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the<br />
SOCIETY<br />
RECORD<br />
VOLUME 32 | NO.2 | Fall 2014<br />
NOVA SCOTIA<br />
BARRISTERS’ SOCIETY<br />
www.nsbs.org<br />
Action on access<br />
Law societies are engaging with communities to develop practical A2J strategies<br />
VISION, LEADERSHIP, EXCELLENCE – THE LEGAL PROFESSION IN NOVA<br />
Fall 2014<br />
SCOTIA<br />
1
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2<br />
The Society Record
Contents<br />
VOLUME 32 | NO 2 | Fall 2014<br />
5 The President’s View<br />
7 Briefs<br />
12 Society News<br />
15 Stories of success and connection: The ITL Observership Program – Allison Smith<br />
16 Here to help: How the private Bar supports Nova Scotia Legal Aid – donalee Moulton<br />
18 NSLA: Double certificate, double whammy – donalee Moulton<br />
19 Law school accreditation in historical perspective – Barry Cahill<br />
the<br />
Society<br />
Record<br />
is published by the<br />
Nova Scotia<br />
Barristers’ Society<br />
Cogswell Tower<br />
800–2000 Barrington St.<br />
Halifax, NS B3J 3K1<br />
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lneily@nsbs.org<br />
21 LIANS – Tips from the Risk & Practice Management Program<br />
22 Action on A2J: Initiatives taking root in 2014-15 – Lia Renaud<br />
25 This land is our land – Angela Simmonds<br />
27 Understanding access: Collaboration helps law societies develop practical strategies<br />
– Marla Cranston<br />
29 Preparing for the storm: Legal innovation in Nova Scotia – Julie Sobowale<br />
31 Entity Regulation 101 – Steve Mark & Tahlia Gordon, Creative Consequences Pty Ltd.<br />
34 ‘Triple P’ regulation in Nova Scotia<br />
35 Legal research: Staying in control, on budget and in the know –<br />
Deborah Copeman & Jennifer Taylor<br />
38 SUMMATION: Reflections on representing Nova Scotia at the national regulatory table<br />
– Catherine S. Walker QC<br />
inside<br />
Editor<br />
Marla Cranston<br />
mcranston@nsbs.org<br />
Graphic Design<br />
Lisa Neily<br />
lneily@nsbs.org<br />
NOVA SCOTIA<br />
BARRISTERS’<br />
SOCIETY<br />
page 8 page 15 page 27<br />
on the cover: The Halifax Refugee Clinic was one of 11 community and legal organizations to host A2J<br />
conversations with delegates from across Canada, during the Federation of Law Societies’ national<br />
conference in Halifax October 8-10. Photo by Laura Hilchey Photography<br />
For ongoing Society news, follow us online:<br />
nsbs.org<br />
via InForum at<br />
nsbs.org/inForum<br />
on Twitter<br />
@NSBS<br />
on Facebook at<br />
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on LinkedIn<br />
Nova Scotia<br />
Barristers’ Society<br />
Fall 2014 3
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4<br />
The Society Record
the<br />
president’s<br />
view<br />
Photo by Mike Dembeck<br />
The A2J Imperative<br />
Everybody is talking about access to justice these days.<br />
What does it mean to you? I would venture to guess there<br />
are very different answers to that question, depending on<br />
whether you are a lawyer, a judge or a member of the public. For<br />
me, access to justice is about Nova Scotians being able to get<br />
the information, advice and guidance they need to be able to<br />
make the best informed decisions they can to resolve their legal<br />
problems.<br />
That does not necessarily mean the court system. That does<br />
not necessarily mean lawyers. In fact, research teaches us that<br />
the majority of citizens do not go to lawyers to get legal advice,<br />
but look elsewhere. Indeed, many use the services of the “first<br />
responders” – community organizations. Nova Scotians consult<br />
social workers, immigrant advisers, shelter personnel and others<br />
for legal information and advice, for direction as to how to<br />
navigate the legal system. This is because most of them simply<br />
cannot afford the cost of legal services provided by lawyers.<br />
Why should the regulator be so concerned about access to<br />
justice? Because all law societies in Canada regulate the practice<br />
of law in the public interest. It is in the public interest to have<br />
legal services accessible to as many Nova Scotians as possible<br />
who need them. The Society has identified access to legal<br />
services as one of its key strategic directions over the next couple<br />
of years, with a key focus on equity-seeking and economically<br />
disadvantaged groups.<br />
We are collaborating with community organizations and other<br />
partners in the justice system (the courts, the Department of<br />
Justice, CBA-NS) to advocate for enhanced legal services. We feel<br />
we have an obligation to lead the charge (where appropriate),<br />
facilitate conversations amongst the various stakeholders, share<br />
information and keep the spotlight on the need for this issue to<br />
be addressed.<br />
We are not alone in this endeavour. We partner with other law<br />
societies and other organizations to make our impact greater. We<br />
provide information and hold workshops to help the profession<br />
understand what type of service is needed and by whom, and to<br />
promote creativity and innovation in the practice of law. These<br />
are just a few questions we ask ourselves:<br />
• Do we need more pro bono clinics that offer summary<br />
legal advice or do we need to develop a model that<br />
provides for ongoing coaching of self-represented<br />
litigants, so they can make informed decisions as to<br />
how to move forward with their legal matters?<br />
• Do we need to modify our practices and our fees<br />
in order to capture more of that untapped market of<br />
potential clients out there?<br />
• How do we get information and advice to people<br />
in a timely way so they can resolve their legal issues<br />
themselves, without recourse to the courts?<br />
As the regulator, we feel we have an obligation to change our<br />
regulatory model so that you, the legal practitioner, can rethink<br />
how you deliver legal services in the future. We have already<br />
started down this path. We very much look forward to engaging<br />
you in discussions as to what regulatory model you think would<br />
best enable us to deliver legal services to a greater number of<br />
Nova Scotians, both now and well into the future.<br />
Tilly Pillay QC<br />
President<br />
Fall 2014 5
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6<br />
The Society Record
BRIEFS<br />
2014 June Bar Admission Ceremony<br />
The Society held its annual Call to the Bar on June 6 at Pier 21, with the Hon. Justice Glen G. McDougall of Nova Scotia Supreme Court presiding.<br />
Sixty-two new lawyers joined the legal profession, and the majority stayed in Nova Scotia to establish their legal practices. Eighteen more were<br />
admitted at a smaller ceremony on October 16 at the Halifax Law Courts.<br />
From the Bench … to the barbecue<br />
Once a year, the Chiefs and<br />
Associate Chief volunteer to do<br />
the grilling at a lunchtime staff<br />
BBQ at The Law Courts in Halifax.<br />
Pictured here on June 11, from left<br />
to right: the Honourable Joseph<br />
Kennedy, Chief Justice of the Nova<br />
Scotia Supreme Court, the Hon.<br />
Michael MacDonald, Chief Justice<br />
of Nova Scotia and the Court of<br />
Appeal, and the Hon. Deborah<br />
Smith, Associate Chief Justice of<br />
the Nova Scotia Supreme Court.<br />
Photo by Nancy Rubin QC,<br />
Partner, Stewart McKelvey<br />
Fall 2014 7
BRIEFS<br />
Race and the law and ‘the Other’<br />
Meaghan Mahadeo’s legal interest in<br />
the concept of “the Other” germinated<br />
while completing her master’s degree<br />
in intercultural literature at Leiden<br />
University in the Netherlands.<br />
Keen to examine how societies are<br />
structured by establishing knowable<br />
norms and values, with ‘the Other’<br />
as something beyond the norm, she<br />
also looked at transgressions in the<br />
boundaries between the self and the<br />
other.<br />
“What I felt I was missing in my<br />
graduate studies was a tangible or<br />
practical application of these ideas to<br />
lived reality,” says Mahadeo, recalling<br />
the research inspiration that led to her<br />
2014 Race and the Law Essay Prize.<br />
“I thought this paper could be a<br />
meaningful way to blend postcolonial<br />
theories of ‘Othering’ and<br />
the disenfranchisement that often<br />
results from the process of setting<br />
up boundaries between groups of people, with the historic and<br />
current realities experienced by Aboriginal peoples in Canada.”<br />
Now in Ottawa clerking with the Hon. Justice Elizabeth<br />
Heneghan at the Federal Court of Canada, Mahadeo received the<br />
award upon graduating in May from the Schulich School of Law<br />
at Dalhousie University. The essay prize encourages outstanding<br />
scholarship by law students on topics pertaining to issues of race<br />
and law. Embarking on its seventh year, the award presented by<br />
the Society’s Racial Equity Committee (REC) and sponsored by<br />
the Halifax law firm Stewart McKelvey.<br />
Mahadeo’s winning essay is titled “What’s in a name?: An<br />
Analysis of the Politics of Band Membership Codes in the Canadian<br />
Indigenous Quest for Self-Determination.”<br />
Left to right: Hanaa Al Sharief and Alicia Arana of the Society’s Racial Equity Committee, award<br />
recipient Meaghan Mahadeo and Level Chan of Stewart McKelvey.<br />
“This concept does not reflect how Aboriginal peoples<br />
themselves conceive of Aboriginality, as something that<br />
is diverse and often fluid,” adds Mahadeo.<br />
“I thought it was important to highlight the artificiality of the<br />
concept of ‘Indian’ pursuant to the Indian Act, and also consider<br />
how the boundary that the term creates between Canada’s<br />
Aboriginal peoples and the rest of Canadian society could<br />
be used in a productive way, as a tool to promote Aboriginal<br />
autonomy.”<br />
Mahadeo’s achievement was also recognized at the REC’s June 5<br />
reception to honour articled clerks and new calls from racialized<br />
and Aboriginal communities, and again at the Society’s<br />
Recognition Reception on September 19.<br />
The paper suggests the concept of “Indian” is a colonial<br />
construct determined by the federal government, serving to set<br />
groups of people apart in order to determine who is and is not<br />
entitled to government benefits.<br />
For more information on the essay prize, including a list of past<br />
recipients and paper abstracts, visit nsbs.org/race-and-law-essay-prize.<br />
8<br />
The Society Record
BRIEFS<br />
2014 NSBS PRESIDENTS’ LEADERSHIP AWARD<br />
What does Vincent van Gogh’s lost ear have to do with<br />
leadership and law school? You’ll have to watch Emilie<br />
Coyle’s memorable valedictory speech to find out.<br />
Coyle got a rousing standing ovation after her poignant<br />
spoken-word address to fellow graduates at the May<br />
23 convocation at the Schulich School of Law. (To find<br />
the video online, search for “Emilie Coyle valedictory” or<br />
visit www.youtube.com/watch?v=kG5anDC-Dz8)<br />
Emilie Coyle with daughter Maia, Catherine Walker QC and Dean Kim Brooks QC<br />
Earlier that day at the Dean’s Reception, she received<br />
the 2014 NSBS Presidents’ Leadership Award for<br />
her leadership qualities and volunteer efforts while<br />
attending law school. Now articling at Weldon<br />
McInnis in Dartmouth, Coyle spearheaded the<br />
first student society of the Canadian Association<br />
of Refugee Lawyers, played a leading role in the<br />
IDEALaw 2014 Conference, and is a board member<br />
for Stepping Stone and the Rainbow Refugee<br />
Association of Nova Scotia.<br />
Also on May 23, Paul Calderhead received the NSBS Presidents’ Leadership Summer Internship, which provides a modest<br />
honorarium toward a volunteer project following first-year law studies. He spent the summer as an intern with the Centre for Law<br />
and Democracy, working on a project relating to internet and media law.<br />
The Joy of Gender: The 12th Annual Pride Reception<br />
The past two years have been a turning point for gender identity and gender expression<br />
in Nova Scotia, with equality protections added to the Human Rights Act and some<br />
surgeries now covered by provincial health insurance. Soon, Nova Scotians will be able<br />
to change their birth certificates to reflect their gender identity, with or without surgery.<br />
“There are a lot of trans people for whom surgery is beside the point … they need doctors<br />
to help them with just routine everyday health issues,” Hershel Russell explained in his<br />
informative talk at the 12th Annual Pride Reception, co-hosted by the Society and the<br />
SOGI Section of CBA-NS on July 24 at Studio 21 Fine Art.<br />
Despite increasing visibility (e.g., trans actress Laverne Cox on popular TV), those who<br />
are gender different still face constant scrutiny and discrimination, even with such<br />
basics as finding a welcoming washroom in public buildings, schools and workplaces.<br />
“Or that constant, exasperating question: ‘Have you had the operation?’ When in doubt,<br />
it’s usually inappropriate to ask,” says Russell.<br />
Lead mental health trainer for Rainbow Health Ontario’s Trans Health Connection, the<br />
Toronto-based psychotherapist and educator has been counselling trans people and<br />
their families since 1995, and offers support to parents of gender-independent children.<br />
The annual Pride Reception is an opportunity to celebrate diversity within the province’s<br />
legal profession and to show support for LGBTI lawyers throughout Nova Scotia.<br />
Hershel Russell MEd, of Trans Health<br />
Connection<br />
Fall 2014 9
BRIEFS<br />
New appointments for Nova Scotia’s Judiciary<br />
1 2<br />
3 4<br />
Photos provided courtesy of the Executive Office of the Nova Scotia Judiciary<br />
1. Prior to his appointment in July, the Honourable Judge Daniel<br />
A. MacRury (at left) was Chief Crown Attorney for the Cape<br />
Breton Region, and now presides at the Nova Scotia Provincial<br />
and Family Courts in Amherst and Halifax. Kenneth Fiske QC of<br />
the Nova Scotia Public Prosecution Service shares a laugh while<br />
congratulating Judge MacRury during the October 10 swearingin<br />
ceremony in Sydney.<br />
“Judge MacRury brings with him a lengthy and broad spectrum of<br />
legal experience,” said the Hon. Pamela S. Williams, Chief Judge<br />
of the Provincial and Family Courts of Nova Scotia. “Together<br />
with his renowned volunteer work in the legal profession and for<br />
the communities in which he has lived, it makes him a valuable<br />
addition to our Courts.”<br />
Also Oct. 10, the Hon. Justice Cindy G. Cormier – a former lawyer<br />
with the provincial Department of Justice – was appointed to the<br />
Nova Scotia Supreme Court (Family Division) in Halifax.<br />
2. The Hon. Justice Lee Anne MacLeod-Archer, formerly of<br />
LaFosse MacLeod Law Firm, was sworn in at a June 17 ceremony<br />
in Sydney, where she presides at the Nova Scotia Supreme Court<br />
(Family Division). At left is the Hon. Michael MacDonald, Chief<br />
Justice of Nova Scotia.<br />
Two recent elevations were celebrated over the summer: the Hon.<br />
Justice Cindy A. Bourgeois (3, left) joined the Nova Scotia Court<br />
of Appeal after five years at Nova Scotia Supreme Court, while<br />
the Hon. Justice Jamie S. Campbell (4), previously a Provincial<br />
Court judge, moved to Nova Scotia Supreme Court.<br />
10<br />
The Society Record
BRIEFS<br />
2014 RECOGNITION RECEPTION<br />
Heather McNeill QC: 2014 Distinguished Service Award<br />
Nova Scotia’s legal profession – and the public – benefit from<br />
the varied perspectives of a diverse membership, says Heather<br />
McNeill QC of the Dalhousie Legal Aid Service.<br />
“We each have skills and experience that can make a difference<br />
to those in need,” says McNeill, who received the 2014<br />
Distinguished Service Award on September 19 for significant<br />
contributions to her community, the profession and the Society.<br />
A practising lawyer for almost 20 years, McNeill draws on her<br />
previous career as a registered nurse to involve healing and<br />
compassion in her approaches to legal disputes. She also<br />
combines traditional Aboriginal concepts of respect and sharing<br />
with her legal talents, advocating for marginalized individuals<br />
and communities in Nova Scotia.<br />
Her long history of public service includes work with<br />
the Indigenous Blacks & Mi’kmaq Initiative Advisory Council,<br />
pro bono services to immigrants, leadership in the Mi’kmaq First<br />
Nation and much more. At the Society, she currently volunteers<br />
as a member of the Fitness to Practise Committee and the Racial<br />
Equity Committee (REC).<br />
“One aspect of the many things we are involved in (with the<br />
REC) is going into diverse communities – for me, the Mi’kmaq<br />
Recognition of long-term service in the legal profession<br />
community – and delivering legal information sessions.<br />
Attendees are empowered in terms of knowing the law, the<br />
process and where to go for help. It’s clear that being informed<br />
makes a huge difference,” she says.<br />
Visit the Society’s blog at nsbs.org/public-interest to read<br />
“Distinguished lawyer, legal healer,” featuring a Q&A with<br />
McNeill and more details about the Distinguished Service<br />
Award. The date for next year’s nominations is April 15, 2015;<br />
they may be submitted by both lawyers and the public.<br />
Also at the September 19 event, the Society<br />
honoured four lawyers with long-term service<br />
certificates. Charlie MacIntosh QC (seated), one<br />
of the province’s best-known real estate lawyers,<br />
and Edwin LeBlanc QC (standing, far left), in-house<br />
counsel with Nova Scotia Power for much of his<br />
career, were recognized for 60 years of service<br />
in the legal profession. President Tilly Pillay QC<br />
also presented 50-year certificates to David F.<br />
Curtis QC of Truro (second from left), a highly<br />
regarded lawyer who assisted in the development<br />
of the Land Registration Act, and David Grant<br />
of Dartmouth (at right), a true generalist who<br />
practised in all areas of law.<br />
The Recognition Reception is an annual<br />
opportunity for the Society to honour lawyers and<br />
law students for contributions that demonstrate<br />
the profession’s commitment to excellence and<br />
public service.<br />
Fall 2014 11
society news<br />
Council updates<br />
Society leadership for 2014-2015<br />
On June 14 during the 2014 Annual Meeting, the Society welcomed<br />
its new leadership for the 2014-2015 Council year.<br />
President Tilly Pillay QC of Halifax (centre) is Executive Director of<br />
the Legal Services Division for the provincial Department of Justice.<br />
First Vice-President Jill Perry (left) is Managing Lawyer (Family)<br />
with Nova Scotia Legal Aid in Sydney. Second Vice-President R.<br />
Daren Baxter QC, TEP (right) is a Partner with McInnes Cooper’s<br />
Halifax office.<br />
Ms. Pillay’s inaugural address, “Turning the Corner,” is available<br />
for viewing online at youtube.com/user/nsbarristerssociety/. For<br />
Council agendas and updates throughout the year, visit nsbs.org/<br />
council-materials.<br />
Please note: The next Council elections will take place in March and<br />
April of 2015, and the nomination process has begun for Second<br />
Vice-President for 2014-2015. Watch nsbs.org for updates.<br />
Access to Justice Co-ordinating Committee<br />
The Society is participating in the Access to Justice Co-ordinating<br />
Committee (A2JCC), launched June 12 as an important new<br />
collaborative effort among leaders in the province’s justice and legal<br />
community.<br />
Justice Minister Lena Metlege Diab and the Hon. J. Michael<br />
MacDonald, Chief Justice of Nova Scotia, are leading the committee<br />
in efforts to make the family, civil and criminal court systems more<br />
efficient and effective, less costly and easier to navigate.<br />
“The system isn’t perfect and these changes won’t happen overnight,”<br />
says Minister Diab. “But we are committed to working together to<br />
make our system better and to put people first, every step of the way.”<br />
The committee will act on recommendations outlined in Access to<br />
Civil & Family Justice: A Roadmap for Change, released by the National<br />
Action Committee on Access to Justice in Civil and Family Matters.<br />
Notes Chief Justice MacDonald: “As a committee, we will work to<br />
identify and promote the great work that is already being done, and<br />
introduce new initiatives. The intent is to provide leadership so that<br />
all initiatives are as successful as possible.”<br />
Ms. Pillay represents NSBS on the seven-member group, which also<br />
includes Robyn L. Elliott QC, President of CBA-NS; Kim Brooks,<br />
Dean of the Schulich School of Law at Dalhousie University; Karen<br />
Hudson, Executive Director, Nova Scotia Legal Aid Commission; and<br />
Rev. Dr. Linda Yates, Public Representative.<br />
Repeat offenders and ungovernability<br />
Over the past several years, the Complaints Investigation Committee<br />
(CIC) has seen the names of certain lawyers appear on its agenda<br />
again and again, sometimes for similar conduct, and other times for<br />
different conduct.<br />
At what point do these ‘repeat offenders’ cross a line or threshold into<br />
12<br />
The Society Record
society news<br />
‘ungovernability’? The CIC has been struggling with this question on<br />
an increasing basis, it seems.<br />
When one thinks of ungovernability, it is often in the context of a<br />
lawyer who essentially refuses to communicate or cooperate with an<br />
investigation, and demonstrates an attitude that he or she is unwilling<br />
to accept the regulatory authority of the Society. However, we are<br />
now seeing a number of lawyers who – while being courteous and<br />
apparently cooperative during investigations – demonstrate an<br />
apparent unwillingness or inability to adhere to the rules of conduct,<br />
as evidenced by repeated minor or major complaints, and despite<br />
staff and CIC intervention.<br />
The Professional Responsibility Policies and Procedures Committee<br />
considered these issues over a number of months, including the review<br />
of current case law from other Canadian jurisdictions and case studies of<br />
complaint files recently before the CIC. An amendment to Regulation<br />
9.1 was approved by Council on September 19 to define ungovernability<br />
and add “repeat offender” to the definition of professional misconduct.<br />
See nsbs.org/regulations-under-lpa for details.<br />
In concert with dealing with this troubling problem from a disciplinary<br />
perspective is the equally important goal to reduce the occurrence of<br />
repeat offences. In the spirit of being more proactive, risk-focused<br />
and proportional, the CIC is committed to spending more time<br />
speaking with repeat offenders and other lawyers in person, to help<br />
identify and address the root causes of the offences.<br />
Disclosing confidential information: Risk of death or<br />
serious bodily harm<br />
Since the coming into force of the new Code of Professional Conduct<br />
in January 2012, the Society has received many calls from lawyers<br />
who are struggling to determine whether their circumstances fall<br />
within the public safety exception to the duty of confidentiality<br />
found in rule 3.3-3 of the Code. The thought of breaching solicitorclient<br />
privilege is tremendously difficult, and wading through the<br />
competing obligations can be a significant ethical challenge.<br />
The lawyer and client relationship depends on trust. Lawyers can<br />
only fully represent their clients when all relevant information has<br />
been disclosed. Clients can only communicate openly with their<br />
lawyers when they feel completely secure and trust that their lawyer<br />
will hold the matters discussed in strict confidence.<br />
Sometimes, this trust relationship leads clients to disclose information<br />
that causes a lawyer serious concern about the safety of the client or<br />
others, and we have received many calls from lawyers seeking guidance<br />
in these situations. Each situation must be carefully assessed according<br />
to the circumstances of the particular situation, and each requires the<br />
exercise of very sound professional judgment by the lawyer.<br />
A lawyer owes a duty of confidentiality to every client and is prohibited<br />
from disclosing any information acquired through the lawyer-client<br />
relationship under rule 3.3-1 of the Code of Professional Conduct:<br />
3.3-1 A lawyer at all times must hold in strict confidence all<br />
information concerning the business and affairs of a client acquired<br />
in the course of the professional relationship and must not divulge<br />
any such information unless:<br />
(a) expressly or impliedly authorized by the client;<br />
(b) required by law or a court to do so;<br />
(c) required to deliver the information to the Society, or<br />
(d) otherwise permitted by this rule.<br />
However, a limited exception to the prohibition on disclosing a<br />
client’s confidential information exists under rule 3.3-3: Future<br />
Harm/Public Safety Exception:<br />
3.3-3 A lawyer may disclose confidential information, but must<br />
not disclose more information than is required, when the lawyer<br />
believes on reasonable grounds that there is an imminent risk of<br />
death or serious bodily harm, and disclosure is necessary to prevent<br />
the death or harm.<br />
This rule sets up three criteria, all of which must be present before<br />
determining whether or not to disclose:<br />
1. Reasonable grounds;<br />
2. Imminent risk of death or serious bodily harm; and<br />
3. The disclosure is necessary to prevent death or harm.<br />
The following Commentary in the rule is designed to help lawyers<br />
determine when to disclose:<br />
[3] In assessing whether disclosure of confidential information is<br />
justified to prevent death or serious bodily harm, a lawyer should<br />
consider a number of factors, including:<br />
(a) the likelihood that the potential injury will occur and its<br />
imminence;<br />
(b) the apparent absence of any other feasible way to prevent<br />
the potential injury; and<br />
(c) the circumstances under which the lawyer acquired the<br />
information of the client’s intent or prospective course of<br />
action.<br />
[4] How and when disclosure should be made under this rule<br />
will depend upon the circumstances. A lawyer who believes that<br />
disclosure may be warranted should contact the Society for ethical<br />
advice. When practicable and permitted, a judicial order may be<br />
sought for disclosure.<br />
If you need further guidance in deciding whether or not the<br />
circumstances warrant disclosure, please contact the Society’s<br />
Professional Responsibility staff. You may also seek advice from<br />
another lawyer. Rule 3.3-6 of the Code allows you to disclose<br />
confidential information to another lawyer in order to secure legal<br />
or ethical advice.<br />
It is not uncommon for clients involved in difficult personal and legal<br />
situations to become very disconsolate. Clients may make comments<br />
suggesting that they are going to harm themselves or another person(s)<br />
as a result of their seemingly desperate situation. In such circumstances,<br />
it is recommended that lawyers address the comments with their<br />
Fall 2014 13
society news<br />
clients directly, and make specific inquiries as to the seriousness<br />
of the comments and the client’s reasons for saying them. It is also<br />
recommended that lawyers warn their clients that they have an ethical<br />
and professional obligation to report such comments, if they are<br />
believed, to law enforcement or other agencies, despite their duty to<br />
the client to maintain confidentiality. Each situation, and each client,<br />
will be different, and seeking further advice is always recommended.<br />
After you have decided to disclose relevant confidential information in<br />
order to prevent harm to your client or another person, you must then<br />
consider to whom you should disclose. The Society can help you with<br />
this decision. You may wish to speak with the client’s immediate family<br />
or their treating health professional. Adult Protection Services 1 and<br />
Child Welfare Services 2 are provincial government agencies that can<br />
assist you and your client. If you have evidence that a crime has been<br />
committed, you need to balance your duty to uphold the administration<br />
of justice with your duty of confidentiality to your client, and consider<br />
whether the future harm exception warrants contacting the police<br />
or RCMP. Consider also whether anyone else other than you could<br />
report. Note that the National Model Code Committee is currently<br />
reviewing the guidance to lawyers under the Rules when dealing with<br />
evidence relevant to a crime, in order to provide as clear guidance as<br />
possible under these challenging circumstances.<br />
If you believe a child is at risk of abuse, then you must consider whether<br />
you are obligated to report your suspicions to a child welfare agency 3 .<br />
Child abuse includes physical, emotional or sexual abuse, or neglect.<br />
For further information about the applicability of the Children and<br />
Family Services Act to lawyers, please see the InForum article “Current<br />
Issues in Legal Ethics – Solicitor-client privilege: The Future Harm/<br />
Public Safety Exception to duties regarding confidential information”. 4<br />
After disclosing confidential client information, the Code recommends<br />
that you prepare a written note to file as soon as possible, detailing:<br />
(a) the date and time the disclosure was made;<br />
(b) the grounds in support of your decision to communicate<br />
the information, including the harm intended to be<br />
prevented, the identity of the person who prompted<br />
communication of the information as well as the identity of<br />
the person or group of persons exposed to the harm; and<br />
(c) the content of the communication, the method of<br />
communication used and the identity of the person to<br />
whom the communication was made (Commentary [5]<br />
under rule 3.3-3).<br />
If you need further guidance on this or any other issue, please do not<br />
hesitate to contact the Society’s Professional Responsibility team.<br />
Other resources:<br />
1<br />
Adult Protection Services: http://www.gov.ns.ca/health/ccs/adult_protection.asp<br />
2<br />
Department of Community Services – Children, Youth & Families:<br />
http://novascotia.ca/coms/families/index.html<br />
3<br />
Child Welfare Services Offices in Nova Scotia, with contact information:<br />
http://novascotia.ca/coms/department/contact/ChildWelfareServices.html<br />
4<br />
InForum article: Current Issues in Legal Ethics – Solicitor-client privilege: The Future Harm/<br />
Public Safety Exception to duties regarding confidential information: http://nsbs.org/<br />
sites/default/files/cms/publications/forum/2012-11-26inforum.pdf Review of NSBS CPD<br />
Requirement<br />
Douglas Lloy QC, Bronwyn Duffy and Patrick Young, Executive of the<br />
Pictou County Barristers’ Society<br />
Review of NSBS CPD Requirement<br />
The Society is undertaking a comprehensive review of its CPD<br />
Requirement this year, with a focus on the evolving approach to<br />
regulation in the public interest. Staff in the Education & Credentials<br />
department are reviewing data, examining CPD programs in other<br />
jurisdictions and professions, and will hold consultations and focus<br />
groups early in 2015.<br />
Since the mandatory CPD requirement’s launch in 2012, regional<br />
and county Bar societies have stepped up local efforts to provide<br />
professional development. The Pictou County Barristers’ Society<br />
launched “an aggressive program of CLE delivery” for its members,<br />
with more than 15 lunch and learn sessions a year, says legal aid lawyer<br />
Douglas Lloy QC, the group’s president.<br />
The inaugural Northern Nova Scotia CLE Day, held Oct. 24 at Pictou<br />
Lodge, drew more than 70 lawyers from Port Hawkesbury to Windsor<br />
for nine panels featuring speakers from all levels of the judiciary,<br />
LIANS, and senior counsel in the areas of Aboriginal, criminal, family,<br />
personal injury and property law.<br />
“This was the flagship event of the year for the PCBS and we saw<br />
sufficient interest from other local Bar groups in Nova Scotia to make<br />
it a yearly event,” says Lloy. The group is also very active in the wider<br />
community, promoting law as a meaningful and satisfying career<br />
option through school presentations and mock trials.<br />
On November 14 at the Membertou Trade & Convention Centre,<br />
the Cape Breton Barristers’ Society is “Bringing it Home” with its<br />
third annual professional development conference. The event features<br />
sessions on effective judicial settlement conferences, Property Online<br />
transactions, human rights, human trafficking, family law and client<br />
competency. Other regional and county Bar groups also have an active<br />
slate of professional development events that count toward the NSBS<br />
CPD Requirement.<br />
14<br />
The Society Record
Stories of success and connection<br />
The ITL Observership Program<br />
Maurice Chiasson QC and Godfred Chongatera<br />
Lawyers new to Canada are forging connections in the legal<br />
community and learning about the practice of law in Nova<br />
Scotia through the Society’s Internationally Trained Lawyers<br />
Observership Program.<br />
After completing his observership at Stewart McKelvey, Godfred<br />
Chongatera ended up there as an articled clerk and is now well on<br />
track to join the province’s legal profession. The ITL Program was a<br />
“springboard” that allowed him to make valuable connections in the<br />
province’s legal community that wouldn’t have been possible otherwise,<br />
says Chongatera, who received his LLB in his home country of Ghana<br />
before moving to Nova Scotia to complete a master’s degree at the<br />
Schulich School of Law.<br />
Working on an observership model in conjunction with Immigrant<br />
Settlement and Integration Services (ISIS-NS), the program pairs<br />
internationally trained lawyers with local lawyers who have similar<br />
professional interests. Chongatera observed the day-to-day activities<br />
of a number of lawyers at the firm, sitting in on client meetings,<br />
participating in a CPD session with his supervising lawyer Maurice<br />
Chiasson QC, and studying ethical matters in the Code of Professional<br />
Conduct.<br />
The program saw 11 internationally trained lawyers complete<br />
observerships in a variety of legal workplaces during its pilot year,<br />
which launched in the fall of 2013. It continues to thrive with new<br />
participants such as Farhan Raouf, who is participating at Cox &<br />
Palmer.<br />
“I am delighted with the opportunity,”<br />
says Raouf, who received two law degrees<br />
in Pakistan. He especially appreciates “the<br />
welcoming attitude that can be found in<br />
Allison Smith<br />
Freelancer<br />
Haligonians, which is also quite visible in day-to-day affairs of the<br />
law firm.”<br />
Before moving here, Catrina Campana Wright spent five years in<br />
private practice in the American Territory of Guam. Bringing a wealth<br />
of experience to her new home, she participated in the ITL program<br />
by shadowing Charlene Moore at Nova Scotia Legal Aid.<br />
“It was fascinating to compare the differences – and some surprising<br />
similarities – between my practice and Charlene’s,” says Campana<br />
Wright, who found the program’s mentorship element particularly<br />
beneficial. A highlight was observing Moore successfully defend a<br />
client at an appeal board hearing, an activity that resonated with her<br />
strong interest in administrative law.<br />
Building friendships with other ITLs was an unexpected benefit,<br />
adds Campana Wright. She meets and corresponds regularly with<br />
international colleagues in order to discuss legal practice in Nova<br />
Scotia, their professional goals and challenges facing immigrants.<br />
Note: This is an edited version of a longer article on the Society’s blog at<br />
nsbs.org/public-interest. If you are a practising lawyer who would like to<br />
be involved as a supervisor, please contact Emma Halpern at<br />
ehalpern@nsbs.org.<br />
Fall 2014 15
Here to help<br />
How the private Bar can support<br />
Nova Scotia Legal Aid<br />
Nova Scotia Legal Aid reaches out to help Nova Scotians in<br />
need. Recently it looked inward to see how it could better<br />
fulfil its mandate and enhance access to justice. The result<br />
is a new three-year strategic plan that looks at how NSLA can better<br />
provide services – and calls for greater involvement by the private Bar.<br />
The newly unveiled plan, Here to Help, sees the services the<br />
organization provides in three core legal areas – criminal, family and<br />
social justice – as a continuum that starts with information, moves to<br />
advice, then limited retainer, and finally full service. That spectrum of<br />
services doesn’t sit outside the private Bar, however. It’s intertwined,<br />
and the connections are critical at the full-service stage.<br />
“The private Bar delivers about<br />
20 per cent of Nova Scotia Legal<br />
Aid’s caseload. Yet we struggle to<br />
find private Bar lawyers to take<br />
these cases,” says Karen Hudson<br />
QC, Executive Director of Nova<br />
Scotia Legal Aid.<br />
A large part of my practice is<br />
That need for lawyers to lend their<br />
expertise and insight is significant.<br />
In fiscal 2013-2014, Nova Scotia Legal Aid completed 18,432 cases.<br />
Of these, 3,258 were handled by lawyers in private practice. To<br />
induce more members of the private Bar to assist, and to more closely<br />
mirror rates lawyers charge, Legal Aid recently raised its fees by $10<br />
an hour across the board for lawyers who take certificates. At the top<br />
end, for serious cases, the hourly wage is now $95. However, this<br />
still brings legal aid rates in well below the private market, so some<br />
measure of pro bono is required.<br />
The contribution is well worth it, according to lawyers who have<br />
assisted Nova Scotia Legal Aid. Bottom line: it’s about more than<br />
money.<br />
and challenging cases that I have. They are<br />
frequently serious indictable matters with<br />
a great deal at stake.”<br />
NSLA certificate work. These cases<br />
include the most interesting and<br />
challenging cases that I have.<br />
donalee Moulton<br />
Freelancer<br />
For younger lawyers, legal aid certificates also offer an opportunity to<br />
gain meaningful experience, Lower Sackville lawyer Colin Campbell<br />
points out. “Taking on this type of work builds confidence for future<br />
practice.”<br />
The private Bar’s involvement doesn’t stop here, however. Nova Scotia<br />
Legal Aid is actively looking at new and relevant ways to involve<br />
lawyers. A mentoring program has been launched with the support of<br />
senior partners across the province (see<br />
sidebar). Others are lending a hand in<br />
novel initiatives to reach communities<br />
often isolated from the legal community.<br />
BOYNECLARKE LLP, for example, is<br />
assisting with the new Prestons Access to<br />
Justice Pilot project. Lawyers from the<br />
firm will work with NSLA’s outreach<br />
team and deliver legal information and<br />
summary advice in property, wills and<br />
estates matters.<br />
Of course, lawyers are always welcome to sit on the Nova Scotia<br />
Legal Aid Commission’s board of directors. “Our board mirrors our<br />
executive structure. They are driving the ship,” says Hudson.<br />
NSLA is hoping its outreach to the private Bar will raise the bar in<br />
terms of involvement in the legal aid system. But that outreach is<br />
not one-way. Members of the private Bar are welcome to attend inhouse<br />
educational sessions hosted by NSLA as part of their CPD<br />
requirements. This includes one-day sessions in the organization’s<br />
three core areas. “Recently we had 100 people at a session, and 40<br />
were from the private Bar,” notes Hudson.<br />
“I take legal aid cases as a means of providing a public service to<br />
members of the low-income and marginalized communities of Nova<br />
Scotia,” says Halifax lawyer Shawna Hoyte QC. “As an African Nova<br />
Scotian, I am aware that the financial affordability of legal services<br />
is still a major barrier for the members of my community and many<br />
others in Nova Scotia.”<br />
In addition to giving back, the work itself is rewarding, notes<br />
Kentville lawyer Christopher Manning. “A large part of my practice<br />
is NSLA certificate work. These cases include the most interesting<br />
Ultimately, the reasons members of the private Bar will step up to assist<br />
Legal Aid will be as numerous and diverse as the lawyers themselves.<br />
There is a mutual benefit for everyone, however: improved insight<br />
into justice and what it really means.<br />
“I believe it is vital that the private Bar be involved,” says Campbell.<br />
“[Working with NSLA] does allow private lawyers the experience in<br />
dealing with economically disadvantage individuals, which I think<br />
gives a more balanced perspective on practice generally.”<br />
16<br />
The Society Record
“I take legal aid cases as a means of<br />
providing a public service to members<br />
of the low-income and marginalized<br />
communities of Nova Scotia.”<br />
Halifax lawyer Shawna Hoyte QC.<br />
Fall 2014 17
NSLA: Double certificate, double whammy<br />
A new initiative launched by Nova Scotia Legal Aid is bringing together senior lawyers with less experienced advocates to assist on<br />
serious cases. The biggest winner will be Nova Scotia’s justice system.<br />
At least 16 established lawyers from the private Bar have indicated their preliminary<br />
support for NSLA’s double-certificate program. “They will work with a junior lawyer<br />
taking legal aid certificates, to provide advice and guidance regarding cases,” says Karen<br />
Hudson QC, NSLA Executive Director.<br />
“It means being available on a more intentional basis,” she added. “This will mean better<br />
service for Nova Scotia.”<br />
Doug Shatford QC, a partner with Creighton Shatford in Amherst, is one of the lawyers<br />
who has offered to act as a mentor. “Senior lawyers can charge a rate for mentoring but<br />
most lawyers invited to do this were happy to volunteer,” he says.<br />
Shatford notes that in many cases, particularly in urban areas, such generational<br />
collaboration doesn’t happen naturally. “A lot of young lawyers are hesitant to speak with<br />
senior lawyers about cases. Senior lawyers want to put themselves out there. We want<br />
people to know we’re willing to help.”<br />
Under the new program, which is just now being rolled out, NSLA will identify the names<br />
of senior lawyers willing to take calls from junior lawyers. In-person mentoring may occur<br />
for more complex files and when multifaceted decisions are required, such as those<br />
involving Charter motions, retaining experts, and voir dire.<br />
“We were looking for ways to re-engage the senior private Bar,” notes Hudson. “Some of these lawyers rarely take on legal aid cases,<br />
but we wanted them to be part of the process.”<br />
Those lawyers, it appears, were delighted to be asked.<br />
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18<br />
The Society Record
Photo collage provided by Karen Kavanaugh, Schulich School of Law, Dalhousie University<br />
Law school accreditation<br />
in historical perspective<br />
The recent decision by the Council of the Nova Scotia<br />
Barristers’ Society respecting Trinity Western University’s<br />
proposed law school affords an opportunity to examine the<br />
relation of the LLB to Bar admission in this province.<br />
Academic legal education was not historically in vogue within a<br />
system traditionally driven by apprenticeship, and in the early days<br />
of statutory regulation it was the law degree, not the law school<br />
conferring it, that was potentially a source of controversy.<br />
The Bachelor of Arts counted towards Bar admission; the LLB<br />
did not. Few lawyers held the BA, fewer still the LLB, which was<br />
considered an ornament for elite lawyers rather than a path to the<br />
law. (Nova Scotia’s first lawyer with an LLB, Samuel Cunard West of<br />
Halifax [Harvard, 1847], was called to the Bar in 1849.)<br />
In this regard, New Brunswick was far in advance of Nova Scotia.<br />
In 1867, without consulting the law society, the New Brunswick<br />
legislature amended the law relating to the admission of “attorneys”<br />
to authorize the holder of an LLB from Harvard Law School or any<br />
other legally authorized law school to be called to the Bar after three<br />
years’ studentship rather than four. According to historian D. G.<br />
Bell, New Brunswick thus became “the first Canadian jurisdiction to<br />
recognize the value of the LLB.”<br />
In 1884, Nova Scotia, taking into account the recent opening of<br />
Dalhousie Law School, went much further. The legislature enacted<br />
that the holder of the LLB could waive articled clerkship altogether.<br />
(This radical provision was apparently opposed by the Council of the<br />
Nova Scotia Barristers’ Society and did not last; articled clerkship for<br />
LLBs was soon restored.)<br />
In 1887, the preamble to an act amending the Barristers and Attorneys<br />
Act asserted Council’s control over “the legal education of candidates<br />
for admission to the bar” and implicitly its right to accredit law<br />
schools before the LLB could be granted standing.<br />
In 1891, Dalhousie Law School received statutory recognition;<br />
any holder of the Dalhousie LLB who had passed the Society’s<br />
examination in practice and procedure could be called to the Bar.<br />
Finally in 1899, the Barristers and Solicitors Act was passed, professional<br />
self-regulation achieved and Council<br />
authorized to accredit law schools.<br />
Barry Cahill<br />
Independent scholar<br />
From and after 1939 that power was<br />
embedded in the Nova Scotia Barristers’ Society’s Regulations. It<br />
seems doubtful whether law school accreditation ever became an issue<br />
or could have done before 1970, when the LLB became mandatory<br />
for Bar admission.<br />
By 1971 Council had ceased to accredit law schools. The Regulations<br />
defined the law degree as “a bachelor’s degree in law from Dalhousie<br />
University, or when approved by the Committee [i.e., Qualifications<br />
– now Credentials], a degree in law with requirements equivalent<br />
to those for a similar degree from Dalhousie University and from a<br />
university with standards equivalent to those of Dalhousie University.”<br />
The focus and emphasis lay more on the degree than on the degreegranting<br />
institution and reflected the Society’s long-standing special<br />
relationship with Dalhousie Law School.<br />
In 1991, the regulation was amended to make it less Dalhousiespecific;<br />
law degree meant “a bachelor’s degree in common law from a<br />
Canadian law school or, when approved by the Committee, a degree<br />
in law with requirements equivalent to those for a similar degree from<br />
a Canadian law school or from a university with standards equivalent<br />
to those of a Canadian law school.”<br />
In 1997, the regulation was trimmed even further – law degree<br />
meant “a bachelor’s degree in common law from a Canadian law<br />
school” – but an important new element was added: a Certificate<br />
of Qualification issued by the Joint Committee on Accreditation<br />
appointed by the Federation of Law Societies of Canada and the<br />
Committee of Canadian Law Deans (now the FLSC’s National<br />
Committee on Accreditation). This revised regulation was carried<br />
over into the Regulations enacted under the Legal Profession Act<br />
in May 2005. Further amendments were made in 2012 when the<br />
Society adopted a definition of ‘law degree’ that reflected the new role<br />
the FLSC was playing in the accreditation of law schools. The Society<br />
purported to delegate its role to the Federation but later determined<br />
that to be inappropriate and, in light of Trinity Western University’s<br />
proposed law school, Council revised the regulation in July 2014 to<br />
the following:<br />
Fall 2014 19
“law degree” means ... a Bachelor of Laws degree or a Juris Doctor<br />
degree from a faculty of common law at a Canadian university approved<br />
by the Federation of Law Societies of Canada for the granting of such<br />
degree, unless Council, acting in the public interest, determines that<br />
the university granting the degree unlawfully discriminates in its law<br />
student admissions or enrolment policies or requirements on grounds<br />
prohibited by either or both the Charter of Rights and Freedoms and the<br />
Nova Scotia Human Rights Act.<br />
On this basis Council has taken action in the TWU matter. By doing<br />
so, it was exercising the residual power conferred on it by Section<br />
6 of the Legal Profession Act, specifically 6(2): “The Council shall<br />
govern the Society and manage its affairs, and may take any action<br />
consistent with this Act that it considers necessary for the promotion,<br />
protection, interest or welfare of the Society.”<br />
By doing so, moreover, Council was returning to its governing-body<br />
roots in the Barristers and Solicitors Act, 1899, which provided that an<br />
applicant for admission to the Bar who held “the degree of bachelor<br />
of laws from any law school, college or university recognized by the<br />
council ...”<br />
What began as an issue around the content and relevance of the LLB<br />
evolved by slow degrees into an issue around the fitness of the law<br />
school conferring it.<br />
Barry Cahill has completed the history of the Nova Scotia Barristers’<br />
Society and has now resumed working on his book about the life of<br />
Frances Fish, Nova Scotia’s first woman lawyer.<br />
IB&M Initiative: 25 Years<br />
Please join us in celebrating the 25th<br />
Anniversary of the Indigenous Blacks &<br />
Mi’kmaq (IB&M) Initiative.<br />
On Friday, March 6, 2015, we will be hosting a<br />
symposium at the Schulich School of Law to<br />
reflect on the Marshall Inquiry, followed by a 25th<br />
Anniversary Gala Celebration that evening at the<br />
Westin Nova Scotian Hotel. Special community<br />
events will be held on Saturday, March 7, 2015.<br />
For more information on the Gala Celebration, including gala<br />
tickets and advertising options, please contact ibandm@dal.ca<br />
or 902.494.1639. For more information on the IB&M Initiative,<br />
please see our website at dal.ca/law/ibandm<br />
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20<br />
The Society Record
LIANS<br />
TIPS FROM THE RISK AND PRACTICE MANAGEMENT PROGRAM<br />
Let’s talk about … RPM<br />
BY STACEY GERRARD<br />
LIANS Counsel<br />
When you hear ‘RPM’,<br />
what comes to mind?<br />
Revolutions Per Minute?<br />
Recreation, Powersports &<br />
Marine? Well, hopefully you<br />
immediately thought of Risk and<br />
Practice Management!<br />
In 2005 the Lawyers’ Insurance<br />
Association of Nova Scotia and<br />
the Nova Scotia Barristers’ Society<br />
created the Risk and Practice<br />
Management Program, to offer<br />
assistance to members in an effort<br />
to reduce the frequency and severity of claims and complaints.<br />
With the implementation of the Society’s mandatory continuing<br />
professional development (CPD), lawyers are now required to<br />
complete 12 hours of CPD every year, with two hours dedicated to<br />
risk and practice management and/or professionalism.<br />
What are some of the resources and practical assistance offered by<br />
the RPM Program?<br />
LIANS provides educational seminars on RPM-related topics such<br />
as document management, file retention, succession planning,<br />
disaster planning, fraud prevention, technology and general claim<br />
avoidance. In an effort to keep the presentations relevant, we tailor<br />
them to suit the interests of those attending. These presentations<br />
are offered every year at the annual LIANS fall conference, the<br />
Society’s Annual Meeting and at County Bar meetings throughout<br />
the province.<br />
For those who cannot attend conferences in person – or prefer to<br />
schedule RPM CDP into their daily activities – “lunch and learns”<br />
via webinars (web conferencing) are offered where lawyers can<br />
remotely join an interactive presentation from their computer.<br />
These webinars are available at various times throughout the year<br />
in order to assist lawyers across Nova Scotia with meeting their<br />
CPD requirements. LIANS advertises these webinars via email and<br />
in its electronic newsletter, LIANSwers.<br />
In addition, the latest RPM-related information is shared with the<br />
membership in the Society Record, InForum and LIANSwers. While<br />
the information is not intended to provide legal advice or replace<br />
the lawyer’s own exercise of professional judgment, the articles are<br />
a valuable source of information to assist members with running<br />
their practices more effectively and efficiently. If you are looking<br />
for RPM CPD, consider submitting an article for publication in<br />
LIANSwers! You should also connect with LIANS staff members on<br />
LinkedIn and follow us on Twitter @PreventLoss and @LIANS_RPM.<br />
The LIANS website is another tool that provides information and<br />
resources to assist you with your practice. Newly revised for easier<br />
and more intuitive navigating, it contains information such as:<br />
• who we are;<br />
• information regarding mandatory and excess liability insurance<br />
policy;<br />
• how and when to report a claim;<br />
• various boards and committees that fall within the auspices of<br />
LIANS;<br />
• annual reports; and<br />
• the latest news and information in specific practice areas such as<br />
family law and real estate, and other areas such as professional<br />
development, fraud, and risk and practice management.<br />
The website contains information and links for programs such as<br />
the Mentorship Program and the Nova Scotia Lawyers Assistance<br />
Program. These programs are offered to provide assistance and<br />
support to lawyers with professionalism, skills, health and wellness.<br />
Under the Risk Management tab, find important information such<br />
as the latest in fraudulent schemes being circulated and how to<br />
protect yourself and your practice from becoming a victim. You will<br />
also find a list of the most common errors seen at LIANS and how<br />
to avoid them. For example: effective documentation can play an<br />
important role in claim prevention if your client alleges that you did<br />
not follow their instructions. To assist lawyers with documenting<br />
their files, we include under the “resources” tab practice tools such<br />
as: precedent letters, checklists, retainer agreements and sample<br />
notes to file. If your practice areas include family or real estate,<br />
we have practice tools specific to those areas, which include<br />
precedents, checklists, the mortgage payout protocol and more.<br />
Lastly, the LIANS website offers members the latest information<br />
in technology. Here members will find information about cloud<br />
computing, online scheduling, going paperless and information<br />
about social media.<br />
For more information regarding the services and resources provided<br />
by LIANS and the RPM Program, visit the LIANS website at<br />
www.lians.ca.<br />
If you have any questions on these, or any other risk- or practicerelated<br />
matters, do not hesitate to contact the Risk and Practice<br />
Management Program at info@lians.ca or call the Lawyers'<br />
Insurance Association of Nova Scotia at 902 423 1300.<br />
Fall 2014 21
Action on<br />
access to justice<br />
Initiatives taking root in 2014-2015<br />
The Nova Scotia Barristers’ Society is committed to enhancing<br />
access to legal services and the justice system for all Nova<br />
Scotians. Approved by Council on February 19, 2014, the<br />
Society’s Access to Justice Action Plan supports this commitment with<br />
attention to equity-seeking and economically disadvantaged groups.<br />
All access to justice initiatives undertaken or supported by the Society<br />
will be in accordance with the Legal Profession Act and Regulations<br />
under the Act, as well as Council Policies and the Society’s Strategic<br />
Framework.<br />
Key areas of focus<br />
The Action Plan is designed to assist the Society in moving forward<br />
on specific strategic initiatives in the year ahead. Current access to<br />
justice work focuses on the following areas: advocacy, collaboration,<br />
education, innovation and research.<br />
The Society recognizes its legislated responsibility to collaborate with<br />
other community stakeholders in developing strong, sustainable and<br />
innovative programming to address the underlying issues that create<br />
barriers to access to justice. Initiatives are being fostered through<br />
collaborative efforts with lawyers and legal organizations, service<br />
users, government, legal academics, the Judiciary, social and health<br />
services agencies, community groups and others.<br />
Where appropriate, and reflecting its purpose and values, the Society<br />
is advocating to raise the profile and awareness of access to justice<br />
issues both within the province<br />
and nationally. One important<br />
new channel for advocacy is<br />
participation in the province’s<br />
Lia Renaud<br />
NSBS Access to Justice Project Manager<br />
Access to Justice Coordinating Committee, launched in June and<br />
chaired by the Justice Minister and Chief Justice of Nova Scotia.<br />
Through this and other efforts, the Society aims to facilitate and<br />
support a fundamental shift in thinking and practice – within the legal<br />
community and beyond – that focuses the delivery of legal services<br />
on the specific needs of the users, through educational projects and<br />
justice system improvements.<br />
Similarly, with ongoing consultation and engagement, the Society<br />
is identifying new and innovative models for lawyers, in efforts to<br />
support and educate lawyers in the face of changes impacting the<br />
profession and the public interest.<br />
Finally, the Society is working to incorporate data compilation<br />
together with qualitative information, which will allow for more<br />
outcomes to be identified and ultimately measured. These research<br />
efforts will enable the Society to track and evaluate the societal<br />
benefits of its access to justice initiatives, to ensure they are making a<br />
difference to Nova Scotians.<br />
2014-2015 Access to Justice Initiatives<br />
A number of access to justice initiatives are already underway. The<br />
Society is also establishing evaluation methods to measure the<br />
22<br />
The Society Record
outcomes of ongoing projects such as the following:<br />
• piloting sexual assault information workshops for lawyers this<br />
fall;<br />
• reviewing the Society’s Skills Course curriculum to reflect A2J<br />
values;<br />
• increasing innovation in legal service delivery across Nova Scotia;<br />
• creating new education programs for lawyers to work with selfrepresented<br />
litigants (SLRs), and assisting in the development of<br />
legal information resources to assist SLRs;<br />
• supporting the efforts of a working group tackling issues of<br />
Aboriginal child welfare issues in Nova Scotia;<br />
• supporting research of North/East Preston communities that<br />
addresses land title issues;<br />
• hosting the UnCommon Law 5 conference in the Annapolis<br />
Valley, to explore justice barriers and legal advocacy for Nova<br />
Scotians who have substance use and mental health issues;<br />
• undertaking comprehensive community consultation and<br />
engagement in accordance with Section 4(1)(d)(i) of the Legal<br />
Profession Act; and<br />
• reviewing the Regulations under the LPA to identify and remove<br />
obstacles to A2J, and enhance opportunities to improve access to<br />
legal services and justice for all Nova Scotians.<br />
For more details and continuing updates on the Society’s Access to Justice<br />
Action Plan, visit nsbs.org/improving_justice.<br />
PROJECT SPOTLIGHTS<br />
UnCommon Law 5<br />
The theme for the fifth UnCommon Law program is Mental<br />
Wellness: A Community Approach to Access to Justice.<br />
Offered by the Society across the province – this year in<br />
the Annapolis Valley on November 6 – these forums bring together<br />
lawyers, judges and community members to speak, listen and learn<br />
from each other.<br />
This year’s topic was a very timely one, says M. Ingrid Brodie, Chief<br />
Crown Attorney, Western Region<br />
“In the Annapolis Valley, dedicated committees have worked hard<br />
to launch pilots of court-monitored programs for mental health and<br />
drug treatment to Kentville Provincial Court starting in May 2014,”<br />
says Brodie. “Partnerships across the justice system and among health<br />
professionals have been instrumental in developing and running both<br />
programs bringing new access to justice approaches to rural Nova<br />
Scotia.”<br />
This year’s event had a three-fold purpose:<br />
Access to justice: People with substance and/or mental health<br />
challenges may find themselves involved in the legal system and are<br />
often underserved, lack basic understanding of the process, and have<br />
little to no agency. To address these issues, the conference explored<br />
the question, “How do we build effective legal advocacy for people<br />
who have substance and/or mental health challenges in Nova Scotia?”<br />
Education: To provide education to lawyers in the Valley whose<br />
clients have substance and/or mental health challenges, or who are<br />
often involved in litigation involving people at risk. The event also<br />
educates individuals, families, organizations and communities about<br />
their rights in our legal system.<br />
Engagement: UnCommon Law provides opportunities for Nova<br />
Scotians to shift their perspectives about lawyers and the legal system,<br />
Above: M. Ingrid Brodie, Chief Crown Attorney, Western Region<br />
and to engage in a positive way with legal professionals.<br />
Previous UnCommon Law events were held in Halifax, Yarmouth,<br />
Sydney and Dartmouth on themes ranging from youth and the law<br />
to the complexity of legal issues for women.<br />
Fall 2014 23
PROJECT SPOTLIGHTS (continued)<br />
Sexual Assault Information for Lawyers<br />
The Society and the Avalon Sexual Assault Centre are partnering to facilitate pilot workshops this fall on Sexual Assault Information<br />
for Lawyers: Trauma-informed Lawyering. These non-compulsory three-hour workshops provide information and best practices for<br />
lawyers working on sexual assault cases.<br />
Lawyers should be aware of and able to recognize the<br />
signs of trauma that can occur after sexual assaults.<br />
This trauma can be retriggered as a result of attitudes,<br />
beliefs and behaviours, or unsupportive responses<br />
from family, friends or others. Secondary wounding<br />
may also occur throughout the justice process, albeit<br />
unintentionally, so lawyers also need to be mindful in<br />
mitigating secondary wounding to their clients.<br />
The first workshop was presented to articled<br />
clerks on October 28 in the Society’s classroom;<br />
watch InForum for updates on future sessions and<br />
ongoing development of resources for lawyers. More<br />
information is also available to lawyers through the<br />
Avalon Sexual Assault Centre; contact the centre at<br />
902 422 4240 or info@avaloncentre.ca.<br />
Left to right: Sexual Assault Information for Lawyers Working Group – Jane Gavin-Hébert, Emma Halpern, Lia Renaud,<br />
Elizabeth Dantzler, Adrienne Buckland, Mary Brown (not pictured: Karla Bray, Andrea Hancock, Ann Marie MacInnes)<br />
Community consultations<br />
The Society is rolling out a new community<br />
consultation strategy across the province,<br />
starting this fall. LaMeia Reddick, community<br />
engagement consultant, is tasked with identifying and<br />
connecting to first voice perspectives and representative<br />
perspectives of access to justice challenges in various<br />
regions.<br />
Throughout the project, Reddick is working with<br />
Society staff to develop communication strategies<br />
that will highlight the Society’s access to justice and<br />
engagement work, in ways that will particularly<br />
resonate and connect with equity-seeking and<br />
economically disadvantaged groups.<br />
The project will culminate in four regional sessions<br />
that will bring together lawyers, community members<br />
and other identified legal professionals to discuss access<br />
to justice strengths and weaknesses. Through listening,<br />
observing, engaging and collaborating, the Society will<br />
have the opportunity to better understand the access<br />
to justice needs of diverse communities within the<br />
province.<br />
LaMeia Reddick<br />
Community Engagement Consultant<br />
24<br />
The Society Record
This land is our land<br />
This past summer, I conducted a research project in the<br />
communities of North and East Preston to try to understand<br />
and identify the concerns of community members regarding<br />
land ownership.<br />
Community leaders and families told of challenges and frustrations<br />
regarding the historic expropriation of land, difficulties with property<br />
taxes, lack of clarity in land titles and concerns regarding inequities<br />
in inheritance. These challenges clearly stem from a history fraught<br />
with racism, oppression and inequity. Today, fewer instances of overt<br />
racism occur and the problems are more systemic. However, racism<br />
and marginalization are still very real experiences for the residents of<br />
North and East Preston.<br />
Interviews centered around three themes of inquiry:<br />
• What are the historical challenges and barriers faced by African<br />
Nova Scotian people when dealing with land ownership;<br />
• In what ways had government processes and legislation been<br />
used in the process to acquire land by community members; and<br />
• In what ways can Nova Scotia move forward to address future<br />
land acquisition and community education around the process<br />
of land ownership?<br />
The communities of North and East Preston were settled on<br />
undeveloped land with little to no resources available for future survival.<br />
Community members experienced frustration and feelings of shame<br />
and anger. These feelings led<br />
to mistrust, which continues<br />
to this day and is deeply<br />
connected to the deplorable<br />
historical conditions. One<br />
Angela Simmonds<br />
Law student, Schulich School<br />
of Law at Dalhousie University<br />
elder in the community who shared his experience explained the land<br />
was not fertile and did not provide the basic necessities to survive.<br />
Through the interview process, some of the concerns raised by<br />
community members were identified around the issues of property<br />
taxes, land title and government programs. It was clear that community<br />
members felt that both North and East Preston are at risk of being lost.<br />
It was also clear through the research for this project that community<br />
members feel they are not being adequately consulted or included in<br />
policy developments with respect to their land. These experiences have<br />
led to growing feelings of distrust and animosity with the provincial<br />
and municipal governments.<br />
Some recommendations emerged from the research and conversations<br />
with community members:<br />
• Creation of a Community Land Trust;<br />
• Establishment of education programs in the communities, to<br />
help people understand the laws that govern their land and the<br />
processes that exist to acquire legal title; and<br />
• Advocacy is required on behalf of the community members in<br />
the Preston area, to ensure straightforward, easy to access and<br />
Fall 2014 25
affordable methods to gain legal title to land that families have<br />
been living on for generations.<br />
Community members need education and they need support from<br />
government, to ensure that land remains in families and that the<br />
communities are able to thrive for future generations.<br />
“Today, our communities have people<br />
with the knowledge to help with<br />
some of the issues the community<br />
faces; we just have to trust each<br />
other. We can be far more powerful<br />
together than if we stand alone.”<br />
– Elder from North Preston<br />
A part-time student at the Schulich School of Law, Angela Simmons<br />
conducted this research project in conjunction with the Society during<br />
the summer of 2014.<br />
Congratulations<br />
Jim Musgrave, Q.C. is the 2014 recipient<br />
of the Lionel J. McGowan Award of<br />
Excellence in Dispute Resolution by the<br />
ADR Institute of Canada (ADRIC).<br />
The McGowan Award recognizes those<br />
who have made an outstanding<br />
contribution to the development and<br />
success of ADRIC on a national level, and<br />
have contributed significantly to the<br />
promotion and development of<br />
alternative dispute resolution across<br />
Canada.<br />
This national recognition is testament to<br />
Jim's dedication and commitment to<br />
the highest standards of mediation and<br />
arbitration practice.<br />
Congratulations, Jim.<br />
Jim Musgrave, Q.C., C.Med.<br />
2015 Second Vice-President<br />
and Council Elections<br />
If becoming a leader in the profession and contributing to<br />
the ongoing work of Council interests you, start thinking and<br />
planning now. In early 2015, a new Second Vice-President<br />
will be elected and the Society will also conduct its Council<br />
elections in March and April.<br />
The Governance and Nominating Committee will nominate<br />
a candidate for Second Vice-President by the end of January,<br />
and invites all lawyers to provide recommendations.<br />
Strategic thinkers and consensus builders, potential<br />
nominees should have an ability to meet the expected time<br />
commitment of approximately 500 hours through the year.<br />
Under its policies, the Committee will also look for such<br />
characteristics as unquestionable integrity, respect for<br />
others, leadership and communication skills, and fit with<br />
the other officers. As well, the Society strives for diversity of<br />
leadership with respect to personal characteristics, area of<br />
practice, and geographic location of the candidate.<br />
If you are interested in being considered for the position of<br />
Second Vice-President, or wish to recommend someone for<br />
the Committee’s consideration, please contact the Chair of<br />
the Committee, J. René Gallant, at rene.gallant@emera.com<br />
or 902 428 6408 by December 1, 2014.<br />
Further details about the elections will be announced in<br />
InForum and at nsbs.org.<br />
TRAMPOLINE BRANDING<br />
26<br />
Contact: Larry Bootland 902 405 4809<br />
Project: 10836C&P NS Hali Mediation Ad<br />
The Society Record
Understanding access<br />
Collaboration helps law societies develop practical strategies<br />
Photo by Laura Hilchey Photography<br />
Confused. Frustrated. Anxious. Stressed. Angry. Bewildered.<br />
Humiliated. Isolated. Frightened. Exhausted. Wanting to<br />
just give up.<br />
• last year in Halifax, 1,700<br />
individuals used shelters, with an<br />
average stay of 40 nights.<br />
Marla Cranston<br />
Communications Officer<br />
This is how a roomful of lawyers and regulators felt on October 8<br />
after a three-hour ‘poverty sensitization’ exercise called Living on the<br />
Edge, presented by United Way Halifax during the 2014 Annual<br />
Conference of the Federation of Law Societies of Canada.<br />
“Every one of those words are words we also hear in relation to the<br />
justice system. It’s a system that doesn’t make sense to many people,”<br />
Darrel Pink, Executive Director of the Nova Scotia Barristers’ Society<br />
said to more than 100 delegates representing the Federation and 14<br />
provincial and territorial law societies.<br />
Adopting new identities for the afternoon, each participant imagined<br />
the daily challenges of poverty. They grappled with eviction notices<br />
and expensive dental emergencies, affording daycare while jobhunting,<br />
forgoing grocery shopping in order to pay utility bills and,<br />
in some cases, language barriers or brushes with the law. The United<br />
Way plans to offer the exercise to other groups in the Halifax region,<br />
to deepen the understanding of poverty’s complexity, and how a<br />
sudden change of circumstance can significantly impact choices.<br />
Catherine Woodman, President and CEO of United Way Halifax,<br />
rooted the role-playing in some sobering statistics:<br />
• three million Canadians live in poverty today;<br />
• 833,000 used a food bank in 2013, a 23% increase over the past<br />
six years; and<br />
For the law society reps, it was “an opportunity to step outside our<br />
normal roles, and our comfort zones perhaps, to see the issues from a<br />
different perspective,” said Moncton lawyer Marie-Claude Bélanger-<br />
Richard QC, President of the Federation. Law societies have a critical<br />
role to play in the pressing issues of access to justice and access to legal<br />
services, and “I believe our strength lies in leading through ongoing<br />
collaboration,” she said.<br />
Community visits<br />
The collaboration theme came into focus on October 9, as participants<br />
split up into groups and fanned out across the city for 11 inspiring<br />
conversations with community and justice-oriented organizations.<br />
They asked this question at many of the sites: If you could remove<br />
one barrier or add one resource to give people access to justice, what<br />
would it be?<br />
Teenagers and young adults offered many thoughtful ideas at Leave<br />
Out Violence (LOVE), a violence prevention and intervention<br />
organization. A legal toolkit for youth, with basic information in clear<br />
language, would be a great start, said one. Better teaching of the legal<br />
system in schools, and ongoing legal information via social media<br />
channels would also help, “something that would get us interested to<br />
build that level of trust,” said others.<br />
“If you’re a member of a marginalized group outside of mainstream<br />
Fall 2014 27
white society, you’re more susceptible to barriers,” added LOVE staff<br />
member Richard Taylor. “We definitely have access to the criminal<br />
justice system – we’re in it.”<br />
The other sessions took place at the Halifax Refugee Clinic, reachAbility,<br />
Mi’kmaw Native Friendship Centre, Immigrant Settlement and<br />
Integration Services, Dalhousie Legal Aid Service, Nova Scotia Legal<br />
Aid, Nova Scotia Supreme Court (Family Division), and with the new<br />
Access to Justice Coordination Committee, a restorative justice group,<br />
and a group of lawyers who are building innovative practices.<br />
Photo by Laura Hilchey Photography<br />
After regrouping to share what they learned, the delegates<br />
brainstormed on what roles the Federation and law societies should<br />
play in enhancing access to legal services. A variety of themes emerged,<br />
from encouraging innovative legal practices to the possibility of nonlawyers<br />
assisting with some front-end legal work. Fostering cultural<br />
competence in the legal profession is pivotal, but so is developing the<br />
competence to collect, measure and evaluate data, something that’s<br />
sorely lacking in the justice system.<br />
Though law societies across Canada are actively involved in developing<br />
access to justice solutions, the Halifax conference was the first time<br />
they collectively addressed the topic.<br />
“It’s an issue that’s pressing in every single one of our jurisdictions,”<br />
said Jeff Hirsch, the Federation’s Vice President and Council member<br />
for Manitoba. “We’ve just had a taste of what it feels like when you’re<br />
frustrated and disempowered, when you need help with your legal<br />
problems. What can we do to help? We need to engage with the public<br />
and we need to listen to the public, to change our mindset and the way<br />
we do business.”<br />
Young adults, teenagers and staff at Leave Out Violence (LOVE)<br />
shared their “Check-in” process while brainstorming A2J ideas<br />
with conference participants.<br />
We’ve got you covered.<br />
Rob Hunt, CA, CIRP<br />
ed macdonald, B COMM, CIRP<br />
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critical. Our team of Trustees in Nova Scotia has the<br />
experience to quickly assess the situation and provide<br />
comprehensive options. Our track record means<br />
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turnaround strategies and financial restructuring<br />
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© Trustee in bankruptcy. Grant Thornton Limited. A Canadian Member of Grant Thornton International Ltd<br />
28<br />
The Society Record
Preparing for the storm<br />
Legal innovation in Nova Scotia<br />
A<br />
storm is brewing in the legal profession and it is hitting the<br />
shores of Nova Scotia. The legal landscape is increasingly<br />
becoming more difficult terrain, with new competitors and a<br />
tighter market. The inevitable result will be a major transformation<br />
to the overall practice of law. Jordan Furlong’s presentation at the<br />
2014 NSBS Annual Meeting sent out a warning call to Nova Scotian<br />
lawyers – be prepared.<br />
“The storm has been brewing for a few years with the economic<br />
downturn, declining revenue, tougher clients and sharper<br />
competition,” says Mr. Furlong of Law21.ca, a leading industry<br />
analyst who forecasts the impact of the changing legal market on<br />
lawyers, law firms and legal organizations. “The changes that are<br />
coming will come fast.”<br />
Legal innovation is no longer an idea for the future. Times are quickly<br />
changing with entrepreneurial lawyers in Nova Scotia moving away<br />
from traditional practice and trying out new ideas.<br />
In his keynote address, titled “Weathering the Storm: Navigating<br />
to Safe Harbours in the 21st Century Legal Market,” Furlong<br />
summarized the major trends that are altering the legal profession.<br />
The rise of technology in legal practice, the growing pressures from<br />
clients to reduce legal fees and the rise of alternative business structures<br />
(ABS) in the U.K. and Australia, have created new opportunities and<br />
challenges in the market.<br />
“As lawyers, we think of the<br />
market as clients that approach<br />
us,” says Furlong. “That market<br />
is only the tip of the iceberg.<br />
Julie Sobowale<br />
Freelancer<br />
When Canadians face justiciable problems, 88 per cent do not obtain<br />
legal help.”<br />
One of the major issues he discussed was pricing for legal services and<br />
looking beyond the billable hour. Some Nova Scotia firms are already<br />
experimenting with different pricing models. McInnes Cooper has<br />
entrepreneurial services geared towards startups that include special<br />
fee arrangements and fixed pricing. CS Legal is one of a growing<br />
number of virtual law firms in Nova Scotia and uses flexible fee<br />
arrangements for clients.<br />
“We’ve tried to build our practice from a fresh perspective, not letting<br />
ourselves get caught up in ‘how it should be’ or ‘always has been’<br />
done – all the while counting on some of the solid practices we’ve<br />
learned from seasoned lawyers we’ve been privileged to work with in<br />
the past,” says Natalie Clifford, a partner at CS Legal.<br />
Some firms have stepped completely into new territory as<br />
entrepreneurial law firms. When Corinne Boudreau started Two<br />
Certainties Law in 2012, she designed it based on her client’s needs.<br />
Instead of in a traditional stand-alone law office, the law firm is based<br />
out of Platform Space, a co-working space in Bedford.<br />
Fall 2014 29
“I designed the firm based on clients who I want to serve,” says<br />
Boudreau. “I decided to use a co-working space because I get to hang<br />
out with small business owners as opposed to other lawyers. It’s part<br />
of being in a different mindset. There’s a mastermind group that gets<br />
together to chat about what’s going on in the business world. I know<br />
what’s going in that world and I’m part of the community.”<br />
On the precipice<br />
Law societies across Canada are examining how the<br />
regulatory framework can support and foster innovation in<br />
the delivery of legal practice.<br />
Photo by Eliza Manuel<br />
Corinne Boudreau, 2 Certainties Law<br />
Part of her business design was doing away with the billable hour and<br />
creating new pricing tools. Clients receive engagement letters that<br />
clearly explain what legal services will be provided, and interim bills<br />
are sent with fixed fees for legal services.<br />
“I like the principle-based approach to running a law firm,” says<br />
Boudreau. “For example, I don’t have a trust account. I use fixed fees<br />
for all my services. It came out of my experience of sending out bills<br />
and the feedback I received from clients. With fixed fees, I take on<br />
more risk but I should strive to be more efficient in my work.”<br />
With all the uncertainty, there are safer shores for lawyers in the future,<br />
Furlong suggested in his keynote, and also in an in-depth workshop<br />
the day before at the Society’s offices. Rethinking the practice of law<br />
will lead to new processes and better services for people with lower<br />
incomes. For firms looking to innovate, remember to think about the<br />
business.<br />
“There is a lot more flexibility than you think,” agrees Boudreau.<br />
“Law and design is a good example of what we can do to make the<br />
law accessible to others. What I like about people who are doing<br />
innovative things is they look at different professions and apply it to<br />
law.”<br />
“As legal regulators, we are standing on the edge of a cliff,”<br />
Executive Director Darrel Pink said in a June 5 presentation<br />
to the Law Society of Alberta.<br />
“Our choices are to turn around and walk away from the<br />
edge .... Or we can jump from the cliff and plan for a safe<br />
landing. There is much more risk in this option but as will<br />
be clear to you, my perspective is that we have no choice.”<br />
Here in Nova Scotia, Council’s Strategic Framework has<br />
been the driver behind the priority to transform regulation<br />
and governance in the public interest.<br />
“Our goal is to examine all aspects of our regulation,<br />
to revise it and to modernize it,” Pink told his western<br />
colleagues, outlining the Society’s ongoing consultations<br />
with lawyers and firms in the province, as well as its<br />
research and collaborations with experts, legal academics<br />
and other regulators.<br />
“We have said that everything is open for consideration and<br />
we have set ourselves up to build a proactive, principled<br />
and proportionate risk-based regulatory model. We now<br />
refer to this as ‘Triple P Regulation’.<br />
On June 15, the Society’s Annual Meeting featured a twohour<br />
professional development session, “Opportunities<br />
for innovation in your practice: An action plan,” led by Mr.<br />
Pink and Jacqueline Mullenger, Director of Education &<br />
Credentials.<br />
The presentation in Alberta, titled “On the Precipice – the<br />
Future of Legal Regulation,” is available for reading on the<br />
Society’s website, at nsbs.org/transform-regulation.<br />
30<br />
The Society Record
Steve Mark and Tahlia Gordon<br />
Entity Regulation 101<br />
Transforming regulation and governance in the public interest<br />
In 2013 the Nova Scotia Barristers’ Society established a Strategic<br />
Framework for 2013-2016, calling for action in relation to<br />
two specific strategic priorities: transforming regulation and<br />
governance in the public interest, and enhancing access to legal<br />
services and the justice system for all Nova Scotians.<br />
A comprehensive research paper, published by the Society in October<br />
2013, set out key objectives for a regulatory model that is responsive<br />
to the current legal practice trends and issues facing legal practice. The<br />
paper recommended that a model regulatory regime should comprise<br />
a framework that is “proactive; is principle-based and outcomesfocused;<br />
is risk-based; is able to encourage and accommodate new<br />
business models; is able to enhance access to justice and affordable<br />
legal services and involves new ways of engaging law firms to achieve<br />
outcomes.” Entity regulation was recommended as a key element of<br />
such a model.<br />
At the foundation of this transformation project has been the<br />
development of Regulatory Objectives for the Society, based on<br />
the regulatory best practices models researched and referenced<br />
above. Extensive membership and stakeholder consultation has<br />
contributed to the<br />
development of<br />
these principles.<br />
Steve Mark and Tahlia Gordon<br />
Directors, Creative Consequences Pty Ltd,<br />
an Australian-based international consultancy<br />
In December<br />
2013, the Society engaged us to assist with the design and<br />
implementation of a regime to regulate entities, including a framework<br />
to embed competent practice and ethical behaviour, otherwise<br />
known as “proactive management based regulation” (PMBR) in all<br />
law firms in Nova Scotia. Throughout 2014, we have been working<br />
with the Society in developing entity regulation. This short article<br />
discusses the concept of entity regulation and the work that has been<br />
conducted by in creating such a system for Nova Scotia to date.<br />
What is “entity regulation”?<br />
Traditionally, legal regulation in common law countries is<br />
characterized by a “complaints-based” reactionary approach. In this<br />
approach ethical standards are set by regulators and practitioners<br />
are held against these standards. Practitioners who fail to meet the<br />
articulated standards are disciplined but only if there is enough<br />
evidence to indicate that the standards have not been met. This<br />
Fall 2014 31
“complaints-based” traditional approach is therefore, by and large,<br />
a pass/fail system: either the rules are found to have been broken<br />
or they are not. Entity regulation differs considerably from this<br />
traditional approach.<br />
Entity regulation embodies a shift from individual lawyer conduct<br />
to a focus on firm culture and behaviour, from a focus on discipline<br />
alone to process improvement. It also represents a shift from the<br />
traditional ‘one-size-fits-all’ model of regulation to one that better<br />
focuses on actual strengths and risks relating to varying types and<br />
sizes of practice.<br />
The concept of entity regulation is not new to the legal profession;<br />
aspects of it have been adopted in several jurisdictions around the<br />
world. In both the United Kingdom and Australia, for example,<br />
legislation has been enacted allowing regulators to look at the conduct<br />
of law firms as entities. Two jurisdictions in the United States, New<br />
York and New Jersey, allow complaints to be made against law firms.<br />
Here in Nova Scotia, a framework exists for complaints to be made<br />
against law firms but again, this represents an approach that has<br />
historically been more reactive than proactive. It’s time to change this<br />
approach.<br />
How is entity regulation implemented so the conduct of law<br />
firms can be assessed?<br />
In Australia, for example, the conduct of entities is assessed through a<br />
framework whereby entities are required to develop, implement and<br />
maintain a management system (“ethical infrastructure”) to meet 10<br />
key elements of sound legal practice. These objectives include, for<br />
example, competent work practices; effective, timely and courteous<br />
communication; timely review, delivery and followup of legal<br />
services; timely identification and resolution of conflict of interests;<br />
and appropriate records management.<br />
This framework, formally referred to as “Proactive Management<br />
Based Regulation” (PMBR), requires the appointment of one or<br />
more lawyer–managers by the firm to take enhanced responsibility<br />
for meeting the 10 objectives. The designated lawyer-manager is<br />
responsible for communicating with the regulator, and completing a<br />
self-assessment of the procedures and processes (“ethical infrastructure)<br />
the firm/entity has developed to address the 10 elements.<br />
Why implement entity regulation?<br />
If developed and implemented appropriately, entity regulation is<br />
extremely beneficial for law firms. In Australia, where entity regulation<br />
has existed for more than a decade, research has revealed a two-thirds<br />
reduction in the number of complaints against entities. Research has<br />
also revealed that Australian law firms subject to entity regulation<br />
believe it has improved and strengthened the management systems<br />
within their firms, thereby assisting them to improve service delivery.<br />
The requirement that law firms develop, implement and maintain<br />
a management system (ethical infrastructure) is easily implemented<br />
because it is not, as noted above, based on a one-size-fits-all model.<br />
Entities are not required to comply with a specific management<br />
framework; rather, they are required to engage in a review and<br />
planning process and develop a set of procedures and processes<br />
consistent with meeting certain elements. All entities, irrespective of<br />
their size and form, develop their own framework rather than having<br />
one imposed on them.<br />
The requirement that law firms develop, implement and maintain<br />
a management system (ethical infrastructure) can provide a quasieducative<br />
mechanism for the entity, its staff and the general public. In<br />
the current work climate where firms are facing increased commercial<br />
pressure and are, for example, requiring lawyers to meet certain<br />
billable hour targets, a focus on effective management and ethical<br />
behaviour is becoming essential.<br />
How is entity regulation being developed for Nova Scotia?<br />
Entity regulation is not a one-size-fits-all regulatory model. It cannot<br />
be “cut and pasted” from one jurisdiction to the next. Rather, it must<br />
“fit” the regulatory culture and framework that already exists.<br />
In collaboration with the Society, we designed an iterative approach<br />
comprising six phases:<br />
1. Review of the present regulatory and ethical requirements for<br />
lawyers, including an analysis of conduct complaint data and<br />
professional indemnity claims;<br />
2. The design of a set of ‘objectives’ considered necessary to encompass<br />
the findings of Phase 1;<br />
3. A consultation phase for stakeholders on the entire process but<br />
specifically on the ‘objectives’;<br />
4. The design of a ‘self-assessment’ process to enable entities to address<br />
the ‘objectives’;<br />
5. A further consultation phase; and<br />
6. The implementation phase, including design of an ‘audit’ or<br />
‘review’ function.<br />
Last March, we presented the Society with an independent report<br />
that considered the applicability of entity regulation and PMBR. The<br />
report discussed whether the Society’s existing regulatory framework<br />
is appropriate for entity regulation and PMBR, and whether Nova<br />
Scotia is culturally ready for a new regulatory model. After lengthy<br />
consideration of the current regulatory framework and culture, the<br />
report opined that Nova Scotia is ready for entity regulation and<br />
PMBR. This conclusion was based on the following reasons:<br />
1. The Nova Scotia Barristers’ Society has a strong relationship with<br />
the province’s legal profession and is well accepted as the regulator.<br />
2. The profession appears to accept the regulatory framework currently<br />
in place in Nova Scotia.<br />
3. The Society already has a framework for entity regulation.<br />
4. The Society has been engaging in discussions with the profession<br />
about its plans and continues to so engage.<br />
5. The Society is prepared to assist and support the profession through<br />
the transformation, and towards further improvement.<br />
Having concluded that Nova Scotia is structurally and culturally<br />
ready for entity regulation and PMBR, we embarked on Phase 2 of<br />
the project: to design a model of PMBR that would embed ethical<br />
behaviour and competent practice in law firms that is relevant and<br />
appropriate for Nova Scotia.<br />
In order to design such a model, we commenced by looking at the<br />
regulatory and cultural landscape in Nova Scotia as discussed in the<br />
first report. Following this inquiry, we then considered the regulatory<br />
instruments that form the basis of Nova Scotia’s regulatory framework,<br />
such as the Code of Professional Conduct and the Standards; the types<br />
of models that already exist for entity regulation; the demographics<br />
32<br />
The Society Record
of the Nova Scotia Bar; and<br />
finally, the types of complaints<br />
made against lawyers in Nova<br />
Scotia. This analysis provided<br />
substantial information for the<br />
development of an appropriate<br />
ethical infrastructure.<br />
After considering all of the<br />
material we ultimately identified<br />
10 regulatory targets, which we<br />
referred to as “elements”, that we<br />
believed should form the basis of<br />
ethically based management systems for Nova Scotia. All 10 elements<br />
reflect the content and theme of Nova Scotia’s regulatory instruments<br />
and, in particular, the Code of Professional Conduct:<br />
1. Developing competent practices to avoid negligence;<br />
2. Achieving effective, timely and courteous/civil communication;<br />
3. Ensuring confidentiality requirements;<br />
4. Avoiding conflicts of interest;<br />
5. Maintaining appropriate records/file management;<br />
6. Ensuring effective firm/staff management;<br />
7. Charging of appropriate fees and disbursements;<br />
8. Ensuring reliable trust accounts practices;<br />
9. Sustaining effective relationships with clients, colleagues, courts,<br />
regulators and the community; and<br />
10. Achieving access to justice.<br />
We proposed that Nova Scotia’s model be called “A Management<br />
System for Ethical Legal Practice.”<br />
Following this process, we then engaged in Phase 3 of this project – a<br />
consultation phase with relevant stakeholders about entity regulation<br />
and the proposed model for Nova Scotia.<br />
The consultations commenced with a general overview of entity<br />
regulation, PMBR and ethical infrastructure. The overview included<br />
a discussion of the purpose and benefits of entity regulation, and the<br />
role played by the regulator in administering such a framework. We<br />
invited attendees to comment and voice any concerns or issues they<br />
had with the concepts.<br />
Entity regulation embodies a shift<br />
from individual lawyer conduct to a<br />
focus on firm culture and behaviour,<br />
from a focus on discipline alone to<br />
process improvement.<br />
PMBR and ethical infrastructure<br />
play in entity regulation. It was<br />
generally agreed that Nova Scotia’s<br />
current regulatory framework –<br />
which already allows complaints<br />
to be made against law firms and<br />
mandates that firms must already<br />
file an annual law firm report – is<br />
amenable to entity regulation.<br />
Attendees also embraced the<br />
purpose and the benefits of entity<br />
regulation. There was a general<br />
agreement that enabling a closer relationship between the regulator<br />
and the regulated will be one of the most important benefits of entity<br />
regulation. Attendees also appeared to recognize the benefits of<br />
regulating law firm conduct rather than just focusing on individual<br />
lawyer conduct. It was generally agreed that regulating law firm<br />
culture, in addition to individual lawyer behaviour, is a better way<br />
to influence cultural change and could assist in reducing complaints<br />
against lawyers while also promoting greater professionalism and<br />
client protection. Further, there was a great deal of support for a<br />
regulatory system that moved away from discipline alone to assistance<br />
by the regulator to improve the profession.<br />
Following delivery of the Phase 3 report, we then engaged in a series<br />
of discussions with the Society about the recommendations and how<br />
the elements and questions (statements) should be amended. These<br />
discussions produced several iterations of the elements and questions<br />
(statements). The final version of the elements – and a proposed<br />
self-assessment regime that allows firms to self-assess their practices,<br />
apropos the elements and statements – comprised a Phase 4 report.<br />
Council is holding a full day meeting on November 14 for the<br />
purpose of policy level discussion and hopefully approval of the<br />
draft Regulatory Objectives, and the proposed structure for the<br />
Management System for Ethical Legal Practice, set out above.<br />
Following policy direction from Council, two remaining phases exist<br />
in the coming months: a further consultation phase; and finally the<br />
implementation phase, including design of an ‘audit’ or ‘review’<br />
function.<br />
After discussion of entity regulation had subsided, we then asked<br />
attendees to consider the 10 elements and the proposed list of<br />
questions we had developed for Nova Scotia’s ethical infrastructure.<br />
We invited attendees to comment and voice any concerns or issues<br />
they had about the proposed 10 elements and list of questions. At<br />
the conclusion of the workshop, we invited attendees to commit<br />
to moving forward with entity regulation and ethical infrastructure<br />
in Nova Scotia. The Phase 3 report outlined the issues raised by<br />
attendees during the workshops, as well as our observations as to the<br />
effectiveness of the consultation phase.<br />
As described in the Phase 3 report, the discussions during the<br />
consultations were extremely productive. Very little concern<br />
emerged about the move to the new regulatory framework and the<br />
changes that will need to take place in order for entity regulation<br />
to be implemented. Attendees appeared to have achieved a good<br />
understanding of how entity regulation works in practice, and the role<br />
Our journey thus far has been both enlightening and educational. We<br />
have thoroughly enjoyed working with the Society in designing entity<br />
regulation for Nova Scotia, and are delighted that we have been able<br />
to visit the province and consult a considerable number within the<br />
legal profession.<br />
We look forward to embarking on the final two phases of this exciting<br />
project.<br />
For more information, read the consultants’ reports in full at<br />
nsbs.org/transform-regulation.<br />
Fall 2014 33
‘Triple-P’ regulation in<br />
Nova Scotia<br />
What does it really mean to regulate in a manner that<br />
is proactive, principled and proportionate? The Nova<br />
Scotia Barristers’ Society does this now through the<br />
creation and ongoing maintenance of Professional<br />
Standards.<br />
When a new Professional Standard is developed, as<br />
a starting point, it articulates what a lawyer must do.<br />
This is a proactive regulatory statement.<br />
The Standards themselves are also principled – they<br />
are based on case law, regulation, legislation and, in<br />
some circumstances, expert opinion on the required<br />
standard of care.<br />
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CONSULTANTS<br />
Stuart D. Smith, B.Eng., Ph.D., P.Eng.<br />
251 Mount Edward Road<br />
Dartmouth, Nova Scotia B2W 3L4<br />
phone: (902) 435-5315<br />
cellular: (902) 471-3197<br />
facsimile: (902) 435-7647<br />
e-mail: crtynerassociate@eastlink.ca<br />
web: www.crtynerassociates.ns.ca<br />
Finally, the Standards are proportionate. While they<br />
dictate what a lawyer must do, they do not prescribe<br />
how a lawyer fulfils that requirement, which will be<br />
dependent on and determined by such factors as the<br />
size of firm and type of practice.<br />
CHOOSE FROM CANADA’S TOP<br />
MEDIATORS AND ARbITRATORS<br />
Real Estate Standards for lawyers have existed for the<br />
past decade in Nova Scotia. Family Law Standards<br />
were introduced in 2011, and draft criminal law<br />
standards will be ready for the consultation process<br />
in the near future. Since 2012, the Society has been<br />
developing Law Office Management Standards<br />
for client service, records retention, handling of<br />
electronic data and more.<br />
Once created, the Standards are not static – they<br />
are reviewed regularly as “living” documents that<br />
continue to evolve with changes in legal practice. Find<br />
the Standards online at lians.ca/standards.<br />
ADR Chambers is pleased to announce that<br />
Stewart McInnes has joined its mediation and<br />
arbitration panels. Stewart has a wealth of<br />
experience, including years as a neutral and as<br />
lecturer. As Minister or Public Works he was<br />
instrumental in devising an appropriate arbitration<br />
process for a complex shipyard litigation matter<br />
which was successfully completed in four months.<br />
Amongst other roles, he was the Chief Negotiator<br />
for the Federal Government on Aboriginal Claims.<br />
adrchambers.com<br />
1.800.856.5154<br />
The Honourable<br />
Stewart McInnes<br />
P.C., Q.C., FCIArb<br />
Nova Scotia Panel<br />
34<br />
The Society Record
Legal research<br />
Staying in control, on<br />
budget and in the know<br />
Note: This article is adapted from a presentation to the Annual Meeting<br />
of the Nova Scotia Barristers’ Society held on June 14, 2014.<br />
Part I: General tips on cost-effective and efficient legal research<br />
Efficiency in legal research can only be achieved with the right<br />
tools and a solid strategy. Jumping straight into keyword<br />
searching might seem like the most efficient approach, but<br />
taking a step back to consider your research question in context, and<br />
to plan what resources you will check and how you will check them,<br />
will save time and money in the long run. (Taking a few deep breaths<br />
can help too.)<br />
Let’s start with time- and money-saving tools: It’s worth investing<br />
in a few key legal texts in your practice area(s), along with up-to-date<br />
versions of any annotated statutes that you use on a regular basis<br />
(e.g., the Divorce Act, the Bankruptcy and Insolvency Act, etc.). The<br />
up-front cost may seem daunting, but consider it an investment<br />
in your practice. Having a comprehensive resource on the subject<br />
matter at your fingertips—in hard copy or electronic form—will be a<br />
worthwhile asset, whether you are looking for a refresher on general<br />
principles, or a quick answer to a specific question.<br />
It may also be worth investing in an online research tool, to<br />
complement your secondary sources and what’s available on CanLII.<br />
Legal publishers such as LexisNexis Canada, Thomson Reuters, and<br />
Wolters Kluwer offer comprehensive online research products as well<br />
as discrete subject-specific products that may provide more value,<br />
depending on your practice. Legal publishers often offer free training<br />
opportunities as well (check InForum for upcoming sessions).<br />
When you’re building your toolkit of research sources, take<br />
advantage of what is<br />
available for free. Most<br />
of us are familiar with<br />
CanLII, but what about<br />
Deborah Copeman, Librarian, NSBS<br />
Jennifer Taylor, Research Lawyer,<br />
Stewart McKelvey<br />
CanLII Connects? Practitioners and academics are adding summaries<br />
and commentaries to the site every day. Law firm blogs are another<br />
great way to get a feel for a particular topic, and many of the leading<br />
Canadian “blawgs” can be found (for free) on www.lawblogs.ca.<br />
There are also “subject research guides” on the Society’s website.<br />
In that vein, take advantage of libraries. The Society’s Library &<br />
Information Services staff, based out of the Halifax Barristers’ Library,<br />
can assist practising lawyers and articled clerks no matter where you<br />
are in the province. See the Library services portion of the Society’s<br />
website for information on distance borrowing, document delivery<br />
services and licensed resources available for use at Barristers’ Libraries<br />
in Halifax, Kentville and Sydney.<br />
It’s not just law libraries, either: the Borrow Anywhere, Return<br />
Anywhere program of Libraries Nova Scotia allows cardholders to<br />
borrow materials from the Sir James Dunn Law Library, Dalhousie<br />
University, the Cape Breton University Library, and most college,<br />
university and public libraries in Nova Scotia. The Nova Scotia<br />
Legislative Library is another option: it provides access to current and<br />
historical Canadian provincial and federal legislation.<br />
So you have your tools. Now what is your strategy? It’s important<br />
to have a basic system that captures the foundational tools outlined<br />
below. Before embarking on a specific research question, map out<br />
how you’re going to search for the answer in accordance with your<br />
systematic approach. If you have to research an issue related to expert<br />
evidence, for example, your checklist might include the following<br />
Fall 2014 35
items: Sopinka, Lederman & Bryant on The Law of Evidence; Nova<br />
Scotia Evidence Act and the Canada Evidence Act; Nova Scotia Civil<br />
Procedure Rule 55 (and cases annotated therein); targeted keyword<br />
searches on CanLII and your online research tool; and an online scan<br />
for any recent journal articles or blog posts.<br />
Part II: The seven legal research tools for a systematic approach<br />
#1: Texts and updated publications<br />
Sitting at your desk, you’re probably tempted to start your research by<br />
keyword searching a case law collection in Westlaw ($$), Quicklaw ($$)<br />
or CanLII (free). Resist the urge! Save yourself time and effort, and start<br />
by consulting commentary first. Textbooks and updated publications,<br />
such as loose-leafs, provide a concise and authoritative summary of the<br />
state of the law; identify key terms to use in an online search; hone in<br />
on relevant legislation; and provide citations to leading cases.<br />
It’s likely worth purchasing key text(s) in your practice area(s). Here<br />
are some ways to help you choose:<br />
• Ask a librarian or senior practitioner for guidance.<br />
• Check which titles judges are citing.<br />
• Consult an online portal such as Legaltree.ca (but update).<br />
Make sure to squeeze all possible value out of your texts:<br />
• Peruse the table of contents: Sometimes seeing how the author<br />
has organized the topics will trigger a coherent way to approach<br />
your research.<br />
• Read the footnotes: That’s where you can find additional<br />
commentary, plus references to the leading cases in the area, which<br />
you can then take to your online research tool and note up.<br />
• Scan the index: Make sure you have reviewed all the relevant<br />
references to your topic that are sprinkled throughout the text.<br />
For free commentary, keep an eye on CanLII’s Commentary section,<br />
currently offering four resources, including Lancaster House’s eText<br />
on Wrongful Dismissal and Employment Law (1st ed). WestlawNext<br />
Canada is licensed for lawyers’ use in Barristers’ libraries in Halifax,<br />
Kentville and Sydney, and provides access to key commentary—e.g.,<br />
McLeod & Mamo’s Matrimonial Property Law in Canada; Gibson’s<br />
Criminal Law Evidence, Practice and Procedure; Widdifield on Executors<br />
and Trustees, 6th ed.—within licensed criminal, family, and estates<br />
and trusts content.<br />
Cost-effective approaches:<br />
• Don’t buy the latest edition of every text.<br />
• Don’t subscribe to loose-leaf updates.<br />
• Investigate format options (ebook or web-only access).<br />
• Consider purchasing annotated statutes as well or instead, if<br />
appropriate for your practice.<br />
#2: Statutes & Regulations<br />
Before diving in to legislation, revisit your strategy. Your checklist<br />
should look something like this: Is there an applicable statute?<br />
What are the relevant sections? Are they or were they in force at the<br />
relevant time? Is there an annotated version? (Commentary and case<br />
law provided could be worth the investment of purchasing, or check<br />
the holdings of the closest law library.)<br />
Thankfully, free access to Canadian legislation via federal and<br />
provincial government websites is getting better and better with<br />
regard to currency, scope, depth and status. Differences abound<br />
across jurisdictions though, so be sure to note when the site was last<br />
updated, and whether the consolidated, annual or point-in-time<br />
version you’re viewing is official.<br />
As of June 1, 2009, all consolidated statutes and regulations available<br />
through Justice Laws (laws.justice.gc.ca) are official and can be used<br />
for evidentiary purposes. Annual statutes (not official) are provided<br />
from 2001 to date. Point-in-time versions are available from January<br />
1, 2003 onward for Acts and March 22, 2006 onward for regulations.<br />
Free online tools for federal statutory research:<br />
• Table of Public Statutes and Responsible Ministers on Justice<br />
Laws;<br />
• LEGISinfo for Bills before Parliament<br />
(www.parl.gc.ca/LEGISINFO);<br />
• A Nation’s Chronicle: The Canada Gazette, 1841-1997<br />
(www.collectionscanada.gc.ca/databases/canada-gazette/<br />
index-e.html); and<br />
• Hansard, current and prior sessions to 35th Parliament, 1994<br />
(www.parl.gc.ca/HouseChamberBusiness/ChamberSittings.<br />
aspx) and Historical Debates of the House of Commons, 1867-<br />
1993 (parl.canadiana.ca).<br />
Nova Scotia’s Office of the Legislative Counsel (nslegislature.ca/<br />
legc/by_sess.htm) provides access to bills, statutes and proclamations<br />
from the 1998-1999 session to date. Official PDF versions of Acts<br />
as passed are provided from 2003, 2nd session to date. The Registry<br />
of Regulations (www.novascotia.ca/just/regulations/rg2/issues.htm)<br />
provides unofficial copies of the Royal Gazette, Part II online in PDF<br />
from Volume 26 (2002).<br />
Free online tools for provincial (NS) statutory research:<br />
• Table of Public Statutes and Index to Local and Private Acts<br />
from the Nova Scotia Office of Legislative Counsel;<br />
• Status of Bills before the House<br />
(nslegislature.ca/index.php/proceedings/status-of-bills);<br />
• Hansard, current and prior sessions to 56th General Assembly,<br />
1994 (nslegislature.ca/index.php/proceedings/hansard); and<br />
• Proclamations (nslegislature.ca/legc/procla.htm).<br />
CanLII is also a free online source for federal and provincial legislation<br />
(not official). The site offers point-in-time versions of legislation<br />
(caution: incomplete) as well as a noting-up function (caution: not<br />
comprehensive). CanLII’s usability, breadth of content and free valueadded<br />
features make it a great place to begin researching primary<br />
sources but it should not be the only or last place you look.<br />
When tracing legislative history, online sources may not provide the<br />
historical depth required. Look to library collections for copies of<br />
Acts not freely available online: Nova Scotia Barristers’ Libraries;<br />
Sir James Dunn Law Library at Dalhousie University; and the Nova<br />
Scotia Legislative Library.<br />
#3: Rules of Court<br />
Rules of court contain much more valuable information than just<br />
filing deadlines and page limits, and should not be overlooked as a<br />
research source. The first step sounds obvious but it’s an important<br />
one: Ensure you’re working with the right set of rules. Each level of<br />
court in Nova Scotia (including the Small Claims Court) has its own<br />
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ules. There are also separate rules for the Federal Courts and the<br />
Supreme Court of Canada, with annotated versions available as well.<br />
If your matter is proceeding in the Supreme Court of Nova Scotia,<br />
the Supreme Court Family Division, or the Court of Appeal, you will<br />
turn to the Nova Scotia Civil Procedure Rules. Whether using a hard<br />
copy looseleaf version, the online version from the Barristers’ Society<br />
or the Courts of Nova Scotia, or both, there is added research value in<br />
the case annotations, practice memoranda and tables of concordance.<br />
(The Judicature Act is a handy companion here as well.)<br />
#4: Case law<br />
This article has warned against proceeding directly into case law<br />
keyword searches the moment you have a research problem. But once<br />
you have canvassed background sources and then reached the stage of<br />
searching for case law, how can you stay cost-effective and efficient?<br />
Three free sources will be reviewed here: CanLII, Maritime Law<br />
Book’s Raw Law, and the Nova Scotia Courts’ Decisions Database.<br />
First, CanLII: This free Canada-wide online legal research tool<br />
contains statutes, cases, commentary (on CanLII itself and on<br />
CanLII Connects), and links to<br />
international research sites.<br />
CanLII has a federal database<br />
along with a database for each<br />
province, which contain further<br />
subcategories. When keyword<br />
searching, CanLII lets you sort<br />
your results by “document<br />
relevance”; “most recent”; “most<br />
cited”; and “court level” – play<br />
around with the filters to find what works best for your question.<br />
Click on the “show headnotes” option when you find a relevant case,<br />
for links to the cases and statutes cited in the case; links to Supreme<br />
Court of Canada decisions on leave to appeal (if available on CanLII);<br />
and to CanLII Connects for commentary.<br />
As with any resource, be mindful of CanLII’s limitations: there is<br />
an approximately two-day lag for newly released decisions; historical<br />
coverage is not the same for each province / court (e.g., at present,<br />
continuous SCC coverage goes back to 1907, but continuous NSCA<br />
coverage only goes back to 1990); and you may not get perfectly<br />
comprehensive results when noting up your case to see whether it has<br />
been appealed and how it has been treated in subsequent cases.<br />
When you’ve come up against the limits of CanLII’s historical depth,<br />
turn to Maritime Law Book’s Raw Law for free access to the Nova<br />
Scotia Reports (2d)—that’s back to 1970!—and National Reporter<br />
System cases, as released by the Courts.<br />
The search functionality of this site is not as forgiving as CanLII; select<br />
database(s) to limit by jurisdiction, and use the search tools to limit<br />
searches to words in the headnote or style of cause, or to statutes noticed.<br />
The search syntax can be picky; to “find case by MLB citation” enter a<br />
reported citation exactly as shown—77 N.S.R. 2d 113—in the search<br />
box. Ensure you select “Raw Law Version of Case (no headnotes)” in<br />
your results or you may be prompted to pay for access. If your firm runs<br />
disbursement software, you may see pay prompts where you needn’t;<br />
clarify access with your firm librarian or appropriate staff.<br />
CanLII is freely accessible, but is it<br />
free? No! It’s funded by Canadian<br />
law societies’ annual fees – about<br />
$35 per practitioner year.<br />
If the decision you’re seeking was released that same day from the Courts<br />
of Nova Scotia, you won’t find it in any other free or fee sources: check<br />
the Courts’ Recent Decisions webpage for a link under Today’s releases,<br />
and / or follow the Courts’ Twitter feeds. The Courts also maintain<br />
a Decisions Database providing nearly comprehensive coverage of<br />
decisions from 2003, selective coverage from 1992, and some unique<br />
coverage (among free online sources) within these time periods, as well.<br />
#5: Articles and commentary<br />
Journal and periodical articles are especially helpful when you are<br />
researching new, emerging or rapidly changing areas of law. Locating<br />
one good, recent article on your topic can save you hours of research.<br />
Licensing an online research tool like Quicklaw or WestlawNext<br />
equips you with access to a wide variety and number of Canadian (and<br />
potentially international) journals and newsletters. Or, depending on<br />
your research topic and your location, this may be a time to make a<br />
trip to a Barristers’ library in Halifax, Kentville or Sydney to access<br />
WestlawNext (30+ Canadian journals) and HeinOnline (1,700+<br />
U.S. and international journals, 75+ Canadian). In addition, it may<br />
be worth subscribing to a print journal or two coinciding with your<br />
main practice areas.<br />
Thanks to the scholarly open<br />
access movement, a number<br />
of reputable, authoritative law<br />
journals are freely available<br />
online: the McGill Law Journal,<br />
Osgoode Hall Law Journal,<br />
Dalhousie Journal of Legal Studies<br />
and many more—consult the list<br />
maintained by the Western Journal<br />
of Legal Studies (ir.lib.uwo.ca/uwojls/about.html). Many Canadian<br />
legal authors and academics also submit papers to the Social Science<br />
Research Network (SSRN).<br />
For tips and websites to get you started with international legal<br />
research (#6), as well as further suggested free online sites for legal<br />
commentary, citation guides and tools (#7), site-specific assistance,<br />
and an overview of research techniques for tracing legislative history<br />
and coming into force, please see the slides of our Annual Meeting<br />
presentation available at www.nsbs.org/archives/CPD/81565.pdf.<br />
Sources to help you stay in the know<br />
• Free or inexpensive webinars (many law firms put these on)<br />
• Papers and PowerPoints from professional development<br />
conferences<br />
• Legal magazines (like this one!)<br />
• CanLII Connects<br />
• Blawgs<br />
- Canadian law Blogs List: www.lawblogs.ca<br />
- Slaw: www.slaw.ca & MLB-Slaw Selected Case<br />
Summaries: cases.slaw.ca<br />
• Law society websites<br />
• Twitter (follow the Society’s updates @NSBS)<br />
• LinkedIn<br />
• See Keeping Current on the Society’s website for more<br />
sources and tips to get started (nsbs.org/keeping-current)<br />
Fall 2014 37
Summation<br />
Reflections as Nova Scotia’s representative at<br />
the national regulatory table<br />
As I finish my term at the Federation of Law Societies of<br />
Canada and bid farewell to my colleagues, I have taken a<br />
moment to reflect on my four past years as the Nova Scotia<br />
representative at the Federation Council table. The environment<br />
within which law societies’ regulatory work is being carried out has<br />
changed considerably since 2010. It is increasingly more national and<br />
international in perspective and focus.<br />
As Council representative, the work I was asked to do was widely<br />
varied, and in many respects built on my volunteer time at the Society.<br />
A few highlights include canvassing the role of public representatives<br />
within the Federation and law societies, and working on the National<br />
Requirement for the accreditation of law degrees for purposes of<br />
admission to law society licensing programs.<br />
The time commitment, while significant, was well worth the effort. I<br />
made many good friends and enjoyed the warm collegiality of working<br />
with representatives from all 14 law societies across Canada. Working<br />
with lawyers whose practice experiences and areas are so diverse – and<br />
yet amazingly, in many ways, similar in terms of day-to-day practice<br />
challenges – always served to reinforce my continued respect for fresh<br />
perspectives.<br />
The move towards collaboration and national consistency is apparent<br />
in the work of the Federation. The Federation recommended the<br />
development of a new national Model Code of Conduct and has<br />
formed a committee to deal with questions arising from various<br />
jurisdictions, as lawyers work with that new codification of longstanding<br />
ethical principles.<br />
National Discipline Standards<br />
have been developed and the<br />
National Admission Standards<br />
project is well underway.<br />
Catherine S. Walker QC<br />
Federation Council Member<br />
representing NSBS<br />
Access to justice initiatives are first and foremost on bencher agendas<br />
across the country. All law societies in Canada have accepted the<br />
challenges that this work has identified, and are committed to<br />
addressing them with practical strategies.<br />
Efforts are focused both on access to justice in the traditional context<br />
of courts and family services, and access to legal services generally.<br />
This includes answering such questions as: What does this really mean<br />
contextually to all our communities within which we live and work?<br />
How can we continue to challenge ourselves in changing times, while<br />
maintaining the integrity of the work we do?<br />
My thanks to the Society and its Council for the opportunity to serve<br />
Nova Scotia at the national regulator governance table. It was both a<br />
privilege and an experience I will remember for many years to come.<br />
There is much work ahead for the Federation and I wish my successor<br />
Council representative, J. René Gallant, much success as he embarks<br />
on his adventure in that new role. I am confident he will serve Nova<br />
Scotia well in the years to come.<br />
For more details on the ongoing work of the Federation of Law Societies<br />
of Canada, visit flsc.ca.<br />
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Fall 2014 39
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40<br />
The Society Record