CIVILITY

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January/February 2012 - Law Society of the Northwest Territories

ARCTIC OBITER

MAY/J J ANUARY/FEBRUARY UNE 2011 2012 V OLUME XVI, XV, ISSUE 31

FOSTERING

CIVILITY

SEEING YOUR LAW DEGREE AS

MUCH MORE THAN A LICENSE


2 | ARCTIC OBITER

4th Floor, Diamond Plaza

5204 – 50 th Avenue

P.O. Box 1298

Yellowknife, NT

X1A 2N9

TEL: (867) 873-3828

FAX: (867) 873-6344

info@lawsociety.nt.ca

www.lawsociety.nt.ca

PRESIDENT

Cayley J. Thomas

VICE-PRESIDENT

Caroline Wawzonek

SECRETARY

Margo Nightingale

TREASURER

Kelly McLaughlin

LAYPERSON

vacant

INSIDE

11

18

Citizenship in the Legal Profession

By Michael Eizenga

Learning to Run

By Jordan Furlong

P.O. Box 1985

Yellowknife, NT

X1A 2P5

TEL: (867) 669-7739

FAX: (867) 873-6344

info@cba-nt.org

cba.org/northwest

PRESIDENT

Malinda Kellett

VICE PRESIDENT

Jeannette Savoie

SECRETARY / TREASURER

Glen Rutland

PAST PRESIDENT

Elaine Keenan Bengts

MEMBERS OF COUNCIL

Sheldon Toner

Caroline Wawzonek

Charlene Doolittle

BettyLou McIlmoyle

Jeannie Wynne-Edwards

3 President’s Message

4 Executive Director’s Message

6 Membership News

8 CBA National News

19 NWT Legislative News

20 NWT Decision Digest

26 Supreme Court of Canada

Update

30 Notices

31 Resources

EXECUTIVE DIRECTOR

Linda Whitford

linda.whitford@lawsociety.nt.ca

DIRECTOR OF COMMUNICATIONS

LEGAL EDUCATION COORDINATOR

Ben Russo

ben.russo@lawsociety.nt.ca

ADMINISTRATIVE ASSISTANT

Shannon Hogan

shannon.hogan@lawsociety.nt.ca

Arctic Obiter is a joint publication of the Law Society of

the Northwest Territories and the Northwest Territories

Branch of the Canadian Bar Association. It is published

on a bi-monthly basis to keep lawyers practicing in the

NWT informed of news, announcements, programs and

activities. Comments, articles and photos for

consideration can be submitted to Ben Russo. Past and

current issues are available on the Law Society website.

FROM THE EDITOR

A few weeks ago, I chanced upon an old paper written by

Toronto-based lawyer Michael Eizenga. I’m usually keen to

publish (or republish) key concepts and perspectives on civility

in the legal profession, both in and out of the courtroom.

Michael’s paper, however, touched on an idea much broader

than seen before.

Simply put, Michael’s idea of “citizenship” within the profession had me instantly

imagining a nation within a nation, where tolerance towards mischief or incivility

is very low and deportation serves as capital punishment. It is a unique way of

looking at the profession, and one that deserves some attention.

In this jurisdiction, with roughly 135 resident lawyers mixed into a population

under 40,000, Michael’s concept is not much of a stretch. So, without saying more, I

encourage all lawyers to do their patriotic duty and read up on their Citizenship in

the Legal Profession.

- Ben


JANUARY/FEBRUARY 2012 | 3

PRESIDENT’S MESSAGE

by Cayley J. Thomas

The Spirit of the Game

Earlier this month, I was at the Junior National Curling

Championships. At the outset of this article, I must admit that

I don’t curl, and I know very little about curling. I was lucky

enough, however, to be sitting with someone who had curled

in several national championships, and who was patient

enough to explain not only the rules of the game, but also the

rules of behaviour for both the participants and the spectators.

The more I learned about curling, the more I came to

appreciate how similar this sport is to the practice of law.

Some of the comparisons are obvious; this is a sport that

requires an enormous amount of skill, and the ability to use

those skills strategically. Elite curlers spend years developing

their technique, just as lawyers spend years building the skills

required in their area of practice. Elite curlers are also master

strategists. In a matter of seconds, they have to make

decisions that require both an analysis of the options (do they

guard, draw to the button, or take their opponent’s rock out?)

and a risk analysis of those options (can they make this shot?

What will happen if they miss? What will their opponents do

next? How much risk do they need to take at this point in the

game?).

Some of the comparisons between curling and the practice of

law are more subtle; they relate to the written and unwritten

rules expected from those participating in the sport. Curling,

like the practice of law, requires that participants conduct

themselves with honour and civility. Curlers are expected to

act with dignity and be respectful of others. They are expected

to not only follow the rules of the game, but also to follow the

“spirit” of the rules.

The Canadian Curling Association’s Code of Ethics 1 is

remarkably applicable to the practice of law. The curlers’ code

states:

I will play the game with a spirit of good sportsmanship.

I will conduct myself in an honourable manner both on

and off the ice.

I will never knowingly break a rule, but if I do I will

divulge the breach.

I will take no action that could be interpreted as an

attempt to intimidate or demean my opponents,

teammates or umpires.

I will interpret the rules in an impartial manner, always

keeping in mind that the purpose of the rules is to ensure

that the game is played in an orderly and fair manner

I will humbly accept any penalty that the governing

body at any level of curling deems appropriate if I am

found in violation of the Code of Ethics or rules of the

game.

The Code also contains guidelines on “Fair Play”, including

the following statements:

Fair Play begins with the strict observance of the

written rule; however, in most cases, Fair Play

involves something more than even unfailing

observance of the written rule. The observance of the

spirit of the rules, whether written or unwritten, is

important.

Fair Play results from measuring up to one’s own

moral standards while engaged in competition.

Although the code of conduct for curlers is a much simpler

document to read than the Code of Professional Ethics for

lawyers, I suggest that that principles are very similar. We

would all do well to keep the Curlers Code of Conduct in

mind when dealing with our colleagues, clients and officers of

the court.

Finally, although this was not the reason for choosing to write

a column that combines curling and the practice of law, I

would be remiss if I didn’t recognize two of our members

who have attained the rank of elite curlers. Congratulations to

Brad Patzer and Wendy Miller, who recently competed at the

Yukon/NWT Championships. Best of luck to Wendy and her

team, when they compete in the Scotties Tournament of

Hearts in Red Deer next week.


4 | ARCTIC OBITER

THE DIRECTOR’S CHAIR

by Linda G. Whitford

Preparing for the New Year

When I last wrote this column, we were busy preparing for

year-end and wrapping things up before the Christmas

Holidays. On this occasion, the new year is in full swing

with renewals, committees, budgets, work plans, and

preparations for hosting of the spring meeting of the

Federation of Law Societies of Canada in March.

While my view for the last article was that of a pristine,

white, snowy landscape, this one is of turquoise waters and

clear blue skies. The temperature is not -40, but rather +30,

and I confess it is somewhat harder to

concentrate with warm sand between your

toes.

ADMINISTRATION

Notice of annual membership renewals has

been sent to all members of the Law Society.

Once again, they are available online in

fillable PDF format. Your completed forms

and the appropriate funds are due in the

offices of the Law Society by March 31st,

2012. A reminder will be sent to those whose

documents have not been received as of

February 29th, 2012.

Members not intending to renew are reminded that, rather

than doing nothing, they are required to request permission

to resign in advance of March 31st. Additionally, if you

provide legal services to the public and wish to resign or go

inactive, you are required to comply with Rule 58 in advance

of the cessation. Rule 58 is as follows:

58. (1) A member who ceases the private practice of law in

the Territories shall provide written notice to the

Executive before the cessation occurs and shall obtain the

approval of the Executive with respect to the intended

disposition of all

(a) open and closed files,

(b) wills, titles and other important or valuable

documents,

(c) non-documentary valuables, and

(d) trust moneys, trust accounts and books of account,

that relate to the practice of the member in the Territories

and are within the control of the member.

(2) A member who ceases the private practice of law in the

Territories shall, within three months after the cessation

occurs, provide a written report to the

Executive advising of the disposition of the

(a) files, documents and valuables referred

to in paragraphs (1)(a),(b) and (c); and

(b) trust accounts and books of account

referred to in paragraph (1)(d), including a

statement confirming that

(i) all the balances have been remitted to the

clients or other persons on whose behalf they

were held, or have been transferred to

another member at the request of the client

with written instructions concerning the

conditions attaching to them, and

(ii) the net interest earned on a pooled trust account has

been remitted to the Northwest Territories Law

Foundation in accordance with the provisions of the Legal

Profession Act.

(3) On the written application of the member, the

Executive may extend the time for providing a report

under subsection (2).

MODEL CODE OF CONDUCT

The Model Code of Conduct proposed by the FLSC,

including the section on conflicts, is before the Legal Ethics

& Practice Committee for review. To assist us in our

deliberation on this particular point, Ross McLeod, Practice


JANUARY/FEBRUARY 2012 | 5

Advisor at the Law Society of Alberta, will be speaking in

Yellowknife on the 23rd of March. Mark your calendars —

this is one CPD session you will not want to miss. He will

also be available for individual meetings with members.

By the time this issue of the Obiter is released, the majority

of the Law Society's Committees will have met, selected a

Chair, reviewed the tasks before them, and determined an

appropriate budget. On February 21st, the Chairs are

scheduled to meet with the President to review the Society's

workplan and the role of the Committees in completing the

tasks it includes.

CANADIAN BAR ASSOCIATION

On February 3rd, the Winter General Meeting of the NWT

Branch of the CBA was held at the Champagne Room,

generously sponsored by CBIA. In additional to Section

Reports, the meeting reviewed the Branch’s Financial

Statements and had an interesting discussion on the QC

designation, which was discontinued across the northern

territories in the early 1990’s.

In 2004, at the Branch's AGM, after receiving a report

compiled by Paul Smith, Emerald Murphy and Rod

Onoferychuk, the following resolution was passed by a vote

of vote of 15-8:

Whereas the appointment of senior members of the Bar as

Queen’s Counsel has been a tradition of the Bar which

recognizes those members’ dedication and long service to both

the public and the profession;

And whereas the practice of appointing Queen’s Counsel in

this jurisdiction was discontinued in the early 1990s;

And whereas the Northwest Territories Branch of the

Canadian Bar Association wishes to see the Queen’s Counsel

designation re-instated in the Northwest Territories;

Be it therefore resolved that the executive of the Northwest

Territories Branch of the Canadian Bar Association, in

consultation with the Law Society of the Northwest

Territories, the Ministers of Justice, and other interested

parties where appropriate, undertake to create a process

whereby suitable candidates in this jurisdiction might receive

an appointment as Queen’s Counsel.

No further progress had taken place. The matter will

therefore be further developed and brought to the Summer

General Meeting in June for further discussion.

LPAC and Standing Committees were also front and center.

Members interested in serving on LPAC should contact the

Branch. Members are also asked to give some thought on

nominating a CBA member for the Community Service

Award.

I have spent the past week attending the CBA's Mid-Winter

Meeting of Council with Vice-President Jeannette Savoie and

Treasurer Glen Rutland. This is the meeting where the

Douglas Miller Award is presented. Doug was a former

President of the Northwest Territories Branch. This year's

recipient was Lucille Birkett, QC, of Alberta. You will find

further information on Lucille and the qualities which

earned her this prestigious award in this issue.

GOOFY CHALLENGE

In wrapping this up, I would ask your indulgence while I

take the opportunity to tell you of a personal

accomplishment. A couple of years ago, I learned of an

event at Walt Disney World called the “Goofy Challenge”. I

was in awe of those who could accomplish this feat: a halfmarathon

on a Saturday and a full marathon on a Sunday.

Were they for real? I could only dream of something like

that.

Then, last spring, a very good friend of mine passed away.

Harry never did anything half way and lived life to the

fullest; there was no “shoulda, woulda, coulda”. The night

before his memorial, I registered for the 2012 event, booked a

ticket, and began to train. The end result was not a personal

best as far as the clock went, but I am a Dopey, having

completed a 5 km run, a half marathon and a full marathon

in one weekend. Over 42 miles were covered and celebrated

with memories to last a lifetime, complete with a

photographic record and an enormous sense of

accomplishment. Now I don’t have to worry about thinking

I wish I had done that and can instead say, “I did it!” Walt

(CONTINUED ON PAGE 6)


6 | ARCTIC OBITER

MEMBERSHIP

NEW MEMBERS

ALYA AKGUNGOR

FIELD LLP—EDMONTON, AB

Ayla articled a Field LLP in 2001-2002

and joined as an associate in 2002.

Prior to articling with the firm

she articled with the Court of

Queen’s Bench and the Alberta

Court of Appeal. She

maintains a practice focused

primarily on labour &

e m p l o y m e n t l a w a n d

administrative law.

DENISE HENDRIX

VICKERS HENDRIX LLP—CALGARY, AB

Denise received her LLB at the

University of Calgary in 1991 and was

admitted to the Law Society of Alberta

in 1992.

A. Akgungor

As an associate, and

previously an articling student, at

Davidson & Williams in Lethbridge,

Alberta, she focused on litigation,

foreclosures, real estate and estate

work. She then moved to the Calgarybased

firm Fleming Kambeitz, where

she focused on corporate/commercial

litigation, foreclosures, real estate and

general commercial matters.

Denise joined the firm of Vickers &

Associates in 1997 and, in

2009, became partner under

the firms new name, Vickers

Hendrix LLP.

Her practice is

primarily limited to the areas

of litigation, commercial and

residential real estate and

foreclosures for National Banks, Trust

Companies, Mortgage Investment

Corporations and Private Lenders.

MEMBERSHIP STATS

Active Residents: 136

Active Non-Residents: 264

Inactive Members: 85

Total Membership: 485

(Restricted Members: 84)

KENNETH KINNEAR

LEGAL SERVICES BOARD—YELLOWKNIFE, NT

DAMIAN SHEPHERD

CHATWIN LLP— EDMONTON, AB

PETER HARTE

CAMBRIDGE BAY, NU

NOTICES

NOTICE OF RESIGNATION

TAKE NOTICE THAT the following

persons:

Wendy Harris (Vancouver, BC)

Michael Snider (Vancouver, BC)

Patrice Taylor (Bonnyville, AB)

having indicated that they do not wish

to continue their memberships in the

Law Society of the Northwest

Territories and having voluntarily

submitted their resignations, have been

permitted to resign, and their names

have been removed from the Roll of the

Society effective February 8, 2012.

(CONTINUED FROM PAGE 5)

Disney was right: “All your dreams

can come true if you have the courage

to pursue them.”

Would I do it again? Probably not.

The training consumed an enormous

amount of time. But there are other

items on the bucket list to keep me

busy, not to mention emotionally and

physically healthy.

Until next time, be safe, be well, be

happy. You owe it to yourself, your

family and your clients!

RUNNING IN STYLE: Linda takes a break with two of the many bystanders along the track.


JANUARY/FEBRUARY 2012 | 7

One million legal judgments now freely available

in a searchable Canadian database

There are now one million Canadian

court and tribunal decisions freely

available over the internet, courtesy of

the Canadian Legal Information

Institute (CanLII). It has taken 12 years

for this comprehensive online legal

resource to reach the one million mark,

a total that includes judgments from

more than 200 legal sources.

The one millionth judgment loaded into

the CanLII database was a judgement

from the Supreme Court of Canada.

CanLII is an initiative of the Federation

of Law Societies of Canada, the national

umbrella group for Canada’s 14

regulators of Canada’s 100,000

lawyers and 3,500 Quebec

notaries in the public interest. It

was launched in 2000 on a test

basis to provide efficient and free

access to the growing number of

judicial decisions and legislative

documents available on the internet.

In 2001, the Federation established

CanLII as an ongoing, not-for-profit

service to support the legal profession’s

research needs while providing the

public with permanent, open and free

access to the legal heritage of all

Canadian jurisdictions. Now guided by

a skilled independent Board of

Directors, CanLII has recently released a

document establishing its strategic

priorities for 2012 to 2014. Under its new

plan, CanLII continues the original

mission established by the Federation

but will also pursue content and

technological enrichment for the benefit

of its professional and public users.

According to Colin Lachance, President

and CEO of CanLII, "reaching the

million mark has involved adding both

new and historical judgments to the

database". Mr. Lachance adds, "CanLII

now grows by more than 120,000

judgments a year, approximately 20 per

cent of which are older cases that add

depth to our collection." With an

average of 25,000 individual users

visiting the site daily, CanLII is clearly

achieving the objective of making the

law available to an interested public.

"Adding these historical judgments has

only been possible because of the

generous support and participation of

various provincial law foundations, and

courts and tribunals across the country"

the CanLII President says. “Challenges

remain in light of the evolving needs of

the legal profession, and the growing

public interest in access to legal

information as a means of promoting

access to justice. We anticipate

establishing wider alliances over the

coming years with groups and

institutions focused on promoting

understanding of the law.”

The CanLII database is maintained

under a services agreement by Lexum

Inc., a private Montreal-based company

that started out as the LexUM data

laboratory of the Université de

Montréal. Lexum, a leading Canadian

legal technologies provider and

publisher of the Supreme Court of

Canada judgments since 1992, has been

there since the beginning. “This project

started with less than 300 judgments"

says Daniel Poulin, President of Lexum

Inc. and holder of the Legal Information

Chair of the Law Faculty of the

Université de Montréal. "We have been

looking forward to celebrating this

milestone for a long time."

The President of the Federation,

John Hunter, QC, says from the

beginning CanLII existed for the

purpose of making Canadian law

freely available via the internet.

"CanLII is a non -profit

organization created by the

Federation and Canada’s law societies

and it is funded by all members of the

legal profession through their law

society dues", Mr. Hunter noted.

Through the past 12 years, CanLII has

also benefited from crucial contributions

from federal, provincial and territorial

governments and their official

publishers who have all made their

legislative texts available.

Access to the CanLII service is available

at www.canlii.org, or through the web

site of the Federation of Law Societies of

Canada www.flsc.ca.


8 | ARCTIC OBITER

CBA NATIONAL NEWS

Lucille R. Birkett, QC, receives CBA’s 2012

Douglas Miller Award

Lucille R. Birkett, QC, of Sherwood

Park, AB, has been named the winner

of the Canadian Bar Association

(CBA)’s 2012 Douglas Miller Award.

The award was presented to her on

Feb. 11 at the CBA Mid-Winter

Meeting of Council, during the

President’s Dinner.

“Lucille brings her warmth,

enthusiasm, and team spirit to

everything she does,” said CBA

President Trinda L. Ernst, QC, of

K e n t v i l l e , N S . “ H e r s t r o n g

commitment to our association, as

d e m o n s t r a t e d t h r o u g h h e r

participation and leadership in

countless CBA activities, made the

selection of this year’s winner an easy

decision.”

An Alberta native, Lucille Birkett

became involved in the CBA as a law

student at the University of Alberta,

and quickly established herself as a

dedicated volunteer. A voting member

of CBA’s National Council since 1993,

she served as President of the CBA

Alberta Branch in 2000-2001, and has

chaired the National Health Law

Section and her Branch’s Equality

Committee, among others. She

currently chairs the CBA’s national

Small, Solo, and General Practice

Forum, and sits on the Board of

Directors.

In addition to her ongoing CBA

involvement, Lucille Birkett is a

member of the Edmonton branch of

the Women’s Legal Education and

Action Fund (LEAF) and the

Association of Collaborative Family

Professionals in Edmonton. A former

presiding Justice of the Peace, she is

engaged in her community as a

member of her local church and

hospice society. Lucille Birkett was

appointed Queen’s Counsel in 2000

and currently practices collaborative

family law at The Law House in

Sherwood Park, AB.

“I expect Douglas Miller was sadly

missed by many when he passed away

in 1994,” said Lucille in her acceptance

speech. “To receive this award in his

name is truly a privilege. I am

honored to be included in the

esteemed group of past recipients –

especially among my Alberta friends

and mentors – Sandra Schultz, Q.C.,

Greg Harding, Q.C. and Glenda Cole.

I wish to express my gratitude to these

and the other past recipients for their

leadership.”

“Each of us involved in the Canadian

Bar Association in any capacity has

had the incredibly capable support of

dedicated staff – in our branches and at

the national office.”

The Douglas Miller Award honours

the late Doug Miller of Yellowknife, a

former president of the Association’s

Northwest Territories Branch and a

very active CBA member who passed

away in 1994. The award recognizes a

CBA member in good standing who

demonstrates outstanding dedication

and team spirit.

CBA-BC INVITES NORTHERN MEMBERS TO JOIN SECTIONS

The British Columbia Branch of the CBA welcomes CBA members in the Northwest Territories to

their Sections. Information on the 72 available sections, including the Women Lawyers Forum, is

available on the CBA-BC website: cba.org/bc


JANUARY/FEBRUARY 2012 | 9

Start of 2012 highlights CBA’s advocacy work

Since the start of the new year, the

CBA has presented submissions on Bill

C-26 (citizen’s arrests and defences of

property and persons), Bill C-10 (the

omnibus crime bill), and the Lobbying

Act to several Parliamentary

committees.

Read below to learn more about the

CBA’s recent advocacy efforts. All

CBA submissions are available online

at www.cba.org/CBA/submissions.

UPDATES TO BILL C-26

WELCOMED, WITH EXCEPTIONS

While the CBA welcomes the

government’s proposed amendments

to Bill C-26 – which would update and

simplify aspects of the Criminal Code

related to citizen’s arrests and the

defences of property and persons – it

recommends several key changes

before passage in order to better

achieve the bill’s goal.

The CBA has suggested changes to

avoid potentially denying innocent

Canadians a legitimate defence when

faced with unlawful aggression from

others. "We would like to see a better

balance between subjective and

objective elements,” said Eric Gottardi

of Vancouver, Vice-Chair of the CBA’s

National Criminal Justice Section.

The CBA submission on the bill notes

that legislation appears to strengthen

the objective standard of a 'reasonable

person,' and weaken consideration of

the subjective perceptions of a person

who claims to have acted in selfdefence.

In the CBA’s view, the change

proposed for the citizen’s arrest section

of the Criminal Code would needlessly

expand the scope of that section. "The

proposed amendment could actually

endanger innocent Canadians

attempting to make arrests without

proper training or tools. We

recommend that this section not be

amended," explained Gottardi.

Eric Gottardi presented the CBA

submission to the House of Commons

Justice and Human Rights Committee

on February 9.

BILL C-10 CONCERNS VOICED AT

SENATE COMMITTEE HEARING

The CBA has publicly expressed its

opposition to the federal government’s

omnibus crime bill since its

introduction in fall 2011. Most recently,

Dan MacRury of Sydney, NS, Chair of

the National Criminal Justice Section,

presented the CBA’s submission on the

bill to the Senate Committee on Legal

and Constitutional Affairs on February

8 in Ottawa.

The submission suggests that the bill’s

approach to crime is contrary to what

is known to lead to a safer society, and

would move Canada along a road that

has failed in other

countries.

Specifically, the CBA’s concerns

include the bill’s potential impact on

northern residents, Aboriginal Peoples,

and the mentally ill; its inclusion of

mandatory minimum sentences; and

its overreliance on incarceration.

MORE BALANCE IN

LOBBYING ACT

Commenting on the statutory five-year

review of the federal Lobbying Act, the

CBA says that the Act must strike a

balance by promoting transparency

and accountability while not

inadvertently creating barriers to

communications between MPs and

their constituents, the general public,

corporations, and other organizations.

As a strong proponent of the rule of

law and democracy, the CBA supports

the objectives of the Act. “Our

submission agrees with many of the

recommendations presented by the

Commissioner of Lobbying,” says Guy

Giorno, a member of the working

group that prepared the CBA’s

submission on the Act’s five-year

review.

However, the submission urges the

government to make several

a m e n d m e n t s , i n c l u d i n g t h e

elimination of the distinction between

in-house lobbyists for corporations and

in-house lobbyists for organizations,

a n d t h e i n t e r p r e t a t i o n a n d

administration by a single authority of

post-employment restrictions on

former public office holders.

The submission was presented to the

Standing Committee on Access to

Information, Privacy and Ethics by

working group members Guy Giorno

and Jack Hughes on February 14.


10 | ARCTIC OBITER

CBA NATIONAL NEWS

Client confidentiality in disclosing trust account

information

If you have a trust account at a

financial institution that is a member

of the Canada Deposit Insurance

Corporation (CDIC), you will receive

a reminder in April about disclosure

requirements you must meet under

the CDIC Joint and Trust Account

Disclosure By-law. For a trust deposit

to enjoy additional insurance

coverage, trustees must disclose

certain information on the records of

the member institution. The good

news is that solicitor-client privilege

h a s b e e n a d d r e s s e d , a n d

confidentiality of client information

can be protected.

To protect client confidentiality, a

lawyer or notary may substitute an

alpha numeric or other code for the

name and address of each beneficiary.

The code would refer back to the

records maintained at the lawyers’ or

notary’s office, thereby maintaining

confidentiality

Further details can be found at

www.cba.org and www.cdic.ca, or by

calling 1-800-461-2342.

Resolutions

passed at Mid-

Winter Meeting

Policy resolutions were debated and

passed at the 2012 CBA Mid-Winter

Meeting of Council that took place

Feb 10-12 in Mexico. The resolutions

were related to privacy, financial literacy,

and the Canada Pension Plan,

among others.

To read the resolutions, visit

www.cba.org/CBA/resolutions.

Intern Placements 2012-2013

CBA YOUNG LAWYERS INTERNATIONAL PROGRAM

We are pleased to announce that the

CBA will again be placing up to

sixteen young lawyers (30 and under)

in internships with human rights

organizations and legal professional

organizations in 2012-2013. This

program, funded by the Canadian

International Development Agency, is

designed to provide work experience

for young lawyers interested in

careers in international human rights

and international development. The

program runs from August 1 2012 to

March 31, 2013, which includes a sixseven

month overseas placement.

Travel, accommodation and basic

living expenses are covered. The

closing date for applications this year

is April 12, 2012. For more

information on the program and the

application procedure, visit

website.

our

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JANUARY/FEBRUARY 2012 | 11

LEGAL ETHICS

Citizenship in the Legal Profession

CIVILITY AS AN INSTRUMENTAL VALUE IN SELF-GOVERNANCE

by Michael Eizenga, Partner, Bennett Jones LLP

The beginning place for any consideration of professional

behaviour has to be a recognition of, as well as a

rededication to, our fundamental professional service

mandate. With this central raison d’etre in mind, our

profession has been constituted as a self-governing

institution. 1 Generally speaking, the form of professional self

-governance is shaped by the following goals: (i) ensuring

individual and institutional accountability to the public, (ii)

ensuring standards of excellence, (iii) recognizing that

membership entails privileges with corresponding

obligations, and (iv) ensuring that the self-governance

mandate is democratically instituted. 2

I take the view that the creation of this self-governing

institution amounts to the creation of our own civil society

within the larger society. In this paper I will focus on the

behaviour of legal professionals as citizens in this civil

society, since “any regime of self-government must have an

adequate supply of citizens who are skilled in the arts of selfgovernment

-- deliberation, + compromise, consensus

building, civility, and reason-giving.” 3 It is important,

however, to realize

that the nature of this professional citizenship is uniquely

and essentially dual citizenship, since we must recognize that

our civil obligations extend to each other and to the larger

society. For, at root, our autonomy as a self-governing

institution rests on the legislative authorization which flows

from the larger society.

As a result, and somewhat paradoxically, the essential

requirement that our institution remain publicly minded

flows, at the same time, from both altruistic and self-centred

goals. Taking the altruistic view, legal professionalism

demands, in the words of Roscoe Pound, a “spirit of public

service”. 4 On the other hand, the more pragmatic view is

based on the awareness of our profession’s dependence on

the larger public world. This is the understanding that the

powers of our self-governing institution will only be

tolerated by the public to the extent that our special social

status as professionals is justified by guaranteed

contributions of public service. The editors of Legal Ethics in

Canada referred to this kind of public-mindedness as the

“moral mandate” of the profession. 5

Indeed, the tension between self-preserving and community

serving goals is deeply embedded in our self-governing

institution. Given the inexorable adversarial nature of the

legal system, lawyers are directed to a radical kind of

individualism in a contest to trump individual rights with

other individual rights. At its worst this context “drives us

away from one another and closes minds.” 6 Furthermore,

this `conduct of controversy’ is most certainly reflected in

patterns of discourteous, thoughtless, and rude behaviour

towards one another. These all too common incidents of

uncivil behaviour represent moments where the balance

between individual and community has been disrupted. In

my view, if there are expressions of hostility, rudeness, or

arrogance between lawyers in the courtrooms, in the

boardrooms, or in correspondence, then I can no longer see

the actors as citizens of our professional civil society. For this

is behaviour which has forsaken the essential professional

call to participate with each other in balancing the tension

1 Law Society Act, R.S.O. 1990, c.L.8., and By-Laws of the Law Society of Upper Canada, pursuant to ss. 62(0.1) and ( 1) of the Law Society Act.

2

See, generally: Donald E. Buckingham et aI, Legal Ethics in Canada: Theory and Practice, (Toronto: Harcourt Brace & Company), 1996.

3

William A. Galston, "Liberal Virtues and the Formation of Civic Character", in Seedbeds of Virtue, eds. Mary A. Glendon and David Blankenhorn, (New York: Madison Books), 1995, at p. 51.

4

Roscoe Pound, "What is a Profession?", Notre Dame Lawyer, Vol. 19, No. 3 (March, 1944), pp. 203.

5

Donald E. Buckingham et al, Legal Ethics in Canada: Theory and Practice, (Toronto: Harcourt Brace & Company), 1996, at viii.

6

Annemarie Micklo, "Civil Law?", Student Lawyer, September 1999, pp. 31-33.


12 | ARCTIC OBITER

between individual excellence and public service. In short,

the measure of success for our self-governance is the degree

to which the tension between individualism and community

mindedness is moderated or balanced.

In this regard, I believe that the most fertile grounds for

moderation are available in these day-to-day interaction

between lawyers. Specifically, thoughtful, open-minded, and

mutually respectful interactions between legal professionals

represent quintessentially civil conduct, and result in an

amelioration of the fragmenting forces within our

community. In this way, civility must be recognized as an

instrumental value informing the conduct of citizenship in

the legal profession. At a bare minimum, courteous and

thoughtful interactions enhance our “work-a-day” life

experiences. More than that, however, civility is

instrumental in ensuring the maintenance of our

professional institution and furthering our profession’s

goals. Even beyond the goals of good intra-professional

relations and institutional efficacy, however, I will stress that

civility is a value that is embedded in the roots of our rule of

law. Basically, to understand the gist of my argument is to

understand how respect for each other amounts to respect

for the rule of law.

THE RELATION OF CIVILITY TO THE “GOOD OL’

DAYS”, PROFESSIONAL CODES, AND ETHICS

In order to understand what I mean by civility I thought it

might be helpful to outline how civility either relates or can

be distinguished from some related concepts, that is

manners, codes of conduct and ethics. Below I will put

forward a more progressive and publicly-minded model of

civility than that offered by the traditional conception of

professional etiquette. As well, I will consider the

connections between the concept of civility and the areas of

legal ethical scholarship and the codified rules of

professional conduct. While recognizing that there are

connections between these areas, I wish to emphasize that

the more abstract conceptions of ethics and/or rules do not

possess the profound grassroots potential to sustain selfgovernance.

GOOD OLD FASHIONED “ESPRIT DE CORPS”

In the early days of the profession, lawyers were expected to

conduct themselves as gentlemen and scholars. This was also

a time where only gentlemen and scholars had any chance of

becoming lawyers. Each legal professional looked a lot like

the other professional — male, white, and of upper class

origins. In 1960, Sir Thomas Lund, (the then Secretary of the

British Law Society) best described this classical model of

etiquette as follows:

...there is a breach of etiquette. That is really a

breach of professional good manners and the

only sanction for that in an extreme case would

be the exclusion of the offender from

membership of The Law Society on the ground

that he did not conform with the accepted

conduct and traditional behaviour of solicitors,

who are gentlemen. 7

Over thirty years later, John Honsberger published a call to

return to these gentler professional times. In doing so, he

noted that:

Civility is behaviour proper to the intercourse

of civilized people. Professions in classical

times were recognized as necessary elements in

the civilized state. An attribute of a profession

is a measure of unselfishness or freedom from

purely personal considerations. Traditionally

too, one had to show evidence of being a

“lady” or “gentleman” as well as a “scholar”

before being allowed into a profession. 8

To some degree I can empathize with this sentiment.

However, Honsberger saw civility in the profession as being

frustrated by two modern trends, i.e., increased numbers in

the profession and new ideas:

It was easier to learn and absorb the traditions

and civilities of the Bar and the profession

7 Sir Thomas Lund, C.B.E., A Guide to the Professional Conduct and Etiquette of Solicitors, (London: The Law Society), 1960 at p. 1.

8

John Honsberger, "Civility within the Profession", The Law Society Gazette, at p. 176.


JANUARY/FEBRUARY 2012 | 13

when both were smaller and when most would

know the D’Alton McCarthy’s and the John

Cartwright’s and they knew you and when

most of the profession in any centre could be

gathered and did gather together in a single

room for bar dinners. The problem of size is

now compounded by the movement we see in

our contemporary society towards “greater

openness”, “less rigidity” and “freedom from

authority” that produces an indiscriminate

freedom in which old values have been rejected

with no new ones to take their place. 9

With respect, this is my point of departure with

Honsberger’s views. I am concerned that simply calling for a

return to the good old days is, at its best, a little pious and

unrealistic. At its worst, it is reactive and undemocratic. On

the contrary, in order for our profession to mature, explicitly

inclusive civil values must be fostered within our civil

society. These new civil values will assist us in displacing the

ancient and socially inert values

associated with maintaining rigid

homogeneity within the profession.

For there is great richness in our

country’s burgeoning

diversity -- a richness

t h a t f l o w s f r o m

differences in ideas, life

e x p e r i e n c e s , a n d

approaches. From a

purely self-interested

point of view, therefore,

our profession must

embrace and reflect this

diversity in order to tap

this rich resource. On the

other hand, we are

r e s p onsible to r e main

meaningfully connected to the

larger society, which means

among other things, that our

professional responsibilities

includes ensuring that our community is representative of

the larger society. My call for civility, then, is a

contemporarily focused one recognizing that we need to

foster a kind of civility that is adept at embracing new

people, ideas and challenges. As Professor Allan Hutchinson

stated:

The cure for the perceived professional blight is

not a return to the values and standards of

yesteryear. On the contrary, these old

standards are part of the problem. What is

required is a fresh approach to legal ethics that

is sensitive to the changing shape and style of

modern legal practice, one that demands that

lawyers aspire to a more diverse and critical

self-image. Accordingly mindful that the

homogeneity of lawyers is beginning to be

replaced by more diversity in personnel... 10

PROFESSIONAL CODES OF CONDUCT

I was not surprised to discover that the tension between

competitive individualism and community

based service goals found expression in

the Law Society of Upper Canada’s

rationale for the newly revised Rules of

Professional Conduct. 11 Therein, the Law

Society stated that the purpose of the

rules is to “protect the public and to

provide guidance to lawyers while

also facilitating the creative practice

of law and assisting the profession

to remain competitive.” Seen in

this way, the codified rules are

obviously intended to moderate

the potentially fragmenting

forces of individualism in the

profession.

It is also worth noting that the

9

Ibid, at p. 178.

10 A. C. Hutchinson, Legal Ethics and Professional Responsibility,

(Toronto: Irwin Law) 1999, at p. 6.

11 The Law Society of Upper Canada, Rules of Professional Conduct,

adopted by Convocation June 22, 2000, effective November

1, 2000.


14 | ARCTIC OBITER

underlying framework for the new rules is one of a series of

relationships. Specifically, rule 2 is concerned with the

lawyer’s relationship to a client, rule 3 is directed at public

relations, rule 4 is directed to the lawyer’s relationship with

the courts, rule 5 deals with relations with employees, and

rule 6 is focused on relations to other lawyers. From my

perspective, this ‘relationship schema’ for the rules is

important and reflects positively on the intention of

the framers of the rules. As I have stressed, it is

essential that lawyers recognize that the quality

of every professional relationship is directly

tied to the quality of our self-governing

institution. Again, self-governance is not

activity reserved for the Bencher boardrooms, it

is the stuff of every interaction in the work.

Despite the recognition of these positive aspects of the rules

(even recognizing the specific provisions demanding

professional courtesy), I believe that codes are insufficient

mechanisms for fostering civility in our community. In

essence the code has a very different capacity than that of

civility. A code remains external or auxiliary to the highly

integrated and every-day location of civility. At best the code

provides a set of signposts about the obligations of citizens,

as well as a mechanism to deal with infractions.

Judith Martin, also affectionately and most respectfully

known as Miss Manners, commented that civility, etiquette

or good manners provide unwritten “rules, symbols, and

rituals of civilized life.” 12 Historically, manners predated any

institutional expression of law or rules and, as such, have

provided the basic building blocks of civil society. The key

recognition is that the practice of civility is undertaken on

the basis of every individual voluntarily restraining his or her

own impulses in favour of the greater good. Seen this way,

good manners reflect civic sensibilities and are integrated

into the personae of each civil actor, and are carried with

each citizen as a set of informing principles for every

possible interaction with another citizen. Thus, unlike black

letter regulations, civility is immediately available and

relevant in the most basic social processes. Furthermore, in

an ongoing and organic manner, civility places the emphasis

on personal responsibility rather than abstracting or offloading

this civic responsibility to black-letter regulations. 13

CIVILITY AND ETHICS

Typically, one does not equate civility with ethics. However,

one must recognize that civility is inextricably tied to the

value-focused or ethical context. If one accepts that

questions of ethics relate primarily to questions of

civilization, then questions of civility are in the

same order. To illustrate this point I have set out

the following dictionary definitions 14 for those

words with the root “civil”. Upon review, the

connection between good manners and civil society

become obvious, since the concepts of citizenship, politeness

and governance are all interconnected within this lexicon set.

civil: of or belonging to citizens; of ordinary

citizens and their concerns; polite, obliging,

not rude; of or relating to the state

civility: politeness; an act of politeness

civilization: an advanced stage or system of social

development; the act or process of making

or becoming civilized

civilize: bring out of a barbarous or primitive stage

of society; enlighten; refine and educate

Now, allow me to set out the dictionary definitions for ethic,

ethics and ethical:

ethic: the general character or ideals of character

of a race or group of people

ethics: the study of the general nature of morals

and of the specific moral choices to be

made by the individual in his relationship

with others; ...the rules or standards

governing the conduct of members of a

profession [emphasis added]

12 Judith Martin, "The Oldest Virtue", in Seedbeds of Virtue, supra, at note 3, p. 63.

13 See A.C. Hutchinson, supra, at note 10.

14 The Canadian Oxford Dictionary, (Toronto: Oxford University Press), 1998.


JANUARY/FEBRUARY 2012 | 15

ethical:

in accordance with the accepted principles

of right and wrong governing the conduct

of a group [emphasis added]

We see, therefore, that ethics are equally concerned with the

conduct of people, as well as issues of civil society or

governance.

Again, I wish to contrast the potency of civility to that of

ethical enquiry. While I most certainly support our

profession in asking and struggling with ethical questions,

the power of civility lies in its immediacy and relevancy to

the everyday context of the practice of law. If a lawyer

conducts herself in a thoughtful, open, and generally

considerate manner, you can bet that she is well on the way

to satisfying some high order ethical ideals. In this way, the

effectiveness of self governance readily and more frequently

depends on the everyday conduct of its members rather than

the more abstract process of ethical scholarship.

HOW IS CIVILITY INTEGRAL TO THE LEGAL

PROFESSION?

By way of contrasting civility to ethics, traditional notions of

professional etiquette and professional codes of conduct, I

have emphasized how civility is instrumental to our

institutional capacities by counter-balancing the

individualist drive with self-restraint and public spirit. 15 In

short, our capacity for civility corresponds precisely with our

capacity for dialogue, interaction and cooperation. In this

way, civility is instrumental to our intra-professional

capacities and efficacy. However, there is something even

more fundamental about civility. Specifically, the value of

civility is situated within the very bedrock of the legal

profession since it is embedded in the rule of law.

His Lordship, Mr. Justice Charles D. Gonthier, of the

Supreme Court of Canada, recently explored the value of

“fraternity” as a larger unspoken and unrecognized element

of our democracy and rule of law. 16 In defining fraternity,

Justice Gonthier cited American philosopher Ralph Barton

Perry as follows:

The full spirit of fraternity acknowledges the

just pride of others, and gives in advance that

which the other’s self-respect demands. It is the

only possible relation between two

selfrespecting persons. It does not imply

intimacy or friendship, for these must depend

upon the accidents of propinquity and

temperament; but it implies courtesy, fairmindedness,

and the admission of one’s own

limitations. It must underlie the closer relations

of family, neighborhood, or vocation; but it

must be extended to the broader and less

personal relations of fellow citizenship and

fellow humanity. It is the essential spirit of that

finer companionship which even kings have

coveted; but in a diffused and rarefied form it

is the atmosphere which is vital to a democratic

community. 17

From my point of view, therefore, the model of civility put

forward in this paper perfectly corresponds to Justice

Gonthier’s view of fraternity.

Indeed, in much the same way as discussed above, Justice

Gonthier also stressed how “fraternity” has acted to balance

the more individualistically focused constitutional principles

of liberty and equality. Moreover, he saw fraternity as a

communal force acting as a “glue that binds liberty and

equality to civil society”. 18 In this regard, he stated:

Liberty and equality are, in a way, antithetical

to fraternity. Whereas liberty and equality

emphasize the rights of the individual,

fraternity emphasizes the rights of the

community. Whereas liberty protects the

rightto live free from interference, fraternity

advances the goals of commitment and

15 Supra, note 3, at p. 38.

16 The Honourable Mr. Justice Charles D. Gonthier, "Fraternity: The Unspoken Third Pillar of Democracy", in McGill Law Journal, June 2000, pp. 567-589. Note: Justice Gonthier focused on “fraternity”

as it has been expressed in various constitutions and declarations throughout the world. He did not, therefore, draw the term from its overly colloquial or potentially sexist context.

17 Ibid, cited at p. 569, emphasis added.

18 Ibid.


16 | ARCTIC OBITER

responsibility, of making positive steps in the

community ....fraternity is essential to the

well-being of liberty and equality, because

only with shared trust and civic commitment

can one advance these goals of liberty and

equality. Further, the goal of fraternity is to

work together to achieve the highest quality of

individual existence. In short, liberty and

equality depend on fraternity to flourish. 19

Justice Gonthier then went onto set out how the “interrelated

threads” that makeup fraternity (empathy, cooperation,

commitment, responsibility, fairness, trust, and equity) have

“woven their way into the Canadian legal order.” 20

Specifically, this communal value is most

certainly provided for in s.I of the

Charter of Rights of Freedoms 21 , as well as

contained in s.23 (minority language

rights), and s.35 aboriginal rights. He

pointed out that even those Charter

rights which, at first glance,

appear to be essentially

individual liberty provisions,

have been interpreted in terms

of communal or civil values. In

particular, he noted that the

equality provision of s.15(1)

of the Charter has been

i n t e r p r e t e d s u c h t h a t t h i s

constitutional guarantee provides for

substantive rather than individuallybased

or formal equality. 22

Justice Gonthier also pointed out that

these values are equally alive in

private law. For example, he noted

that the l a w of f i duciary

responsibilities was one of the most

rapidly advancing areas of Canadian

law. From his perspective, fiduciary duties in a private or

commercial context act to promote an ethic of service while

also giving effect to society’s protection of society’s most

vulnerable. In addition, Justice Gonthier pointed to the

communal-minded aspects of the law of contract, by

drawing attention to the doctrines of unconscionability,

good faith, and the duty to mitigate. Again, these areas of the

law balance the individual rights of individuals or

corporations to contract with concepts of inclusion, fairness,

equity, and trust.

His Lordship also went on to outline the impact of fraternity

on trust law, and various aspects of family law. For the

purposes of this paper, I am not able to do justice to his indepth

analysis of these issues and I urge you to review his

paper. Suffice it to say, that fraternity or, for my part, civility

is rooted in the rule of law.

C o n s e q u e n t l y , b e y o n d t h e

instrumentality of civility in

preserving and sustaining our selfgoverning

institution, we,

as lawyers, are

responsible to

recognize civility as

worthy of respect as

an inherent component of

the rule of law. In turn, our

respect for this principle must

energize our relations with

the larger community.

Specifically, lawyers have a

civic obligation to educate

the public about these laws

and to act as role models in

promulgating respect for

the rule of law and the

administration of justice.

19 Ibid, emphasis added.

20 Ibid, at p. 572.

21 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

22 Ibid, at p. 577.


JANUARY/FEBRUARY 2012 | 17

FOSTERING CIVILITY

Any exercise of self-governance presupposes a process by

which the most instrumental and core values are fostered. 23

If institutions are to maintain the “pulse of life”, they must

be animated by constant reference back to a justifying

doctrine. 24 Consequently, the instrumental value of civility

must be repeatedly recognized, held out for respect, and

reaffirmed. In my view, there are four key components to the

fostering exercise: (i) recognizing that civility is indeed

integral to the rule of law and the operation of our selfgoverning

society, (ii) as a citizenry, insisting that civility

characterize the socialization process for new lawyers

(including legal education), (iii) supporting the development

of policies that will proscribe, mandate, and regulate

behaviour with a view to bolstering civility and respect for

the rule of law, and (iv) each of us taking personal

responsibility to conduct ourselves accordingly.

This last point, taking it personally, is what I want to

particularly emphasize in concluding this discussion. As I

have noted throughout this paper, the power of civility lies

in the possibility of its immediate application to every

interaction in our professional lives. All of us have the

capacity to crystallize any everyday professional interaction

into a full expression of our professional and legal ideals.

Professor Hutchinson made a similar point when he urged

lawyers to `take ethics personally’:

My most central recommendation is to urge

lawyers to take personal responsibility for what

they say and do in their professional capacities.

Although it seems a modest proposal, it has

traditionally been treated as a radical import

and implication. By rejecting the hackneyed

and unsustainable notion of an entirely

differentiated role, lawyers might begin to gain

the respect of the public and themselves. In the

same way that “good oratory is a good person

speaking well,” so good lawyering is a good

person acting well. As trivial and trite as this

may seem, it is the best advice that can be given

to the fledgling lawyer and the most

compelling injunction to the jaded lawyer. 25

Mr. Justice Frank Iacobucci, of the Supreme Court of

Canada, made a similar plea in his paper on professional

responsibility. Therein, he challenged the profession as

follows:

I want to close with an old and well-known

story that I find particularly inspiring. Many

years ago, a group of workers were busy at a

construction site. A passer-by asked them what

they were doing. The first worker said, “I’m

making $5.00 a day.” The second worker

replied, “I’m cutting stone.” But the third

worker replied: “I’m building a cathedral.”

We must re-discover law as a calling, as

rendering high service to our fellow men and

women. Again I challenge you: do you have the

courage to build cathedrals and to be proud of

it?” 26

I most heartily endorse the retelling of this story as an

inspiration and a challenge to our profession, however and

with respect, I want to take licence and change the words of

the third worker to read “Together, we’re building a

cathedral”.

Michael Eizenga is Co-Chair of the Bennett Jones Class Actions Practice

Group. He is also Past President of the Advocates’ Society, Founding Co-

Chair of the Institute for Civility and Professionalism, and teaches Class

Actions at the University of Western Ontario. Among other published

works, he is co-author of Class Actions Law and Practice.

This paper was originally presented at the Civility in the Legal Profession

Conference (Advocates’ Society - October 31, 2000).

*The author wishes to thank Julie Lee for her assistance in the

preparation of this paper.

23 James Q. Wilson, “Liberalism, Modernism, and the Good Life”, in Seedbeds of Virtue, supra, at note 3, p. 33.

24 George F. Will, “Statecraft as Soulcraft”, (New York: Simon & Schuster, Inc) 1983, at p. 18.

25 Supra, at note 10, p. 195, emphasis added.

26 The Honourable Mr. Justice Frank Iacobucci, “The Merchant Lawyer”, in Legal Ethics in Canada: Theory and Practice, supra, at note 2, at p. 2 19.


18 | ARCTIC OBITER

FUTURE CONCEPTS

Learning to Run

by Jordan Furlong (Law21.ca)

There’s an old expression among professional sports

coaches: “You can’t teach speed.” It’s usually meant to

indicate that there are things you can train athletes to do well

(skills) and things that are simply God-given (raw talent),

and it encourages the traditional view that talent is more

valuable.

I’ve come to believe differently. In most markets, athletic and

otherwise, there’s no shortage of talent: the physical and

mental attributes of today’s new recruits surpass what most

members of previous generations could boast. What’s

missing, in many cases, are the skills, the knowledge of how

to deploy those talents to maximum effect as a performer.

Almost every good athlete coming out of high school and

college can run fast; relatively few, however, learn to run

well.

These thoughts came to me while reading (and commenting

upon) an excellent post by UK law professor John Flood, in

which he laments the complete disconnect between the legal

education system and the rapidly evolving profession into

which that system’s graduates will be deposited. If you

asked your average law school professor to identify names

like Axiom, Acculaw, Lawyers On Demand or any leading

LPO, as John suggests, they wouldn’t know what you were

talking about.

Law schools are so far behind the legal market’s

evolutionary curve (and apparently so uninterested in

catching up) that they seem extremely unlikely to lead

conversations towards a better legal education and training

system. But if so, where do we start fresh? I’d like to suggest

that we begin by re-examining some fundamental

assumptions about “talent” versus “skills” in the legal

profession.

Virtually everyone in law school and the legal profession

today has talent: some combination of raw intelligence,

analytical and logical adeptness, and/or communication

ability. That’s primarily thanks to the undergraduate

education systems that produced these lawyers, the Law

School Admissions Test that judges them, and the law school

admission personnel who value these criteria head and

shoulders above any others.

So the talent is there. Virtually everyone who’s in or

preparing to enter the legal profession has speed. But not

everyone in the legal profession can run well. And the newer

you are, the more this is true. It’s almost universally the case

for law students and new lawyers, in fact, who have received

almost no training to help turn their talents into skills with

which they can serve clients and make a living. (And I don’t

just mean “practice” training; the tools with which you

become a great lawyer include a really solid grounding in

jurisprudence, legal history, and ethical philosophy, and not

many law degrees can say they deliver that.)

Law schools haven’t been much help in this regard; but in

fairness, it really wouldn’t have made much difference even

had they spent the last 20 years teaching students “how to be

lawyers.” That’s because the market for which those fantasy

schools would have been preparing students is quickly

disappearing. Nobody (not least me) can say with certainty

what law practice in 2026 will look like, but it seems a pretty

safe bet that it’s not going to look remotely like it did in 1996.

Just as well, then, that we have mostly raw talent that

doesn’t need to unlearn old habits before acquiring new

ones.

But we still need someone to lead the way in the new skillsacquisition

process for the legal profession — and that leads

me to think there’s a huge market opportunity, right now,

for a legal skills training company geared towards early 21stcentury

law practice. Never mind preparing students for


JANUARY/FEBRUARY 2012 | 19

Skadden or Linklaters; prepare them for Axiom, Lawyers On

Demand, Clearspire, Quality Solicitors, Eversheds Legal, and

similar operations that look like they’ll be offering an

increasing percentage of legal jobs over the next couple of

decades.

But — and this is important — we need to skill lawyers up,

not down. We don’t want to be developing data entry clerks

or automated-contract proofreaders here, and tomorrow’s

best legal employers won’t be hiring those people. We need

to train new lawyers in leadership, problem solving, project

management, cultural fluency, emotional intelligence,

technology, entrepreneurship, and other traits that have a

decent shot at being the skills future lawyers will need. Give

them the tools with which they can harness their talent and

take it into any high-value or socially meaningful career,

whether it involves the sale of legal services or not.

Law schools, as mentioned, might as well not be in this

discussion. I don’t have a great deal of confidence in the

practicing bar, either, especially given CLE administrators’

continued fondness for offering legal updates and calling it

“professional development.” These are yesterday’s

approaches; we need to find tomorrow’s. Solo Practice

University remains a powerful model for this sort of

innovation; we need more organizations interested in

training lawyers to be gainfully and usefully engaged as

lawyers in the decades to come. We need far greater use of

true, supervised, mentor-based apprenticeship, because

“doing” has a multiplier effect on “training.”

What we need, essentially, is a new breed of coaches who

can deliver future-oriented professional development. There

is no lack of opportunity awaiting them. There are thousands

upon thousands of lawyers out there who can run fast but

aren’t getting anywhere. They need someone to teach them

how to run well.

Jordan Furlong is a partner with Edge International, a senior consultant

with Stem Legal, and an award-winning blogger at “Law21: Dispatches

from a Legal Profession on the Brink” (http://law21.ca).

NWT LEGISLATIVE NEWS

by Kelly McLaughlin, Acting Director, Legislation Division, GNWT Justice

THE NWT LEGISLATIVE NEWS IS

NOT A COMPREHENSIVE REPORT

OF LEGISLATIVE ENACTMENTS.

ONLY ITEMS CONSIDERED TO BE

OF INTEREST TO THE BAR ARE

LISTED.

LEGAL PROFESSION ACT

The Rules of the Law Society of the

Northwest Territories were amended by

four regulations, each approved at the

annual general meeting of the Law

Society on December 3, 2011. The four

amendments were registered on

December 13, 2011 as R-106-2011, R-

107-2011, R-108-2011 and R-109-2011,

respectively.

COMMISSIONER’S LAND ACT

The Commissioner’s Land Withdrawal

Order, registered as R-025-2010 and

summarized in the April 2010 NWT

Legislative News, was amended by

regulations made on December 16,

2011 and registered as R-110-2011. The

repeal date set out in the order was

modified from December 31, 2011 to

June 30, 2012.

IT’S ALL ONLINE!

Find Certified Bills, Consolidations of Acts, Regulations and Court Rules, and the Northwest

Territories Gazette at the GNWT website:

http://www.justice.gov.nt.ca/Legislation/SearchLeg&Reg.shtml


20 | ARCTIC OBITER

NWT DECISION DIGEST

by Maureen McGuire, Appellate Counsel, Alberta Justice

COURT OF APPEAL

PROPERTY – TRESPASS – SETTING

ASSIDE EFFECTIVE DEFAULT

JUDGMENT

Christensen v NWT

2012 NWTCA 01 (CanLII) | January 13, 2012

Presiding: Justice P.W.L. Martin

Justice P.A. Rowbotham

Justice B.K. O’Ferrall

For the Appellants: J.R.W. Rath

For the Respondent: I. Blackstock, S. Kay

The appellants, members of the Fort

Resolution First Nation treaty group,

moved two mobile homes onto land

north of Yellowknife eleven or twelve

years ago and have lived there ever

since.

The Commissioner brought an

application for possession in 2010. At

the hearing, one appellant appeared,

advised that she had treaty rights but

that she was unable to find a lawyer to

represent her.

She had spoken to

lawyers but many had a conflict of

interest. The Chambers judge ruled she

had had ample time to put her case

before the court with evidence, and

granted the Commissioner an order for

vacant possession. On the appeal from

that decision, fresh evidence was

admitted on consent.

The fresh

evidence explained the difficulty the

appellants had in retaining counsel, and

outlined arguable defences they would

make if the order were set aside.

Appeal allowed – The fresh evidence

satisfied the test for setting aside a

default judgment.

Although the

appellant was in court when judgment

was granted, the judgment was

“effectively a judgment granted in

default of a defence.”

adjudication on the merits.

There was no

The

appellants put forward evidence of the

difficulty they had in retaining counsel

to properly represent them. It appeared

they may have an arguable defence.

And there was no evidence of prejudice

to the Commissioner.

STATUTES CITED

Commissioner’s Land Act, RSNWT 1988, c C-11

CASES CITED

Hover v Metropolitan Life Insurance Company, 1999

ABCA 123

CRIMINAL LAW – SENTENCING –

JUDGE EXCEEDING JOINT

SUBMISSION

R v Grossetete

2012 NWTCA 02 (CanLII) | January 25, 2012

Presiding: Justice J.E. Côté

Justice C. Hunt

Justice F.F. Slatter

For the Appellant: S.J. Fix

For the Respondent: D. Rideout

The appellant pleaded guilty to two

counts of assault and one of uttering

threats. One assault involved punching

someone on the street.

The other,

committed while on release for the first,

involved punching his girlfriend twice

in the face. While being arrested on the

second assault, he threatened a police

officer with death. The appellant had a

lengthy criminal record including

related offences. A joint submission for

a global sentence of nine months’

imprisonment, less 83 days for pretrial

custody, was proposed by counsel. The

sentencing judge indicated his

discomfort with the proposed sentence

and allowed counsel the opportunity to

make further submissions.

The

sentencing judge rejected the joint

submission and sentenced the appellant

to four months for the first assault, nine

months consecutive for the second, and

three months consecutive for the

threats. He stated pretrial custody was

taken into consideration without further

reduction.

Appeal allowed – The sentencing judge

followed the proper procedure by

communicating his disquiet with the

joint submission and listening to

additional submissions. However, the

sentence imposed was not fit. While it

was appropriate to impose a heavier

sentence for the second assault than for

the first, under all the circumstances a

fit sentence would have been six

months rather than nine.

The

sentencing judge also erred in failing to

give credit for pretrial custody. Global

sentence reduced to 13 months less 83

days.

CASES CITED

R v GWC, 2000 ABCA 333

SUPREME COURT

FAMILY LAW – CHILD CUSTODY –

INTERIM ORDER VARYING A

SEPARATION AGREEMENT

B (JC) v W (PJB)

2011 NWTSC 62 (CanLII) | December 20, 2011

Presiding: Justice K. Shaner

For the Applicant: A. Duchene

For the Respondent: M. Nightingale

Application by the father for interim

variation of the custody and access

provisions of an agreement. The parties

lived together between 2003 and 2006

and have two children. In a separation

agreement finalized in 2009, the parties

agreed to joint custody of the children

with the mother having day-to-day care

and the father having generous and

specified access. Despite the agreement,


JANUARY/FEBRUARY 2012 | 21

THE DECISIONS IN THIS DIGEST ARE LINKED TO THE ARCHIVED DECISIONS ON

CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY AVAILABLE AT THE GNWT

DEPARTMENT OF JUSTICE WEBSITE: http://www.justice.gov.nt.ca/

the younger of the two children had

been living with the father in Quebec.

While there, the younger child disclosed

that his older brother had subjected him

to sexual acts while in Yellowknife and

possibly also in Quebec. Both parents

took steps to address that issue. In the

spring of 2011, the mother learned of

the father’s separation from his

girlfriend. In response, the mother went

to Quebec and removed the child from

the father’s care without notice or

consultation.

She was concerned the

father had become unstable, depressed

and suicidal. The father applied for an

interim order for day-to-day care and

control of that child.

Application granted – The sole criterion

on an interim custody application is the

best interests of the child. Because the

request was to vary an agreement rather

than an order, it was unnecessary for

the applicant to demonstrate a material

change of circumstances as a threshold.

The agreement was an important

c o n s i d e r a t i o n , b u t w a s n o t

determinative.

Although the father

suffered from depression, it did not

appear to have interfered with his

ability to be a responsible parent. The

mother’s ability to provide a safe

environment for the child was a major

concern. Although she implemented a

number of rules in her house to protect

the child from his older brother, the

court found those rules did not

sufficiently protect the child, and the

risk to him was unacceptable.

In

addition, the mother’s unwillingness to

facilitate and encourage access between

the child and his father was

unreasonable and not consistent with

the child’s best interests.

STATUTES CITED

Children’s Law Act, SNWT 1997, c 14

CASES CITED

Cater v Cater, 2000 NWTSC 34

Gordon v Goertz, [1996] 2 SCR 27

CRH v BAH, 2005 BCCA 277

AL v DK, 2000 BCCA 455

Popoff v Popoff, 2001 NWTSC 14

ABORIGINAL LAW – ELECTIONS –

CORPORATIONS – ELECTION OF

DIRECTORS AND OFFICERS –

JURISDICTION OF THE COURT TO

PROVIDE DIRECTIONS

Menacho v Tulita Land Corp

2012 NWTSC 1 (CanLII) | January 4, 2012

Presiding: Justice L. Charbonneau

For the Applicant: D. Lefebvre

For the Respondent: no appearance

Application by the returning officer for

directions and determinations with

respect to various concerns arising from

the election of the Tulita Land

Corporation board of directors.

The

Tulita Land Corporation operates under

the Sahtu Dene and Metis Land Claim

Agreement.

The by laws of the

corporation require an election of

officers and directors every two years,

on the third Monday of August. The by

laws direct the returning officer to mail

out ballots to voting members living

outside Tulita, together with

instructions to return the ballot no later

than the second Monday in August.

Due to a postal strike, the 2011 election

was delayed until September 26, 2011.

However ballots were not mailed out in

sufficient time for voters to male them

back before the election.

In addition,

the instructions sent with the ballots

were not in accordance with the by

laws.

New Election Ordered - Although the

corporation’s by-laws provide no

mechanism to deal with issues arising

from elections, the fact that the Canada

Corporations Act defines “court” as this

court supports the notion that the

Supreme Court has jurisdiction to deal

with the matter.

215 voters were

directly affected by the late mailing of

the packages, and there is a very real

possibility that the late receipt of the

election packages discouraged at least

some from exercising their right to vote

in the election. Even a few additional

votes could have affected the results for

some of the positions. The late mailing

was an irregularity that flawed the

entire process.

STATUTES CITED

Canada Corporations Act, RSC 1970, c C-32

CASES CITED

Keefe v Pukanich, 2007 NWTSC 90

CRIMINAL LAW – SUMMARY

CONVICTION APPEALS –

ADEQUACY OF REASONS –

SENTENCING PROCEDURE

R v Omilgoituk

2011 NWTSC 63 (CanLII) | December 21, 2011

Presiding: Justice L. Charbonneau

For the Appellant: C. Wawzonek

For the Respondent: D. Praught

The appellant was found guilty after

trial of a number of violent offences. On

appeal, he argued the reasons for

judgment were inadequate and the trial

judge misapprehended evidence.


22 | ARCTIC OBITER

Further, he challenged a conviction for

threatening on the basis that the

allegedly threatening words, “take care

of” or “deal with” were too ambiguous

to support a conviction. He also

appealed against his sentence, arguing

that concurrent sentences should have

been imposed for some of the charges,

a n d t h e t o t a l s e n t e n c e w a s

disproportionate and excessive.

Appeal from conviction dismissed –

Where the sufficiency of reasons is at

issue, the appellate court must

approach from a stance of deference.

The question is not whether the reasons

are perfect, but rather, whether they are

sufficient, in the specific case at hand, to

fulfil their purpose. The object of

reasons is to demonstrate why the judge

made the decision, not necessarily to

explain every step of the process. In

this case, the trial judge’s reasons,

although not perfect, when examined in

the context of the full record of

proceedings, were adequate. Any

misapprehension of the evidence did

not impact on the trial judge’s reasoning

and did not compromise trial fairness.

The trial judge concluded that there was

no ambiguity and therefore no

reasonable doubt about the meaning of

the threatening words. Appellate

interference would only be appropriate

if the trial judge’s conclusion was

unreasonable. It was not.

Appeal from sentence dismissed - A

sentencing judge’s decision to impose

concurrent or consecutive sentences is

to be approached with the same

deference as the decision as to the

length of sentence. The sentencing

judge in this case did no analysis as to

whether any of the sentences should be

concurrent. The correct approach is to

examine what a fit sentence is for each

offence, and determine whether the

sentences should be consecutive or

concurrent. If consecutive sentences are

imposed, then the totality principle

requires examination of the global effect

of the sentence. While the sentencing

judge’s approach was flawed in that

respect, the total sentence imposed was

not inappropriate.

CASES CITED

R v Sheppard, 2002 SCC 26

R v REM, 2008 SCC 51

R v Clemente, [1994] 2 SCR 758

R v Bunbury, 2008 YKTC 15

R v Abdallah, 2002 ABPC 126

R v Shropshire, [1995] 4 SCR 227

R v McDonnell, [1997] 1 SCR 948

R v Taylor, 2010 MBCA 103

CRIMINAL LAW – SENTENCING –

SEXUAL ASSAULT ON

UNCONSCIOUS VICTIM

R v VC

2011 NWTSC 61 | November 28, 2011

Presiding: Justice L. Charbonneau

For the Crown: B. MacPherson

For the Defence: T. Bock

The 30 year old aboriginal offender

pleaded guilty to sexually assaulting his

20-year-old neice.

The victim had

consumed alcohol to the point of

blacking out.

The offender then had

sexual intercourse with her in her

unconscious state.

Sentence of two years less one day

imprisonment in addition to eight

months’ presentence custody imposed –

The sexual assault of a woman who is

sleeping or passed out is a common

occurrence in this jurisdiction. Because

of the prevalence of this type of crime,

its seriousness and the harm it does, the

paramount sentencing principles are

deterrence and denunciation. For a

sexual assault involving full intercourse,

the courts should start considering a

range of three years’ imprisonment and

then increase or decrease the sentence to

give effect to any mitigating or

aggravating factors. The victim’s

vulnerable passed out state was

aggravating. There was an element of

breach of trust because the accused was

the victim’s uncle. The offence occurred

in the victim’s grandfather’s home – a

place where she should have been able

to expect protection and not abuse. The

offender’s criminal record, including

other crimes of violence, was also

aggravating. The most significant

mitigating factor was the offender’s

guilty plea. A guilty plea is one way a

person can show they are truly sorry for

what they have done. Also, trials are

costly and can be divisive in a

community. A guilty plea in a small

community can be the start of a healing

p rocess f o r a l l i n v olved, a s

acknowledgment of responsibility on

the part of the wrongdoer is an

important first step. In this case a

sentence of three years’ imprisonment

would not be out of line. However,

after credit for eight months’

presentence custody, the total sentence

would be 28 months which is close

enough to two years to justify restraing

and keep the sentence within the

territorial range. The potential isolation

the offender would experience in a

southern penitentiary would be

counterproductive as far as his eventual

rehabilitation.

CASES CITED

R v Lafferty, 2011 NWTSC 60

R v Kodzin, [2011] NWTJ No 8 (SC)


JANUARY/FEBRUARY 2012 | 23

R v Beaverho, [2009] NWTJ No 69 (SC)

R v Bird, [2005] NWTJ No 62 (SC)

R v AJPJ, 2011 NWTCA 2

FAMILY LAW – DIVORCE – DIVISION

OF MATRIMONIAL PROPERTY

Heron v Heron

2012 NWTSC 3 (CanLII) | January 6, 2012

Presiding: Justice L. Charbonneau

For the Petitioner: J.R. Scott

For the Respondent: B. Rattan

The petitioner applied for an order for

the release of nonies held in trust to

satisfy a tax debt, or alternatively

permission to sell an asset which is also

subject to the divorce litigation. Canada

Revenue Agency had taken steps to

enforce the debt and obtained a writ of

execution and seizure against the

petitioner’s business. If the writ were

acted upon, it would effectively shut

down his business. The respondent was

not opposed to allowing the sale

transaction to proceed.

granted.

Application

FAMILY LAW – CHILD CUSTODY –

EX PARTE APPLICATION

Hamilton v Hamilton

2012 NWTSC 4 | January 6, 2012)

Presiding: Justice L. Charbonneau

For the Applicant: J.R. Scott

The parties have been separated since

November 2011 and have been sharing

the parentingof the four year old child.

The mother took the child during the

holiday season without the applicant’s

consent.

Since then, the mother has

contacted the applicant but has refused

to disclose her whereabouts.

Order for immediate return of the child

to Yellowknife granted – It is only in

exceptional circumstances that the

Court entertains ex parte applications,

but where it appears one parent has

taken unilateral action with respect to a

child without the consent of the other,

the Court will intervene, particularly

where that unilateral action is the

removal of the child to another

jurisdiction.

FAMILY LAW – DIVORCE

Hawker v Hawker

2012 NWTSC 6 (CanLII) | January 10, 2012

Presiding: Justice K. Shaner

Petitioners: self-represented

The parties brought a joint request for

the mother to have sole custody of the

two children of the marriage, for the

father to have no access, that no child

support be paid, and that any arrears of

child support be expunged. The parties

had entered a written agreement

confirming this arrangement, including

a provision that the mother never

pursue child support in the future.

There is no indication either party had

legal advice on the agreement.

Application stayed – The Divorce Act

imposes a duty on the court to satisfy

itself that reasonable arrangements have

been made for the support of the

children, having regard to the child

support guidelines. If it is not so

satisfied, the court is obliged to stay the

granting of the divorce judgment until

that is shown. The court must consider

the reasonableness of arrangements

regardless of any agreement between

the parties. Parents may not bargain

away the child’s right to support.

STATUTES CITED

Divorce Act, RSC 1985, c 3 (2 nd Supp)

CASES CITED

F (RD) v F (SL), 1987 CanLII 2708 (BC SC)

MacDonald v MacDonald, 2010 NWTSC 34

Richardson v Richardson, [1987] 1 SCR 857

CIVIL PROCEEDURE – DISMISSAL

FOR DELAY – RULE 327 OF THE

RULES OF THE SUPREME COURT OF

THE NORTHWEST TERRITORIES

943639 NWT Ltd v Dominion of

Canada General Insurance

2012 NWTSC 12 (CanLII) | February 3, 2012

Presiding: Justice K. Shaner

For the Defendants: C.D. Boyer, J. Williams

For the Plaintiffs: R. Kasting

The Plaintiffs filed a statement of claim

in December 1999.

A statement of

defence was filed in April 2000.

Examinations for discovery were held

in 2003 and 2005, at which time the

p l a i n t i f f s g a ve a n u mber of

undertakings.

Nothing further

happened until late 2008 when the

defendents applied to strike the action

for delay.

Those applications were

dismissed but the plaintiffs were

ordered to provide answers to the

undertakings, which they did in

February 2009.

The defendents now

apply to dismiss the action under Rule

327(1)(b) on the basis that for five or

more years no step has been taken that

materially advances the action.

The

defendants argue the compelled action

in 2009 is not such a step.

Application granted and action

dismissed – Steps taken under

compulsion are still steps.

The key

question is whether or not supplying

answers to undertakings materially

advanced the action.

In most cases,

complying with undertakings and

concluding the procedural step of

discoveries may be a step that


24 | ARCTIC OBITER

materially advances the action.

Therefore, the five year clock has not yet

run.

However, under Rule 327(1)(a)

dismissal is discretionary upon

consideration of three questions: (a) has

there been inordinate delay? (b) is the

delay inexcusable? And (c) is the

defendant likely to be seriously

prejudiced by the delay? The applicant

bears the onus of proving the delay is

inordinate and inexcusable, and then

serious prejudice is presumed.

The

delay in this case is inordinate. The case

has moved slowly and is going into its

thirteenth year. The plaintiffs bear the

onus for moving the matter to trial. The

plaintiffs have offered no reasons for

the delay. It is inexcusable. The

plaintiffs argued this is a “paper” case,

which implies that witnesses’ memories

may be less critical.

Something more

concrete than that is required to

displace the presumption of serious

prejudice.

CASES CITED

Alberta v Morasch, [2002] AJ No 41 (QB)

Muckpaloo v Mackay, 2002 NWTSC 12

Kuziw v Kucheran Estate, 2000 ABCA 226

Gresiuk v Wawanesa Mutual Insurance Co, [2002]

AJ No 948 (QB)

CRIMINAL LAW – SENTENCING –

SEXUAL ASSAULT CAUSING BODILY

HARM

R v Lafferty

2012 NWTSC 9 (CanLII) | January 6, 2012

Presiding: Justice R. Foisy

For the Crown: D. Rideout

For the Defence: J. Bran

Sentencing of a 44 year old sexual

offender after trial by jury. The victim,

in her own home, was beaten to the

point where she was unconscious.

When she retained consciousness, the

offender was having sexual intercourse

with her.

The offender had 34 prior

convictions, including eight related to

violence and one prior sexual assault.

Offender sentenced to five years’

imprisonment, less 8½ months credit for

pretrial custody – Denunciation and

deterrence must be paramount.

CRIMINAL LAW – SENTENCING –

SEXUAL ASSAULT

R v Elias

2012 NWTSC 13 (CanLII) | February 3, 2012

Justice W.M. Darichuk

For the Crown: A. Paquin

For the Defence: J. Bran

Sentencing of 27 year old sexual

offender convicted after trial.

The

offender had an extensive criminal

record. The sexual assault was a major

sexual assault.

three years’ imprisonment.

The starting point is

Offender sentenced to three years’

imprisonment in addition to 5 ½

months alread served.

CASES CITED

R v Kodzin, [2011] NWTJ No 8 (SC)

R v Arcand, 2010 ABCA 363

R v Sandercock (1985), 22 CCC (3d) 79 (Alta CA)

MECHANICS LIEN – PRIORITY –

LIMITATION PERIOD –

UNDISCLOSED PRINCIPAL RULE

Fisgard v Bond Street

2012 NWTSC 11 (CanLII) | February 3, 2012

Presiding: Justice V. Schuler

For the Plaintiff: D. McNiven

For RTL Robinson Enterprises Ltd.: P. Roberts

For the Defendants: no appearance

The defendant, Bond Street, purchased

property in Yellowknife for the

development of condominium lots.

RTL did work for Bonds Street in 2006

and until October 2007. Bond Street

made no payments for the work done

by RTL after May 2007. In April 2007,

Bond Street borrowed $3 million from

the plaintiff, Fisgard, giving security

including a mortgage over the property.

The money was advanced in May 2007

and the mortgage registered on title July

27, 2007. RTL filed liens against the

property in September, November and

December 2007, and in January 2008

RTL commenced a civil action against

Bond Street for the monies owed.

Fisgard was not named as a party to

that action. In July 2008, RTL took out a

consent judgment in the amount of

$751,364.09 and obtained a writ of

execution. Bond Street also defaulted

on the mortgage, and in January 2009

Fisgard commenced foreclosure

proceedings, obtained an order in May

2009, and sold the property in

December 2009. A term of the Order

Confirming Sale required funds be paid

into court in place of the registered

claims of RTL and another lien

claimant. The Order preserved

Fisgard’s right to dispute the validity

and priority of the liens.

Application by RTL dismissed – In

RTL’s 2008 action, Fisgard was not

named as a defendant, nor did RTL

claim priority over Fisgard’s mortgage

in that statement of claim. Section 24(1)

of the Mechanics Lien Act states a lien

ceases to exist against a prior mortgagee

if proceedings are not commenced in

the Supreme Court against the

mortgagee within 90 days. This

limitation period cannot be considered a

mere procedural requirement. The

purpose of s. 24 is to require prompt

action by the lien claimant to enforce its


JANUARY/FEBRUARY 2012 | 25

lien against the land and any priority it

claims over other encumbrances against

the land. No special circumstances exist

to excuse compliance with the limitation

period. The curative provision of s. 10

of the Act should not be used where the

defect is failure to bring an action

within the applicable limitation period

against the mortgagee against whom

priority is claimed. RTL argued that

Fisgard was the undisclosed principal

of Bond Street and therefore the

proceeding against Bond Street was a

proceeding against Fisgard. However,

the relevant time for determining that a

principal is undisclosed is at the time of

contracting between the parties.

Further, when an agent makes a

contract for an undisclosed principal,

the third party can sue either the agent

or principal, but cannot obtain

satisfaction from both. Taking

judgment against one extinguishes the

third party’s rights against the other.

The undisclosed principal rule therefore

has no application to this case.

STATUTES CITED

Mechanics Lien Act, RSNWT 1988, c M-7

Mechanics Lien Act, RSO 1970, c 267

CASES CITED

Modern Const Ltd v Maritime Rock Products Ltd,

[1963] SCR 347

Warwick v Sheppard, 1917 OJ No 213 (CA)

Roch Lessard Inc v 167684 Canada Inc, [1995]

NWTR 113 (SC)

Pitts v Steen, [1981] 3 WWR 289 (NWTSC)

Bank of Montreal v Haffner (1884), 10 Ont App R

592

Cole v Hall, [1889] OJ No 294 (CA)

Hubert v Shinder, [1952] OWN 146 (CA)

Glebe Electric Ltd v 595524 Ontario Ltd (1991), 78

DLR (4 th ) 579 (Ont Ct J (Gen Div))

Robock v Peters (1900), 13 Man R 124 (KB)

North York Steel Fabricators Ltd v City of Hamilton

(1980) 27 OR (2d) 456 (CA)

TERRITORIAL COURT

CRIMINAL LAW – SENTENCING –

POSSESSION OF CHILD

PORNOGRAPHY – VOYEURISM

R v D (MD)

2011 NWTTC 20 (CanLII) | October 5, 2011

Presiding: Judge R. Gorin

For the Crown: J. Patterson

For the Defence: L. Sebert

Sentencing of 50 year old offender with

no prior criminal record, following his

guilty plea on charges of possessing

child pornography and voyeurism (x2).

The offender on two occasions

surreptitiously video recorded his

victims (his stepdaughter and her seven

year old son) in his bathroom. He was

also found in possession of 1,888 digital

images of child pornography, including

a number of images of children engaged

in intercourse with adults. A number of

digital video recordings were found,

including two movies depicting adults

engaged in sexual intercourse with

children. One image was of an adult

male having intercourse with a child

held out and appearing to be six years

of age. In addition, over 1,000 child

pornography and incest stories were

found. The offences were discovered

because the offender left a thumb-drive

containing some of these images at

work. A fellow employee observed the

images and reported him to police. The

Crown proceeded summarily on all

charges. The offender pleaded guilty at

an early stage and was cooperative with

the police.

Offender sentenced to 12 months jail for

possessing child pornography, and

three consecutive months for the

voyeurism offences, followed by three

years’ probation. – The sentences

imposed must adequately reflect

society’s condemnation of the crime and

adequately express society’s abhorrence

of the possession of such repugnant

material. People who might be tempted

to possess child pornography must be

deterred from doing so. If there were


26 | ARCTIC OBITER

not the demand for child pornography

there would not be the harm to children

that results from its production.

Children are victimized in the

production and dissemination of the

pornography possessed. Children will

also be victimized in the future due to

the demand demonstrated through the

present possession of such material.

Where the level of depicted violence is

higher the offence becomes more

serious.

CRIMINAL LAW – IMPAIRED

DRIVING

R v Hayward

2012 NWTTC 1 (CanLII) | December 13, 2011

Presiding: Judge R. Gorin

N. Sinclair, for the Crown

R. Gregory, for the Defence

The accused testified and admitted to

consuming alcohol but denied that his

ability to operate the motor vehicle was

impaired. The arresting officer,

however, testified the accused was quite

intoxicated. Other witnesses provided

corroboration to one version or the

other to varying degrees.

Video

recordings of the accused in the

cellblock area appeared more consistent

with him being sober.

Accused acquitted – Simply being

“under the influence of” or “affected by

alcohol” is not enough.

An essential

element of the offence charged is

impairment of the ability to drive. This

was a credibility case. It is not simply a

case of deciding who is more likely

telling the truth.

If the accused is

believed he must be found not guilty. If

he is not believed but his evidence

leaves a reasonable doubt as to his guilt

he must be found not guilty. And even

if his evidence is rejected, the trial judge

must examine all of the evidence to

determine whether it has been proved

beyond a reasonable doubt that he is

guilty.

While the arresting officer’s

testimony was believable, the standard

of proof beyond a reasonable doubt is

high.

The Crown is not required to

prove guilt to an absolute or scientific

certainty.

However the standard of

proof beyond a reasonable doubt lies

closer to that of scientific certainty than

mere probability. This was a close case.

The trial judge was not sure the

accused’s ability to operate a motor

vehicle was impaired.

CASES CITED

R v Stellato, [1994] SCR 478

R v Andrews (1996), 104 CCC (3d) 392 (Alta CA)

CRIMINAL LAW – SENTENCING –

CREDIT FOR PRE-SENTENCE

CUSTODY – SECTIONS 719(3) AND

(3.1) OF THE CRIMINAL CODE

R v Desjarlais

2012 NWTTC 2 (CanLII) | January 5, 2012

Presiding: Judge R. Gorin

For the Crown: J.B. Deschamps

For the Defence: L. Sebert, B. Rattan

The offender was sentenced to four

months’ imprisonment.

At issue was

the credit to be alloted for the time the

offender spent in custody prior to

sentencing.

The offender argued that

druing the period she was remanded in

custody she could not earn the 1/3

statutory remission for which sentenced

inmates are eligible, and she should

therefore receive credit for one and onehalf

days for each day she was detained

since such credit would mirror the

credit she could have earned serving a

jail sentence.

Credit of one and one-half days for each

day spent in presentence custody given

– The wording of s. 719(3.1) clearly

c o n t e m p l a t e s t h e i n d i v i d u a l

circumstances of each person detained

pending their sentencing.

The

possibility or probability of an average

sentenced inmate having his jail-term

reduced is merely speculative and of no

value. The words “if the circumstances

justify it” are broad in scope.

P a r l i a m e n t h a s n o t r e q u i r e d

circumstances that are “exceptional”. If

an accused is able to establish that her

behaviour during her detention was

such that, were she a sentenced inmate,

she would in all likelihood have

received a reduction of the jail-term

imposed on her, she should receive

credity that mirrors this reduction.

Allowing for increased credit under

such circumstances does not amount to

speculation.

In this case, an affidavit

from the accused’s case manager at the

correctional institution where she was

detained demonstrated her behaviour

throughout her detention was

sufficiently positive that, had she been a

sentenced inmate, she would have

received remission at an effective rate of

one and one-half days credit for each

day served.

STATUTES CITED

Truth in Sentencing Act, SC 2009, c 29

Prisons and Reformatories Act, RSC 1985, c P-20

Corrections Act, RSNWT 1988, c C-22

CASES CITED

R v Smith, [1993] AJ No 401 (CA)

R v Sooch (2008), 234 CCC (3d) 99 (Alta CA)

Maureen McGuire is an Appellate Counsel

with Alberta Justice. She is a member of the

Bar in the NWT, Ontario, and Alberta. Any

comments or questions regarding case digests

would be welcomed at her email address,

Maureen.McGuire@gov.ab.ca.


JANUARY/FEBRUARY 2012 | 27

S.C.C. UPDATE

HERE IS A SUMMARY OF ALL APPEALS AND ALL LEAVES TO APPEAL (ONES GRANTED – SO YOU KNOW

WHAT AREAS OF LAW THE S.C.C. WILL SOON BE DEALING WITH IN CASE ANY MAY BE AN AREA OF LAW

YOU’RE LITIGATING/ADVISING/MANAGING). FOR LEAVES, I’VE SPECIFICALLY ADDED IN BOTH THE DATE

THE S.C.C. GRANTED LEAVE AND THE DATE OF THE C.A. JUDGMENT BELOW, IN CASE YOU WANT TO

TRACK AND CHECK OUT THE C.A. JUDGMENT.

APPEALS

TAX: REQUIREMENTS TO PAY/

NOTICES OF GARNISHMENT RE

BANKRUPTCY TRUSTEES AND

SECURED CREDITORS

T.D. Bank v. R. (Fed. C.A., June 30,

2010) (33878)

2012 SCC 1 (CanLII) | January 12, 2012

LeBel, J.: “We agree with the reasons of

Noël J.A. of the Federal Court of

Appeal.

The appeal is accordingly

dismissed without costs.”

As a courtesy, here’s the hyperlink to

the Fed. C.A. decision below:

http://canlii.org/en/ca/fca/

doc/2010/2010fca174/2010fca174.html

CRIMINAL LAW: TESTIMONIAL

COMPETENCE

R. v. D.A.I. (Ont. C.A., Feb. 19, 2010)

(33657)

2012 SCC 5 (CanLII) | February 10, 2012

The S.C.C. held:

the fatal error of the trial judge was

that he did not consider the second

part of the test under s. 16

failed to inquire into whether K.B.(the

Complaintant) had the ability to

communicate the evidence under s. 16

(3), insisting instead on an

understanding of the duty to speak the

truth that is not prescribed by s. 16(3)

this error, an error of law, led him to

rule K.B. incompetent and hence to the

total exclusion of her evidence from

the trial, which vitiated the trial,

requiring a new trial to be held.

ADMINISTRATIVE LAW: DUNSMUIR

Newfoundland and Labrador Nurses’

Union v. Newfoundland and

Labrador (Nfdld. & Lab. C.A., Feb. 19,

2010) (33659)

2011 SCC 62 (CanLII) | December 15, 2011

Re an arbitrator’s award with regard to

the calculation of vacation benefits, the

S.C.C. referred to “The transformative

decision of this Court in Dunsmuir v.

New Brunswick, [and] explained that the

purpose of reasons, when they are

r e q u i r e d , i s t o d e m o n s t r a t e

‘justification, transparency

and

intelligibility’.” The S.C.C. here held the

arbitrator was alive to the question at

issue and came to a result well within

the range of reasonable outcomes.

CONSTITUTIONAL LAW: DIVISION

OF POWERS (SECURITIES

REFERENCE)

Reference: re Securities Act (33718)

2011 SCC 66 (CanLII) | December 22, 2011

The proposed Securities Act as presently

drafted is not valid under the general

branch of the federal power to regulate

trade and commerce under s. 91(2) of

The Constitution Act, 1867.

CRTC: ISP’S (INTERNET SERVICE

PROVIDERS) ARE NOT

“BROADCASTING”

Alliance of Canadian Cinema,

Television & Radio Artists, et al. v.

Bell Aliant Regional

News

Events

Publications

Forms

www.lawsociety.nt.ca

It’s all online.


28 | ARCTIC OBITER

Communications et al. (Fed. C.A.,

July 7, 2010) (33884)

2012 SCC 4 (CanLII) | February 9, 2012

Retail Internet Service Providers

(“ISPs”) do not carry on, in whole or in

part, “broadcasting undertakings”

subject to the Broadcasting Act when, in

their role as ISPs, they provide access

through the internet to “broadcasting”

requested by end-users.

FAMILY LAW: SUPPORT VARIATION

L.M.P. v. L.S (Que. C.A., April 21,

2010) (33749)

2011 SCC 64 (CanLII) | December 21, 2011

In the particular circumstances of this

case an application by the husband to

subsequently vary a comprehensive

separation agreement with regard to

spousal support was ultimately

dismissed.

FAMILY LAW: SUPPORT VARIATION

R.P. v. R.C. (Que. C.A., March 12,

2010) (33698)

2011 SCC 65 (CanLII) | December 21, 2011

In the particular circumstances of this

case an application to terminate spousal

support by the husband was ultimately

dismissed.

MUNICIPAL LAW: BY-LAWS

Catalyst Paper Corp. v. North

Cowichan (District) (B.C.C.A., April

22, 2010) (33744)

2012 SCC 2 (CanLII) | January 20, 2012

The S.C.C. held:

the power of the courts to set aside

municipal bylaws is a narrow one, and

cannot be exercised simply because a

bylaw imposes a greater share of the

tax burden on some ratepayers than on

others

the standard of review to be applied is

the reasonableness standard

requirements of process, like the range

of reasonable outcomes, vary with the

context and nature of the decisionmaking

process at issue; formal

reasons may be required for decisions

that involve quasi-judicial adjudication

by a municipality, but that does not

apply to the process of passing

municipal bylaws.

TAX: GENERAL ANTI-AVOIDANCE

RULE

Copthorne Holdings Ltd. v. Canada

(Fed. C.A., May 21, 2009) (33283)

2011 SCC 63 (CanLII) | December 16, 2011

The S.C.C. held:

three questions be decided: (1) was

there a tax benefit; (2) was the

transaction giving rise to the tax

benefit an avoidance transaction; and

(3) was the avoidance transaction

abusive

the burden is on the taxpayer to refute

the Minister’s assumption of the

existence of a tax benefit

where a Tax Court judge has made a

finding of fact on the existence of a tax

benefit, a reviewing court can only

overturn where palpable and

overriding error

The Canadian Legal Information Institute

Making Canadian law accessible for

free on the internet.

www.canlii.org

the existence of a tax benefit can be

established by comparing the

taxpayer’s situation with an alternative

arrangement that could reasonably

have been carried out but for the

existence of the tax benefit.

PHARMACEUTICALS; ACCESS TO

INFORMATION: SCIENTIFIC

INFORMATION; CONFIDENTIALITY

RE NEW DRUGS

Merck Frosst Canada Ltd. v. Canada

(Health) (Fed. C.A., May 26, 2009)

(33290; 33320)

2012 SCC 3 (CanLII) | February 3, 2012

The Federal Court Trial Division found

that disclosure by Health Canada

without prior notice contravened s. 20

(1) of the Access to Information Act and

that over 200 pages were exempted

from disclosure, while the remaining

pages could be disclosed.

The

reviewing judge also held that it would

be extremely difficult to sever and

disclose non-exempt information

pursuant to s. 25.

The Federal C.A.

allowed Health Canada’s appeals,

ordering that all the remaining pages at

issue should be disclosed. The S.C.C.

held (in the context of a publication ban

and sealing order) that the appeals (2

appeals here heard together) are

dismissed.

LEAVES TO APPEAL

GRANTED

CONTRACTS IN QUEBEC:

RECTIFICATION

Agence du revenu du Québec v.

Canada Customs et al. (Que. C.A.,

May 20, 2011) (34393)


JANUARY/FEBRUARY 2012 | 29

December 15, 2011

Can Quebec courts rectify a contract

where the intention stated in the

contract differs from the common

intention of the parties.

CRIMINAL LAW: ACCESSORIES

Lévesque v. R. (Que. C.A., June 7,

2011) (34417)

December 15, 2011

What additional instructions, if any,

should be given to a jury concerning the

“knowledge” element of being an

accessory (here, to murder).

HEALTH LAW: WITHDRAWAL OF

LIFE SUPPORT

Cuthbertson & Rubenfeld v. Hassan

Rasouli by his Litigation Guardian et

al. (Ont. C.A., June 29, 2011) (34362)

December 22, 2011

In what legal circumstances can there be

a withdrawal of life support.

TORTS/MUNICIPAL

LAW: EXPROPRIATION

Antrim Truck Centre Ltd. v.

Ontario (Ont. C.A., June 2, 2011)

(34413)

February 2, 2012

Does a new highway that allegedly

severely impeded road access to a truck

stop substantially interfere with use and

enjoyment amounting to injurious

affection and/or nuisance.

Eugene Meehan, Q.C., is a Litigation Partner

at Supreme Advocacy LLP, Ottawa. His

primary area of work is with the Supreme

Court of Canada, mainly assisting other

lawyers in taking cases (both Leave to Appeal

and Appeal), and complex legal opinions. For

previous summaries, and to keep up-to-date

with all SCC appeals and leave to appeals,

contact Eugene at

emeehan@supremeadvocacy.ca.


30 | ARCTIC OBITER

NOTICES

The Supreme Court of the Northwest Territories

Court of Appeal of the Northwest Territories

SCHEDULING NOTICE

TO MEMBERS OF THE BAR

PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT

GENERAL CRIMINAL LIST WILL BE CALLED ON:

Friday, March 2, 2012

Video conference appearances by

persons in custody outside Yellowknife

who are not represented by counsel will

be held at 10:00 hrs

Courtroom appearances will be held at

15:00 hrs

NOTE:

at Yellowknife, NT

IN COURTROOM #5

1. All Counsel (Crown & Defence) with pending matters are to

attend the Calling of the List, either personally or by agent.

2. For those pending matters in which the Accused person has

elected trial by Judge and Jury, counsel (both Crown &

Defence) are to advise the presiding Judge at the time of, or

prior to, the Calling of the List whether the matter will indeed

be proceeding as a contested Jury Trial and, if so, the

estimated duration of the Jury Trial.

3. For those with Summary Conviction Appeals, please be

reminded of Rule 117 of the Criminal Rules of the NWT.

NOTICE TO MEMBERS OF THE BAR

PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE

GENERAL APPEAL LIST WILL BE CALLED BY A JUDGE IN CHAMBERS ON

Friday, March 2, 2012

Video conference appearances by

persons in custody outside Yellowknife

who are not represented by counsel will

be held at 10:00 hrs

Courtroom appearances will be held at

15:00 hrs

at Yellowknife NT

IN COURTROOM #5

for the Court of Appeal Assize commencing

April 17, 2012

COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING

DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006:

CIVIL APPEALS and CRIMINAL APPEALS

a) Appeal books must be filed not later than 12 weeks from

the date on which the notice of appeal was filed.

b) Appellant’s Factums must be filed within 60 days of filing

of the appeal book or within 7 months of the notice of

appeal whichever date is earliest.

c) Respondent’s factum must be filed within 30 days of

being served the appellant’s factum.

d) Only those appeals that have been perfected as at

March 2, 2012 will be set for hearing at the April 17,

2012 assize.


JANUARY/FEBRUARY 2012 | 31

RESOURCES

The Legal Profession

Assistance Conference

(LPAC) of the Canadian Bar Assocation is

dedicated to helping lawyers, judges, law

students and their families with personal,

emotional, health and lifestyle issues

through a network of Lawyer Assistance

Programs, a national 24-hour helpline and

Provincial Programs. If you need

assistance, please call the helpline or visit

their website.

1-800-667-5722

www.lpac.ca

The Law Society of the

NWT and the CBA-NT

Branch have partnered

with Human Solutions to offer members

free, private and confidential professional

counseling and consultation for the

resolution of personal issues or work

related difficulties.

This service is available 24 hours a day, 7

days a week. Call any time.

1-800-663-1142

Mentor Program

Members from Northwest Territories and Nunavut are invited to call the office of the Alberta

Practice Advisor and ask for the Mentor Program. Please be advised that not all of the mentors

may be totally familiar with NT statutes and practice. There is no cost. CALL 1-888-272-8839

Practice Advisors

The Practice Advisors from the

Law Society of Alberta are

available to discuss legal, ethical and

practice concerns, and personal matters

such as stress and addiction. Members are

invited to contact the Practice Advisors at

any time:

Ross McLeod (Edmonton)

Tel:

780-412-2301 or

1-800-661-2135

Fax: 780-424-1620

ross.mcleod@lawsocietyalberta.com

Nancy Carruthers (Calgary)

Tel:

403-229-4714 or

1-866-440-4640

Fax: 403-228-1728

nancy.carruthers@lawsocietyalberta.com

THE LIGHTER SIDE

The Only Certain Things in Life...

TAXING EVERY DROP

TAX WITH A VIEW

During the 1st century AD, Roman In 1696, England implemented a

emperor Vaspasian placed a tax on window tax, taxing houses based on

urine. At the time, urine was collected the number of windows they had. That

and used as a source of ammonia in led to many houses having very few

such tasks as tanning hides and windows in order to avoid paying the

laundering garments. Therefore, those tax. Eventually this became a health

who obtained valuable urine from problem and ultimately led to the tax’s

collectors were charged a tax.

repeal in 1851.

CLEANING UP

SIMPLY AS-SALT-ING

During the Middle Ages, European Many nations have attempted to tax salt,

governments placed a tax on soap. It only to result in revolt. For example, the

remained in effect for a very long time. gabelle, France’s tax on salt, is thought to

be a major contributing factor to the

Great Britain, for example, didn’t

French Revolution in 1848. The British also

repeal its soap tax until 1835.

imposed various salt taxes, most recently

(and notably) in India in the 1930s. The

result was worldwide attention as Ghandi

staged nonviolent protests against it,

including the famed Salt March.

IT’S WRONG, BUT...

In 2005, Tennessee began requiring

drug dealers to anonymously pay

taxes on any illegal substances they

sold. On a larger front, despite

marijuana being illegal on a federal

level and in most American states,

many states impose taxes on the sale of

marijuana.

With excerpts from efile.com.


Visit fightback.ca for details.

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