client A sign the Third Will after a final review. Client A died less than two months after signing the Third Will. After Client A’s death, Child 2 claimed that both Client A’s New Will and Third Will were not reflective of Client A’s wishes. In addition, Child 2 alleged that Lawyer X was in a conflict of interest in preparing both the New Will and the Third Will for Client A as Lawyer X also worked for the Financial Institution, and that Lawyer X acted for Uncle D and not Client A.

Ruling:

The Ethics Committee determined that Lawyer X represented Client A and no other party. The Committee further found that Lawyer X was not in a conflict of interest in accepting instructions from third partiesp, but in that situation the member needed to take steps to ensure the instructions were in accordance with the testator’s wishes. The Committee found that Lawyer X confirmed Client A’s instructions in a sufficient manner.

The Ethics Committee further indicated generally that the prior guidance from this committee requires modernization, in that members often receive instructions from third parties on wills, i.e. accountants, estate planners and financial advisors. Still, when lawyers receive will instructions from independent third parties, they need to ensure that they are doing their due diligence and are having the necessary conversations with clients to ensure that their clients have capacity, an understanding of the property, potential beneficiaries, and that the will(s) they are drafting are in accordance with their client’s instructions. Best practices include ensuring that the information received from the third party is sent to the client to confirm that these reflect their instructions. If no confirmation is received, the instructions are not acted upon. If confirmation is received, then the will is prepared in the normal course. Members should be cautious preparing wills for clients who are aged, potentially medicated, in hospital, etc. Another critical component of will-drafting is the size of the estate and whether other professionals need to be included. (It goes without saying that extreme caution is warranted where there are substantial changes with previous wills without specific reasons being reviewed with the testator).

 

 

 

 

New Journals Issues – May 2018

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By Sara Stanley

Saskatchewan Law Review
Volume 81, Number 1 (2018)

  • Spread the Spousal Love: A Proposal for Increasing the Spouse’s Preferential Share under The Intestate Succession Act, 1996 / Thomas Laval Fransoo
  • No Rebels Allowed: The Subversion Bar in Canada’s Immigration Legislation / Jared Porter
  • An Inconvenient Bargain: The Ethical Implications of Plea Bargaining in Canada / Zina Lu Burke Scott
  • R v. Saeed: Bodily Integrity and the Power to Search Incident to Arrest / Meagan Ward

Health Law in Canada
Volume 38, Number 4 (May 2018)

  • Editorial / Rosario G. Cartagena
  • Nurse Practitioners at the Intersection of Professionalism and Unionization: A Review of the Legislation and Jurisprudence in Alberta, British Columbia and Ontario / Jacqueline Greenblatt

The Advocates’ Quarterly
Volume 48, Issue 2 (April 2018)

  • Perspectives of Tribunal Counsel on Applications for Judicial Review and Statutory Appeals in the Ontario Divisional Court / Brian A. Blumenthal and Voy Stelmaszynski
  • Claims, Not Causes of Action: The Misapprehension of Basic Limitations Principles / Daniel Zacks
  • Bill 106, Protecting Condominium Owners Act, 2015: The Condominium Industry in Ontario Gets a Major Overhaul / Armand Conant and Deborah Anne Howden
  • Discrimination and the Shifting Shape of Accommodation in Ontario / Amandi Esonwanne
  • Derivative Actions Under the Canada Not-for-Profit Corporations Act / Eric Morgan and Stephanie Henry

The Advocate
Volume 76, Part 3 (May 2018)

  • On the Front Cover: The Rt. Hon. Beverley McLachlin, PC / Karen Dickson
  • Douez v. Facebook / Elizabeth Edinger and Lisa A. Peters
  • Temporary Layoff: A Comparative Review of the Law in British Columbia and Alberta / Shafik Bhalloo and Hana Holbrook
  • Law Firm Regulation: What’s it All About? / Steven McKoen

Canadian Tax Journal
Volume 66, Number 1 (2018)

  • How Did the CRA Expect the Adoption if IFRS to Affect Corporate Tax Compliance and Avoidance? / Oliver Nnamdi, dawn Mains, Olayemi M. Olabiyi and Hussein Warsame
  • Finances of the Nation: Survey of Provincial and Territorial Budgets, 2017-18 / Vivien Morgan
  • Current Cases: (FAC) Univar Holdco Canada ULC v. Canada; (TCC) Cassan v. The Queen; (TCC) MacDonald v. The Queen / Ryan L. Morris and Michael D. Templeton
  • International Tax Planning: The New Stub-Period FAPI Rules / Karry Cheang and Korinna Fehrmann
  • Personal Tax Planning: Aligning Tax-Planning Strategies with Philanthropy or L’harmonisation des strategies fiscales et de la philanthropie/ Robyn Campbell and Bruce Sprague
  • Corporate Tax Planning: Musings on Agnico-Eagle and Univar / Brian R. Carr and Nicholas McIsaac

Journal of the Canadian College of Construction Lawyers
2018

  • Summary Judgment in Construction Cases- Has the Culture Shifted? / Brendan Bowles and Markus Rotterdam
  • Fairness and Transparency in Large Project Public Procurement / John Haythorne and Mollie Deyong
  • Net Profit or Gross Profit?- From Concreters Ready Mix v. St. Lawrence Cement to Electrolux v. A.I.M.: The Court of Appeal of Quebec’s 40-year Track record in Quantifying Lost Profit or Profit net ou profit brut? De Concreters Ready Mix c. St-Lawrence Cement à Electrolux c. A.I.M. : Le parcouers de la Cour d’appel du Québec en matière de quantification de la perte de profit Durant les 40 dernières années / Jasmin Lefebvre and Guy St-Georges
  • Facing Facts- Problems with Factoring Agreements in the Construction Context / John Kulik with Melanie Gillis and Daniel Watt
  • Regulating Project Risk: Project Development in the Regulatory State / Allan Wu with Stuart B. Hankinson
  • Primacy of the Right to Arbitrate Under a CCDC/CCA Contract: Substance Over Form/ Colin D. Piercey and Laura Rhodes