CREATE Justice Bulletin: March 2019

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From Centre for Research, Evaluation, and Action Towards Equal Justice (CREATE Justice)

“The Most Significant Access to Justice Gathering in a Decade”.

Saskatchewan legal information project aims to increase access to justice using public libraries.

Empirical tool on Legal Needs Surveys and Access to Justice intends to advance understanding of people’s everyday legal problems and experience with the justice system.

B.C. turning to online tribunal to deal with some vehicle accident claims.

Free help with wills and estates.

Free help with family law problems.

NEW – Free help with family law problems in Prince Albert.

ADR Institute of Saskatchewan sponsoring an Introductory Mediation training from April 22–26.

Spotlight on Inmates Panel Program, providing legal advice and representation to inmates facing institutional legal issues.

UsaskLaw student Shelby Fitzgerald partners with CREATE Justice to promote dialogue on Access to Justice crisis by asking students and faculty “Why do we need Access to Justice?”.

Applications for CBA Young Lawyers International Program, serving justice needs of marginalized communities, being accepted for 2019-2020 cycle until April 30.

CREATE Justice and the College of Law held Third Annual Research Poster Competition, promoting access to legal information and research.

PASS IT ON! SUBMIT YOUR BITE-SIZED ACCESS TO JUSTICE NEWS TO BE INCLUDED IN THE BULLETIN TO createjustice@usask.ca AND ENCOURAGE OTHERS TO SUBSCRIBE FOR THE BULLETIN.

Saskatchewan Legislative Update

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The following regulations were published in The Saskatchewan Gazette, Part II, Vol. 115 No. 13, March 29, 2019:

  • SR 17/2019 The Public Libraries Amendment Regulations, 2019
  • SR 18/2019 The Justices of the Peace Amendment Regulations, 2019
  • RS 18/2019 Règlement modificatif de 2019 sur les juges de paix
  • SR 19/2019 The Provincial Lands (Agriculture) Amendment Regulations, 2019

E.M. Culliton Scholarship Endowment

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As a tribute to the former Chief Justice E. M. Culliton, an endowment was established by the Law Society of Saskatchewan to provide that in perpetuity a special scholarship is to be awarded for the pursuit of post-graduate studies in criminal law.

The criteria for the selection of the recipients of the annual scholarship are as follows:

The scholarship will be awarded to a graduating student of the College of Law, University of Saskatchewan or to a resident practicing member of the Law Society of Saskatchewan for the pursuit of graduate studies in criminal law at a recognized institution. The recipient will be selected on the basis of academic record and research potential, service to the practice of law in Saskatchewan, and such other guidelines as from time to time may be determined appropriate by the committee.

The deadline date for receipt of applications is May 3, 2019 and a decision will be made by the end of June, 2019.

Please complete application form and email to Liz at liz.lynchuk@lawsociety.sk.ca.

New Books in the Library: Winter 2019, Part II

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By Sara Stanley, Regina Library Technician

The Millennial Lawyer: How Your Firm Can Motivate and Retain Young Associates
J.P. Box

“Millennials will become nearly half of the U.S. workforce by 2020, and firms that know how to connect with and motivate Millennials will benefit from an inspired and harmonious workforce. Drawing from exhaustive research into the Millennial generation and relying on his own experiences as an attorney, JP Box identifies common Millennial values and explores how firms can incorporate these into their culture to attract, motivate, and retain top young lawyers.”

The 2019 Annotated Divorce Act
James C. MacDonald and Ann C. Wilton

“A current, portable resource for commentary and legislation, The 2019 Annotated Divorce Act includes:
• Authoritative section-by-section commentary and analysis of the background and practical application of each section of the Act
• Clear and concise digests of all the relevant case law you need to understand the judicial application of the Act

New in this edition:
This new edition features updates to the case law and commentary annotating the provisions of the federal Divorce Act, including comprehensive revision of the following parts of the text:
• Section 4 – Jurisdiction in Corollary Relief Proceedings – Cases discussed include Tardif v. Guimont, 2015 ONSC 4193, 2015 CarswellOnt 9755 (Ont. S.C.J.)
• Section 8 – Divorce – Separate and Apart – Cases discussed include H.C.F. v. D.T.F., 2017 BCSC 1226, 2017 CarswellBC 1965 (B.C. S.C.)
• Section 16 – Corollary Relief – Custody Orders – Cases discussed include G. (H.J.) v. N. (D.M.) 2016 SKQB 297, 2016 CarswellSask 633 (Sask. Q.B.)
• Section 17 – Corollary Relief – Variation, Rescission or Suspension of Orders – Cases discussed include Gagne v. Gagne, 2011 ONCA 188, 2011 CarswellOnt 1476 (Ont. C.A.), C. (L.A.) v. W. (G.N.), 2016 CarswellBC 865, 2016 BCCA 132 (B.C. C.A.), Children’s Aid Society of Ottawa v. V. (A.), 2016 CarswellOnt 7656, 2016 ONCA 361 (Ont. C.A.)”

The 2019 Annotated Employment Insurance Act
T. Stephen Lavender

“Understanding employment insurance problems has never been easier with this new edition of your go-to reference guide.

Features include:
• Legislation – A fully up-to-date consolidation of the Employment Insurance Act and its related regulations give you access to the primary law.
• CUBs – Canadian Umpire Benefits decisions represent the front lines of unemployment insurance law. This valuable handbook reviews and digests these numerous and hard-to-find decisions in an organized and coherent manner.
• Case Law – Federal Court of Appeal decisions – Look no further than this work for annotations of all relevant Federal Court decisions that interpret and shape employment insurance legislation.
• Commentary – Knowledgeable commentary provides you with the practical analysis that you need to understand a complicated regime.
• Related Provisions – Useful cross-references to related provisions of the Act and regulations puts the legislation in context.

New in this edition
• Full commentary on changes made by the Budget Implementation Act 2017 and Budget Implementation Act 2018.
• Updated Social Security Tribunal and Federal Court of Appeal Case Law.”

The 2019 Annotated Canada Labour Code
Ronald m. Snyder

“For more than 25 years, Ronald Snyder’s Annotated Canada Labour Code has been the “bible” among federal labour practitioners. Ron’s annotations provide essential insights into the Code, and make this book the necessary resource for preparing any case before the Canada Industrial Relations Board. This 2019 Edition of the Annotated Canada Labour Code digests the new decisions that have been rendered by the CIRB, OSH Appeal Board, adjudicators, referees and the courts since the publication of last year’s Edition.

New in this edition
• 99 new case digests of decisions by the CIRB, the OSH Appeal Board, adjudicators, referees and the courts
• Updates to approximately 104 areas of the Code

New case law developments

Under Part I of the Code include:
• Delineation of the test to determine whether an employment relationship exists involving professional persons
• Board presumptions made concerning the double-majority rule applicable to accretion of bargaining unit applications
• Elucidation on the admissibility of secret recordings
Under Part II:
• Discussion of the Crown’s burden in establishing the actus reus involving s.124 breaches
• The Board’s jurisdiction to determine the validity of refusal to work actions
• The scope of the court’s flexibility in ordering s.148 conviction remedies
Under Part III:
• Elaboration of whether inspectors have exclusive jurisdiction to address hours of work and overtime issues
• Whether damages can be awarded against employers for s. 214 Code breaches in the absence of evidence of loss sustained by employees
• Clarification as to which employees are disentitled to s. 230 (notice or pay in lieu) and s. 235 (severance) compensation
• The effect of abandoning a wage-related complaint on the ability to pursue a civil action against the employer”

Environmental Law, 5th ed.
Jamie Bendickson

“While continuing to provide a comprehensive introductory guide to environmental law in Canada, this fifth edition of Environmental Law incorporates discussion of recent developments in environmental litigation and regulation alongside reference to key statutory developments from the past half decade. In addition, important updates and revisions highlight significant developments in several central areas, notably federal and provincial climate change action following the 2015 Paris Agreement and issues associated with Aboriginal consultation, the United Nations Declaration on the Rights of Indigenous Peoples, and traditional environmental knowledge. Essential developments relating to human rights and the environment at both the national and international levels have been included alongside discussion of changes in environmental valuation and compensation, liability for spills and remediation, and polluter-pays jurisprudence. Recent judicial and administrative decisions affecting environmental assessment and involving NAFTA prior to the 2018 round of Canada-US-Mexico negotiations are also covered. Chapters on toxic substances, protected areas, endangered species, and economic incentives for environmental protection also reflect current legal activity and policy proposals.”

Sources: American Bar Association, Thomson Reuters, Irwin Law

Expansion of Practice Advisor Program

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One of the key initiatives identified for the Professional Standards Committee in 2018 was to review the Practice Advisor program and determine whether there was room for improvement. Among the potential changes, the PSC considered whether the program should be expanded to be made available to all members who may have practice management questions. Ultimately the Committee determined that this would reinforce the Law Society’s shift toward proactive regulation, by dealing with potential practice management issues before they occur.

As such, the Law Society of Saskatchewan is pleased to announce that our Practice Advisor Program is now available for any members who need help working through practice management issues. Under this program, the practice advisor and member will work together to address the particular issue at no cost to the member.

The practice advisor program is meant to be confidential. Unlike in the New Solo/Small Firm program or complaint reviews, the practice advisor will not send a formal report to the Law Society. The Practice Advisor will report general demographic information (urban/rural, small/large firm) and a general overview of the issue. This information will be used to guide potential Law Society programs or continuing professional development in the future.

Please see the section of the website for more information.

FASD in the Justice System—Addressing Critical Issue in Canada

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By Dr. Michelle Stewart

Last week cases were heard in Manitoba’s new Fetal Alcohol Spectrum Disorder (FASD) court. A first of its kind in Canada, the court will work collaboratively with partners inside and outside the courts to better meet the needs of individuals with FASD. In an interview with the Winnipeg Free Press, Judge Mary Kate Harvie explained, “because FASD is often, not always… a hidden disability and is sometimes masked by other behaviour, it’s really critical for us to know whether or not that is a contributing factor to their offending behaviour and whether or not there are supports out there that might assist in ensuring they don’t get into trouble again.”

FASD is a complex and lifelong disability. Individuals with FASD are understood to have negative contact with the justice system for a number of reasons not least of which can be a lack of connection to appropriate community supports and services. Specialized dockets including the Mental Health Disposition Courts in Regina and Saskatoon Mental Health Strategy also dedicate special attention to the unique needs of these individuals.

The Truth and Reconciliation Commission (TRC) of Canada addressed the issue of FASD being over-represented in the justice system in TRC Call to Action #34 which includes the following:

We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including:

Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD.

The recently opened FASD Court in Manitoba (and other dedicated dockets that take time to work with clients that have FASD) speaks to the Call to Action by offering a tangible alternative justice practice that seeks to “better address the needs of offenders” while also seeking to find more “appropriate community supports” for those with FASD.

In Fall 2018 a Framework for Action focus on TRC Call #34 released 12 actionable items for frontline justice professionals including the need for further education on FASD as well as expanding alternative and therapeutic justice practices. As supports and services expand in the courtrooms to meet the needs of those with FASD, there remains the ongoing challenge to offer support and education to frontline justice professionals who are delivering services to clients with complex needs.

Last month an international training was held for frontline justice professionals focused on FASD that featured Saskatchewan’s own Judge Clifford Toth who discussed the inception and outcomes of Regina’s Mental Health Disposition Court. While not focused exclusively on FASD, these types of therapeutic and alternative justice practices are critical in changing current practices to better address the needs of those with FASD. Included in the presentations was information about the need to modify practices to address the complex needs of clients that can range from physical impairments to sensory and processing challenges. The following quick tips were shared at the conference:

  1. Use clear and concise language.
  2. Offer instructions one step at a time.
  3. Check for understanding and don’t assume understanding.
  4. Use all forms of reminders that are available (electronic, phone calls, notes etc.).
  5. Identify and work closely with mentors if they are available.
  6. With sensory processing issues, change the space to meet the needs of the person.
  7. Routine is critical.
  8. Relationships can be challenging to develop so foster and nurture them.
  9. Supports inside and outside the court are important.
  10. If you think someone has FASD, modifying your practices to meet their needs is a good idea.

For more information about FASD visit: fasdresearchproject.com and for information for justice professionals visit: fasdjustice.com.