ARCTIC OBITER

ARCTIC OBITER
MAY 2010 V OLUME XIV, ISSUE 5

2 | ARCTIC OBITER
THE LAW SOCIETY
OF THE NORTHWEST TERRITORIES
Main Floor
5004 – 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
P.O. Box 1985
Yellowknife, NT
X1A 2P5
TEL: (867) 669-7739
FAX: (867) 873-6344
cbanwt@lawsociety.nt.ca
www.cba.org/NorthWest
EXECUTIVE DIRECTOR
Linda Whitford
linda.whitford@lawsociety.nt.ca
PRESIDENT
Shirley Walsh
VICE-PRESIDENT
Michael Hansen
SECRETARY
Erin Delaney
TREASURER
Sheila MacPherson
LAY MEMBER
Maureen Crotty Williams
PRESIDENT
Janice K. Walsh
VICE PRESIDENT
Elaine Keenan Bengts
SECRETARY / TREASURER
Malinda Kellett
PAST PRESIDENT
Sheldon Toner
ELECTED VOTING MEMBER
Betty Lou McIlmoyle
NON-VOTING MEMBER
Sheila MacPherson
INSIDE
6
8
9
10
12
Protecting Solicitor-Client Priviledge
Glenn D. Tait
Mysterious Trust Fund Deposits
Deborah E. Gillis, QC
What the Dickens?
Chief Judge Patrick Curran
The New Rules of Pricing
Jordan Furlong
Creating Value for Clients:
Flat-fee Billing in Family Law Cover
Lonny Balbi, QC
3 President’s Message
4 Executive Director’s Message
5 Membership News
15 NWT Decision Digest
15 NWT Legislative News
16 Notices
17 Supreme Court of Canada
Update
18 Upcoming Events
19 Lawyers’ Assistance
ADMINISTRATION &
MEMBERSHIP INQUIRIES
Amy LeBlanc
amy.leblanc@lawsociety.nt.ca
EDUCATION &
COMMUNICATIONS
Ben Russo
ben.russo@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 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
Everyone has, by now, had some exposure to the hot topic
of the billable hour. In this issue, we bring you two articles
that introduce you to a world without billable hours.
First, Jordan Furlong has published many commentaries
on the subject, including his dose of reality on page 10.
Then, on page 12, Lonny Balbi, QC, offers his perspective
on how to make the change. His tried-and-true tactics have put him in a
unique spotlight, and we are pleased to welcome him to talk to our members
in June. You will not want to miss this one.
Cheers,
- Ben

MAY 2010 | 3
PRESIDENT’S MESSAGE
Oh, Let the Sun Shine In!
It finally appears as though summer is right around the
corner. The ice and snow are gone (for the most part) and
the trees are starting to show signs of life. Best of all, the
sun is shining and the temperatures are rising! This time
of year never fails to recharge me after a long cold dark
winter and I am so excited for the boating
and camping and deck time that the next
few months will bring.
The next few months will also be
bringing some very interesting seminars
from the Law Society and the CBA.
As you have no doubt seen in our weekly
update email, on June 8th Lieutenant
Colonel James MacMillan, Deputy Judge
Advocate in Yellowknife, provides an
overview of the law of armed conflict,
including the foundations of the Geneva
Convention and common media
misunderstandings. This is sure to be a
Shirley A. Walsh
very interesting talk, and I hope many of our members
attend.
We recently had the chance to welcome back Ross
McLeod, Practice Advisor with the Law Society of
Alberta, for a refreshing info-session on Client
Identification and Verification. As always, his in-depth
knowledge of these new measures (both locally and
nationally) eased many minds and cleared much of the
confusion associated with our new rules. With this
seminar, Ross also provided an overview of billing
practices now being seen in the profession. The talk
opened some members’ eyes with the possibilities for
successfully evolving their practice into an alternative
billing system.
On June 18th, the Law Society is sponsoring another
interesting speaker to talk about alternative billing.
Lonny Balbi, QC, a Calgary-based lawyer and a frequent
guest on various television shows, will discuss
alternatives to the current norm of billable hours.
The case for a new model of billing will
not be going away anytime soon. I’d like
to thank both Ross McLeod and Lonny
Balbi for speaking to our membership and
opening the doors to this subject.
The CBA has, as always, some very useful
seminars planned on subjects such as the
Effective Use of Prior Inconsistent Statements
and Spousal Support & Matrimonial
Assessments. All of these are opportunities
not only to add to your knowledge and
skill sets, but also to ensure you will meet
the Law Society’s requirement for CPD
hours.
Of course, we are also looking forward to the annual
Court of Appeal Barbeque. This year the barbeque will be
on Tuesday, June 15, 2010, at the Yellowknife Racquet
Club. It’s always lots of fun with great food, I look
forward to seeing a large turnout.
To all of our members who at the beginning of what is
likely a very busy summer of outdoor activities and
relaxing vacations, have fun and be safe!

4 | ARCTIC OBITER
THE DIRECTOR’S CHAIR
Protect Your Photocopied Information
I’ve spent a lot of time over the last couple of weeks
addressing an issue brought to light in the United States by a
CBS investigative news story on digital copiers. In the event
you did not happen to either see the story or receive it in an
e-mail circulation from a colleague, the long and the short of
it is this: CBS News went with a
representative from Digital Copier Security
to a warehouse in New Jersey, to see how
hard it would be to buy a used copier
loaded with documents. As it turns out,
...it's pretty easy.
They picked four machines based on price
and the number of pages printed. In less
than two hours their selections were packed
and loaded onto a truck at a cost of about
$300 each. The previous owners of the
machines were unknown to the
investigative team, but it did not take long
for them to find the information. While in
one case documents had been left on the
scanning bed, in the others they simply
Linda G. Whitford
retrieved the copier’s hard drives and using forensic
software available for free on the Internet, scanned the
drives and downloaded tens of thousands of documents in a
very short period of time that contained no end of
confidential and/or personal information.
As you can well imagine, the story has everyone who has
ever traded in their copier for a newer model [us included]
scrambling for answers. In the wrong hands, the
information found on these copiers could be used with
catastrophic results.
We put the question to our own Xerox representatives. They
have assured us that the hard drive from our recently traded
machine was erased and/or disposed of when delivered back
to their distribution facility. They further advised that their
customers have four options:
Do nothing and allow Xerox to dispose of the equipment
being returned through their normal disposal process.
All equipment in the disposal process is destroyed. All
electrical components are shredded which includes all
memory chips and hard drives.
Use image overwrite feature which
erases the hard drive after every
impression.
Have their service technician go into
your Xerox account and erase the hard
drive (there is a fee for this service); or
Have their service technician remove the
hard drive and leave with you. There is
also a fee associated with this process.
While Option 1 (where the company
removes and disposes of the equipment -
thus destroying the confidential
information) may be the most economical,
does it meet your obligation to hold in strict
confidence all information concerning the
business and affairs of your client?
If you cannot convince yourself that it does, you may want
to consider Option 4 - remove the hard drive before the
machine leaves the premises. Until we develop an
appropriate practice advisory with the assistance of the
Legal Ethics and Practice Committee, you will have to use
your best judgment when assessing the situation. For those
of you using copiers other than Xerox, contact your customer
service representative for their policy and process on this
subject.
By the way, for the weather buffs, the temperature in
Yellowknife is +15 heading for the 20’s. The sun rose at 4:06
am this morning and it will set tonight at 23:05.
Life is good.

MAY 2010 | 5
MEMBERSHIP
and Malakoe’s genuine care for each
of his clients, together with the
sentiment that the Bench’s (and
public’s) gain is a also a loss to the
Bar, left many searching for tissues.
“Mrs. Malakoe,” directed Katherine,
“you should be truly proud of your
son.”
Judge Malakoe and Chief Judge Gorin listen to welcoming speeches from members of the Bench & Bar.
Malakoe Appointed to Fourth
Seat on Territorial Bench
On April 30, the Hon. Chief Judge
Gorin opened court for the official
induction into office of the Hon. Judge
Garth E. Malakoe.
“This is a relatively unusual sort of
proceeding to be having here in
Territorial Court,” began Chief Judge
Robert Gorin in his opening
statements.
He was foreshadowing
the open laughter, tears, applause and
flashing cameras abundant in the
cramped courtroom.
It was a standing-room-only session
with many of Malakoe’s colleagues,
friends and family present.
Among
those to speak were the Hon. Jackson
Lafferty, Minister of Justice; Shannon
Smallwood, on behalf of the PPSC;
CBA-NT President Janice Walsh; Law
Society Treasurer Sheila MacPherson;
former colleague and partner
Katherine Peterson, QC; and the Hon.
Mme. Justice Louise Charbonneau.
Following Judge Malakoe’s swearing
in, the Minister of Justice began the
felicitations.
In his warm welcome,
Lafferty noted that Malakoe has “a
reputation for his intelligence and
strength of character.”
All speakers took turns in
congratulating the new Judge and
a d d i n g t o t h e b a r r a g e o f
complimentary, and well deserved,
adjectives.
One comment among
many was MacPherson’s conviction to
Malakoe’s “very human touch and a
very human approach to dealing with
files”.
Peterson’s recant of their partnership
Judge Malakoe followed the speakers
with his own remarks. What began as
a list of regrets for leaving the Bar and
distancing himself from community
service ended with his discovery of a
new world with new challenges and
responsibilities.
“I am confident that I will be able to
fulfill my self-perceived responsibility
to serve the community by doing my
job as a judge,” he said. “After all, as
a judge, service to the community and
to the public is our greatest role.”
NEW MEMBERS
CHARLES B. DAVISON
ABBEY HUNTER DAVISON - EDMONTON, AB
ELAINE B. CAIRNS
CABOTT & CABOTT - WHITEHORSE, NT
JACEK JANCZUR
PPSC - OTTAWA, ON
MEMBERSHIP STATS
Active Residents: 131
Active Non-Residents: 230
Inactive Members: 83
Total Membership: 444
(Restricted Members: 70)

6 | ARCTIC OBITER
Protecting Solicitor-Client Privilege
By Glenn D. Tait, Chair, Discipline Committee
What happens when a lawyer’s office is searched by law
enforcements authorities as part of an investigation into
alleged criminal conduct by the lawyer? How do the
interests of the law enforcement authorities reconcile with
the protection of solicitor-client privilege? Every member of
the bar can learn from a recent situation in Ontario.
Law enforcement authorities were executing a search
warrant that had been issued for a lawyer’s office. The
allegation was that the lawyer, who engaged in a criminal
defence practice, was in possession of child pornography.
As part of the search, eight computers belonging to the
lawyer and located at his house and office were seized by
police. The computers were sealed in a police storage locker
“until ordered opened by a judge of the Superior Court of
Justice.” The Law Society of Upper Canada (LSUC) was not
contacted by law enforcement authorities about the search,
and was not present when the lawyer’s office was searched.
The LSUC became involved after the seizure of the
computers. The LSUC was seeking to ensure that there was
no possibility of breach of solicitor-client privilege. There
was solicitor client information on at
least one, and as many as all eight, of
the computers.
The Crown’s initial position was that there was no reason for
the LSUC to be involved. An officer of the Ontario
Provincial Police was prepared to provide the court with an
undertaking setting out how solicitor-client privilege would
be protected when the OPP reviewed the material found on
the computers. As the lawyer was engaged in a criminal
defence practice, having the OPP reviewing all the material
of the lawyer’s computers created grave concern for LSUC.
As well, the position which the OPP was going to take
would also appear to conflict with the 2002 Supreme Court
of Canada decision of Lavalée. There, the Court set out ten
guidelines to instruct and inform those who were required to
search law firms:
1. No search warrant can be issued with regards to
documents that are known to be protected by solicitorclient
privilege.
The Law Society of the NWT cordially invites all members to the Annual
Court of Appeal
Barbeque
Tuesday, June 15, 2010 - 5:30pm
The Yellowknife Racquet Club
4002—49th Avenue
Tickets: $25.00
(includes a complimentary beverage)
Tickets are limited and available until Friday, June 11. Special dietary
requests will be accommodated if possible —please inform us in advance.
Contact the Law Society for more information or to purchase your tickets.

MAY 2010 | 7
2. Before searching a law office, the investigative
authorities must satisfy the issuing justice that there
exists no other reasonable alternative to the search.
3. When allowing a law office to be searched, the issuing
justice must be rigorously demanding so to afford
maximum protection of solicitor-client confidentiality.
4. Except when the warrant specifically authorizes the
immediate examination, copying and seizure of an
identified document, all documents in possession of a
lawyer must be sealed before being examined or
removed from the lawyer’s possession.
5. Every effort must be made to contact the lawyer and the
client at the time of the execution of the search warrant.
Where the lawyer or the client cannot be contacted, a
representative of the Bar should be allowed to oversee
the sealing and seizure of documents.
6. The investigative officer executing the warrant should
report to the justice of the peace the efforts made to
contact all potential privilege holders, who should then
be given a reasonable opportunity to assert a claim of
privilege and, if that claim is contested, to have the issue
judicially decided.
7. If notification of potential privilege holders is not
possible, the lawyer who had custody of the documents
seized, or another lawyer appointed either by the Law
Society or by the court, should examine the documents
to determine whether a claim of privilege should be
asserted, and should be given a reasonable opportunity
to do so.
8. The Attorney General may make submissions on the
issue of privilege, but should not be permitted to inspect
the documents beforehand. The prosecuting authority
can only inspect the documents if and when it is
determined by a judge that the documents are not
privileged.
9. Where sealed documents are found not to be privileged,
they may be used in the normal course of the
investigation.
10. Where documents are found to be privileged, they are to
be returned immediately to the holder of the privilege,
or to a person designated by the court.
A series of protracted negotiations between the LSUC and
the Crown ensured. In the end, the LSUC and the Crown
agreed to a protocol, which was subsequently confirmed by
court order. That protocol provided for:
1. Appointment of a Referee by the Court
2. Appointment of an Independent Computer Forensic
Examiner (ICFE) by the Court
3. Creation of all forensic images of the computer by the
ICFE
4. All searches of the computers for information relevant to
investigation of child pornography conducted by the
ICFE
5. Costs of both paid by the Crown
6. Seized computers moved to the custody of the Court
Why am I telling you this?
Remember, solicitor-client
privilege is as close to absolute as possible, to maintain
public confidence in lawyers and the legal system, and to
retain its relevance. We all have a duty to maintain solicitor
client privilege, at all costs.
In the unhappy event that your law office is subject to a
search under a search warrant, a production order, or a
demand letter (for example from the Canada Revenue
Agency), it is important that you take all possible steps to
ensure that solicitor-client privilege is protected. Do not say
or do anything which could be seen as a waiver of solicitorclient
privilege.
None of us expect that our offices will ever be searched.
Spending a few moments thinking about the prospect now
may be time well spent, in the unhappy event that the
unexpected search occurs.
Glenn Tait is Chair of the Discipline Committee and a Partner of
McLennan Ross LLP, Yellowknife.

8 | ARCTIC OBITER
Mysterious Trust Fund Deposits
WHAT SHOULD YOU DO IF FUNDS ARRIVE INTO YOUR TRUST ACCOUNT
WITH NO EXPLANATION?
By Deborah E. Gillis, QC, Risk and Practice Management Advisor
A Halifax law firm called me last week regarding a
significant deposit made electronically into its trust
account the night before. The firm had received a call from
a mortgage processing company saying that it had
deposited the funds in error and asking that the firm write
a cheque back to the company to remedy the error. The
firm refused to do this.
NEVER write a cheque back or otherwise automatically
repay a company or individual who calls and tells you
that they have deposited monies to your account in error.
Rather, it is recommended that you immediately contact
your bank and ask that it fully investigate the deposit and
report to you on:
who originated the deposit;
how tile deposit was made;
whether the funds came into your account on an
irrevocable basis; and
if the funds came into your account on a revocable
basis when. if ever, the deposit is considered
irrevocable,
Follow up any verbal communication with a confirmatory
letter summarizing your instructions, conversations and
advice received from the bank.
Any transfer into your account, other than a wire transfer
sent via the LVTS (Large Value Transfer System –
www.cdnpay.calfaqs/lvts.asp#1), is revocable and can be
pulled back from your account. Not all electronic deposits
are sent via the LVTS. For example, a bank-to-bank
transfer (often referred to as a wire) is not normally sent
via the LVTS and can be revoked.
If funds have been deposited in error, it should be the
sender who deals with the issue through his/her/its bank,
with your bank, to remedy any problem.
You do not want to be in the position of having funds
withdrawn from your account and then finding out that
the deposit was no good. You want to be clear with the
bank that if it withdraws the funds from your account
based on the deposit, it must be satisfied that the initial
deposit was good. This risk and responsibility should be
that of the bank, not you. Confirm your discussions with
the bank in writing and ask that the bank confirms its
advice to you in writing.
Make sure the bank keeps you advised as the investigation
progresses and writes a letter to you confirming what has
happened. You should keep this letter with your trust
account reconciliations and also notify the [Law Society of
the Northwest Territories] of the incorrect deposit and
how the bank dealt with it.
From a risk management perspective, it is also extremely
risky to allow clients to deposit cheques or drafts directly
into your trust account, as you have no opportunity to
assess the authenticity of that cheque or bank draft.
I would appreciate hearing from any lawyers who may
have had funds deposited directly into their account,
without their knowledge or consent, and who may have
been asked to directly reimburse the funds, I would like to
monitor any trends that may be developing in this area.
Deborah E. Gillis, Q.C., is the Risk and Practice Management (RPM)
Advisor for the Lawyers’ Insurance Association of Nova Scotia. She writes
and speaks regularly on various risk and practice management topics.
This article was originally published in Nova Voce (LSNS, v.28,n.3, Spring
2010)

MAY 2010 | 9
What the Dickens?
By Chief Judge Patrick Curran, Nova Scotia
On August 12, 1900, my great-great-grandfather was killed
by a passerby in front of his house on Queen Street in
Halifax. Before the end of August there had been a police
investigation, an inquest, a murder charge laid, a
preliminary inquiry before a stipendiary magistrate and a
manslaughter trial in the County Court, along with a great
deal of family angst.
A lifetime later, in Judge Martin Haley's court in Dartmouth
in 1970, accused persons arraigned on Monday had their
choice of trial dates on Tuesday, Wednesday, Thutsday or
Friday - of the same week.
Whatever else might be said about it, criminal justice in
Nova Scotia before The Charter was certainly not delayed. It
makes you wonder what "they" were worrying about when
they adopted Section 11 (b): "Any person charged with an
offence has the right ... to be tried within a reasonable
time ..."
In 1982, that was a solution in search of a problem.
In 2010, we've found the problem, but we no longer seem to
have an effective solution for it - in part because The Charter
itself is a main cause.
On average these days, no one gets into court the first time in
the month during which they are charged. When they do
finally reach the courthouse steps, they have little need to
memorize their surroundings. They will use the same
walkways, doors and hallways many more times before their
cases are finished. Delays to get a lawyer. Interminable
delays to get disclosure, review disclosure, obtain further
disclosure of things referred to in, but inexplicably not
included with, the earlier disclosure. When, out of
exhaustion, the accused does enter a plea, that is only the
end of the beginning.
Trial backlogs force courts to schedule new trials for the 11th
of Never. To a large extent, backlogs exist because of cases
which will never go to trial. Prosecutors have not yet met the
witnesses, some of whom saw little,
recall less and have no intention of
ever showing up. Defence counsel are "waiting to see the
whites of their eyes" before giving their ultimate plea advice
to clients, some of whom have no intention of ever showing
up. Lawyers on both sides apply the "every dog is entitled to
its first bite" rule and happily agree to their counterpart's
initial adjournment request. Trial judges, with worried looks
over their shoulders at appeal courts, hesitate to impose their
will on consenting counsel. Everyone pretends not to know
that countless trial spots will have become available before
the newly scheduled case gets its day in court.
As the old baseball manager Casey Stengel once said,
"Doesn't anybody around here know how to play this
game?"
Jarndyce versus Jarndyce has come to a criminal court near
you.
The Hon. Patrick Curran is Chief Judge of the Nova Scotia Provincial
Court. He was first appointed to the Provincial Court in August of 1981,
then as Chief Judge in 2003. He earned his BA from Saint Mary’s
University in 1965 and his B.Ed in 1966. He graduated from Dalhousie
Law School in 1970 and was called to the Bar in that same year.
WHAT’S NEW ON
CBA PRACTICELINK
Top 10 Ways Lawyers Win Referrals
What In-House Counsel Really, Really Wants
Law Firm Lessons of the Great Recession
Find it all here:
www.cba.org/PracticeLink

10 | ARCTIC OBITER
The New Rules of Pricing
By Jordan Furlong, Law21.ca
Recently, I’m told, several GCs and senior lawyers of large
law firms gathered in London for a high-level conversation
about new billing mechanisms. One noteworthy observation
to emerge from the meeting was the law firms’ insistence
that whatever new mechanism was developed, it had to take
into account chargeable time invested in the work. I wasn’t
there to see the clients’ reaction, but if a few eyes were
rolled, it wouldn’t surprise me.
Lawyers are going nowhere in this new marketplace unless
they can lose this obsession with the effort-based valuation
of work. At the heart of lawyers’ billable-hour infatuation,
even beyond the attraction of low-risk pricing and the
enablement of perfectionism, lies the basic belief that the
harder you work, the more you should get paid. “It took me
ten hours to do this, so I should be paid twice what another
task took five hours to do.” The nature of the work, its
relative simplicity or complexity, the knowledge resources it
did or didn’t require, and the value or relative lack thereof to
the client — all these variables are considered incidental to
the effort exerted, the expenditure of the lawyer’s precious
time, to accomplish the work.
Very few marketplaces, however, base price directly on
effort and time. Avatar cost 20 times what The Hurt Locker
cost to make and took years longer to complete, yet my ticket
to watch either Oscar contender costs the same. One real
estate agent might make ten times more effort at finding the
right buyers for a home than another, yet they both get the
same commission upon sale. I can
go to a global craft show and buy a
beautiful hand-made shawl that an aged, arthritic,
Guatemalan woman spent a painful three days to create for
less than a family dinner at the local pizza joint will cost that
same night. Price differences can emerge from expertise, or
from quality, or from brand assurance, or from customer
value — but they don’t emerge from how hard someone had
to work to make something.
Clients truly don’t care what it costs lawyers, in time and
effort, to do their jobs. All they care about is the price, and
the aptness of any price is ultimately judged by the
purchaser against the value that the purchase delivers. Price
is what the buyer will pay; cost is the resource drain on the
seller to make the product or service. Lawyers conflate the
two and base their price on their costs in time and effort.
Clients are saying: your time and your effort are not relevant
to the value of your service to me. What the current
unprecedented drive towards fixed fees for legal work really
signifies is a marketplace slowly but steadily shifting from
supplier-based pricing to customer-based pricing.
Lawyers are having a very difficult time with this, for three
reasons. One, as stated, is the realization that their time and
effort has little market value. A second is the subsequent
realization that they now need to understand and control
their own internal costs to a degree never before required,
and at many law firms, that’s a nightmare scenario. But the
News
Events
Publications
Forms
www.lawsociety.nt.ca
It’s all online.

MAY 2010 | 11
third reason is likely the hardest of all to accept, a
traumatizing underlying premise to the whole conversation:
the value of lawyers’ work isn’t really for lawyers to decide.
Ultimately, the price of a lawyer’s services is not something a
lawyer can control — and loss of control is not something
most lawyers can abide.
A lawyer without a client or a file has no marketplace value
— that value exists only once the lawyer is engaged on a task
brought forward by the client, delivered to the client and
paid for by the client. Given that fact, it’s neither surprising
nor unnatural that price should be determined by the client
as well. A lawyer can exert a great deal of influence on her
price if she possesses extraordinary skills or experiences, and
perhaps if her talents are so scarce and in great demand, she
really can name her price. But 98% of lawyers are not in this
position. And the days when they can dictate their price
unilaterally, and base that price on their level of exertion, are
ending.
That’s why the legal profession is struggling — it’s trying to
come to grips with an entirely new pricing paradigm. It’s
going to take a long time, and many lawyers won’t grasp the
reality of the new environment until it’s too late. The longer
a lawyer holds on to the idea that time and effort translates
into value in the legal marketplace, the greater the chances
that he or she will be one of them.
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), from which this
article is reproduced.

12 | ARCTIC OBITER
Creating Value for Clients:
Flat-fee Billing in Family Law
By Lonny L. Balbi, Q.C.
THE PROFESSION IS IN TROUBLE
Clients often complain of legal bills because they are not sure
of the amount, the timing, outcome or how a final price is
achieved. Even knowing that lawyers charge based on time,
the complaints often result in a feeling of being “nickel and
dimed to death”.
We share a mentality that, as lawyers, “we sell our time”. But
clients are not buying time. They want their fears addressed,
your experience and results.
Lawyers have traditionally had a monopoly on the business of
divorce. Our Law Societies protect us by saying that only
lawyers are allowed to give legal advice. Anyone trying to do
our job is either embarking in the unauthorized practice of
law or is not serving the client properly.
Competition is coming. There are already several
organizations who guarantee clients a settlement within 120
days for a fixed fee known to the client in advance. The
lawyers are involved only at the end of the process to
“complete the paperwork”. These types of businesses will
flourish in the future.
WHAT IT LOOKS LIKE TO THE CLIENT
The client comes in to see the lawyer and the lawyer explains
the law, the options for settlement, and gives advice to the
client on how to resolve the matter. When it comes to setting
the fee, the lawyer advises that it depends on many factors,
including how long it will take, the reasonableness of the
parties, the complexities of the issues and whether or not
research may be required. The lawyer might tell the client that
there is a “ball park” fee available, but it just depends on too
many factors.
The client is then asked to retain the lawyer, trusting that the
lawyer will be honest and not bill too much. In essence, the
lawyer is asking that a blank cheque be written by the client,
and the lawyer will fill in the amount later. This does not
sound like a very positive experience for any client.
A NEW BUSINESS MODEL
Most other businesses do not equate time with value. For
example, Merv Griffin wrote the theme song for Jeopardy in
about one minute. To this day, he receives $7 million dollars
per year for that theme song. The value of his idea was not at
all based on time.
Another example can be found in the airline industry. The
American airline industry was deregulated in 1978. The
pricing became an extremely sophisticated process. It is
always interesting to look at what each person pays on any
particular flight. The cost to fly the plane from one point to
another is the same. But most people pay a different price
based on several factors.
The airlines have learned that a major factor in determining
price is to look at when the flight was booked. The closer that
a flight is needed to departure, the less price sensitive the
customer is and the more the airline can charge. Similarly,
airlines understand that if someone else is paying for the
flight, such as the company on a business flight, then there is
less price sensitivity and a higher price is warranted. The
customer paying for his own flight may be much more price
sensitive and look for the best deals.
Airlines have determined that why a person is travelling can
affect pricing. For example, the mother of a family trying to
book a vacation for five people may stay up all night looking
on the internet for the best possible flight deals for booking.
PRINCIPLES
There are several principles that can be gleaned from looking
at other businesses and how they have dealt with the pricing
model:
1. CUSTOMER HAS FIXED PRICE UP FRONT
Most solid business models are not based on time. The risk
was shifted from the customer to the business. In many cases,

MAY 2010 | 13
the customer was willing to pay a premium for that shift.
2. A SERVICE THAT IS NEEDED IS WORTH MORE THAN A SERVICE THAT
IS DELIVERED
Most lawyers understand this concept, but do not use it in
practice. The more that a client needs the service you are
willing to provide the more it is worth prior to the delivery of
the service. Once the service has been delivered, that is when
problems result in collection and complaints.
3. FOCUS ON CUSTOMER, NOT COST TO PRODUCE
The value equation to the customer is the most important
aspect in pricing. The cost to produce the good or service is
not important to the customer. Focus on the customer’s needs,
wants and values in order to determine an appropriate price.
include costs, security, fear, social status, speed and delivery
etc. It is important to dig down and discover what the
customer really wants in order to deliver the best value to that
customer. Determine the value the customer is looking for,
and then exceed those expectations.
Family Lawyers actually have a large advantage in
determining the client’s values. At the first interview, the
lawyer tries to understand the client, focusing in on the fears,
hopes, dreams and desires before setting a price.
Lonny Balbi, QC, is a Family Law lawyer and founder of Balbi & Company
Law Centre, in Calgary, Alberta. He has lectured extensively throughout
North America on Flat-Fee Billing and creating value for clients.
4. LOOK AT VALUE TO THE CUSTOMER
Each customer has different value propositions. These may

14 | ARCTIC OBITER
NWT DECISION DIGEST
COURT OF APPEAL
Lafferty v. Tlicho Government
2010 NWTCA 4
The Honourable Mr. Justice Peter Costigan
The Honourable Madam Justice Marina Paperny
The Honourable Madam Justice Patricia
Rowbotham
Counsel for the Respondent (Appellant): R. S.
Maurice
Counsel for the Applicant (Respondent): A. Pape
The Respondent applied to dismiss the
appeal on the ground that it has become
moot. The issue was the constitutional
validity of the Future Chiefs Executive
Council Meetings Law, 2007, relative to
the Tlicho Constitution.
Finding: Appeal dismissed. "The
appeal is moot… As the impugned law
has ceased to exist, there is no longer a
live controversy between the
parties…." (at para. 9) "Should a
challenge to the constitutionality of
some future law arise, that challenge
will have to be considered on its own
facts. Damage to reputation is
irrelevant to the issues raised in this
constitutional challenge. … there is no
public interest to be served by hearing
the appeal." (at para. 11)
CASES CITED
Lafferty v. Tlicho Government, 2009 NWTSC 35,
[2009] 3 C.N.L.R. 141
Borowski v. Canada (Attorney General), [1989] 1
S.C.R. 342, 57 D.L.R. (4th) 231
R. v. McPherson
2010 NWTCA 3
The Honourable Mr. Justice Peter Costigan
The Honourable Madam Justice Marina Paperny
The Honourable Madam Justice Patricia
Rowbotham
Counsel for the Applicant/Appellant: B. Latham
Counsel for the Respondent: B. Nordin
Applicant for a second appeal pursuant
to s. 684 of the Criminal Code.
Application denied. "In our view the
applicant has not made a clear and
compelling case that would justify the
exercise of our discretion to re-open the
appeal.
Finality in this case is
determinative. McPherson is seeking to
take advantage of a clarification in the
law that occurred five years after his
designation as a dangerous offender
and three years after the dismissal of his
appeal." (at para. 7)
CASES CITED
R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357
R. v. Francis, 2008 ABCA 407, 446 A.R. 200 at
para. 23
R. v. Hummel, 2003 YKCA 4, 174 C.C.C. (3d) 1
R. v. Brown, [1993] 2 S.C.R. 918, 105 D.L.R. (4th)
199
R. v. Rhingo, [1997] O.J. No. 1110, 115 C.C.C. (3d)
89
R. v. Gargan
2010 NWTCA 5
Publication ban: no information may be
published that may identify the complainant,
and no information may be published on the
contents of the application for the publication
ban.
The Honourable Madam Justice Carole Conrad
The Honourable Mr. Justice Peter martin
The Honourable Mr. Justice J. D. Bruce
McDonald
Appellant represented himself
Counsel for the Respondent Crown: B. Nordin
Application for counsel.
Application
granted: "… we are of the opinion that
counsel should be appointed at this
time for the limited purpose of
reviewing the matter and reporting to
The Canadian Legal Information Institute
Making Canadian law accessible for
free on the internet.
www.canlii.org
the court as to whether there is a viable
ground of appeal."
SUPREME COURT OF
THE NORTHWEST
TERRITORIES
CIVIL
Lawson v. Jackson
2010 NWTSC 32
Justice L .A. Charbonneau
Counsel for the Applicant: K. Winton
No one appeared for the Respondent
Application to vary an Order of the
Alberta Court of Queen's Bench made
on September 20, 2001, for child
support, retroactivity, and quantifying
section 7 expenses so that NWT's MEP
office could enforce. The only evidence
of the Respondent's earnings is from a
2005 T4. Despite an order to do so, the
Respondent failed to produce proof of
earnings.
"His failure to disclose
financial information is blameworthy
conduct that militates in favour of a
retroactive award." Decision: imputed
annual income based on the T4, ordered
payment of section 7 quantified
expenses, and made both orders
retroactive to January 1, 2006.
CASES CITED
D.B.S. v. S.R.G..; L.J.W. v. T.A.R.; Henry v. Henry;
Hiemstra v. Hiemstra, [2006] 2 S.C.R. 231
MacGregor v. Munroe
2010 NWTSC 30
Justice V.A. Schuler
Counsel for the Designated Authority: E.
Delaney
No one appeared for the Applicant
The Respondent appeared on her own behalf
Application pursuant to Part 3 of the
Interjurisdictional Support Orders Act to
lower child support from $700 per

MAY 2010 | 15
month to $200 per month and to reduce
to zero arrears of over $46,000, as of
September, 2009. The Applicant resides
in British Columbia; the Respondent
and the child live in Yellowknife. The
Respondent does not oppose some
reduction in the amount of child
support but opposes the reduction of
the arrears.
The Applicant did not explain why he
left gainful employment in Yellowknife
and did not explain the efforts made in
recent years to obtain employment that
would allow him to meet his child
support obligations. He also failed to
explain how he supported himself in
the years where his declared income
was in the range of $700 to $7,000 per
year.
Decision: child support lowered
retroactively to (i) $385 per month for
the period January 1, 1999 to April 30,
2006 and (ii) $421.00 per month from
May 1, 2006 and arrears recalculated
accordingly. Also ordered the
Applicant provide to the Respondent a
copy of his filed income tax returns and
any notices of assessment by July 1st of
each year starting July 1, 2010 for the
2009 taxation year.
CASES CITED
Saunders-Roberts v. Roberts (unreported)
S.C.N.W.T. 6101-02603
Haisman v. Haisman, [1004] A.J. No. 553 (C.A.)
CRIMINAL
R v. Paulette
2010 NWTSC 31
Ban on publication of the identity of the
complainant/witness
Counsel for the Crown: T. Nguyen
Counsel for the Accused: N. Homberg
The accused pled guilty to sexual
assault, just before the scheduled jury
(CONTINUED ON PAGE 16)
NWT LEGISLATIVE NEWS
by Mark Aitken, Director of Legislation Division, GNWT Justice
NOTE: THE NWT LEGISLATIVE NEWS IS
NOT A COMPREHENSIVE REPORT OF
LEGISLATIVE ENACTMENTS. ONLY
ITEMS CONSIDERED TO BE OF
INTEREST TO THE BAR ARE LISTED.
ELECTIONS AND PLEBISCITES
ACT
Bill 7, amending the Elections and
Plebiscites Act, received Assent on May
20, 2010. The amendments, which
will be brought into force on order,
implement recommendations of the
Standing Committee on Rules and
Procedures following upon its review
of the Report of the Chief Electoral
Officer on the Administration of the
2007 General Election. Significant
changes include expanding voting
opportunities, restructuring offence
provisions and providing that the
Chief Electoral Officer may enter into
compliance agreements with persons
who have contravened the Act.
MISCELLANEOUS STATUTE LAW
AMENDMENT ACT, 2010
Bill 3, entitled the Miscellaneous Statute
Law Amendment Act, 2010, received
Assent and came into force on May
21, 2010. Schedule A corrects
inconsistencies and errors and makes
amendments of a minor, noncontroversial
and
uncomplicated
nature in 39 statutes of the Northwest
Territories. Schedule B provides for
the repeal of provisions that have
ceased to have effect in a further 31
statutes.
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
PUBLIC HEALTH ACT
The Reportable Disease Regulations were
amended by regulations made on
May 20, 2010 and registered as R-043-
2010, to clarify that the Chief Public
Health Officer (CPHO) may issue an
order under section 25 of the Public
Health Act requiring a person who has
been exposed to an infectious
reportable disease to adopt measures,
which may include isolation, without
the CPHO first being required to issue
a similar direction under section 14 of
the Reportable Disease Regulations.

16 | ARCTIC OBITER
(CONTINUED FROM PAGE 15)
trial. Accused is 38 years of age, from
Fort Resolution and Lutsel K'e. He had
a high school education, and traditional
and cultural knowledge and skills. He
was employed for the past three to four
years, and has three children, aged 1, 2
and 4. He has extensive family support.
The accused had a lengthy criminal
record, including five previous
convictions of violence. Aggravating
factors - the complainant was under the
age of 18, "… this was a brutal and
egregious act of violence, a predatory
offence, where the accused displayed
total disregard for the personal and
bodily integrity of [the] 16-year old
[victim]." Mitigating factor - the guilty
plea. Accused had served 10 1/2
months on remand. Sentence: (joint
submission by counsel): time served,
probation of 3 years including no
contact with any female under the age
of 18 (except for his children) unless in
the presence of a sober adult; not to
possess or consume alcohol; firearms
prohibition but authorization for a
license to possess a firearm for
sustenance hunting only; sex offender
registration under the Sex Offender
Information Registration Act for 20
years; DNA order.
CASES CITED
R. v. Wust [no citation given]
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:
Thursday, September 2, 2010 at 14:00 hrs
NOTE:
AT YELLOWKNIFE NT
IN COURTROOM #1
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
Thursday, September 2, 2010 at 15:00 hrs
at Yellowknife NT
IN COURTROOM #1
for the Court of Appeal Assize commencing
October 19, 2010
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 September 2, 2010
will be set for hearing at the October 19, 2010 assize.

MAY 2010 | 17
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.
APPEAL JUDGMENTS
ABORIGINAL & ENVIRONMENTAL
LAW: FEDERAL & PROVINCIAL
ASSESSMENTS
Quebec (Attorney General) v. Moses
(Que. C.A., April 24, 2008) (32693)
2010 SCC 17 (LexUM) | May 14, 2010
In the context of the Cree and Inuit
communities having signed the James
Bay and Northern Québec Agreement
with the governments of Quebec and
Canada in 1975, the S.C.C. held that if
the mine project here is approved
pursuant to the Agreement, the
proponent may not proceed with the
work without an authorization under
s. 35(2) of the Fisheries Act, and that
the issuance of any such authorization
is to comply with the Canadian
Environmental Assessment Act
in
accordance with its procedures, as
well as the Crown's duty to consult
with the Cree in relation to matters
that may adversely affect their rights
under the Agreement.
ASSAULT CAUSING BODILY HARM
R. v. Szczerbaniwicz
(Court Martial Appeal Court, May 5, 2009)
(33189)
2010 SCC 15 (LexUM) | May 6, 2010
A subjective belief about what force is
required is relevant, but the subjective
belief must be based on reasonable
grounds, that is, it must be based on
grounds that are objectively
reasonable in the circumstances.
CRIMINAL LAW: VETROVEC
WARNINGS
R. v. Hurley
(Sask. C.A., August 5, 2009) (33301)
2010 SCC 18 (LexUM) | May 14, 2010
The trial judge below did not point
out to the jury that they should be
cautious with regard to the evidence
of a particular witness because of his
possible motive to lie in order to get
some advantage for himself in his
own legal troubles or to collect a
reward. While it is debatable that this
omission was sufficiently serious in
the context of this particular trial as to
require appellate intervention,
because of new forensic testing and
DNA analysis, a new trial was
necessary.
FREEDOM OF THE PRESS:
CONFIDENTIAL SOURCES
R. v. National Post
(Ont. C.A., February 29, 2008) (32601)
2010 SCC 16 (LexUM) | May 7, 2010
While the courts should strive to
uphold the special position of the
media and protect the media's secret
sources where such protection is in
the public interest, this case here is not
the usual one of journalists seeking to
avoid testifying about their secret
sources. This is a physical evidence
case. It involves what is reasonably
believed to be a forged document. The
media claim to immunity from
production of the physical evidence is
not justified in the circumstances of
this case, even if the end result proves
to be information that may lead to the
identification of the secret source(s).
LEAVES TO APPEAL
GRANTED
NONE
Eugene Meehan, Q.C., is a Litigation Partner
at Lang Michener, 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). He also
does Public Law generally. For previous
summaries, and to keep up-to-date with all
SCC appeals and leave to appeals, contact
Eugene at emeehan@langmichener.ca.
Eugene Meehan, QC,
returns to Yellowknife
in September for an
exciting lecture.
Watch the Obiter and weekly
bulletins for details.

18 | ARCTIC OBITER
UPCOMING EVENTS
NOTE: REGISTRATION FEES MAY APPLY. SEE THE WEEKLY BULLETIN FOR EVENT DETAILS
STAY CURRENT
Find events on the Law Society website:
www.lawsociety.nt.ca/membership/
calendar.html
REGISTER EARLY!
Avoid hassles and secure your seat at any
event by registering now. Registration
information can be found in the Weekly
Bulletin.
THE EFFECTIVE USE OF PRIOR
INCONSISTENT STATEMENTS
FRIDAY, JUNE 4, 2010 - 12:00pm
Champagne Room (Yellowknife)
The successful use of a prior
inconsistent statement can be a key
aspect to your ultimate success at trial.
Unfortunately, failure to correctly put
a prior inconsistent statement to a
witness can not only result in
frustration, but a successful objection
for your opponent and a potential gap
in your overall trial strategy. Justice
Charbonneau and Justice Schuler of
Supreme Court of the NWT will
present a lunch & learn CLE on the
procedures related to the use of prior
inconsistent statements in crossexamination
of witnesses.
ARMED CONFLICT: DETAINEES
AND VICTIMS OF WAR
TUESDAY, JUNE 8, 2010 - 12:00pm
Champagne Room (Yellowknife)
The evolution of law in international
war has seen a increase in media
attention, particularly with regard to
prisoners and victims of war. In this
special Lunch & Learn event,
Lieutenant Colonel James MacMillan,
D e p u t y J u d g e A d v o c a t e
(Yellowknife), provides an overview
of the law of armed conflict, including
the foundations of the Geneva
Convention and common media
misunderstandings.
A FAMILY LAW EVENING:
SPOUSAL SUPPORT & THE
MATRIMONIAL ASSESSMENT
THURSDAY, JUNE 17, 2010 - 5:00pm
Champagne Room (Yellowknife)
Join Calgary-based Family Law
Lawyer Lonny Balbi, QC, for this
two-part evening event:
1. Spousal support is one of the most
complicated and conceptually difficult
areas of the law. A careful reading of
the Divorce Act does not clarify very
much. Judges are left with so much
discretion that case law is unhelpful to
most practitioners. The Spousal
Support Advisory Guidelines
introduced a new way of thinking
about spousal support. Learn how to
argue the relevance (or the
irrelevance) of the SSAGs and
u nderstand how t hey were
developed.
2. Most Family Law lawyers are
willing to give away the advice which
is most crucial to clients. The first
meeting a client has with a lawyer is
probably the most important meeting
that client will ever have with his or
her counsel. There are some excellent
strategies to provide Family Law
clients with excellent value for that
first meeting and, additionally, allow
the lawyer to charge appropriately for
it.
ALTERNATIVE BILLING:
REPLACING TIME WITH VALUE
FRIDAY, JUNE 18, 2010 - 12:00pm
Champagne Room (Yellowknife)
The profession is in trouble! Clients
are complaining that lawyers are
simply too expensive. Very few
people leave a lawyer's office feeling
that it was a positive experience.
Many of the negative feelings come
from the way we charge.
Charging by the hour is a concept that
is old and fragile. Buying a car or
booking a flight can cost the same as
legal services, and yet the experience
is completely different. Lawyers could
do a much better job by learning how
to charge a flat fee and provide better
value to clients.
MEETINGS
CRIMINAL LAW SECTION
JUNE 2, 2010 - 12:00pm
Law Society Boardroom
LEGAL ETHICS & PRACTICE
COMMITTEE
JUNE 9, 2010 - 12:00pm
Law Society Boardroom
WOMEN LAWYERS FORUM
JUNE 15, 2010 - 12:00pm
Law Society Boardroom
CBA-NT ANNUAL SUMMER
MEETING
JUNE 2, 2010 - 12:00pm
Law Society Boardroom

MAY 2010 | 19
Dear CBA Members:
It’s that time again. Time to relax and unwind with some good food and
great company.
The CBA-NT would like to invite ALL CBA MEMBERS AND THEIR
FAMILIES to the:
Annual Summer Barbeque Picnic
Tuesday, June 29, at 5pm
Fred Henne Territorial Park, Yellowknife.
This year, we’re excited to welcome National
President Kevin Carroll, QC, National Treasurer
Annette Horst, and Alberta President Gillian
Marriott, QC.
Look for your invitation in your inbox.
Be sure to RSVP before June 25.
We look forward to seeing you and
your family there!!
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
Mentor Program
Members from Northwest Territories and
Nunavut are invited to call the office of
the 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.
1-888-272-8839
LAWYERS’ ASSISTANCE
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