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LAW REFORM:
PROJECT PLANNING AND
MANAGEMENT
Peter J.M. Lown, Q.C. Director, Alberta Law Reform Institute
Presentation to the ALRAESA Law Reform Conference, Cape Town, South Africa March 15 - 17, 2005
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Table of Contents Introduction ........................................................................................................................................ 1 Claimed Benefits of Planning ............................................................................................................. 2 Indirect Planning ................................................................................................................................. 5 Planning – Nuts & Bolts ...................................................................................................................... 7 Appendix 1: Project Management Guide Contents Appendix 2: Sample Feasibility Study Appendix 3: Sample of Board Material – project proceeding to a Final Report Stage Appendix 4: Sample of Board Material – project where there is a change in process
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Managing Large Projects Introduction The topic of managing large projects is one which is both near and dear to my heart. “Near” in the sense that the Alberta Law Reform Institute (ALRI) is working towards completion of the largest and most complex project it has ever undertaken. The Rules Project is a comprehensive review of the rules of civil procedure for our superior courts. The rules were last revised in 1978, and much has occurred since, both in terms of rules revision, pilot projects and Civil Justice initiatives. More will be said later about the organisation of the project. Suffice to say for now that the project has a budget of $2.6 million, spans 4 years, excluding education and implementation, involves 10 working groups, 15 full-time or part-time counsel, 21 consultation memoranda, and counting, and 85 volunteer participants. (Other trivial data might include the number of sandwiches consumed at evening videoconference meetings – trivial only until someone forgets to order food!) “Dear” in the sense that several years ago, ALRI took a hard look at its process in order to ensure its founders that it was carrying out its mandate in the most effective and beneficial manner. The ALRI Project Management Guide outlines a structure to be used from first tentative topic suggestion through to completion of final report and post report activity. Asking why an agency does things in a certain way, or how the process might be improved are not necessarily easy questions. They require critical self evaluation – in fact they require the same critical analysis we direct at the substance of law reform to be directed at process and methodology. If, however, we are to be agents of thoughtful and positive change, then we are not immune to critical review. Some of you, perhaps only a few, will have been involved in law reform for long enough to have seen law reform at its lowest ebb – when the powers that created law reform agencies also flexed their dissolution muscles. In the 1980s, some agencies were
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dissolved, the victim of downsizing, financial priorities and political disfavour. Not all those who disappeared have resurfaced. At the same time, law reform agencies discussed rates and strategies for implementation, in an effort to become more responsive, measurable and relevant. But the “Black Hole” of law reform was not an easy moniker to shake. The inability to predict completion times, the disconnect between reference and product, and difficulties with program selection and inventory made it difficult to refute the criticism. Whether or not we reach such a nadir again, there will always be cycles in the law reform process when effectiveness, responsiveness and relevance are called into question. The criticism is not that the questions should be asked, it is that they should go unanswered. As a result, it is suggested, some elements of managing and planning the choice of project, and the carriage of it once chosen, is essential. Finding the requisite level and balance is the challenge. We have all heard or seen examples of the person who made so many lists they never completed any of the tasks on them; or were too busy scrambling to make a list. Somewhere in between is the appropriate balance. And of course, the analogy is not so simplistic. We have also heard other comments about “managed” and “planned” law reform. The process is too complex, too unpredictable to be planned. The process has to be intuitive rather than planned or structured. Even if one were to accept, which I do not, that a small project could be managed intuitively, a large project defies that assertion. There are too many people involved to expect the intuition can be “osmosed” clearly and seamlessly from one to another. Claimed Benefits of Planning So how does one plan for success? How does one prepare a management plan? Essentially by identifying and reducing risks. By anticipating and planning rather than realising and reacting. When ALRI began its review process, we faced questions such as what is a typical project? How long does an average project take? How much does it cost? How many personnel are involved? How many board or commission meetings or
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agendas does the project occupy? An historical picture of several projects can be quite instructive, both identifying and rationalising, if possible, the differences in progress. Normally one would plan or manage for five general purposes or risk avoidance: (i) Reduce the risk of non-delivery by developing strategies to manage problems
that arise during the project life cycle. Typical changes or problems may include change in personnel; change in government on government priorities; change in underlying legal premises. For example, if a typical project last two years, the chances of some personnel interruption are not completely remote. What happens during temporary absences or if the lead role has to be reassigned? Our province has had the same party in power, through different iterations, for over 30 years. In 1993 the whole emphasis switched to cost cutting and debt reduction and less government. Priority was given to reducing legislation and outsourcing responsibilities. Our Limitations Act reduced a lengthy complex act to 13 sections. Our civil enforcement legislation survived by the thread of a privatised Sheriff’s office, even though we had recommended against that. Our revised public inquiries’ legislation was confined to the wilderness, being at one time too hot a topic, and at another, not interesting enough. Our various reports on fatal accidents and survival of actions were affected by a Court of Appeal decision fundamentally changing the common law.
(ii) Provide a formal project structure against which progress can be evaluated.
Sometimes, it is as important and as useful to provide a progress report as to project end date. Laying out the milestones in the critical path allows both monitoring and adjustment as the milestones arise. This may also include a decision not to proceed with the project. For example, in our Joint Western Canada project on title insurance, the landscape has changed so significantly since the project began 18 months ago, that we have had to redesign a consultation memorandum that was almost at completion. We determined not to take on the issue of national classes in class proceedings legislation, preferring instead to let the jurisprudence develop. The jurisprudence has developed so quickly that we are now involved in proposals for amendment to the model act for all of Canada.
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(iii) Provide a mechanism for involving a wide variety of interested parties. Law reform projects are essentially collaborative efforts, led and guided by the law reform agencies. Their content and disposition depend entirely on the quality and effectiveness of consultation. Perhaps one of the biggest challenges we face in the current law reform era is how to engage our audiences on the topics in question. It is interesting to watch the various approaches being taken in the area of domestic violence by agencies such as the Fiji and Victorian Law Reform Commissions.
(iv) Develop a budget and timetable which enables the commitment of resources at
appropriate points in the project. Much of this area of decision-making will depend on the stage of the project – research, library science or similar assistance will often be required early in the process. Consultation and materials presentation assistance will normally occur well into the process, whereas skills such as legislative drafting are more likely to be required toward the latter stages of the project. Timing the availability of these resources, especially when they involve outlays for external costs, are crucial.
(v) Provide consistency throughout the project, as well as address through
contingency planning, the possibility of changes to the project in the event of significant difficulties. This factor becomes one of the most important factors for large projects. Inevitably, there will be some changes over time that have to be accommodated. Just as important, having a determined reliable and consistent process allows participants to bring consistency to their work, and to ride out what might otherwise be regarded as significant bumps in the road. For example, there may be differences of opinion on the merits of a particular recommendation – it is the reliable process that allows the project to move forward on the basis that all points of view have been gathered, appropriately analysed and a rational result reached.
Attention to each of these five areas can have significant beneficial effect on the progress and outcome of a law reform project. The bigger the project, the greater the risk, and the greater the need for coordination of the various elements. Almost all law reform projects are collaborative, require regular progress reporting, follow a consistent format with defined implementation objectives.
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Indirect Planning At one point in law reform time, “they do good work” would have been adequate commendation of law reform. But now, we must add qualifiers like – they do good predictable work; they do it on time; they do it within budget; the product meets defined needs; the product is practical and relevant. Most agencies create some project discipline in the way projects are created or accepted. Most will have or refer to selection criteria and some agencies will list them on a web site or in annual reports. The criteria serve at least three initial purposes: (i) allow for determination of priorities between projects for the allocation of resources
and personnel; (ii) rationalise choices between those projects which are rejected and those which are
accepted, and further defining the project being undertaken; (iii) disclose the criteria so as to be able to explain the decision to interested parties. In some cases, the material leading up to such a decision may be made available in unpublished form, or may form part of correspondence between agency and stakeholders. A further fact which may help define the project is the fact that most agencies will have phases through which a project passes, with structure and definition becoming more clear as the project progresses. ALRI is somewhat different from other agencies in the sense that it sets its agenda independently, but the decision is subject to the same influences as other agencies who approve a general programme of reform, or who negotiate the references they undertake. For ALRI, the aim is for the decision to commit to a project to be made when, and in the context of, full information is available to indicate the scope, nature and demands of the project. While ALRI redefines phases for project selection purposes, these phases are likely to be functional phases of a reference-based agency. Our first phase is preliminary assessment, in which we identify critical issues, gauge community support and obtain preliminary board opinion on the possible project. At this point, there is a clear law reform issue that the community believes should be dealt with by ALRI. ALRI believes it has the resources and expertise to propose a solution that has a reasonable chance of being adopted.
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The second phase we designate as “feasibility study.” In effect, this is where most of the preplanning occurs, the anatomy of the project is established, including internal management committee and external advisory group. Scope, methodology and critical consultations are identified. At this point, there is a clear description of the critical issues, the methodology of research, consultation, analysis, and the individuals who should be involved in the project. There is a clear plan through to final product, with decision points identified on the way. Roles and responsibilities are clearly described and attributed. Necessary financial and human resources are identified and allocated. Once the project is adopted, the work commences in earnest. In most cases, the plan calls for a final product to be submitted to the board for approval, although the board may have seen progress reports, individual policy issues, or methodology questions at several points along the way. Toward the last half of the actual project, attention is directed to implementation objectives, timing, education and orientation issues. One additional general factor worthy of mention is the “pacing” of the project. Built into the planning process should be an assessment of the intensity of work and effort which is required, along with the recognition that it is not possible to maintain a high-level, intense application throughout the life of the project. More leisurely information gathering has to be balanced with intense analysis or consultation; or vice versa, intense information gathering has to allow appropriate time for analysis and review. To some extent, the participants will indicate their natural stamina and level of effort. For the sport science aficionados, it is clear that law reform will involve aerobic, anaerobic lactic, and anaerobic alactic activities. By way of summary, an appropriate level of planning can bring significant benefits to law reform process. It is complemented by the structures which many which many law reform agencies have established, including selection criteria and project phases. However, those structures alone, while helpful, will not create project planning and management without more specific requirements. I now want to identify the basic elements of the planning process. Many of us carry out this process intuitively, or at least we allege that we do.
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Planning – Nuts & Bolts The first element is to identify as many of the tasks involved as possible. Usually this is done at varying levels of detail, and not necessarily in it in any particular order. Some prefer to work backwards from completion, indicating which tasks must have been completed at various milestones in the project. The second element is to allocate responsibility and accountability for each task. Sometimes this process will surprise the participants as to how much another person actually does, or surprise the person responsible with the news that they are actually responsible for a certain task. The third element is to identify the dependencies between the various tasks. Some are obvious – I cannot plan a board meeting agenda, unless the materials are or will be (a risk to be assessed!) ready. Consultation cannot be scheduled unless background materials are or will be ready. These are obvious, but more subtle relationships which will become apparent as the process unfolds. Both subject matter and timing dependencies will become more apparent through the process. The next four elements all effect the dependencies and the timeline for the task. The first of the four is to identify the skills necessary for the task, e.g. analysing, writing, assessing, formatting, arranging travel and logistics. This will serve as a cross check on the allocation of responsibilities for the task. The second element is the level of effort, often estimated in number of days, although, in order to account for administrative and collegial responsibilities, we have found a week to be more useful. For example the two-day task might be completed in a particular week, or a 20-day task will be completed in a 6-8 week period. This in turn leads to the third element of a scheduled start and finish date. Finally the fourth element will indicate the resources allocated to each task. For example, preparation of a board report will require a certain amount of formatting and word processing; a consultation meeting may require PowerPoint presentations; all meetings require logistical and follow-up activity. Estimates of time and duration are one of the biggest challenges in project planning. First we tend to be unaccustomed to budgeting, instead concentrating, if at all, on after-the-fact historical accounting review. Second, we are not comfortable with quantifying how to reach the acceptable qualitative level of a law reform paper or proposal. If we are unprepared to say – this was all we could achieve given the time and resources available – we then have to determine what time and resources will be necessary to produce an acceptable law reform product. In some instances in the past, this reluctance has
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manifested itself in the notion that once committed to a project, there has to be a final product, no matter how long it takes or how much it costs. Tightening up the selection criteria to filter the number or the type of references may be of some help. So too may be some rudimentary management by project phase. But it is clear that better projections will become more and more a part of a law reform process. It is important to set the context in which we manage law reform. A plan is a plan, not a guarantee. It is composed of best estimates, based on certain assumptions, and subject to the vagaries of time and circumstance. The assumptions must be clearly articulated. The validity of the estimates of time and cost can only be based on experience. Here lies one of the biggest benefits of planning – the process creates a record of events and data, capturing experience which is needed to make better estimates. The more documented, rational planning takes place, the better the record, the bigger the database, and the more reliable the estimates. Processes once reduced to a template do not have to be reinvented, but merely reviewed from time to time. If nothing more, one way of starting a plan is to analyse a past project, identify all the stages and tasks, indicate who was responsible for them etc. Then the important question, working from that base, is to determine whether that is the appropriate model, with the appropriate allocations etc. If historical process is the starting point, it must be subject to rigorous normative review before being approved as a template for the future. Experience is an excellent guide if documented, and critically examined. To some extent it is hard to describe the planning process. It is best seen in doing. The conference presentation will concentrate on this aspect, indicating how ALRI planned, managed, and adapted its Rules Project. What is clear, in ALRI experience, is that a planned project allows for proactive rather than reactive management, which in turn leads to qualitatively better decisions. Sound judgment allows the participants to take ownership of their activity, usually leading to personal satisfaction in job completion. Personal satisfaction leads to institutional confidence which in turn attracts societal reliance on work. There is a cycle
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of success, and planning large or small project plays a significant part in the cycle of success. The Positive Cycle of Success The various appendices provide examples of ALRI material at various points in the project planning process. Even the best laid plan may need adjustment. Part way through our project on Exigability of Registered Saving Plans (Appendix 2) we divided off the whole area dealing with estate issues. That topic was the subject of a separate project and a separate final report. The conference presentation will concentrate on a small number of these issues in the context of the Rules Project. There are several aspects of the Rules Project which I would like to highlight for you. At the very outset, ALRI was not prepared to even commence the project until a management plan had been prepared, from which the board could conclude that the project was viable. Much of our initial work concentrated on budget and proposed methodology. At that point we merely assumed a certain number of working groups, costed them as separate projects, and then tried to estimate how to coordinate the separate projects and bring them together as one at the end. The second important aspect was the formation of the working groups and the allocation of their subject matter. This involved a massive literature search in the areas of civil procedure and civil justice, from which we distilled a large number of topics which
Societal & Government
Reliance
Project Planning
Quality Judgment
Custody &Control
Personal Pride &Satisfaction
Institutional Confidence & Respect
Societal & Government
Reliance
Project Planning
Quality Judgment
Custody &Control
Personal Pride &Satisfaction
Institutional Confidence & Respect
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were further refined into discreet working groups. We then determined the order in which the working groups would operate, starting with the areas which would have over arching effect on the project as a whole. The third aspect was to assemble the background research for each working group. Each group was provided with a research binder, or several, with information on the topic from all Canadian provinces, select United States states and Federal Court, the U.K. Civil Procedure Rules, select Commonwealth sources, and any Commonwealth jurisdiction which had recent activity in the area. At the first working group meetings, each group was provided with orientation materials, setting out the preferred working methodology and time frame, and the expected reliance on ALRI counsel for research and writing requirements. The membership of each working group was carefully selected to represent the various parts of the legal community and the geographic areas within the province, and the nature of practice in the subject area. A further element centres on the collaborative nature of the exercise. Our intention was to create a product that was built on significant input and therefore more likely to be accepted and implemented. First we attempted a significant dialogue with the general public, followed by focus group discussions and a final summary of public opinion. A similar issues paper for the legal profession provided general project and systemic comments. In order to ensure that the collaborative process was maintained, all comments (phone, fax, e-mail, etc.) are recorded, logged, summarized for the working group, tracked into the consultation memoranda through to final policy proposals. This has necessitated developing a method for logging and tracking all comments coming into the Institute. Finally, both the Board and the Steering Committee have a played a role in monitoring the work of each working group, dealing with gaps and inconsistencies, and providing overall policy decisions when needed. To return to a theme mentioned earlier, we could not have started this huge project without a significant management plan, we could not carry it out without detailed plans for all tasks. We are not at the end – in fact, we are adjusting the drafting and completion
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process as we become more familiar with that very process. When we do reach the end, however, we will have a detailed description of what and why we did what we did – a basis from which to determine how, if ever, we approach such a mammoth project again.
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APPENDIX 1 PROJECT MANAGEMENT GUIDE CONTENTS 1. Project Management Guide 1.1 Sample Feasibility Study (Future Income Plans) 1.2 Sample of Board Materials — topic that will not proceed to a project (National
Class Actions) 1.3 Sample of Board Materials — project proceeding to final report stage
(Substantial Compliance of Wills) 1.4 Sample of Board Materials — project where there is a change in process
(Succession Project) 2. Process Outline 3. Board Materials Formatting Guide 3.1 Sample of Cover Page (Non-Resident Dependent Adult Trustees) 4. Work Process Guides < Topic Selection < Feasibility Phase < Project File Management – Paper Copy < Project Meeting Preparation < Board Meetings – Agenda and Materials Preparation < Board Meetings – Arrangements and Support < Board Meetings – Minutes < Publication Preparation Process < Printing and Distribution 5. Resource Materials < Meeting Guide
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< Financial and Resource Forecasting
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Table of Contents Project Management – Generally
3
ALRI Project Management Planning
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Roles, Responsibilities and Authorities
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Preliminary Assessment
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Feasibility Study
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Feasibility Study Report Synopsis 11 Project Scope 13 Project Structure/ Roles and Responsibilities of Participants 14 Costing 14 Work Planning 16 Resource Management 17 Reporting and Communication 17 Defining Project Completion 18 Project
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Project Closure 19 Project Debriefing 20
ALRI Project Management – Important Reminders
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ALRI Project Management Guide
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APPENDIX 2 1.1 Sample Feasibility Study Creditor Access to Future Income Security Plans Project Research Project Plan and Business Case (Revised August 28, 2001) Table of Contents
A. Introduction.......................................................................................................................... 1 1. The History of this Project .......................................................................................... 1 2. Research Project Planning Phase ............................................................................. 2
B. Research Project Plan and Business Case ........................................................................ 4
1. Objectives and Scope ................................................................................................ 4 2. Benefits and Drawbacks for the Institute and its Clients............................................ 6 3. Project Management Methodology and Structure ..................................................... 8 4. End Results................................................................................................................ 9 5. Work Plan ................................................................................................................ 10
a. Research ....................................................................................................... 10 b. Limited Consultation....................................................................................... 10 c. Writing Consultation Memorandum................................................................ 11 d. Consultations on Consultation Memorandum ................................................ 11 e. Writing Final Report........................................................................................ 11 f. Board Approval of Final Report; Publication;
Implementation .......................................................................................... 11 6. Resources Required ................................................................................................ 12
C. List of Actual and Potential Consultants ........................................................................... 13
1. People Consulted during Research Project Planning Phase .................................. 13 2. People to be Consulted during Final Phase ............................................................ 13
D. Bibliography....................................................................................................................... 15
E. Timetable........................................................................................................................... 18
F. Budget Projection .............................................................................................................. 22
A. Introduction
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1. The History of this Project Alberta law now permits a judgment creditor to enforce a money judgment against the RRSP1 of the debtor. A civil enforcement agency, acting for a judgment creditor, can serve an enforcement order on the depository managing the plan. The likely effect of service of the order is to compel the depository to collapse the plan and pay the balance after tax to the agency for distribution to the enforcing creditor and any other creditors entitled to share in the proceeds of enforcement.2 The law therefore permits creditors to divert the debtor’s retirement savings to payment of debts. However, Alberta law generally does not permit creditors to enforce their judgments against pensions, or against annuities and RRSPs issued by insurance companies. Pension statutes contain sections which (more or less clearly) protect pensions from enforcement. The Insurance Act does the same job for insurance products, including most annuities and RRSPs. It is non-insurance RRSPs which are exposed fully to creditors. There is an apparent unfairness in this exposure of
1 This report uses abbreviations to identify registered retirement savings plans (RRSPs), deferred profit-sharing plans (DPSPs), and registered retirement income funds (RRIFs).
2An exception may be where the plan is “locked in,” e.g., where the contributor cannot withdraw money from the plan before a certain date such as her 65th birthday. But see Capital City Savings & Credit Union Ltd. v. 299474 Alta. Ltd. (1989), 70 Alta. L.R. (2d) 215 (Master): Capital City Savings & Credit Union Ltd. v. 299474 Alta. Ltd. (1990), 72 Alta. L.R. (2d) 231 (Master).
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non-insurance RRSPs, compared to the virtually complete protection of insurance RRSPs and annuities, and most pensions. When pensions, insurance annuities, and RRSPs or RRIFs start to make payments to the depositor, the creditor’s appropriate remedy is to attach the payments. Exemptions are again an issue. Some pension statutes expressly prohibit garnishment of pension benefits or payments; others are silent, leading to the conclusion that such payments are garnishable. Insurance legislation will in some cases also exempt payments. However, payments out of a non-insurance RRSP or RRIF (after tax is deducted) will be fully garnishable. In 1998 and 1999, the Uniform Law Conference of Canada (ULC) approved a report and a draft statute which sought to correct the unfairness in the exposure of RRSPs to enforcement and garnishment. The principal recommendations in the ULC report can be summarized as follows: (1) All rights, property and interest of a depositor in RRSPs, DPSPs, and
RRIFs should be exempt from any enforcement process. The effect of this proposal is that such assets would not be available to creditors enforcing their judgments or to trustees in bankruptcy.
(2) The exempt status of these plans should continue only so long as they
retain their status as RRSPs, DPSPs, and RRIFs under the Income Tax Act.
(3) Payments out of such plans to a depositor or the legal representative of
a depositor should be subject to exemptions like those which apply to wages and salary payments, but any amounts over the exemptions should be subject to garnishment.
The ULC report was the subject of extensive consultation, the results of which were divided but on balance favoured the proposals. 2. Research Project Planning Phase
7In 2000, the Director of the Alberta Law Reform Institute asked C.R.B. Dunlop to be lead counsel and to write this research project plan and business case report on creditor access to RRSPs and similar plans. The Director created a Project Management Group consisting of Lyndon Irwin, Q.C. (Chair), Anne de Villars, Q.C., Cynthia Martens, Rod Wood, Dick Dunlop, Rick Reeson, Q.C., and the Director. Ms. de Villars and Mr. Irwin are members of the Institute Board. In addition to doing legal research, Mr. Dunlop talked to lawyers, trustees, and other people knowledgeable about and interested in the issue. The consultants agreed unanimously on two points. 1. The present situation in which non-insurance RRSPs are exposed to
creditors’ claims, while insurance RRSPs are virtually creditor-proof, is unfair and indefensible.
2. The Institute should address this problem and make recommendations for legal change.
There was no unanimity on what changes should be made, although most consultants felt that non-insurance RRSPs should be exempt. The limits on the exemption were more controversial. Mr. Dunlop also discussed the proposed project with counsel in the Department of Justice, and with the Superintendents of Insurance and Pensions. The Department of Justice lawyers and the Superintendent of Insurance agreed that there was a problem, and that the Institute should address it. The Superintendent of Pensions showed less enthusiasm for the Institute project, and said that the Superintendents of Pensions are developing draft uniform pensions legislation on their own. Mr. Dunlop’s discussion with Bernard Rodrigues, the Superintendent of Insurance, was significant. The Superintendent told Mr. Dunlop that the present redrafting of the Alberta Insurance Act affected only Parts 1, 2, and 3 of the Act. When the redrafted Parts 1, 2 and 3 are proclaimed on September 1, a new project will begin, which is the review of Parts 4 and following of the Act, including the sections exempting insurance from creditors’ remedies. The Superintendent is considering changes to the insurance exemptions to reflect and perhaps treat differently some of the new products, including annuities, RRSPs and RRIFs, now sold by insurance companies, Mr. Rodrigues indicated “keen” personal interest in
8 the Institute’s work on RRSPs, and suggested that he would listen to proposals from the Institute regarding the insurance exemptions sections, at least as far as annuities, RRSPs and RRIFs are concerned. He encouraged the Institute to take a broad view and look at the “whole problem.” Mr. Dunlop took this to mean that Mr. Rodrigues supports, even prefers, an extension of the Institute project to look at RRSPs, DPSPs, and RRIFs, whether sold by insurers or others. Mr. Dunlop started his research on the assumption that the principal reform model to consider was the ULC draft report of 1998 and the draft statute of 1999. He quickly learned, however, that there is a competing law reform exercise on foot. The Superintendent of Bankruptcy has created an Insolvency Task Force to consider changes to the Bankruptcy and Insolvency Act. The Task Force will propose an exemption of RRSPs and RRIFs surrounded by anti-abuse safeguards not in the ULC proposal. Mr. Dunlop has an earlier copy of the proposal drafted by a committee chaired by Robert Klotz, a lawyer practising in Toronto. The Task Force is also considering an idea, originally developed by Jacob Ziegel of the University of Toronto, that the Bankruptcy and Insolvency Act be amended to include an elective, alternative list of exemptions which may be chosen by the debtor in lieu of the provincial exemptions. The provinces will have no choice about opting in or out of this federal list; it is the debtor who will have the option of electing the federal list to apply to her bankruptcy. Debtors from jurisdictions with limited exemptions may well opt for the federal list, even though it will be relatively minimal. It is unlikely that debtors from more generous provinces, e.g., Alberta, will opt for the federal list. There was considerable disagreement in the Task Force on this proposal. There is no guarantee that the RRSP exemption or the federal alternative exemption list will find favour with the Superintendent of Bankruptcy or with the government. However, they do amount to alternatives to the model statute proposed by the ULC. B. Research Project Plan and Business Case 1. Objectives and Scope The issue in the Future Income Plans Project is whether RRSPs, DPSPs, and RRIFs should be wholly or partly exempt from execution and garnishment by creditors of the owner of the plan. Should the Alberta legislature enact the draft
9statute proposed by the ULC or should some other change to the law be recommended? The objectives of this project are to study the present law governing exemption of RRSPs, DPSPs, and RRIFs from the remedies available to judgment creditors, to publish a report proposing changes to the Civil Enforcement Act, the Civil Enforcement Regulation, and the Insurance Act, and to work with the government to carry the report forward into legislation. The scope of the project needs to be clearly defined. The project should consider the exempt status of all RRSPs, DPSPs, and RRIFs, whether issued by insurance companies or others. The report should not investigate other types of future income plans. In light of the ongoing discussions of reform by the Superintendents of Pensions, and the substantial differences between pensions and RRSPs, the project should not review the exemptions attaching to pensions, except briefly and by way of comparison. It is not anticipated that the project will have any formal connection with other law reform efforts, e.g., the Insolvency Task Force, meetings of the Superintendents of Pensions, and the review of the Alberta Insurance Act. Informal contacts and consultation will take place. A problem arises where an owner of an RRSP or RRIF dies, leaving creditors. The competition between creditors of the estate and the beneficiary of the RRSP or the RRIF has resulted in a diversity of decisions. In our view, this problem is in need of reform, but in a separate project. The problem of the dead owner of the retirement plan raises issues of trusts and the administration of estates which are better left to a broader study of those areas of law. The report may flag the problem as needing attention in a future study.3
3Section 92 of the Civil Enforcement Act provides that, where a debtor is deceased, exemptions of the debtor’s property continue in writ proceedings against the debtor’s estate as long as necessary “for the maintenance and support of the deceased debtor’s dependents.” The representative of the debtor’s estate may select the property to be exempt. It is doubtful whether this section applies to an RRSP with a named beneficiary. Would or should it apply where the beneficiary is “my estate”? The section might be reviewed in the present study if the larger trusts
10 Another problem with RRSPs is that the contributor may be in Alberta, but the company offering the plan may be in Ontario. The contributor may start the plan in British Columbia, then move to Alberta. These facts raise predictable questions of domestic jurisdiction and conflict of laws, but they should be left to
and administration of estates issues can be avoided. Or section 92 might just be flagged as a problem to consider in a later study.
11the courts to sort out, applying the present rules to the specific case of future income plans. This project should not consider these issues. Debtors on the eve of insolvency have been known to transfer their assets to trustworthy relatives, or to transform their property from a non-exempt to an exempt form,4 in an effort to defeat their creditors. Both federal and provincial legislation provide processes for creditors to challenge such self-serving transfers, although counsel and bankruptcy trustees have expressed doubt to us about the effectiveness of the present law against the determined debtor. The Institute is aware of the problems in the law of reviewable transactions, and may want to consider a project in the future to review provincial5 fraudulent conveyance and preference legislation. The Institute is unlikely to solve these complex and much debated problems as a footnote to the present report, although we should emphasize that the problems exist as a legitimate subject for a separate project. 2. Benefits and Drawbacks for the Institute and its Clients The present law draws a distinction between RRSPs issued by insurance companies, and those issued by other providers. People and groups consulted unanimously agreed that the present project was one which the Institute should take on. The government public servants expressed interest in the outcome. The Future Income Plans project should enhance the Institute’s reputation by making a significant contribution to law reform in Alberta. The project is not without dangers for the Institute. The exemption of RRSPs is a battleground between those favouring the exemption of all RRSPs, and those who reject further protection of debtors’ assets. The Insolvency Task Force includes anti-abuse limits in its proposal to exempt RRSPs and RRIFs in bankruptcy. The purpose of these limits is to make the exemption proposal more palatable to creditors and others who successfully opposed earlier recommendations. Government may be reluctant to venture into such a
4See e.g., Ramgotra (Trustee of) v. North American Life Assurance Co., [1996] 3 W.W.R. 457 (S.C.C.).
5Although one of the two major “provincial” acts is the English Statute of Elizabeth, passed in 1570, and still in force and in use in Alberta today.
12 controversial area. The Institute can expect criticism of the ULC blanket exemption against enforcement. The Institute might decide not to undertake the project because the problem involves controversial and significant policy issues. Sellers of RRSPs and similar products stand to win or lose market share, in part because of changes in the exemptions rules. Alternatively, the Institute might decide to wait until the Insolvency Task Force proposals have been debated. On the other hand, the disparity in the present law is glaring, and the consultants are unanimous that the problem is one which the Institute is equipped to address. Some of the criticisms of earlier reform efforts can be allayed by making a more limited and moderate proposal. It is crucial that the Superintendent of Insurance has indicated a “keen” interest in our recommendations, leading to the possibility of one exemption for insurance and non-insurance RRSPs, DPSPs, and RRIFs, coupled with anti-abuse limitations applying to all such plans. The Superintendent’s review of the relevant parts of the Insurance Act begins this September. For our report to be considered in this review, we ought to undertake our study now. Waiting for the federal Insolvency Task Force proposals to be debated and decided seems equally mistaken. The speed with which earlier proposals to amend the Bankruptcy and Insolvency Act have been decided does not give confidence that the present report will be fast tracked. More significantly, the Task Force proposals relate only to bankruptcy. They will have no effect on the substantial number of cases where judgment debts are enforced against debtors who are not in bankruptcy. If the federal exemption proposals do not become law, then any provincial exemption for RRSPs will continue to apply in bankruptcy. It is likely that the next few years will see a substantial law reform debate in several jurisdictions on the exemption of RRSPs. It is appropriate that this Institute should participate in that debate. The immediate impact of a decision to proceed with this project is that it will cost money which would otherwise be spent on other projects or activities. We are unable to comment on this issue except to observe that RRSPs, DPSPs, and RRIFs are widely used in the province, and that our society places a high value on the activity of saving for retirement. How to balance retirement saving against a
13workable and effective judgment collection system is the subject of this study; it is a balance that this Institute has discussed in earlier reports, and is able and well positioned to consider again. If our report fairly addresses the difficult policy issues, it will add to the reputation of the Institute and attack a pressing and difficult issue of social and economic policy. 3. Project Management Methodology and Structure This project should follow the structure and methodology laid out in the Project Management and Business Case Guide, a synopsis of which was provided to the Group. Several comments should be made. (1) Lead counsel, in consultation with the Director and the Project Management Group, will make a list of 4 people to be members of the Edmonton Project Advisory Committee, and 3 people to be members of the Calgary Project Advisory Committee. The Director or lead counsel will invite these people to meet later in the project to discuss a consultation memorandum and a draft final report. Lead counsel, co-counsel, members of the Project Management Group, and perhaps the Director should meet with the Edmonton Committee. Lead counsel, co-counsel, and perhaps the Director should meet with the Calgary Committee. (2) Given the relatively small size of this project, it is proposed that the bulk of the research, consultation and writing work will be done by lead counsel, assisted by a research assistant. Co-counsel will have a number of significant roles to play, including the following: Χ reviewing some of lead counsel’s research and double-checking his
conclusions, Χ attending some consultations and Canadian Bar Association subsection
meetings, Χ attending (and taking minutes of) Project Management Group meetings and
Project Advisory Committee meetings, Χ reading and commenting on various drafts of the consultation memorandum,
the final report, and other documents, and Χ ongoing discussion of the project with lead counsel and others.
14 (3) The Future Income Plans project is not large enough to justify division into sub-projects. (4) Lead counsel will make regular written reports to members of the Project Management Group and the Project Advisory Committees on the progress of the project. Significant changes in the project will be discussed at meetings of the Group and the Committees. 4. End Results The end result of this project should be a report on the problem, including recommendations for amendments to the Civil Enforcement Act, the Civil Enforcement Regulation, and the Insurance Act. The publication of the report should be followed by efforts to convince the government to act on the report’s recommendations. An alternative is to publish a report for discussion setting out the problem and inviting feedback but without any recommendations or proposed amendments. In our view, this is neither necessary nor desirable. Judging by the consultations, the problem is well known, at least among the professional and business people who experience it in their practice or business. The issues are few in number, and fairly clear cut. Questions about exemptions policy in creditor-debtor law have often been aired by this Institute in a series of reports, leading to Enforcement of Money Judgments: Report No. 61, published in 1991. It would seem appropriate to move at once to a final report. Should the report include helpful advice to the federal government or the Superintendent of Bankruptcy as to possible changes to the Bankruptcy and Insolvency Act? In our view, the answer at present is no. The Superintendent of Bankruptcy has created the Insolvency Task Force to give him exactly this kind of advice, and that Task Force will produce its report long before our report is complete. Any proposals to amend the Bankruptcy and Insolvency Act will involve substantial additional research and writing time, as well as extended consultations on a complex field of law and policy. The ULC suggestions about bankruptcy were sharply criticized and described as “unworkable” by the Insolvency Task Force committee on RRSPs. Only extensive additional work would save us from similar criticism. Further work may lead us to change our
15minds on this limitation, but our present view is that the Institute should not advise the federal government on the treatment of RRSPs, DPSPs, and RRIFs in bankruptcy. 5. Work Plan I attach a timetable and a budget projection for the final report as described above. The project will take place in the following stages: a. Research The legal research includes an examination of the exigibility, garnishability, and exemptions of RRSPs, DPSPs, and RRIFs, and (more briefly) insurance and pensions. We will review the extensive case law on RRSPs, DPSPs, and RRIFs. It may be useful to examine the genesis and history of the RRSP sections of the Income Tax Act, and the exemption sections of the Insurance Act. Some research into relevant aspects of bankruptcy and insolvency law will be useful. I attach a bibliography. We want to do some research into the different approaches to reform and the different models of exemption provisions. The project raises basic questions of social and economic policy which lead us outside the usual legal research model. How has our society worked out its present system of incentives to save for retirement? We will seek advice on relevant policy issues. On a more technical level, we need to consider the integration of new exemption sections into the present Civil Enforcement Act, the Civil Enforcement Regulation, and the Insurance Act. A third area of research is fact-based. We need to do some work on the nature of the RRSP, DPSP, and RRIF industry. Who sells these products? What kinds of agreements are sold? It would be useful to look at representative contracts. It is contemplated that lead counsel will do this research, with the help of a research assistant, although continuing discussions will take place between lead counsel and co-counsel. b. Limited Consultation
16 Lead counsel, sometimes with co-counsel, will talk to subsections of the Canadian Bar Association and other groups. Some consultation will take place with individuals and groups interested in and knowledgeable about the problem. I attach a list of people and groups consulted already, as well as people who should be consulted during this and later stages. c. Writing Consultation Memorandum Lead counsel, with the advice of co-counsel, will write the consultation memorandum. The memorandum will describe the present law, identify different approaches to reform, ask specific questions, and include possible amendments to the Civil Enforcement Act, the Civil Enforcement Regulation, and the Insurance Act. This exercise may raise some drafting problems. The consultation memorandum will be discussed with the Project Management Group, the Project Advisory Committees, and the Board, and will then be circulated to interested individuals and groups. d. Consultations on Consultation Memorandum The consultation memorandum will be discussed with individuals and groups interested in and knowledgeable about the problem. See attached list of names. This is a crucial stage of the project as people are more likely to react to specific questions and proposals. It is intended to post the consultation memorandum on the ALRI website, and to place notices or articles in the Law Society Newsletter. Given the representative character of the people we are consulting with, and the specialized nature of the subject, it is not necessary to engage in a public consultation process. e. Writing Final Report Lead counsel, with the assistance of co-counsel, will write the final report in light of the responses received during consultations. The final report will be circulated to a limited number of consultants, and revisions may be made. The final report will then be discussed with the Project Management Group, the Project Advisory Committees, and the Board. f. Board Approval of Final Report; Publication; Implementation The Board will discuss the final report and may approve it as is or with amendments. Further revisions of the report will follow. The final report will be
17approved, prepared for publication, and published. The report will be tendered to the relevant departments of the government and discussed with them. The final step is a formal close down of the project, including the finalizing of documents, and a final reconciliation of the project costs. It should be noted that, if the scope of the project is extended to include (1) exemption of pensions from creditors’ remedies, (2) the treatment of RRSPs and RRIFs after the depositor’s death, (3) conflicts and jurisdictional questions, or (4) fraudulent conveyances and preferences, the above plan will be somewhat modified. See notes at end of attached Timetable and Budget Projection. 6. Resources Required We believe that the project will require the use of the following resources: Lead counsel (Dick Dunlop) Co-counsel (Cynthia Martens) Student research assistants for entire period of project Administrative and support staff Report editing and indexing Proofreading Actuary
18 C. List of Actual and Potential Consultants 1. People Consulted during Research Project Planning Phase (Many of these people should be consulted again.) Χ Geoff Ho, Alberta Department of Justice Χ Rick Reeson, Witten Χ Sean Fitzgerald, McNiven Χ Michael McCabe, Reynolds Mirth Χ Jim Davidson, KPMG, trustee in bankruptcy Χ Richard Edwards, BDO Dunwoody Limited, trustee in bankruptcy Χ Ron Graham, past president, Canadian Association of Financial
Planners Χ Wayne Kauffman, Associate Executive Director, Institute of Chartered
Accountants of Alberta Χ Dave Stewart, Assistant Superintendent of Bankruptcy, Regulatory
Affairs and Consultations, Industry Canada, Ottawa Χ Darrell Shalley, Division Assistant Superintendent of Bankruptcy,
Industry Canada, Edmonton Χ Philip Renaud, Duncan Craig Χ Donna Molzan, Alberta Department of Justice Χ Clark Dalton, Alberta Department of Justice Χ Françoise Belzil, Sharek Reay Χ Larry Robinson and Sean Collins, Miller Thomson Χ Graham Wetter, Corporate Counsel, Credit Union Central Alberta Χ Bob Klotz, a lawyer in Toronto who chairs a committee of the
Insolvency Task Force interested in RRSPs (by email) Χ Paul Griffin, of the Canadian Bankers Association (by email) Χ Gail Armitage, Superintendent of Pensions, Government of Alberta Χ Bernard Rodrigues, Superintendent of Insurance, Government of
Alberta 2. People to be Consulted during Final Phase Χ David Baird, Torys, Toronto, Insolvency Institute
19Χ Dave Bromwich, trustee in bankruptcy Χ Steven Cooke, Credit Institute of Canada, Edmonton Chapter Χ Edward A. J. Rothberg. Associate General Counsel, Canadian
Association of Insurance and Financial Advisors Χ There are numerous groups and people who were consulted by the
ULC. Those names should be used by us in this project. D. Bibliography Books and Articles in Books Alberta Law Reform Institute, Beneficiary Designations: RRSPs, RRIFs and Section 47 of the Trustee Act: Report No. 68 (1993) Françoise Belzil, “Seizure of Personal Property,” in Legal Education Society of Alberta, Civil Enforcement Act (1996) Richard H. Bowes, “Receivers and Special Remedies,” in Legal Education Society of Alberta, Civil Enforcement Act (1996) Susan Robinson Burns, “Exemptions,” in Legal Education Society of Alberta, Civil Enforcement Act (1996) Susan Robinson Burns, “Garnishment,” in Legal Education Society of Alberta, Civil Enforcement Act (1996) C.R.B. Dunlop, Creditor-Debtor Law in Canada (second edition 1995) Lloyd W. Houlden and Geoffrey B. Morawetz, The 2001 Annotated Bankruptcy and Insolvency Act (2001) [The standard and more recent books on bankruptcy and insolvency will be helpful as many of the relevant cases involve bankrupts.] Michael J. McCabe, “Execution against Personal Property,” in Canadian Institute, Debtors and Creditors: Protection to Collection in an Uncertain Economy (1987) David Norwood and John P. Weir, Norwood on Life Insurance Law in Canada (second edition, 1993) [The other texts on insurance should be checked.] Richard W. Pound, ed., Stikeman: Income Tax Act Annotated (28th edition, 1999) [There are Canada Customs and Revenue Agency Interpretation Bulletins, Information Circulars and other documents on the tax treatment of RRSPs, DPSPs, and RRIFs. There are numerous texts and articles on income tax which may help.]
20 Lyman R. Robinson, British Columbia Debtor-Creditor Law and Precedents, Carswell (1993, looseleaf updates) Ray Rutman, Brian Summers, John Prowse, and Jeremy Hockin, Creditors’ Remedies in Alberta (second edition, 1996, looseleaf updates) M.A. Springman and Eric Gertner, “Enforcement Against Life Insurance, Pensions, and RRSP’s”, in M.A. Springman and Eric Gertner, eds. Debtor-Creditor Law: Practice and Doctrine (1985) [Statistics Canada] Retirement Savings through RPPs and RRSPs: 1991 to 1995 (1997) [Is there a more recent collection of similar statistics?] Articles and Annotations in Periodicals Peter L. Biro, “The Erosion of Life Insurance RRSP Immunity from Creditor’s Claims,” (1993), 13 Estates and Trusts Journal 153 William A. Brackney, “Creditors’ Rights in Life Insurance,” (1998), Probate and Property 52 Jeffrey C. Carhart, “The Creditor Proof Status of Life Insurance Products in Ontario,” (1999), 16 National Insolvency Review 41 Robert J. DeMichelis, “The Rights of Creditors in Life Insurance Policies,” [1964] University of Illinois Law Forum 592 Lloyd W. Houlden, “Life Insurance Contracts in Ontario,” (1963), 4 Canadian Bankruptcy Reports (New Series) 113 Anita B. Kagna, “Execution Against Insurance RRSPs,” (1995), 10 National Creditor Debtor Review 42 Steven Kleiner, “Registered Retirement Savings Plans Owned by Bankrupts: Recent Change in the Law,” (1977), 24 Canadian Bankruptcy Reports (New Series) 239 Robert A. Klotz, “Wrestling with Pensions, Bankruptcy and Family Law,” (1992), 9 Canadian Family Law Quarterly 189 F. Jennifer Lynch, “The Exigibility of Pensions,” (1984), 36 Reports of Family Law (2d) 137 Michael J. McCabe, “Execution against an R.R.S.P.,” (1990), 76 Canadian Bankruptcy Reports (New Series) 218
21 David McKee, “Debtor-Creditor Issues Affecting Annuity Contracts,” (1993), 12 Estates and Trusts Journal 242 David McKee, “Creditor Protection: Basic Principles and Supreme Court Decision Impacts,” (1996), 16 Estates, Trusts and Pensions Journal 153 Colin H.H. McNairn, “Investments in Segregated Funds: Their Protection from Creditors,” (1996), 27 Canadian Business Law Journal 161 McReynolds, “Sheltering RRSP Assets from Creditors at Death” (1982-83), 6 Estates and Trusts Quarterly 106 Asher Neudorfer, “Exempt Property and Pensions,” (1985), 2 Canadian Insolvency Review 87 David Norwood, “The Life Insurance Family Beneficiary,” (1994), 13 Estates and Trusts Journal 256 Stefan Riesenfeld, “Life Insurance and Creditors’ Remedies in the United States,” (1957), 4 UCLA Law Review 584 Edward A.J. Rothberg, “Life Insurance and Creditor Protection: Review and Update, 2000,” (2000), 19 Estates, Trusts and Pensions Journal 269 Glenn Stephens, “Update on Creditor Protection,” (1998), 18 Estates, Trusts and Pensions Journal 119 Brian Taylor, “Execution against R.R.S.P.’s,” (1985), 1 National Creditor/Debtor Review 13 Cases and Statutes - Not listed. Uniform Law Conference - reports not listed
22 E. Timetable DATE STAGE ACTIVITY
Sept. 28, 2001 Select project Board meeting Χ approves research project plan
and business case. Χ adopts future income security
plans project.
October, 2001 - December, 2001
Conduct research Do research into nature of RRSP, DPSP, and RRIF industry: who sells products, what is sold, contracts. Do research into existing Alberta law and (briefly) bankruptcy and insolvency law. Do some research into exigibility, garnishability, and exemptions of RRSPs, DPSPs, RRIFs, and pensions. Review extensive caselaw on RRSPs, DPSPs, and RRIFs. Look at genesis and history of RRSP sections of Income Tax Act, and exemption sections of Insurance Act. Do research into different approaches to reform and different models of exemption provisions, including basic questions of social and economic policy. Consider integration of new exemption sections into present legislation.
Note: lead counsel will do this research, with the help of a research assistant. Throughout this process, continuing discussions will take place between lead counsel and co-counsel.
October, 2001 - January, 2002
Limited Consultation
Talks by lead counsel to Bar Subsection meetings; discussions and correspondence with experts and representatives of relevant groups.
23
DATE STAGE ACTIVITY
Note: lead counsel will do these consultations, sometimes with co-counsel. The consultation will be with individuals and groups interested in and knowledgeable about the problem. Given the representative character of the people we are consulting with, and the specialized nature of the subject, it is not necessary to engage in a public consultation process.
December, 2001 - February, 2002
Consultation Memorandum
Write consultation memorandum Χ describe present law Χ identify different approaches
to reform Χ write questions Χ write possible amendments to
Civil Enforcement Act, Civil Enforcement Regulation, and Insurance Act.
March, 2002 Consultation Memorandum
Discuss Consultation Memorandum in Project Management Group and Project Advisory Committees. Document is approved with or without amendments.
April, 2002 Consultation Memorandum
Board meeting to discuss Consultation Memorandum.
April, 2002 - June, 2002
Consultation on consultation memorandum
Circulate consultation memorandum to interested individuals and groups. Consult with individuals and groups.
June - July, 2002 Final report Write final report.
August, 2002 Limited consultations on final report
Limited consultations on final report; revisions.
September, 2002 Approving final report
Meeting of Project Management Group to approve final report or amend it; further revisions of final report. Discussions with Project Advisory Committees.
24
DATE STAGE ACTIVITY
November, 2002 Approving final report
Board meeting Χ discuss final report Χ approve as is or with
amendments; further revisions of final report; further approval of revised report by Board if necessary
February, 2003 Publication of final report
Preparation of final report for publication; editing, indexing, seeing final report through press
March, 2003 on Implementation Discussions of final report with relevant public servants and Government representatives
March, 2003 Formal Close Down
Finalize documents, reconcile project costs
Notes 1. If the scope of the project is extended to include exemption of pensions from creditors’ remedies, the following changes in the above timetable may be expected: Χ 2-3 weeks additional research by counsel Χ 2 weeks additional consultation Χ dates in above timetable are moved forward 1-2 months Χ one additional meeting of the Project Management Group Χ two additional meetings of the Project Advisory Committees. Χ cost implications are noted at the end of the Budget Projection. 2. If the scope of the project is extended to include the treatment of RRSPs and RRIFs after the depositor’s death, the following changes in the above timetable may be expected: Χ 4 weeks additional research by counsel (or the selection of a co-counsel
with expertise in trusts and estates) Χ 4 weeks additional consultation Χ dates in above timetable are moved forward 2-3 months Χ one additional meeting of the Project Management Group
25Χ two additional meetings of the Project Advisory Committees. (The
composition of the Project Advisory Committees will have to reflect the increased complexity of the project.)
Χ the project might be divided into two sub-projects, one dealing with the present study, and the other dealing with the RRSP as part of the depositor’s estate
Χ cost implications are noted at the end of the Budget Projection. 3. If the scope of the project is extended to include (i) jurisdictional and conflicts issues or (ii) fraudulent conveyances and preferences, changes to the above timetable will need to be made, similar to the changes described in point (2) - the dead depositor. F. Budget Projection ITEM AMOUNT Personnel1 $125,000 Counsel 95,000 Research Assistant 4,000 Director 9,000 Board 9,000 Administrative 8,000 Publications1 Consultation Memorandum $ 4,000 Printing 2,500 Distribution 1,500 Final Report $ 9,000 Printing 5,000 Distribution 4,000 Project Management Group Meetings1 $ 500 Meals/Refreshments 400 Room rental contingency 100 Project Advisory Committees1 $ 2,700 Meals/Refreshments 700 Travel 1,800 Room rental contingency 200 Counsel travel and accommodation1 $ 4,000 Transportation 3,500 Accommodation 500
26 Purchase of time of actuary1 $ 2,000 Resource acquisitions $ 1,000 Overhead Costs $ 2,000 INTERIM TOTAL $ 150,200 Add 15% contingency allowance $ 3,800 (non salary) TOTAL $ 154,000 Budget Notes 1. If the scope of the project is extended to include exemption of pensions from creditors’ remedies, the following changes in the Budget Projection may be expected: - additional time of counsel (100 hours) $ 7,200 - 1 additional meeting of the Project Management Group $ 100 - 2 additional meetings of the Project Advisory Committees $ 1,000 Total $ 8,300 2. If the scope of the project is extended to include the treatment of RRSPs and RRIFs after the depositor’s death, the following changes in the Budget Projection may be expected: - additional time of counsel (200 hours) $14,400 - 1 additional meeting of the Project Management Group $ 100 - 2 additional meeting of the Project Advisory Committees $ 1,000 Total $15,500 3. If the scope of the project is extended to include (i) jurisdictional and conflicts issues or (ii) fraudulent conveyances and preferences, changes to the above Budget Projection will need to be made, similar to the changes described in point (2) - the dead depositor.
271. Personnel. The Counsel figure includes the time of both counsel, and GST on lead counsel's accounts. It is estimated that lead counsel will spend 1196 hours on this stage of the project, including time spent on administrative requirements of the Institute not directly related to project. It is estimated that co-counsel will spend 115 hours on the project. Research assistance is based on 200 hours. The Board is expected to spend 1.5 days of meetings over the course of the project. It is estimated that the Director will spend approximately a half day a month over 16 months. The administrative hours are based on 2 hours a week. All hour estimates have been increased by 15%. 2. Publications. 500 copies of the consultation memorandum, photocopied and coil bound; 2200 copies of approximately 150 page final report published and distributed in the usual way. The estimates include printing and postage. These documents will also be posted on the ALRI website. 3. Project Management Group Meetings. Assumes facility provided at no charge by U. of A or the Law Society. The figure is based on 7 persons, all based in Edmonton. Two meetings will be lengthy, requiring meals. All meetings require refreshment. 4. Project Advisory Committee Meetings. Assumes that the Edmonton Project Advisory Committee includes members of Project Management Group. Assumes that the Edmonton Project Advisory Committee has 4 members (not counting Project Management Group members), and that the Calgary Project Advisory Committee has 3 members. Assumes facility provided at no charge by U. of A, U. of C., or the Law Society. The travel figure assumes the Edmonton Committee has 2 meetings with Counsel, Co-counsel, and possibly Director, and the Calgary Committee meets twice in Calgary with Counsel, Co-counsel, and possibly Director. 5. Counsel Travel and Accommodation. Lead counsel will travel to Calgary to consult with people and groups, and to speak to Bar subsection meetings. The figure assumes 7 separate trips to Calgary, and 4 overnight stays. The figure therefore includes airfare (or automobile mileage), taxi fares in Edmonton and Calgary, the Edmonton airport improvement tax, hotel accommodation and per diem expenses (meals, etc.). There are also incidental expenses associated with travel in Edmonton (e.g., parking). We assume some entertainment costs. 6. Actuary. If we were to consider a dollar cap to the exemption of an RRSP or similar plan, we might retain an actuary or similar person to help us with the calculations to determine the amount of income which would generate an appropriate income flow during retirement. The figure in this budget is speculative and may need to be adjusted and approved at a later point if this work is more extensive than anticipated.
28
APPENDIX 3 1.3 Sample of Board Material – project proceeding to a Final Report stage
DATE: January 8, 2003
TO: Board Members
FROM: W. H. Hurlburt, Q.C.
RE: Enduring Powers of Attorney
M E M O R A N D U M Purpose of Memorandum It is hoped that this memorandum and materials will be enough to enable the Board to make all remaining decisions and direct that a final report reflecting the decisions made on all issues be prepared and issued, subject to the Director’s approval. The memorandum will first deal with two subject areas that have been discussed but not fully disposed of: 1. Notice, accounting and inspection obligations: default position and donor’s
choices. 2. Transitional provisions. Then, the memorandum will put forward a draft final report. Some notes to the Board are interspersed to draw minor points to the Board’s attention, and some questions to the Board are also included. Notice, accounting and inspection obligations: default position and donor’s choices The Board has agreed that an attorney should be required to do the following: Χ give notice of intention to act under an EPA; Χ prepare and maintain a list of the property and rights of which the attorney takes
control; Χ prepare and maintain a list of transactions; Χ allow one or more persons to inspect and copy the records so kept. I do not think that the list of persons entitled to receive notice, inspect and copy, has been fully agreed upon. This discussion will start at Square 1 on the point. The questions are: Χ how is the list of entitled persons (whom I will call “qualified persons) to be arrived
at?
Χ should the donor be permitted to opt out of the new notice, accounting and inspection safeguards completely?
I propose to define “family member” to include an adult spouse, child, parent, grandparent, brother or sister of the donor. An AIP would be added to the list when Bill 30-2 is proclaimed. This would be the default list of “qualified persons”. There was some discussion as to whether it is comprehensive enough. There was, I think, a suggestion that an “interested person” should be entitled to inspect. An “interested person” is useful enough when they have to come to court and satisfy the court that their interest is legitimate, but it seems to me that the Act should not allow someone to come in off the street and demand to inspect the donor’s private information.
Question 1 for the Board (which could be answered now or later): Is this list of “family members” appropriate? If not, what additions or deletions should be made?
It seems to me that the total list of “qualified persons” might include either or both of two elements: (1) persons designated by the donor in the EPA, and (2) family members. The notice, accounting and inspection safeguards are important for the protection of donors. The default provisions should take this into account. As noted above, I think that the default position should be that all family members are “qualified persons”. It is clear that the donor should be able to designate “qualified persons”. This is a necessary incident of personal autonomy. There is, however, a question as to whether a donor should be able to exclude any or all family members from the list, or whether the need for safeguards should override this aspect of personal autonomy. Not all families are united. A donor may want to exclude a family member from all knowledge of or intrusion into the donor’s affairs. Provision should be made for a power of exclusion unless it is incompatible with the degree of protection which the law should provide. A downside to an unlimited power of exclusion is that an attorney might persuade a donor to exclude all of the donor’s family members and designate a person who is not likely to raise any difficulties in the attorney’s way. Unless the power to exclude is made conditional upon the donor designating a “qualified person”, there would be a further downside in that the donor could effectively opt out of the accounting safeguards by excluding all family members and not designating a “qualified person”. However, by requiring the donor to address their mind to the point if they do not want the default
30 position, an unlimited power of exclusion would recognize individual autonomy and choice. It seems to me that an unlimited power of exclusion is the appropriate choice. If a donor is content with the default position, they need not do anything, which is a form of choice. If the donor wishes to change the default position, they can do so, but they must address their mind to the question and make a decision. Note, however, the following considerations: Χ If our standard is absolute perfection, that is, that there must always be an
independent notice-receiver and inspector, this recommendation would not achieve it, but it does seem to me that it provides reasonable safeguards that will be reasonably effective, having regard to the undesirability of imposing a harness that will make EPAs unattractive.
Χ The “family members” requirement would not, in any event, be of much use if there is no family member.
Χ The only way to ensure that there is an independent notice-receiver and inspector would be to tighten up the independence provisions for notice-receivers/inspectors and put the Public Trustee in if there is no sufficiently independent notice-receiver/inspector, but I don’t think that is in the cards.
Χ We could say in positive tones that the donor must designate an independent person. But, if so, what would be the consequence of a failure to do so? We wouldn’t want to invalidate the EPA for that reason, without more.
Χ The right of an “interested person” to apply for an accounting under PA 10 will not be affected by ALRI’s recommendations, so that these would not derogate from any existing safeguard. Question 2 for the Board (1) Should the default position be that all family members and no one
else are “qualified persons”? (2) If not, what should be the default position be? (3) Should the donor be able to exclude an or all family members
without designating a “qualified person” and thus effectively opt out of the notice, accounting and inspection safeguards?
(4) Should the donor be able to exclude family members only if they designate a “qualified person”?
(5) Is Recommendation 2 in the draft report satisfactory, and, if not, what changes should be made in it?
The text of the draft report leading up to draft Recommendation 2, and draft Recommendation 2 itself, are based on (a) the default position suggested above (all family members as defined are qualified persons) and (b) an unrestricted power in the donor to designated and exclude “qualified persons”. A square-bracketed option in Recommendation 2 would allow the donor to exclude family members only if the donor designates a person.
31 Recommendation 2 from the draft report is reproduced here for convenient reference: Recommendation No. 2 (1) We recommend that the Powers of Attorney Act be amended to provide that an
attorney under an Enduring Power of Attorney must, in addition to all other duties imposed by law:
1. before or within 30 days after exercising any power or authority under the enduring power of attorney,
1. (A) if the EPA is a springing power of attorney, or (B) if the EPA is a continuing power of attorney and the donor has
become mentally incapable or infirm, give notice to every qualified person known to the attorney that the attorney intends to act or continue to act under the enduring power of attorney, as the case may be; (ii) prepare, and thereafter maintain and update, a list of the property
and rights of the donor of which the attorney takes control; (iii) commence to maintain, and thereafter maintain and update, a
record of all transactions by which the donor deals with property or rights of the donor other than usual small cash transactions, which may be recorded in totals; and
(b) upon request and at reasonable intervals allow any qualified person to inspect and make copies of EPA and the lists and records that the attorney is required to maintain.
(2) A qualified person for the purposes of this Recommendation is: (i) a family member of the donor, being an adult spouse, [Adult
Interdependent Partner], child, parent, grandparent, brother or sister of the donor, or
(ii) a person designated in an EPA (A) to receive the notice that the attorney proposes to act, or (B) to inspect the EPA and the records that an attorney is required
to maintain, as the case may be.
(3) A person who is designated under (2)(ii) must not be a spouse [or Adult Interdependent Partner] of an attorney named in the EPA.
(4) [If a donor designates a person under (2)(ii),] the donor may in the EPA exclude a family member from receiving the notice or inspecting the records, or both, and a family member who is excluded by the EPA is not a qualified person for that purpose.
(5) We recommend that the Powers of Attorney Act be amended to provide that: (a) if an attorney refuses to allow a qualified person to inspect the EPA and
the lists and records that the attorney is required to keep, or if the lists and records do not comply with the requirements, the qualified person may request the Public Trustee to direct the attorney to provide copies of the EPA and the lists and records to the Public Trustee.
32 (b) if in the opinion of the Public Trustee an attorney has not complied with
the requirements, the Public Trustee may direct the attorney to provide the Public Trustee with copies of the EPA and the lists and records.
(c) after considering any expressed wishes of the donor, the Public Trustee may allow a qualified person to inspect the copies of the EPA and the lists and records.
(d) The Court may, on the application of the person or the Public Trustee, order the attorney to allow the person, the Public Trustee or other person as the Court deems fit, to inspect the EPA and the lists and records and make copies thereof.
TRANSITIONAL The proposition that was put to the Board in December was, in effect, that the accounting and inspection obligations should apply to pre-amendment EPAs, but that a pre-amendment attorney might well be unaware of the enactment of the amendments, so that their obligations should not arise until 60 days after notice was given to the attorney to perform the obligations. The Board accepted the notice principle, but thought that the obligations should apply to a pre-existing EPA unless the attorney had already commenced to act, in which case the notice would be required to activate the obligations. There is, unfortunately, a fatal flaw in a notice proposal of this kind. It is that a pre-amendment attorney, or a pre-amendment attorney who had commenced to act, would never be subject to the accounting and inspection obligations unless and until one of a specified group gave a specific form of notice. That is, an attorney who is perfectly aware of the requirements could simply ignore them until someone gives notice, and a later notice could not require accounting records to be prepared for periods before the notice is given. Even if the provision was that the obligations came into force on demand by a “qualified person” the attorney might be left alone for years. While an attempt could be made to say that the obligations arise if either (a) a notice is given or (b) the attorney knows or ought to know that the amendments impose accounting obligations, the practical complexity of the legislation and the difficulty of showing knowledge would make the game not worth the candle. In the result, I now think that the accounting and inspection obligations should simply be imposed on both pre- and post-amendment EPAs. It may be somewhat unfair to an attorney to impose new obligations retrospectively, but the record-keeping is something that an attorney ought to do anyway, and the inspection obligation would inevitably be brought to an attorney’s attention before it becomes effective. The notice of intention to act could, I think, be imposed on a pre-amendment attorney who has not yet acted. It doesn’t make sense to impose it on one who has commenced to act, as it would have to be a notice that they are acting. Question 3 for the Board
(1) With respect to pre-existing EPAs, should the obligation to give notice be imposed and imposed only upon attorneys who have not
33 commenced to act, and, if not, on what attorneys should the obligation be imposed?
(2) Should the record-keeping and inspection obligations be imposed prospectively on all attorneys under pre-existing EPAs, and, if not, on what attorneys should the obligations be imposed?
(3) Is Recommendation 3 satisfactory, and, if not, what changes should be made in it?
I reproduce Recommendation 3 from the draft report here for convenient reference: Recommendation No. 3 We recommend that the following transitional provisions be made: (1) Recommendation No. 1 (requirement of lawyer’s certificate or witness’s
affidavit) should apply only to EPAs signed after the amendments giving effect to our Recommendations come into force;
(2) Recommendation 2(1)(a)(i) (notice of intention to act) should not apply to an EPA signed before the amendments come into force if the attorney has commenced to act under the special EPA powers and the contingency specified in section 5(1) of the Act has occurred.
(3) The remainder of Recommendation 2 (accounting and inspection obligations and related procedures) should apply to all EPAs, whether signed before or after the amendments come into force.
CONSIDERATION OF REMAINING CONTENT OF DRAFT REPORT I suggest that the Board now consider the draft report as a whole, probably calling each page or group of pages and approve its provisions or give directions with respect to them. FORM OF DRAFT REPORT ALRI reports customarily deal with background and preliminary issues first and then go on to the reasons and recommendations for change. I thought that I would experiment with a different format to see whether it would improve reader-friendliness. I have therefore put the reasons and recommendations near the beginning of Part II-Report with the minimum of discussion necessary to enable the reader to understand what is going on. This runs to some 13 pages. After completing the discussion and recommendations I have put a listing and discussion of proposals considered but not adopted. Then I have attached Appendix A (Consultation), Appendix B (Research) and Appendix C (Safeguards in other jurisdictions).
34 Question 4 for the Board
(1) Does the Board approve the format described above? (2) What comments and directions does the Board have with respect to
the content and drafting of the report? (3) Is the draft report satisfactory, subject to changes arising from the
Board discussions?
Question 5 for the Board What directions does the Board have for the completion and issuance of a final report?
35 APPENDIX 4 1.4 Sample of Board Material – project where there is a change in process
PROJECT DECISION MATERIALS
Name of Project: Counsel: Board Meeting Date:
Succession Project Debra Hathaway January 18, 2002
Project Description:
In a series of 3 reports for discussion, recommend substantive revision of the remaining areas of succession law and, as a final report, prepare annotated consolidated model legislation
Project Outline: * Project handled by Janice Henderson-Lypkie until end of 2000 * Mar-June /01: review of materials by current counsel and preparation of Wills Act issues list * July-Aug /01: circulation of issues list to PMC for input; some initial Wills Act research begun * Sept-Oct /01: circulation of issues list to PAC for input; preparation by counsel of project’s Management Plan and Work Plan * Oct 29/01: PMC consideration of Management and Work Plans * Nov-Dec /01: preparation of new Management Plan and Work Plan in accordance with PMC directions
Project Commencement Date:
This aspect of the project appears to have started sometime in 2000. The Succession Project as a whole commenced in the early 1990s.
Project Schedule: Has not yet been formally set
Last Board Attention: Action taken:
September 22, 2000 Board determined project structure but not budget or timetable
Plan for this Board Meeting:
1. Consider PMC recommendation that this project be restructured. Please see the following attached documents: (a) Memo from A. de Villars, Q.C., Chair of PMC, dated Dec 5/01 (b) Draft Management Plan (c) Draft Work Plan
36
DATE: December 5, 2001
TO: ALRI Board Members
FROM: Anne de Villars, Q.C., Chair of Succession Project Management Committee
RE: Restructuring the Succession Project
M E M O R A N D U M 1. Recommendation The Project Management Committee of the Succession Project6 recommends to the Board that this project be restructured. This memorandum will outline the current project structure, its problems and the new recommended approach. 2. Current Project Structure At the Board meeting of September 22, 2000, the Board decided that the Succession Project would proceed in the following manner. Three successive Reports for Discussion will be prepared recommending substantive reform in areas of succession law not yet addressed by ALRI. The first Report for Discussion will address reform of the law of wills, the second will address reform of the law of administration of estates and the third will propose reform of other areas of succession law such as family relief, effect of beneficiary designations, etc. Each Report for Discussion will be distributed for comments and input from the public, legal profession and others. After receiving the responses from each Report for Discussion, the Board will decide on its final recommendations for each area of succession law. However, rather than issuing three separate final Reports at successive stages of the project, there will be only one final Report at the end of the entire process that will take the form of annotated model consolidated legislation. This model statute would create the proposed legislative framework to consolidate existing statutory law into a single Act, incorporate ALRI proposals from previously completed Reports on succession law and add the new ALRI recommendations for reform arising out of the immediately preceding Reports for Discussion.
6The committee consists of Anne de Villars, Q.C. (Chair), Alan D. Fielding, Q.C., Peter J.M. Lown, Q.C., Justice Bonnie L. Rawlins and Debra Hathaway (Lead Counsel).
37
At the September 2000 Board meeting, no decision was made concerning a timetable for the project. Clearly, however, the Board was committing itself to a large, multi-year endeavour structured as a single project. 3. The Project Planning Process The earlier stages of the Succession Project predate ALRI’s adoption of our new project planning process. At its September 2000 meeting, the Board did not have the benefit of seeing a comprehensive Project Management Plan with an estimated project timetable and budget. After becoming familiar with the work done to date on the Succession Project, the current Lead Counsel was directed to prepare a Project Management Plan and Work Plan. The Project Management Committee reviewed these Plans at a meeting on October 29, 2001. The planning process revealed that, as currently structured, the Succession Project will require the advance commitment of a very large amount of time and resources. It is estimated that, chronologically, successive completion of all 4 phases of the project would take approximately 6 ½ years in total, taking into consideration such factors as a 15% contingency rate, the competing demands on counsel’s time from the Rules Project over the next 2 years and the amount of holiday entitlement to be taken over the period. The estimated budget for the entire project was $952,600. 4. Problems Arising Out of the Current Project Structure The Project Management Committee remains committed to recommending legislative consolidation and reform of the remaining areas of succession law. However, the Committee questions whether it is in ALRI’s best interests to achieve this by means of a single large project. Some factors that make large projects problematic are: Χ Committing ALRI’s financial and human resources to a large multi-year project
means that those financial and human resources won’t be available if other, more pressing potential projects arise during that time frame. It limits ALRI’s flexibility to respond to changeable reform needs.
Χ From the perspective of the wider legal and government community, long single
projects like this may carry a negative connotation for ALRI. Such projects might be feasible once in a while for a special undertaking like the Rules Project but if large, multi-year projects become too prevalent, ALRI could end up looking ponderous.
Χ Applying our new project planning methodology to such a large and undefined
project reveals that many unknown variables exist and major assumptions have to be made in order to project time and financial figures so far into the future. It really is questionable how accurately such a project can be forecast.
38 Χ Such a long project, conducted without breaks, risks burning out volunteer advisors
and consultants in the area of law concerned. Counsel may also run the potential risk of falling into the “mid-project doldrums”on such a long project.
Χ Counsel expressed concern, based on her previous service with the Manitoba Law Reform Commission, that long, amorphous projects such as this (i.e. “let’s reform the entire general law of ------”) often prove to be disasters waiting to happen. Because these long projects can so easily go off the rails, they frequently turn into “projects from hell”. As well, if there is staff turnover (even just once) during the life of such a project, successive counsel require an extremely time-consuming learning curve, compared to what the situation would be on a smaller, better-defined project. For these reasons, the MLRC’s policy was not to undertake huge single projects like this. The MLRC also disliked tying up its resources for years in order to produce only one Report or final product, rather than being able to produce several reports from smaller, more focussed projects over a comparable period. Rightly or wrongly, the MLRC thought this appearance of greater productivity (measured simply by number of publications) was more appealing to funders.
5. Rethinking the Project Structure This project really has two separate reform objectives. At the Project Management Committee meeting of October 29, 2001, it became apparent that the central and most desired reform objective that ALRI wants to get to as quickly and efficiently as possible is the recommendation to consolidate all the succession statutes into a single Act, insofar as possible. This is, ultimately, the main point of the whole project. In addition to that central reform objective, ALRI also wants to recommend substantive reform of certain aspects of succession law. The problem is that we have structured the project in such a way that those two reform objectives can be achieved only in a direct linear sequence. ALRI’s current plan is to produce an actual draft consolidating Act that incorporates all relevant statutes and legislative provisions and all ALRI recommendations for reform of succession law. But this means that all the substantive reform proposals for the component areas of succession law must be formulated first, so they can be incorporated into the model statute. This has meant and will continue to mean years of work before the central reform proposal of consolidation can be recommended. But to cut down this time line would mean shortchanging the substantive reform process. However, if ALRI relinquishes the idea of producing an actual draft Act, then it could first (in a relatively short amount of time) issue a Report that recommends the creation of a consolidating statute and specifies, in narrative form, what component statutes and statutory provisions should be included in and excluded from that consolidation. If the government approves that recommendation and ALRI’s model of what the components should be, it can easily produce the consolidating statute itself (using its greater resources and legislative counsel). The government, if it chooses, can at the same time implement ALRI’s past recommended reforms in that consolidating statute.
39 In areas where ALRI has not yet made reform proposals, the statutes as they currently exist could be consolidated. Once our Report with the central recommendation and the consolidation “outline” is published, ALRI can then proceed to study and recommend reform of the most pressing remaining problems of succession law. This can be done with greater flexibility in smaller, more tightly focussed projects according to ALRI’s priorities and availability of time and resources. From a reform point of view, it is equally easy for ALRI to review the Wills Act regardless of whether it is (at the time of the review) a “stand-alone” statute as now or already part of a consolidating Act created by the government. By severing the linear relationship between the two reform objectives, the order of their completion can be reversed and the central recommendation can be sent to government in a timely fashion rather than having to wait until the very end of the process. ALRI will then have much greater flexibility to deal with the more difficult and time-consuming substantive reform issues. 6. The Recommended New Project Structure The Project Management Committee recommends to the Board that the Succession Project be restructured in the following manner: Succession Consolidation Project 1. Counsel should first research and prepare a final Report that recommends the consolidation of succession statutes into a single statute, noting the Acts and statutory provisions that should be included, excluded or cross-referenced. These recommendations would be in narrative form only and no model legislation would accompany the Report. No consultation should be required for this Report beyond receiving the input of the Project Advisory Committee. 2. The production of this Report will constitute its own project. Counsel will prepare a Project Management Plan with a timetable and budget. ALRI’s time and resources commitment to this project will be in accordance with the Project Management Plan as approved by the Board. Future Succession Projects 3. Once the Succession Consolidation Report is issued, the Board will reassess ALRI’s needs, resources and availability and decide which area of succession law should next be addressed. The legal profession and other succession practitioners should be consulted to determine the most pressing or major areas of needed reform. If, for example, family relief issues are more pressing than Wills Act issues, they should be done first.
40 4. A series of individual projects will be created to research and propose reform of the various areas of succession law. Smaller, more tightly focussed individual projects will give ALRI the greatest possible amount of flexibility in the following areas: Χ the order in which Reports address various issues. Χ the size of the research projects – for example, whether a single substantive
area (like administration of estates) should be handled by more than one Report because some issues are so large. Project size could also vary according to ALRI’s needs and availability of time and resources at any given point.
Χ greater controllability and predictability of the individual projects since each
will have its own Management Plan with timetables and budgets that can be reasonably and more easily forecast.
Χ Rather than making a huge up-front commitment of time and resources,
ALRI’s commitment can be re-assessed through time on a project-by-project basis. If the Institute’s time and resources become more urgently needed on a different project in another area of the law, ALRI will have the flexibility to respond to those shifting needs without incurring the bad optics of derailing a large multi-year project. Or, if ALRI finds itself at some point with lots of available time and resources that need not be assigned elsewhere, different freestanding succession projects could be assigned to different counsel so as to increase the pace at which Reports are produced.
5. Once ALRI has completed all its reform proposals for succession law, if the government still has not by then implemented previous ALRI proposals or created its own consolidating statute, the Institute could (if considered worthwhile) invest the time and resources at that point to prepare a final comprehensive Report in the form of model consolidation legislation that contains and reiterates all our reform proposals.
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