Tips from the Editor – Canadian Legal Citation: Parallel Citation

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By Kelly Laycock

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It’s time for some more legal grammar. My first post of this kind, Case Law Coleslaw, dealt with the variety of formats for the style of cause, as well as an introduction to the neutral citation. This second post deals with parallel citations from other sources.

The McGill Guide suggests using at least two sources when citing a case [1]. It doesn’t say how many is sufficient, but as the University of Ottawa Library (UofO) suggests, “A good rule of thumb is to include one parallel citation, and thus 3 references in total (neutral, core, parallel)”. The first citation should always be the neutral citation, where it exists, because since its inception in 1999, the neutral citation has become the quickest and most reliable way of finding a judgment in one of the many online databases. It contains some of the most pertinent information: the date, the level of court, jurisdiction and the number of the case.    Read the rest of this entry »

ALRI – Beneficiary Designations by Substitute Decision Makers

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Feature Blogger: Reché McKeague

Law reform publications are, as I have mentioned before, great research sources. To raise your awareness of the various law reform agencies and their publications, I will, on occasion, post summaries of the more recent releases.

Today, I would like to bring the March 2014 release of the Alberta Law Reform Institute’s Final Report 104 – Beneficiary Designations by Substitute Decision Makers to your attention. This Report makes recommendations to ensure testamentary wishes, expressed as beneficiary designations, are respected upon death. From the Report:

One of the simplest methods to pass the benefits or proceeds of a plan or policy outside a will is to designate who should be the beneficiary on the owner’s death. Beneficiary designations are commonly used for RSPs, RIFs, LIRAs, TFSA, pension plans and insurance policies. Designations can be made, changed or revoked as long as the owner has testamentary capacity. The problem, however, is that once that capacity is lost it is not clear whether a substitute decision maker has the authority to manage beneficiary decisions on behalf of the owner.

The law currently offers little guidance with respect to the powers of an attorney acting under a power of attorney or a trustee acting under a trusteeship order to make, change or revoke beneficiary designations on behalf of the donor or represented adult. As a result, banks, pension fund managers and insurance companies have inconsistent policies which may increase uncertainty and hardship for all parties involved.

As the population ages and increasingly requires substitute decision making, institutions that manage RSPs, RIFs, LIRAs, TFSAs, pension plans and insurance policies – and eventually courts – are likely to be confronted with this issue more often. Steps could be taken to update the legislation to facilitate managing beneficiary designations for a person who has lost capacity. This result can be achieved without undermining the general prohibition against delegation of testamentary powers.

This report recommends legislative changes to ensure that testamentary wishes are respected. The most common situation is when an attorney or trustee needs to transfer a plan or policy from one institution or company to another, or to convert an RSP to an RIF when the owner attains age 71. The first recommendation would clarify the law by expressly allowing an attorney or a trustee to make an administrative change on behalf of the donor or represented adult by designating any beneficiary named under a plan or policy when renewing, replacing or converting that plan or policy.

Another situation where the inability to update beneficiary designations may produce unexpected and unfair results is the beneficiary designation in favour of a former spouse or adult interdependent partner. There is a common misconception that such a designation is revoked at the end of a marriage or an adult interdependent partnership. But this is not the case. While a gift in a will to a spouse or adult interdependent partner is revoked as though the former spouse or adult interdependent partner had predeceased the testator, a beneficiary designation remains in effect unless the plan or policy owner takes some positive action to change that designation. If the owner has lost the capacity to designate a new beneficiary – and the attorney or trustee does not have the authority to make, change or revoke the designation – the former spouse or adult interdependent partner will continue to benefit. The same will happen if the plan or policy owner forgets to revoke the unwanted beneficiary designation. The second aspect of our recommendations would clarify the law by making it consistent with the approach taken with respect to gifts in a will.

There are other issues related to designating beneficiaries under a plan or policy. The aim of the report, however, is not to make a statutory regime for beneficiary designation. Although limited in scope, our recommendations address what we consider to be the most common issues with respect to the management of beneficiary designations by substitute decision makers while ensuring overall policy coherence in the treatment of beneficiary designations and other testamentary gifts.

For information on beneficiary designations in Saskatchewan, you may refer to:

 

CBA Legal Research Section

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By Melanie Hodges Neufeld

Beginning this fall, the CBA will be offering a Legal Research Section in Saskatchewan. This Section supports the professional development of lawyers who conduct legal research and wish to maintain and hone their research skills. The section is relevant to those who practice in the private and public bar; legal counsel to courts, tribunals, law reform and other legal institutes; legal educators; legislative drafters; and law librarians. Members are kept up-to-date on rapidly developing research methodologies and sources of law. Session topics include research resources and processes, and substantive legal topics.

Reche McKeague (Law Reform Commission) will chair the North Section in Saskatoon and Melanie Hodges Neufeld (Law Society Library) will chair the South Section in Regina. Luncheon meetings will be held between October and May on the second Tuesday of each month. Scheduled speakers include:

  • Melanie Hodges Neufeld (Director of Legal Resources, Law Society of Saskatchewan): Understanding Information Literacy – And Convincing a New Generation of Lawyers They Might Need Legal Research Training
  • Beth Bilson (Professor, U of S College of Law): Historical Legal Research and Using the Archives
  • Ann Marie Melvie (Librarian, Court of Appeal for Saskatchewan), Joanne Colledge (Associate, MacPherson Leslie & Tyerman): New Courts of Saskatchewan Citation Guide
  • Marilyn Lustig-McEwen (Queen’s Printer, Government of Saskatchewan): The Challenges of Legislative Publishing
  • Alan Kilpatrick (Librarian, Law Society of Saskatchewan Library): Navigating the Members’ Section – Exploring Online Research

Please see the upcoming CBA Section Handbook for more information. Registration for the 2014-2015 section year will begin August 1, 2014.

 

 

Book Review – Canadian Charter of Rights and Freedoms

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charterbookreviewBy Ken Fox

Canadian Charter of Rights and Freedoms, 5th ed.
Edited by Errol P. Mendes and Stéphane Beaulac
Markham: LexisNexis, 2013
1411 pp

A nation is not a monolith, nor is its constitutional law. Both are historical amalgamations, constructed and contested by generations of people.  The 5th edition of LexisNexis Canada’s Canadian Charter of Rights and Freedoms, edited by Errol P. Mendes & Stéphane Beaulac, presents a chorus of diverse voices on a wide-range of Charter-related topics. But rather than a collection of individual essays, the book aims to be a single collective work on the Charter, with a comprehensive six-part structure. There is a Table of Cases, but regrettably no index.

This new edition has 26 chapters by 30 authors. But to add to the crowd of voices, only ten of the 30 appeared in the 4th edition, and none were in the first edition, published by Carswell in 1982. A total of 70 authors have contributed to five bilingual editions by two publishers. More than a single overview of the Charter and its judicial interpretation, the successive editions of this work themselves constitutes a rich interpretive history by several generations of legal scholars, practitioners and judges.

Unlike the first two editions, the current text is not fully bilingual. There are 16 English chapters and 10 French chapters on various topics. Some of the chapters are translated versions of chapters from previous editions. Most major Charter topics have a chapter in either English or French in a recent edition. One exception is that none of the past three editions have an English chapter on Charter language rights in sections 16-22.

In some cases a chapter is updated and carried over from a previous edition, other times a chapter is replaced with a new one on the same topic by a different author. Or, in the case of Errol P. Mendes’ take on section 1, the intervening 8 years have occasioned a substantially new chapter by the same author. Mendes shows a complex history of the creation and interpretation of the “limitations” clause in section 1, and provides critical comment on how the courts have used the limitations clause to defer power to legislation. Whether or not you agree, his analysis is lively and erudite.

In further chapters by other authors, the same level of critical engagement persists. There is never a sense of a boring dichotomy where the law lies as a stone slab which the courts and tribunals only interpret, creating binding authorities. Nothing is fixed, everything is always moving. The authors suggest avenues for future challenge and highlight neglected corners of key judgments that leave room for re-interpretation.

Likely, it is in the nature of a constitutional Charter to inspire such active engagement, and it is clear that the authors are active players in its evolution. Still, one cannot deny that they fully embraced the opportunity to bring their readers to the game, to open our eyes to this field of battle on which we all live.

For a great time, come to the Law Society of Saskatchewan Library and check out this book. Call Number: KF 4483 .C519 .C21 2013.

Free CPD

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By Melanie Hodges Neufeld

If you have not registered for this free webinar yet (for one CPD hour credit), there is still time.

The Law Society Library is presenting a free one hour webinar on Tuesday, June 10 at noon – Navigating the Members’ Section: The Resources Available to Law Society of Saskatchewan Members

This webinar will highlight online resources that are available to Law Society of Saskatchewan members in the Members’ Section of the Law Society website. Resources include in-house publications such as the Queen’s Bench Practice Manual, the Saskatchewan Practice Checklists, and subscriptions such as O’Brien’s Online Forms and Criminal Spectrum. Through the use of legal research scenarios, participants will learn which resources are most useful in a given situation and/or area of law, and how to most effectively use each resource.

This webinar will be presented by Melanie Hodges Neufeld, Director of Legal Resources at the Law Society of Saskatchewan. Melanie is responsible for administration of the traditional library, as well as developing and recommending a strategic plan for the management of legal information within the Law Society and the province. Melanie is a lawyer with a background in administrative law and policy development. She also recently completed her Master of Laws from the University of Saskatchewan in the area of restorative Justice.

This webinar qualifies for one (1.0) CPD hour under the Law Society’s CPD Policy.

We are pleased to offer this webinar free of charge for all Law Society of Saskatchewan members. Online registration and more details are available here. Once you have completed the online registration form your registration will be complete.

Emond Montgomery Subscription for Members (Tip of the Week)

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By Alan Kilpatrick

The Law Society of Saskatchewan Library is pleased to provide the Working With the Law ebook series from Emond Montgomery Publications to all Saskatchewan members.  This series includes over 30 ebook titles.  Subjects include administrative law, corporate & commercial law, civil litigation, contracts, criminal law, employment & labour law, family law, immigration law, professional & practice management, property, real estate & estates.

You can access the ebooks from the Members’ Section of the Law Society of Saskatchewan website.

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Ebooks can be accessed by subject area or from an alphabetical list.  For example, let’s take a look at Canadian Immigration and Refugee Law for Legal Professionals, 2nd Edition.

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The ebook is laid out in an attractive format that is easy to read online.  Let’s take a close look at some of the additional features offered.

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  • On the bottom left – We can select, copy, and paste excerpts of text directly from the ebook.  A printing option allows us to print, and bookmark and note features are also available.
  • On the top right – A search feature allows us to easily locate relevant sections of the ebook.

Let’s continue, for example, by identifying sections of the ebook that discuss foreign students.  We can type foreign students in the search box on the top right.

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Every instance of the search words in the ebook appears on the right side of the screen.

Other popular titles in the ebook series include:

  • Advanced Corporate Legal Procedures, 2nd Edition
  • Criminal Law for Legal Professionals
  • Family Law: Practice and Procedure, 3rd Edition
  • Fundamentals of Contract Law, 3rd Edition
  • Wills and Estates, 3rd Edition

If you have any questions about the Working With the Law ebook series, ask a Law Society Librarian.  Library staff provide legal research assistance to members in person, on the telephone, or by e-mail.

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