By Sarah Roussel-Lewis
Some interesting reads to help you ease into your week:
- Canadian Appeal Court decides “Virtual Presence” is enough for production order for user information against non-Canadian company (Canadian Privacy Law Blog)
- In the Media: Modern Treaties & land Claim Agreements (University of Albert Faculty of Law, Faculty Blog)
- Legal pot won’t slow market for medical marijuana: advocate (CBC)
- R v Boutilier: The Dangerous Offender Regime and the Spectre of Indeterminate Sentences (The Court)
- Saving the Golden Goose: Part II – Including Specialized Professions as an Alternative Option to the Traditional Court System (Family LLB)
- Top Legal Risks for Business in 2018 – Cybersecurity, Data Protection and Privacy (Canadian Cybersecurity Law)
Webinar: Common Cyber Dangers and How to Avoid Them (CPD-189)
This webinar is being held on:
Wednesday, January 17, 2018 from 12pm to 1 pm (Sask.Time) | Qualifies for 1 CPD hour all of which qualifies as Ethics
With ever increasing effort and imagination, hackers and fraudsters continue to target lawyers and law firms. On a daily basis, phishing emails, bad cheque scams and other sophisticated frauds are being used in attempts to breach law firm systems and steal trust funds.
This webinar is being presented by Dan Pinnington, VP of Claims Prevention and Stakeholder Relations at the Lawyers Professional Indemnity Company.
For more details and to register: Common Cyber Dangers and How to Avoid Them
Webinar: Law Reform Commission of Saskatchewan’s Proposed Land Charges Act (CPD-190)
This webinar is being held on:
Thursday, January 25, 2018 from 12pm to 1pm (Sask. Time) | Qualifies for 1 CPD hour
Professor Ron Cuming will present the Law Reform Commission’s tentative proposals for a new Land Charges Act for Saskatchewan. Professor Cuming has identified three principal problems with Saskatchewan’s current real property security law: (1) the law lacks conceptual unity and structural coherence, (2) enforcement is inefficient; and (3) it results in an unnecessary use of court resources. The proposed Land Charges Act addresses these problems by codifying, modifying, and compiling Saskatchewan’s laws in relation to real property security into one statute. The webinar will discuss the proposed legislation and describe the Law Reform Commission’s consultation process for this project.
Please join Professor Ron Cuming from the College of Law, University of Saskatchewan, for this must-see webinar.
For more details and to register: Law Reform Commission of Saskatchewan’s Proposed Land Charges Act
Webinar: Proposed Tax Changes for “Income Sprinkling” and Private Corporation Tax Planning – Where are we now? (CPD-195)
This webinar is being held on:
Monday, February 5, 2018 from 12pm to 1pm (Sask. Time) | Qualifies for 1 CPD hour
Since the Department of Finance proposed significant changes to the taxation of private corporations and their shareholders on July 18, 2017, business owners have been waiting for more clarity on what those changes mean to them. There were some updates in October and then December 13th the Department of Finance released revised proposals. The webinar will provide an overview of these latest updates and what this will mean for the current and future structuring of your own professional practices and your clients’ businesses.
The webinar will be presented by both Laurie Hudema, CPA, CA, and Clint Gifford, CPA, CA both partners with Virtus Group Regina.
For more details and to register: Proposed Tax Changes for “Income Sprinkling” and Private Corporation Tax Planning–Where are we now?
For up-to-date information on educational programming and events visit us at Continuing Professional Development.
By Victoria Woroniak
Communications, Saskatchewan Workers’ Compensation Board
Employers in 14 industry rate codes will be impacted by the transition to the enhanced model and should attend the WCB’s upcoming information sessions.
You are invited to attend a special industry-specific information session for your industry rate code. Sessions will take place February 13-15, 2018. Attend your industry session to learn more about how the WCB’s enhanced rate model impacts your industry and how it will impact the premiums you pay in the future.
- 13-14 sessions are in Regina. Feb. 15 sessions are in Saskatoon. Each session will be approximately two hours long.
- Registerfor your industry session at wcbsask.com/registration. Webinars will be available for all sessions.
- Recordings for each session will also be posted on the WCB’s website after the session ends at wcbsask.com and on the WCB’s YouTube channel.
By Melanie Hodges Neufeld
For those of you who don’t already follow Slaw, Canadian’s online magazine, make sure to check out Monday’s Mix. Each Monday, Slaw shares brief excerpts of recent posts from five of Canada’s award-winning legal blogs chosen at random from more than 80 recent Clawbie winners. Slaw hopes to promote the work of these blogs to as wide an audience as possible. This week’s featured blogs include:
- Ontario Condo Law Blog
- Canadian Class Actions Monitor
- Global Workplace Insider
- Eva Chan
- Le Blogue du CRL
As a three-time Clawbie winner, Legal Sourcery is also occasionally featured!
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.
Ethics Committee Ruling
Client A complained that Lawyer X was in a conflict of interest in connection with Lawyer X’s representation of Client B, who was Client A’s former spouse, because Lawyer X’s law Firm (“the Firm”) had previously acted for Clients A and B on a litigation file.
The following issue was referred to the Ethics Committee:
Is this a conflict that should have been recognized by Lawyer X to the point that Lawyer X would withdraw their services on behalf of Client B and not act for Client B?
Initially, Clients A and B, who were then married, retained Lawyer Y of the Firm to represent them in a lawsuit against them by Party C concerning title to a piece of real property. The file was subsequently transferred to Lawyer Z of the Firm, who took a number of steps in relation to the litigation.
Client A indicated to Lawyer Z that Clients A and B were planning to obtain a divorce, which Client A characterized as non-contentious, and requested that Lawyer Z draft documents for this purpose, including an interspousal agreement. In an e-mail, Lawyer Z responded to both Clients A and B that after consulting the family law practitioners at the Firm, it would not be wise for the Firm to represent either party in the matrimonial matter “regardless of whether the family law issues are contentious or not.” With respect to the litigation with Party C, Lawyer Z continued:
As for our civil litigation matter, I can keep representing both of you this way however it is not without its complications. If you continue to provide me with uncontradictory instructions on how to proceed with both parties in agreement then I can continue providing services. If we get into a situation where you cannot agree on how to proceed then my ability to represent you is hampered significantly and may result in my having to withdraw. Hopefully we don’t get into that situation. Be aware that since you are on a joint retainer there is no confidentiality between any of us when it comes to anything that could bear upon the litigation.
Following this advice, Client’s A and B ceased to have the Firm represent them. It is unclear from the material whether they sought alternative representation for the purpose of concluding an interspousal agreement, but there is reference to such an agreement being signed.
Approximately 8 months after terminating the Firms services, Client B made contact with Lawyer X for advice about enforcing the provisions of the interspousal agreement. According to Lawyer X, advice was provided to Client B, and Client B made some efforts to negotiate with Client A concerning the provisions of the interspousal agreement and the possible proceeds of the action involving Party C. Later, Client B asked Lawyer X to take a more active role in enforcing the interspousal agreement, and Lawyer X drafted a Petition which was served on Client A. The Petition indicated that Client A and Client B’s divorce had been finalized. In the Petition, Client B asked for maintenance as compensation for Client A’s violation of the interspousal agreement, and for payment and disposition of funds and property payable pursuant to the terms of the interspousal agreement.
Client A filed a complaint with the Law Society after being served with the Petition. In the complaint, Client A indicated that the litigation with Party C was ongoing, and that the piece of property at issue in those proceedings was part of the property to which Client B was attaching a claim in the Petition.
In the response to the complaint, Lawyer X began by outlining the history of the interaction between the Firm and Client’s A and B. A portion of the response included the following statement:
At not time were issues relating to marital discord between Client A and Client B ever discussed. At not time was any information in relation to marital issues discussed, disclosed or advanced. Neither Lawyer Y or Lawyer Z are family law lawyers.
Lawyer X went on to refer to the law concerning conflicts of interest as recently stated by the Supreme Court of Canada in Canadian National Railway Co. v. McKercher LLP, 2013 SCC 39,  2 S.C.R. 649 [CNR], and to rely on that decision in support of the position that no conflict of interest arises from Lawyer X’s representation of Client B in relation to Client B’s matrimonial dispute with Client A.
In the CNR case, the Court distinguished between two situations in which a conflict of interest may arise. The first of these is addressed by the “bright line” rule set out in R. v. Neil, 2002 SCC,  3 S.C.R. 631 [Neil], which spells out that a lawyer or law Firm may not concurrently represent clients adverse in interest without obtaining their consent. Since Client A has not been a client of the Firm for a few years, the bight line rule is not applicable in relation to Client A’s complaint.
The Court also considered the second situation addressed in Neil, where the bright line rule is inapplicable, but where there is some question about a lawyer or law Firm’s continuing obligations to a current or former client. The basic principles governing such a situation are based on the Court’s observations in MacDonald Estate v. Martin, 1990 Can LII 32 (SCC),  3 S.C.R. 1235 at 1243:
In resolving this issue, the Court is concerned with at least three competing values. There is first of all the concern to maintain the high standards of the legal profession and the integrity of our system of justice. Furthermore, there is the countervailing value that a litigant should not be deprived of his or her choice of counsel without a good cause. Finally, there is the desirability of maintaining reasonable mobility in the legal profession. The review of the cases which follows will show that different standards have been adopted from time to time to resolve the issue. This reflects the different emphasis placed at different times and by different judges on the basic values outlined above.
In Neil, at paragraph 31, the Court stated that the question that must be asked when the bright line rule does not apply is whether the concurrent representation of clients creates “a substantial risk that the lawyer’s representation of the client would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client or a third person.”
In the CNR decision, at paragraph 24, the Court observed that the major consideration to be assessed in the case of former clients is the risk that the access to the former client’s confidential information will prejudice the current legal interests of that client. This suggests that the major question to be considered in relation to Client A’s complaint is whether the access Lawyer X and Lawyer X’s law Firm had to the information in the information in the litigation file for Client’s A and B now pose a substantial risk to the legal interests of Client A.
Our conclusion is that the prior representation of Client’s A and B does not in these circumstances create such a risk. Client A has asserted that the property that was the subject matter of the litigation file will also be at issue in the disposition of matrimonial property; if this is indeed the case, the information concerning the nature and status of the property would have to be fully disclosed in that context. There is thus not a substantial risk that Client A’s interests would be inappropriately affected by the information accessible to members of the Firm.
It might be observed that Lawyer Z took a somewhat more cautious approach to the conflict issue, advising Client’s A and B that he could not represent them both in drafting an interspousal agreement, and also that it would be difficult to be sure that Lawyer Z’s continuing carriage of the litigation file would not be affected by their decision to end their marriage. Though we have found that Lawyer X is not in a conflict with respect to representing Client B, the mistaken assumption in Lawyer X’s response to the complaint that there had been no discussion at all of matrimonial issues while Client’s A and B were both clients of the Firm suggests that Lawyer X might have been less likely to create the risk of conflict if Lawyer X had investigated the Firms relationship with Client’s A and B more thoroughly.
The overall finding is that Lawyer X is not in a conflict of interest in relation to representing Client B.
From the Saskatchewan Access to Justice Working Group
Victor P. Dietz, Q.C. Pro Bono Service Award nominations due January 5: http://bit.ly/2BpKIvM.
Support CLASSIC by purchasing tickets for the inaugural “Cirque de CLASSIC” Fundraiser being held on January 19 in Saskatoon: http://bit.ly/2zuD4lR.
Sask.’s top judge spearheading book collection for people behind bars: http://bit.ly/2CyS4Bn.
Thompson Rivers University law students create apps aimed at improving access to justice, presented during “Battle of the Apps”: http://bit.ly/2As6MJb.
Legal Innovation Zone at Ryerson University announces Global Family Justice Initiative: http://bit.ly/2j4vvsW.
Landlord registry would protect vulnerable renters, non-profit says: http://bit.ly/2zTlQ3a.
Update on Saskatchewan Access to Legal Information Project featured in Winter 2017 edition of Law Society of Saskatchewan’s Benchers’ Digest : http://bit.ly/2Bt81Wx.
New report on Millennials, Technology and Access to Justice released by The Action Group on Access to Justice (TAG): http://bit.ly/2gwLDC4.
New publications from the Canadian Research Institute for Law and the Family, including topics of Parenting Coordination and Children’s Participation in Justice Processes: http://bit.ly/2Bv4pn7.
Saskatchewan modernizing small claims court process: http://bit.ly/2hWlayg.
Special Issue of Windsor Yearbook of Access to Justice published on “Innovation and Access to Justice: Addressing the Challenge of a Diverse Justice Ecosystem”: http://bit.ly/2kAYnJg.
Congratulations to the Hon. Thomas Cromwell, honourary fellow of CREATE Justice, named to the Order of Canada: http://bit.ly/2CXGKwf.
If you are a looking to become better acquainted with a new area of Saskatchewan law, there is no better service than the Public Legal Education Association of Saskatchewan (PLEA).
you lost your job three months ago, and are having trouble paying your bills. You just got your third call in a week from a collection agent about your credit card account. You explained your situation to the collection agent, but she didn’t seem to care. She said that if you didn’t pay the entire amount by the end of this month, they would take you to court and ruin your credit rating. She has already called your spouse at work, and said that they would be talking to your spouse’s employer. You want to do the right thing, but just do not have the money right now. What can you do?
This harrowing narrative is followed with eight paragraphs of perfectly lucid and readable commentary that gives the unfortunate debtor an excellent overview of their legal standing, as well as some notes on strategy going forward, despite not being “intended to form the basis of legal advice of any kind.”
The disclaimer to legal advice may seem odd, given that the information does sound in places very much like very good advice. But the beauty part is that the disclaimer means that this advice is free to share with whomever may need it, and as often as it is needed. So the next time you or a friend or family member gets into any kind of legal trouble, please remember PLEA!