nsbs.orgnsbs.org/sites/default/files/ftp/CouncilMaterials/2018-05-18...The Consent Agenda matters...

COUNCIL MEETING AGENDA CLASSROOM, NOVA SCOTIA BARRISTERS’ SOCIETY

Version 3 – Last updated May 15, 2018

Date May 18, 2018 Time 9:00 am Chair Julia Cornish QC, President

ITEM TOPIC TIME ALLOTTED

SPEAKER MATERIALS (Pg #)

ACTION

1. INTRODUCTORY MATTERS/CALL TO ORDER1.1 Welcome 5 J. Cornish

2. CONSENT AGENDAThe Consent Agenda matters are proposed to be dealt with by unanimous consent and without debate. Council members may seek clarification or ask questions without removing a matter from the consent agenda. Any Member may request that a consent agenda item be moved to the regular agenda by notifying the President or the Governance Officer (Julia Schabas) prior to the meeting. 2.1

2.2

2.3

2.4

2.5

Minutes of March 23, 2018 meeting

Minutes of April 27, 2018 meeting

Resignations: Ms. Natascha Marie Johanne Joncas (effective 05/18/2018)

Committee appointments: Hearing Committee: Chair – Gail Rudderham Chernin QC

Real Estate Standards for Introduction: Standard 3.12 – Guardianship Act and Adult Capacity and Decision-making Act; Standard 4.1 – Power of Attorney; Standard 4.6 – Undertakings

5 J. Cornish Minutes to be posted after approved by Council

Approval of all

3. REVIEW AND APPROVAL OF CRITICAL MATTERS

3.1 Annual Lawyer Report Sean Walker, Director of Finance & Administration, will present the draft document of the 2018 Annual Lawyer Report.

20 S. Walker Discussion; approval

3.2 LIANS Individual Deductible Policy Lawrence Rubin, Director of LIANS, will present the policy to Council for approval.

15 L. Rubin Discussion; approval

4. ADVANCING STRATEGIC FRAMEWORK4.1 Professional Responsibility Monitoring Report

& PRPPC – Regulation Amendments 60 R. Larkin;

L. Evans Report & questions; Approval

Page 1 of 486

Version 3 – Last updated May 15, 2018 2

regarding Case Management and s.37 Hearings Chair of the Hearing Committee, Larry Evans QC, and Chair of the Professional Responsibility Policies and Procedures Committee, Ray Larkin QC, will present the 2018 Professional Responsibility Monitoring Report. Mr. Larkin will also speak to the PRPPC’s recommended amendments to the Regulations under the LPA.

4.2 Court Liaison Committees Council will be given an overview of the documents provided to them, and will have the opportunity to discuss the matter.

60 T. Pillay Briefing; discussion; decision (if necessary)

4.3 Succession Planning Discussion Council will review and approve the regulation amendments that mandate lawyers to maintain a written succession plan. Council will consider next steps in regards to file destruction.

30 T. Pillay Discussion; approval

4.4 Real Estate Standards for Approval Standard 4.3 – Searching Names; Standard 4.4 – Identification Lawrence Rubin, Director of LIANS, will present the Standards to Council for approval.

10 L. Rubin Approval

4.5 Council Mid-Term Evaluation and Orientation First Vice-President, Frank DeMont QC, will brief Council on the Midterm Council Evaluation and the Midterm Council Orientation session, scheduled for Friday, June 15 from 2-5pm.

15 F. DeMont Briefing

4.6 County Bar Access to Library Services Executive Director, Tilly Pillay QC, will provide Council with an update on the matter.

15 T. Pillay Report

5. EDUCATION AND QUESTION PERIOD6. IN CAMERA

6.1 There will be one item held in camera. 7. FOR INFORMATION

7.1 2017-2018 Council Calendar Information 7.2 Draft Financial to March 31, 2018 Information 7.3 2018 Activity Plan Information 7.4 Report from Access to Justice National Action

Committee Information

7.5 Executive Director Report Information 7.6 Trust Assurance Monitoring Report Information

8. The 2 Minute EvaluationCouncil members are asked to complete the evaluation.

9. MEETINGS• June 15, 2018 – Council Midterm Orientation, Classroom• June 16, 2018 - Annual Meeting, Schulich School of Law

Page 2 of 486

00109584-1

MEMORANDUM TO COUNCIL

From: Lawrence Rubin

Date: May 18, 2018

Subject: Professional Standards – Real Estate Committee – Standard 3.12 –

Guardianship Act and Adult Capacity and Decision-making Act

Date May 18, 2018

Council Introduction

Council

Approval

Recommendation/Motion: This is a revised Standard 3.12 Guardians presented by the Professional Standards (Real Estate) Committee. Following introduction the Committee will communicate this proposed revised Standard to the membership for review and consultation. The Committee will review any comments received and then present the final form, amended if necessary, to Council for approval. Executive Summary: In the course of the Committee’s ongoing review of the Standards, it noted the recent enactment of the Adult Capacity and Decision-making Act, S.N.S. 2017, c.4, as a replacement for the Incompetent Persons Act, R.S.N.S. 1989, c.218. With it, this Standard, as originally approved by Council in 2002, is no longer accurate and an update to the statute reference is necessary. As a further result of its review, the Committee revised the first sentence of the Standard so that it reads better. In addition, as the Committee could not find legislative authority for the second sentence of the original Standard, though a correct statement in the Committee’s opinion, the Committee removed it. Though the Committee agrees that such an order must be registered, so to must many other documents relied on in real estate practice. It is the Committee’s opinion that the practicalities of the land registration system and transactions will police what has to be registered and such a statement should not appear expressly in this Standard. The draft (attached) is in the usual three-column format. Exhibit:

Page 3 of 486

00109584-1

Revised Standard 3.12 Guardianship Act and Adult Capacity and Decision-making Act with rationale for the revisions.

Page 4 of 486

00109584-1

Existing Standard Proposed Standard Rationale

3.12 GUARDIANS

When a lawyer is acting for the buyer, the lawyer must ensure that, if a title is being conveyed by a guardian, there is authority for the appointment and authority for the guardian to convey.1 The authority for the guardian to convey must be registered.2

FOOTNOTES

1. Guardianship Act, S.N.S. 2002, c. 8, ss. 18 and 22

2. Land Registration Act, S.N.S. 2001, c. 6, s. 121

ADDITIONAL RESOURCES

NS Civil Procedure Rules. Practice Memorandum No. 10 (Guardianship Application (license to sell real estate)

3.12 GUARDIANSHIP ACT AND ADULT CAPACITY AND DECISION-MAKING ACT When a lawyer acts in a transaction to which a guardian or representative of an interest holder is a party, each lawyer must ensure that a court order authorizing the transaction has been issued.1

FOOTNOTES 1. Guardianship Act, S.N.S. 2002, c. 8, ss. 18 and 22; Adult Capacity and Decision- making Act, S.N.S. 2017, c.4, s.31. ADDITIONAL RESOURCES • Civil Procedure Rule 71.

The recent enactment of the Adult Capacity and Decision-making Act, S.N.S. 2017, c.4, s.31, which replaced the Incompetent Persons Act, R.S.N.S. 1989, c.218 prompted the committee to revisit the standard on Guardians. An appropriate reference to the new legislation is added to the title, the footnote and the reference to the former legislation removed from “Additional Resources”. In addition, a former practice memorandum is replaced with a reference to the pertinent new Rule.

Page 5 of 486

https://www.canlii.org/en/ns/laws/stat/sns-2002-c-8/latest/sns-2002-c-8.html

http://www.canlii.org/en/ns/laws/stat/sns-2001-c-6/latest/

http://courts.ns.ca/Civil_Procedure_Rules/cpr_practice_memo_docs/practice_memos_old.pdf

00109584-1

Guardian of adults: Incompetent Persons Act, R.S.N.S. 1989, c. 218, s. 12

Approved by Council on November 22, 2002

Page 6 of 486

https://www.canlii.org/en/ns/laws/stat/rsns-1989-c-218/latest/rsns-1989-c-218.html


00109583-1



Date: May 18, 2018

Subject: Professional Standards – Real Estate Committee – Standard 4.1 – Powers

of Attorney

Date May 18, 2018


Council

Approval

Recommendation/Motion: This is a revised Standard 4.1 Powers of Attorney presented by the Professional Standards (Real Estate) Committee. Following introduction the Committee will communicate this proposed revised Standard to the Membership for review and consultation. The Committee will review any comments received and then present the final form, amended if necessary, to Council for approval. Executive Summary: In discussing the standards, the Committee determined that the current Powers of Attorney standard as approved by Council on November 22, 2002, requires updating to align with current practice and legislation. The existing Power of Attorney standard purports to be directed towards title searching only. Powers of Attorney are encountered in many contexts outside the historical title search. The revised standard is intended to give guidance and assistance in this regard. The draft (attached) is in the usual three-column format. Exhibit: Revised Standard 4.1 Powers of Attorney with rationale for the revisions.

Page 7 of 486

00109583-1


4.1 POWERS OF ATTORNEY When a lawyer conducts a title search and identifies a power of attorney document, the lawyer must review the power of attorney document to ensure it is effective to do that which it purports to do.1 A lawyer may not rely on a power of attorney unless:

1. it is executed before the instrument under it is executed; and

2. it is registered pursuant to the Registry Act2 or recorded pursuant to the Land Registration Act.3

A lawyer should ensure that the matrimonial status of the grantor pursuant to a power of attorney is reflected in the abstract of title.4 A lawyer should ensure that, in preparing an affidavit of execution for an attorney, it is

4.1 POWERS OF ATTORNEY STANDARD When a lawyer encounters a document executed or to be executed pursuant to a Power of Attorney, the lawyer must ensure

that the donor of the Power of Attorney can or could legally delegate the powers listed in the Power of Attorney1;

b) that the wording of the Power of Attorney

gives the Attorney the authority to execute the specific document2 and

c) that the Power of Attorney is, was or will be properly recorded in order to be effective3. A lawyer must ensure that any Affidavit sworn by a person acting as an Attorney pursuant to a Power of Attorney contains only information known to the Attorney personally and is

In discussing the standards, the Committee determined that the current Powers of Attorney standard as approved by Council on November 22, 2002, requires updating to align with current practice and legislation. The existing Power of Attorney standard purports to be directed towards title searching only. Powers of Attorney are encountered in many contexts outside the historical title search. The revised standard is intended to give guidance and assistance in this regard.

1 Infants and mentally incompetent persons cannot give valid Power of Attorney and generally persons who stand in a fiduciary position, such as

Trustees, Executors, Directors and Officers of companies etc., cannot delegate to others activities which involve the exercise of judgment or discretion for which they are responsible by virtue of their position though they can delegate specific acts about which a decision has already been made. Thus, a company, following a decision of the Board of Directors, may give a person who is neither an Officer nor a Director a Power of Attorney to execute a specific document or kind of document on behalf of the company (e.g. Banks often appoint attorneys to execute Releases of Mortgage). As always there are exceptions to the general rule. See, for example: “FIDUCIARY DUTIES Obligations of Loyalty and Faithfulness”, Ng, Michael, Canada Law Book, 2015, vol 2, c.9; “Fiduciary Law”, Rotman, Leonard, Thomson Carswell, 2005.

2 If the donor is incompetent at the time the Attorney is acting, the Power of Attorney must not only grant the Attorney the authority to do what is being done but also must comply with s. 3 of the Powers of Attorney Act, R.S.N.S.1989, c.352 in order to be effective.

3 For non LR parcels see s. 24 of the Registry Act, R.S.N.S. 1989, c.392; for LR parcels see s. 72 of the Land Registration Act, S.N.S. 2001, c. 6

Page 8 of 486

http://www.canlii.org/en/ns/laws/stat/rsns-1989-c-392/latest/rsns-1989-c-392.html




00109583-1

based on the attorney’s personal knowledge and belief.

FOOTNOTES

1. A power of attorney is effective to convey the interest of an incompetent person only if it is a properly executed Enduring Power of Attorney pursuant to the Powers of Attorney Act, R.S.N.S. 1989, c. 352, s. 3

2. Registry Act, R.S.N.S. 1989, c. 392, s. 24 3. Land Registration Act, S.N.S. 2001, c. 6,

s. 72 4. Matrimonial Property Act, R.S.N.S. 1989,

c. 275

executed by the Attorney in his personal capacity, and not in his capacity as Attorney.4 A lawyer must ensure that the execution of the Power of Attorney is properly proven.5 A lawyer meeting with a donor to execute a Power of Attorney or meeting with an Attorney to execute a document pursuant to a Power of Attorney must confirm the identity of the donor/Attorney.6

A lawyer who instructs a member of staff or a lawyer in another office to meet with a donor to execute a Power of Attorney or to meet with an Attorney to execute a document pursuant to a Power of Attorney must also instruct the staff member/lawyer to confirm the identity of the donor/Attorney and should obtain written confirmation by way of copies of the identification used or by Certificate, Declaration or Affidavit that the staff member/lawyer has done so.7

4 An Affidavit is “ A written or printed declaration or statement of facts, made voluntarily, and confirmed by the oath or affirmation of the person

making it, taken before a person having authority to administer such oath or affirmation” Black’s Law Dictionary, 5th ed. It follows that a person cannot swear an affidavit pretending to be someone else: i.e., the Attorney cannot swear the Affidavit as if the Attorney is the donor. The Attorney can only swear to facts within the Attorney’s own knowledge.

5 See Land Registration Act, S.N.S. 2001, c. 6, s. 79 and Registry Act, R.S.N.S. 1989, c.392, ss. 30 – 35. 6 See Standard 4.4, Real Estate Standards. 7 See Nova Scotia Barristers’ Society CODE OF PROFESSIONAL CONDUCT c. 6, s. 6.1; Regulations made pursuant to the Legal Profession Act,

S.N.S. 2004, c.28, s 4.13.

Page 9 of 486






00109583-1

PRACTICE NOTES

1. If a lawyer is examining a chain of title for migration purposes and comes upon an historical properly executed and recorded Power of Attorney which does not contain a provision stating that it may be exercised when the Donor is incompetent, unless there is evidence to the contrary or the lawyer is personally aware that it was not the case, it is reasonable for the lawyer to assume that the Donor was competent when the Power was exercised. 2. A lawyer should never instruct a non-lawyer to meet with a donor to execute a Power of Attorney unless the lawyer has first explained to the donor the effect and ramifications of giving the Power of Attorney and the lawyer is satisfied that the donor understands the risks as well as the benefits of the document. The lawyer should put written confirmation in the file that this conversation has taken place. 3. If the donor owns real property, it is generally good practice to arrange for the donor of a Power of Attorney to swear an affidavit of marital status at the time when the Power of Attorney is executed. Then, if required, the Attorney need only provide evidence of the marital status between the date of the Power of Attorney and the date of the document which the Attorney is executing. 4. When an Attorney is swearing an affidavit confirming the marital status of the donor of the Power of Attorney, the lawyer should ensure

Page 10 of 486

00109583-1

that Attorney states the facts upon which the Attorney is relying to reach the conclusion as to marital status so that the lawyer reviewing the affidavit can determine whether the Attorney has the appropriate familiarity with the donor or the situation in which the donor lives to be reliable.

5. When a Deed removing all of the donor’s interest in a property is executed pursuant to a Power of Attorney and the Power of Attorney is recorded in the property’s parcel register, the lawyer registering the Deed should remove the Power of Attorney from the parcel register when the lawyer registers the Deed by requesting the removal by operation of law on the Form 24 attached to the Deed. The Deed must be then be forwarded in hard copy to the relevant Land Registration Office.

ADDITIONAL RESOURCES Land Registry Resource Material, Access Nova Scotia, Property Online

Page 11 of 486

00108258-1

MEMORANDUM TO COUNCIL From: Lawrence Rubin

Date: May 18, 2018

Subject: Professional Standards – Real Estate– Standard 4.6 Undertakings

DATE May 18, 2018


Council

Approval

Recommendation/Motion: This is the introduction to Council of a new standard - 4.6 Undertakings - by the Professional Standards (Real Estate) Committee. Following introduction, the Committee will communicate this proposed Standard to the membership for review and consultation. The Committee will review any comments received and then present the final form, amended if necessary, to Council for approval. Executive Summary: The Committee’s goal is to articulate the standard a real estate lawyer should meet when giving or receiving an undertaking given the importance of undertakings to real estate transactions. The Committee recognizes that though drafted for real estate transactions, this Standard does include some elements of undertakings that may be of general application whenever an undertaking is given or received. Accordingly, rather than communicating this proposed Standard to real estate practitioners only, the Committee proposes to send it to the entire membership to make all aware that it is coming into effect. The Standard provides guidance with respect to this area of law and includes resources for a lawyer to use.

Page 12 of 486

00108258-1

Existing Standard

Proposed Standard Rationale

NEW STANDARD A lawyer who has given an undertaking must personally fulfil that undertaking in a timely manner.1 A lawyer must not give an undertaking which the lawyer cannot fulfill.2 Undertakings should be unambiguous and reduced to writing.3 A lawyer who permits a non-lawyer to give an undertaking on the lawyer’s behalf must do so in accordance with the Code of Professional Conduct.4

A lawyer who undertakes to record the release of a mortgage or to cancel a security interest, must take steps to ensure the removal of the security interest from the registry or parcel register. A lawyer who pays out, or causes to be paid out, in full or in part, a mortgage recorded in a parcel register must be aware of and comply with the Mortgage Payout Protocol5. A lawyer must not accept an undertaking that he or she knows or ought to know cannot be fulfilled by the lawyer giving the undertaking. A lawyer who accepts an undertaking should follow-up on undertakings in a timely manner. A lawyer who accepts a non-lawyer’s undertaking or who permits a non-lawyer to accept an undertaking must do so in accordance with the Code of Professional Conduct.4

FOOTNOTES

1. Cain v. Genereux (1981), 21 R.P.R. 156 (O.S.C.) (Lawyer found in contempt for failing to honour undertaking).

2. The words “on behalf of my client” or “on behalf of the

The Committee determined that a Standard regarding undertakings given and received by lawyers and non-lawyers was an appropriate addition to the Professional Standards for Real Property Transactions in Nova Scotia, particularly because of recent changes to the Code of Professional Conduct regarding undertakings by non-lawyers.

Page 13 of 486

00108258-1

vendor” do not relieve the lawyer of personal responsibility: NSBS, Code of Professional Conduct, Halifax: Nova Scotia Barristers’ Society, 2017: Chapter 7 “Relationship to the Society and Other Lawyers” and section 7.2-11 “Undertakings and Trust Conditions”, Commentary [1].

3. NSBS, Code of Professional Conduct, Halifax: Nova

Scotia Barristers’ Society, 2012: Chapter 7 “Relationship to the Society and Other Lawyers” and section 7.2-11 “Undertakings and Trust Conditions” and Commentary. NSBS Legal Ethics Handbook Chapter 13 “Duties to Other Lawyers” and sections 13.6 and 13.16 and Note 8.

4. NSBS, Code of Professional Conduct, Halifax: Nova

Scotia Barristers’ Society, 2017: section 6.1-3 (c). 5. Mortgage Payout Protocol: Land Registration Act, S.N.S.

2001, c. 6, s. 60; Land Registration Act Administration Regulations, S.N.S. 2001, c.6, s. 28; and Legal Profession Act Regulations, S.N.S. 2005, c. 28, s. 8.2.4 – 8.2.8. See also Real Estate Practice Standard 3.4: Discharge of Mortgages.

ADDITIONAL RESOURCES

Gillis, Deborah E., Q.C., “Elevating Undertakings to the Top Floor”, RELANS Conference 2006, February 2, 2006

Gordon, Garth, “Solicitor’s Undertakings – An Outline”,

Continuing Legal Education Conference 1987, April 11, 1987

Lawyers’ Insurance Association of Nova Scotia Mortgage

Page 14 of 486

http://www.canlii.com/ns/laws/sta/r1989c.46/index.html



00108258-1

Payout Protocol: http://www.lians.ca/resources/real-estate/mortgage-payout-protocol.

Lawyers’ Insurance Association of Nova Scotia Risk

Management Tools (Undertakings): http://www.lians.ca/resources/risk-and-practice-management/risk-management/undertakings

PRACTICE NOTES

Steps to enforce an undertaking may include:

1. Reminding the lawyer of the outstanding undertaking (link to letter resources);

2. Making an application to discharge the mortgage or security interest on behalf of the current owner, in accordance with the Mortgage Payout Protocol;

3. Applying to the court to enforce the undertaking; or

4. Reporting the refusal to complete the undertaking in a timely manner to the Nova Scotia Barrister’s Society or the Lawyers’ Insurance Association of Nova Scotia.

A lawyer who considers giving an undertaking based on another lawyer’s undertaking should consider:

1. Whether the lawyer can fulfill the undertaking (see footnote 2 above); and

2. Whether he or she should require the lawyer to provide a direct undertaking to the other lawyer.

Page 15 of 486

http://www.lians.ca/resources/real-estate/mortgage-payout-protocol

http://www.lians.ca/resources/real-estate/mortgage-payout-protocol

http://www.lians.ca/resources/risk-and-practice-management/risk-management/undertakings

http://www.lians.ca/resources/risk-and-practice-management/risk-management/undertakings

- 1 -


From: Sean Walker, Director, Finance & Administration

Date: May 18, 2018

Subject: Revisions to Annual Lawyer Report 2018

Date – May 11, 2017 Executive Committee Review of revised report

Date – May 18, 2017 Approved by Council

This memo is to highlight the proposed changes to the Annual Lawyer Report (ALR) format for the (June 30) 2018 submission. These changes continue the Society’s transition to more “Triple P’ Regulation and our commitment to reduce the volume of filings required by practising members. The ALR is the means by which the Society gathers information related to practicing lawyers that is essential for the Society to fulfill its mandate (Regulation 4.3.2). Most of this information is demographic (e.g. Areas of Law, languages, addresses, etc.) and based on Regulatory compliance. A few new questions have been added based on compliance with the Practice standards as well (i.e. Law of Management, Family, Criminal Law). These additions along with changes to the 2019 ALR are shown as red text. We have been able to simplify the ALR by pre-populating much of the information and moving some of the compliance related items from the report, to Annual Firm Report and Trust Account Report process. We have now moved the Trust Declaration reporting from the December reporting period into this year’s ALR resulting in one less filing lawyers without Trust Accounts have to make. In a continued effort to make reporting easier for our members, as much as possible of this information will continue to be pre-populated, (these areas are highlighted in light blue) allowing lawyers to be required to merely validate and/or update the information. As we continue to implement Legal Services Regulation we have revised the listing of employment types to more accurately distinguish between the different types and to increase the detail of where lawyers are working. The question that refers to employment type has been revised to reflect these changes. Similar to last year and as part of our consideration of enhancing access to legal services, we are continuing to look at how we might expand the Legal Directory so that it is more useful the public. There is some research that suggests that law societies might publish information about the areas in which lawyers practice as a means of allowing the public access to that information. As we continue to consider what this might look like we are continuing to ask for areas of practice. The categories have been expanded slightly to remove confusion and to identify a few areas that had been reported in the “Other” category recently.

Page 16 of 486

- 2 -

Again, no decisions have yet been made about what information may be added to the public legal directory and what the policy framework for it will be, but the collection of the information is the first step. The revised ALR for this year is included with this memo for review.

Page 17 of 486

2018 Annual Lawyer Report Regulation 4.3.2

Please note: The deadline for submission of this report is June 30, 2018 (Regulation 4.3.2). We thank you for taking the time to complete this report. The Annual Lawyer Report is the means by which the Society gathers information related to lawyers that is essential for the Society to fulfill its mandate. The information we have on file is shown here and need not be changed if it is correct. MEMBERSHIP INFORMATION

First name

Middle name

Last name

Designation(s) WORK ADDRESS INFORMATION (The Society makes this information public)

Firm/company name

Civic address

P.O. Box #

City

Province

Postal code

Country

Phone

Fax

Email HOME ADDRESS INFORMATION (Optional — for Society use only) This information, if provided, is only for the use of the Society if it is necessary to communicate with a lawyer at a home address. It is NOT made available to the public.

Civic address

Address 2

City

Province

Postal code

Country

Phone

Fax

Email

Page 18 of 486

NOTARY PUBLIC To ensure the Society has up-to-date information in our records, please confirm whether you are a notary public.

Yes No As a Practising Lawyer or Law Corporation, please choose one of the following Employment Types to best describe your status: Note: ‘Employment type’ relates to the nature of the employing organization, not to the work undertaken by the employed lawyer.

• For example, a lawyer who operates as a sole practitioner, but provides contractual legal services to the Crown, would be designated as Private Practice / Sole Practitioner (vs Provincial Government).

• A lawyer employed as a civil servant would be designated as Federal (or, Provincial) government, regardless of whether they deliver legal services to the public or otherwise in their role.

PRIVATE PRACTICE: Sole practitioner firm Multi-lawyer Firm (A) NS Legal Aid Dalhousie Legal Aid Service

IN-HOUSE: Municipal ABC’s (Agencies, Boards, Commissions) Corporate Bodies NFP’s (Not-for-profits) Regulators (i.e. professional regulators) Unions Band Council International (i.e. in-house lawyers employed outside of Canada) Other

FEDERAL GOVERNMENT PROVINCIAL GOVERNMENT

I hold a practising certificate, but I am not currently practising law (boards, educators, administrators, etc.) Other (please explain)

(A) For those who identified as working in a Firm, please choose your status within the Firm: Partner / principal / owner of law firm Otherwise associated with a law firm (including counsel)

Associate in law firm

Page 19 of 486

The following question allows the Society to understand the demographics of the profession and how they change over time. I am a member of one of the following communities (check all that apply):

I choose not to answer this question Acadian / Acadien African Nova Scotian/Black

Indigenous Racialized LGBTQ

Person with a disability Other _____________________________ None of the above

I speak, read and write in these languages and I am able to provide legal services in the following languages: French German Mi’kmaq Arabic English Other (please specify)

Declaration regarding trust funds 2018 Please choose from one of the following, which best describes your situation (at June 30, 2018): I hold the Practising Lawyer membership category in Nova Scotia and do no hold any money or property in trust in

Nova Scotia. I hold the Practising Lawyer membership category in Nova Scotia and because I hold money in trust in Nova Scotia, I

(my firm) will need to file a Trust Account Report (for December 31, 2018) in accordance with the Regulations. I hold the Practising Lawyer membership category in Nova Scotia and I hold money or property in trust, but am acting

in a representative capacity as defined by the Regulations. Furthermore, I hereby confirm that I am acting in compliance with the requirements of subregulation 10.1.3 (re: maintaining records that could be audited, record of appointment and cooperation with auditor if applicable).

Retention of files for former lawyers: Please indicate if you now or previously retained in your possession the files (i.e. wills, estates, real estate, etc.) of former practitioners (please indicate if files have been destroyed).

Yes No If “yes” please provide listing of practitioners: ________________________ Destroyed? ________________________ Destroyed? ________________________ Destroyed? ________________________ Destroyed? ________________________ Destroyed?

Page 20 of 486

Please define your areas of practice as below and include the approximate percentage of your practice time (not billings) associated with each area. The Society is considering adding area of practice information for lawyers in private practice to the Member Directory in order to assist the public in choosing their legal services provider. For that reason, we have expanded some of the areas of law below.

AREA OF LAW APPROXIMATE PERCENTAGE

NSBS USE ONLY (LAST YEAR’S ANSWER)

Aboriginal

Administrative

Bankruptcy and insolvency (debtor and creditor)

Civil litigation – Corporate and Commercial

Civil Litigation – Personal Injury – Plaintiff

Civil Litigation – Personal Injury – Defence

Civil Litigation – real estate / residential tenancy

Constitutional / human rights

Corporate / commercial / banking

Criminal – Defence

Criminal – Prosecution

Elder

Employment / labour – Employee side

Employment / labour – Employer side

Environmental / natural resource / energy

Family – Separation, parenting support and adoption

Family – Child protection

Government / Crown / Legislative

Health

Immigration and refugee

Indigenous

Intellectual property / franchises / patents

Marine / shipping / fisheries

Military / aviation

Mediation and arbitration / alternative dispute resolution

Municipal

Real estate

Privacy

Securities

Tax

Wills, estates and trusts

Other(s) (please specify)

Page 21 of 486

The following questions relate to membership in other jurisdictions / regulatory bodies (optional). Please list any current memberships in other legal regulatory bodies: ______________________________________________________________________________________________ Please list any current memberships in other non-legal regulatory bodies (e.g., CPA-NS, College of Physicians, etc.) _____________________________________________________________________________________________ The following questions relate to continuing professional development regulations 8.3.5 - 8.3.10. I am familiar with and to the best of my knowledge am in compliance with my obligations regarding continuing professional development, including that I implemented a written plan for continuing professional development and made a record of my plan for the period of June 1, 2017 to May 31, 2018 (i.e. last year).

Yes No If “No” please explain:

I have prepared and made a record of my professional development plan for the period of June 1, 2018 to May 31, 2019 (i.e. next year).

Yes No

If “No” please explain:

I am familiar with and to the best of my knowledge am in compliance with my obligations regarding: 1. The Society’s regulations 8.2.1 - 8.2.10 and Real Estate Professional Standards

Yes No I do not practise real estate law


2. The Code of Professional Conduct

Yes No


Page 22 of 486

3. Rule 3.4-31 through -34 of the Code of Professional Conduct respecting borrowing from and lending to clients Yes No


4. Section 38(1) of the Legal Profession Act and regulation 4.4.1 respecting the requirement to report charges and convictions Yes No


5. Regulation 4.4.1 respecting the requirement to report bankruptcies, judgments, proposals to creditors, costs orders

against a lawyer, and disciplinary findings in another jurisdiction Yes No


6. Regulation 4.13 respecting client identification

Yes No


7. Family Law Professional Standards

Yes No I do not practise family law If “No” please explain:

Page 23 of 486

8. Criminal Law Professional Standards Yes No I do not practise criminal law If “No” please explain:

9. Law Office Management Professional Standards

Yes No I do not practise in a private law firm If “No” please explain:

I am in compliance with the following provisions of the Code of Professional Conduct regarding passwords (rules 6.1-5 and 6.1-6). A lawyer who has personalized encrypted electronic access to any system for the electronic submission or registration of documents must not

(a) permit others, including a non-lawyer employee, to use such access; or (b) disclose their password or access phrase or number to others.

I have met the requirements listed in (a) and (b) above.

Yes No N/A If “No or N/A” please explain:

Access to my computer / network is restricted to only people associated with my law firm.


If yes, I have a signed confidentiality agreement to protect my clients’ information.


Page 24 of 486

As part of the Society’s Strategic Framework and continued focus on equity and access to justice, we are gathering the following information. The following question deals with pro bono legal services in support of access to justice. These type of services include providing legal services to clients at reduced fees / rates in order to provide services to clients who otherwise might not be able to afford to hire a lawyer at regular billing rates. I have or plan to provide this type of pro bono legal services to my clients.

Yes No Choose not to answer Example(s) of the service(s) I provide: The following question deals with “unbundled” legal services in support of self-represented litigants or other clients. This type of service includes situations where a person only pays for specific services or receives coaching from a lawyer while still remaining in charge of their case as a self-represented litigant. I do or plan to provide this type of unbundled legal services to my clients.

Yes No Choose not to answer Example(s) of the service(s) I provide: GENERAL COMMENTS:

Page 25 of 486

00109389-1

LAWYERS’ INSURANCE ASSOCIATION OF NOVA SCOTIA

MEMORANDUM

TO: Council, Nova Scotia Barristers’ Society

FROM: Lawrence Rubin, Director of Insurance, LIANS

DATE: May 4, 2018

RE: LIANS Insurance Policy – Revisions to the Individual Deductible _____________________________________________________________________________________

For: Approval x Introduction Information

Motion: Be it resolved to approve the amendments to Regulation 12 and Regulation 4.5.1 as is set out in Exhibit “A” to this memorandum.

I. Executive Summary

LIANS’ Board of Directors, after extensive consideration and discussion, has resolved to revise its policy regarding the individual deductible for paid claims. As Council is aware, in 2002, the practice of collecting the individual deductible was changed to a levy surcharge paid over five years. Effective July 1, 2018, for all claims paid on or after that date, the insured lawyer will be subject to the individual deductible as set out in the insurance policy. For claims paid prior to July 1, 2018, the insured lawyer will continue to be subject to the surcharge. A copy of the new individual deductible policy is attached as Exhibit “B” to this memorandum.

As the current Regulations only mention the surcharge, to establish the requirement to pay the deductible and preserve the ability of LIANS to suspend a member for non-payment, a new regulation, in the attached form as approved by LIANS’ Board of Directors, is required. In the event the deductible goes unpaid, the amendment will deem the deductible to be a surcharge permitting suspension of the member as a last resort as is currently the case. The existing regulations regarding the surcharge have to remain in effect for at least another four years or until the last surcharge is collected. Accordingly, rather than rewriting several existing regulations located in several sections, a new regulation for inclusion in the LIANS section as Regulation 12.6 is proposed and is attached as Exhibit “A” to this memorandum. Regulation 4.5.1 is the only existing Regulation that requires amendment to incorporate the new Regulation 12.6, which amendment is included in Exhibit “A". LIANS respectfully requests Council enact this new regulation at this time.

Page 26 of 486

00109389-1

II. Analysis

Analysis of the 293 claims paid between 2002 through 2012 inclusive indicates that LIANS received from the surcharge (assuming paid in full for these claims) $339,971 less than it would have received had the individual deductible been collected. Had the surcharge been based on the amount of the individual deductible rather than the levy, there would not be this deficiency (subject to defaults). The purpose of this change is to correct that systemic deficiency. As there are 293 claims in this category, the average shortfall is $1,160 per claim. This deficiency arises because 40% of the levy in each year is less than $1,000 meaning that if paid for five years, the amount LIANS receives from the member is less than $5,000.

When we set the levy, one actuarial assumption is that we collect up to $5,000 per paid claim from the member. Based on the current surcharge practice, that assumption is incorrect. Not wanting to continue incurring this shortfall, I have sought and received from the LIANS Board authority to change this practice to base the deductible on the amount set out in the policy rather than the levy.

Attached to this memorandum as Exhibit “B” is a copy of the new individual deductible policy. It divides claims into two categories – those that incur a damage payment less than the individual deductible (currently $5,000) and those that incur a damage payment of the individual deductible or greater. For claims in the first category, the individual deductible is due when the claim is paid. There is no reason for LIANS to carry this amount given it technically owes nothing on the claim. LIANS will of course defend the insured lawyer in all covered claims but if at the end the amount of damages is less than the individual deductible, LIANS should not be required to carry that amount.

For claims that involve a payment of the individual deductible or greater, the member will have the option of paying the deductible in full at the time the claim is paid or entering into a payment plan similar to what currently exists. As set out in the attached, the payment plan will require 1/5 of the deductible to be paid when the claim is paid and the remaining 4/5 be paid annually when fees are paid. If the member selects the payment plan, recognizing the contractual nature of the debt, the member will have to agree to LIANS payment terms and conditions, which include a promissory note.

If a member is currently paying the surcharge for a particular claim, that will not change. The new individual deductible policy as set out herein will only apply to claims paid after July 1, 2018. That said there is a change in the surcharge policy for claims paid prior to July 1, 2018. In the past, though not required to do so, LIANS has waived the requirement to pay the surcharge if the member changed its status to non-practicing, retired or became a judge. As of July 1, 2018, if a member has a surcharge on their 2018 – 2019 invoice, the practice of waiving future surcharge payments for that matter will end. The surcharge represents the individual deductible, a contractual debt owing to LIANS by the member pursuant to the terms and conditions of the insurance policy and there is no reason to waive it simply because the member changes their status. Referring again to the 293 referenced claims, surcharges waived due to a change in practicing status totaled a further $133,038 that LIANS was entitled to but did not receive.

Page 27 of 486

00109389-1

EXHIBIT “A”

REGULATION AMENDMENTS

Existing Regulation Proposed Regulation Rationale

Lawyer is suspended 4.5.1 A lawyer will be suspended if: (a) the requirements of subregulation 4.1.1 are not met by June 30; (b) the payment of any special assessments, surcharges or transaction fees required by subregulation 4.1.4 is not made by the dates prescribed by Schedule A; (c) a pre-authorized monthly payment permitted by subregulation 4.1.3 is not made at the appropriate time; or (d) the requirements of subregulations 4.11.2 and 4.11.4 are not met by the specified time; and while suspended the lawyer must not engage in the practice of law or the delivery of legal services and is not entitled to any of the rights and privileges of a member of the Society. …

Lawyer is suspended 4.5.1 A lawyer will be suspended if: (a) the requirements of subregulation 4.1.1 are not met by June 30; (b) the payment of any special assessments, surcharges or transaction fees required by subregulation 4.1.4 is not made by the dates prescribed by Schedule A; (c) a pre-authorized monthly payment permitted by subregulation 4.1.3 is not made at the appropriate time; (d) the requirements of subregulations 4.11.2 and 4.11.4 are not met by the specified time; or (e) the payment of any individual deductible required by Regulation 12.6 is not made in accordance with the Regulation; and while suspended the lawyer must not engage in the practice of law or the delivery of legal services and is not entitled to any of the rights and privileges of a member of the Society.

For claims where LIANS pays damages in an amount greater than the individual deductible prescribed by Group Insurance Policy, analysis of the current surcharge policy concludes that LIANS receives an amount significantly less per paid claim than it would (and thus should) receive had it been collecting the individual deductible. The new deductible policy is intended to correct that deficiency and will treat the deductible as what it is, a contractual debt. The new deductible policy will take effect for claims paid after June 1, 2018. The new deductible policy will not affect claims paid prior to that date that are subject to the current surcharge methodology being replaced.

Page 28 of 486

00109389-1


… 12.6 Deductible 12.6.1 In this Part, “individual deductible” means the damages a lawyer who is insured through the Association must pay in relation to claims made in respect to an occurrence, as set out in the applicable Group Insurance Policy. 12.6.2 A lawyer must pay to the Association the “individual deductible” in accordance with this Regulation, the Group Insurance Policy and the Association’s Individual Deductible Policy. 12.6.3 Regulation 12.6 only applies to claims paid by the Association on or after June 1, 2018. 12.6.4 The “individual deductible” is, and will be treated as, a contractual debt owing by the lawyer to the Association. 12.6.5 If a claim resolved by the Association includes payment(s) of damages in a total amount that is equal to or less than the “individual deductible”, the lawyer must reimburse the Association the amount the Association paid for damages forthwith after the claim is paid in accordance with the Association’s Individual Deductible Policy then in effect. 12.6.6 If a claim resolved by the Association includes payment(s) of damages totaling an amount

Page 29 of 486

00109389-1


that is greater than the “individual deductible”, the lawyer must reimburse the Association the amount of the “individual deductible” in accordance with Regulation 12.6 and the Association’s Individual Deductible Policy then in effect. 12.6.7 Unless Regulation 12.6 or the Association’s Individual Deductible Policy states otherwise, the “individual deductible” will be deemed to be a surcharge as described in Parts 4 and 13 of these Regulations. For Schedule A: Amount due to the Association: … (f) The net amount payable to the Association is subject to an individual deductible if, in the period after June 1, 2018, a claim payment was made by the Association on behalf of the lawyer in accordance with the Individual Deductible Policy.

Page 30 of 486

00109389-1

EXHIBIT “B”

LIANS Policy No. 1 – Individual Deductible Policy

NAME OF POLICY INDIVIDUAL DEDUCTIBLE POLICY

Approved by LIANS Board Effective Date: July 1, 2018 Reviewed: N/A Revised: New

This policy applies to all claims paid by LIANS after July 1, 2018 regardless of the year the claim arose and Group Insurance Policy applicable to the claim.

Subject to the Group Insurance Policy, the individual deductible only applies to amounts LIANS pays as damages in a claim and does not apply to paid defence costs.

As of July 1, 2018, the individual deductible policy will change whereby it will no longer be calculated and collected based on the amount of the levy but rather will be calculated and collected based on the amount of the deductible as set out in the Group Insurance Policy applicable to the claim.

If the outcome of a claim is that damages are paid by LIANS, if that amount is less than or equal to the individual deductible applicable to the claim, the insured lawyer shall pay the individual deductible to LIANS in an amount equal to the amount of damages LIANS paid within 30 days of the day the claim is paid. If full payment of the individual deductible is not paid at that time, the amount owing will be added as a surcharge to the next Society invoice issued to the insured lawyer and if not paid at that time when due, the insured lawyer will be suspended for non-payment.

If the outcome of a claim is that LIANS pays damages in an amount greater than the amount of the individual deductible applicable to the claim, the insured lawyer shall pay the individual deductible to LIANS in accordance with one of the following two options of the insured lawyer’s choosing:

(i) the insured lawyer shall pay to LIANS the full amount of the individual deductible applicable to the claim within 30 days of the date the claim is paid. If full payment of the individual deductible is not paid at that time, the amount owing will be added as a surcharge to the next Society invoice issued to the insured lawyer and if not paid at that time when due, the insured lawyer will be suspended for non-payment; or

(ii) provided the insured lawyer agrees to LIANS payment terms as set out in Appendix A to this Individual Deductible Policy and agrees to sign LIANS’ form of Promissory Note, the insured lawyer may enter into an installment payment agreement with LIANS whereby the individual deductible can be paid in five equal installments as follows:

(a) one fifth of the individual deductible shall be paid to LIANS within 30 days of the date the

claim is paid; and (b) the remaining four fifths of the individual deductible shall be paid to LIANS in four equal

installments which will be due on the next four July 1st commencing the July 1st immediately following the date the claim is paid.

Page 31 of 486

00109389-1

If the insured lawyer is considering this option (ii) but declines to agree to LIANS’ payment terms and provide the signed Promissory Note within twenty-one (21) days of the date the claim is paid, the insured lawyer shall be deemed to have selected option (i).

Page 32 of 486

00109389-1

APPENDIX A

LIANS INDIVIDUAL DEDUCTIBLE PAYMENT TERMS

If the insured lawyer chooses to pay an individual deductible owing to LIANS by installments in accordance with option (ii) of LIANS Individual Deductible Policy, the insured lawyer shall enter into an agreement with LIANS that will include all of the following terms and conditions: (1) the insured lawyer may, at any time if it so chooses, pay the balance of any individual deductible

owing to LIANS at any time without penalty; (2) installments will be collected on July 1st with Society fees and accordingly, the Society will be aware

that the member has had a paid claim; (3) any individual deductible installment payment will not be part of the Society’s monthly fee payment

plan. The full amount of any individual deductible installment payment due to LIANS will be due and owing on July 1st;

(4) if the insured lawyer ceases to be a fee paying member of the Society while any part of an individual deductible is owing to LIANS, the full amount then remaining owing will become immediately due and payable and if not paid within 30 days of the date the insured lawyer ceases to be a fee paying member of the Society, the insured lawyer shall consent to judgment in the amount owing;

(5) if the insured lawyer changes category but is still a fee paying member of the Society, any remaining individual deductible installment payments will remain due and owing on July 1st;

(6) on there being a missed installment payment, the full amount of the individual deductible remaining owing shall become immediately due and payable and the insured lawyer shall (i) be subject to Society penalties for non-payment of any fee including possible suspension; (ii) consent to judgment in the amount remaining owing, and (iii) agree that the amount remaining owing may be added to the next July 1st Society invoice unless it is paid to LIANS earlier;

(7) provided all individual deductible installment payments are made when due, LIANS will not charge an administrative fee or interest. If the insured lawyer fails to make an installment payment when it is due, the insured lawyer agrees that LIANS may charge interest on the full remaining amount owing. If it does so, the rate of interest charged shall be the TD Bank’s five year fixed term mortgage rate in effect on the date of the missed payment. The start date from which interest shall be calculated shall be the date the missed payment was due; and

(8) non-payment of any part of an individual deductible owing to LIANS shall cause the insured lawyer owing the deductible to be subject to possible suspension in accordance with the Regulations.

Page 33 of 486

00109389-1

PROMISSORY NOTE

$ [insert principal amount of note]

Date: _________________

FOR VALUE RECEIVED, receipt of which is hereby acknowledged, [insert Payor name] (the “Payor”), of [insert city/town of residence], Nova Scotia HEREBY PROMISES TO PAY to the order of Lawyer’s Insurance Association of Nova Scotia (“LIANS”) the principal amount of $[insert principal amount] (the “Principal Amount”) subject to the terms and conditions of this Promissory Note (the “Note”). 1. TERM

The Term of the Note (the “Term”) shall be for a period not exceeding five (5) years commencing on the date that the claim giving rise to the Payor’s insurance deductible, being the subject of this Note, is paid (the “Claim Date”) and ending on the date set out in Section 3(e) of this Note.

2. INTEREST Interest shall not be payable on the Principal Amount outstanding during the Term so long as the Payor remains a fee-paying member of the Nova Scotia Barrister’s Society (the “Society”) and has made all Installment Payments (as defined in Section 3 herein) in accordance with this Note. In the event that the Payor ceases to be a fee paying member of the Society, or fails to make an Installment Payment in accordance with this Note, interest shall be paid at the rate of Toronto-Dominion Bank’s five year fixed term mortgage rate in effect on the date the Payor ceases to be a fee paying member of the Society or on the date of the missed Installment Payment, as applicable (the “Trigger Date”). Interest shall begin to accrue on the Trigger Date (the “Interest Accrual Date”). Interest shall be calculated monthly, commencing on the day that is one month following the Interest Accrual Date and payable on the first day of each calendar month thereafter until the Principal Amount is paid in full.

3. PAYMENT During the Term, the Payor shall make principal repayments (each an “Installment Payment”) of the Principal Amount as follows: (a) $[insert 1/5 of the Principal Amount] within thirty (30) days of the Claim Date;

(b) $[insert 1/5 of the Principal Amount] on July 1st, 20__; (c) $[insert 1/5 of the Principal Amount] on July 1st, 20__;

(d) $[insert 1/5 of the Principal Amount] on July 1st, 20__; and

(e) $[insert 1/5 of the Principal Amount] on July 1st, 20__.

Page 34 of 486

00109389-1

4. PAYOR LEAVES NOVA SCOTIA BARRISTER’S SOCIETY In the event that the Payor ceases to be a fee paying member of the Society for any reason during the Term, the full Principal Amount then outstanding (the “Remaining Principal”) shall become immediately due and payable. If the Payor fails to make full payment of the Remaining Principal within thirty (30) days of the Trigger Date, the Payor: i) shall pay interest on the Remaining Amount in accordance with Section 2 until the Principal Amount is paid in full; and ii) hereby consents to Judgment being entered against him/her in respect of the Remaining Amount.

5. PAYOR MISSES INSTALLMENT PAYMENT In the event that the Payor fails to make an Installment Payment in accordance with Section 3, the Remaining Amount shall become immediately due and payable and the Debtor shall: i) be subject to Society penalties for non-payment of any fee or surcharge; ii) pay interest on the Remaining Amount in accordance with Section 2 until the Principal Amount is paid in full; and iii) consent to Judgment being entered against him/her in respect of the Remaining Amount.

6. PREPAYMENT The Payor may repay, at any time, all or any portion of the Principal Amount then outstanding without prepayment penalty.

7. ASSIGNMENT LIANS shall have the full ability to sell, assign or transfer this Note without the Payor’s consent. The Payor shall not be entitled to assign the Note or any portion thereof without LIANS’ prior written consent.

8. ENUREMENT The Note will enure to the benefit of and be binding upon the respective successors and permitted assigns of the Payor and LIANS.

9. GOVERNING LAW The Note shall be construed in accordance with and governed by the laws of the Province of Nova Scotia.

10. WAIVER The Payor hereby waives presentment, demand, notice of dishonour, protest, notice of protest, notice of non-payment and any other notice required by law to be given to the Payor in connection with the delivery, acceptance, performance, default or enforcement of the Note.

11. AMENDMENT

Page 35 of 486

00109389-1

The Note may only be amended with the written agreement of the Debtor and LIANS.

12. SEVERABILITY Each of the provisions of the Note is distinct and severable and a declaration of invalidity, illegality or unenforceability of any such provision or part thereof by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision of the Note.

IN WITNESS WHEREOF the Debtor has caused the Note to be duly executed on the date hereof.

SIGNED SEALED AND DELIVERED by the Payor in the presence of Witness

))))))))

[INSERT PAYOR NAME]

Page 36 of 486

- 1 -


From: Professional Responsibility Policies and Procedures Committee

Date: May 8, 2018

Subject: Proceedings Management Process Date – 2018-05-18 Council For Approval

Recommendation/Motion: It is recommended that the amendments to Regulations 9.8 through 9.11 regarding the proceedings management process be approved for adoption. Executive Summary: In 2012, the Professional Responsibility Policies and Procedures Committee (PRPPC) began work on developing a new case management system for hearings. A subcommittee was appointed that included members of the PRPPC, the Chair of the Hearing Committee and defence counsel. This project arose as a result of some significant delays that had been experienced in the past in setting matters down for hearing, and dealing with issues of disclosure as matters have become more complex.

The regulations that were ultimately drafted and adopted include a process to address timeliness, and were based on a review of various court and tribunal processes. One of the main goals of the changes was to ensure that the outstanding issues between the parties are clarified early in the process. There are two distinct processes that were developed – the Proceedings Management Meeting (PMM) and a required Pre-Hearing Conference.

Under the new regulatory scheme, the Chair of the Hearing Committee holds a PMM within 25 days of service of the charges. There is a provision for the Chair to waive the time requirements if necessary. The member will also have an opportunity to file a notice of contest and any issues that the member wishes to make in this regard will be addressed at the PMM.

Since these regulations were passed, we have had the opportunity to rely on them in four hearings. There have been some issues with a lack of familiarity with the applicable regulations by panel chairs. In one recent hearing, a few issues arose including the chair’s misunderstanding of the obligation to arrange for a case management meeting; delay in posting of the notice of hearing; lack of compliance with the notice of participation requirements.

Page 60 of 486

- 2 -

Some of these issues were internal to the Society and have been addressed by clear pre-hearing procedures. Other issues have been more systemic and relate to lack of familiarity/experience by panel chairs or general misunderstandings related to the regulatory requirements. Analysis: Now that there has been some practical hearing experience with the proceedings management process, the PRPPC was asked to reconsider the regulations in light of the experiences of the Hearing Committee and the Society’s counsel at hearings. The PRPPC understands that it remains a priority of the Society to have a process that has clear time frames to guide the pre-hearing process to ensure that hearings do not become mired in issues that should have been addressed in the early stages. However, it does not appear to the Hearing Committee nor to Counsel for the Society that the current framework is achieving this goal. Marjorie Hickey QC and Kim Turner QC have represented the Society at the last few hearings and are both members of the PRPPC. The Chair of the Hearing Committee, Larry Evans QC, was consulted on this project from the outset as well, and was invited to both participate in the PRPPC’s discussions on proposed amendments. At the Hearing Committee’s annual professional development day in November, the proposed amendments were presented and comments sought. The feedback received from the various stakeholders regarding what works, what doesn’t and what is unclear in the regulations was very instructive to the PRPPC in re-working this very important proceedings management process. The amendments that are being proposed bring consistency to the time frames within which actions must be taken and to provide clarity around the roles and responsibilities of the Hearing Committee Chair and the chair of the hearing panel. As well, amendments were included to ensure that the Society’s triple P objectives are built into the hearing process, including specific reference to the consideration by the parties of any restorative processes that might be available to resolve issues without the need for hearing. It is hoped that with these amendments, the proceedings management process will continue to serve the purpose for which it was designed which is efficiency and clarity of the pre-hearing processes to avoid lengthy delays. Exhibits/Appendices: Appendix “A” – draft amendment to Regulations 9.8 through 9.11

Page 61 of 486

Appendix A


1


CONDUCT OF HEARINGS

9.8 Charge Laid

9.8.1 When the Executive Director is

instructed to lay a charge, the charge must be

(a) prepared and served upon the

member together with the notice of

referral to hearing;

(b) communicated appropriately to the

person or persons who complained

to the Society; and

(c) provided to the Chair of the Hearing

Committee.

9.8.2 Despite any notice or timing requirements

in Regulations 9.8 through 9. 11, the parties may

agree to shorten such notice or timing

requirements.

Notice of Referral to Hearing 9.8.3 Subject to subregulation 9.8.7, after the

charge and notice of referral to hearing have

been served on the member, the Executive

Director must provide the notice of referral to

hearing to the public no earlier than 15 days

after service of the charges upon the member by

publishing a notice on the Society’s website that

CONDUCT OF HEARINGS

9.8 Charge Laid

9.8.1 When the Executive Director is

instructed to lay a charge, the charge must be

(a) prepared and served upon the

member together with the notice of

referral to hearing;

(b) communicated appropriately to the

person or persons who complained

to the Society; and

(c) provided to the Chair of the Hearing

Committee.


in Regulations 9.8 through 9. 11, the parties may

agree to shorten such notice or timing

requirements.

Notice of Referral to Hearing 9.8.3 Subject to subregulation 9.8.7, after the

charge and notice of referral to hearing have

been served on the member, the Executive

Director must provide the notice of referral to

hearing to the public no earlier than 15 days

after service of the charges upon the member by


Page 62 of 486

- 2 -


(a) specifies the member’s name; and

(b) outlines the nature of the charges.

Application to Committee

9.8.4 The member may make application to

the Complaints Investigation Committee to vary

the content of the notice of referral to hearing.

9.8.5 Such application must be made in

writing and received by the Executive Director

within 14 days of service of the charge and the

notice of referral to hearing on the member.

9.8.6 The Executive Director will wait until

the Committee makes a determination on the

member’s application to vary prior to publishing

the notice of referral to hearing.

9.8.7 The Committee may give directions

regarding the content of the notice of referral to

hearing.

Committee to Give Reasons

9.8.8 The Committee must provide reasons

for its decision regarding the member’s

application to vary.

Notice of participation

9.8.9 A notice of participation must be filed by

the member within 10 days after the day the

member has been served with the charge and the

notice of referral to hearing.

9.8.10 A notice of participation must be dated

and signed by the member or the member’s

(a) specifies the member’s name; and

(b) outlines the nature of the charges.

Application to Committee

9.8.4 The member may make application to

the Complaints Investigation Committee to vary

the content of the notice of referral to hearing.

9.8.5 Such application must be made in

writing and received by the Executive Director

within 14 15 days of service of the charge and

the notice of referral to hearing on the member.

9.8.6 The Executive Director will wait until

the Committee makes a determination on the


the notice of referral to hearing.

9.8.7 The Committee may give directions

make a decision regarding the content of the


Committee to Give Reasons

9.8.8 The Committee must provide reasons

for its decision regarding the member’s

application to vary.

Notice of participation

9.8.9 A notice of participation must be filed by

the member within 10 15 days after the day the

member has been served with the charge and the


9.8.10 A notice of participation must be dated

and signed by the member or the member’s

This language more accurately reflects what the

CIC is being asked for in such circumstances.

Reg 9.8.8 refers to “decision”.

This extension of time allows for further

disclosure to be made, if necessary, that may

assist the member in stating their position on the

charges.

Page 63 of 486

- 3 -


counsel and include the following:

(a) a statement giving notice of the

member’s participation in the

proceedings management meeting;

(b) a brief statement of the member’s

position on each component of

the charge; and

(c) any question that the member

intends to raise concerning the

process for the charges to proceed

to hearing or which must be

determined at a pre-hearing

conference by a hearing panel.

Proceedings Management Meeting

9.9.1 Within 25 days after the charge and the

notice of referral to hearing have been served on

the member, the Chair of the Hearing Committee

must convene a proceedings management

meeting.

9.9.2 The Chair of the Hearing Committee, after

consulting with the parties on their availability,

must provide written notice to the parties of the

time and date of the proceedings management

meeting.

9.9.3 At the initial proceedings management

meeting, the Chair of the Hearing Committee

will

(a) provide directions to the parties;

(b)establish the process to be followed

for the charges to proceed to hearing;

counsel and include the following:

(a) a statement giving notice of the

member’s participation in the

proceedings management meeting

hearing;

a brief statement of the member’s

position on each component of the

charge; and

(b) any question procedural issues

that the member intends to raise

concerning the process for the

charges to proceed to hearing or

which must be determined at a

pre-hearing conference by a

hearing panel.

Proceedings Management Meeting

9.9.1 Within 25 30 days after the charge and the

notice of referral to hearing have been served on

the member, the Chair of the Hearing Committee

must convene a proceedings management

meeting.

9.9.2 The Chair of the Hearing Committee, after

consulting with the parties on their availability,

must provide written notice to the parties of the

time and date of the any proceedings

management meeting.

9.9.3 At any the initial proceedings management

meeting, the Chair of the Hearing Committee

will may assist counsel to reach agreement

regarding procedural matters to facilitate the

expeditious hearing of the charge in

accordance with the Act and Regulations,

including:

To date, the notice of participation has not been

found to be as useful as had been hoped. These

changes are meant to assist the member to

provide a meaningful response.

The time frame to hold the initial proceedings

management meeting (PMM) was felt to be too

short. This gives counsel and the Chair further

opportunity to prepare for this initial meeting.

There may be more than one PMM, so the

language needs to be corrected.

This change in language is intended to more

accurately reflect the purpose of the PMM.

Jan 22/18 amendment – see also deletion of what

was 9.9.3 below

Page 64 of 486

- 4 -


and

(c) set the date and time for the hearing,

and may adjourn the proceedings management

meeting at the Chair’s own direction, or on

receipt of a request from either party to the

proceeding.

Authority of Hearing Committee Chair

9.9.4 At the proceedings management meeting

the Chair of the Hearing Committee must set the

dates for the hearing, which must start no sooner

(a) provide directions to the parties;

(b)establish the process to be followed

for the charges to proceed to hearing;

and

(c) set the date and time for the hearing,

(a) identification of issues in the

proceeding;

(b) consideration of any restorative

approaches or alternative dispute

mechanisms that could be utilized;

(c) identification of witnesses in the

proceeding;

(d) discussion of deadlines for filing of

expert and other reports;

(e) addressing issues with respect to

disclosure;

(f) potential for agreed statements of fact

with respect to contested and

uncontested components of a charge;

(g) discussion of the number of days the

parties anticipate requiring for the

proceeding; and

(h) any further appearances at additional

proceedings management meetings, if

necessary, the timing and content of

which will be as directed by the Chair

of the Hearing Committee; and may adjourn the proceedings management

meeting at the Chair’s own direction, or on

receipt of a request from either party to the

proceeding.


9.9.4 The Chair of the Hearing Committee

will select the hearing panel, including

appointing the Chair of the hearing panel.

This amendment ensures that the Society’s triple

P objectives are built into the hearing process.

This regulation sets out the Chair’s current

role/responsibility.

Page 65 of 486

- 5 -


than 45 days from the date of the proceedings

management meeting.

9.9.5 At a proceedings management meeting the

Chair of the Hearing Committee may give

directions regarding procedural matters to

facilitate the expeditious hearing of the charge in


including:

(a) identification of issues in the

proceeding;

(b) identification of witnesses in the

proceeding;

(c) deadlines for filing of expert and other

reports;

(d) issues with respect to disclosure;

(e) potential for agreed statements of fact



(f) further appearances at additional



which shall be as directed by the Chair

of the Hearing Committee; and

(g) any other matters that may expedite the

hearing.

9.9.35 At a proceedings management meeting

the Chair of the Hearing Committee may give

directions regarding procedural matters to

facilitate the expeditious hearing of the charge in


including:

(i) identification of issues in the

proceeding;

(j) identification of witnesses in the

proceeding;

(k) deadlines for filing of expert and other

reports;

(l) issues with respect to disclosure;

(m) potential for agreed statements of fact



and (n) further appearances at additional



which shall be as directed by the Chair

of the Hearing Committee; and

(o) any other matters that may expedite the

hearing.


9.9.4 At the proceedings management meeting

the Chair of the Hearing Committee must set the

dates for the hearing, which must start no sooner

than 45 days from the date of the proceedings

management meeting.

Page 66 of 486

- 6 -


9.9.6 If the member fails to participate in the

proceedings management meeting after

receiving notice thereof, the Chair of the

Hearing Committee may proceed with the

meeting in the member’s absence.

Conduct of Proceedings Management

Meeting

9.9.7 A proceedings management meeting may

be conducted in person, in writing, by telephone

or by electronic communications including

videoconference, as determined by the Chair of

the Hearing Committee.

9.9.8 Within 10 days of the conclusion of a

proceedings management meeting, the Chair of

9.9.5 Where the parties have been unable to

reach agreement on any issues arising during

a proceedings management meeting, the

Chair of the Hearing Committee will refer

those issues to the hearing panel.

9.9.6 If the member fails to participate in the

any proceedings management meeting after

receiving notice thereof, the Chair of the

Hearing Committee may proceed with the

meeting in the member’s absence.

Conduct of Proceedings Management

Meeting


be conducted in person, in writing, by telephone

or by electronic communications including

videoconference, as determined by the Chair of

the Hearing Committee.

9.9.8 Within 10 15 days of the conclusion of a

proceedings management meeting, the Chair of

the Hearing Committee must issue directions

minutes of the meeting that set out the areas

of agreement and areas, if any, to be referred

to the hearing panel in writing arising from the

meeting and must provide the directions

minutes to the parties.

9.9.9 The Chair of the Hearing Committee will

provide a copy of any minutes prepared pursuant

to subregulation 9.9.9 to the hearing panel at the

conclusion of the proceedings management

process.

9.9.10 The Chair of the Hearing Committee may

It is important to ensure that the hearing panel

receives clear information about what has

occurred at the PMM.

Page 67 of 486

- 7 -


the Hearing Committee must issue directions in

writing arising from the meeting and must

provide the directions to the parties.

9.9.9 The Chair of the Hearing Committee may

conduct further proceedings management

meetings on the Chair’s own direction, or on

receipt of a request for further directions from

either party to the proceeding.


be held anytime until the commencement of one

of the following:

(a) a pre-hearing conference, pursuant

to subregulation 9.11.1; or

(b) a hearing to consider a proposed

settlement agreement.


in this Regulation, the Chair of the Hearing

Committee, in the Chair’s discretion, may

shorten or extend any notice or timing

requirements.

9.10.1 As soon as practicable following the

proceedings management meeting, the Executive

Director must prepare and serve the member

conduct further proceedings management

meetings on the Chair’s own direction, or on

receipt of a request for further directions from

either party to the proceeding.


be held anytime until the commencement of one

of the following:

(a) a pre-hearing conference, pursuant

to subregulation 9.11.1; or

(b) a hearing to consider a proposed

settlement agreement.


in this Regulation, the Chair of the Hearing

Committee, in the Chair’s discretion, may

shorten or extend any notice or timing

requirements.

9.10.1 As soon as practicable following the

setting of the dates for hearing proceedings

management meeting, the Executive Director

must prepare and serve the member with the

notice of hearing.

9.10.2 Subject to subregulation 9.10.7, After the

notice of hearing has been served on the

member, the Executive Director must provide

notice of the hearing to the public at least 14 15

days prior to the date of the hearing by


(a) specifies the member’s name;

(b) specifies the date(s), time and

location for the hearing; and

This is a more accurate description of the timing

of this process.

These amendments recognize that if the notice

of referral to hearing has already been posted,

there will be no reason for the notice of hearing

that includes the actual dates for hearing to be

amended. The PRPPC recommends the deletion

of the entire application process for

Page 68 of 486

- 8 -


with the notice of hearing.

9.10.2 Subject to subregulation 9.10.7, after the

notice of hearing has been served on the

member, the Executive Director must provide

notice of the hearing to the public at least 14

days prior to the date of the hearing by


(a) specifies the member’s name;

(b) specifies the date(s), time and

location for the hearing; and

(c) outlines the nature of the charges.

Notice of Hearing to Others

9.10.3 Subject to subregulation 9.10.7, the

Executive Director must provide notice of the

hearing to those persons as directed by the

hearing panel at the pre-hearing conference.

Application to Panel

9.10.4 The member may make application to the

hearing panel to vary the content of the notice of

hearing.

9.10.5 The application must be made in writing

and received by the chair of the hearing panel

within 10 days of receipt of the notice of hearing

by the member.

9.10.6 The Executive Director will wait until the

hearing panel makes a determination on the


the notice of hearing.

(c) outlines the nature of the charges.

Notice of Hearing to Others

9.10.3 Subject to subregulation 9.10.7, the

Executive Director must provide notice of the

hearing to those persons as directed by the

hearing panel at the pre-hearing conference.

Application to Panel

9.10.4 The member may make application to the

hearing panel to vary the content of the notice of

hearing.

9.10.5 The application must be made in writing

and received by the chair of the hearing panel

within 10 days of receipt of the notice of hearing

by the member.

9.10.6 The Executive Director will wait until the

hearing panel makes a determination on the


the notice of hearing.

9.10.7 The hearing panel may give directions

regarding the content of the notice of hearing.

Panel to Give Reasons

9.10.8 The hearing panel must provide reasons if

the member’s application is not granted.

Pre-hearing Conference

9.11.1 Subject to subregulation 9.11.2, a pre-

hearing conference must be conducted by the

hearing panel no later than 30 days after the last

proceedings management meeting prior to

commencement of a hearing or at such time as

amendment/de-identification of the notice of

hearing.

This amendment is intended to more accurately

reflect the timing and process followed.

Page 69 of 486

- 9 -


9.10.7 The hearing panel may give directions

regarding the content of the notice of hearing.

Panel to Give Reasons

9.10.8 The hearing panel must provide reasons if

the member’s application is not granted.

Pre-Hearing Conference

9.11.1 Subject to subregulation 9.11.2, a pre-

hearing conference must be conducted by the

hearing panel no later than 30 days prior to

commencement of a hearing or at such time as

requested by either party and as determined by

the chair of the hearing panel.

9.11.2 The requirement to conduct a pre-hearing

conference may be waived with the agreement

of the parties.

Notice of Conference

9.11.3 The hearing panel, after consulting with

the parties on their availability, must provide

written notice to the parties of the time and date

of the pre-hearing conference.

9.11.4 The notice in subregulation 9.11.3 must

confirm that the hearing panel may proceed in

the absence of the member if the member or the

member’s counsel does not attend the

conference.

requested by either party and as determined by

the chair of the hearing panel.

9.11.1.2 A pre-hearing conference may be

conducted before the hearing panel chair

alone at the discretion of the panel chair.

9.11.2 The requirement to conduct a pre-hearing

conference may be waived with the agreement

of the parties.

Notice of Conference

9.11.3 The hearing panel chair, after consulting

with the parties on their availability, must

provide written notice to the parties of the time

and date of the pre-hearing conference.

9.11.4 The notice in subregulation 9.11.3 must

confirm that the hearing panel may proceed in

the absence of the member if the member or the

member’s counsel does not attend the

conference.

Authority of Hearing Panel

9.11.5 The hearing panel or chair must set a

date for the hearing to commence that is not

sooner than 30 days from the date of the pre-

hearing conference.

This amendment is intended to give a clear time

frame within which a hearing must start once the

dates have been set.

Page 70 of 486

- 10 -


Authority of Hearing Panel

9.11.5 At a pre-hearing conference, the hearing

panel may make orders and give directions on

any matters relating to the hearing for which

directions have not been given at a proceedings

management meeting, and on any other matters

in accordance with the authority of the hearing

panel under Section 42(2) of the Act.


panel may consider a proposed settlement

agreement provided there has been compliance

with the requirements for a notice of hearing in

subregulation 9.10.1.

9.11.7 A pre-hearing conference may be held in

public or private, as determined by the hearing

panel, after hearing from the parties.

Conduct of Pre-hearing Conference

9.11.8 A pre-hearing conference may be

conducted in person, in writing, by telephone or

by electronic communications including

videoconference, as determined by the hearing

panel.

9.11.9 Unless otherwise directed by the hearing

panel, the parties to the proceeding, or their

counsel, must attend or participate in the pre-

hearing conference.

9.11.5.1 At a the first pre-hearing conference,

the hearing panel or chair may make orders and

give directions on any matters relating to the

hearing for which directions have not been given

agreement may not have been reached at a

proceedings management meeting, and on any

other matters in accordance with the authority of

the hearing panel under Section 42(2) of the Act.


panel may consider a proposed settlement

agreement provided there has been compliance

with the requirements for a notice of hearing in

subregulation 9.10.1.

9.11.7 A pre-hearing conference may be held in

public or private, as determined by the hearing

panel or chair, after hearing from the parties.

Conduct of Pre-hearing Conference

9.11.8 A pre-hearing conference may be

conducted in person, in writing, by telephone or

by electronic communications including

videoconference, as determined by the hearing

panel or chair.

9.11.9 Unless otherwise directed by the hearing

panel or chair, the parties to the proceeding, or

their counsel, must attend or participate in the

pre-hearing conference.

The Hearing Committee Chair has suggested

that a settlement agreement should be considered

by the panel, not the chair alone.

Page 71 of 486

- 11 -


9.11.10 At the conclusion of the pre-hearing

conference, the hearing panel must issue written

orders and/or directions with regard to any or all

of the matters referred to in subregulation 9.11.5

and must provide the written orders and/or

directions to the parties.

9.11.10 At the conclusion of the pre-hearing

conference, the hearing panel or chair must

issue written orders and/or directions with regard

to any or all of the matters referred to in

subregulation 9.11.5 and must provide the

written orders and/or directions to the parties.

Commencement of hearing

9.11.11 The hearing has commenced when the

hearing panel begins to hear evidence in

relation to the charges against the member.

This amendment is intended to provide some

clarity regarding the start of a hearing. There

has been some confusion in prior matters in this

regard.

Page 72 of 486

- 1 -


From: Professional Responsibility Policies and Procedures Committee

Date: May 9, 2018

Subject: Section 37 Proceedings Regulations Date – 2018-05-18 Council For approval

Recommendation/Motion: It is recommended that the amendments to Regulations 9.4 through 9.5 regarding proceedings pursuant to Section 37 of the Legal Profession Act be approved for adoption. Executive Summary: In late 2007, the Professional Responsibility Policies and Procedures Committee (PRPPC) was asked by the Complaints Investigation Committee (CIC) for assistance in the development of clear guidelines for the conduct of proceedings pursuant to sections 36 and 37 of the Act. The CIC had encountered some difficulty in differentiating between meetings with lawyers under section 36(2)(a), which are compelled meetings as part of the investigative process, and the more formal hearings under section 37(1) when conditions, restrictions or suspensions are being considered in the public interest during the course of an ongoing investigation. By mid-2008, guidelines were ultimately approved which were designed to provide clarity to the CIC when considering everything from the need for the attendance of a court report, representation by counsel of the parties and other procedural matters. At that time, the PRPPC was a much larger committee and included the Chairs of the CIC and Hearing Committee and a public representative. Over the ensuing 10 years, the work of staff and the CIC has become more complex, with more frequent procedural challenges. Our experience with two recent cases have been exceptionally challenging and raised issues we have not had to address previously. As a result, both the CIC and PRPPC have agreed that it is time to revisit the legislation and the procedures at this time. Analysis: Over a number of months, the PRPPC reviewed the legislative authority that has been granted to the CIC in section 37 of the Act as well as the administrative law requirements for procedural fairness. The PRPPC noted

Page 73 of 486

- 2 -

that while not all exercise of powers by the CIC attracts a duty of procedural fairness, the exercise of the power to suspend or impose conditions does engage a duty of procedural fairness even though an order under Section 37 is an interim measure. The content of this duty of procedural fairness is defined in Section 37 itself: subsection (6) provides for the right to be represented by counsel, disclosure of the nature of the complaint and the right to an opportunity to present a response and make submissions. The case law would suggest that it would be unusual for the courts to impose a higher level of procedural fairness on an investigative committee where the content of the duty is set out in its governing statute. The 2016 decision from the Court of Appeal of British Columbia decision, Scott v. College of Massage Therapists of British Columbia, was very instructive to the Committee as it worked its way through both the regulatory scheme and the guidelines the CIC relies on in such matters. In the Scott case, the Court considered the duties of an inquiry committee in determining whether, based on a complaint from a member of the public, a registrant to the College should have restrictions placed on his license or have an interim suspension of his license imposed. The Court distinguished between the role of the discipline committee and the role of the inquiry committee, and held that “the inquiry committee is not engaged in deciding the merits of those allegations; that is for the discipline committee at the hearing on the merits.” The court held that “the question…to which the evidentiary burden is directed is whether the action is necessary to protect the public during the investigation of a registrant – that is, it is directed to the risk of harm.” The guidance that this decision provides by setting out factors for an administrative tribunal to consider when making interim decisions has been adopted by the PRPPC. The regulatory amendments that the PRPPC is proposing include a specific reference to the authority of the CIC to proceed without notice to the lawyer (reg. 9.4.2.1); the adoption of regulatory provisions that mirror those in s. 42(2) of the Act regarding evidence, failing to appear and adjournment (regs. 9.5.2-9.5.2.2); clear requirements regarding notification of the membership and the public of decisions made pursuant to s. 37 (regs. 9.5.3.1-9.5.3.3); and the addition of authority for the CIC to reconvene a proceeding under s. 37 in the absence of a request by the lawyer for a meeting pursuant to section 37(4). However, there remains one area of disagreement lack of consensus amongst the PRPPC regarding the timing of notification of a suspension to the public. The regulation that is at issue is as follows:

Notification of suspension 9.5.3.1 Despite Section 40(1) of the Act, when a practising lawyer has been suspended pursuant to Section 37(1)(a), the Executive Director must

(a) notify all prothonotaries, court administrators and registrars and other public offices that may be affected by the suspension; and (b) publish notice of the suspension which advises that the lawyer has been suspended and is not entitled to practice.

There were some members of the PRPPC who expressed concern, in the interests of fairness to the lawyer, that if, following a s. 37 proceeding held in the absence of a lawyer the lawyer is suspended, that lawyer’s reputation could be permanently damaged without having had the opportunity to defend themself. It is argued that this could happen if the CIC decides to suspend the lawyer on the basis, for example, of evidence which turns out to be incorrect, or satisfactorily explained by the lawyer. As such, they hold the view that the CIC or the Executive Director should have discretion to delay the notification of the suspension to the public for a brief period of time until the lawyer has an opportunity to request a meeting with the CIC to dispute their decision to suspend without hearing the lawyer. There is a further suggestion that notice of such a suspension could be provided to the Prothonotaries and Court Registrars, but not made ‘public’ through our normal means of posting a brief notice on our website for a brief period of time.

Page 74 of 486

- 3 -

Others on the PRPPC hold the view that the CIC only ever convenes a s. 37 proceeding in the absence of the lawyer in circumstances where there is an urgent need to protect the public and the prima facie case against the lawyer is clear (ex. clear evidence of misappropriation; lawyer has been incarcerated following criminal conviction, etc). In such circumstances, under s. 37(5) the lawyer remains entitled to request a meeting with the CIC to review the basis for the suspension and present evidence that could demonstrate that something less than suspension would adequately protect the public. Further, whenever there is prima facie evidence that supports an immediate interim suspension, in the interests of public protection the public should be notified of the suspension immediately to ensure that they are not misled or left to wonder about the Society’s response to a situation that is often already in the public domain. The PRPPC is requesting that Council consider the issues raised regarding regulation 9.5.3.1 and provide the Committee direction in this regard. They are also requesting that the regulatory amendments that the PRPPC is proposing attempt to bring some clarity to the interim process that is set out in section 37 of the Act. Exhibits/Appendices: Appendix “A” – draft amendment to Regulations 9.4 through 9.5

Page 75 of 486

Appendix A


1


9.4 Referral to Complaints Investigation Committee 9.4.1 At any time after a complaint is received, the Complaints Investigation Committee may

(a) … (f) exercise any of the powers conferred

upon it by Sections 36, 37, and 38 of the Act;

…

9.4 Referral to Complaints Investigation Committee 9.4.1 At any time after a complaint is received, the Complaints Investigation Committee may

(a) … (f) exercise any of the powers conferred

upon it by Sections 36, 37, and 38 of the Act;

…

Committee Determines Process 9.4.2 Notwithstanding anything contained in this Regulation, and where the objects of the professional responsibility process require, the investigation of a complaint by the Executive Director and the Complaints Investigation Committee may be conducted in such manner as the Committee determines.

Committee Determines Process 9.4.2 Notwithstanding anything contained in this Regulation, and where the objects of the professional responsibility process require, the investigation of a complaint by the Executive Director and the Complaints Investigation Committee may be conducted in such manner as the Committee determines.

Notice 9.4.2.1 The Committee may exercise its powers under Section 37 without notice to the practising lawyer when it is in the public interest to do so.

NEW – adding reference to authority of CIC to proceed in absence of lawyer

Page 76 of 486

- 2 -


… Hearing Rules Apply 9.5.2 The provisions of subregulations 9.13.2, 9.13.3 and 9.13.4 apply mutatis mutandis to a proceeding conducted by the Committee pursuant to subsections 37 and 38 of the Act.

… Hearing Rules Apply 9.5.2 The provisions of subregulations 9.13.2, 9.13.3, and 9.13.4 apply mutatis mutandis to a proceeding conducted by the Committee pursuant to subsections 37 and 38 of the Act. Evidence 9.5.2 In a proceeding under Section 37, the Committee may receive and accept such evidence and information on oath, affidavit or otherwise as the hearing panel in its discretion sees fit, whether admissible in a court of law or not. Failure to Appear 9.5.2.1 If the practising lawyer fails to appear at a proceeding pursuant to Section 37 or for the resumption of an adjourned proceeding after notice thereof, the Committee may proceed in the lawyer’s absence. Adjournment 9.5.2.2 The Committee may from time to time adjourn a proceeding under Section 37 and give notice thereof to the parties.

NEW – PRPPC suggested that reg 9.5.2 be replaced with language that matches s. 42(2)(e)

9.5.3 Despite Section 40(1) of the Act and subject to any order of the Committee, the Executive Director must

(a) provide the membership with an

9.5.3 Despite Section 40(1) of the Act and subject to any order of the Committee, the Executive Director must

(a) provide the membership with an

Page 77 of 486

- 3 -


anonymized summary of any disposition pursuant to subregulation 9.4.3(d); and

(b) provide the public with notice of any disposition under subregulation 9.4.3(e) or Section 37(1)(a) or (b).

anonymized summary of any disposition pursuant to subregulation 9.4.3(d); and

(b) provide the public with notice of any disposition under subregulation 9.4.3(e) or Section 37(1)(a) or (b).

Notification of suspension 9.5.3.1 Despite Section 40(1) of the Act, when a practising lawyer has been suspended pursuant to Section 37(1)(a), the Executive Director must (a) notify all prothonotaries, court administrators and registrars and other public offices that may be affected by the suspension; and (b) publish notice of the suspension which advises that the lawyer has been suspended and is not entitled to practice.

NEW - Disagreement by PRPPC on will require Council’s consideration

Notification of conditions or restrictions 9.5.3.2 When conditions or restrictions have been imposed on a practising lawyer pursuant to Section 37(1)(a), the Executive Director (a) must notify all prothonotaries, court administrators and registrars and other public offices that may be affected by the conditions or restrictions; and (b) may publish notice of the conditions or restrictions on the practise of the lawyer.

NEW: adds discretion for CIC to publish notice of conditions/restrictions if appropriate

9.5.3.3 In the absence of a request for a meeting by the lawyer pursuant to Section 37(4), the Committee may reconvene on the receipt of information that could result in the

NEW: allows CIC discretion to reconvene in absence of request for meeting by lawyer

Page 78 of 486

- 4 -


variation or termination of a decision made pursuant to Section 37(1)(a).

Page 79 of 486

- 1 -

MEMORANDUM TO EXECUTIVE

From: Tilly Pillay, QC

Date: May 8, 2018

Subject: Court Liaison Committees

For: Approval Introduction Information ■

I have been asked to gather information/materials available to the Society in relation to the Court Liaison Committees. BACKGROUND These Committees have existed for a long time (some 30 years). Historically, their work focussed on improving the court system and they assisted in communications between the judiciary and the Society. There are 5 Committees: Court of Appeal, Supreme Court, Supreme Court (Family Division), Provincial Court and Family Court. The mandate of the Committees is to support the Executive Director in ensuring effective liaison with the court. The responsibilities of these Committees is to provide a means for ongoing liaison between the Courts of Nova Scotia and the Society about matters of mutual concern and interest. In 2010, as part of the implementation of the recommendations of the Task Force on Committee Composition (attached as Schedule A – pg. 5), these Liaison Committees became the responsibility of the Executive Director. KEY QUESTIONS:

1. Who made the decision to transfer administration of these Committees to the CBA? The Executive Director in 2017. Discussions with the Executive began in the Fall of 2016.

2. Who had the authority to make this decision?

The Executive Director by virtue of a decision of Council in 2010, following the recommendations of the Task Force on Committee Composition. Regulatory

Page 80 of 486

- 2 -

amendments were made in 2010 to give effect to Councils’ decision (memo to Council and amendments attached as Schedule B – pg. 86) and amendments were made to Council Policy 18 (attached as Schedule C – pg. 97) so that responsibilities for all liaison committees fall to the Executive Director, and not to Council anymore. The Executive Director appoints members to these Committees, as well as the CBA and the Courts. The constitution of these Committees is not a matter that has come before Council since 2010.

3. What rationale was given for the decision? Historically, these Committees have focussed on improving the court system, discussing broader policy issues and facilitating communications between the Judiciary and the Society. More recently, the focus has been on practice issues, which does not fall under the Society’s mandate as the public interest regulator. In addition, communications have evolved such that the Society now has regular meetings with the judiciary to discuss issues of common concern (such as access to justice) and the courts now communicate directly with the profession without going through the liaison committees. The CBA, which advocates on behalf of its membership and is the voice of the legal profession, is seen as the appropriate organization to take over this role.

4. What communications occurred when this decision was being made? Who was consulted? The Executive Director consulted with the Executive in late 2016 and in 2017 with respect to his thinking on this issue. There were conversations and meetings with the CBA to see if they were amenable to taking over administration of these Committees. The Executive Director and the CBA each had at least one conversation with CJ MacDonald about the proposed transfer, and the Chief responded favourably. There may have been other conversations (relayed anecdotally), but there are no written materials to confirm this. Two Committee Chairs advise they were never told or consulted and did not know this was coming.

5. What can Council do now? Council made a policy decision to delegate responsibility of these Committees to the Executive Director. That was based on the extensive work done by the Task Force and the desire to follow good principles of governance in relation to Council and Committees. Council can now have a policy discussion about whether they think those principles still apply and what action they want to take, if any.

CHRONOLOGY OF EVENTS - DECISION At the September 2016 meeting of the Executive, the Executive Director presented a memo entitled “Strategic Engagement with Lawyer Groups” (attached as Schedule D – pg. 99). This memo makes mention of the strategic alignment with liaison groups, including the Court Liaison Committees. This memo states, in part, that “over the years we [NSBS] have maintained a regular liaison function with the courts, but without much strategic purpose” and goes on to

Page 81 of 486

- 3 -

question their role in light of the Strategic Framework. The Minutes from that meeting (attached as Schedule E – pg. 103), state under item 3.b.i that “we need discussion with CBA and courts on how to proceed. Darrel and Daren will communicate with the Liaison Committee chairs”. I have found an email which confirms Darrel reached out to the CBA in May 2017 (attached as Schedule F – pg. 109), but no written communications to the Chairs. In August 2017 the Executive Director prepared a memo for the Executive in relation to these Committees (attached as Schedule G – pg. 111). The memo outlines some history and background information and provides the rationale for his conclusion that “the liaison work is not part of the Society’s mandate and the Society is no longer well equipped to address or respond to ‘court practice issues’ and “that these committees are best sponsored by the CBA branch”. There were meetings with the CBA in 2017, and further email communications about the status of the discussions amongst the CBA, but we could find no communications with the Chairs or the committees or the court. There is anecdotal information that conversations were had with CJ MacDonald in 2017. WHAT HAPPENED IN 2010? The regulatory requirement for Council to appoint the liaison committees was repealed in July 2010 based on the recommendations of the Task Force on Committee Composition (attached as Schedule A – pg. 5). The Executive Director wrote a report for the July 2010 Council meeting that provides the background for the regulatory amendments (attached as Schedule B – pg. 86). In brief, the Task Force determined that the various liaison committees were not advisory to Council nor regulatory in nature, and membership on those committees should therefore be considered an appointment to an outside body. The Executive Director was given the responsibility to appoint volunteers to those committees, with input from the Executive Committee as necessary, and would report back as appropriate to Council on the work of those committees (see recommendation 6). Amendments were also made to Council Policy 18 to reflect these strategic alliances (attached as Schedule C – pg. 97). Paragraph 18.26 and its subparagraphs seem to be in keeping with the sentiments expressed by the Task Force in 2010. I note that all the Court Liaison Committees are considered to be “outside bodies” in this policy. CURRENT SITUATION I have enquired of the Chairs of the Committees as to how often they meet and to share some of their Agendas and Minutes so Council can have a sense of what is discussed at these meetings. The Supreme Court Liaison Committee meets twice a year (materials attached as Schedule H, at pg. 115) The Court of Appeal Liaison Committee also meets twice a year (materials attached as Schedule I (pg. 162). The Supreme Court (Family Division) Liaison Committee meets every second month from September to May (materials attached as Schedule J, pg. 213). The Provincial Court Liaison Committee meets about 5 times a year (materials attached as Schedule K, pg. 258). The Family Court Liaison Committee has not met for some time.

Page 82 of 486

Schedule A

4 of 298

Page 83 of 486

5 of 298

Page 84 of 486

6 of 298

Page 85 of 486

7 of 298

Page 86 of 486

8 of 298

Page 87 of 486

9 of 298

Page 88 of 486

10 of 298

Page 89 of 486

11 of 298

Page 90 of 486

12 of 298

Page 91 of 486

13 of 298

Page 92 of 486

14 of 298

Page 93 of 486

15 of 298

Page 94 of 486

16 of 298

Page 95 of 486

17 of 298

Page 96 of 486

18 of 298

Page 97 of 486

19 of 298

Page 98 of 486

20 of 298

Page 99 of 486

21 of 298

Page 100 of 486

22 of 298

Page 101 of 486

23 of 298

Page 102 of 486

24 of 298

Page 103 of 486

25 of 298

Page 104 of 486

26 of 298

Page 105 of 486

27 of 298

Page 106 of 486

28 of 298

Page 107 of 486

29 of 298

Page 108 of 486

30 of 298

Page 109 of 486

31 of 298

Page 110 of 486

32 of 298

Page 111 of 486

33 of 298

Page 112 of 486

34 of 298

Page 113 of 486

35 of 298

Page 114 of 486

36 of 298

Page 115 of 486

37 of 298

Page 116 of 486

38 of 298

Page 117 of 486

39 of 298

Page 118 of 486

40 of 298

Page 119 of 486

41 of 298

Page 120 of 486

42 of 298

Page 121 of 486

43 of 298

Page 122 of 486

44 of 298

Page 123 of 486

45 of 298

Page 124 of 486

46 of 298

Page 125 of 486

47 of 298

Page 126 of 486

48 of 298

Page 127 of 486

49 of 298

Page 128 of 486

50 of 298

Page 129 of 486

51 of 298

Page 130 of 486

52 of 298

Page 131 of 486

53 of 298

Page 132 of 486

54 of 298

Page 133 of 486

55 of 298

Page 134 of 486

56 of 298

Page 135 of 486

57 of 298

Page 136 of 486

58 of 298

Page 137 of 486

59 of 298

Page 138 of 486

60 of 298

Page 139 of 486

61 of 298

Page 140 of 486

62 of 298

Page 141 of 486

63 of 298

Page 142 of 486

64 of 298

Page 143 of 486

65 of 298

Page 144 of 486

66 of 298

Page 145 of 486

67 of 298

Page 146 of 486

68 of 298

Page 147 of 486

69 of 298

Page 148 of 486

70 of 298

Page 149 of 486

71 of 298

Page 150 of 486

72 of 298

Page 151 of 486

73 of 298

Page 152 of 486

74 of 298

Page 153 of 486

75 of 298

Page 154 of 486

76 of 298

Page 155 of 486

77 of 298

Page 156 of 486

78 of 298

Page 157 of 486

79 of 298

Page 158 of 486

80 of 298

Page 159 of 486

81 of 298

Page 160 of 486

82 of 298

Page 161 of 486

83 of 298

Page 162 of 486

84 of 298

Page 163 of 486

Schedule B

85 of 298

Page 164 of 486

EXECUTIVE DIRECTOR REPORT ON COMMITTEES In 2010, as part of the implementation of the recommendations of the Task Force on Committees, Council reorganized the committee structure to create four types of committees:

• Regulatory committees – required by The Act or Regulations to carry out the Society’s regulatory mandate;

• Council committees – to assist Council in carrying out its governance and policy roles; • Operational committees – to assist the executive director in his work by providing lawyer input

(through Council members and others) in the Society’s operations; • Liaison committees – to assist the Executive Director in the undertaking of liaison activities with

the courts and government departments. The Executive Director is responsible for reporting to Council and the membership at the annual meeting on the activities for which he is responsible including the work of the committees that assist in carrying out this work. Liaison Committees The Society endeavours to maintain an ongoing communication with the Departments of Justice and Service Nova Scotia as well as all the courts in the Province. The purpose is to ensure that issues that are known to the Society and practising lawyers that are affected by these entities are communicated and there is a means of advancing and if necessary solving problems. The focus is primarily on matters that will benefit the public, by ensuring that lawyers are better able to serve their clients. The list of matters that occupy the Society’s relationship with the government and the courts is long. Below are noted some of the major matters that have occupied each of the liaison committees. Department of Justice Liaison Committee

• Amendments to The Legal Profession Act – the specific nature of the amendments that would authorize the Fitness to Practise program; clarify the Society’s role in the administration of justice; and create a statutory privilege over information held in the Society as a result of its regulatory activities was thoroughly reviewed by this committee.

• New legislation – a new Limitations of Actions Act has been the subject of discussions and will remain on the committee’s agenda; abolition of the Rule Against Perpetuities is promised; various other pieces of legislation have been the subject of discussion and have allowed for lawyer expertise to be contributed to the government’s legislative process.

• A collaborative law library – how can the Society and the Department of Justice better manage limited resources while enhancing the quality of library services available to all justice sector users who require access to current legal resources and research facilities?

• Family Court and Family Division – how can services for families who are using the court system be enhanced by improving services available to the Family Court and by expanding the Family Division of the Supreme Court to have province-wide jurisdiction?

• Family Law Reform and the previously proposed merger of the Provincial and Family Courts have also been on the committee’s agenda. These discussions are ongoing.

• Crown Lands issues – after the Court of Appeal’s decision in Brill, the Society has identified a number of issues it would like to engage with government on to bring greater clarify and certainty to how the Crown’s interest in lands are identified and asserted.

• Employment Equity – how to ensure the legal profession reflects the people of Nova Scotia continues to be a priority, together with the role of the Department in leading these discussions has been on the agenda. These discussions also involve the Shulich School of Law at Dalhousie University.

86 of 298

Page 165 of 486

Service Nova Scotia & Municipal Relations. • Legislation – the committee has been actively in pursuing a number of legislative initiatives at

various steps including the Securities Transfer Act, amendments to the Land Registration Act and its regulations, and the Condominium Act.

• Land Registration Act oversight – there are several groups that monitor and work to improve the operations of the land registration system. These committees report to the Liaison Committee which plays an oversight role to ensure that appropriate people are engaged in discussions and necessary resources are identified and, if possible, made available.

• Emerging Issues - The committee has identified issues in need of leadership and consideration by the Department and the Society including:

o digital signatures, o mortgage fraud, o layered access to Property On Line, o improving process for filing Form 6 A in the land registration system and a wide variety

of smaller issues identified by the Real Estate Working Group, an advisory group based in the Society with Departmental input.

Overall this committee focuses on real estate and commercial practice within the jurisdiction of Service Nova Scotia and in which clients are impacted by government action. The goal of the Society and the Department is to work for continuous improvement of the land and corporate registries and other processes within Service Nova Scotia. COURT LIAISON The Society maintains a liaison activity with each court. Frequency of meetings and depth of agenda has been an issue this past year. Court of Appeal Liaison This committee has met several times. It identifies issues that will improve the processes of the Court of Appeal. Working with the Canadian Bar Association, a process to facilitate pro bono counsel to assist in resolving manners, identified by the Court as appropriate for mediation, has been developed. The committee has also developed a protocol for use when an appeal raises issues of inadequacy of counsel and how these issues should be processed. Supreme Court Liaison There are separate committees that deal with the Supreme Court in its civil, criminal and family jurisdictions. The civil and criminal committees have met only once. A second scheduled meeting was cancelled. On the civil side, the priority has been the implementation of the new Civil Procedure Rules and the various procedures they create. Other matters for discussion included court facilities in the Halifax Regional Municipality and plans for them and coverage issues in other parts of the province where a resident judge is unable to sit in court. On the criminal side the agenda included a discussion of court security, a matter that affects all courts, obtaining early pre-trial dates in Crown side, processes for consultation with the Crown when a bail review is undertaken and the self reporting questionnaire currently administered to jurors. Discussion with the Family Division also focused on the new Civil Procedure Rules, enforcement of parenting orders, spousal support when Corollary Relief is silent and the provisions in the Model Code of Conduct re communication with witnesses. There are some concerns about the lack of Chambers time in the Family Division and this is a matter of ongoing discussion as is improving processes for matters being held under the Children and Family Services Act.

87 of 298

Page 166 of 486

Provincial and Family Court Effective liaison requires participation of both judges and lawyers who practise before the respective courts. That has been an issue in the past year with these courts and has prevented the type of liaison that is desirable by both the Society and the courts themselves. The retirement of the chief judge of the Family Court and the lack of an associate chief judge in the Provincial Court and Family Court places the full burden of many matters on the chief judge at the same time when he assumed responsibility for the Family Court. The Society is committed to ensuring that there be a means to effectively discussing matters that are important to these courts including court security, the expansion of services of the Family Court, improving processes used in both courts and working to ensure they are as accessible as possible for citizens in Nova Scotia. Other Liaison Activities

In addition to these activities that are carried on by committees, the Society, primarily through the Executive Committee and the officers, has met this past year with the following groups and entities to discuss matters of mutual concern: • LIANS Board of Directors • Canadian Bar Association, Nova Scotia branch executive committee • L'Association des juristes d'expression française de la Nouvelle-Écosse (AJEFNE) • Law Foundation of Nova Scotia • Law Reform Commission • Dean of Schulich School of Law, Dalhousie University Each discussion affords an opportunity to learn about the priorities and issues facing these bodies and how the Society might benefit from or assist,in their work. As an example, AJEFNE raised the issue of probating wills in French which was subsequently raised with the Department of Justice Liaison Committee and is now the subject of separate discussions. Discussions with the Canadian Bar Association have allowed the Society to understand the capacity and possible role of the CBA in delivering enhanced continuing legal education to lawyers in Nova Scotia. The Law Reform Commission meeting allowed the Society to discuss the future of the independent body and subsequently have discussions with government. A further note regarding AJEFNE is required. Under the new provisions of Section 4 (2) (d) of The Legal Profession Act the Society’s purpose includes a requirement to seek to improve the administration of justice in the province. One of the ways that this is done is through liaising with various communities in the province. In the past year the Society has committed to working with AJEFNE to identify issues that are of importance to the Acadian and Francophone communities. In addition to the matter noted above there have been meetings with AJEFNE to consider how language issues are addressed in the Bar Admission Course; whether there ought to be specific provisions in the Code of Professional Conduct with regard to language and the Society has better promoted educational opportunities available to both Francophone and other members of the profession who wish to better understand what French legal resources there are for the benefit of all lawyers. The Society remains committed to ensuring that issues that are unique to this segment of the province’s population are addressed within he Society’s capacity and resources.

88 of 298

Page 167 of 486

The other range of communities and institutes referred to in Section 4 (2) (d) are wide. Many of these are addressed by the Equity Officer who reports separately to the Annual Meeting on these activities. Council will be better addressing the specific nature and the expected outcomes from these activities in the coming year. Operational Committees The Executive Director, from time to time, will seek the advice and assistance of members of Council and other lawyers to address specific matters that are within his responsibility. This past year as the Society’s organizational review has been ongoing, members of Council and others participated in a review of the Society’s role in continuing professional development and social events as well as some proposed alternatives as to how legal services are handled for the Society under the professional responsibility process. The results of these activities have been reported to Council. As well the Ethics Advisory Committee provides regular assistance to the Executive Director and staff particularly those in the Professional Responsibility Department, who regularly are asked to assist lawyers with ethical issues. The Society’s advice is not binding and is advisory only but has been found to be of significant assistance to members who struggle to ensure they are doing the right thing when facing ethical challenges. This work is fully canvassed in the PR Monitoring Report.

89 of 298

Page 168 of 486

2.9 Committees 2.9.1 Council shall appoint the following committees:

(a) ADMINISTRATION OF JUSTICE COMMITTEE, to liaise with the various courts with a view to the general improvement of the administration of justice in the Province and with regard to the Rules of Court;

(b) LAWYERS’ FUND FOR CLIENT COMPENSATION COMMITTEE, to make recommendations to Council when claims are made under Part IV of the Act;

(c) COMPLAINTS INVESTIGATION COMMITTEE, to carry out the responsibilities assigned to it under Part III of the Act and Part 9 of the Regulations;

(d) CREDENTIALS COMMITTEE, to oversee the Regulations with respect to admission to membership in the Society, the Bar Admission Course, changes in category of membership in the Society, and resumption of membership in the Society;

(e) EXECUTIVE COMMITTEE, to assist the officers in carrying

2.9 Committees 2.9.1 Council shall appoint the following committees:

(a) REPEALED July 2010; (b) LAWYERS’ FUND FOR

CLIENT COMPENSATION COMMITTEE, to carry out the responsibilities assigned to it under Part IV of the Act and Part 11 of the Regulations;

(c) COMPLAINTS INVESTIGATION COMMITTEE, to carry out the responsibilities assigned to it under Part III of the Act and Part 9 of the Regulations and in accordance with the Objects of the professional responsibility process;

(d) CREDENTIALS COMMITTEE, to oversee the Regulations with respect to admission to membership in the Society, the Bar Admission Course, changes in category of membership in the Society, and resumption of membership in the Society;

(e) EXECUTIVE COMMITTEE, to review matters to be dealt with by Council to ensure they are ready for Council consideration, to undertake those matters that are delegated

To effect the recommendations of the Task Force on Committees.

90 of 298

Page 169 of 486

out their responsibilities, to review matters to be dealt with by Council to ensure they are ready for Council consideration, and to undertake those matters that are delegated to it by Council;

(f) FINANCE COMMITTEE, to oversee the finances of the Society, to make recommendations thereon to the Council, to submit to Council in each year an estimate of the receipts and expenditures of the Society for the year, and to oversee the annual audit;

(g) HEARING COMMITTEE, to carry out the responsibilities assigned to it under sections 41-48 of the Act;

(h) GENDER EQUITY COMMITTEE, to oversee programs which address issues of gender in the legal profession;

(i) ETHICS AND PROFESSIONAL RESPONSIBILITY COMMITTEE, to oversee the rules and standards for ethics and professional responsibility in the legal profession, including recommending to Council amendments to the

to it by Council, and to act on behalf of Council in matters of urgency;

(f) FINANCE COMMITTEE, monitors the finances of the Society, acts on behalf of Council in regard to the annual audit of the Society’s finances and acts on behalf of Council in respect to the management of the Society’s investments;

(g) HEARING COMMITTEE, to carry out the responsibilities assigned to it under Part III of the Act and Part 9 of the Regulations and in accordance with the Objects of the professional responsibility process;

(h) GENDER EQUITY COMMITTEE, monitors, and provides Council with advice about, matters that address issues of gender in the legal profession;

(i) REPEALED June 2010; (j) GOVERNANCE AND

NOMINATING COMMITTEE, assist Council in the recruitment, appointment and election of members of Council and Officers of the Society and support Council’s commitment to the principles

91 of 298

Page 170 of 486

rules; providing guidance to members through opinions, advice and interpretation of the rules; member education, and offering guidance to the Society in respect of trends in practice and the profession which impact on lawyers’ ethics and professional responsibilities;

(j) NOMINATING COMMITTEE, to nominate a candidate for second Vice-President, to present to Council names of prospective public representatives and in the event of a vacancy on Council or in one of the officers, a name to fill the vacancy;

(k) PROFESSIONAL STANDARDS COMMITTEE, to develop professional standards in an area of practice and to make recommendations to Council in those areas;

(l) RACE RELATIONS COMMITTEE, to oversee programs which address issues of racism and discrimination in the legal profession, including programs to increase access to the legal profession;

(m) TRUST ACCOUNTS COMMITTEE, to oversee the Regulations respecting the

and practices of good governance;

(k) REPEALED July 2010; (l) RACIAL EQUITY

COMMITTEE, monitors, and provides Council with advice about, programs that address issues of racism and discrimination in the legal profession and in relation to access to justice, including programs to increase access to the legal profession;

(m) REPEALED July 2010; (n) REPEALED June 23, 2007; (o) REPEALED July 2010; (p) PROFESSIONAL

RESPONSIBILITY POLICY & PROCEDURES COMMITTEE, to consider and recommend to Council changes to the Act, Regulations and policies, and develop procedures for the professional responsibility process;

(q) REPEALED July 2010; (r) REPEALED July 2010; (s) PROFESSIONAL STANDARDS

(Real Estate) COMMITTEE, develops professional standards for the area of real estate law;

(t) PROFESSIONAL STANDARDS (Family) COMMITTEE, develops professional standards

92 of 298

Page 171 of 486

operation and maintenance of lawyers’ trust and general accounts, to develop and administer related policies and procedures and to give advice to Council;

(n) REPEALED June 23, 2007 (o) DISTINGUISHED SERVICE

AWARD COMMITTEE, to make recommendations to Council for a recipient of the Nova Scotia Barristers’ Society Distinguished Service Award in that year when Council has directed that the award is to be given.

(p) PROFESSIONAL RESPONSIBILITY POLICY & PROCEDURES COMMITTEE, to consider policy and procedures issues for the professional responsibility process in accordance with terms of reference that are approved by Council.

(q) SERVICE NOVA SCOTIA & MUNICIPAL RELATIONS COMMITTEE; to provide a means for ongoing liaison and communication between Service Nova Scotia & Municipal Relations and the Society about matters of mutual concern and interest and to

for the area of family law.

93 of 298

Page 172 of 486

make recommendations to Council with regard thereto.

(r) DEPARTMENT OF JUSTICE LIAISON COMMITTEE; to provide a means for ongoing liaison and communication between the Department of Justice and the Society about matters of mutual concern and interest impacting the administration of justice in the province and to make recommendations to Council with regard thereto.

Composition of the Credentials Committee 2.9.11 The Credentials Committee shall be made up of not fewer than nine people, at least fifty percent (50%) of whom shall be members of Council.

Composition of the Credentials Committee 2.9.11 The Credentials Committee shall be made up at least six and no more than nine members, at least three of whom shall be serving members of Council, and shall include at least on Public Representative currently serving on Council, and shall include a representative from Schulich School of Law.

Ex Officio 2.9.12 The President is a member ex officio of each committee except the Hearing Committee. [Reg. 8(6) amended]

Ex Officio 2.9.12 For the purpose of this part “ex officio” means non-voting and an ex officio member is not counted for quorum of a committee.

94 of 298

Page 173 of 486

2.9.12.1 The President is a member ex officio of each committee except the Hearing Committee.

95 of 298

Page 174 of 486

Schedule C

96 of 298

Page 175 of 486

Council Policy 18 – Executive Expectations of the Executive Director

NAME OF POLICY Executive Expectations of the Executive Director

APPLICABLE SECTIONS OF THE LEGAL PROFESSION ACT AND REGULATIONS

LPA s. 9(1), 7(2), 10(2), 14(1), 20(2), 40(2) Society Regs 1.2, 2.1.1, 2.1.2, 2.1.3, 2.1.4, 2.1.5, 2.2.2, 2.5

Approved by Council January 25, 2008

Effective January 25, 2008

Reviewed May 23, 2014

Revised May 23, 2014

Appointments of liaison committees and members of outside bodies

18.26 Upon request for the Society to appoint liaison committees, representatives and board members to external bodies, the Executive Director, in consultation with the Governance and Nominating Committee, will assess whether such representation is appropriate within the Society’s purposes and current priorities.

18.26.1 If the Executive Director is to make the appointment, Council shall be advised in writing of the names of the intended appointees before the appointments are made.

18.26.2 The Executive Director will appoint the required representatives.

18.26.3 The Executive Director will ensure Council makes the appointments if it is required to do so.

18.26.4 The Society’s appointee shall provide information reports as appropriate, to be determined by the Executive Director at the time of appointment.

18.26.5 These liaison committees and outside bodies include:

• Canadian Lawyers’ Insurance Association Advisory Board** Advisory Committee on Judicial Appointments – Federal.

• Federation of Law Societies of Canada Council** • Law Foundation of Nova Scotia** • Law Reform Commission of Nova Scotia** • Lawyers’ Insurance Association of Nova Scotia** Board of Directors • Legal Information Society of Nova Scotia (LISNS) • Nova Scotia Legal Aid Commission** • Provincial Judicial Appointments Advisory Committee • QC Appointments Advisory Committee • Small Claims Court Adjudicators Advisory Committee • Statutory Costs and Fees Committee • The Indigenous Blacks and Mi’kmaq Initiative Advisory Council • The Judicial Council of Nova Scotia • Court Liaison Committees • Government Liaison Committees (and their subcommittees) • The Nova Scotia Civil Procedure Rules Committee

97 of 298

Page 176 of 486

Schedule D

98 of 298

Page 177 of 486

MEMORANDUM TO EXECUTIVE

From: Darrel Pink

Date: Wednesday, August 3, 2016

Subject: Strategic Engagement with Lawyer Groups

For: Approval Introduction Information

Recommendation/Motion: Consider how our strategic and court liaison are aligned with the Strategic Framework. Executive Summary: There is a need for a reconsideration and careful planning of our strategic engagement activities with legal organizations and the courts. This memo raises some of the issues that need consideration and looks for some guidance from the executive Committee. Analysis: As is noted on the Council Calendar it is at this time of year that we begin to plan for and arrange a variety of meetings for the Executive. In light of the approved Strategic Framework the Society must now engage with stakeholders in a particular way. As part of the Foundational Activities we are responsible for:

Promoting and maintaining effective relationships through sincere, substantive and sustained engagement and adopting restorative approaches

Our requirements for liaison is prescribed by Council Policy –

Strategic Alliances 18.25 Because the Society’s relationships with individuals and organizations involved in the administration of justice and the governance of the legal profession are critical to achievement of its strategic goals, and because the Executive Director plays a vital role in developing, nurturing and enhancing the quality and extent of these various relationships for the benefit of the Society, the Executive Director shall ensure:

18.25.1 External relationships with organizations having an interest in the practice of law and administration of justice in the province, such as County Bar Associations, AJEFNE, CBA, LIANS, senior provincial and federal justice

99 of 298

Page 178 of 486

officials, the courts, the Public Prosecution Service, Nova Scotia Legal Aid and other organizations as may be identified by the President, the Executive Director or Council, are developed and maintained with maximum effectiveness; 18.25.2 Opportunities for the development of new external relationships and partnerships are identified; 18.25.3 There are meetings between the Society and the organizations noted in article; and 18.24.2 Council is advised how this work benefits the Society.

The nature of these meetings has changed significantly over the years. For many years the various meetings with organizations set out in 18.24.1 were fairly casual. They afforded an opportunity to discuss matters of mutual concern while describing what the Society’s priorities were under it’s then existing activity plan. During the last 3 years these meetings, with a couple of exceptions, the meetings and discussions focused on our strategic framework in general and our transforming of regulation in particular. So they afforded an opportunity to engage with organizations and legal entities (such as the PPS, DoJ, PPSC) about what new regulation might look like and how it would impact them. As we begin our work under the new Strategic Framework we should consider and identify what it is that we want from the various liaisons mandated by 18.24 and how they can achieve ‘maximum effectiveness’. With three streams in the new Strategic Framework -

• Transform regulation in the public interest • Enhance access to legal services and the justice system • Promote equity, diversity and inclusion in the legal profession

how do we advance each of these elements in our meetings with organizations and legal entities? In particular how can we use these opportunities to ‘enhance access to legal services’ and ‘promote equity…’. Over the past several years our focus has been on the transforming regulation aspect of our work; now may be the time to focus more on the ‘Administration of Justice’ aspect of our work. This would require us to lay the groundwork for a new approach, as it will be a change of focus from past discussions. Likely communications with a draft agenda and a rational for our approach would be required and perhaps a backgrounder of our work and other work in the province will be assist. The nature of the specific outcome from each meeting may require some careful planning in advance. Court Liaison Council Policy 18.25.1 also refers to our engagement with ‘the courts’. Over the years we have maintained a regular liaison function with the courts, but without much of a strategic purpose, even if there have been approved terms of reference for them. They generally state:

This Joint Committee provides a means for ongoing liaison and communication between the Supreme Court of Nova Scotia and the Nova Scotia Barristers' Society about matters of mutual concern and interest. There are 3 main tasks for the Committee:

• To identify practice and policy issues of mutual concern and interest; • To recommend means for addressing these issues; • To communicate the results of this process to the Court and to the Society for

further communication to the profession or elsewhere

100 of 298

Page 179 of 486

Generally these ToRs reflect a different time and role for the Society. Do they need reconsideration in light of the Strategic Framework? If we want court liaison to be more directly connected to and in pursuit of our strategic framework, then we will need to undertake a fair amount of re-education of both our own members and the judges who participate. Can we do this on our own? If we believe it is the best way to advance our priorities, what do we do if the courts are not in agreement? If the courts priority is to have a place to discuss ‘practice issues’, should it be the Society that plays that role or is it better undertaken by the lawyers’ organizations such as APTLA, NS Criminal Lawyers/Crown Attorneys Associations, or the CBA?

In putting forward these issues for discussion, I do so to begin a discussion on how we align our work

with the Strategic Framework or how we ensure that that framework drives our work.

101 of 298

Page 180 of 486

Schedule E

102 of 298

Page 181 of 486

Date September 9, 2016

Time 2:00 pm

Present R. Daren Baxter QC, TEP, President Julia Cornish QC Frank DeMont QC Peggy Gates-Hammond Darrel Pink Shirley Shane Recording

1. INTRODUCTORY MATTERS Approval of Minutes of August 12, 2016 meeting The minutes were approved with one typographical correction.

2. EXCELLENCE IN REGULATION AND GOVERNANCE

a) Items for Approval i. Executive Director reporting to Council

July 23, 2016 memo D. Pink The Executive Director requested Executive Committee’s feedback on his reporting to Council. Following discussion it was agreed that in addition to providing the updated 2016-17 Activity Plan a summary of the key activities would be beneficial. Action: memo to be updated and provided to Council at its September 23, 2016 meeting

ii. Draft Activity Plan 2016-2017 The Executive Director reported the involvement of staff whose work relates to the initiatives in the Plan is almost complete. Work Plans for the September meeting of Council are being written relative to the Activity Plan. Action: An Activity on Council Composition will be added for the September Council meeting and a third column added in the Plan for the October 28 Council meeting.

b) Items for discussion

i. Legislative development - Legal Services Regulation - next steps The September 23, 2016 draft Memo to Council Request for Amendments to the Legal Profession Act was reviewed. The request for amendments has been prepared to embody the policy framework for Legal Services Regulation adopted by Council November 20, 2015.

103 of 298

Page 182 of 486

The memo outlines the history of the progression from Excellence in Regulation and Governance and Improving the Administration of Justice in the Strategic Framework in 2013 to the initiative to transform regulation of the delivery of legal services in Nova Scotia. To enable a comparison of the approved policies and the request for legislation a table was provided. The major proposed amendments to the Legal Profession Act include enabling the Society to better regulate the delivery of legal services by law firms and by groups of lawyers and organizations other than law firms. The amendments seek to improve effective access to justice by permitting qualified non-lawyers to provide services within a limited scope of practice and, correspondingly, to regulate their activities in the public interest. Action: circulate this weekend to the Legislation Working Group for input on this for September 23 Council meeting with further details to Council early 2017.

ii. LIANS integration — Information exchange between NSBS and LIANS

Memo to Executive The memo focuses on what appears to be the key question — confidentiality of information maintained in the claims program. A discussion ensued on how to provide clarity as to what our policy is regarding sharing of information between “Discipline and Insurance.” It was agreed the memo from the Executive Director to Council will be redrafted by Darrel and Daren to address the key items on which Council requested further information:

Confidentiality of information maintained in the claims program Structures used by other insurance programs in Canada Potential operational issues The tax issue

Action: In addition to the redraft provided to Council package, it will be shared with Cheryl Canning Chair of LIANS Board of Directors in advance of the meeting.

iii. Committee work plans

The Executive Director advised some Work Plans will be available for approval at the September Council meeting. As Committees are meeting for the first time in this Council year, the remaining Work Plans will not be ready until the October Council meeting

iv. September Council Agenda – main items: a. LIANS – further discussion and process for decision making b. Legislation – first package of drafting instructions for review c. ALR – Report d. Committee Work Plans e. FLSC President’s visit

104 of 298

Page 183 of 486

v. November Council Workshop – Assisting Council in leading next stages of Legal Services Regulation

Memo D. Pink Senior staff proposes a workshop with Council to assist them in leading the next set of changes that will come with the reporting on the Pilot Project and implementing the legislation. Following Society staff’s two-day workshop on Worldview program, it is timely to further engage Council. The workshop will address:

The change to the way the profession of law is regulated requires a change in the way NSBS thinks about the profession, practice and regulation of the legal profession in NS – this is essentially a culture shift or a change to the way we do business

This kind of shift in thinking and acting requires dedicated effort in addition to the ongoing work of the Society to shift our patterns of interaction and action – day to day for the staff, strategically for Council

the shift in how we think about and move toward the future aim of the new regulatory process using a unique approach called Worldview Intelligence

Action: The 3.5-4 hour workshop will be followed by a business meeting Friday, November 25, 2016.

c) Items for Information i. Professional Standards:

Real Estate: Subdivision Family Law: Electronic Information and Social Networking Criminal Law: Guilty Plea – Withdraw a Guilty Plea

Darrel informed those present that we have created a format for consistency in information provided in the Standards. Action: Darrel will rework the docs and provide to the Chairs and the September 23, 2016 Council.

3. IMPROVING THE ADMINISTRATION OF JUSTICE

a) Items for approval

b) Items for discussion

i. Stakeholder engagement Memo from D. Pink

Historically the Society has initiated and participated in a series of information-sharing sessions with various stakeholders including the members, the courts, CBA and liaison committees. We now need to decide how we will devote our resources. Action: we need a discussion with CBA and courts on how to proceed. Darrel and Daren will communicate with the Liaison Committee chairs.

105 of 298

Page 184 of 486

ii. Supreme Court Selection to replace Justice Cromwell FLSC did not create a process guiding the Atlantic societies on how to advocate to the Prime Minister to maintain the status quo. The Law Society of Newfoundland and Labrador requested that the replacement judge be from their jurisdiction and dismissal of the second language requirement. Nova Scotia Premier has communicated with PM and the Premier of PEI has gone on record. Action: It was agreed the letter from the Society President is to be shared with Council

iii. Letter the Minister re: judicial appointments August 29 letter from the Co-Chairs of the REC to the Hon. Diana Whalen was discussed. They met August 9th at which time the focus of the conversation was the Provincial Judicial Appointment Guidelines. To strengthen diversity they continue to request a revision to the Guidelines so that 10 years at the Bar are required for an appointment to the judiciary.

c) Items for information

4. FOUNDATIONAL ACTIVITIES

a) Items for approval

b) Items for discussion i. CanLII Strategic Plan

July 22, 2016 Letter from the Board Proposed Plan

It was agreed that Darrel will respond to the letter from The Board indicating that we would welcome a telephone conversation.

ii. First Quarter Financial Results

This report was covered at the morning Finance Committee meeting where Executive was in attendance. There will be a Subcommittee struck on how to deal with the budget which will then be shared with Council.

c) Items for information

5. IN CAMERA

6. ITEMS FOR INFORMATION / REPORTS

i. 2016-2017 Council Calendar

7. MEETINGS

Friday, October 14, 2016 2:00 pm

106 of 298

Page 185 of 486

Friday, November 4, 2016 9:00 am Friday, December 2, 2016 9:00 am Friday, January 13, 2017 9:00 am Friday, February 10, 2017 9:00 am Friday, March 10, 2017 9:00 am Thursday, April 13, 2017 9:00 am Friday, May 12 , 2017 9:00 am Friday, June 2, 2017 9:00 am

There being no further business the meeting was adjourned at 4:45 pm.

107 of 298

Page 186 of 486

Schedule F

108 of 298

Page 187 of 486

From: James, DennisTo: Darrel Pink; Jean BeelerCc: Tina Tucker; Julia Cornish QC ([email protected]); Frank DemontSubject: RE: Court Liaison CommitteesDate: May 15, 2017 10:06:21 AM

Thank you, Darrel. We will discuss internally and get back to you on proposed meeting times.

From: Darrel Pink [mailto:[email protected]] Sent: Monday, May 15, 2017 8:51 AMTo: James, Dennis <[email protected]>; Jean Beeler <[email protected]>Cc: Tina Tucker <[email protected]>; Julia Cornish QC ([email protected])<[email protected]>; Frank Demont <[email protected]>Subject: Court Liaison Committees Dennis – You may recall that when our two Executive Committees met several months ago weraised with the prospect that the Branch assume responsibility for populating andadministering the several Court Liaison Committees (Ct/ of Appeal, Supreme Ct – General,Sup. Ct. – Family, Provincial Ct ). At present the Society does so – though the CBA names anindividual to each one.As our role has evolved the work, focus and priority of these committees grows more distantfrom our priorities. Their main focus has traditionally been to address issues between theprofession and the courts. We think it is vital to have that connection but also believe that theSociety is no longer the right body to be responsible for this work. It belongs with thosewhose focus is the profession.Today in addition to the CBA we have the Advocates’ Society, APTLA and a defence lawyersorganization that address civil matters. We have the Criminal Lawyers Association that focuseson criminal matters as well as the PPS – both in NS and the PPSC.It is for this reason that we think the CBA is in a better position to look after this work and toeffectively feed issues to the committees from the work of its sections.The Society could continue to make information available to the profession as a whole – if thatwas a particular c’tee’s wish. We now regularly receive communication from the courts aswell.I have briefly raised this with the Chief Justice who believes that a CBA organized liaison wouldbe as effective as the present system. Can we find some time to discuss this and determine if and how we can take the matterforward?

Darrel Pink

109 of 298

Page 188 of 486

mailto:[email protected]






Schedule G

110 of 298

Page 189 of 486

MEMORANDUM

From: Darrel Pink

To: Julia Cornish QC, Frank DeMont QC

Date: August 11, 2017

Subject: Liaison Committees This is the memo I promised for you in preparation of your discussions next month with the CBA about their assumption of responsibility for the Court Liaison Committees. The Society has “managed” a series of Court Liaison Committees for over 30 years. Although at times the work of the Committees has focused on improving the court system, for the most part, especially in recent years, the committees have focused on practice issues. They have been a means for the profession, through the lawyer members, to communicate with the courts about their perspectives on practice issues and to bring the Court’s views to lawyers, often through InForum. They have also been a mechanism for the court to provide information to the Bar about proposed changes in any aspects of the court’s operations. However, again in recent years, the courts communicate directly with the profession without direct involvement of the liaison committees. Infrequently the committees have broached broader policy issues, though they have never been a purpose for the committees. The Committees There are liaison committees at the Court of Appeal, Supreme Court (including criminal and civil), Supreme Court Family Division and Provincial Court. There used to be separate Supreme Court Criminal and Civil Committees but about 10 years ago they were merged into one, even though the issues on their respective agendas were quite different. The merger occurred when the court set aside 90 minutes for both committees to meeting leaving only about 45 minutes each which was never long enough to manage any form of significant agenda. We have had a Family Court Liaison Committee but it has not met in several years. The court appoints a number of judges to sit on the committees as does the Society with one of the lawyer members being named by the CBA. The Chief or Associate Chief and a member of the Bar frequently “co-chair” the committees and together work on agenda preparation. The Supreme Court Committees usually have Halifax-based judges with district judges sometimes being appointed but not regularly attending. The Family Division judges have been from Halifax in recent years. There were Cape Breton judges at one time but not recently.

111 of 298

Page 190 of 486

The Provincial Court does not appoint judges at all to the committees. The chief judge will meet with the committee from time to time if requested (maybe once per year). When the Family Court Liaison Committee existed there was no judicial component for them to meet, at least on a regular basis; however, in the home base where a Family Court sits there are often local liaison committees. Agenda Setting The agendas for bench-bar meetings are usually set jointly following consultation. There has been no mechanism for the Bar to effectively contribute to the agenda except for the chair who sometimes will consult with members of the committee about matters to be included. Usually the Bar members do not have separate meetings to caucus on issues or determine positions to be taken. The committees have never been a means to address the Society’s Strategic Framework in general and access to justice in particular. Because agendas focus on practice before the court and is very lawyer-issue focused, there has been little appetite to address A2J matters. For the Supreme Court committees time is limited for the meetings so they do not lend themselves to broader issues nor are the lawyer members connected to or knowledgeable about the Society’s priorities. At times the committees have done specific work in cooperation with the court. For example, the Provincial Court Committee developed a series of draft policies/practice rules for the court to consider. This work was requested by the court and most appreciated. In the past the Supreme Court Liaison Committee, often through small working groups, has developed specific policies for the court to consider e.g. for resolution conferences in criminal matters. In more recent years this work seems to have moved to the Civil Procedure Rules Committee rather than being work of the liaison committee. NSBS Role As the Society evolves in its work and becomes more focused on its role as a public interest regulator, it has no ability to “speak on behalf of lawyers” especially on issues of practice. None of the Society’s structures revolve around “work” or practice before the courts. Even though knowledgeable and committed lawyers serve on the committees they do not speak for the Society nor do they bring information back to it for dissemination to lawyers. If the court wants to send information to the profession they do so through InForum and the committees’ role in that regard, which used to be significant, has diminished significantly. Notes from the Family Division Committee have, for many years, been shared with the CBA Family Law section as a means to provide information to some lawyers about the work of the Committee and the nature of the discussions. The committees meet on a scheduled basis: Court of Appeal — 4 times per year; Supreme Court — 2 times per year; Family Division — bi-monthly, Provincial Court — as scheduled. For the Court of Appeal and Supreme Court senior court staff take the minutes (usually the Prothonotary). For the Family Division and Provincial Court Committees one of the committee members, or if I have been present, the Executive Director have kept notes and distributed them. Distribution of materials for the committees has not been done consistently — sometimes it is done by the court; sometimes it is done by the chair; sometimes it is done by the Society but this has not been frequent in recent years. Conclusion Given that the liaison’s work is not part of the Society’s mandate and the Society is no longer well equipped to address or respond to “court practice issues” it is proposed that these committees are best sponsored by the CBA branch. They have sections in each area of practice and can draw upon

112 of 298

Page 191 of 486

practitioners who work in the courts who can being the perspective of the profession and communicate the court’s perspective to lawyers. Because of the nature of section work they also can consider the issues on the court’s agenda and provide advice to the court after appropriate consultation. I have briefly spoken to the Chief Justice about this approach and he is supportive of this type of change for constituting the committees. I think he too sees that it will allow the committees to focus more on practice issues which appears to be where they provide their greatest benefit. We do have historic files that could be made available to the CBA if they wish access to them so that they have a complete history of the committees’ work over the years.

113 of 298

Page 192 of 486

Schedule H

114 of 298

Page 193 of 486

2676387

SUPREME COURT OF NOVA SCOTIA LIAISON COMMITTEE Thursday, April 16 at 4:30 pm

(Jury Room #3, 3rd Floor – The Law Courts)

A G E N D A

1. Approval of the Minutes of the November 27, 2014 Meeting

2. Business arising from the November 27, 2014 Meeting

a. Costs and Fees- ACJ Smith

b. Standardizing recovery of disbursements – ACJ Smith

c. Counting of clear days – ACJ Smith

d. A2J - Pro bono project update – ACJ Smith

New Business

3. Notification of Supreme Court (Fam Div) Decisions – N. Rubin

4. Court Renovations (HVAC) Update – Duncan J.

5. Court Statistics - ACJ Smith

6. Rules issues – Summary Judgment, Applications in Court – N Rubin

7. Prothonotary pink slips – N Rubin

8. Timing/delay issues – N Rubin

a. For issuance of consent orders; b. between the adjournment of trials at the TRC stage and the scheduling of the

follow-up DACs; and c. in hearing back from the Scheduling Coordinators when dates available to the

DAJ Justices are not convenient and when resort to additional dates is required

9. Transfer of Files from the Supreme Court to the Small Claims Court – A. E. Anselm 10. Other matters

11. Next Meeting

115 of 298

Page 194 of 486

SUPREME COURT BENCH/BAR LIAISON COMMITTEE

MINUTES – MEETING HELD APRIL 16, 2015, AT 4:30 P.M. ___________________________________________________________________________________________

PRESENT: REGRETS: Chief Justice Kennedy Justice Hood Associate Chief Justice Smith (Co-Chair) Mark Rieksts Justice LeBlanc John Keith Justice Wright Jason Cooke Justice Duncan Justice Rosinski Justice Arnold Nancy Rubin (Co-Chair) Robert Pineo Geoffrey Newton Robert Carter Peg MacInnis A. E. Anselm A meeting of the Supreme Court Bench/Bar Liaison Committee was held on the afternoon of Thursday, April 16, 2015 at 4:30 p.m. 1. Approval of Minutes The minutes of the November 27, 2014 meeting of the Committee were approved. 2. Business arising from the November 27, 2014 Meeting i. Costs and Fees- ACJ Smith

ACJ Smith indicated that she had received input from the Bench and Bar on this topic which she forwarded to the Chair of this Committee (Justice Farrar). Justice Farrar advised that his Committee intends to meet again in late May or early June.

ii. Standardizing recovery of disbursements – ACJ Smith

ACJ Smith advised that the Supreme Court’s Disbursements Working Group had finalized their recommendations after receiving input from the Bar. The Bench has approved the recommendations which are being put in the form of a Practice Memorandum which is being drafted by Justice Moir.

116 of 298

Page 195 of 486

iii. Counting of clear days – ACJ Smith At the last meeting, there was discussion on the issue of the counting of clear days pursuant to CPR 94.02 (1) in district courts such as Annapolis and Guysborough, where the Prothonotary’s office is not open every day. ACJ Smith indicated that Justice Moir had drafted an amendment to Rule 32.02 (3) to provide “A document to be filed at an office not regularly open Monday to Friday, save holidays, may be delivered on days the part-time office is closed to any prothonotary and that prothonotary shall note the filing on behalf of the Prothonotary at the part-time office on the day of delivery and transmit the document to that prothonotary”. This amendment will be before the Judiciary for approval at their May Judges’ meeting.

iv. A2J - Pro Bono Project Update – ACJ Smith

ACJ Smith explained that the Bench and the Bar have been working on putting together a Pro Bono Clinic at The Law Courts which will provide assistance to self-represented litigants requiring help with civil matters.

Peg MacInnis provided a summary of a pilot program held over the last five weeks. She indicated that the Committee working on this project is meeting shortly for an after-action report with a view of re-launching the clinic in the fall with a few changes, including some family appeal coverage.

v. Access to Justice Coordinating Committee (“A2JCC”) - Peg MacInnis

No report.

3. Notification of Supreme Court Family Division Decisions – N. Rubin

Nancy Rubin requested that Family Division decisions be listed on the new decisions list on the Court’s website. She said that at the moment, one can use the search function to find those decisions, but they are not on the usual list.

ACJ Smith explained that the Judiciary is trying to determine whether a change was made re: the publication of Family Law cases. She explained that the matter was on the Chiefs’ radar and that she would report back on it at a later date. Justice Duncan explained that the Family Division does not list its decisions at 1:00 p.m. and that it is intended that one would have to look for such decisions.

Nancy Rubin cautioned that from a practical standpoint, this could be an issue for self-represented litigants and their access to justice, a factor that should be considered if/when a decision is to be made.

117 of 298

Page 196 of 486

Chief Justice Kennedy noted that the Bar is seeking access to these decisions. He will take that back to the Chiefs.

4. Court Renovations (HVAC) Update – Justice Duncan Justice Duncan explained that we are coming to the close of Phase 5, which should be completed by June 30th. Phase 6 begins immediately after and during that time the 1st floor will be closed. 1. Bankruptcy and probate will continue to be at Summit Place until the end of

phase 6. The Summit Courtroom will continue to be in use through to the end of phase 6.

2. There is currently construction in the parking garage as the installation of the new sewer line has begun. The access ramps will reopen by April 20th.

During the course of the project (Phase 6 or current construction), some parts of the garage floor will be trenched, causing some loss of parking. The current plan is for the closing of the garage/work to take place on weekends during the trenching phase.

3. The next project for The Law Courts is upgrades to the plaza, the parking garage and the exterior stairwell. This is in the pre-tender stage at this time.

4. The Digital Evidence Presentation System (“DEPS”) has been installed in Courtroom 304. This includes monitors and control boards for counsel, the judge, the witness and the public. A demonstration of the system was conducted on March 12, 2015 for a group of administrators and lawyers, during which time a number of issues were identified to improve the system. John Keith and Agnes McNeil are acting as organizers for input by members of the Bar. It is hoped that the Bar will advocate to the government for funding to enhance the system.

Daily parking coverage will now be extended up to 6:00 p.m. instead of the previous 5:00 p.m. 5. Court Statistics - ACJ Smith ACJ Smith provided an update on scheduling statistics and delays. As of April 16, 2015 the next available dates were as follows (all dates are 2015 unless noted otherwise):

• 1.5 hour Special Chambers: April 28; May 12; May 13 • 2.5 hour Special Chambers: May 12, 13, 20 • Full-day Motion, Application, or Judicial Review Hearing: April 20, 21, 22

118 of 298

Page 197 of 486

• Date Assignment Conference: April 24; May 1, 8 • Three day judge alone trial: April 24 - May 4, May 7- 12; May 11 - 13 • 5 day judge alone trial: October 19 - 26; October 26 - November 2; November 2

- 9 • 10 day judge alone trial: October 19 - November 3; October 26 - November 9;

November 12 - 30 • 10 day jury trial: October 19- November 3; October 26 - November 9;

November 12 - 30 • 15 day jury trial: November 12 - December 8; November 23- December 16;

January 4 – 27, 2016. • Half-day settlement conference: April 28, 29, 30 • Motion for Directions: April 29; April 30; May 6

As is seen from the above, scheduling in this province is in good shape.

6. Rules Issues – Summary Judgment, Applications in Court – N. Rubin

Nancy Rubin indicated that there is plenty of interest in this issue amongst the Bar and members are pleased to know that the matter of Summary Judgment is being reviewed by the Court.

There was an inquiry as to what happened to the proposed Rule allowing third parties to be joined in an application. ACJ Smith advised that a draft Rule is going to the Judiciary for approval in May.

7. Prothonotary Pink Slips – N. Rubin

Nancy Rubin explained that many lawyers are vexed by pedantic messages received from the Prothonotary’s office for trivial issues, or matters where it is perceived that the Prothonotary’s office is just wrong. She cited an example of a Consent Dismissal Order that was returned due to “punctuation” errors. Another was returned because of an incorrect Style of Cause, but that Style of Cause had already been changed. She urged a more cooperative and less formalistic approach on the part of the Prothonotary’s office.

The Prothonotary in attendance confirmed that, in general, the Prothonotaries are also interested in a cooperative approach, and that it is difficult to comment on the examples raised in the absence of more information.

ACJ Smith indicated that she would need more details before commenting.

119 of 298

Page 198 of 486

8. Timing/delay issues – N. Rubin Nancy Rubin raised the issue of delays in getting documents back from The Law Courts. ACJ Smith indicated that there is insufficient staff at The Law Courts and reminded counsel that the more letters received by the government on this issue, the more likely that the executive branch will address the issue in a meaningful way. She reiterated that in many cases staff are doing the best that they can, and that it may help if the Bar would step up to the plate and put pressure on the government. Some other issues raised by Ms. Rubin: a. The possibility of scheduling follow-up DACs when trials are adjourned at the

TRC stage. She explained that there is a problem with delays and that maybe the original TRC judge can take it on.

ACJ Smith expressed a concern that there are too many adjournments taking place and court time is being wasted as a result. She suggested that if a case has been adjourned, a new DAC should not be held until the parties can confirm that they are actually ready for trial.

b. There are delays in hearing back from the Scheduling Coordinators when

dates available to the DAC Justices are not convenient and additional dates are required.

ACJ Smith indicated that this is likely a staffing issue. She repeated her suggestion that counsel should write to Mr. Winch or the Deputy Minister concerning these delay issues at The Law Courts and the need for appropriate staff. She asked that she be copied on any such correspondence.

N. Rubin assured the group that she could get the Bar to step up.

Justice Rosinski explained that he, too, was impacted recently in getting decisions out due to lack of staffing.

9. Transfer of Files from the Supreme Court to the Small Claims Court –

A. E. Anselm • Janet Hawes will issue all Small Claim Court Appeal Orders and oversee the

actual return of the lower court files on a go forward basis; • In terms of the backlog of files, management will collaborate with the lower

court to have the files (as well as the exhibits) returned, and will advise Ms. Anselm if there are any glitches with that undertaking.

120 of 298

Page 199 of 486

10. Other Matters ACJ Smith reported that there are electronic dockets online in more District Courts. Yarmouth, Halifax and Kentville are now online. The others are likely to be online between May and September. Mark Rieksts questioned the process for quieting of titles indicating that sometimes it is done by actions and other times by way of applications, and that the Act predates the new Rules. He also noted that many times these actions are converted to an application at the motion for directions, while the Act may mandate an action. ACJ’s recollection was that there had been an agreement to do a Practice Memorandum for the quieting of titles. She suggested that Mr. Rieksts send a letter to Justice Moir to revive the idea of a Practice Memorandum on this matter. There was also a suggestion that Justice Farrar may be willing to contribute to such an effort. 11. New Business None. 12. Next Meeting To be held Thursday, November 26, 2015 at 4:30 p.m. at the Law Courts. Respectfully submitted, A.E. Anselm

121 of 298

Page 200 of 486

2676387

SUPREME COURT OF NOVA SCOTIA LIAISON COMMITTEE Thursday, November 26, 2015 at 4:30 pm

(The Law Courts)

A G E N D A

1. Approval of the Minutes of the April 16, 2015 Meeting (attached)

2. Business arising from the April 16, 2015 Meeting

a. Costs and Fees – ACJ Smith

b. Standardizing recovery of disbursements – ACJ Smith

c. A2J – Pro bono project update – Peg MacInnis

d. Posting of dockets from all courts – ACJ Smith

e. Counting of clear days – ACJ Smith

f. Notification of Family law decisions – Nancy Rubin

g. Staff issues – ACJ Smith

h. Quieting of titles – ACJ Smith


4. Court Statistics – ACJ Smith

5. Date Assignment Conferences – Nancy Rubin

6. Courts online CPR – John Keith

7. Other matters

8. Next Meeting

122 of 298

Page 201 of 486

SUPREME COURT BENCH / BAR LIAISON COMMITTEE

MINUTES – MEETING HELD NOVEMBER 26, 2015 AT 4:30 P.M. PRESENT: REGRETS: Chief Justice Kennedy Justice Wright Associate Chief Justice Smith (Co-Chair) Justice Hood Justice LeBlanc Justice Arnold Justice Duncan Darrell Pink Justice Rosinski Mark Rieksts Justice Gogan Peg MacInnis Nancy Rubin (Co-Chair) Jason Cooke Robert Pineo John Keith Geoffrey Newton Robert Carter Matthew Moir John Nisbet Caroline McInnes A meeting of the Supreme Court Bench/Bar Liaison Committee was held on the afternoon of Thursday, November 26, 2015 at 4:30 p.m. 1. Approval of Minutes The minutes of the April 16, 2015 meeting of the Committee were approved with the following correction: Mark Rieksts was removed from the ‘Regrets’ column and added to the ‘Present’ column (via phone). 2. Business arising from the April 16, 2015 Meeting

(a) Costs and Fees Associate Chief Justice Smith reported that there is no update since the last meeting of this Committee. The Costs & Fees Committee is set to meet in early January 2016.

(b) Standardizing recovery of disbursements

ACJ Smith reported that the Bench Rules Committee approved the recommendations put forth by the Supreme Court’s Disbursements Working Group. Justice Moir is preparing a Practice Memorandum.

123 of 298

Page 202 of 486

(c) A2J – Pro bono project update

ACJ Smith reported on this matter on behalf of Ms. MacInnis. The Free Legal Clinic has been up and running since September 2015, with sessions every Thursday morning for a half day. Two lawyers and two law students are present and run one hour sessions simultaneously. The Clinic is designed for self-represented litigants dealing with civil matters in Supreme Court and in the Court of Appeal, and family law (excluding child protection) appeals at the Court of Appeal. It does not deal with criminal matters. There is no monetary requirement or qualification for clients. ACJ Smith commented that the Bar effort has been great. The spring pilot project, as reported at the last meeting of this Committee, had a slow start, but the Clinic now appears to be catching on.

(d) Posting of dockets from all courts

ACJ Smith reported that at present all Supreme Court General Division non-family dockets are online, with the exception of Port Hawkesbury. The next step will be to have Family Division, and family law cases in the General Division, posted as well. ACJ Smith noted that the dockets that appear online are in the same format as those that are posted in the courthouses. Therefore, parties’ full names are used unless a publication ban applies, in which case names are initialized.

(e) Counting of clear days

ACJ Smith reported that the amendment to Rule 94.02, clarifying how to count clear days in the districts, has been approved.

(f) Notification of Family law decisions Ms. Rubin asked whether Family law cases could be listed on the Courts’ decision database. Ms. Rubin clarified that this request concerned Family Court cases, and not Family Division cases, and so the request would have to be made to the Liaison Committee for that Court. As an aside, ACJ Smith confirmed that when decisions are not published on the Courts’ website it is because the judge instructed the publication manager not to publish the decision, and that this is a matter of judicial independence. Chief Justice Kennedy commented further that judges who withhold publication of their decisions do so out of significant concern for those who may be affected by its release, and do not withhold publication lightly. However, the general trend appears to be that more family law decisions are being published than before.

124 of 298

Page 203 of 486

(g) Staff issues Mr. Carter reported that he experienced a delay of one week in receiving a writ he filed at the Law Courts. Mr. Pineo noted he has been experiencing delays in receiving execution orders from the Law Courts. ACJ Smith advised that the Law Courts is still experiencing staffing shortages and encouraged the Bar members who have experienced delays to write to the Acting Deputy Minister of Justice with their complaints.

(h) Quieting of Titles ACJ Smith noted that in the minutes of this Committee’s last meeting, Mr. Rieksts was to follow up with Justice Moir with respect to the possibility of putting together a Practice Memorandum on this subject. Issues to be addressed include the fact that the Quieting of Titles Act states a proceeding must be filed by way of action, but an application in court is often more appropriate. As Mr. Rieksts was not present, ACJ Smith advised that she will follow up with Justice Moir. 3. Court Renovations (HVAC) Update Justice Duncan provided an update on the HVAC renovations. He advised that Phase 6 (closure of the first floor) is currently underway and is scheduled to conclude in February or March of 2016. Once Phase 6 concludes, Bankruptcy and Probate will be moving to the 1st floor permanently. In addition, there will be an area developed for the Crown on the 1st floor where they can meet with witnesses etc. Justice Duncan reported that Phase 6 has created access issues, as the entrance from the parkade to the Law Courts is closed. To address these issues, signage has been placed in the garage and on the Courts’ website. If individuals are unable to take the stairs to enter the Law Courts, they are to contact the Sheriffs at 424-8212. The Sheriffs will assist them into the building (through the judge’s parkade through to the first floor). Plaza renovations will be completed in 2016/17 to fix the compromised seal that is causing leakage.

125 of 298

Page 204 of 486

4. Court Statistics ACJ Smith provided an update on scheduling statistics and delays as of November 26, 2015. Date availability is excellent. The next available dates were as follows:

- 1.5 hour special chambers: December 9, 2015 - 2.5 hour special chambers: December 10, 2015 - Full day motion, application, or judicial review hearing: December 7, 2015 - Date assignment conference: December 4, 2015 - Three day judge alone trial: December 29-31, 2015 - Five day judge alone trial: January 4, 2016 - 10 day judge alone trial: January 19-February 3, 2016 - 10 day jury trial: January 19-February 3, 2016 - 15 day jury trial: October 24-November 16, 2016 - Half day settlement conference: December 7, 2015 - Motion for directions: December 8, 2015

ACJ Smith stressed that, at present, the biggest impediment to early scheduling is that lawyers, and not the Courts, are unavailable. The ‘new’ Rules allowing for early trial dates are working well and there have only been a few concerns regarding adjournment of trials due to triple booking. The availability of supernumerary judges and the flexibility of the judges’ as a whole have contributed to few adjournments. Justice Gogan advised that date availability in Sydney is excellent as well. 5. Date Assignment Conferences Ms. Rubin identified a concern shared by some of her colleagues about the inability to request a date assignment conference until all parties have been discovered. She identified two scenarios in which flexibility about this aspect of the Rule would be helpful:

(1) In cases where liability is not in dispute, but no formal admission of liability has been made. In these cases, the Defendant has not been discovered. Counsel could agree at the DAC that the Defendant would be discovered within a certain timeframe (30 or 60 days) if needed.

(2) In cases where the Plaintiff advises they do not want to discover the Defendant, but then object when a request for DAC is filed.

ACJ Smith commented that there is a provision in the Rules that allows for an objection in these circumstances: Rule 4.13(2)(a). After a brief discussion of the issue, ACJ Smith advised that this is really a matter for the Rules Committee, and recommended Ms. Rubin write to the Chair of that Committee with her concerns.

126 of 298

Page 205 of 486

6. Courts online CPRs Mr. Keith reported that the Civil Procedure Rules are online on the Courts’ website. Further, he advised that the NSBS is no longer running their annotated service. 7. Other Matters

(a) Security Concerns In the context of the HVAC renovation discussions, Mr. Newton raised security concerns over a high profile criminal matter set to be heard in February, 2016 at the Law Courts. ACJ Smith advised Mr. Newton that she would follow up to ensure that these concerns are formally addressed.

(b) Third Parties in Applications Mr. Keith reported on an item discussed at the last meeting of the Bench / Bar Rules Liaison Committee. In particular, Rule 5.12 appears to allow for third party claims in applications. The consensus of the Bench members of that Committee was that this was unintentional as third party claims were not intended to be allowed in applications. The reference to ‘third party’ in Rule 5.12 was not meant in a technical sense, but rather was meant to refer to an additional party. This matter will be referred to the Bench Rules Committee for an amendment.

(c) Electronic Courtrooms Justice Duncan advised that he and Mr. Keith sit on a committee struck by the Department of Justice whose aim is to pursue electronic courtrooms (beyond the one already in place on the 3rd floor).

(d) Translation of CPRs / Forms Mr. Nisbet inquired about whether the CPRs / Forms had been translated into French. ACJ Smith recollected that an unofficial version of the Rules and Forms was available, but advised that Justice Moir could confirm this. Chief Justice Kennedy commented that while the forms may be available, they cannot be filed with the Court in French as there may not be staff at every justice centre who can process French documents.

(e) FOIPOP Practice Memorandum On behalf of Mr. Rieksts, Ms. Rubin asked whether the old FOIPOP Practice Memorandum (#28 in the 1972 Rules) could be reincorporated into the current Rules.

127 of 298

Page 206 of 486

ACJ Smith confirmed she will pass the inquiry onto Justice Moir.

(f) Meeting Format ACJ Smith asked generally whether this meeting format was working for members. Mr. Carter responded that it was, noting that the only alternative he foresaw was meeting more frequently which he did not believe was necessary. Ms. Rubin responded the format was working well from her perspective, adding that on a positive note there has been more action taken by this Committee in the last few years. 9. Next Meeting To be held Thursday, April 14, 2016 at 4:30 p.m. at the Law Courts. Respectfully submitted, Caroline McInnes F:\ACJ Smith\Correspondence after Nov 8 2013\Supreme Court Liaison Committee\Supreme Court Liaison Committee - November 2015 Minutes v2.docx

128 of 298

Page 207 of 486

2676387

SUPREME COURT OF NOVA SCOTIA LIAISON COMMITTEE Thursday, April 14, 2016 at 4:30 pm

(The Law Courts)

A G E N D A

1. Approval of the Minutes of the November 26, 2015 Meeting (attached)

2. Business arising from the November 26, 2015 Meeting

a. Costs and Fees – ACJ Smith

b. Practice Memos– ACJ Smith i. Standardizing recovery of disbursements ii. Quieting of Titles iii. FOIPOP

c. A2J – Pro bono project update – Peg MacInnis


4. Draft Temporary Practice Memorandum on Physician Assisted Death – CJ Kennedy


6. Pre-trial Conferences in Criminal Matters (delay concern) – Geoff Newton

7. Access to Courthouse – John Keith

8. Wireless at the Courthouse – Nancy Rubin

9. Other matters

10. Next Meeting

129 of 298

Page 208 of 486


MINUTES – MEETING HELD APRIL 14, 2016, AT 4:30 P.M.

PRESENT: REGRETS: Chief Justice Kennedy Justice LeBlanc Associate Chief Justice Smith (Co-Chair) Justice Rosinski Justice Wright Justice Arnold Justice Duncan Darrell Pink Justice Gogan Mark Rieksts Nancy Rubin (Co-Chair) Peg MacInnis John Keith Jason Cooke Geoffrey Newton Robert Pineo Matthew Moir Robert Carter John Nisbet Caroline McInnes A meeting of the Supreme Court Bench/Bar Liaison Committee was held on the afternoon of Thursday, April 14, 2016 at 4:30 p.m. 1. Approval of Minutes The minutes of the November 26, 2015 meeting of the Committee were approved as drafted. 2. Business arising from the November 26, 2015 Meeting

(a) Costs and Fees Associate Chief Justice Smith advised that the Costs & Fees Committee met in early January. The Committee, chaired by Justice Farrar, has the following membership: Justice Murphy, Carman McCormick, Q.C., Gus Richardson, Q.C. and Ray Wagner, Q.C. ACJ Smith reported (through information provided by Justice Farrar) on the matters that were discussed by the Committee:

(1) Fees payable to witnesses

A concern was expressed regarding the fees payable to a witness pursuant to the provisions of the Costs and Fees Act. As it presently stands witness fees are $5.10 per day and travel per mile, one way, is 20 cents. There has been no change to the Tariff in recent years; the most recent change was in 2008 when the witness fees went from $5.00 per day to $5.10 per day. A judge has the discretion to increase this by $1.50. The Committee generally agreed that this

130 of 298

Page 209 of 486

is inadequate. However, in determining what the appropriate amount should be, regard must be had to access to justice issues. Justice Farrar is having some research conducted on fees payable to witnesses and mileage allowances in other provinces.

Mr. Keith advised that typically $35 per day is standard practice used by many firms for witness fees. ACJ Smith asked Mr. Keith to write to Justice Farrar about this and copy her. He agreed to do so.

(2) Costs and fees allowable on a proceeding which is discontinued or settled

There was considerable discussion about the costs and fees allowable on a proceeding which is discontinued or settled. After discussion, the Committee concluded that this is usually a matter for negotiation between parties and that, from a practical point of view, it was not a particular concern.

(3) Tariff relating to Applications

Concern was expressed about the Tariff relating to Applications. Applications before the Court are becoming more complex and it was felt that costs on Applications should be assessed the same way that they are assessed on a trial; that is, substantial but not a complete indemnity and tied to legal fees. Reference was made to Ontario Rule 57.01(6) where Applications are dealt with in a similar manner to trials. In Ontario, the Rule has been amended to essentially eliminate any outer limit on costs that can be awarded at the conclusion of a proceeding. Justice Farrar is having some research done on this matter.

(4) Other issues raised with the Committee

The Bench Rules Committee has raised two additional issues that the Costs & Fees Committee will be discussing at their next meeting. The first is a request to prescribe more precise criteria for awarding costs in proceedings which do not have a specified amount in issue. (ACJ Smith noted that she provided the Costs & Fees Committee with Justice Wright’s memorandum with respect to costs in non-monetary claims to assist with their discussions on this matter). The second issue relates to costs in family proceedings. Justice Farrar noted that the Family Division member of the Committee, Justice Douglas Campbell, has retired, and that they will be seeking a representative of that Court for their next meeting, particularly for input on this issue.

131 of 298

Page 210 of 486

(b) Practice Memoranda

i. Standardizing recovery of disbursements

ACJ Smith reported that Justice Moir is preparing a Practice Memorandum in this regard. It may be completed before the next judges’ meeting.

ii. Quieting of Titles

ACJ Smith reported that Justice Moir is considering drafting a Rule on Quieting of Titles rather than a Practice Memorandum, as previously thought. He is of the view that Quieting of Titles should be done by way of application rather than an action.

iii. FOIPOP

At the previous meeting Ms. Rubin asked (on behalf of Mr. Rieksts) whether the old FOIPOP Practice Memorandum (#28 in the 1972 Rules) could be reincorporated into the current Rules. ACJ Smith confirmed that she passed the inquiry onto Justice Moir, and he has requested more information. She asked that Mr. Rieksts write to Justice Moir, copied to her, setting out what issues or problems counsel would like to have addressed. In addition, ACJ Smith noted that there are regulations in place dealing with this issue, and so the matter is more complicated than with other Practice Memoranda.

(c) A2J – Pro bono project update

ACJ Smith reported on this matter. She advised that the Free Legal Clinic is continuing to run and will do so in the Spring / Summer with the help of Articling Clerks from numerous firms to assist while Law Students are unavailable. She noted that the numbers are not as high as hoped for but the A2J Committee feels that the Clinic is performing a valuable function. ACJ Smith advised that the cooperation from lawyers and firms has been exceptional. Firms have reported that it is a great opportunity for young lawyers to meet with clients and prepare court documents. In addition, ACJ Smith advised that there has been a suggestion that lawyers, through the Clinic, may occasionally take on a case completely and represent the client in Court (although this idea is still in the early stages). Ms. Rubin asked what areas of law are being covered at the Clinic, and wondered if materials could be created to deal with common matters raised. ACJ responded that at the next meeting she will bring statistics re: subject areas. Further, she noted that

132 of 298

Page 211 of 486

there is a great deal of literature available to self-reps. What people seem to need is a person to answer their questions. ACJ also noted that there is a new initiative with Chief Justice MacDonald’s Access to Justice Coordinating Committee that aims to navigate clients through available resources. It is an information service that people can reach by calling 211 and get redirected to appropriate services. 3. Court Renovations / HVAC Update Justice Duncan reported that the HVAC renovations were completed two weeks ago. He advised that the next project involves replacing the failed seal under the plaza which is responsible for water leakage into the parking lot. There are plans to reconstruct the cells area on the 1st floor, although it is expected that work will not begin until the next budget period. 4. Draft Temporary Practice Memorandum on Physician Assisted Death Chief Justice Kennedy reported that the Court has released a Temporary Practice Memorandum on Physician Assisted Death, in response to the recent Supreme Court of Canada decision in Carter (reported at 2016 SCC 4). This has been distributed to the Bar for comment and guidance. He commented that the Court has received many comments from doctors, lawyers, and medical associations, and that the Court is sincerely interested in receiving commentary on this. The judges will be meeting on May 12 to finalize and approve the Temporary Practice Memorandum. 5. Court Statistics ACJ Smith provided an update on scheduling statistics and delays as of April 14, 2016. She commented that date availability is still good, though the Court currently has three judge vacancies that are not likely to be filled for some time. Therefore, date availability may be affected as a result. The next available dates were as follows:

- 1.5 hour special chambers: April 20, 2016 - 2.5 hour special chambers: April 20, 2016 - Full day motion, application, or judicial review hearing: April 18, 2016 - Date assignment conference: April 22, 2016 - Three day judge alone trial: June 6-8, 2016 - Five day judge alone trial: June 1-8, 2016 - 10 day judge alone trial: January 3-18, 2017 - 10 day jury trial: January 3-18, 2017 - 15 day jury trial: March 6-29, 2017

133 of 298

Page 212 of 486

- Half day settlement conference: April 18, 2016 - Motion for directions: April 24, 2016

6. Pre-trial Conferences in Criminal Matters (delay concern) Mr. Newton advised that he was contacted by Paul Carver and asked to raise the issue of delays in pre-trial conferences in criminal matters. Mr. Newton reported that Mr. Carver had circulated a letter to the judges about his concern. Chief Justice Kennedy advised that he has struck a committee consisting of Justice Coady, Justice (Denise) Boudreau and Justice Arnold, who are set to meet on Monday to address the issues raised in Mr. Carver’s letter. Mr. Newton advised that the current practice is that the dates for a pre-trial conference are set in Crownside, and pre-trial conferences are typically 2-3 months down the road from that Crownside appearance. After the pre-trial conference, counsel return to Crownside to set trial dates. Mr. Newton stated that counsel would like trial dates set in Crownside before the pre-trial conference. He confirmed that counsel still want the pre-trial conference, they are just concerned about delay. ACJ Smith responded that the reason for this practice was because counsel were not turning their minds to the various issues that could affect the length of trial. As a result, improper estimates were given concerning the time required for trial. Justice Wright added that this two-stage process was initiated by Justice Cacchione for that reason. 7. Access to The Law Courts Mr. Keith asked what changes are expected from a security perspective with respect to access to the courthouse, and if access through the parkade would be permanently closed off. Justice Duncan provided an update on this topic. He reported that he met with the Sheriffs regarding their proposed security plan. Initially, the plan involved closing of all entrances to the building, except for the main entrance. After some negotiations, the plan at this point in time (though it has not yet been finalized) also includes limited access through the first floor parkade entrance. In particular, the first floor would be staffed by a Sheriff from approximately 7:30 to 9:30 a.m. After 9:30 a.m. access would be via a video monitor and phone which would allow a person to request access and for a Sheriff to buzz them in. Access for employees would be available using access passes. Justice Duncan also advised that the Sheriffs may need to set up a station on the first floor, but that at this point in time that is not part of the plan.

134 of 298

Page 213 of 486

Justice Duncan also noted that there is an accessibility issue with the Law Courts. The ramp from the Plaza to the street does not comply with the Code for wheelchair access as it is too steep. He commented that when the first floor was closed for the HVAC renovations there were a number of problems with access to the building. Mr. Keith noted that the signage regarding limited access to the building during renovations was not good. Justice Duncan agreed, stating that signage did exist but it did not meet the need. He will seek to improve signage and publicize the new access plan when the Sheriffs have a final position. Mr. Nisbet asked if there is anything that the Bar can do to in terms of trying to assist with the access issue. Justice Duncan advised that members of the Bar could express their views to Fred Hildebrand and Allan Coley, being the Sheriffs heading up the security access plan at the Department of Justice. Lastly, Justice Duncan reported that the Sheriffs have advised that on the 3rd floor, the doors that connect the secure side of the building to the public side, as well as the door that connects the secure side with the staircase on secure side, will be alarmed. This may cause difficulty for members of the public attending settlement conferences which often take place in the jury rooms on that floor. He advised that, if necessary, he may try to arrange for counsel to have temporary access passes in these circumstances.

8. Wireless at the Courthouse Ms. Rubin spoke to this matter, wondering what the status was with respect to accessing wireless internet in the courthouse. She noted that she understood that access would now involve some kind of registration process, to allow not only lawyers but also self-represented litigants and members of the public to have access. ACJ Smith responded to this in the absence of Ms. MacInnis, noting that she is not fully knowledgeable on this subject so any detailed questions would have to be referred to Ms. MacInnis. ACJ Smith confirmed that the courthouses are all wired. The Department of Justice wants to ensure that they provide equal access to lawyers and the public alike, and therefore they are implementing a registration process which would be similar to how guests access wireless internet at a hotel. This registration process must also be assessed from a security perspective. Therefore, the delay is with this registration process, which hasn’t been finalized. 9. Other Matters

(a) Bench-Bar Event for Justice Cromwell’s Retirement

135 of 298

Page 214 of 486

Mr. Keith asked if a Bench-Bar event was being considered to celebrate Justice Cromwell’s retirement from the Supreme Court of Canada. Chief Justice Kennedy responded that he was not certain, but that it was a good idea.

(b) Thank you to Mr. Carter ACJ Smith wanted to formally thank Mr. Carter for writing to the Minister of Justice to complain about staffing levels and service provided at the Law Courts. She reported that we now have a full complement of staff for the first time in years. 9. Next Meeting To be held Thursday, November 24, 2016 at 4:30 p.m. at the Law Courts. Respectfully submitted, Caroline McInnes

136 of 298

Page 215 of 486

SUPREME COURT OF NOVA SCOTIA BENCH/BAR LIAISON COMMITTEE Thursday, November 24, 2016 at 4:30 pm

(The Law Courts)

A G E N D A

1. Approval of the Minutes of the April 14, 2016 meeting (attached)

2. Business arising from the April 14, 2016 meeting

(a) Costs and Fees

(b) Practice Memoranda

(c) A2J Pro Bono project update

(d) Pre-Trial conferences in criminal matters

(e) Access to The Law Courts

(f) Wireless at the Courthouse


4. Filing bankruptcy documents – John Keith

5. Prothonotary issues – John Keith

(a) Default judgment

(b) Rejected documents

6. Motion for Directions (Applications) and scheduling – John Keith

7. Judicial Settlement Conferences and switching Judges – Nancy Rubin

8. Public wifi in courthouses – Nancy Rubin

9. Delayed decisions and a mechanism to request status updates – Rob Pineo

10. Conflicts : Patterson Law/Justice Hunt – Rob Pineo

11. Criminal Crownside (order of calling on counsel) – Geoff Newton

12. Other matters

13. Next Meeting

137 of 298

Page 216 of 486

138 of 298

Page 217 of 486

139 of 298

Page 218 of 486

140 of 298

Page 219 of 486

141 of 298

Page 220 of 486

142 of 298

Page 221 of 486

143 of 298

Page 222 of 486

144 of 298

Page 223 of 486

145 of 298

Page 224 of 486

146 of 298

Page 225 of 486


MINUTES – MEETING HELD APRIL 19, 2017, AT 4:30 P.M. PRESENT: REGRETS: Associate Chief Justice Smith (Co-Chair) Darrell Pink Chief Justice Kennedy Mark Rieksts Justice LeBlanc Jason Cooke Justice Wright Justice Duncan Justice Rosinski Justice Gogan (via phone) Justice Arnold Nancy Rubin, Q.C. (Co-Chair) Robert Carter Geoffrey Newton John Keith, Q.C. Robert Pineo John Nisbet Matthew Moir Caroline McInnes A meeting of the Supreme Court Bench/Bar Liaison Committee was held on the afternoon of Wednesday, April 19, 2017 at 4:30 p.m. 1. Approval of Minutes The minutes of the November 24, 2016 meeting of the Committee were approved as drafted. 2. Business arising from the November 24, 2016 Meeting

(a) Crownside / Criminal Scheduling (Geoff Newton) Mr. Newton reported that he had met with representatives of the Provincial Crown, Federal Crown, NSLA and the private Bar to discuss possibilities to improve Crownside. The consensus was that overall Crownside is working well, but the group discussed some things that could be changed to improve it. As discussed at the previous meeting of this Committee, the main issues of concern are that senior counsel are often waiting a long time to be called, and the time constraints for counsel who have 9:30 a.m. appearances in other courts.

147 of 298

Page 226 of 486

All agreed that seniority is a priority but there are other considerations that must be taken into account. For example, a Provincial Crown will be in Crownside for the day, but a Federal Crown will only be there for a specific matter and will likely have another obligation at 9:30 a.m. (and legislation provides that the Federal Crown has priority). One possibility floated by this group was a staggered start to Crownside, with those appearing at 9:00 a.m. if they have 9:30 a.m. commitments, and everyone else appearing at 9:30 a.m. It would be the lawyer’s responsibility to advise the criminal scheduler if they have 9:30 a.m. appearances. Another possibility would be to adopt a system used in New Brunswick, where the Court emails lawyers with available dates prior to Crownside, and then these are made official at the Court appearance. Ultimately, Mr. Newton reported that the group thought the staggered start might be the best idea to help senior lawyers and those with other commitments at 9:30 a.m. Justice Duncan responded to these suggestions, providing some background on the preparation for Crownside. He advised that he meets with the Crownside judge and the criminal scheduler to go through the order in which the matters should be offered dates, taking into account factors such as the seriousness of the offence, whether the accused is in custody, where the matter is on the Jordan timeline, etc. Therefore, there could be a glitch if one of these matters was not called until 9:30 a.m. Further, Justice Duncan commented that how we currently schedule matters is very time consuming for staff. In addition, Crownside files are not ready until Wednesday afternoon (as matters can come in up until Wednesday morning at 10:00 a.m.), and so there is not much opportunity to canvass dates with counsel in advance. Justice Arnold asked Mr. Newton if he had any sense of how serious / wide the complaint from the senior lawyers is – beyond a couple of people. He asked if Mr. Newton was aware of anyone else for whom this was an issue. Mr. Newton responded that he was not aware of anyone else who had raised this issue, however he noted that the 9:30 a.m. time pressure is a widespread concern. Justice Duncan advised that he and / or Justice Arnold could meet with the group Mr. Newton had struck if they think it would be useful, as the Court is always looking to improve its processes. Justice Duncan will contact Mr. Newton to set up the meeting. As an aside, Justice Duncan noted that there are new policies regarding the criminal rota that were passed by the Court in January. He stated that at the end of the day things are working quite well, but there is pressure as a result of Jordan. Mr. Carter asked if the court is still having problems with staffing issues. ACJ Smith responded that the court has serious problems with sick leave and lack of staff. Chief Justice Kennedy advised that these frustrations are being brought to the attention of

148 of 298

Page 227 of 486

the government and that they are in constant discussions. The new Executive Director of Court Services, Michelle Higgins, is wonderful and they are hopeful she will be able to resolve these problems.

(b) Update re: Costs and Fees (ACJ Smith) ACJ Smith advised that there is no report on this item.

(c) Update re: Quieting of Titles Rule (ACJ Smith) ACJ Smith reported that the new Quieting of Titles Rule and Practice Memorandum will be put to the judges for approval at their May 2017 meeting.

(d) Update re: Pro Bono Clinic (ACJ Smith) ACJ Smith provided an update on the Free Legal Clinic. She reported that there have been 241 users of the clinic in total, and that usage seems to have been picking up from the last meeting. Ms. McInnes will obtain statistics on the feedback being provided by clinic users for this Committee’s next meeting. 3. Court Statistics (ACJ Smith) ACJ Smith provided an update on scheduling statistics and delays as of April 12, 2017. The next available dates were as follows:

- 1.5 hour special chambers: May 17, 2017 - 2.5 hour special chambers: May 24, 2017 - Full day motion, application, or judicial review hearing: May 15, 2017 - Date assignment conference: April 28, 2017 - Three day judge alone trial: June 14, 15 and 19, 2017 - Five day judge alone trial: April 16-23, 2018 - 10 day judge alone trial: January 2-17, 2019 - 10 day jury trial: January 2-17, 2019 - 15 day jury trial: March 2-27, 2019 - Half day settlement conference: May 24, 2017 - Motion for directions: May 1, 2017

ACJ Smith reported that trial dates are later than they have been in recent years. This is because the court is only double booking (versus triple booking) for 2018 due to Jordan. Trials in 2019 are being triple booked. ACJ Smith commented that she thinks Jordan is a short-term problem for scheduling, and that once we are over the hump, dates will be back to where they were previously.

149 of 298

Page 228 of 486

Mr. Carter asked if the Bench was short judges. ACJ Smith advised the Supreme Court had the following vacancies: 1 Halifax Supreme Court (Family Division) judge, 1 Pictou Supreme Court judge, 1 Halifax Supreme Court (General Division) judge. Mr. Pineo asked whether the Court could contact counsel if earlier trial dates come up than those that were available at the DAC. ACJ Smith responded that the Court simply does not have the staff or judge power to redo DACs. Mr. Keith commented that at the recent Bench / Bar Rules Liaison Committee meeting, it was opined that approximately 80% of DACs are for personal injury matters. He wondered if this is a statistic that the Court could keep track of. ACJ Smith responded that the Court could try, but wondered if the statistic would really be meaningful given that the statistics produced are often unreliable. 4. Scheduling Problems

(a) Problems with delays in having court dates assigned at the DAC (Nancy Rubin, Q.C.)

Ms. Rubin spoke to this issue, advising that part of the issue is delay, while the other issue is the judge not having an available date list at the time of the call. ACJ Smith responded that the Court now has the 2019 available date list (it was previously unavailable as the supernumerary judge availability had not been inputted into the calendar), and we are going back to offering dates.

(b) Judge mandated counsel to accept dates notwithstanding Judge was advised that counsel would then be triple-booked (Nancy Rubin, Q.C.)

Ms. Rubin asked if it was appropriate for a judge to direct counsel to triple book themselves. ACJ Smith responded that this is a judicial function and touches on judicial independence. ACJ Smith asked Ms. Rubin if this was a real problem for the Bar or just a one-time situation. Before having any discussion with judges, this information would be required. ACJ Smith advised Ms. Rubin to inform the lawyer involved that they could write to the judge involved expressing their concern over being triple booked.

(c) Delays in obtaining settlement conference dates and application dates (and bumping for criminal matters)

This item was already dealt with in the items above.

150 of 298

Page 229 of 486

5. Prothonotary issues

(a) Rejected “late” filed Statements of Defence (in Antigonish and Halifax) (Nancy Rubin, Q.C.)

Ms. McInnes spoke to this issue. She advised that the instance of a defence being rejected in Antigonish due to being “late” appears to be an isolated matter and due to a new Prothonotary filling in for the current Prothonotary who was on leave. Ms. McInnes will follow up to ensure that deadlines with respect to defences are understood. With respect to the matter in Halifax, this was in relation to the filing of an amended defence and not the defence itself. Ms. McInnes advised that gatekeeping with respect to the timelines and restrictions set out in the Rules around amended pleadings is part of the prothonotary’s role. She noted that it would be helpful if counsel provided covering letters with documents if it is not obvious what they are doing – for example, to advise that they have agreement of the other parties to file an amended document and therefore that they are in compliance with the relevant Rule. ACJ Smith echoed this comment about covering letters, noting that it is surprising how often documents are filed without these. She asks that Bar members please encourage counsel to do so when it is not obvious what they are filing.

(b) Inconsistency in Prothonotary offices re: rejection / acceptance of late-filed experts reports (Nancy Rubin, Q.C.)

ACJ Smith advised that in Halifax, the policy is that staff are told to accept expert reports whenever they are filed. This may not be the practice in the districts. However, ACJ Smith noted that at the recent Bench Rules Committee meeting, there was a discussion on expert reports. There may be a Rule change coming with respect to the timing of filing expert reports. The thought is that a certificate would be filed with the court confirming expert reports have been delivered to the other party, but the expert report itself would not be filed until the pre-trial briefs are filed. Therefore, this matter may become a non-issue.

(c) Email notification of signed order (John Keith, Q.C.)

Mr. Keith brought forward a question from two lawyers in small firms, who are wondering if they could be notified by email (or by phone) when their documents are ready. Ms. McInnes advised that if counsel request to be notified (in a covering letter, for example), then court staff will typically do so.

151 of 298

Page 230 of 486

Mr. Moir raised a separate matter, noting that he was asked on behalf of a few members of the Bar to provide positive feedback with respect to contact with Court staff, noting that over the past number of months interactions with the court administration office have been very helpful and positive. 6. A2J issue: lack of transparency, lack of precedents re: court decisions (Nancy Rubin, Q.C.)

(a) Release of decisions: At the discretion of the judge, a decision may be (1) withheld from submission completely, (2) submitted to internal databank only, (3) also approved for public release (courts website & sent to CanLII & legal publishers), (4) added to the courts online decision database but not listed on the new release web page or tweeted, or (5) added to the courts online decision database, listed as a new release and tweeted.

Ms. Rubin (on behalf of library staff and Mr. Pink) raised the issue of judges’ discretion with respect to release of decisions. She indicated that she has raised this with this Committee before, and understands it is seen as a judicial independence issue. However, she noted it is also an access to justice issue and an issue of lack of precedents. ACJ Smith responded, indicating that she has gone to the judges on a number of occasions to talk about the importance of releasing decisions. However, it is a matter of judicial independence. A judge will direct the publication manager if / how they want the decision released. She indicated that she can bring this message back to the judges again, but it will be up to them if / how they release their decisions. Ms. Rubin noted that withholding the decisions could be seen as a freedom of information issue. Justice Wright indicated that he agreed with ACJ Smith that this could be raised at a judge’s meeting. He noted that judges should be aware that this is an issue.

(b) For the last few months, decisions are being posted and tweeted only two days per week, Mondays and Thursdays, when formerly decisions were posted five days per week.

ACJ Smith confirmed this is the case, as the publication manager is off on disability leave. The Court is doing its best to get back fill for that position. 7. Request from Small Claims Court – Increase in jurisdiction to $50,000 (attached memo from Gavin Giles, Q.C.)

152 of 298

Page 231 of 486

Ms. Rubin referred to Mr. Giles’ letter, circulated with the agenda. Mr. Giles requests input from the court with respect to whether the Small Claims Court should seek to increase its jurisdiction to $50,000.00. Chief Justice Kennedy responded that if the jurisdiction of the Small Claims Court is increased to $50,000.00, it will have to become a court of record for the purpose of appeals. In addition, he noted that the rationale behind that court was always to keep lawyers out of it. He noted that the Small Claims Court is a Nova Scotia success story in that it has addressed a real need. Justices LeBlanc and Wright echoed Chief Justice Kennedy’s comments with respect to the need to become a court of record. Justice LeBlanc further commented that when the jurisdiction of the court was increased from $10,000.00 to $25,000.00, this saw a great increase in lawyers in that court. Therefore, increasing to $50,000.00 would likely see another jump in this regard. ACJ Smith indicated that she was not sure she understood Mr. Giles’ concern with respect to the cost to the government to produce a record. The courtrooms are already equipped for recording and therefore there would be no cost to the government in doing this. Mr. Moir commented that from his point of view, his clients would be happy to see the jurisdiction increase to $50,000.00, and to have him represent them in Small Claims Court instead of the Supreme Court. 8. Other No other matters raised. 9. Next Meeting To be held Wednesday, November 22, 2017 at 4:30 p.m. at the Law Courts. Respectfully submitted, Caroline McInnes

153 of 298

Page 232 of 486

SUPREME COURT OF NOVA SCOTIA BENCH/BAR LIAISON COMMITTEE Wednesday, November 22, 2017 at 4:30 pm

(The Law Courts)

A G E N D A

1. Approval of the Minutes of the April 19, 2017 Meeting (attached)

2. Business arising from the April 19, 2017 Meeting

(a) Crownside/Criminal Scheduling – Duncan J

(b) Update re: Costs and Fees – Smith ACJ

(c) Update re: Pro Bono Clinic – Smith ACJ

3. Court Statistics – Smith ACJ

4. Scheduling/Delay Issues

(a) Scheduling special chambers (4 weeks to schedule special chambers)

(b) Delays returning default judgments (3 weeks +) and court orders (affects time for appeals)

5. Other

6. Next Meeting

154 of 298

Page 233 of 486


MINUTES – MEETING HELD November 22, 2017, AT 4:30 P.M.

PRESENT: REGRETS: Associate Chief Justice Smith (Co-Chair) Darrell Pink Chief Justice Kennedy Caroline McInnes Justice Wright Jason Cooke Justice Duncan Nancy Rubin, Q.C. (Co-Chair) Justice Rosinski Justice Brothers Robert Carter Geoffrey Newton John Keith, Q.C. (Acting Co-Chair) John Nisbet Matthew Moir Mark Rieksts A meeting of the Supreme Court Bench/Bar Liaison Committee was held on the afternoon of Wednesday, November 22, 2017 at 4:30 p.m. 1. Approval of Minutes The minutes of the April 19, 2017 meeting of the Committee were approved as drafted. 2. Business arising from the April 19, 2017 Meeting

(a) Crownside / Criminal Scheduling (Duncan J) Justice Duncan stated that he had met with the Criminal Lawyers Association and requested their concerns but none were expressed. He confirmed that the court is conscious of the regard to be paid to senior counsel, but currently Crownside operations are too complicated to strictly follow rules of seniority. He re-iterated his comments, as set out in the minutes of April 19, 2017, concerning Crownside. He also noted that there is now greater Crownside judicial availability on other weekdays (e.g. for short notice matters, pre-hearing conferences, habeas corpus hearings, warrants, transportation orders, return of exhibits motions etc.) Justice Duncan reported that waiting times have been reduced substantially with the benefit of securing trial dates for matters sooner. Some matters continue to linger, such as self-represented parties seeking counsel, but a new resource package for self-

155 of 298

Page 234 of 486

represented folks is now used, and permits matters to proceed despite a party’s failure to secure counsel. In January 2018, a new scheduling system will be followed with a full-time Crownside Judge sitting for 4 weeks in a row to enhance consistency. Justice Duncan noted that one year on from the Jordan decision, there has not yet been a NS Supreme Court case stayed on the basis of Jordan. Currently there are 17 cases pending trial over 30 months, but the delay is not the result of “institutional” factors. It is his impression that, overall, intake of criminal files has increased but that pre-trial applications that are dispositive have helped

(b) Update re: Costs and Fees (ACJ Smith) ACJ Smith advised that Justice Farrar’s report is expected to be available by April 2018 and, after a review by the Judiciary, will form the basis of a recommendation to the legislature. This matter will be reviewed at the next meeting of the Committee.

(c) Update re: Pro Bono Clinic (ACJ Smith) ACJ Smith provided an update on the Free Legal Clinic and circulated the clinic’s Spring/Summer and Fall 2017 Statistics [Appendix “A”] as well as a summary report of clients’ exit surveys [Appendix “B”]. She reported that summertime shows less use of the service in general. Feedback shows clinic users lament the in-accessibility of the Courthouse, especially for those with disabilities, how the courthouse is ‘hard to find’ and even seems an “unfriendly” building. ACJ Smith confirmed that funding has been set aside for improved signage for the Courthouse. A new initiative is being considered to use volunteers to help the public navigate the physical space, like those services found at hospitals. 3. Court Statistics (ACJ Smith) ACJ Smith provided an update on scheduling statistics and delays as of November 21, 2017 [Appendix “C”]. The next available special time date was Jan 2, 2018. ACJ Smith noted that, on non-urgent matters, a 4-week delay is not unreasonable, especially considering the notice requirements set out in the Rules and the need to file supporting materials in time for a Judge to be able to review them in advance of a hearing. Delays of greater than 4-weeks are a concern and, to avoid that occurrence, require flexibility in the current Civil Rota.

156 of 298

Page 235 of 486

ACJ Smith noted that 10 and 15 day trials being booked into 2020 is concerning and unsatisfactory. While criminal matters have priority, it should still be possible to ensure that civil matters are heard in a timely manner. To that end, triple booking of matters in 2018 has been authorized. ACJ Smith noted that members of the judiciary have been very willing to accommodate changes in their schedule to assist in having matters heard within a reasonable period of time. She is hopeful that, by April 2018, the statistics will improve. ACJ Smith noted that it is anticipated that the Jordan “bump” will be dealt with by the end of 2018 and, thereafter, the criminal docket should be able to keep up with Jordan requirements. Justice Duncan noted that the Crownside docket can provide dates for a 4-day criminal trial easily, which is an improvement, but a 5-day jury trial will be booked in February 2019. This creates pressure, especially with long jury trials (which typically involve serious charges like murder). We may be over the Jordan “bump” but longer matters still pose a problem, with the Jordan requirement to finish a matter within 30 months of the Information being sworn. Mr. Newton commented that, in Provincial Court, most delay lies at the feet of the Defence and so some “wiggle-room” is provided in that way. Justice Duncan noted that resources taken from the civil side are still being used to address Jordan issues. Court scheduling is more “art” than “science” and does involve some risk taking. Justice Rosinski inquired as to what activities have been undertaken at Provincial Court to address Jordan issues? Mr. Newton replied that there was a directive that, if an adjournment request is made by the defence, the defence must waive raising Jordan delay issues later. Such a waiver is common when pursing restorative justice options or diversionary measures. Mr. Moir wondered about docket availability as he recently secured 3 days but not until September 2018. ACJ Smith confirmed that the docket is very fluid and availability depends on the day when an inquiry is made. ACJ Smith confirmed that the court has resumed triple-booking matters in 2018, with the accompanying risk of civil matters being pulled from the docket to accommodate criminal matters. Mr. Carter commented that he has sometimes been asked to “gamble” on having a judge or go off the docket for a guaranteed spot 4 -6 weeks down the road. Usually the gamble, which is an informed one, works, but not always. ACJ Smith advised that the Supreme Court has one judicial vacancy in Pictou. There are several supernumerary judges and scheduling is working on confirming their sitting times so that availability of dates on the docket can be improved.

157 of 298

Page 236 of 486

Justice Rosinski asked if there is any courtroom availability in the districts, i.e. is the problem scarcity of judges or courtrooms? ACJ Smith noted that it can be both. She said the willingness of the parties to agree to relocate a hearing is also a factor. Justice Duncan added that availability of staff must also be considered and noted that district courtrooms are often shared by different Courts. ACJ Smith noted that there are two modern Supreme Court courtrooms in Bridgewater, so it is an option if parties agree to relocate their hearing. 4. Scheduling Problems

(a) Scheduling Special Chambers (4 weeks to schedule special chambers) ACJ acknowledged that this is an issue and encouraged the Bar to write to the Deputy Minister so that staff and training issues at the Law Courts can be addressed and an acceptable level of service maintained. She asked to be copied on any such letters. Staffing at the Halifax Law Courts, the busiest court in the province, has been reduced over the last number of years. The resulting loss of knowledge and overstretch of remaining resources has resulted in serious challenges.

Mr. Rieksts thought that a collective letter to the Deputy Minister or Minister might be persuasive. This proposal was adopted and Mr. Rieksts and Mr. Keith will draft a letter from the Bar.

(b) Delays returning Default Judgements (3 Weeks +) and court Orders (affects time for appeals)

ACJ Smith noted that the underlying causes are the same as noted in item 4 above. 5. Other

(a) Publication of Court Decisions (Item 6 from minutes of April 19, 2017)

ACJ Smith stated that the All Chiefs Committee is looking at this issue. Judicial independence leaves the decision to publish with individual judges. Publication of decisions is strongly encouraged however. CJ Kennedy noted that this has been raised at Judges meetings this year and, hopefully, improvements will be made.

(b) Lawyers tasked with explaining the difference between “swearing” and “affirming” the truth to a witness

Many witnesses do not understand the difference between “swearing” and “affirming” the truth. It would be helpful if counsel discussed this issue with witnesses before the witness takes the stand. ACJ Smith asked counsel to turn their minds to doing this regularly.

158 of 298

Page 237 of 486

(c) Eagle Feathers will be available for use in Court in 2018 ACJ Smith advised that, commencing in 2018, Eagle Feathers will be available in the courts throughout the province for the purposes of attestation. She asked counsel to advise the court, in advance, if a witness requires the use of an Eagle Feather.

(d) Request to keep stats on DACs for personal injury proceedings ACJ Smith noted that this could be done, but was unsure if it is necessary. Mr. Keith explained that the rationale for the inquiry was an assumption that most DACs on the docket involve personal injury proceedings and, if this is the case, considering many of these proceedings settle, should special allowances be made? ACJ smith noted that it likely depends on the Justice Centre. It was determined that this statistic will not be collected at this time.

(e) New Media Liaison Guidelines Justice Wright confirmed that the new guidelines have been in effect since June 1, 2017, and may be perused on the Court’s website. 6. Next Meeting To be held Wednesday, April 12, 2018 at 4:30 p.m. at the Law Courts. Respectfully submitted, Timothy D. Morse Appendix A – Free Legal Clinic Spring/Summer and Fall 2017 Statistics Appendix B – Free Legal Clinic Clients’ Exit Surveys Appendix C – Court Statistics

159 of 298

Page 238 of 486

SUPREME COURT OF NOVA SCOTIA BENCH/BAR LIAISON COMMITTEE

Thursday, April 12, 2018 at 4:30 pm

(The Law Courts)

A G E N D A

1. Approval of the Minutes of the November 22, 2017 Meeting (attached)

2. Business arising from the November 22, 2017 Meeting a. Jordan Update (Duncan J) b. Update re: Costs and Fees (Smith ACJ) c. Update re: Pro Bono Clinic (Smith ACJ) d. Scheduling/Delay issues (Mark Rieksts)

3. Court Statistics (ACJ Smith)

4. CBA responsibility for Liaison Committees (Nancy Rubin)

5. Other issues

160 of 298

Page 239 of 486

Schedule I

161 of 298

Page 240 of 486

Court of Appeal Liaison Committee (Bench-Bar) Meeting - May 20, 2014 at 3:30 p.m.

Main Floor Conference Room, Law Courts

AGENDA

1. Review and approve Minutes of October 30, 2013 meeting

2. Business arising from October 30, 2013 Minutes

a. Posting Facta on the Court's Website

b. Review of initiatives on Access to Justice

• Simplified Package, including video to assist those advancing and responding to an appeal - Luke Craggs and Caroline Mcinnes.

• Education Session with both judges and practitioners as panelists speaking about the appeal process. - Justice Beveridge and Peter Mc Vey

• In-Person Education Delivery through a Pro Bono Initiative and Roster. - Chief Justice Michael MacDonald and Lester Jesudason

• Possible Appeal Book e-filing, reducing the record, and/or reducing the numbers of filed copies required. Justice David Farrar, LouAnne Chiasson and Peter Mc Vey

3. New Matters

• Filing Electronic Facta

• Ineffective Counsel Protocol

• Release conditions when new trials are ordered

4. other Business

5. Date and time for next meeting

2726156 v1

162 of 298

Page 241 of 486

Report on behalf of the Court of Appeal Liaison Committee

Here is an overview of the Committee's progress and work over the past year .

.1.:. Progress Made in Relation to the Work Plan

We are pleased to report that we have completed all projects on our work plan for 2013-2014.

In addition, we discussed how the Court of Appeal Liaison Committee can assist in relation to access to justice initiatives. We have successfully struck a subcommittee that has developed four initiatives to be developed and advanced. These initiatives are as follows:

1. Simplified Package, including video to assist those advancing and responding to an appeal.

2. Education Session with both judges and practitioners as panelists speaking about the appeal process.

3. In-Person Education Delivery through a Pro Bono Initiative Clinic and Roster.

4. Possible Appeal Book e-filing, reducing the record, and/or reducing the numbers of filed copies required.

5. Each initiative is moving forward as follows:

1. Simplified Package, including video to assist those advancing and responding to an appeal.

We are in the process of developing 10 to 20 commonly asked questions in developing both a pamphlet as well as a video to be provided to litigants to assist them.

2. Education Session with both judges and practitioners as panelists speaking about the appeal process.

Currently we are working to determine whether or not the Advocates' Society or the CBA can assist us in developing a full day education session with lawyers specifically focused on appeals.

3. In-Person Education Delivery through a Pro Bono Initiative Clinic and Roster.

We already have 25 volunteers for the pro bone roster. It appears that a pilot project will begin in the Fall of 2014 and after that pilot project we will reassess how we will deliver and move forward with the pro bone initiative clinic. The Bar Society will need to work on amending our Code and Regulations to further accommodate this pro bone initiative.

4. Possible Appeal Book e-filing, reducing the record, and/or reducing the numbers of filed copies required.

The Court has indicated that e-filing will likely be possible. A rule change will have to be made to accommodate this and further work on this initiative will be undertaken during the Summer and Fall of 2014.

2745559 v1

163 of 298

Page 242 of 486

-2-

2. What the Committee has Accomplished

Our big accomplishment over 2013-2014 has been embarking on access to justice initiatives. Our Committee is very active in pushing forward this agenda which is in keeping with the strategic goals and objectives of the Society. By the end of 2014, I believe we will have most, if not all, of those initiatives underway and will likely be considering additional initiatives.

We revised our Terms of Reference in a meeting in October 2013.

We reviewed the Society's strategic framework with a presentation by Rene Gallant.

We continue to deal with questions and issues raised by members of the Bar and the court. The list of topics discussed are as follows:

• Posting facta on the court's website

• Filing electronic facta

• Release conditions when new trials are ordered

• Identifying the presiding chambers judge

• Ineffective counsel protocol

• Review of process for scheduling appeals

• Judicial dispute resolution

• Wireless capabilities in the courtroom and members of the various Liaison Committees joining forces to discuss the issue

• Process for interlocutory appeals

• In custody appellants and new trial orders

• Identification of tribunal decisions in Court of Appeal decisions

3. Relation to Society's Initiatives

This Committee has not done any work relating to transforming regulations aside from suggesting that some regulations may need to be amended to encourage the pro bona initiative clinic that is being developed.

As noted above, most of the focus of this Committee has been on access to justice initiatives.

A big thank you to all the Committee members as well as the members of the judiciary on the Committee who have approached the initiatives and tasks with commitment and enthusiasm.

Christa M. Brothers, Q.C. Chair, Court of Appeal Liaison Committee May 22, 2014

2745559 v1

164 of 298

Page 243 of 486

NOVA SCOTIA BARRISTERS' SOCIETY

COMMITTEE WORK PLAN AND PROGRESS REPORT 2013-2014

Court of Appeal Liaison Committee

Committee Mandate and Responsibilities

Mandate: Liaison between the Bar Society, members of the Bar and the Court of Appeal.

Responsibilities:

.

The Committee has been a venue for the Court to address issues with the Bar and the Bar to raise issues with the Courts.

Committee Chair: Christa M. Brothers

Sub-committees, if any, and names of Chairs: NIA

Matters assigned to Committee by Council's Activity Plan

Access to Justice Initiatives. These are to be discussed with the Committee on October 30, 2013 at 3:30 p.m. The Committee meets twice a year, in October and May. There are no current matters assigned; however, an Agenda is being developed by the Committee.

Details for each Project/Initiative

1. Name of project: Ineffective Counsel Protocol

Goal/outcome of project: To discuss whether the court will consider a requirement for leave to be granted before this ground of appeal is asserted.

Timeframe for completion: To Be Determined

Resources required (volunteer, staff): N/A

2. Name of project: Scheduling Appeals

Goal/outcome of project:

2658324 v1

165 of 298

Page 244 of 486

3.



To discuss the current procedure.

Timeframe for completion: To Be Determined

Resources required (volunteer, staff): N/A

Name of project: Strategic Framework Discussion

Goal/outcome of project: How the Committee can assist in relation to Access to Justice Initiatives.

Timeframe for completion: 2014

Resources required (volunteer, staff): None, at this time.

Additional Comments on Committee's Plans or Progress

The Committee develops Agendas through the course of the year and seeks member and court input.

2658324 v1

166 of 298

Page 245 of 486





Mandate:

The Court of Appeal Liaison Committee supports the Executive Director of the Nova Scotia Barristers' Society in ensuring effective liaison with the Court of Appeal.

Responsibilities:

The Committee provides a means for ongoing liaison and communication between the Nova Scotia Court of Appeal and the Nova Scotia Barristers' Society about matters of mutual concern and interest.

The three main tasks for the Committees are:

• to identify practice and policy issues of mutual concern and interest; • to recommend means for addressing these issues; and • to communicate the results of this process to the Court and to the Society for further

communication to the profession or elsewhere.

Committee Co-Chairs:

The Honourable Chief Justice J. Michael MacDonald R. Lester Jesudason, Q.C.

Sub-committees, if any, and names of Chairs:

Court of Appeal Liaison Committee Access to Justice Sub-committee (Co-Chairs: The Honourable Chief Justice J. Michael MacDonald and R. Lester Jesudason, Q.C)

. · .

Matters assigned to Committee by Council's Activity Plan .

Details for each Project/Initiative

167 of 298

Page 246 of 486

1.

2.

3.



Name of project: Creation of Simplified Package for self-represented litigants ("SRLs") who are advancing or responding to an appeal.

Goal/outcome of project: To create an easy to use booklet type of document to assist SRLs in advancing and responding to appeals in civil and criminal matters.

Timeframe for completion: January/February 2015.

Resources required (volunteer, staff): Luke Craggs (volunteer).

Name of project: Educational Package (Video).

Goal/outcome of project: To create a video to provide information to educate SRLs about the appeal process. Two scenarios are proposed to be covered. The first would involve an interview with a SRL involved in an appeal. The second would involve a mock appeal.

Timeframe for completion: January/February 2015.

Resources required (volunteer, staff): The Honourable Justice Duncan R. Beveridge, Peter McVey and Paula Arab (volunteer). John Piccolo (staff).

Name of project: Duty Counsel Project.

Goal/outcome of project: Every Tuesday and Thursday morning, in conjunction with the Court and Pro Bono Students Canada, members of the Bar will provide a volunteer duty counsel service to SRLs involved in civil matters at the Supreme Court or the Court of Appeal level. There will be two separate rooms set up. Each will consist each of a volunteer lawyer and a student volunteer from Pro Bono Students Canada or the Schulich School of Law. The lawyer will provide assistance to the SRL during sessions generally limited to 30 minutes (or longer if time permits). Volunteers will undergo a training session to teach them how to effectively assist SRLs. The goals of the project including helping SRLs navigate the legal process (thereby increasing access to justice for them), assisting volunteers, particularly students, develop practical legal skills, and conserving the Court's resources (e.g. ensuring SRLs have completed forms correctly thereby expediting litigation, deterring SRLs from meritless claims, alleviating the burden on Court staff, etc.).

Timeframe for completion: January/ 2015.

168 of 298

Page 247 of 486

4.



Resources required (volunteer, staff): As noted above.

Name of project: Review of requirements for the Appeal Book

Goal/outcome of project: To review the requirements for an Appeal Book including possibly a-filing, reducing the record, etc., and educate the Bar with respect to same.

Timeframe for completion: Ongoing. Already, Court of Appeal Chambers Justices can consider requests to reduce the record in appeals and Issue appropriate directions on a case by case basis. For example, In appeals Involving pure questions of law, it may be that certain portions of the record relating to factual background do not need to be produced. Members of the Bar should consider streamlining the record in appropriate circumstances. Possible communication to be sent out from the Prothonotary/Reglstrar to members of the Bar.

Resources required (volunteer, staff): Prothonotary/Reglstrar.

. . · . AddltionaLCi:nnments on Committee's Plans or Progress . . ; - , -- -

169 of 298

Page 248 of 486

COURT OF APPEAL LIAISON COMMITTEE MEETING

Wednesday, May 20, 2015 at 3:30 p.m.

The Law Courts - Main Conference Room

AGENDA

1. Approval of October 30, 2014 Minutes

2. Business Arising

(a) Further input, if any, for Costs and Fees Committee on Tariff(Justice Farrar)

(b) Updates on Initiatives of Access to Justice Sub-Committee (see agenda below)

(c) Respondents filing Supplemental Appeal Books (Chief Justice MacDonald)

(d) Update on Response to Vexatious Litigants (Chief Justice MacDonald)

3. Updates on Initiatives of Access to Justice Sub-committee

i) Simplified Package, including "How-to Manuals" (Luke Craggs & Peter Mc Vey)

ii) Educational Initiatives and/or Video (Justice Beveridge, Peter Mc Vey & Paula Arab)

iii) Duty Counsel Project (Chief Justice MacDonald)

iv) Appeal Book: e-filing, reducing the record, etc., if anything further (Justice Farrar)

4. New Business

(a) Support for Self-Represented Litigants in Family Law Appeals (Peter Mc Vey)

(b) Review Terms of Reference & Mandate (Chief Justice Macdonald & Peter McVey):

(i) Existing Mandate (identify issues; recommend solutions; communicate)

(ii) ad hoc sub-committees & project groups (e.g., A2J sub-committee(s))

(iii) Desired Number & Frequency

( c) Issues from the Registrar

(d) Other New Business

5. Next Meeting

170 of 298

Page 249 of 486


Thursday, October 29, 2015 at 3:30 p.m.

The Law Courts - Main Conference Room, 2nd Floor

DRAFT AGENDA

I. Approval of Minutes (May 20, 2015)

2. Business Arising from the Minutes

(a) Judicature Act - Vexatious Litigants

(b) Updates on Access to Justice Initiatives (see following agenda item)

3. Access to Justice

(a) How-to Manuals (Luke Craggs & Peter McVey)

(b) Self-Represented Litigant Workshops (CJNS MacDonald)

(c) Pro Bono Duty Counsel (CJNS MacDonald)

(d) Access to Justice Coordinating Committee (CJNS MacDonald)

4. New Business

(a) Sealing Orders in FOIPOP Appeals (Correspondence from Agnes MacNeil)

(b) Court of Appeal Judicial Mediation Program (Peter McVey)

( c) Issues from the Registrar


5. Next Meeting

171 of 298

Page 250 of 486

NOVA SCOTIA BARRISTERS' SOCIETI

COMMITTEE PROGRESS REPORT

MID-YEAR 2015-2016



Mandate:

Supports the Executive Director in ensuring effective liaison between the Bar and the Court of Appeal.

Responsibilities:

The Committee provide a means for ongoing liaison and communication between the Nova Scotia Court of Appeal and the Nova Scotia Barristers' Society, regarding matters of mutual concern and interest.

There are three main tasks for this Committee, namely:

• identify practice and policy issues of mutual concern and interest; • recommend means for addressing these issues; and • communicate results to the Court and the Society for further communication to the Bar or public .

Committee Co-Chairs:

The Honourable Chief Justice Michael MacDonald, and Peter C. McVey, Q.C.

Sub-committees, if any, and names of Chairs:

Two "committee of the whole" meetings are held each year, and ad hoc committees and working groups carryout tasks between these semi-annual meetings. There are no standing committees.

The Committee maintains a broad, representative membership drawn from the Federal and Provincial Public Prosecution Services, Nova Scotia Legal Aid (Criminal), Federal and Provincial Civil Litigation Services, WCAT, and also includes experienced members of the private civil and criminal appellate Bar.

Projects & Initiatives . . . . .

1. Name of project:

Civil Appeals pro bono clinic


Provide pro bono legal advice to civil appellants, in a weekly clinic, upon referral from the Registrar.

Timeframe for completion:

Ongoing weekly; Pilot Project completed Spring 2015; Clinic proper commenced October 2015.

172 of 298

Page 251 of 486



MID-YEAR 2015-2016

Resources required (volunteer, staff):

Volunteer legal resources provided by members of the profession; contributing firms of particular note include Blois, Nickerson & Bryson; Burchells; Boyne Clarke; Stewart McKelvey; & Wickwire Holm.

2. Name of project:

Family Law appeals pro bono Clinic


Identified by the Committee at its meeting in May 2015 as a "gap" in the civil pro bono clinic; provides pro bono legal advice to only family law appellants, in a monthly clinic, on referral from the Registrar.


Ongoing; Clinic commenced weekly in October 2015.


Legal resources provided by the Nova Scotia Legal Aid Commission (staff lawyer)

3. Name of project:

"How-To" Manuals for Civil & Criminal Appeals


Paper Manuals (each 12-15 pages) & Webpages summarizing civil & criminal appeal procedure.


Text completed by Bar members & approved by judges of the Court June 2015; Webpage mockup completed by Director of Communications, The Nova Scotia Judiciary, February 2016; Webpages to "go live" by the end of February 2016; "printer-friendly" version will be included on each Webpage.


Text drafted by Bar members of Liaison Committee, reviewed & approved by judges of the Court.

173 of 298

Page 252 of 486



MID-YEAR 2015-2016

4. Name of project:

"Virtual Workshops" for Self-Represented Litigants


Presentation-style videos from the CJNS & Registrar, introducing the Court and appeal procedures, the latter based on the "how-to" manuals described above; a more ambitious scripted video-project was considered and costed by the Committee in 2015, but rejected on the basis of prohibitive cost.


Presentation-style videos to be completed Spring 2016 and added to courts.ns.ca website.


Current project undertaken by members of the judiciary and court staff; no Bar resources required .

Additional Comments on Committee's Plans or Progress •• .

· . . · .

The focus of the Committee's work since October 2013, has been on access to justice initiatives.

Those initiatives have largely come to fruition, as described above.

We last undertook a review of our mandate as a Committee of the whole in May 2015.

174 of 298

Page 253 of 486

THE CRIMINAL APPEAL:

A HOW TO MANUAL FOR THOSE INTERESTED IN APPEALING A CONVICTION OR

SENTENCE

TABLE OF CONTENTS

INTRODUCTION 3

I - FREQUENn Y USED TERMS 4

II -STARTING AN APPEAL AND THE IMPORTANCE OF FOLLOWING IT THROUGH.

7

Ill - WHEN SHOULD I FILE MY APPEAL? 10

IV-APPEAL TO THE SUPREME COURT OR COURT OF APPEAL? 11

V - WHAT DO I DO ONCE I HAVE FILED A NOTICE OF APPEAL? 13

VI -WHAT WILL HAPPEN AT MY APPEAL HEARING? 1 8

VII-WHAT WILL HAPPEN TO MY SENTENCE WHILE MY APEPEAL IS PENDING?

19

VIII -CAN I WITHDRAW AN APPEAL? 20

APPENDIX OF FORMS 21

Page 1 of 17

175 of 298

Page 254 of 486

INTRODUCTION

The purpose of this manual is to help you make an informed decision about appealing a criminal conviction or sentence.

Starting an appeal means you are prepared to dedicate the time, energy, focus and possibly the money to see the appeal

through to Its conclusion. You should not start an appeal unless you are committed to this process.

This manual fays out the mechanics of a criminal appeal. We encourage you to reference it as the appeal process

unfolds.

I - FREQUENTLY USED TERMS

Appeal Book- the collection of the trial transcripts and copies of exhibits that make up the record. A transcript is a

certified record of every word that was said by the judge, lawyers, and witnesses at a trial, prepared and certified to be

accurate by a professional court reporter. The Crown lawyer will prepare the Appeal Book If you are incarcerated.

Appellant - the person who is requesting an appeal court overturn a decision of a trial court.

Certificate respecting filing appeal book- a signed document which certifies the Appellant has started the process of

gathering the materials necessary for the appeal book. It must provide an estimate of when the trial transcript will be

prepared and when the appeal book can be filed with the court.

Chambers- a sitting of the court dealing with brief but Important matters such as setting dates. It Is held in open court

with the recording equipment turned on. In Halifax Supreme Court, Chambers is referred to as Crownside. If you live

outside of Halifax, you may arrange to have your appeal set down via telephone chambers, referred to as telechambers.

Factum - the written arguments filed by the Appellant and Respondent.

Ground of Appeal- a one sentence summary of the mistake or mistakes the Appellant believes the trial judge made.

There m ay be one ground of appeal or several.

Indictable Offences - the most serious crimes, such as homicide, robbery, aggravated assault, or trafficking in drugs. The

most common indictable offences are In the Criminal Code or the Controlled Drugs and Substances Act. The Nova Scotia

Court of Appeal hears appeals of indictable offences.

Indictment - the document from Supreme Court which sets out your charge or charges.

Information - the document from Provincial Court which sets out your charge or charges.

Page 2 of1 7

176 of 298

Page 255 of 486

Novo Scotia Court of Appeal· the highest court in the province. It is where an appeal for indictable offences or an appeal

from a Summary Conviction Appeal Court is heard.

Provine/al Court-the Court at which all criminal charges begin and most criminal charges conclude. The Provincial Court

hears the trials for all summary offences. It has the authority to hear all criminal offences except the most serious. If you

are charged with an indictable offence other than murder you may choose to have your trial in Provincial Court.

The Record- the general term for all of the information that was before the trial court. This includes the certified

transcript of the audio recording, all exhibits and written arguments provided to the trial judge. The Crown lawyer will

obtain the audio recording and transcript if you are Incarcerated.

Respondent- the person who is responding to an appeal who usually does not want the lower court decision

overturned. In your criminal appeal the Respondent will be the Federal Crown, Provincial Crown, or Municipal Crown.

Summary Conviction Appeal Court- a judge of the Nova Scotia Supreme Court who is reviewing a decision regarding a

summary offence.

Summary Offences - less serious offences, most of which are in the Criminal Code, the Controlled Drugs and Substances

Act, or are Provincial Offences. A judge of the Supreme Court hears appeals of summary conviction verdicts. The Nova

Scotia Court of Appeal hears appeals of Supreme Court judge's decisions on summary conviction appeals.

Telechambers - a hearing of the court dealing with brief matters such as setting dates. It Is held by telephone with the

recording equipment turned on.

II -STARTING AN APPEAL AND THE IMPORTANCE OF FOLLOWING IT THROUGH.

An appeal Is not a new trial. An appeal is a !!ll!lfill! of the record ta determine if the trial judge misapplied the law,

misunderstood the evidence, or both.

By filing a Notice of Appeal you take the first step to having a higher court review the trial court's decision, but there are

many more steps you must take. You must follow an appeal through to its conclusion before the higher court can

change the lower court's ruling.

It Is the Appellant's responsibility to move the appeal along by filing the required documents on time and in the proper

format. If you do not do this your appeal can be dismissed.

What Is the difference between the Notice of Appeal and a ground of appeal?

The Notice of Appeal is the document that starts the appeal process. Its main purpose is to tell the other participants

and the appeal court what you say the judge did wrong, and to tell them what you want the appeal court to do to fix

that wrong. Much of the Notice of Appeal sets out particulars of the trial such as dates, the name of the trial judge, and

the names of the parties involved in the trial. It also lays out the ground or grounds of appeal. Your personal contact

information must also be Included.

A ground of appeal is set out in the Notice of Appeal document. It Is a one sentence summary of why you believe your

conviction or sentence should be overturned by an appeal court.

Page 3 of 17

177 of 298

Page 256 of 486

There can be more than one ground of appeal. If you believe the trial judge made one error, you have one ground of

appeal. If you believe the trial judge made three errors, you have three grounds of appeal, and so on.

A ground of appeal could be an error of law, a misapprehension (or misunderstanding) of the facts, or both an error of

law and misapprehension of facts. These errors can take place at any point in the proceedings, including pre-trial

motions, mid-trial motions, the decision on whether you are found guilty or not guilty, or sentencing.

If you are appealing a sentence, you must apply for leave to appeal sentence. "Applying for leave" is another way of

saying asking for permission to appeal. Practically speaking, the court will hear the application for leave and the

sentence appeal at the same time.

Appealing a Jury Decision

In jury trials, the trial judge's instructions to the jury on the law may be reviewed by the Court of Appeal. The jury made

their decisions in secret about what facts were proven, so there are no grounds to appeal the process by which a jury

decided the facts. However, the Criminal Code does allow the Court of Appeal to determine if a verdict is unreasonable

or not supported by the evidence.

What Is NOT a ground of appeal?

The nature of our criminal justice system usually means that one of the parties at trial did not get what he or she

wanted. People appeal convictions and sentences because they are unhappy with what happened at their trial or

sentencing. Being unhappy with an outcome, however, Is not a ground of appeal.

Perhaps the trial judge found you guilty even though you said you were innocent. The trial judge may have believed a

witness you did not believe. If you testified, the trial judge may not have believed you.

A trial judge's job is to hear the witnesses, apply the law, and if possible make findings of fact. Trial Judges have the

benefit of seeing and hearing witnesses In the flesh which gives them a much better opportunity to assess whether what

a witness says Is reliable and trustworthy. Appeal judges read the transcript of what the witnesses said.

An appeal judge must respect a trial judge's finding of fact, even if the appeal judge might have concluded the facts were

different.

Simply put, saying "I can't believe the trial judge believed that liar" Is a .!!Q! a ground of appeal.

Can witnesses testify at an appeal?

Most appeals will not have witnesses testify.

Witness testimony is the cornerstone of a criminal trial. However, an appeal Is very different from a trial. Unlike a trial,

an appeal is a review of Information that the trial judge heard and the decisions the judge made based on that

information.

Page 4 of17

178 of 298

Page 257 of 486

However, the Criminal Code recognizes that there are times when witnesses must testify at an appeal. Generally,

witnesses that could have testlfled at trial will not be heard on appeal. A potential witness must be relevant and bear

upon a potentially decisive appeal Issue. The witness must also be reasonably capable of belief and, if believed, could be

capable of affecting the result of the trial when taken with other evidence at trial.

I think my lawyer Is to blame for my conviction. Is that a ground of appeal?

Probably not. Lawyers are highly trained and are regulated by the Nova Scotia Barristers' Society. There Is a strong

presumption that your trial lawyer was competent, exercised sound professional judgment, and your trial was fair.

Even so, appeal courts recognize that there are times when a lawyer's performance at trial can be Inadequate to the

point there was a miscarriage of justice. As the Appellant you must show that your lawyer's performance at trial fell

below the standard of a reasonably competent lawyer and as a result of the lawyer's performance, a miscarriage of

justice occurred.

Lawyers are officers of the court and have a professional obligation not to advance frivolous arguments or call witnesses

to give testimony which Is Irrelevant or not admissible.

If you wish to advance this ground of appeal, you must prove your trial lawyer's actions or Inaction contributed to your

conviction. Put another way, you must prove that If your lawyer had done or not done specific actions you would have

either been found not guilty or have had a llghter sentence.

I l l - WHEN SHOULD I FILE MY APPEAL?

Once you have been sentenced, you may appeal:

1. Conviction alone;

2. Sentence alone;

3. Both conviction and sentence

The Notice of Appeal must be filed 25 days after sentence is passed . This does not include the day of sentencing, a

Saturday, Sunday or holiday on which the prothonotary's office is closed. it is important that you file your Notice on time

-do not miss the deadline.

As a general rule, there is no benefit to filing your appeal before you are sentenced. The appeal court will not hear your

appeal until you have been sentenced. Also, if you decide to appeal your sentence you will have to apply to amend your

Notice of Appeal once you have been sentenced.

Although there is no benefit to filing your Notice of Appeal before you are sentenced, it would help to begin the process

of gathering materials (such as a transcript) you will need to advance your appeal.

IV -APPEAL TO THE SUPREME COURT OR COURT OF APPEAL?

Page 5of17

179 of 298

Page 258 of 486

If you wish to appeal a conviction or sentence for an indictable offence, you must appeal to the Nova Scotia Court of

Appeal. It hears appeals of indictable offences and appeals from Summary Conviction Appeal Courts. The Nova Scotia

Court of Appeal sits in Halifax. This means that the administration office, the judges' offices, and the courtroom in which

appeals are heard are in Halifax.

An appeal is started in the Nova Scotia Court of Appeal by filing a Notice of Appeal with the Registrar of the Court of

Appeal at 1815 Upper Water Street In Halifax.

If you are appealing a summary conviction, you must file your Notice of Appeal in the appropriate Supreme Court which

is located in the same district of the court which heard your trial. If your trial or sentencing took place in Provincial Court

within a County that does not have a Supreme Court, your appeal will have to take place in a different county . Please

note that in some centres the administration office is in a separate building than the actual courtroom where your

appeal will be held.

If your trial was in: Your appeal will be in Supreme Court at:

Amherst Adminstration • 16 Church Street, Amherst; Courtroom 54 Victoria Street E, Amherst

Annapolis Royal 119 Queen Street, Digby

Antigonlsh 11 James Street, Antigonish Arichat 15 Kennedy Street, Port

Hawkesbury Bridgewater 14 1 High Street, Bridgewater Dartmouth 1815 Upper Water Street, Halifax DiRby 119 Queen Street, Digby Eskasoni 136 Charlotte Street, Sydnev Halifax 1815 Upper Water Street, Halifax lngonish 136 Charlotte Street, Sydnev Kentville 87 Cornwallis Street, Kentville New Glasgow 69 Water Street, Plctou Plctou 69 Water Street, Pictou Port Hawksbury 15 Kennedy Street, Port

Hawkesbury Shelburne 164 Main Street, Yarmouth Shubenacadie 1 Church Street, Truro Sydney 136 Charlotte Street, Sydney Truro 1 Church Street, Truro Windsor Administration 87 Cornwallis

Street, Kentville; Courtroom 240 King Street, Winsdor

Yarmouth 164 Main Street, Yarmouth

V - WHAT DO I DO ONCE I HAVE FILED A NOTICE OF APPEAL?

As the Appellant, It is your responsibility to move your appeal forward. This means you must:

Page 6 of17

180 of 298

Page 259 of 486

1. Have the appeal placed on either the telechambers or chambers docket to set dates for the hearing and filing

deadlines.

2. File your appeal book on time and In the correct format.

3. File your factum on time and In the correct format.

4. Arrange for the service of documents whenever this is required, and be prepared to prove that service of

documents was done.

5. Appear for your hearing on time and prepared.

legal Representation

After your Notice of Appeal has been flied, you will be contacted by court staff and asked to participate In a phone call

with a judge of the court ("telechambers" or a "chambers teleconference"). You will then be asked whether or not you

wish to have a lawyer and, If you do, about what steps you have taken with Legal Aid and otherwise to obtain a lawyer.

If you wish to have a lawyer but Legal Aid will not represent you In the appeal, court staff will provide you with an

information package, explaining how you may apply to the court to have a lawyer appointed.

Preparing, formatting and filing the appeal book

The appeal book is not just what you want the Court of Appeal to read. It contains everything that the trial judge you are

appealing from considered, whether you think It helps or hurts your case. An appellant and respondent may AGREE to

limit what goes in the appeal book, but one of them does not decide alone. If you are Incarcerated, the Crown will

prepare the appeal book.

The appeal book, therefore, must contain all of the following documents, In two separate booklets;

Appeal Book Part 1 - Documents

1. A table of contents referring to each document and the page number at which it begins;

2. A copy of the Notice of Appeal;

3. A copy of the Information If the trial was held In Provincial Court or the Information and the Indictment if the

trial was In held In Supreme Court;

4. A copy of the decision under appeal signed by the judge who issued it;

5 . A reference sheet containing the heading of the proceeding under appeal, the court or registry number, the

name of the judge who made the judgment, the date or dates of the trial, and date of judgment

Appeal Book Part 2 - Evidence and Related Materials

1. An index of witnesses which Includes the name of the witnesses, the party who called the witness, and page

references to where In the appeal book direct examination, cross examination, and re·direct examination begins

(this is usually prepared by the transcriptlonlst);

2. A list of all Exhibits;

3. A copy of the transcript of everything said In the course of the trial;

4. A copy of each documentary exhibit;

Page 7 of 17

181 of 298

Page 260 of 486

5. If a jury conviction is under appeal, a copy of the charge (instructions) to the jury certified by the trial judge to

be accurate;

If you are appealing sentence, you do not need to include the trial transcript or exhibits entered at trial, but you do need

to include the transcript of the sentencing and any exhibits entered at sentencing. You must also include:

l. The presentence report that was before the sentencing judge;

2. A copy of your criminal record, if you have one, that was before the sentencing judge;

3. A copy of each order related to the sentence. This could be a fine order, probation order, conditional sentence

order, order for the taking of bodily substance (DNA), firearms prohibition order, or the warrant of committal if

you were sentenced to jail

Getting a transcript

The most significant task for preparing an appeal book Is obtaining a transcript of the trial In the lower court. The

transcript must be signed and certified by a certified court reporter.

In order to get a transcript you must get the audio recordings and court log from the trial court and provide them to a

professional court reporter for transcription.

Court reporters are private businesses. You must pay forthe preparation of the transcript. You may be charged $3.25·

$4.25 per page of transcription. There are probably between 50-60 pages of transcription for each hour spent In court.

If you wish to appeal a "one day" hearing, the transcript may cost you $1,000. The longer the hearing, the higher the

cost.

Getting documents from the trial court flies

When you file your notice of appeal, court staff will arrange for the court file to be moved from the trial court to the

appeal court. This means you will need to contact the appeal court to arrange a time to make photocopies of the

documents needed for the appeal book.

Be sure to include both sides of double sided documents.

Getting a date for your appeal hearing.

After you file your Notice of Appeal, the Registrar will send you a letter advising you of the deadline for setting the

appeal down and contact Information for arranging a chambers or telechambers date.

Once you have contacted the court for an available chambers or telechambers date you must file with the court and

serve on the opposing party:

1. Notice of Motion for Date and Directions; and

2. Certificate Respecting Filing the Appeal Book or the completed appeal book

I have a filing deadline for my factum and a date forthe hearing. What is the acceptable format for filing my factum?

Filing your documents In the proper format Is very important. Although some of formatting requirements may seem

picky, they are designed to enable the judges who hear your appeal to navigate the volumes of paper easily.

Page 8 of 17

182 of 298

Page 261 of 486

A factum must be:

1. No more than 40 pages long, not including the Index;

2. Bound with a cerlox spine;

3. Double spaced;

4. In no less than 12 point font;

5. Be organized into the following six parts:

1- Concise Overview of the Appeal

II - Concise Statement of Facts;

111- List of Issues;

IV - Standard of Review

V -Argument

VI - Order or Relief Sought

Appendix A - List of Citations referred to in Part V (Argument)

Appendix B - Statutes and Regulations including the text of relevant statutory provisions.

6. Printed on single sided paper;

7. Parts I to VI must be to the left of the "spine" or binding coll (sometimes called by a brand-name, such as

"cerlox") to allow the right side of the spine to be used for notes;

8. If you are the Appellant the cover page and back page of the factum must be yellow or buff coloured. If you are

the Respondent the cover page and back page of the factum must be blue or green.

Why do I have to make seven copies of all of the documents?

Five copies are for the court, one copy is for you, one copy is for the Respondent.

If there is more than one appellant or respondent, you will need to provide enough copies for all parties. In the unusual

event five judges sit on the panel, you will need to provide an extra two copies for the extra two judges.

VI -WHAT WILL HAPPEN AT MY APPEAL HEARING?

The appeal hearing is when you and the Respondent will make your oral arguments to three judges of the Court of

Appeal or a single judge of the Supreme Court. It will also provide the judges an opportunity to ask questions about the

positions of the Appellant and Respondent.

Virtually all appeals In the Nova Scotia Court of Appeal will be heard by a panel of three judges; however in rare

circumstances, five judges will hear an appeal.

In most cases, you will have to wait a few days or a few weeks before you receive the decision of the Court of Appeal.

Page 9of17

183 of 298

Page 262 of 486

VII -WHAT WILL HAPPEN TO MY SENTENCE WHILE MY APPEAL IS PENDING?

Once you have been found guilty of a crime, the judge who found you guilty must pass sentence before the appeal court

will consider overturning the conviction. You must apply to the appeal court If you wish to put your obligations under

your sentence on hold pending your appeal. If you do not take steps to do this, you could be In breach of your sentence

and subject to further criminal sanction.

Filing a Notice of Appeal does not automatically suspend a sentence. You must apply to the appeal court and prove that

It Is in the Interest of justice to suspend the sentence until the appeal has been determined. Different types of

sentences require different approaches to suspend them pending appeal.

Fines, forfeited property, restitution orders, victim fine surcharges, probation orders and conditional sentence orders,

and driving prohibitions.

Section 683(5) of the Criminal Code gives the Court of Appeal the authority to suspend an obligation to pay a fine,

forfeiture or disposition of forfeited property, a restitution order, victim fine surcharge, probation order, or conditional

sentence order.

Jail Sentence

A jail sentence can be suspended by the Court of Appeal granting bail pending appeal.

If you are In jail you must satisfy the appeal court that your appeal is not frlvolousand your detention is not necessary in

the public Interest. You will however have to surrender yourself Into custody the day before the appeal is released.

VIII - CAN I WITHDRAW AN APPEAL?

Yes. If you decide you do not wish to pursue an appeal any longer you can file a one page form abandoning the appeal.

Please note you can only withdraw an appeal you started. If the Crown or a co-accused appealed, only the Crown or the

co-accused can withdraw their appeals.

This manual was prepared and published by the Nova Scotia Court of Appeal Liaison Committee, with contributions from

the Bar by Luke Craggs and Jennifer MocLel/an.

Page lOof 17

184 of 298

Page 263 of 486

NOTICE OF APPEAL

TEMPLATE OF FACTUM

APPENDIX OF FORMS

20

24

CERTIFICATE OF READINESS RESPECTING FILING OF APPEAL BOOK

26

NOTICE OF ABANDONING APPEAL 28

Page 11 of 17

185 of 298

Page 264 of 486

Between:

To: Her Majesty the Queen

PARTICULARS OF CONVICTION:

1. Place of conviction

2. Name of Judge

3. Name of Court

4. Name of Crown Prosecutor at trial

5. Name of Defence Counsel at trial

6. Offence(s) charged:

7. Offence(s) of which appellant convicted

Nova Scotia Court of Appeal

[name of Appellant]

and

Her Majesty the Queen

Notice of Appeal

8. Sections of the Criminal Code or other statutes under which appellant convicted

9 . Plea at trial

10.Sentencelmposed

11. Date of conviction

12. Date of sentence

13. If appellant in custody, place of incarceration

C.A.C. No.

Appellant

Respondent

Take notice that the appellant appeals (and if necessary applies for leave to appeal): (conviction, sentence, or both)

Page 12of17

186 of 298

Page 265 of 486

Grounds of appeal and relief sought

This appeal is brought under section of the

The grounds of appeal are as follows:

[set out ground(s) of appeal)

At the conclusion of the appeal the appellant will request an order that:

I desire to present my case and argument (strike out (a) or (b)),

(a) in writing (see note 3 below)

(b) in person

If a new trial is ordered and you have a right to trial by judge and jury do you wish trial by judge and jury?

Contact information

The appellant designates the following address:

Documents dellvered to this address will be considered received by the appellant on delivery.

Further contact information is available from the registrar.

Signature of appellant, print name below signature

Signed [date of signing]

Registrar's Certificate

i certify that this notice of appeal was filed with the Court of Appeal on

Registrar

NOTES:

(1) if the appellant wishes to appeal against conviction, he must write the word "conviction". If he wishes

to appeal against sentence, he must write the word "sentence". If he wishes to appeal against both

conviction and sentence he must write the words "conviction and sentence". If an appellant convicted

of more than one offence wishes to appeal against some only of his convictions and sentences, he must

state clearly the convictions or sentences against which he wishes to appeal.

(2) These must be filled in before the notice Is sent to the Registrar. The appellant must here set out the

grounds or reasons he alleges why his conviction should be quashed or his sentence reduced.

(3) If the appellant desires to submit his case and argument in writing he may serve his written argument

Page 13 of17

187 of 298

Page 266 of 486

with this notice of appeal, or within fourteen (14) days of receiving the transcript and the appeal book

from the Attorney General, or within such time as ordered by a Judge.

OTHER INFORMATION:

I. If your appeal is against conviction alone this notice must be served within twenty-five days of the date of the

conviction.

2. If your appeal Is against sentence alone or conviction and sentence this notice must be served within twenty-five days

of the date of Imposition of the sentence.

3. If this notice Is served beyond twenty-five days then you must apply for an extension of time by completing the

application below. If you do not apply to the Court for such extension of time or If your application for extension is

refused, your appeal will be dismissed without further hearing.

4. If you are in custody two (2) signed copies of this notice of appeal must be delivered to the senior official of the

institution in which you are confined. If you are not in custody three {3) copies of the notice of appeal must be delivered

to the Registrar.

Application for Extension of time:

I hereby apply for an extension of the time within which I may appeal for the following reasons:

Signed {please print name below signature)

Date

Part 1 ·Concise Overview of the Appeal

Template of Factum

{A brief overview of the trial's procedural history and an Introduction to the Issues to be examined In greater detail in

the Argument section of the factum)

Part 2 - Concise Statement of Facts

This section ls a brief summary of the facts as found by the trial judge or jury that led to the conviction or sentence. All

facts in this section should cite the book, page and line number where they appear in the Appeal Book.

part 3 • List of Issues

A summary of contested issues being examined in this appeal.

Part 4 ·Standard of Review for each Issue

Page 14 of17

188 of 298

Page 267 of 486

The degree of deference the appeal court must show to the trier of fact. Appeal Courts will generally not change factual

findings made at the trial level, but will correct misinterpretations of the law made at the trial level.

Part 5 -Argument

An organized argument of why you believe your appeal should be granted.

Part 6 - Order or Relief Sought

A statement of what you want the Appeal Court to do. Generally, appellants want a conviction overturned or a sentence

reduced. If a conviction ls overturned, the court of appeal can order a new trial or enter an acquittal.

Appendix A - List of Citations referred to in Part 5

Appendix B -Statutes and Regulations (include the text of relevant statutory provisions).


Between:

(name of Appellant]

Page 15of17

189 of 298

Page 268 of 486

Appellant

and


Respondent

Certificate of Readiness

(to be faxed or sentto the registrar no less than frve days pnor to Chambers application for setting dates for the hearing

of an appeal)

I, [name of Appellant) certify:

(I) that the court or tribunal appealed from has issued a formal order (if applicable);

(II) I have a paper copy of the written decision under appeal

OR, if no written decision Is available yet:

I undertake to send a copy of the transcribed oral decision to the judge or tribune appealed from as soon as I receive it

from the court reported

(Ill) that I have ordered copies of the audio recordings from the appropriate court or tribunal;

(Iv) that I have ordered the transcription of these audio recordings (the evidence);

(v) that I am Informed by [name of transcription company) and believe that the transcription will be completed no later

than

(vi) that I anticipate being able to file the Appeal Book In this matter no later than _________ _

(vii) that I have sent a copy of the notice of appeal to the judge (or tribunal) from whose decision this appeal Is taken.

Dated at , Nova Scotia this day of 20_.

Signature of Appellant, please print name below signature line.

Address:

Phone No.

Fax No I email:

Page 16 of17

190 of 298

Page 269 of 486

Between:

To: the Registrar of the Court of Appeal

and


I abandon this appeal.

Signed


[name of appellant]

-and-


Notice of Abandonment

Signature of Appellant, please print name below signature line

This notice was signed in the presence of

Signature of Witness, please print name below signature line

Page 17 of17

C.A.C. No.

Appellant

Respondent

191 of 298

Page 270 of 486

192 of 298

Page 271 of 486

THE CIVIL APPEAL: A HOW TO MANUAL FOR THOSE INTERESTED IN APPEALING A JUDGMENT

INTRODUCTION

The purpose of this manual is to inform you about the process of appealing a judgment in a civil law

proceeding. "Civil" law proceedings are those cases that are not criminal cases.

Starting an appeal means you are prepared to dedicate the time, energy, focus and possibly money to

see the appeal through to its conclusion. If you do not, you might see your appeal dismissed and have

to pay money to the other parties ("costs") for their time spent preparing to respond to your appeal.

You should NOT start an appeal unless you are committed to follow the process through to the end. The

requirements of a civil appeal are described In detail In Rule 90 of the Nova Scatia Civil Procedure Rules

found at www.courts.ns.ca.

I - FREQUENTLY USED TERMS

Appeal Book - The collection of the transcripts, documents and exhibits that make up "the Record". A

transcript is a certified record of everything said by the judge, lawyers, or witnesses at a trial or hearing,

prepared and certified to be accurate by a professional court reporter.

Appellant - The person who is asking that the appeal court overturn a decision of a trial court or

tribunal.

Appellant's Certificate -A signed document which certifies (says & promises) that the Appellant has

started the process of gathering the materials necessary for the appeal book, and stating the dates by

which important parts of that process will be completed, allowing the Court to set dates for the hearing.

Chambers- A sitting of the Court in which brief but important matters, such as setting dates or hearing

procedural "motions", are dealt with. It is held In open court before one judge with the recording

equipment on.

Court of Appeal- The Nova Scotia Court of Appeal Is the highest court In the province. This Court hears

appeals from decisions of the Supreme Court of Nova Scotia and from other courts and tribunals.

Decision - The conclusion of the trial judge or tribunal on some contested Issue in the case, which may

happen before a trial or hearing, during a trial or hearing, or In the verbal or written decision at the end.

Factum - The written legal arguments filed by the appellant and respondent. What Is written in the

Factum is not evidence. The Factum discusses the facts and the law to persuade the appeal court.

Fee Waiver-the filing fee for an appeal Is now (June 2015} $218.05, plus the cost of a "law stamp"

(which is currently an additional $25 + HST). The filing fee is subject to change each year, usually on April

l". The Registrar of the Court of Appeal may grant a fee waiver if you file a Waiver of Fees Application

Form and the required documentation proving your financial circumstances.

Page 1 of 14

193 of 298

Page 272 of 486

Fresh Evidence -The Court of Appeal MAY consider fresh evidence, evidence not considered by the

original trlal judge or trlbunal, but only in limited circumstances, after you follow a particular procedure.

Ground of Appeal- A one sentence summary of the mistake the appellant believes the judge or tribunal

made. There may be more than one ground. Judges can make different types of errors, as we'll see.

Leave -You only have a right of appeal if a written law passed by Parliament or the Legislature says you

have a right of appeal. Some written rights of appeal only go half-way, saying the Court of Appeal must

first grant "leave" or permission for you to appeal, even before It rules on the appeal Itself. An example

Is an appeal from a decision of the Workers' Compensation Appeals Tribunal to the Court of Appeal.

Motion -A document that you file to take a procedural step in an appeal, followed by a court

appearance at which that procedural step is considered and ruled on by a judge of the Court of Appeal.

Order -The written order made by the judge that you wish to see changed by your appeal.

The Record-A general term for all of the information that was before the judge or tribunal appealed

from, whether the judge or tribunal received it in written form or heard it said In the courtroom or at

the hearing. This Includes a certified transcript of the audio recording of the trial or hearing, and copies

of all exhibits and written documents.

Respondent-The person who is responding to an appeal, and who usually does not want the earlier

decision overturned. Sometimes a respondent can raise his or her own Issues in an appeal.

Security for Costs-An order by a judge of the Court of Appeal requiring an appellant to give or

otherwise set aside money to pay the respondent's legal costs should the appellant lose the appeal.

Stoy -The stopping by a judge of the Court of Appeal of some or all of what was ordered by the original

judge, only temporarily and for as long as is needed to allow the appeal to be heard.

Tribunal- A decision-maker that is not a court or a judge, but has been given decision-making authority

and that can be appealed on some grounds (for example, the Workers' Compensation Appeals Tribunal).

More generally, when the words "court", "judge", and "trial" are used in this manual, read them to also

mean "tribunal" or "hearing", If the appeal is one taken from a tribunal decision to the Court of Appeal.

II -THINGS TO THINK ABOUT BEFORE STARTING AN APPEAL

How does an appeal compare with a trial or hearing?

An appeal is not a new trial or fresh hearing. It is a process by which three or more judges of a different

court read in advance the documents and transcript previously considered by one judge or a tribunal,

and hear legal argument in a courtroom about the type of errors the first judge ls said to have made.

Appeals review a judgment for legal error. They do not re-judge the whole case from scratch.

Page 2 of14

194 of 298

Page 273 of 486

An appeal is normally limited to consideration of the "appeal record", factums and oral argument, to

decide whether or not the original judge misapplied the law, misunderstood the evidence, or both.

By filing a Notice of Appeal you take the first step to have a higher court review the trial court's decision,

but there are many more steps you must take.

It Is the Appellant's responsibility to move the appeal along, by filing the required documents on time

and in the proper format. If you do not do this your appeal may be dismissed and costs ordered.

What ls the difference between the Notice of Appeal and a ground of appeal?

The Notice of Appeal is the actual document that starts the appeal process.

Its main purpose is to tell the other participants and the Court of Appeal what you say the judge or

tribunal did wrong, and to tell them what you want the Court of Appeal to do to fix what was wrong.

Much of the Notice of Appeal sets out basic Information about the case, such as the dates of the order

and decision, the name of the judge or tribunal, and the names of the parties Involved In the case.

A ground of appeal Is a statement written out as part of the Notice of Appeal. It ls a one sentence

summary saying exactly why you believe the judge or tribunal should be overturned by an appeal court.

A ground of appeal could be an error of law or legal principle, a serious misunderstanding of the

evidence, or both. Some orders can also be overturned to correct a plain and obvious error.

These errors can take place at any point in the case, Including during procedural hearings, In the middle

cf a trial, or In the final Decision that you are appealing. You should be able to point to something the

judge decided verbally In courter his or her written decision, or both.

In civil jury trials, the trial judge's instructions to the jury on the law, or procedural decisions to give or

keep evidence from the jury that one side wanted to present, may be reviewed by the Court of Appeal.

For example, a ground might be: "The trial judge erred in law when he concluded that assets held In a

famlly trust were not 'matrimonial property' that can be divided under the Matrimonial Property Act."

Alternatively, a ground might be: "The Tribunal erred when Interpreting the phrase, 'regular salary or

wages, in s. 42 of the Workers' Compensation Act, s. 20 of the General Regulations, and Polley 3.1.1R2."

If you believe the judge or tribunal made only one error, then you write out that one ground of appeal. If

you believe the judge or tribunal made three errors, you write out all three grounds of appeal, etc.

It ls important that you put all of the grounds of appeal In the Notice of Appeal. You may not rely on any

ground of appeal that Is not Included in your Notice of Appeal, unless the Court of Appeal or a judge of

the Court of Appeal permits.

Page 3 of14

195 of 298

Page 274 of 486

What is NOT a ground of appeal?

The adversarlal nature of our justice system means that at least one of the parties at trial did not get

what he or she wanted. People usually want to appeal decisions because they are unhappy with what

happened in the end. Being unhappy with an outcome alone, however, is not a ground of appeal.

For example, it Is not a ground of appeal to say, "l told the truth but my husband lied, yet the judge

believed him." Trial judges assess the evidence and make such findings; courts of appeal do not.

ft ls also not a ground of appeal to say, ''There was a lot of evidence that l could have presented but l

didn't put It before the judge because I thought what l was told by my friends and family was hearsay."

If the evidence was not presented to be ruled on by the judge, it was not the judge who made the error.

A judge's job is to hear the witnesses, apply the law, and make findings of fact. Judges and tribunals

have the benefit of seeing and hearing witnesses in person, which gives them a much better opportunity

to assess whether what the witnesses say is reliable and trustworthy.

Appeal judges read the transcript; they do not meet the witness( es}. They assume any trial judge is

better placed to decide whom to believe. They might think you are more credible but stlll dismiss your

appeal.

This is because the law requires the appeal judges to respect a trial judge's finding of fact, even if one or

more of the appeal judges would have concluded the facts differently. On appeal, a high standard of

"deference" or respect must be given by any appeal court to findings of fact made by any trial judge.

Only a judge's findings of fact that were not supported by any evidence, or clear or obvious "(palpable")

errors of fact, errors that decided the outcome of the case ("materlal" or "overriding"), can be appealed.

Do I have to follow the trial judge's order while an appeal is underway?

Filing an appeal does not stop the order made by the trial judge. You generally must obey and carry out

the terms of that order, unless you obtain a full or partial "stay" (stopping} of the order under appeal.

You may seek a stay if following the order under appeal will cause you some harm that cannot

practically be reversed or fixed by the appeal court if you win the appeal.

Usually this requires harm that cannot be compensated with money (e.g., harm caused by following an

order to disclose confidential documents}, or harm for which monetary compensation will not be an

effective remedy (e.g., harm caused by following an order to pay money to someone who cannot later

be forced to pay it back if you win the appeal}. A stay usually requires proof of such "irreparable harm".

You must apply to a judge of the Court of Appeal by Motion if you wish your obligatlons under the order

to be put on hold while your appeal ls ongoing. If you do not take steps to do this, you could be in

breach of the trial order and punished for contempt by the trial court for failing to follow the order.

Page 4 of 14

196 of 298

Page 275 of 486

Can witnesses testify at an appeal?

Most appeals will not see witnesses testify. Appeals are usually conducted only on the written record.

This Is because, unlike a trial, an appeal is all about REVIEWING for error the Information the trial judge

had and the decisions the judge made, and not about the creation of new evidence or a different record.

There will be times when witnesses must testify at an appeal hearing. However, witnesses that COULD

HAVE testified at trial will not be heard on appeal. If the evidence existed at the time of the trial, and

you knew about the evidence or COULD HAVE known about the evidence by searching ("with due

diligence"), you cannot call the evidence on appeal. It's too late; you had a chance to call them at trial.

If you could not reasonably have known about the evidence, a potential witness must have the kind of

evidence that Is relevant, bears on a potentially decisive trial issue, is reasonably capable of belief and If

believed could be capable of affecting the result of trial when taken with other evidence at trial.

A Motion to admit evidence on appeal must first be filed and considered by a judge of the court. The

evidence Is then sent on to the appeal panel of three or more judges, to decide whether to consider it.

I think my lawyer ls to blame for my loss; can I appeal?

Lawyers are thoroughly trained and are regulated by the Nova Scotia Barrister's Society. If you believe

your lawyer is incompetent or acted without Instructions, you can complain to that Society.

When appealing, however, there Is a presumption that your lawyer was competent, exercised sound

professional judgment and your trial was fair. You must have solid evidence before you blame your

lawyer for your loss before the court or tribunal appealed from.

Furthermore, unlike in criminal trials, "Ineffective counsel" Is not an acceptable ground of appeal in all

civil cases. The case must be one of "the rarest of cases", such as those involving an overriding public

Interest, or one engaging the Interests of vulnerable persons like children or persons under mental

disability, or one in which the other side actively interfered to make your representation Ineffective.

For example, in civil appeals of child protection decisions, an appellant can succeed by showing with

fresh evidence that his or her lawyer's performance at trial fell below the standard of a reasonably

competent lawyer and the lawyer's performance caused a miscarriage of justice.

If you wish to advance this ground of appeal, you must prove that your type of case falls Into the

categories of the "rarest of cases", and your trial lawyer's actions or Jack of action were Ineffective, and

this caused a "miscarriage of justice". You wlll usually have to testify yourself to prove these facts.

If you make this allegation in an appeal, your former lawyer will receive notice and will likely testify at

the appeal hearing on behalf of the opposing party, to respond to this very serious allegation.

Page 5 of 14

197 of 298

Page 276 of 486

I think the judge was biased; can I appeal?

Judges and tribunals have a duty to conduct hearings and trials In such a manner that every party has a

fair hearing.

If a judge made an order without any notice to you {although, sometimes judges are permitted to make

orders without notice), did not allow you to present your case, Interfered with the presentation of your

case in an unacceptable manner, or participated In the hearing as If she or he was on "one side" rather

than neither "slde", you MAY have a ground of appeal alleging "reasonable apprehension of bias".

However, It is not what you, personally believe or how you felt that Is the legal test on appeal.

You must show from the appeal record or the tribunal or judge's actions inside or outside the court

room that a reasonable, Independent, fully-Informed observer would conclude bias may have been

present, usually based upon the words or actions of the judge, usually captured by the transcript.

What ls the Court of Appeal looking for when they hear an appeal?

Appeal judges do not read the appeal books, factums and hear argument and then ask themselves, what

would I have done if I had been the judge? That Is not their job. They do not offer a "second opinion".

To stop themselves from "second-guessing" decisions best made by judges or tribunals, appeal courts

apply what they call a "standard of review" to your grounds of appeal. They read the order, decision,

transcript and documents with a "standard of review" always in mind.

Ill. What Is a "standard of review"?

(a) Errors of Law

For errors of law, the appeal court will usually ask itself about the lal'.!' that applies to an Issue and ask

Itself, did the Judge get the law right?

This is the "correctness" standard of appellate review. It applies to all alleged "errors of law".

For example, If a trial judge says In a decision, "I grant the father access to his daughter because this Is In

his best interests", this MAY be an error of law: the law says decisions about access to a child normally

require a judge to ask, what is in the child's best Interests? However, appeals do not focus on just one

sentence of a decision, but rather review the whole context of the decision.

In some appeals, such as an appeal to the Court of Appeal from the Workers' Compensation Appeals

Tribunal, the court looks for only particular types of errors of law. In some tribunal appeals, the court

only asks itself if the Tribunal got the law right if it is an issue of law important to the whole legal system,

and not just to the workers' compensation system. An example would be a constitutional law Issue.

Page 6 of 14

198 of 298

Page 277 of 486

In other tribunal appeals, if the alleged error of law concerns a legal issue over which the Tribunal Is considered to be the expert, such as when the Workers' Compensation Appeals Tribunal applies sections

of the Workers' Compensation Act or Workers' Compensation Board Policies, the Court of Appeal will

apply a "reasonableness" standard of review to the Tribunal's decision.

What this means is that the Court of Appeal asks Itself whether the decision falls within a range of

possible, acceptable outcomes when looking at the facts and the law. The Tribunal does not have to get

it "right"; their decision only has to be a reasonable outcome.

For most appeals, however, from the decisions of judges or courts, the "correctness" standard applies.

(b) Discretionary Orders

Judges have a lot of "discretion" or "room for maneuver" to decide what the right outcome Is In a given

case. If the decision under appeal is a procedural ruling, the court of appeal will not overturn the

decision unless the judge "erred In principle" or the ruling caused an obvious ("patent") injustice.

For example, if a judge ordered you to produce documents that are CLEARLY irrelevant, she or he MAY

have "erred in principle": only relevant evidence must be disclosed In advance of trial. However, a

document may be ordered disclosed !flt appears to be relevant and will likely be admissible at trial.

Judges are given a great deal of leeway In deciding such procedural Issues. As stated above, appeals

focus on the whole context of the ruling, not a single sentence in the decision.

Discretionary orders are far more difficult to appeal, as the judge does not have to be correct except

with regard to legal principles and by avoiding an injustice. Any other reasonable outcome stands.

(c) Factual Findings

Judges and tribunals make decisions on the basis of evidence, whether sworn In written form (e.g., an

affidavit) or heard under oath or affirmation from a witness testifying at a trial or hearing. A judge's

discussion of the facts or rulings on the evidence MAY give rise to a ground of appeal.

However, as noted above, alleged errors of fact must be "clear" (obvious to the appeal judges) and

"overriding" (changed the very outcome of the case) In order to be successfully appealed. This Is the

"palpable and overriding'' or "clear and material" standard for reviewing a judge's findings of fact.

If a judge or Tribunal reached a factual conclusion with NO EVIDENCE on that issue, you MAY have a

ground of appeal. Factual findings must be made In light of evidence considered at the hearing.

(d) Mixed Law & Fact

Many or most decisions that judges make are a mix of findings of fact and legal principles, or the

application of legal principles to particular facts: a recipe applied to ingredients to produce a cake. When

presented with the finished product In a written decision, it may be difficult to separate law from fact.

Page 7 of 14

199 of 298

Page 278 of 486

When looking at a mix of principle and fact, the appeal court looks to see whether or not a legal

principle can be separated out for analysis for error; if not, the "clear & material" test will be applied to

the alleged error regarding the application of principles to evidence.

This is the "mixed fact & law" standard of review. An example would arise in an appeal respecting a

decision a judge said was made "in the best interests of the child". The legal principle of the "best

Interests of the child" is difficult to separate from the facts about a child's needs, interests and wishes.

For example, if a judge says, "infants should always live with their mother", or "brothers and sisters

should never be separated", this MAY be an appealable error (an "extricable error of law"): the legal test

Is the "best Interests of the child", and such "always" /"never" statements may be an error in principle.

However, If a judge only says, "I find that It Is In the best Interests of this young child to live with his

mother while the child Is breastfeeding", or "I find that the sibling relationship here is a critical

consideration when deciding whether or not the children should all live in one residence", this MAY NOT

be an error at all, if there was evidence before the trial judge capable of supporting these conclusions.

Alleged errors of "mixed law and fact" require you to identify a legal principle In the judge's decision;

otherwise the Court of Appeal will not reverse a judge for applying the law to the facts, unless a

"palpable and overriding" or "clear and material" error was made regarding any finding of fact. As has

been said before, appeals focus on the entire context of the decision, not just on a single sentence.

(e) Are the Available Grounds of Appeal Umlted by Statute?

Flnally, you only have a right of appeal if a statute (written law or act of the Legislature or Parliament)

says you have a right of appeal. The statute says to what court you may appeal from and to, which may

for example be to the Supreme Court of Nova Scotia (e.g., from Small Claims Court rulings) or to the

Nova Scotia Court of Appeal (e.g., from the Supreme Court of Nova Scotia).

The statute may also say what types of errors can and cannot be appealed. For example, the Workers'

Compensation Act says, "Any participant in a final order, ruling or decision of the Appeals Tribunal may

appeal to the Nova Scotia Court of Appeal on any question as to the jurisdiction of the Appeals Tribunal

or on any question of law but on no question of fact."

Be sure you have the right court before you go any further with your appeal! Procedures are different In

each court. Not every decision of a tribunal or court can be appealed, or appealed on just any ground.

Some appeals go first to the Supreme Court of Nova Scotia, and then only later to the Court of Appeal.

IV - BY WHEN SHOULD l FILE MY NOTICE OF APPEAL

There are deadlines by which you must file any appeal, which depend on the type of order appealed. As

a rule, the clock starts ticking once the order Is "Issued" (offlclally signed, stamped and released by the

court appealed from). If there is no order, the clock starts on the day of the judge or tribunal's decision.

Page 8 ofl4

200 of 298

Page 279 of 486

An order is almost always "Issued" (written up, initialed by the judge, and stamped/signed by court

staff) to make the result contained in the words of the decision into an "order", stating the result of the

decision rather than the reasons for that result. If the party who was successful in the case does not file

an order expressing the results of the decision, you should file an order, as it is needed for an appeal. If

the court or tribunal does not Issue orders, but only offers decisions, then it is the decision that you

require.

If the order is made under legislation passed by the Nova Scotia House of Assembly and that legislation

(act or statute) states a number of days within which an appeal must be filed. That number of days is

calculated not counting the day the order was made or the day you file the appeal, and also not

counting weekends or holidays during which the court offices are closed.

For example, for an order under Children and Family Services Act, you must file within thirty court

business days, not counting the day the order was made or the day you file the appeal and also not

counting weekends or holidays during which the court offices are closed. The thirty days are calculated

that same way under the Workers' Compensation Act, except the clock starts when you receive written

communication of the decision. The deadline is pretty close to six calendar weeks, but count carefully.

If the order Is made under legislation passed by the federal Parliament (in Ottawa) and that legislation

(act or statute) states a number of days within which an appeal must be flied, that number Is calculated

not counting the day the order was made but counting the day you file the appeal, and you must count

weekends or holidays during which the court offices are closed, except if the deadline falls on a holiday,

you may file the appeal on the next day. In other words, there are different rules under different laws.

For example, any order under the Divorce Act, you must file your appeal within thirty days after the day

on which the order was made, meaning within thirty calendar days, not counting the day the order is

made but counting the day you file the appeal. If the 301h day falls on a holiday, you may file on the next

day. The appeal deadline is about one month, but you should count the days carefully and file on time.

For ail other orders of a judge, court or tribunal, the appeal must be filed within twenty-five court

business days, not counting the day the order (or decision if no order) was made or the day you file the

appeal, and also not counting weekends or holidays during which the court offices are closed. The

deadline Is pretty close to five calendar weeks, but you should count carefully to know the deadline.

Finally, there are certain orders made in a case that are short-term or procedural in nature

("interlocutory orders"), that are very difficult to appeal and have a much shorter deadline to file an

appeal. For example, orders to produce documents, answer questions on discovery, join or separate

proceedings, adjourn cases, or dismiss a whole claim without holding a trial or hearing.

For such orders, "leave" (permission) of the Court of Appeal is required, and only ten court business

days are allowed to file the appeal, not counting the day the order was made or the day you file the

appeal, and also not counting weekends or holidays during which the court offices are closed.

Page 9 of14

201 of 298

Page 280 of 486

If an order or decision Is made In the middle of a tria l- such as to admit evidence, adjourn the hearing

or rule on something like a constitutional question - the ground of appeal is PROBABLY sufficiently

wrapped up In the final outcome that you can wait and appeal that ruling once you know the final order.

There is a procedure for the court to grant an extension of time to file an appeal. However, you cannot

bank on the Court granting such an order, and your request may be opposed by the other parties.

Figure out your deadline, note it down and file the Notice of Appeal well before that date, If you can.

V - WHATTO DO ONCE YOU HAVE FILED A NOTICE OF APPEAL

As we have said, if after reading the above you decide you have grounds for appeal, the first thing you

must do Is PREPARE, FILE AND SERVE A NOTICE OF APPEAL. The form of Notice Is contained In the Nova

Scotia Civil Procedure Rules, and there are different forms for different types of appeals.

A copy of the decision and order under appeal must be flied with the Notice of Appeal, if the decision or

order is in writing. If the order is not yet issued or there is no order, you must tell the court staff. If the

decision was given verbally in court, you must request a written decision, signed by the Judge.

Everyone that was involved In the case before the tribunal or court must receive notice of the appeal, so

that they will have a fair chance to respond (making them "respondents• and you the "appellant").

You must also send a copy of the Notice of Appeal to the judge or courthouse where the trlal decision

was made. Some appeals, like workers' compensation appeals, require that the Notice of Application for

Leave to Appeal (and later, the Notice of Appeal) be sent to the Attorney General of Nova Scotia.

Once the Notice of Appeal is filed, the next step in the appeal process Is to participate in a Motion for

Date & Directions. This Is a court appearance or telephone conference with a judge at which procedural

decisions are made by the judge.

There are DEADLINES for you to request and then the Court to hold such a hearing. For example, the

longest an appeal case can go without such a court appearance or telephone conference is eighty court

business days. However, many types of appeals require that this be done much sooner, such as within

twenty-five court business days for appeals from tribunals, fifteen court business days for appeals of

procedural ("Interlocutory") orders, and only ten court business days for child protection order appeals.

Some notices of appeal or for leave to appeal require that this court date be Inserted by court staff.

Other notices of appeal require you to prepare and serve a separate "Motion" document, notifying the

other parties of the court date. Either way, the Motion for Date and Directions must be heard on time.

You will also have to file a "Certificate", which is simply a signed form telling the Court of Appeal that

you have set the appeal in motion by seeking the order, requesting a written decision, and requisitioning

the court audio disks and a transcript, and/or stating dates by which all of these steps will be taken.

Page 10 of14

202 of 298

Page 281 of 486

There are fees associated with filing an appeal. You must pay the fees up front or obtain permission

from the Registrar of the Court of Appeal to proceed on the basis of a "fee waiver". The filing fee for an

appeal Is now {June 2015) $218.05, plus the cost of a "law stamp" {which Is currently an additional $25 +

HST). The fil!ng fee Is subject to change each year, usually on April 1st. The Registrar may grant a "fee

waiver" If you file a Waiver of Fees Application Form and the required documentation proving your

financial circumstances.

Motion for Date and Directions

A motion for date and directions Is a court appearance before a judge of the Court of Appeal, at which

the judge will review the procedural steps that you have taken and the documents you have filed,

"direct" {tell) you to take other steps, set a date for the appeal hearing, set deadlines for all of the steps

that need to be taken or documents filed, and rule on any other Motion filed by any party.

Motions for date and directions are normally heard on Thursdays at the Law Courts on Upper Water

Street in Halifax. Such a motion may be heard by teleconference among the parties and the judge on a

Wednesday, at a time set by the court staff. You may ask to have this "appearance" done by telephone.

Two documents or booklets that you will be "directed" to prepare and file are the "Appeal Book" {all the

documents from the trial or hearing) and your "Factum" {your legal argument for the appeal hearing).

Remember that in some cases {e.g., an appeal from a decision of the Workers' Compensation Appeals Tribunal) the appeal is a two-step process: you first have to file an Application for Leave to Appeal to the

Court of Appeal. Essentially this means that you are looking for the Court's permission to appeal.

At a leave hearing you must convince the Court of Appeal that there is a legal Issue that is worthy of the

court's consideration. You don't have to prove that you will win the appeal, but you must show that you

have an "arguable Issue". Your ground{s) of appeal have to be of a type the Court of Appeal may

consider, and you must have at least some argument on that or all grounds. If the Court dismisses your

Application for Leave to Appeal, you can go no further.

The motion for date and directions Is usually the only motion heard "In chambers" In an appeal, but

there may be several such appearances, If the correct procedural steps have not be taken In the case.

You wlil usually speak for yourself at the motion for date and directions If you do not have a lawyer. You

may bring someone with you to court to support or assist you. With the permission of the judge hearing

the matter, and after you sign an authorization form that the court can provide, another person who Is

not a lawyer may speak on your behalf.

Preparing, formatting and filing the Appeal Book

The Appeal Book is not just what you want the Court of Appeal to read. It contains everything that the

trial judge or tribunal that you are appealing from also considered, whether you think it helps or hurts

your case. An appellant and respondent may AGREE to llmlt what goes in the Appeal Book, but you don't

decide alone.

Page llof 14

203 of 298

Page 282 of 486

The Appeal Book, therefore, must contain all of the following documents, in two separate booklets:

Part 1 - Documents

1. A table of contents, referring to each document and the page number at which it begins

2. A copy of the Notice of Appeal

3. A copy of the Order under appeal

4. A copy of the decision under appeal, signed by the judge or tribunal who issued it

5. A reference sheet, containing the heading of the proceeding under appeal, the court or tribunal

file or registry number, the name of the judge or tribunal who made the judgment, the date or

dates of the trial or hearing, and date of judgment; usually, an easy way to prepare the

"reference sheet" is to photocopy of the cover sheet of the written decision under appeal.

Part 2 - Evidence and Related Materials

1. An Index of witnesses, Including their name, which party had them testify, and page references

to where their evidence is found In the Transcript; usually, an easy way to prepare the index of

witnesses Is to photocopy the index of witnesses found at the front of the official Transcript.

2. A list of all Exhibits; usually, an easy way to provide this is to photocopy the Exhibit List kept by

the court reporter in the trial court or a photocopy of the Exhibit List found In the Transcript.

3. A copy of the Transcript, containing everything said in the course of the trial or proceeding

4. A copy of each documentary Exhibit, written submission, or other document that was filed In

the court or tribunal below, all of which must be read to understand your grounds of appeal.

Getting a Transcript to Include In the Appeal Book

The most significant task for preparing an appeal book is obtaining a transcript of the trial or hearing (If

any). The transcript must be prepared by Certified Court Reporters. Transcripts can be expensive.

In order to get a transcript you must first get the audio recordings (on disk) and court reporter's "log"

from the trial court, and provide them to a professional court reporter for transcription. There is a

standard form that all courts require that you submit in order to send you the court disks with the audio

record.

Court reporters are private businesses. You must pay for the preparation of the transcript. You may be

charged $3.25-$4.25 per page of transcription. There are probably between 50-60 pages of transcription

for each hour spent in court. If you wish to appeal a "one day" hearing in Supreme Court (Family

Division), for example, the transcript may cost you $1,000. The longer the hearing, the higher the cost.

Getting documents from the trial court files to Include In the Appeal Book

When you file your Notice of Appeal, court staff will arrange for the court file to be moved from the trial

court to the appeal court. This means you may need to contact the appeal court to arrange a time to

make photocopies of the documents needed for the Appeal Book.

Page 12 of14

204 of 298

Page 283 of 486

If the court file has not yet been moved by the time you start preparing the Appeal Book, you may be

able to copy the documents that you need at the trial court (If this is done soon and the file Is still there).

Submit double-sided pages in Appeal Books, and be sure to include both sides of double-sided originals.

Do not use documents that you have marked up or written on to make copies, as these are not the same

as the versions read by the judge or tribunal members. Make sure the photocopies can still be read

easily when copied, are complete and relate to your proceeding.

What goes In a Factum?

After or at the same time as you file the Appeal Book, you will be required to file a "Factum". This is the

written legal argument filed by both the appellant and respondent, to persuade the appeal court.

A factum must be:

1. No more than 40 pages long, not Including the index

2. Bound with a cerlox (plastic coll) spine

3. Double spaced

4. In 12 point font

5. With page numbers must be at the top left of the page

6. Be organized into the following six parts:

I - Concise Overview of the Appeal II - Concise Statement of Facts Ill - list of Issues IV - Standard of Review V - Argument VI - Order or Relief Sought

7. Printed on single sided paper

B. Parts I to VI must be to the LEFT of the spine when the Factum is open, with the right side blank.

The Factum is NOT the place for you to add new grounds of appeal (not already included your Notice),

or to state new facts (not found anywhere In the Appeal Book), or to reference documents not before

the trial judge {like newspaper articles or letters between the parties never seen by the trial judge).

The Factum Is the place to make your legal argument, after outlining accurately the Important facts and

explaining just how the judge made a mistake that should be overturned on appeal. This is your chance

to give the appeal court a written document that persuades them to agree with your side in the appeal.

VI - WHAT WILL HAPPEN AT MY APPEAL HEARING?

The Appeal Hearing Is when you and the Respondent will make your verbal arguments to a minimum of

three judges of the Court of Appeal. It wiil also provide the judges with an opportunity to ask you and

the respondent questions that clarify your positions, or to challenge assertions made In the Factums.

Page 13of14

205 of 298

Page 284 of 486

The appellant speaks first, followed by the respondent. After the respondent, the appellant Is given a

brief chance to reply, but only regarding things said by the respondent that you did not or could not

cover when you first spoke. In other words, reply is not a chance to repeat what you have already said

or raise new Issues or new arguments unrelated to the respondent's oral submissions.

The Court of Appeal may decide the outcome of your case right then and there. In most cases, you will

have to wait a few days or a few weeks before you receive the written decision of the Court of Appeal.

Court of Appeal staff will then release, preferably by email, the decision and order deciding the appeal.

VII - CAN I WITHDRAW AN APPEAL?

If you decide you do not wish to pursue an appeal any longer you can file a one page Form abandoning

the appeal. Please note you can only withdraw an appeal that you have started. You may have to pay

the other parties some money as "costs" to off-set the legal expenses they have Incurred to respond.

This manual was prepared and published by the Nova Scotia Court of Appeal Liaison Committee, with

contributions from the Bar by Paula Arab, Q.C. and Peter McVey, Q.C ..

APPENDIX

FORMS OF NOTICE OF APPEAL FORMS OF NOTICE OF MOTION FOR DATE AND DIRECTIONS FORM FOR OBTAINING AUDIO DISKS FROM TRIAL COURT CERTIFICATE RESPECTING FILING OF APPEAL BOOK BLANK TEMPLATE OF A FACTUM NOTICE OF ABANDONING AN APPEAL

Page 14 of14

206 of 298

Page 285 of 486


Thursday, May 19, 2016 at 3:30 p.m.


DRAFT AGENDA

1 . Approval o f Minutes (October 29, 2015)


(a) Update, if any, regarding Sealing Orders in FOIPOP Appeals

(b) Other business arising from minutes

3. New Business

(a) Recent downward trend in appeal filings (Chief Justice MacDonald)

(b) Reducing paper (Chief Justice Macdonald)

(c) Electronic Book of Authorities (Peter Rogers or Peter Mc Vey)

(d) Issues from the Registrar (Caroline Mclnnes)

(e) Other New Business

4. Next Meeting

207 of 298

Page 286 of 486


Thursday, October 27, 2016 at 3:30 p.m.

The Law Courts - Main Conference Room, 211d Floor

DRAFT AGENDA

1. Approval of Minutes (May 19, 2016)


(a) Reducing paper (Chief Justice MacDonald/Peter McVey)

(b) Other business arising from the Minutes

3. New Business

(a) Issues from the Registrar, if any (Caroline Mcinnes)

(b) Other New Business

4. Next Meeting

208 of 298

Page 287 of 486



The Law Courts - Main Conference Room, 2"d Floor

DRAFT AGENDA

1. Approval o f Minutes (October 27, 2016)


(a) Reducing paper - update from the Court


3. New Business

(a) Court policy or approach to releasing written decisions

(b) Impact of any expansion of Small Claims Court monetary jurisdiction

(c) Issues from the Registrar (Annette Anselm for Caroline Mclnnes)


4. Next Meeting

Proposal: Thursday, October 26, 201 7 at 3:30 p.m.

209 of 298

Page 288 of 486


Wednesday, October 11 , 2017 at 3:30 p.m.

The Law Courts - Main Conference Room, 2"d Floor

DRAFT AGENDA

1. Approval of Minutes (May 18, 2017)


(a) 4(a) Decisions: The CJNS did relay policy to Mr. Mc Vey

4(b) NSSM Jurisdiction: Mr. McVey did advise Mr. Giles of outcome


3. New Business

(a) Practice Issues from the Registrar (if any)

(b) Reducing Paper - Bar Co-Chair Meeting with ED Court Services

( c) Other New Business

4. Next Meeting

Proposal : Thursday, May 1 0, 201 8 at 3:30 p.m.

210 of 298

Page 289 of 486




REVISED DRAFT AGENDA

1. Approval of Minutes (October 11, 2017)


(a) Follow up on "Reducing Paper" (CJNS MacDonald)


3. New Business

(a) Practice Issues from the Registrar (Timothy Morse)

(b) Transferring Barristers' Society Coordination to CBA(NS) (CJNS MacDonald)

(c) Filing Fresh Evidence in Ineffective Counsel Appeals (Jennifer Maclellan, Q.C.)

(c) Other New Business

4. Next Meeting

Proposed: Thursday, October 25, 201 8 at 3:30 p.m.

Enclosures: Item 3(b ): Letter from Co-Chairs of the NSSC Liaison Cttee dated April 1 8, 2018

Item 3(c): Letters from and to PPS re filing Fresh Evidence February 201 8

211 of 298

Page 290 of 486

Schedule J

212 of 298

Page 291 of 486

213 of 298

Page 292 of 486

214 of 298

Page 293 of 486

215 of 298

Page 294 of 486

216 of 298

Page 295 of 486

217 of 298

Page 296 of 486

218 of 298

Page 297 of 486

219 of 298

Page 298 of 486

220 of 298

Page 299 of 486

221 of 298

Page 300 of 486

222 of 298

Page 301 of 486

223 of 298

Page 302 of 486

224 of 298

Page 303 of 486

225 of 298

Page 304 of 486

226 of 298

Page 305 of 486

227 of 298

Page 306 of 486

228 of 298

Page 307 of 486

229 of 298

Page 308 of 486

230 of 298

Page 309 of 486

231 of 298

Page 310 of 486

232 of 298

Page 311 of 486

233 of 298

Page 312 of 486

234 of 298

Page 313 of 486

235 of 298

Page 314 of 486

236 of 298

Page 315 of 486

237 of 298

Page 316 of 486

238 of 298

Page 317 of 486

239 of 298

Page 318 of 486

240 of 298

Page 319 of 486

241 of 298

Page 320 of 486

242 of 298

Page 321 of 486

243 of 298

Page 322 of 486

244 of 298

Page 323 of 486

245 of 298

Page 324 of 486

246 of 298

Page 325 of 486

247 of 298

Page 326 of 486

248 of 298

Page 327 of 486

249 of 298

Page 328 of 486

250 of 298

Page 329 of 486

251 of 298

Page 330 of 486

252 of 298

Page 331 of 486

253 of 298

Page 332 of 486

254 of 298

Page 333 of 486

255 of 298

Page 334 of 486

256 of 298

Page 335 of 486

Schedule K

257 of 298

Page 336 of 486

258 of 298

Page 337 of 486

259 of 298

Page 338 of 486

260 of 298

Page 339 of 486

261 of 298

Page 340 of 486

From: Tilly PillayTo: Emma Goodman PinkSubject: FW: Prov. Court Meeting - April 17 @3:00Date: May 8, 2018 8:02:11 AMAttachments: May 27 to Judge Williams.pdf

#3

From: Covan, Mark [mailto:[email protected]] Sent: May 4, 2018 12:52 PMTo: Tilly Pillay <[email protected]>Subject: FW: Prov. Court Meeting - April 17 @3:00 Agenda #4.

From: Covan, Mark Sent: 2015-Apr-15 3:19 PMTo: Darren MacLeod <[email protected]>; Covan, Mark <[email protected]>; Shirley Shane <[email protected]>; Chris Manning<[email protected]>; 'Smith, Denise' <[email protected]>; 'Kelly Serbu'<[email protected]>; Douglas Lloy <[email protected]>; [email protected];'MacKay, Susan' <[email protected]>; [email protected]; Stephen Robertson<[email protected]>; 'Wright, Alonzo' <[email protected]>; [email protected];'Kelly Serbu' <[email protected]>; 'Brian Bailey' <[email protected]>Cc: Darrel Pink <[email protected]>; Shirley Shane [[email protected]] <[email protected]>Subject: Prov. Court Meeting - April 17 @3:00 Hello folks: Our next meeting in Friday @ 3:00 at the offices of the NSBS. Our agenda reflects the two items CJ Williams sought our input on:

1. Welcome;2. Roundtable – rethinking how we do business in the Provincial Court;3. Roundtable – Josh’s SOT/Night Court initiative;4. Other business.

Please come prepared to discuss a firm proposal we can put forth to CJ Williams. For my money, Isee the points we made in my letter of May 27 as still being pertinent – it is attached. I also favour asystem that sees judges doing more judging and less administrative appearances, such asarraignments; a system that sees judges involved only after intake is done and a when a matter isready for trial. Video-appearances must be used to a far greater extent (although I appreciate that Imay be a lone voice in the wilderness on this one). Separate indictable matters and prelims fromsummary conviction, and adjudicate them separately. Get rid of “courtroom ownership” – movejudges around from court to court as needed. Establish consistent practice from court to court. Be

262 of 298

Page 341 of 486

mailto:/O=NSBS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=TILLY PILLAYCA4




















pro-active in running the dockets – like Judge Digby’s assistant. Establish a rule that adjournmentswill not be granted in the last 30 days before trial barring exceptional circumstances and with leaveand a written application. This rule is in place in Newfoundland and it works. I want to hear your thoughts. We have a great deal of experience at our table. Let’s use it. Mark

263 of 298

Page 342 of 486

From: Tilly PillayTo: Emma Goodman PinkSubject: FW: AgendaDate: May 4, 2018 1:46:14 PM

Please print, Emma. Thanks!

From: Covan, Mark [mailto:[email protected]] Sent: May 4, 2018 12:52 PMTo: Tilly Pillay <[email protected]>Subject: FW: Agenda Agenda #3.

From: Covan, Mark Sent: 2015-Dec-03 4:09 PMTo: Covan, Mark <[email protected]>; '[email protected]'; '[email protected]';'[email protected]'; '[email protected]';'[email protected]'; '[email protected]';'[email protected]'; '[email protected]'; '[email protected]';'[email protected]'; '[email protected]'Cc: Darrel Pink <[email protected]>Subject: Agenda Hi folks: I don’t think the agenda was sent. Our agenda: 1. Update on current initiatives; -Josh; Brian; Mike; Mark -discussion – draft correspondence to CJ Williams (attached);2. Review of our meeting schedule; and3. Other business. Please make an effort to attend (in person or by phone), be in a position to update on your initiativesand to share your views. Attendance has been sparse over the past few meetings and it seems asthough we are losing steam. Mark

264 of 298

Page 343 of 486





XXXXX XXXX, 2016 The Honourable Chief Judge Pamela S. Williams VIA FAX: 424-0677 Halifax Provincial Court 5250 Spring Garden Road Halifax, NS B3J 1S7 Dear Chief Judge Williams:

Re: Provincial Court Liaison Committee

As you know, the Provincial Court Committee has three main tasks: to identify practice and policy issues of mutual concern and interest; to recommend means for addressing these issues; and to communicate the results of this process to the Court and to the Society for further communication to the profession or elsewhere. The Committee has discussed many reforms that we believe are necessary to not only improve access to justice, but to also see the resources of the Provincial Court used more efficiently and effectively. The Committee was unanimous in saying that the way the Court does business needs to change. We believe that change will not only increase access to justice, but will at the same time utilize the Court’s resources more efficiently.

We have previously communicated with the Court, describing reforms we see as necessary to achieve the government’s mandate of improving access to justice. We continue to believe that a multi-pronged approach is necessary to achieving the goal of improving access to justice. In our view, the following must figure prominently in any reforms: Presumptively, Prisoners Must Appear by Video-Link:

Committee members are firmly of the view that appearances by video-link must be the presumption, not the exception. Of course, we also recognize that an in-person attendance can be permitted (or required) at the discretion of the presiding judge. However, video-link appearances must be supported by allowing greater client access at the Correctional Centre. We therefore believe that it is critical that counsel be granted access to video-link technology to consult meet with clients who are housed at the Correctional Centre. This is a clear access to justice issue. We see no principled reason why Nova Scotia cannot fully embrace this technology – and many reasons why it should. Computerized Police Witness Availability:

We continue to advocate the use of computerized police witness availability. Overtime costs and police witness availability remains a significant issue for the police and the justice system. Crown counsel who appear in court often do not have current information on their witness availability.

265 of 298

Page 344 of 486

Nova Scotia needs a system that: 1. Provides the court with up-to-date witness availability information when matters are set down; and 2. Informs the witness of dates when they are required in court. This is used on other jurisdictions as follows: the Crown identifies the police witness by name and this is checked by a clerk (court staff or civilian member of the police1) against available trial times. If suitable dates are identified, the matter is docketed and a message is sent to the police officer that they will be subpoenaed for the matter on that date. We believe a similar system in Nova Scotia would reduce overtime costs for police officers and allow for more efficient docketing and hearing of court matters. If police overtime costs are as significant as we are lead to believe, it should not take long for the savings of a more efficient system of scheduling to be realized.

Centralized Docketing: Arraignment Court, Trial Court:

Right now, every criminal charge that passes through the Provincial Court is treated the same. Each takes their cue in the system and is heard in due course as time and resources permit. In our view, this is inefficient and ignores the reality that – on balance - many summary matters resolve while a great number of indictable matters proceed to at least some form of hearing.

1. Arraignment and bail court:

Arraignments, routine appearances, variations, etc should be handled in a single court, utilizing JPs to the full extent possible. Judges are not required for many routine appearances, yet those appearances consume valuable court time that could be used for more significant proceedings, like preliminary inquiries, trials and sentence hearings. Only when a matter is ready for trial does it move beyond this stage. The use of JPs should be the norm in arraignment court, freeing up judges to focus on more substantive motions and trials.

2. Trial courts scheduled via centralized docketing:

We are of the view that the Court should be structured so that docketing is done from a centralized location. Individual courts should not be in charge of docketing. By way of example, Newfoundland and Labrador has reduced wait times considerably by having trial courts and centralized docketing. These courts hear only preliminary inquiries, trials and sentence hearings and their dockets are created in response to demand. Centralized docketing strives to utilize judicial resources efficiently, moving proceedings to the location where they can be heard the soonest. It is not unusual to walk through the court in Halifax or Dartmouth at 11:00 am and find some courts empty and others overwhelmed with appearances. We know that Judge Digby and his assistant have achieved success with a form of “centralized docketing” – calling counsel in advance to determine if matters are proceeding and, where space appears, filling those gaps in the court docket. This has reduced wait times in that court considerably.

We are also of the view that trial courts should distinguish between summary and indictable matters in setting matters down. The Committee believes that preliminary inquiries and indictable trials tend to proceed more often than summary matters, and for this reason should be treated differently for docketing purposes.

1 While some courts have, in the past, utilized a Court Liaison Officer, we don’t believe a police officer would be required for checking and confirming witness availability.

266 of 298

Page 345 of 486

3. Domestic violence court:

We believe that domestic violence matters consume significant court resources while, at the same time, do not proceed to trial very often. The Committee believes that domestic violence cases should be heard in a specialized court – for example, sitting one day per week. Again, only if the matter is going to proceed to trial does it move beyond this court to trial court.

Members are also of the view that diversion should be an option for less serious domestic violence cases. They feel that there are many domestic violence cases that could be properly referred to diversion. Instead, a significant number of these cases are forced to proceed through the court system, consuming resources when diversion could be an appropriate resolution of the matter. These proceedings may ultimately resolve short of trial, or may proceed to trial; if a conviction is entered, sentences can be equivalent to – or lesser than – the adult diversion process. In either event, court resources are consumed.

4. Adjournments within 30 days of a proceeding should be exceptional

Many Canadian courts are mired in a culture of delay. Delay is seen as part of the process. This must end, but it can only end if judges get serious about delay. Only the court can control its process. For example, available trial times vary widely from court to court here in the HRM. Some of this variability is work-load related, but some of it relates to how the court is run.

As a starting point, in our view, adjournments within 30 days of a matter proceeding must be truly exceptional, supported by exceptional grounds and must be made by written application with leave of the Court.

Consistent Practice from Courtroom to Courtroom:

Members continue to complain about the variability of practice and procedure from court to court. The list of varied practices is a long one and includes how courts handle substantive legal matters – like Charter motions and pre-trial conferences – as well as administrative matters, such as when court commences, how long it sits, the filing of court forms, and so on. Some judges require counsel to file a statement of issues and witnesses for a preliminary inquiry, others do not. Some judges will vary their own bail orders (and even those of other judges), while some require an application for bail review. These are clear access to justice issues. We believe that some of these issues may be resolved through judges adhering to the Provincial Court Rules and Practice Directives. But the strength of those Rules and Directives turns on the degree to which judges will follow and enforce them. To date, the Committee members are continuing to see considerable variability in how and when judges will enforce the Rules and Practice Directives. In our view, this variability of practice contributes to confusion and delay in the Court. Conclusion:

As the Nova Scotia Barrister’s Society Provincial Court Liaison Committee, our mandate is to liaise between the Court and the members of the Bar. It is in that spirit that we bring these matters to your attention.

267 of 298

Page 346 of 486

The members of the Committee remain determined to assist the Court in any way possible to accomplish the goal of eliminating the culture of delay, improving access to justice and realizing efficiencies in the operation of the Court. Respectfully submitted,

Mark Covan Chair, Provincial Court Committee cc. Darrel Pink, NSBS Committee Members

268 of 298

Page 347 of 486

From: Derrick, AnneTo: Covan, MarkSubject: Possible Practice Direction - Application to Withdraw a Guilty PleaDate: September 6, 2016 2:21:38 PMAttachments: R._v._Buchanan,_[2016]_N.S.J._No._283.DOC

Dear Mark: I expect this finds you very busy which is not a problem as my email is not of an urgent nature. I amwriting to you to put the issue on the radar for when you next meet with the Provincial Court LiasonCommittee. You will recall that when I first wrote you about this (June 10 email) I mentioned that in anapplication before me to withdraw a guilty plea both Crown (Tanya Carter) and Defence (BrianChurch, Q.C.) observed that there is no clear procedure for these applications. This led to someuncertainty on counsel’s part about how to proceed. We sorted through that and I heard theapplication and rendered a decision. I am attaching my decision (R. v. Buchanan) as background forthe issue of developing a Practice Direction. The features of the “typical” application to withdraw a guilty plea in Provincial Court will likely trackwhat happened in R. v. Buchanan: the applicant impugns the conduct of his/her lawyer who wasacting at the time of the guilty plea. And the issues that arose or needed clarification in Buchananwere:

· The applicant has to file a Notice of Application in accordance with the Provincial CourtRules;

· The applicant has to file an Affidavit supporting his/her application to withdraw the plea;· The Affidavit has to be provided to the Crown;· The applicant is going to want to/likely will have to waive solicitor-client privilege in relation

to the impugned lawyer;· The impugned lawyer should be promptly provided with a copy of the applicant’s Affidavit;· The impugned lawyer should be afforded the opportunity to retain counsel*;· The impugned lawyer should file an Affidavit is response to the applicant’s Affidavit;· The Crown is entitled to cross-examine the Applicant on his/her Affidavit;· Whose witness is the impugned lawyer? Presumably this depends on what the lawyer says

in his/her Affidavit?· If the lawyer denies the allegations of the applicant presumably counsel for the applicant

gets to cross-examine the lawyer;· In those circumstances does the Crown directly examine the lawyer?

*Note that in Buchanan, Brian Church contacted LIANS directly. (paragraph 51) That had the benefitof a LIANS lawyer being made aware of what was happening. Your Committee may have other thoughts, suggestions or ideas about a PD for these applicationsand I will be interested to hear them. However, as I mentioned, there is no urgency in this. I am justtaking advantage of a quieter moment to get the ball rolling.

269 of 298

Page 348 of 486



Our next Provincial Court Bench Meeting is February 24, 2017. It would be great if I can circulate adraft PD in advance of that meeting (i.e., sometime in February) to get comments from other judges.

Finally, if the PCLC feels there are other PD’s that we should consider developing, please let meknow. Many thanks, Mark. When you have an opportunity to focus on this please advise if you have anyquestions. Anne

Judge Anne S. DerrickProvincial Court of Nova Scotia5250 Spring Garden RoadHalifax, Nova Scotia B3J 1E7Tel: (902) 424-3516Fax: (902) 424-0603 Notice: This communication, including any attachments, is confidential and constitutes a recordand/or note as defined in sub-section 4(2)(c),(d) of the Freedom of Information and Protection ofProperty Act, S.N.S. 1993, c. 5, s. 1 (“the Act”) and as such the Act is inapplicable to thiscorrespondence. Furthermore any document or report attached to or provided with thiscorrespondence constitutes “judicial information” and is provided on the understanding thatpossession by the recipient does not constitute custody or control for the purposes of the Act.

270 of 298

Page 349 of 486

Case Name:

R. v. Buchanan

Between Her Majesty the Queen, and

Linda Buchanan

[2016] N.S.J. No. 283

2016 NSPC 45

Docket: 2694010-2694016

Registry: Halifax

Nova Scotia Provincial Court

A.S. Derrick Prov. Ct. J.

Heard: June 17 and 30, 2016. Judgment: July 15, 2016.

(111 paras.)

Criminal law -- Procedure -- Pleas -- Setting aside guilty plea -- Application by Buchanan to set aside guilty pleas dis-missed -- Buchanan pled guilty to fraud, theft, and breach of probation -- There was no evidence that Buchanan's guilty pleas resulted in miscarriage of justice -- It was clear that in representations made on behalf of her lawyers that each of charges she faced was reviewed with her and that she provided instructions about what she was accepting responsibil-ity for -- Buchanan's actions established both actus reus and mens rea of fraud "by other means" -- There was nothing that called into question validity of Buchanan's guilty pleas -- Criminal Code, s. 380(1)(b).

Application by Buchanan to set aside guilty pleas. Buchanan pled guilty to fraud, theft, and breach of probation, which were alleged to have been committed between August 2009 and December 2011. The guilty pleas were followed by the filing of an Agreed Statement of Facts that Buchanan and the Crown had signed. After her guilty pleas, Buchanan had qualms about what she had done. She retained fresh counsel, Hutchison, and sought advice about an application to withdraw her pleas. She instructed Hutchison to accept a proposal by the Crown that she plead guilty to a single count of fraud encompassing the theft counts in the Information to which she had previously pleaded guilty. Hutchison with-drew as Buchanan's counsel due to a breakdown in the lawyer-client relationship. Buchanan retained her current lawyer, Church, and filed the current application. Buchanan submitted that her lawyer at the time, Howe, provided her with in-effective representation. She requested to have her guilty pleas set aside and a trial scheduled. The Crown submitted that the legal requirements for setting aside a guilty plea were not met.

HELD: Application dismissed. There was no evidence that Buchanan's guilty pleas resulted in a miscarriage of justice. It was clear that in the representations made on behalf of Howe and Hutchison that each of the charges Buchanan faced was reviewed with her and that she provided instructions about what she was accepting responsibility for. She admitted

271 of 298

Page 350 of 486

that she used the money she took from the complainants for her own purposes, not the purposes for which it had been intended. She may not have received the complainants' money intending to divert it to her own personal use but what she ultimately did with it amounted to fraud. Buchanan's actions established both the actus reus and mens rea of fraud "by other means". Given the finding on the miscarriage of justice, there was no need to make a finding on the ineffec-tiveness of counsel. There was nothing that called into question the validity of Buchanan's guilty pleas. There was no evidence that Buchanan was pressured into pleading guilty, or that Buchanan misunderstood the basic nature of the charges. Buchanan contacted Howe with instructions that she would plead guilty. There was ample opportunity for her to have taken a different course than she did. Statutes, Regulations and Rules Cited:

Criminal Code, s. 334(b), s. 380(1)(b), s. 733.1(1)(a)

Charges: Section 380(1)(b) x 2 -- section 334(b) x 4 -- section 733.1(1)(a) x 1, of the Criminal Code Counsel:

Tanya Carter, for the Crown.

Brian Church, Q.C., for Linda Buchanan.

Decision on Application to Withdraw Guilty Pleas

A.S. DERRICK PROV. CT. J.:--

Introduction

1 On January 28, 2014 Linda Buchanan pleaded guilty to fraud, theft and breach of probation, offences alleged to have been committed between August 20, 2009 and December 31, 2011. Her guilty pleas were followed by the filing of an Agreed Statement of Facts that Ms. Buchanan and the Crown had signed.

2 On April 15, 2016, Ms. Buchanan, through Mr. Church, gave formal notice of an application to withdraw her guilty pleas. She says her lawyer at the time, Lyle Howe, provided her with ineffective representation. She is asking to have her guilty pleas set aside and a trial scheduled.

3 Ms. Carter, who has represented the Crown throughout, opposes the application. She submits that the legal re-quirements for setting aside a guilty plea have not been satisfied in this case. Ms. Carter says the guilty pleas should stand and a date set for Ms. Buchanan's sentencing.

Events Prior to the Application to Withdraw the Guilty Pleas

4 After her guilty pleas on January 28, Ms. Buchanan had qualms about what she had done. She retained fresh counsel, Ian Hutchison, and sought advice about an application to withdraw her pleas. Ultimately, she instructed Mr. Hutchison to accept a proposal by the Crown that she plead guilty to a single count of fraud encompassing the theft counts in the Information to which she had previously pleaded guilty. Her instructions included maintaining her January 28, 2014 guilty plea to a breach of probation.

5 A sentencing on the guilty pleas did not occur. Mr. Hutchison withdrew as Ms. Buchanan's counsel due to "an irretrievable breakdown in the lawyer-client relationship" and she went on to retain her present lawyer, Mr. Church, and file this Application.

Ms. Buchanan's Application to Withdraw Her Guilty Pleas

6 Ms. Buchanan's Application to withdraw her guilty pleas is supported by her Affidavit (Exhibit 3) and a waiver of solicitor-client privilege in relation to Lyle Howe's representation of her. (Exhibit 1) Mr. Howe filed an Affidavit in response to Ms. Buchanan's. (Exhibit 4) They both testified. Theirs was the only evidence called. Defence and Crown filed briefs and case authorities. The transcripts of proceedings were filed as Exhibits (Exhibits 6 and 7) as was Ms.

272 of 298

Page 351 of 486

Buchanan's November 29, 2011 statement to police (Exhibit 2) and the Agreed Statement of Facts presented to the court at the time of Ms. Buchanan's guilty pleas on January 28, 2014. (Exhibit 5)

7 Ms. Buchanan has submitted that this application should be determined solely on the basis of what she alleges is Lyle Howe's ineffective representation of her with no consideration of Ian Hutchison's involvement and her instructions to him. The Crown emphatically disagrees and submits that the merits of Ms. Buchanan's application have to be as-sessed with regard to all the events that have occurred.

8 I will now discuss the notable events leading up to Ms. Buchanan's guilty pleas on January 28, 2014 and the rele-vant developments that followed.

The Original Fraud and Breach of Probation Charges

9 According to the Agreed Statement of Facts that accompanied her guilty pleas on January 28, 2014, Linda Bu-chanan operated a number of businesses in the Halifax area between 2009 and 2012 doing special events. She operated as Strut Modeling, Company Productions, and Buchanan and Co. and in 2009, incorporated a new company, EMPAC. She opened a Toronto Dominion bank account in May 2009 under the name EMPAC, an account that was to be used for EMPAC business purposes only. (Exhibit 5, Agreed Statement of Facts of January 28, 2014)

10 Ms. Buchanan advertised shows and recruited participants/vendors to rent booths at the shows. Each participant signed a contract in relation to their participation in the event and was required to pay for their booth. Each contract indicated that if the event was cancelled by Ms. Buchanan, she would refund the participants' money in six to eight weeks. (Exhibit 5, Agreed Statement of Facts of January 28, 2014)

11 From August 2009 to December 2011, Ms. Buchanan advertised various shows to participants/vendors and models who paid to participate. Each show was cancelled last minute. Deposits on venues, advertising and other show-related expenses were not paid. Ms. Buchanan used several different business addresses, names, phone numbers and email addresses over this period and did not update the individuals who, as prospective participants/vendors, had paid her money for the shows. (Exhibit 5, Agreed Statement of Facts of January 28, 2014)

12 Bank records for the EMPAC account obtained by the police with a production order showed a company with no money -- going into overdraft several times and with a number of NSF cheques. The Agreed Facts indicate that Ms. Buchanan used "the little bits of money coming in to pay for some rent, small personal expenses but not the business expenses she claimed." (Exhibit 5, Agreed Statement of Facts of January 28, 2014)

November 2011 to May 1, 2013

13 Linda Buchanan was originally charged in November 2011 with 14 counts of fraud alleged to have occurred between August 20, 2009 and December 31, 2011. She was also charged with 12 breaches of a probation order dated April 14, 2010.

14 The Crown proceeded by indictment. Ms. Buchanan made an election to Provincial Court and pleaded not guilty on July 18, 2012, her fourth appearance. On July 24 trial dates of April 29 to May 3, 2013 were set. On November 29, 2012 her counsel withdrew citing a breakdown in solicitor/client communication. (Exhibit 6, Transcript of Proceedings, page 16)

15 Ms. Buchanan indicated her intention to apply for representation from Nova Scotia Legal Aid. Between the next scheduled court appearance of January 22, 2013 and May 1, 2013, the processing of her legal aid application was at a standstill. Documentation required by Legal Aid, that is, Ms. Buchanan's income tax assessments, was not yet available due to her late-filing of tax returns for previous years. (Exhibit 6, Transcript of Proceedings)

Lyle Howe's Involvement as Ms. Buchanan's Lawyer - May 1, 2013 to January 28, 2014

16 On May 1, 2013, Lyle Howe appeared in court with Ms. Buchanan and indicated he was considering taking her case. A lawyer from Legal Aid was also present and advised that Ms. Buchanan's legal aid application, if assessed on the basis of the financial information received to date, would be rejected for insufficient documentation. (Exhibit 6, Transcript of Proceedings, page 58)

17 At the next appearance on June 4, 2013, Mr. Howe confirmed he had been retained and new trial dates of Janu-ary 28, 29, February 5 and 6, 2014 were set. Pre-trials were conducted with Mr. Howe on September 26, October 7, November 1, 2013 and January 2, 2014. (Exhibit 6, Transcript of Proceedings)

273 of 298

Page 352 of 486

18 On October 7 Mr. Howe said he thought there was a possibility the case would resolve but on November 1 he advised that he was no longer so optimistic this would happen. (Exhibit 6, Transcript of Proceedings, pages 91 and 98) On January 2, 2014 Mr. Howe indicated that he had reviewed a draft statement of agreed facts prepared by the Crown to dispense with having to call out-of-province witnesses at trial and did not anticipate "any major issues with it" although he needed to discuss it with Ms. Buchanan. (Exhibit 6, Transcript of Proceedings, page 115)

19 At the next pre-trial on January 10, 2014, Mr. Howe advised that Ms. Buchanan "wasn't inclined to agree" to the facts proposed by the Crown in relation to out-of-province witnesses. Mr. Howe said he and Ms. Buchanan had had discussions "about resolution" as a consequence of which he had made a proposal to the Crown. He was cautiously op-timistic that a resolution was possible. (Exhibit 6, Transcript of Proceedings, page 125)

20 Mr. Howe appeared on January 17, 2014 to advise that a resolution of the case was not likely. He explained that Ms. Buchanan "had an issue with some of the facts in...some of the statements made by some of the [Crown] witness-es." He advised that intent "remains the main issue." (Exhibit 6, Transcript of Proceedings, pages 134 - 136)

21 Mr. Howe went on to indicate that he could make certain admissions on Ms. Buchanan's behalf, and the follow-ing exchange occurred:

Mr. Howe: ...Ms. Buchanan is not going to dispute the fact that she received funds for services that were either delayed or not provided and that those funds weren't returned to...the payers.

Obviously, when I say intent is the issue, certain elements of Ms. Buchanan's business are going

to be brought to light and certain factors are going to be indicated to the Court in terms of the circumstances of the receipt of those funds and the circumstances of either the delay or the lack of providing of the services that were paid for.

The Court: So Ms. Buchanan is not here, and I presume I won't see her again until the first day of

the trial.

Mr. Howe:

Yes.

The Court: But I take it that if I put it to her that she has conceded that she received funds for ser-

vices that were delayed or not delivered and those funds were not returned to the payers, that she will acknowledge on the record...

Mr. Howe:

Yes.

The Court:

...that she is admitting those facts?

Mr. Howe: Yes, Yes definitely... (Exhibit 6, Transcript of Proceedings, page 137)

22 In addition, Mr. Howe confirmed that the admissibility of Ms. Buchanan's banking records was not in issue. (Exhibit 6, Transcript of Proceedings, page 139) He had previously advised, at the pre-trial on October 7, 2013, that Ms. Buchanan would not be contesting the voluntariness of her November 2011 statement to police. (Exhibit 6, Tran-script of Proceedings, page 89) In her police statement Ms. Buchanan admitted to facts that ultimately made their way into the January 28, 2014 Agreed Statement of Facts. (Exhibit 2, Linda Buchanan's November 29, 2011 Statement to Police and Exhibit 5, Agreed Statement of Facts)

The Guilty Pleas -- January 28, 2014

274 of 298

Page 353 of 486

23 On the morning of the first day of trial, January 28, 2014, Crown witnesses were present and the Crown was prepared to proceed. The expected trial did not get underway. Mr. Howe advised it would not be going ahead as Ms. Buchanan would be pleading guilty. He stated that:

...So what I can tell you is that I've had extensive discussions with my friend and with my client and...I'm supremely confident that we will resolve the matter without a trial. (Exhibit 6, Tran-script of Proceedings, page 142)

24 Mr. Howe said he needed "less than" five minutes to speak to Ms. Buchanan whom he had "met at the door" when he was coming into the courtroom, noting that he and Ms. Buchanan "did discuss the matter last night." (Exhibit 6, Transcript of Proceedings, page 142)

25 I wanted to ensure whatever was unfolding was not rushed and said:

...this matter was scheduled to go forward for trial, so I certainly want to be sure that if there's going to be a change of direction that Ms. Buchanan is fully committed to that and fully under-stands the consequences of changing her plea and what that means, et cetera. (Exhibit 6, Tran-script of Proceedings, page 143)

26 After a recess of 45 minutes, the Crown advised that a new, more concise Information would be sworn "rolling a bunch of charges together..." (Exhibit 6, Transcript of Proceedings, page 145) I directed that a written statement of agreed facts be prepared rather than the Crown simply reading the facts into the record. I viewed this as preferable and stated:

...my preference would be to see a written set of agreed facts that Ms. Buchanan signed...I say that, in part, because this is resolving at the very last minute...And the last time we were in court, which wasn't very long ago, there was no resolution. That was January 17th...So it's only, you know, 10 days ago there was no resolution and the issue of intent was being disputed...So I really don't want to leave any potential for loose ends. (Exhibit 6, Transcript of Proceedings, page 146)

27 I adjourned the proceedings to the afternoon, a recess of four hours, at which time the new seven-count Infor-mation was placed before the Court. The new Information charged two (2) counts of fraud (section 380(1)(b)), four (4) counts of theft under $5000 (section 334(b)), and a single count of breaching a probation order of April 14, 2010.

28 Mr. Howe indicated he had just reviewed the new Information "a moment ago" but stated:

...What I did review with my client thoroughly, though, is the facts, and she has signed them. We don't have any issues as it pertains to the Agreed Statement of Facts at this point, and Ms. Carter had made some amendments to it, as per our request, so we've worked that out...(Exhibit 6, Tran-script of Proceedings, page 148)

29 The amendments to the Agreed Facts were initialed by Ms. Buchanan, the Crown and Mr. Howe. After a further recess of 17 minutes to enable Mr. Howe to review the new Information with Ms. Buchanan, he advised that he had instructions to enter guilty pleas to one (1) count of fraud (Count 1, a rolled-up charge) and the four (4) counts of theft (Counts 3, 4, 5, and 6.) He indicated he had reviewed section 606 (1.1) of the Criminal Code with Ms. Buchanan and that she understood she was giving up her right to a trial. He said: "From what I can gather, she's doing so freely and voluntarily." He advised that Ms. Buchanan understood that the sentencing Court was not bound to follow any joint recommendation on sentence made by Crown and Defence. (Exhibit 6, Transcript of Proceedings, page 150)

30 After some further discussion and a consultation with Ms. Buchanan, Mr. Howe advised that she would also be pleading guilty to Count 7 on the new Information as well, a breach of a probation order with the condition to keep the peace and be of good behaviour, which as Mr. Howe put it, was "a tagalong in light of the pleas on the other counts." (Exhibit 6, Transcript of Proceedings, page 154)

31 I conducted the section 606 (1.1) inquiry of Ms. Buchanan directly as follows:

The Court: ...So I have before me this seven count Information, and I understand from Mr. Howe you don't require that to be read out.

275 of 298

Page 354 of 486

Ms. Buchanan:

No, that's fine.

The Court:

You've had a chance to review that?

Ms. Buchanan:

Um-hmm, that's correct.

The Court: And I understand, as well, that you're pleading guilty to the 1st, 3rd, 4th, 5th, 6th, and

7th counts on the Information?

Ms. Buchanan:

That's the Information that Lyle gave me?

The Court: Yes, correct. And you're entering those guilty pleas voluntarily?

Ms. Buchanan:

Absolutely, yes.

The Court: And you understand you're giving up your right to have a trial on any of those charg-

es?

Ms. Buchanan:

Absolutely.

The Court: And that's because you're admitting to the elements of those offences. So where it

says that you did unlawfully defraud certain named individuals and where there are allegations or where there are charges here of theft, and the breach of probation charge, you're admitting to having unlawfully defrauded, stolen, and breached your probation? That's, that's what you're ad-mitting to?

Ms. Buchanan:

I guess.

The Court:

Is that, is that clear to you?

Ms. Buchanan:

Yes, it's clear to me.

276 of 298

Page 355 of 486

The Court:

You're admitting, you're admitting to those?

Ms. Buchanan:

Yeah, okay.

The Court:

To the elements of those offences?

Ms. Buchanan:

Yeah, um-hum.

The Court: Because if you weren't, then there'd be a trial.

Ms. Buchanan:

Right.

The Court: And the Crown would be required to prove beyond a reasonable doubt the elements of

those offences.

Ms. Buchanan:

Um-hum.

The Court: But I understand you're not requiring the Crown to be put to that proof.

Ms. Buchanan:

No.

The Court:

You're admitting...

Ms. Buchanan:

Yeah.

The Court:

Is that correct?

Ms. Buchanan:

Okay. Yes.

277 of 298

Page 356 of 486

The Court: Yes. And you understand as well, that the consequence of guilty pleas are criminal convictions? Yes?

Ms. Buchanan:

Yes.

The Court:

And criminal record?

Ms. Buchanan: Yes. (Exhibit 6, Transcript of Proceedings, pages 155 - 157)

32 Ms. Buchanan also indicated that she understood the court did not have to follow a joint sentencing recommen-dation from Crown and Defence. (Exhibit 6, Transcript of Proceedings, page 157)

33 This was followed by the Crown reading the three (3) page written Statement of Agreed Facts into the record. (Exhibit 5) Ms. Buchanan then confirmed her signature on the Agreed Statement of Facts and her agreement with those facts. (Exhibit 6, Transcript of Proceedings, pages 160 - 170)

34 A pre-sentence report was ordered and a sentencing hearing scheduled for April 7, 2014. The Crown indicated there had been discussions about presenting a joint recommendation. (Exhibit 6, Transcript of Proceedings, page 174)

April 7 to October 30, 2014

35 On April 7, the Crown advised that Mr. Howe had requested an adjournment to afford additional time to prepare for the sentencing. The Crown was not opposed as there were ongoing discussions although no agreement about a pos-sible joint recommendation, and a very recent "substantial change in Ms. Buchanan's circumstances". Ms. Carter indi-cated there would be no victim impact statements. (Exhibit 6, Transcript of Proceedings, pages 178 - 179) It was agreed that on April 29 a new sentencing date would be set.

36 On April 29, Laura McCarthy, who had appeared for Mr. Howe on April 7, again appeared for him. A new sen-tencing date was set for July 11 to permit counsel to prepare written submissions and case authorities. (Exhibit 6, Tran-script of Proceedings, pages 186 - 189)

37 The matter of Ms. Buchanan's sentencing came back to court unexpectedly on July 3. (Exhibit 6, Transcript of Proceedings, pages 190 - 202) Mr. Howe had been suspended by the Nova Scotia Barristers' Society following his con-viction for sexual assault. Ms. McCarthy was assuming carriage of Ms. Buchanan's file. She required an adjournment. (I will note here that Mr. Howe's conviction was overturned by the Court of Appeal and a new trial ordered that did not proceed. He was reinstated by the Barristers' Society in September 2015 but did not have any further involvement rep-resenting Ms. Buchanan.)

38 Ms. McCarthy advised on July 3 that she was waiting for Ms. Buchanan's file to be returned from the receiver handling Mr. Howe's practice. (Exhibit 6, Transcript of Proceedings, page 197) A return date of August 14 was set. On August 14 Ms. McCarthy confirmed she had received Ms. Buchanan's file from the receiver and was in a position to re-schedule the sentencing. (Exhibit 6, Transcript of Proceedings, page 203) October 30 was set and an update of Ms. Buchanan's pre-sentence report was ordered. The Crown indicated there might be a joint recommendation. (Exhibit 6, Transcript of Proceedings, page 207)

39 Ms. Buchanan's pre-sentence report sent the proceedings once again off the rails. As I previously noted, she in-dicated in it that she was "troubled by her decision" to enter guilty pleas and was "looking to make an application to change her plea." (Exhibit 6, Transcript of Proceedings, page 209) In light of this, Ms. McCarthy withdrew as Ms. Bu-chanan's counsel and Ms. Buchanan advised she was applying to Legal Aid for representation. Ms. Carter indicated the Crown would be opposing Ms. Buchanan's application to withdraw her guilty plea and expected that Mr. Howe would have to testify. (Exhibit 6, Transcript of Proceedings, pages 211 - 212)

November 25, 2014 to September 24, 2015 -- Ian Hutchison's Representation of Ms. Buchanan

278 of 298

Page 357 of 486

40 On the next scheduled date, November 25, 2014, Ian Hutchison appeared and said he was considering accepting a Legal Aid certificate to represent Ms. Buchanan but required time to speak to Legal Aid about the terms of the certifi-cate. (Exhibit 6, Transcript of Proceedings, page 223) At the return date of December 19 Mr. Hutchison confirmed he was retained on certificate. (Exhibit 6, Transcript of Proceedings, page 228) His brief was in relation to the six offences to which Ms. Buchanan had pleaded guilty on January 28, 2014 -- a fraud charge, four theft charges and a breach of probation.

41 Time had to be allowed for Mr. Hutchison to have transcripts prepared and review them and the file. At court appearances between February 20 to June 2, Mr. Hutchison advised of unforeseen delays as he sought approval from Legal Aid for the cost of obtaining the transcripts. (Exhibit 7, Transcript of Proceedings, pages 3 - 32) On June 2 he indicated that he had been provided with a series of emails Ms. Buchanan had sent Mr. Howe "setting out her thoughts in relation to her case." (Exhibit 7, Transcript of Proceedings, page 35) It was Ms. Carter's position that Mr. Hutchison should be afforded sufficient time to review everything thoroughly and provide a proper opinion to Ms. Buchanan as to her options. (Exhibit 7, Transcript of Proceedings, page 39)

42 On June 26, 2015 Mr. Hutchison advised that he had obtained a copy of the transcripts for all of the proceedings "to date." He indicated he had gone through the disclosure and the transcripts at an in-person meeting with Ms. Bu-chanan. According to Mr. Hutchison,

...It became apparent to me that, during the course of our meeting, that Ms. Buchanan had a mis-apprehension in terms of the meaning of fraud under section 380 of the Criminal Code and I re-viewed with her the decision from the Supreme Court of Canada of The Crown v. Zlatic, [1993] 2 S.C.R. 29 ...It's a 1993 decision which explains the meaning of fraud by other means under sec-tion 380 of the Criminal Code and how that decision interacts with or how that decision applies in her case given her statements to the police. Mrs. Buchanan has provided me with instructions which she confirmed again yesterday that she will maintain her guilty plea to Count one which is the offence under section 380 (1)(b) of the Criminal Code. (Exhibit 7, Transcript of Proceedings, pages 49 - 40)

43 Mr. Hutchison went on to say that based on Ms. Buchanan's November 2011 statement to police and the Zlatic decision, "the Crown can clearly make out a case under [section] 380 of the Criminal Code and Ms. Buchanan accepts that's the case...we're very clear in relation to that." (Exhibit 7, Transcript of Proceedings, page 51) He confirmed Ms. Buchanan was maintaining her guilty pleas to the fraud charge (Count 1) and to the breach of probation charge (Count 7). (Exhibit 7, Transcript of Proceedings, pages 51 and 54)

44 Mr. Hutchison advised that he required a little further time to consider what Ms. Buchanan had told him at their meeting and to review "certain documents" provided by Ms. Buchanan in relation to the theft charges, Counts 3, 4, 5, and 6 in the Information. Mr. Hutchison explained:

...The law in relation to this case is perhaps a little more complicated than your average fraud case and has required a little bit of thought and time on my part and I just want to clarify my thought process before I finalize my advice in respect of those... counts. (Exhibit 7, Transcript of Proceedings, pages 52 - 44)

45 A further date was set of July 10 for Mr. Hutchison to return with Ms. Buchanan's instructions concerning whether she would be proceeding with an application to withdraw her January 28, 2014 guilty pleas to the theft counts or not. Mr. Hutchison expressed optimism that if there was to be a sentencing on all charges a joint recommendation would be presented. (Exhibit 7, Transcript of Proceedings, page 57)

46 For various unavoidable reasons, the matter of Ms. Buchanan's instructions could not be addressed until August 14. At that appearance, Mr. Hutchison advised that Ms. Buchanan was maintaining her instructions that she wanted to proceed with an application to withdraw her guilty pleas to the theft charges, Counts 3, 4, 5 and 6. This had been com-municated to Ms. Carter which had led to a proposal that Mr. Hutchison said, "may resolve this matter without the need to pursue that application." However Mr. Hutchison needed time to discuss Ms. Carter's proposal with Ms. Buchanan. (Exhibit 7, Transcript of Proceedings, page 66) He subsequently requested for Ms. Buchanan clarification from the Crown of two issues. (Exhibit 7, Transcript of Proceedings for August 27, 2015, page 80)

47 On September 8, 2015, Mr. Hutchison advised that Ms. Carter had offered to accept a guilty plea to one count of fraud that would encompass the original rolled-up fraud charge (Count 1) and the four theft counts (Counts 3, 4, 5, and

279 of 298

Page 358 of 486

6) to which Ms. Buchanan had pleaded guilty on January 28, 2014. (Exhibit 7, Transcript of Proceedings, pages 85 - 86) As Mr. Hutchison put it: "...in effect, it will reflect the guilty pleas previously entered to the dishonesty offences." (Exhibit 7, Transcript of Proceedings, page 88) Ms. Buchanan was maintaining her guilty plea to the breach of proba-tion charge. Mr. Hutchison confirmed that:

I have instructions from Ms. Buchanan to indicate that the resolution is acceptable to her and that she will enter a guilty plea to one count of fraud encompassing all the counts that I have just read into the record and maintain her guilty plea to the breach of probation.

...

...given the nature of Ms. Buchanan's statement to the police and her admissions during the

course of that statement, it seems to both Ms. Carter and I that Ms. Buchanan [has] clearly admit-ted the offence of fraud and in order to resolve the matter, Ms. Carter has suggested a guilty plea to one count of fraud in excess of $5000 because that will reflect the total sum of money that's owed to all the complainants or was taken from the complainants in this matter. (Exhibit 7, Tran-script of Proceedings, pages 88 - 89)

48 I confirmed with Mr. Hutchison that Ms. Buchanan had instructed him that she would be pleading guilty to, by deceit, falsehood or other fraudulent means, having unlawfully defrauded all the named individuals - the complainants identified in the Counts 1, 3, 4, 5 and 6 in the Information -- of a total value exceeding $5000 contrary to section 380(1)(a) of the Criminal Code. Mr. Hutchison advised that he and Ms. Carter were working on the terms for a joint recommendation for a conditional sentence and a lengthy period of probation and restitution. (Exhibit 7, Transcript of Proceedings, pages 91 - 93)

49 Although at the conclusion of proceedings on September 8, 2015 it was anticipated that Ms. Buchanan's sen-tencing would proceed on October 8, this was not to be. On September 24, Mr. Hutchison appeared and withdrew as Ms. Buchanan's counsel for "ethical reasons." He advised there had been an "irretrievable breakdown in the law-yer/client relationship." (Exhibit 7, Transcript of Proceedings, pages 97 and 98) Brad Sarson, a managing lawyer for Nova Scotia Legal Aid, was also in attendance to advise that Legal Aid was prepared to issue one more certificate to Ms. Buchanan for counsel to represent her "with respect to her outstanding matters." (Exhibit 7, Transcript of Proceed-ings, pages 99 - 100)

October 8, 2015 to the present - Brian Church's Representation of Ms. Buchanan

50 Since October 8, 2015, Mr. Church has been representing Ms. Buchanan on a certificate from Nova Scotia Legal Aid. Ms. Buchanan's interest in bringing an application to withdraw her guilty pleas has been a consistent theme throughout Mr. Church's involvement. In November Mr. Church indicated that he expected Lyle Howe would be a wit-ness. By email on December 8, Mr. Church advised that Mr. Howe would be available in June 2016 and on December 15, Mr. Church and Ms. Carter agreed that June 10 should be held for the application.

51 Mr. Church's formal written notice on Ms. Buchanan's behalf was provided on April 15. The notice indicated that Ms. Buchanan would be making an application to withdraw her guilty plea "based on the ineffective assistance of Lyle Howe..." Ms. Buchanan's Affidavit and a brief were filed on June 1 as was Ms. Buchanan's signed waiver of solic-itor-client privilege. In light of Ms. Buchanan's allegations against Mr. Howe, Mr. Church contacted Stacey Gerrard of Lawyers' Insurance Association of Nova Scotia (LIANS).

52 On June 9, I was informed by emails from Mr. Church, Ms. Carter and Ms. Gerrard that Mr. Howe was seeking an adjournment of his anticipated evidence on June 10 in order to prepare. An email sent by Ms. Gerard to Ms. Carter and Mr. Church indicated:

I have had another opportunity to speak with Mr. Howe and he is currently retrieving his file from storage and information from his computer software system. Unfortunately this means he has not had an opportunity to conduct a fulsome review of his file in preparation for tomorrow's application.

53 Although both Ms. Carter and Mr. Church had been expecting to proceed with Ms. Buchanan's application on June 10, they viewed having Mr. Howe's Affidavit in response to Ms. Buchanan's as important. The hearing of the evi-dence scheduled for June 10 -- the evidence of Ms. Buchanan and Mr. Howe -- was therefore adjourned to the afternoon

280 of 298

Page 359 of 486

of June 17 when Mr. Howe indicated he was available. It was agreed that Ms. Buchanan would testify that morning with Ms. Gerrard attending to take notes so she could brief Mr. Howe in advance of his testimony in the afternoon. (Mr. Howe had advised he was not available on the morning of June 17 but was available in the afternoon at 1:30 p.m.)

Linda Buchanan's Evidence

54 Ms. Buchanan indicated in her Affidavit (Exhibit 3) that Mr. Howe had been recommended to her. She paid him a $1000 retainer. She says Mr. Howe initially advised her,

...we could win this case. He advised me that he had taken on a number of high profile cases and represented to me that they had always worked out successfully. (Exhibit 3, Affidavit of Linda Buchanan sworn June 1, 2015, paragraph 5)

55 Ms. Buchanan says in her Affidavit that she consistently told Mr. Howe she did not want to plead guilty and "wanted to go to trial to clear my name." (Exhibit 3, Affidavit of Linda Buchanan, paragraph 5)

56 Ms. Buchanan has acknowledged in her Affidavit that Lyle Howe did the following in relation to her case:

* Had a number of meetings and telephone conversations with her;

* Discussed some of the disclosure;

* Reviewed her November 2011 statement to police with her;

* Explained what fraud was;

* Discussed resolution of the case with the Crown;

* Reviewed the career profile Ms. Buchanan provided to him to demonstrate that she was an accomplished professional who would not "deliberately commit fraud and so destroy everything [she] had worked for."

* Promised to prepare her for testifying in her own defence at trial;

* Indicated he was prepared to take the case to trial;

* Reviewed "in general terms" the provisions of section 606(1.1) of the Criminal Code be-

fore she entered her pleas on January 28, 2014;

* Acted on her instructions that she would plead guilty on January 28, 2014 "provided the facts were accurate." (Exhibit 3, Affidavit of Linda Buchanan)

57 The central complaint expressed by Ms. Buchanan about Mr. Howe's representation of her is that he never pre-pared her for the trial she wanted to have. Ms. Buchanan testified that although preparation was promised by Mr. Howe, it never came to fruition. There was never any discussion about preparing her defence nor did they discuss the individu-al charges. Ms. Buchanan claims that Mr. Howe told her he didn't put a lot of work into "building a defence" until he knew the Crown was going through with the case.

58 Ms. Buchanan disagreed with Mr. Howe's description, contained in his Affidavit, of his conduct of her case:

During my representation of Ms. Buchanan, we discussed and reviewed the charges against her at length. I communicated with her in a timely and effective manner and addressed concerns as they were raised by her. She was fully informed throughout the entire process. I exercised my profes-sional judgment when advising her of her options so she entered a voluntary, unequivocal, and informed pleas to the charges against her. (Exhibit 4, Affidavit of Lyle Howe, affirmed June 15, 2016, paragraph 21)

281 of 298

Page 360 of 486

59 Ms. Buchanan had moved to Cape Breton in the spring of 2013 which made it difficult to have in-person meet-ings with Mr. Howe. Even he had acknowledged that in-person meetings were a challenge to arrange. (Exhibit 6, Tran-script of Proceedings for September 26, 2013, page 83)

60 Ms. Buchanan states in her Affidavit that she came to Halifax in January 2014 to meet with Mr. Howe several weeks prior to the scheduled start date for her trial but he only managed to see her on the Saturday she was leaving to go home. Ms. Buchanan told Ms. Carter on cross-examination that although she delivered information for her case to Mr. Howe that day on a flash drive, there was never any "formal conversation" with him about it. She testified: "I feel I should have been sitting down with Lyle Howe to prepare for trial."

61 Ms. Buchanan says Mr. Howe did not communicate with her following that brief meeting even though the start of the trial was looming. She describes in her Affidavit how this led to her pleading guilty on January 28:

I felt at a loss to understand why Mr. Howe would not call and communicate with me. There was never any calls about how much money it would cost for that trial. I felt abandoned by Mr. Howe and felt that I was being pressured to change my "not guilty plea" to one of guilt. I did not know how much it was to cost and how long the trial would take. I felt hopeless about my situation and thought that a change of plea was the only answer. There was (sic) no calls to me up until 4 p.m. the Friday before the trial was to start. I called his office but could not get hold of him. I spoke with Mr. Howe's office assistant Tara who said she would get ahold of Mr. Howe immediately. When Mr. Howe returned my call I told him we would plead guilty but we had to meet. (Exhibit 5, Affidavit of Linda Buchanan, paragraph 14)

62 Ms. Buchanan testified that she felt "pressured into making a guilty plea." She says she did not know how the trial would unfold or who the witnesses would be. She says she did not want to plead guilty on January 28 and felt "forced to do it." According to Ms. Buchanan, it was "the most stressful decision I have ever made in my life."

63 Ms. Buchanan's Affidavit contains her version of what transpired on January 28 when the Agreed Statement of Facts were negotiated and she entered her guilty pleas. She acknowledges that she read the Agreed Statement of Facts and signed it. She acknowledges responding to the section 606 (1.1) inquiry I made of her. She states:

I knew I was waiving my rights, however...I felt that if I had stepped beyond these agreed State-ment of Facts with the lawyers, that Judge Derrick could have said we are going to have a trial which I wanted but which we were not prepared for. (Exhibit 5, Affidavit of Linda Buchanan, paragraph 17)

64 Ms. Buchanan has not identified anything in the Agreed Statement of Facts as inaccurate. She says the Facts are not the whole picture: that there was more information about each client and what was happening "when it was starting to fall apart". She testified that she read the facts over, she was not forced to sign the Agreed Statement and she heard Ms. Carter read it into the record. She says of the Facts she accepted "it doesn't mean that I intended to commit fraud with them," meaning the complainants.

Lyle Howe's Evidence -- The Absence of Any File Documentation

65 Mr. Howe prepared his Affidavit and testified without the benefit of his file. As I noted earlier, when on his be-half Ms. Gerrard sought the adjournment of his testimony from its long-scheduled date of June 10, she advised by email of June 9 that she had had "another opportunity to speak with Mr. Howe and he is currently retrieving his file from storage and information from his computer software system." To give Mr. Howe the opportunity to locate his file and prepare an Affidavit in response to Ms. Buchanan's, the proceedings for June 10 were adjourned to June 17.

66 Mr. Howe's Affidavit of June 15 indicated the following about his file:

Since my time representing Ms. Buchanan, I was suspended for 15 months and returned to my practice in September 2015 during which time I was not permitted to have possession of my cli-ent files, including Ms. Buchanan's. As a result, I have not been able to locate and review Ms. Buchanan's file in preparation for this application. (Exhibit 4, Affidavit of Lyle Howe, paragraphs 5 and 6)

67 I was somewhat mystified by this statement in light of what Ms. McCarthy, who is Mr. Howe's wife and prac-tices with him, advised me while she had carriage of Ms. Buchanan's case in the wake of Mr. Howe's suspension by the

282 of 298

Page 361 of 486

Barristers' Society. In July 2014 Ms. McCarthy was waiting for Ms. Buchanan's file to be returned by the receiver. (Ex-hibit 6, Transcript of Proceedings for July 3, 2014, page 197) On August 14, 2014 she told me that she had received it. (Exhibit 6, Transcript of Proceedings, page 203) I further note that Ms. Buchanan's subsequent counsel, Ian Hutchison, advised me on February 20, 2015 that he had obtained "a copy" of Ms. Buchanan's file "from her previous counsel" which would have been Ms. McCarthy. (Exhibit 7, Transcript of Proceedings, page 3)

68 On June 17 when he testified, Mr. Howe said he had been unable to locate Ms. Buchanan's file. He said he was unsure if it had come back from the receiver and indicated that he had not really been monitoring what files had been returned or where they were stored.

69 As I have noted, the transcripts of the court appearances in this case confirm that Ms. Buchanan's file was re-turned from the receiver to Mr. Howe's law office. And Mr. Howe's evidence on June 17 clearly indicates that he did not make a diligent effort to find the file as I would have expected him to for such a hearing as this. He testified as follows in response to my questions about his efforts:

And I should tell you this, like, if I was -- if I worked harder to look for her file I might be able to find it, to be honest, but I had my staff sort of looking for it and me and Ms. McCarthy did a cur-sory look through the office, but we didn't go through each and every box. We didn't look at all the correspondence from the Receiver either. So if we would, you know -- if I put all of my effort into retrieving her file, likely I could find it -- so, when I said that I couldn't find it, I mean, that's my caveat, that I didn't sort of overturn every box in my office looking for it.

70 Mr. Howe confirmed he reviewed no file documentation in preparation for these proceedings. He made no men-tion of trying to locate information from his "computer software system" which his counsel, Ms. Gerrard, had under-stood he would be doing. It is difficult for me to understand why Mr. Howe did not make a rigorous effort to find Ms. Buchanan's file and any related documentation in circumstances where his professionalism and competence was under attack and the court was being asked to set aside his former client's guilty pleas.

Lyle Howe's Evidence on the Application

71 The evidence establishes that Ms. Buchanan paid Mr. Howe a retainer of $1000 and there is no evidence of ad-ditional payment being requested. In providing his testimony about the work he did on Ms. Buchanan's behalf, Mr. Howe did not produce or refer to any statement of account that should have itemized the services rendered for the $1000.

72 Mr. Howe confirmed on cross-examination that although when he was suspended his diaries and calendars were sent to the receiver, he retained copies of them. He says he doesn't think he looked at his calendar for dates relevant to working on Ms. Buchanan's case.

73 Mr. Howe's evidence about his representation of Ms. Buchanan in 2013 and January 2014 was based exclusively on his recollection. At the time he was representing Ms. Buchanan, Mr. Howe says he had "hundreds" of files.

74 It is Mr. Howe's evidence that he "felt well prepared" for Ms. Buchanan's trial. He had received the disclosure well in advance. Contrary to Ms. Buchanan's description of his services, Mr. Howe says they had "some pretty long meetings" of at least an hour and a half to two hours in length. He testified that he reviewed with Ms. Buchanan the dis-closure, including the bank records, and discussed it and her defence and prepared for trial. He does not believe she sent him anything that would have "refuted" the Crown's case.

75 Mr. Howe testified that he told Ms. Buchanan he would go through with a trial if that is what she wanted, and advised her about the difficulties they would face. He says he left it up to Ms. Buchanan to decide. He viewed Ms. Bu-chanan as "very smart" and did not have any concerns that she did not understand his explanation of what constitutes fraud. It was Mr. Howe's evidence that he,

...would have talked to her extensively about her mind state at the time, her intentions at the time, if there was recklessness on her part, just to try to determine what I had to do to prepare to poten-tially call her to the stand or refute the Crown's evidence.

76 It was Mr. Howe's evidence that discussions about a guilty plea took place with Ms. Buchanan "long before the trial date." He says she had wanted to explain herself and "have her say" about "where her mind was" at the time. He

283 of 298

Page 362 of 486

says he thinks that was "part of her hesitation about the plea." He testified to his impression that pleading guilty was not the issue for her, "it was more that she wanted an opportunity to speak to this."

77 Mr. Howe says "definitely" he was preparing for trial right up to the trial date and didn't stop preparing. He stat-ed: "I am going to come prepared for a trial even if a client tells me they might change their plea." Mr. Howe says the Friday phone call by Ms. Buchanan could have happened although he does not really remember it but that he was pre-pared for trial. Mr. Howe testified: "I run trials to a fault. I wouldn't push her to plead guilty."

78 Mr. Howe rejects Ms. Buchanan's allegations that he provided ineffective and inadequate representation to her. He says in response:

...I fought vigorously for Ms. Buchanan. I worked extremely hard on her file. I met with her. I made myself available any time that she called. I felt prepared on the day of trial. In retrospect, I know I could have proceeded to trial and I would have told her that. At no point did she ever ex-press to me that she was concerned about my preparation. At no point did she ever express any concerns about my ability to run a trial...There was never a concern about whether I was ready. I was absolutely ready.

79 Mr. Howe recalls reviewing the Agreed Statement of Facts with Ms. Buchanan on January 28, 2014. He says they may have made some amendments. (Indeed, as the transcript for January 28 indicates, Mr. Howe advised that Ms. Carter had made some amendments to the Agreed Statement of Facts "as per our request, so we've worked that out.") (Exhibit 6, Transcript of Proceedings for January 28, 2014, page 148)

80 Mr. Howe says that Ms. Buchanan was coherent and emotionally stable on January 28 and never expressed any concerns to him about his competence. He says he would express his concern to the court if he felt a client was not committed to a guilty plea. He testified that Ms. Buchanan would have understood the benefits of entering guilty pleas -- the reduction in the number of counts and the mitigating value at sentencing of having pleaded guilty. Mr. Howe was anticipating the Crown would be prepared to recommend a conditional sentence if Ms. Buchanan accepted responsibil-ity. He says he had told Ms. Buchanan that if convicted there was a possibility that she would receive a jail sentence. Mr. Howe testified that he believes he was aware at the time that Ms. Buchanan has a prior criminal record for fraud.

81 Mr. Howe testified that Ms. Buchanan's decision to plead guilty "definitely wasn't from lack of preparation on my part. I was prepared and ready to do whatever had to be done with this trial."

82 Although, according to Mr. Howe's Affidavit, Ms. Buchanan told him she used the money from her clients to pay her business-related expenses and not for her personal use (Exhibit 4, Affidavit of Lyle Howe, paragraph 8) this is not what she said in her November 2011 police statement or when responding to Ms. Carter's cross-examination. In responding to Ms. Carter's questions about the money she received from the complainants and what use she made of it, Ms. Buchanan acknowledged that it may have been applied to purchasing groceries, "Yes, I had to feed myself", and paying her power bill and rent. Alluding to the collapse of her marriage and its effects on her business, Ms. Buchanan said: "Nobody else was going to help me." It was her evidence that: "The money was keeping me afloat while I tried to keep the business going. I needed to eat." Ms. Buchanan testified that she did not want to walk away from her business and chose not to declare bankruptcy despite her dire financial circumstances.

Applying the Law to the Facts of this Case

83 Ms. Buchanan's application rests exclusively on her claim that Mr. Howe provided her with such poor represen-tation that, with her trial looming, she felt she had no alternative to pleading guilty. She says that she stayed the course of pleading guilty and agreeing to the Statement of Facts because she feared if she didn't the trial she had not been properly prepared for by Mr. Howe would proceed. She also says a psychiatrist subsequently advised her that at the time she was "in a disassociated state of mind as I was in an extreme state of stress." (Exhibit 5, Affidavit of Linda Buchanan, paragraph 17) There is however no evidence of this beyond Ms. Buchanan's statement which is inadmissible hearsay.

84 The law is clear that where incompetence of counsel has been raised in relation to a conviction, such allegations are only to be examined by the court where there is evidence of a miscarriage of justice. Otherwise, "in the absence of a miscarriage of justice, the question of the competence of counsel is usually a matter of professional ethics..." (R. v. B.(G.D.), [2000] S.C.J. No. 22, paragraph 5)

85 This principle is echoed in our Court of Appeal's decision in R. v. Messervey, [2010] N.S.J. No. 341:

284 of 298

Page 363 of 486

21 The principles are uncontroversial. For a claim of ineffectiveness of counsel to succeed, it must be established that trial counsel's acts or omissions constituted incompetence, and a miscar-riage of justice resulted. Incompetence is to be determined by application of a reasonableness standard. There is a strong presumption that counsel's conduct fell within the wide range of rea-sonable professional assistance. The conduct of counsel is not to be assessed with the benefit of hindsight. If no prejudice can be demonstrated, it is appropriate to dispose of the claim on that basis and leave the issue of counsel's conduct or performance to the profession's self-governing body. (See R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520 at paras. 26-29.)

86 This principle applies to Ms. Buchanan's application. It means that if she has failed to establish that her guilty pleas led to a miscarriage of justice any complaint she has with the representation provided to her by Mr. Howe is a matter for the Nova Scotia Barristers' Society which has a mandate to regulate the conduct of its members.

87 Another issue to be addressed is whether Ms. Buchanan's application can be assessed by exclusively focusing on the guilty pleas entered by her when Mr. Howe was her lawyer. She says this singular focus is appropriate and I should not concern myself with what happened when Mr. Hutchison assumed carriage of her case.

88 Ms. Buchanan did not file a waiver of solicitor-client privilege in relation to Ian Hutchison's representation of her. She makes no allegations of ineffective representation against Mr. Hutchison. In her Affidavit she acknowledges she met with Mr. Hutchison and states that "after discussions with him I confirmed my plea of guilt." She then says the following: "...I submit that this would not have been necessary if Mr. Howe had not been ill prepared and would have defended me as he represented to me that he would." (Exhibit 3, Affidavit of Linda Buchanan, paragraph 18)

89 I will be addressing both the miscarriage of justice/Howe-incompetence issue and the Hutchison-involvement issue in the discussion that follows.

The Relevance of Ms. Buchanan Subsequently Confirming her Guilty Pleas While Represented by Ian Hutchison

90 As observed in Messervey,

56 A guilty plea in open court is a formal admission of all of the essential elements of the charg-es. There are significant consequences that flow from such a plea. The accused has given up her right to fair trial conducted before an impartial and independent tribunal. She is no longer pre-sumed to be innocent. There is consequently no longer a burden on the Crown to prove any as-pect of the offences, save aggravating facts disputed by the accused at the time of sentence.

91 Ms. Buchanan made formal admissions with respect to the essential elements of fraud twice, when Mr. Howe was representing her on January 28, 2014 and again when Mr. Hutchison was representing her on June 26 and Septem-ber 8, 2015.

92 What happened when Ms. Buchanan was represented by Mr. Hutchison cannot simply be ignored. (R. v. Cler-mont, [1996] N.S.J. No. 170 (C.A.)) Mr. Hutchison was advising her about an application to withdraw her guilty pleas. He discussed the elements of the offence of fraud with her and, on her instructions, explained in court on June 26, 2015 that based on Ms. Buchanan's November 2011 statement to police and the Zlatic decision, "the Crown can clearly make out a case under [section] 380 of the Criminal Code and Ms. Buchanan accepts that's the case...we're very clear in rela-tion to that." (Exhibit 7, Transcript of Proceedings, page 51) Subsequently, on September 8, 2015, Mr. Hutchison indi-cated that he had instructions from Ms. Buchanan that she would enter a guilty plea encompassing the fraud and theft charges she had pleaded guilty to on January 28, 2014 and maintain her guilty plea to the breach of probation. (Exhibit 7, Transcript of Proceedings, pages 85 - 86) As Mr. Hutchison correctly stated, the "rolled-up" fraud charge reflected "the guilty pleas previously entered to the dishonesty offences." (Exhibit 7, Transcript of Proceedings, page 88)

93 During the tenure of Mr. Hutchison's representation of her Ms. Buchanan had a second opportunity to secure the trial she says Mr. Howe's ineffective representation denied her. She could have chosen to pursue her application to withdraw her January 28, 2014 guilty pleas on the basis of Mr. Howe's conduct of her case. Instead she chose to re-commit to her guilt. She does not complain about Mr. Hutchison's representation and she does not say that he acted without her instructions on June 26 and September 8, 2015. What she does say, that she wouldn't have needed Mr. Hutchison if Mr. Howe had made it possible for her to go to trial, does not change the fact that, having decided she wanted to re-consider her January 28, 2014 guilty pleas, she chose instead to confirm them.

285 of 298

Page 364 of 486

94 This might not be fatal in a case where the evidence indicated a miscarriage of justice that began with one law-yer and ran through a second lawyer's involvement. But it is fatal to Ms. Buchanan's application. She has failed to show any miscarriage of justice as a result of her guilty pleas. Her November 2011 police statement, the January 28, 2014 Agreed Statement of Facts which Ms. Buchanan negotiated through Mr. Howe, read and signed, and her responses to Ms. Carter's cross-examination about her personal use of the money she had received from the complainants all support her admission of guilt for fraud.

No Miscarriage of Justice -- The Actus Reus and Mens Rea of Fraud "By Other Means"

95 It is apparent in the representations made on Ms. Buchanan's behalf on January 28, 2014 by Mr. Howe and then on September 8, 2015 by Mr. Hutchison that each of the charges she faced was reviewed with her and that she provided instructions about what she was accepting responsibility for. She has admitted that she used the money she took from the complainants for her own purposes, not the purposes for which it had been intended. She may not have received the complainants' money intending to divert it to her own personal use but what she ultimately did with it amounted to fraud.

96 The Supreme Court of Canada in R. v. Zlatic, sets out the actus reus and mens rea for fraud. The actus reus is established by proof of: the prohibited act, which can be an act of deceit or a falsehood or some other fraudulent means and deprivation caused by the prohibited act, which may consist in actual loss or the placing of the victim's pecuniary interests at risk. Mens rea is established by proof of: subjective knowledge of the prohibited act and subjective knowledge that the prohibited act could have as a consequence the deprivation of another (which deprivation may con-sist in knowledge that the victim's pecuniary interests are put at risk). (Zlatic, paragraph 26) As the Court in Zlatic not-ed:

27 Where the conduct and knowledge required by these definitions are established, the accused is guilty whether he actually intended the prohibited consequence or was reckless as to whether it would occur.

97 Ms. Buchanan's actions establish the actus reus of fraud "by other means." Zlatic described fraud "by other means" as including "unauthorized diversion of funds" and "unauthorized arrogation of funds or property." (paragraph 31) Ms. Buchanan took money from the complainants which was to have been used for the shows she was promoting that the complainants wanted to participate in. The complainants did not authorize Ms. Buchanan to use their money to pay her rent or buy her food and other personal necessities. They did not authorize Ms. Buchanan to use the funds to look after her personal obligations and needs when she found herself, as she did, in a financial crisis. What Ms. Bu-chanan did by using the complainants' money for purposes other than what it was provided to her for was objectively dishonest. Instead of giving the money back to the people it belonged to, Ms. Buchanan put it to use personally. As held by the Supreme Court of Canada in Zlatic:

The dishonesty of "other fraudulent means" has, at its heart, the wrongful use of something in which another person has an interest, in such a manner that this other's interest is extinguished or put at risk. A use is "wrongful" in this context if it constitutes conduct which reasonable decent persons would consider dishonest and unscrupulous. (paragraph 32)

98 The Supreme Court of Canada in Zlatic talked about "the critical question" in examining a case for evidence of fraud by other fraudulent means. Zlatic used the facts recited by the Manitoba Court of Appeal in R. v. Geddes, [1979] M.J. No. 125 as an instructive example of the relevant principles:

...a motorcycle dealer accepted money from a purchaser as advance payment on a particular type of motorcycle. After certain perfunctory efforts to obtain the desired motorcycle, the dealer de-posited the money into his bank account, which was at the time overdrawn. The dealer immedi-ately wrote cheques on this account to service his personal debts. The accused argued that he ful-ly intended to carry through his undertaking to get the motorcycle, and failed only in because he was negligent in the operation of his business, in particular, in his expectation that he would shortly get a loan which would ultimately permit him to make good on his undertaking. The Manitoba Court of Appeal rejected this defence, emphasizing that there was nothing negligent or inadvertent in the dealer's use of the purchaser's money to satisfy his personal obligations. (Zlatic, paragraph 34)

286 of 298

Page 365 of 486

99 There was nothing negligent or inadvertent in Ms. Buchanan's use of the complainants' money to satisfy her personal obligations and needs. As she said to Ms. Carter on June 17: "The money was keeping me afloat while I tried to keep the business going. I needed to eat." She had no right to use the money to keep herself afloat where it had been paid to her for specific purposes unrelated to her personal financial situation. What the Supreme Court of Canada said about Mr. Zlatic equally applies to Ms. Buchanan:

[He] did not...have an unrestricted right to use these funds as he pleased. In accepting these goods with no concern for payment and in diverting the funds to a non-business...enterprise, he put these funds to a wrongful use...The wrongful use of money in which others have a pecuniary in-terest for purposes that have nothing to do with business, may however, in appropriate circum-stances, constitute fraud. (paragraph 37)

100 Ms. Buchanan's conduct also satisfies the mens rea requirements for fraud "by other means". As explained in Zlatic:

...fraud by "other fraudulent means" does not require that the accused subjectively appreciate the dishonesty of his or her acts. The accused must knowingly, i.e. subjectively, undertake the con-duct which constitutes the dishonest act, and must subjectively appreciate that the consequences of such conduct could be deprivation, in the sense of causing another to lose his or her pecuniary interest in certain property or in placing that interest at risk. (paragraph 40)

101 As in the case of Mr. Zlatic, Ms. Buchanan knew precisely what she was doing when she used the complain-ants' money for her own purposes. She knew she was depriving the complainants of their money which she should have paid back to them when the purpose for which it was provided could not be fulfilled.

102 The January 28, 2014 Agreed Statement of Facts signed by Ms. Buchanan includes the following admissions:

...She told police that she was in dire financial circumstances for the year and a half prior [to No-vember 2011]. She said her financial crisis related largely to her marriage break-up. She said she didn't have the income to take care of herself and bills...She advised police that the money was used for her to live; she said she just had to keep going to take care of herself...her bank records for EMPAC account...show...Ms. Buchanan using the little bits of money coming in to pay for some rent, small personal items but not the business expenses she claimed.

Over a 2.5 year period Ms. Buchanan advertised these shows to participants/vendors and models

who would pay to participate. Each show was cancelled last minute without paying deposits on venues, without paying for advertising for the shows or paying for other show related expenses. Ms. Buchanan used several different business addresses, names, phone numbers and email ad-dresses over this period and did not update the complainants over time. (Exhibit 5, Agreed State-ment of Facts, page 3)

103 The Agreed Facts detail the payments made to Ms. Buchanan by each of the thirteen complainants who are named in Counts 1, 3, 4, 5 and 6 of the January 28, 2014 Information. The Facts establish that Ms. Buchanan's last con-tact with the complainants, promising refunds of their money, occurred in one case in 2009, in two cases in 2010, and in nine cases in 2011. In one case, the complainant "never received any word from Ms. Buchanan about the cancellation or the refund." (Exhibit 5, Agreed Statement of Facts, page 2) During 2010 and 2011 while promised refunds remained outstanding, Ms. Buchanan continued to advertise shows and take money for them.

104 The Agreed Statement of Facts concludes with the following:

The Crown can't say for certain at which point she realized the business was not viable, but given her experience and financial situation, it is clear she abused the position she was in and knew the shows were not viable. The money given to her by the complainants was not used for the purpose it was intended or these shows.

Ms. Buchanan continued to promise refunds to individuals, with the knowledge she could not

pay, and continued to take money from more people, while having numerous debts outstanding. (Exhibit 5, Agreed Statement of Facts, page 3)

287 of 298

Page 366 of 486

105 Ms. Buchanan has emphasized that she did not take money from the complainants with the intention of using it personally and not paying it back. That is not a defence on the facts Ms. Buchanan has agreed to. It simply means the Crown at sentencing cannot characterize what she did as premeditated fraud and theft -which would be an aggravating factor - without proof beyond a reasonable doubt. The Facts establish that Ms. Buchanan knowingly used the com-plainants' money for unauthorized purposes and appreciated that in doing so she was depriving the rightful owners of it.

106 I have concluded there is no evidence that Ms. Buchanan's January 28, 2014 guilty pleas, essentially confirmed on June 26 and September 8, 2015, resulted in a miscarriage of justice. There may be, as stated in Messervey, "instances where the seeming inability of an [accused] to identify a viable defence will not preclude relief where a court is satisfied that a plea was truly involuntary, or some other valid ground exists, such that upholding the plea would constitute a miscarriage of justice." (paragraph 75) This is not such a case.

Ineffectiveness of Counsel

107 Given my finding on the miscarriage of justice issue - that there has been no miscarriage of justice in this case - I am making no finding on the ineffectiveness-of-counsel issue, especially in the absence of any file documentation about what Mr. Howe actually did in order to be, as he testified, "well prepared for trial". I note that in Messervey, the Nova Scotia Court of Appeal considered what the lawyer's time records indicated about trial preparation. (paragraph 54) Here, had it been necessary for me to determine the ineffectiveness of counsel issue I would have had to do so with no documentation to consider -- not only no time records, no file at all.

Ms. Buchanan's Guilty Pleas

108 There is nothing before me that calls into question the validity of Ms. Buchanan's guilty pleas. As disclosed by the transcripts of the proceedings, when Mr. Howe was acting for her on January 28, 2014 and when Mr. Hutchison was acting for her on June 26 and September 8, 2015, Ms. Buchanan entered guilty pleas that were voluntary, unequivocal and informed. (R. v. Eizenga, [2011] O.J. No. 524 (C.A.), paragraph 4)

109 This is not a case of an accused who never intended to admit to a fact which is an essential ingredient of the offence with which she is charged nor is it a case where an accused may have misapprehended the effect of the guilty plea or never intended to plead guilty at all. (R. v. Adgey, [1973] S.C.J. No. 159, paragraph 5) And there is no evidence that Ms. Buchanan was pressured into pleading guilty as occurred in R. v. Nevin, [2006] N.S.J. No. 235 (C.A.). There is also no evidence that Ms. Buchanan misunderstood the basic nature of the charges nor is there any evidence that raises a serious question as to her mental state on January 28, 2014 or June 26 and September 8, 2015 when Mr. Hutchison was acting for her. (R. v. Murphy, [1995] N.S.J. No. 41 (C.A.), paragraph 11) The fact that she experienced the court pro-cesses as stressful is unremarkable.

110 By her own admission, Ms. Buchanan contacted Mr. Howe with instructions that she would plead guilty. There was ample opportunity for her to have taken a different course on January 28, 2014 than she did. She could have fired Mr. Howe -- she says she was dissatisfied with his services -- and asked for an adjournment. She was not rushed through any of the proceedings that day and took the opportunity to provide input into the Agreed Statement of Facts that underpinned her guilty pleas. She has never disputed those facts. The Facts were then read into the record and Ms. Buchanan raised no objection to them. She gave clear responses to the section 606(1.1) inquiry. And, as I have already discussed, months later she could have pursued a different course with Mr. Hutchison that did not have her confirming her guilty pleas. As in Messervey, Ms. Buchanan knew the consequences of pleading guilty. She has presented no evi-dence to persuade me she did not understand that she was admitting to the essential elements of the offences and the facts that supported the Crown's case against her. (Messervey, paragraph 79)

Conclusion

111 Ms. Buchanan's application to withdraw her guilty pleas is dismissed. A date for her sentencing will be set.

288 of 298

Page 367 of 486

From: McVey, PeterTo: Covan, Mark; "[email protected]"; "Nancy G Rubin"; "[email protected]"; McVey, PeterCc: Darrel PinkSubject: Public Wi-Fi in Court Houses/Justice CentresDate: September 7, 2016 11:38:02 AM

Colleagues: Darrel Pink has asked me to touch base with the five chairs of the court liaison committees, regarding a recent stepforward in public wireless access in court houses and justice centres. We five are: Mark Covan – Provincial CourtEllen Burke – Family CourtJean Beeler, Q.C. - Family DivisionNancy Rubin, Q.C. – Supreme CourtPeter McVey, Q.C. – Court of Appeal The Nova Scotia Department of Internal Services, the corporate unit responsible for IT services within government,announced yesterday that it has launched public access internet at all government work sites, or at least at thosewith an existing wireless capability. It looks like a system that would give non-government users daily access to the internet via an access code, in amanner not dissimilar to airports or hotels. It offers access to the internet, but not other government records,folders or programs (except insofar as they can be accessed online). This could eliminate the need to use only asmall, hand-held device for online searches while at court, or to create hotspots with a cell phone for the benefit ofa laptop. It should give all portable devices direct access to the internet while working at most or all court sites inthe Province. An inquiry of Internal Services about the current scope of coverage revealed that almost all court houses and justicecentres already have this capacity, as revealed in the following table:

PDN Address Comments0099 15 Kennedy St, Pork Hawkesbury Some further IT work required for full coverage0100 136 Charlotte St, Sydney All courts0090 16 Church St, Amherst This address is for Provincial & Family Court, not SC0134 69 Water St, Pictou But not the New Glasgow satellite court site0013 11 James St, Antigonish All courts0107 540 Prince, St Truro This address is for Provincial & Family Court, not SC0159 141 High St, Bridgewater All courts0150 87 Cornwallis St, Kentville SC & Provincial Court, Kentville0094 136 Exhibition St, Kentville Family Court, Kentville0194 3380 Devonshire Ave., Halifax Family Division, Halifax0027 119 Queen St., Digby Some further IT work required for full coverage0012 377 St. George St., Annapolis Royal Satellite court house0199 277 Pleasant St, Dartmouth Provincial Court, Dartmouth0216 5250 Spring Garden Rd, Halifax Provincial Court, Halifax0158 164 Main St, Yarmouth All courts0298 1815 Upper Water St Halifax All superior courts, Halifax0275 65 Mini Mall Dr., Eskasoni Satellite court

289 of 298

Page 368 of 486








I have added the “Comments” on the right. I don’t see the Windsor, Shubenacadie or Shelburne court sites on thislist, and at least two SC sites don’t seem to be covered. Are there other active court sites missing? Nancy & I have been in touch with the Executive Office for the Courts. We foresee some discussion of thisdevelopment this Fall between the Bench & Bar, prior to a public “roll out” of the news. While the technical capacity appears to already be present at these sites, and the procedure for access does notappear to be complex, the Bar will defer to the Communications Offices of the Courts and Justice to take the lead inany public announcement. An announcement to the profession will be made as soon as it is timely. I write to ask: (1) are you interested in participating in any meetings or discussions about this initiative? and (2) is it perhaps appropriate to note this development and the planned discussions at your next Liaison Committeemeeting? A description of the login procedures may be found at the following web address:https://icts.iweb.gov.ns.ca/GuestWireless , in case you wish to “test” the system at a given court site. I haven’t triedit myself, but intend to “give it a go” in the next couple of weeks. All the best. Peter C. McVey, Q.C.Barrister, Civil LitigationLegal Services DivisionNova Scotia Dept of Justice Joseph Howe Building8th Floor 1690 Hollis Street,Halifax, NS, B3J 3J9 [email protected] 9024246974 (office)9024564324 (cell)9024241730 (fax)

290 of 298

Page 369 of 486

https://icts.iweb.gov.ns.ca/GuestWireless


From: Darrel PinkTo: Covan, MarkSubject: Withdrawal of Guilty Plea - Draft StandardDate: September 8, 2016 8:16:07 AMAttachments: Withdrawal of Guilty Plea (00083454).docx

Mark – In light of the recent communications from Judge Derrick, I want you to see this document thathas come from the Criminal Standards C’tee. They are proposing it for circulation to the profession.They did not have the Buchanan case when this was prepared.It seems to me we will want to ensure that we are on the same path as we move this forward.I think it would be helpful if you advised Ron MacDonald, [email protected] Chair of theCriminal Standards C’tee of the Court’s interest in addressing this matter – maybe by a rule so that weare all on the same page.If you want me to do that, just say so. Darrel

291 of 298

Page 370 of 486

mailto:/O=NSBS/OU=FIRST ADMINISTRATIVE GROUP/CN=RECIPIENTS/CN=DPINK



PROVINCIAL COURT LIAISON COMMITTEE

September 30, 2016 at 3:00 pm The Borden Room

AGENDA

1. Welcome to 2016/2017; review meeting schedule

2. Review and update on current initiatives

3. Possible new Practice Direction re: withdrawal of guilty plea

4. Review draft letter to CJ Williams

5. Wifi initiative

6. Other business.

292 of 298

Page 371 of 486

1

Provincial Court Liaison Committee December 2, 2016 Meeting

3:00 pm THE BORDEN ROOM

AGENDA

Teleconference details: 1-866-440-4486 and ID 488-3604 followed by # when prompted Moderator: (Prompt) If you are the moderator, press * Enter the Moderator Pin 3270 followed by #

1. Possible new Practice Direction re: withdrawal of guilty plea – Shane Russell

(document to follow)

2. Review draft letter to CJ Williams – revised in accordance with our last meeting

3. Wifi initiative – comments on functionality, access

4. Other business.

293 of 298

Page 372 of 486

XXXXX XXXX, 2016 The Honourable Chief Judge Pamela S. Williams VIA FAX: 424-0677 Halifax Provincial Court 5250 Spring Garden Road Halifax, NS B3J 1S7 Dear Chief Judge Williams:

Re: Provincial Court Liaison Committee

As you know, the Provincial Court Committee has three main tasks: to identify practice and policy issues of mutual concern and interest; to recommend means for addressing these issues; and to communicate the results of this process to the Court and to the Society for further communication to the profession or elsewhere. The Committee has discussed many reforms that we believe are necessary to not only improve access to justice, but to also see the resources of the Provincial Court used more efficiently and effectively. The Committee was unanimous in saying that the way the Court does business needs to change. We believe that change will not only increase access to justice, but will at the same time utilize the Court’s resources more efficiently.

We have previously communicated with the Court, describing reforms we see as necessary to achieve the government’s mandate of improving access to justice. We continue to believe that a multi-pronged approach is necessary to achieving the goal of improving access to justice. In our view, the following must figure prominently in any reforms: Presumptively, Prisoners Must Appear by Video-Link:

Committee members are firmly of the view that appearances by video-link must be the presumption, not the exception. Of course, we also recognize that an in-person attendance can be permitted (or required) at the discretion of the presiding judge. However, video-link appearances must be supported by allowing greater client access at the Correctional Centre. We therefore believe that it is critical that counsel be granted access to video-link technology to consult meet with clients who are housed at the Correctional Centre. This is a clear access to justice issue. We see no principled reason why Nova Scotia cannot fully embrace this technology – and many reasons why it should. Computerized Police Witness Availability:

We continue to advocate the use of computerized police witness availability. Overtime costs and police witness availability remains a significant issue for the police and the justice system. Crown counsel who appear in court often do not have current information on their witness availability.

294 of 298

Page 373 of 486

Nova Scotia needs a system that: 1. Provides the court with up-to-date witness availability information when matters are set down; and 2. Informs the witness of dates when they are required in court. This is used on other jurisdictions as follows: the Crown identifies the police witness by name and this is checked by a clerk (court staff or civilian member of the police1) against available trial times. If suitable dates are identified, the matter is docketed and a message is sent to the police officer that they will be subpoenaed for the matter on that date. We believe a similar system in Nova Scotia would reduce overtime costs for police officers and allow for more efficient docketing and hearing of court matters. If police overtime costs are as significant as we are lead to believe, it should not take long for the savings of a more efficient system of scheduling to be realized.

Centralized Docketing for Locations With Multiple Courts: Arraignment Court, Trial Court:

Right now, every criminal charge that passes through the Provincial Court is treated the same. Each takes their cue in the system and is heard in due course as time and resources permit. In our view, this is inefficient and ignores the reality that – on balance - many summary matters resolve while a great number of indictable matters proceed to at least some form of hearing.

1. Arraignment and bail court:

Arraignments, routine appearances, variations, etc should be handled in a single court, utilizing JPs to the full extent possible. Judges are not required for many routine appearances, yet those appearances consume valuable court time that could be used for more significant proceedings, like preliminary inquiries, trials and sentence hearings. Only when a matter is ready for trial does it move beyond this stage. The use of JPs should be the norm in arraignment court, freeing up judges to focus on more substantive motions and trials.

2. Trial courts scheduled via centralized docketing:

We are of the view that the Court should be structured so that docketing is done from a centralized location. Individual courts should not be in charge of docketing. By way of example, Newfoundland and Labrador has reduced wait times considerably by having trial courts and centralized docketing. These courts hear only preliminary inquiries, trials and sentence hearings and their dockets are created in response to demand. Centralized docketing strives to utilize judicial resources efficiently, moving proceedings to the location where they can be heard the soonest. It is not unusual to walk through the court in Halifax or Dartmouth at 11:00 am and find some courts empty and others overwhelmed with appearances. We know that Judge Digby and his assistant have achieved success with a form of “centralized docketing” – calling counsel in advance to determine if matters are proceeding and, where space appears, filling those gaps in the court docket. This has reduced wait times in that court considerably.

We are also of the view that trial courts should distinguish between summary and indictable matters in setting matters down. The Committee believes that preliminary inquiries and indictable trials tend to proceed more often than summary matters, and for this reason should be treated differently for docketing purposes.

1 While some courts have, in the past, utilized a Court Liaison Officer, we don’t believe a police officer would be required for checking and confirming witness availability.

295 of 298

Page 374 of 486

3. Domestic violence court:

We believe that domestic violence matters consume significant court resources while, at the same time, do not proceed to trial very often. The Committee believes that domestic violence cases should be heard in a specialized court – for example, sitting one day per week. Again, only if the matter is going to proceed to trial does it move beyond this court to trial court.

Members are also of the view that diversion and discharges should be an option for less serious domestic violence cases. They feel that there are many domestic violence cases that could be properly referred to diversion. Instead, a significant number of these cases are forced to proceed through the court system, consuming resources when diversion could be an appropriate resolution of the matter. These proceedings may ultimately resolve short of trial, or may proceed to trial; if a conviction is entered, sentences can be equivalent to – or lesser than – the adult diversion process. In either event, court resources are consumed.

4. Adjournments within 30 days of a proceeding should be exceptional

Many Canadian courts are mired in a culture of delay. Delay is seen as part of the process. This must end, but it can only end if judges get serious about delay. Only the court can control its process. For example, available trial times vary widely from court to court here in the HRM. Some of this variability is work-load related, but some of it relates to how the court is run.

As a starting point, in our view, adjournments within 30 days of a matter proceeding must be truly exceptional, supported by exceptional grounds and must be made by written application with leave of the Court.

Consistent Practice from Courtroom to Courtroom:

Members continue to complain about the variability of practice and procedure from court to court. The list of varied practices is a long one and includes how courts handle substantive legal matters – like Charter motions and pre-trial conferences – as well as administrative matters, such as when court commences, how long it sits, the filing of court forms, and so on. Some judges require counsel to file a statement of issues and witnesses for a preliminary inquiry, others do not. Some judges will vary their own bail orders (and even those of other judges), while some require an application for bail review. These are clear access to justice issues. We believe that some of these issues may be resolved through judges adhering to the Provincial Court Rules and Practice Directives. But the strength of those Rules and Directives turns on the degree to which judges will follow and enforce them. To date, the Committee members are continuing to see considerable variability in how and when judges will enforce the Rules and Practice Directives. In our view, this variability of practice contributes to confusion and delay in the Court. Conclusion:

As the Nova Scotia Barrister’s Society Provincial Court Liaison Committee, our mandate is to liaise between the Court and the members of the Bar. It is in that spirit that we bring these matters to your attention.

296 of 298

Page 375 of 486

The members of the Committee remain determined to assist the Court in any way possible to accomplish the goal of eliminating the culture of delay, improving access to justice and realizing efficiencies in the operation of the Court. Respectfully submitted,

Mark Covan Chair, Provincial Court Committee cc. Darrel Pink, NSBS Committee Members

297 of 298

Page 376 of 486

From: Tilly Pillay on behalf of Shirley ShaneTo: Emma Goodman Pink; Tilly PillaySubject: FW: TELECONFERENCE ONLY: Provincial Court Liaison Committee (AGENDA ITEMS BELOW)Start: March 24, 2017 3:00:00 PMEnd: March 24, 2017 4:00:00 PMLocation: 1-866-440-4486 and ID 488-3604 followed by # when prompted MODERATOR: MARK If you are the moderator,

press * Enter the Moderator Pin 3270 followed by #

#4. Thank you!

-----Original Appointment-----From: Shirley Shane [mailto:[email protected]] Sent: May 4, 2018 12:55 PMTo: Shirley Shane; Tilly PillaySubject: FW: TELECONFERENCE ONLY: Provincial Court Liaison Committee (AGENDA ITEMS BELOW) When: March 24, 2017 3:00 PM-4:00 PM (UTC-04:00) Atlantic Time (Canada).Where: 1-866-440-4486 and ID 488-3604 followed by # when prompted MODERATOR: MARK If you are the moderator, press * Enter theModerator Pin 3270 followed by #

Agenda #5. Last example.

-----Original Appointment-----From: Shirley Shane [mailto:[email protected] <mailto:[email protected]> ] Sent: 2017-Mar-23 9:57 AMTo: Shirley Shane; 'Alonzo Wright'; 'Brian Bailey'; 'Christopher Manning'; Darrel Pink; 'Denise Carole Smith'; 'Doug Lloy'; 'Joshua Judah'; 'Kelly JaySerbu'; Covan, Mark; 'Matthew Moir'; 'Mike Scott'; Admin Conference Call; 'Shane Russell'; 'Stephen Robertson'; 'Susan MacKay'Cc: 'Wright, Alonzo'; 'Smith, Denise'; MacKay, SusanSubject: TELECONFERENCE ONLY: Provincial Court Liaison Committee (AGENDA ITEMS BELOW) When: 2017-Mar-24 3:00 PM-4:00 PM (UTC-04:00) Atlantic Time (Canada).Where: 1-866-440-4486 and ID 488-3604 followed by # when prompted MODERATOR: MARK If you are the moderator, press * Enter theModerator Pin 3270 followed by #

Agenda:

1. Update on PD “withdrawing guilty plea”;

2. Discussion – agenda items for the Committee’s consideration;

3. Other business.

298 of 298

Page 377 of 486


mailto:/O=NSBS/OU=FIRST ADMINISTRATIVE GROUP/CN=RECIPIENTS/CN=SSHANE



- 1 -


From: Elaine Cumming, Professional Responsibility Counsel

Date: May 7, 2018

Subject: Succession Planning

Date – May 4, 2018 Executive Committee Approved

Date – May 18, 2018 Council

For approval

Recommendation/Motion: It is recommended that subregulations 4.6.1 through 4.6.6 be amended as set out in the attached regulatory amendment chart. Analysis: In 2017, the Succession Planning Working Group was struck to consider whether mandatory succession planning should be required for lawyers who deliver legal services to the public. The Working Group’s final report was reviewed by Council in November 2017 and again in January 2018. The Executive Summary of that report provides as follows:

The Succession Planning Working Group is of the view that the Society should commit to three distinct initiatives to address the risks associated with end of career issues. Firstly, the Society should, as part of Legal Services Support, develop, maintain and promote resources to assist lawyers and law firms in preparing for succession or wind-up of practices at the end of a career. Secondly, Council should consider enacting a regulation that requires all law firms delivering legal services to the public to have a succession plan and to advise the Executive Director of its location. Thirdly, the Society should consider enacting clear standards, through regulation or otherwise, that make it clear when law firms may destroy files and what types of files would not be subject to these provisions or have a particular retention period beyond what may be a usual retention period. In March 2018, Council determined that the Regulations made pursuant to the Legal Profession Act should be amended to include a requirement for lawyers and law firms to develop and maintain

Page 378 of 486

- 2 -

succession plans for all lawyers associated with the firm. Tied to this amendment will be the need for the Society to develop guidance materials and resources for lawyers to assist them with their compliance with this new regulatory obligation as part of our Legal Services Support model. There is currently a question on the Annual Firm Report which asks about the firm’s succession plans, including the name of the lawyer who is going to assume responsibility for a sole practice. Such a plan is not currently mandatory although it is possible that the Society could begin to require such a plan for a lawyer’s continued practice. The question, however, is whether there is authority under the Act for the Society to require the preparation and maintenance of a proper succession plan by lawyers with the threat of administrative suspension for a failure to do so. As the Act currently appears there is no specific authority for Council to require lawyers to prepare a succession plan. However, it is possible that the authority could be read into Section 5 of the Act which reads as follows:

5 (8) The Council may make regulations (a) establishing categories of membership in the Society and prescribing the rights, privileges, restrictions and obligations that apply to those categories; (b) establishing requirements to be met by members, including educational, good character and other requirements, and procedures for admitting or reinstating persons as members of the Society in each of the categories of membership; (c) governing the educational program for articled clerks; (d) establishing the procedures and the oath or affirmation of office for calling lawyers to the Bar; (e) establishing requirements and procedures for the reinstatement of former members of the Society; (f) governing practising certificates; (g) governing the resumption of practice by non-practising members of the Society; (h) governing the requirements to change categories of membership in the Society; (i) governing the resignation of lawyers from membership in the Society and their obligations with regard to client files, trust funds, property of clients and the accounting therefore, and other matters that must be dealt with before a lawyer is permitted to resign. [emphasis added]

This section is directed to membership categories, although subsection (a) does allow Council to determine what obligations a member will assume if that member attains practicing status. It is reasonable to assume that along with such obligations as are found in Parts 4 and 10 of the Regulations, practicing lawyers could be obliged by Council to prepare and maintain succession plans appropriate for their particular practice types. It may be that such a provision would better fit under Part III of the Act, Protection of the Public, but I believe that an amendment to the Act would be required. There is currently no provision in that Part into which such an authority could be read. Specific authority of the Executive Director to suspend lawyers for failing to have appropriately detailed succession plans that comply with the draft subregulations 4.6.4 through 4.6.6 could be added to subregulation 4.5.1, which allows for suspension for failing to pay fees or file the annual trust account report or accountant’s report, but without legislative authority to mandate such plans, an administrative suspension may be considered too harsh and is potentially unenforceable. Note as well that the Society would also then be in a position where it would have to review and assess all succession plans for

Page 379 of 486

- 3 -

compliance purposes. This would be a very resource intensive process without a clear demonstrated benefit. It is my opinion that the Society can make succession planning mandatory by adding to the Regulations the requirement to create, maintain and report on succession plans, but our ability to impose consequences for failing to do so is not clear. Exhibits/Appendices: Appendix A – draft amendment to subregulations 4.6.1 through 4.6.6.

Page 380 of 486

Appendix A


1


List of obligations – law firm 4.6.1 A law firm must: (a) keep the Society informed of its current

mailing address, civic address, telephone number and email address;

(b) keep the Society informed of the names of all lawyers associated with the law firm and the electronic contact information, including email addresses, for all lawyers and law corporations associated with the law firm;

(c) appoint a Designated Lawyer in accordance with subregulation 4.7.1;

(d) have a management system for ethical legal practice;

(e) provide to the Society the self-assessment in the form and with the frequency prescribed by the Executive Director or these Regulations;

(f) submit an Annual Firm Report; (g) if the law firm operates a trust account, file a

Trust Account Report, as required by Regulation 4.11 and, if required by the

List of obligations – law firm 4.6.1 A law firm must: (a) keep the Society informed of its current

mailing address, civic address, telephone number and email address;

(b) keep the Society informed of the names of all lawyers associated with the law firm and the electronic contact information, including email addresses, for all lawyers and law corporations associated with the law firm;

(c) appoint a Designated Lawyer in accordance with subregulation 4.7.1;

(d) have a management system for ethical legal practice;

(e) provide to the Society the self-assessment in the form and with the frequency prescribed by the Executive Director or these Regulations;

(f) maintain a written succession plan in accordance with subregulations 4.6.4 through 4.6.6;

(g) submit an Annual Firm Report; (h) if the law firm operates a trust account, file a

Trust Account Report, as required by Regulation 4.11 and, if required by the

NEW

Page 381 of 486

- 2 -


Executive Director, an accountant’s report on the trust account report;

(h) provide written notice to the Executive Director of the closure of a general trust account;

(i) if the law firm or an office of the law firm with more than one office in the Province is a principal, designate a lawyer, who individually qualifies to be a principal, to be the supervising lawyer responsible for the education plan and individual articling plans and to oversee the educational experience of articled clerks pursuant to Part 3 of these Regulations; and

(j) maintain foundation documents on behalf of lawyers practising real estate in the law firm pursuant to Part 8 of these Regulations, unless the obligation is transferred pursuant to that Part.

List of obligations – sole practitioner 4.6.2 A sole practitioner must: (a) keep the Society informed of their current mailing address, civic address, telephone number and email address; (b) have a management system for ethical legal practice; (c) provide to the Society the self-assessment in the form and with the frequency prescribed by the Executive Director or these Regulations; (e) submit an Annual Firm Report; (f) if the sole practitioner operates a trust account, file a Trust Account Report, as required

Executive Director, an accountant’s report on the trust account report;

(i) provide written notice to the Executive Director of the closure of a general trust account;

(j) if the law firm or an office of the law firm with more than one office in the Province is a principal, designate a lawyer, who individually qualifies to be a principal, to be the supervising lawyer responsible for the education plan and individual articling plans and to oversee the educational experience of articled clerks pursuant to Part 3 of these Regulations; and

(k) maintain foundation documents on behalf of lawyers practising real estate in the law firm pursuant to Part 8 of these Regulations, unless the obligation is transferred pursuant to that Part.

List of obligations – sole practitioner 4.6.2 A sole practitioner must: (a) keep the Society informed of their current mailing address, civic address, telephone number and email address; (b) have a management system for ethical legal practice; (c) provide to the Society the self-assessment in the form and with the frequency prescribed by the Executive Director or these Regulations; (d) maintain a written succession plan in accordance with subregulations 4.6.4 through 4.6.6; (e) submit an Annual Firm Report; (f) if the sole practitioner operates a trust account, file a Trust Account Report, as required

NEW

Page 382 of 486

- 3 -


by Regulation 4.11 and, if required by the Executive Director, an accountant’s report on the trust account report; (g) provide written notice to the Executive Director of the closure of a general trust account; and (h) maintain foundation documents pursuant to Part 8 of these Regulations, unless the obligation is transferred pursuant to that Part. Definition 4.6.3 For the purposes of this Regulation, sole practitioner is as defined in subregulation 10.3.6.1.

by Regulation 4.11 and, if required by the Executive Director, an accountant’s report on the trust account report; (g) provide written notice to the Executive Director of the closure of a general trust account; and (h) maintain foundation documents pursuant to Part 8 of these Regulations, unless the obligation is transferred pursuant to that Part. Definition 4.6.3 For the purposes of this Regulation, sole practitioner is as defined in subregulation 10.3.6.1.

Succession Plan 4.6.4 A law firm or sole practitioner must (a) maintain a current succession plan for the practice including all lawyers in the firm; (b) annually review the succession plan; and (c) pursuant to Regulation 4.11, report to the Executive Director regarding the succession plan.

4.6.5 A succession plan must contemplate the unique arrangements that will be necessary in the event of the cessation of the lawyer’s practice for any reason, including (a) temporary disability or incapacity; (b) long term disability or incapacity; and (c) death of the lawyer.

NEW – it is contemplated that the Society will create and have available further guidance materials including checklists and draft succession plans.

Page 383 of 486

- 4 -


4.6.6 At a minimum, a succession plan must include information and adequate arrangements to allow for the handling of clients and management of the practice with regard to the following, where applicable: (a) open and closed files; (b) wills and wills indices; (c) foundation documents and other important records; (d) other valuable property; (e) passwords and the means to access computers, email, accounting and other electronic records; (f) trust accounts and trust funds; (g) other accounts related to the member’s practice; and (g) any other arrangements necessary to carry on or wind up the lawyer’s unique practice.

Page 384 of 486

- 1 -


From: Jennifer Pink, Legal Services Support Manager

Date: May 2, 2018

Subject: Succession planning / File destruction

For: Approval

Introduction

Information x

Recommendation: In light of legal opinions concluding that the Society lacks authority to create a regulation either mandating or permitting file destruction, it is recommended that Council’s direction is sought on next steps – i.e. whether the Society:

a. pursues a legislative amendment to create the legal authority for it to establish a permissive regulation regarding file destruction guidelines; and/or

b. enhances its current succession planning and file destruction practice resources, with a view to offering clearer guidance and tools for firms in developing appropriate file destruction policies.

Analysis: In a workshop at its February meeting, Council discussed the issue of succession planning and concluded that the Society should require all lawyers to have written succession plans. The Executive Director reported to Council in March that research would be undertaken and a legal opinion sought on the outstanding question of whether the Society has the authority to direct lawyers as to when they can destroy their files. A legal opinion was sought from John Rafferty at Burchell MacDougall on whether the Society has the authority, via regulation, to mandate lawyers to destroy their files after a certain period of time has elapsed (i.e. 15 years), subject to various noted exceptions. He responded by letter dated April 2, 2018, and his analysis concluded:

The Society does not have explicit authority, via the Act or Regulations, to implement a mandatory direction to lawyers that they destroy those portions of their client files which are not exempted, after a predetermined period of time has elapsed. Furthermore, unless an amendment to the Act is obtained, we do not believe that intra vires regulations requiring file destruction are currently possible. An amendment to the Act specifically authorizing mandatory file destruction is needed before valid regulations mandating file destruction could be created.”

Page 385 of 486

- 2 -

In reaching this conclusion, he observed that the broad parameters outlined in the Act of things the Society will do in pursuit of its stated purpose (to uphold and protect the public interest in the practice of law) do not reach so far as to enable the Society to remove from lawyers the ultimate decision to retain / destroy client files. He further suggested that public interest is better served by lawyers retaining their file materials indefinitely (so that an informed response can be provided to a client’s later inquiry). He also reviewed those provisions of the Act regarding making regulations (s.28(2) and s.32), as well as Part 8 (Standards). Here he concluded that file destruction does not constitute a “standard of practice” (construed in the context of s.28 to mean the quantity or degree of excellence of the service provided) – and in fact, s.32 mandates document creation and retention – implying a destruction obligation is contrary to the purpose of the Act. Part 8, in turn, creates positive obligations to retain specific documents and to ‘maintain an appropriate file management system’ (i.e. MSELP) – but does not mention file destruction. Finally, Mr. Rafferty noted that none of the other Canadian jurisdictions has a mandatory file destruction obligation: rather, all provide guidance in the form of policies, guidelines and/or practice advisories. Speaking to the content of these materials he noted:

The commentary in the guidelines and practice advisories from other jurisdictions recognize that some of the considerations in determining how long lawyers should retain client files is a matter of professional judgment. It takes into account the applicable limitation provisions, the type of legal matter involved, the length of time the file has been closed and the lawyer’s own opinion as to the likelihood of any future complaint.

The Society sought clarification from Mr. Rafferty and reframed its question as: Does the Society have the Regulatory authority allowing for files to be destroyed after a set period of time? (Or, are practice guidelines the only way to address this issue, as other jurisdictions have done?) After reviewing the Act and Regulations again, he provided his opinion by letter dated April 18, 2018, that “there is no authority under the Act of Regulations to implement either mandatory or permissive regulatory direction to lawyers on destruction of non-exempted client files after a set period of time.” Following on from this opinion, the Society’s options are:

a. pursue a legislative amendment to create the legal authority to establish a permissive regulation regarding file destruction guidelines; and/or

b. enhance the Society’s / LIANS’ current succession planning and file destruction practice resources, with a view to offering clearer guidance and tools for firms in developing appropriate file destruction policies.

LIANS makes available through its site a detailed tool titled “File Retention Resources and Practice Aids (November 2015)”, enclosed, and further guidance via the ‘File / Record Retention’ tab (see Resources – Practice Management). Work can be undertaken to update these resources and make them more clear, succinct, and practical to apply. There are some good resources in other jurisdictions, too, which can be adapted and drawn from (as recommended by the Succession Planning Taskforce). The Society also has the option to pursue the authority to create a permissive regulation. We have a clear opportunity with our legislation being drafted and looking toward introduction in the fall sitting of the Legislature. We would be the first jurisdiction in the country to do so, and it might be determined that discussions with other jurisdictions on this approach are warranted with a view to working toward a homogeneous approach. In light of these options, it is recommended that Executive seek input from Council on the Society’s direction and next steps. Appendix: LIANS’ “File Retention Resources and Practice Aids” November 2015 (http://www.lians.ca/sites/default/files/documents/00070841.pdf)

Page 386 of 486

http://www.lians.ca/sites/default/files/documents/00070841.pdf

File Retention Resources and Practice Aids November 2015 Lawyers' Insurance Association of Nova Scotia Cogswell Tower 801–2000 Barrington Street Halifax NS B3J 3K1 Phone: (902) 423-1300 Fax: (902) 421-1822 http://www.lians.ca/

00070829-1 Page 387 of 486

Table of Contents

Disclaimer Page 3

Resources List Page 5

Guidelines for File Closure Retention and Destruction Page 6

File Closure Checklist Page 13

“Planning Now for File Management” (January 2009) Page 15

“Wrapping Up and Winding Down”; and Checklist (Sept.2009) Page 17

“Turning the Page: Moving Towards a Less Paper-Dependent Office” (Oct.2009) Page 19

“You’ve Planned for Success. Now Plan for Succession” (July 2008) Page 20

Practice Advisory on Changes to the Legal Profession Act Regulations Page 21

00070829-1 Page 388 of 486

Disclaimer These resources and practice aids are provided to you to assist in your practice but do not establish, report or create the standard of care for lawyers. They are not meant to be used as is. The material provided is not a complete analysis of the topic and each lawyer should complete his or her own appropriate legal research and modify documents to reflect the facts and agreement in each situation. All of the resources and practice aids enclosed or referenced are provided to you to assist in your practice, but are not meant to be a complete analysis of the topic, or necessarily to be used as is. You should also do your own appropriate legal research and modify documents to reflect the facts and agreement in each situation. What to Consider When Closing Files It is important to recognize that when deciding which files to keep, and for how long, it is the contents of the file, not its date, which should dictate the length of time a file is to be retained. For instance, where a client has not followed your advice and you have documentation supporting the advice given and not accepted, it is prudent to keep that documentation indefinitely to protect you in the event that a negligence claim or a professional responsibility complaint is made against you. In general it is best if the lawyer responsible for the file should be the one to approve what documentation is being culled before it goes to storage and to determine the ultimate destruction date for the file (in accordance with the firm's established policy). We strongly recommend that in all files, when culling file contents you maintain all your file notes. They are frequently a very important part of the advice you gave and the instructions you received from your client. Legal Profession Act Regulations When closing the property files, also ensure that all foundation documents been dealt with according to the Legal Profession Act Regulations. These Regulations can be found at: http://www.nsbs.org/documents/general/CURRENTREGS.pdf For real estate lawyers the new obligations created include the obligation to maintain foundation documents, even when a lawyer leaves a firm, or a firm is dissolved. Foundation documents include more than the abstract. The definition of foundation documents, certificate of legal effect and opinion of title are defined in Part 1 of the regulations. See:

(da) certificate of legal effect (ma) definition of foundation documents (ua) opinion of title defined

See also: Regulation 4.5 (Client Identification) - requirement to retain record of the information and documentation obtained to verify identify; and

00070840-1

Page 389 of 486

http://www.nsbs.org/documents/general/CURRENTREGS.pdf

Regulation 10.4 (Maintenance of records) - requirement to preserve accounting records CRA has their own requirements on how long accounting records should be maintained. You should check with your accountant on this.

00070840-1

Page 390 of 486

Resources Articles Wrapping Up and Winding Down – By Deborah E. Gillis, Q.C., Risk and Practice Management Advisor, Lawyers’ Insurance Association of Nova Scotia, Society Record, Vol 24 No 1, February 2006 You’ve Planned for Success Now Plan for Succession – By Deborah E. Gillis, Q.C., Risk and Practice Management Advisor, Lawyers’ Insurance Association of Nova Scotia, Society Record, Vol 26 No 3, July 2008. Planning Now for File Management – Deborah E. Gillis, Q.C., Risk and Practice Management Advisor, Lawyers’ Insurance Association of Nova Scotia, Law Practice Today Webzine Turning the Page - Moving Towards a Less Paper Dependent Office – By Deborah E. Gillis, Q.C., Risk and Practice Management Advisor, Lawyers’ Insurance Association of Nova Scotia, Society Record, Vol 27 No 4, October, 2009 Closed Files - Retention and Disposition – Law Society of British Columbia, July 2015 https://www.lawsociety.bc.ca/docs/practice/resources/ClosedFiles.pdf [Please Note: This resource makes reference to British Columbia statutory requirements and suggested minimum retention periods for British Columbia practices. Do not rely on these for a Nova Scotia practice.] Texts & Manuals (available from the NSBS library) Emailing Archiving for Dummies - Bob Spurzem & Bill Tolson Call Number: KB 56 S772 2008 (Hoboken, NJ: Wiley Publishing, 2008) Lawyer's Guide to Records Management and Retention - George C Cunningham & John C Montana Call Number: KB 56 C973 2006 + CD* (Chicago: ABA, 2006) * Ask staff for assistance in locating the CD accompanying this book. Organize Your Office: A Small Business Survival Guide to Managing Records - Teri J Mark Call Number: KB 267 M345 2003 (Lenexa, Kan: ARMA, 2003) Records Management in the Legal Environment: A Handbook of Practice and Procedure - Jean Barr, Beth Chiaiese & Lee R Nemchek Call Number: KB 56 B268 2003 (Lenexa, Kan: ARMA, 2003)

File Retention Resources-1 Page 391 of 486

https://www.lawsociety.bc.ca/docs/practice/resources/ClosedFiles.pdf

Guidelines for File Closure, Retention and Destruction

Introduction

I t is not the Practice Assistance Commillee's intention to recommend mandatory guidelines or regulations, but rathermerely to provide some advisory guidelines on the considerations to be taken into account on closure, retention, and

possible destruction of files.

Clearly, the safest policy for any firm or lawyer is to retain every client file for all time. However, a thoughtful andconsistent policy ofstripping down, notification, retention and destruction is compatible with a professionally responsiblepractice. There will always be business risk associated with file destruction, but at some point the cost of keepingeverything will outweigh the risk of destroying files. It is for each practitioner/firm to develop their own polley toaddress the risk In a fashion that they can tolerate.

File Closure

When a file is no longer current or the job involved has been completed, the file should be closed. The lawyer involvedin the mailer should review the file personally to return to or provide to the client all documents and property which

belong to or were provided by the client or which relate to the final reporting to the client. The file can further be strippeddown by discarding multiple copies ofdocuments. Some practitioners view earlier drafts of fmal documents as disposable,whereas olhers wish to retain them to establish the pattern ofclient instructions or process of negotiations between parties.Property searches, maps, bylaws, etc., which may be useful for other files may be removed and stored centrally or indexed.It is essential that the lawyer involved do this process by stripping down the file, The client should be notified thatthe file is being closed and will eventually be destroyed. It may be useful to obtain the client's acknowledgement or eveninstruction that the file will be destroyed.

A file closure checklist, such as the one originally produced by the Law Society of Alberta, is recommended to beincorporated into the individual member's file closure review and is reproduced at the end of this article. It canvassesimportant considerations which should be addressed by the lawyer involved in deciding to close a file.

File Retention

We recommend maintaining 1I10st files for an absolute minimum often years. This time will be lengthened dependingon the client and type of file.

Considerations affecting the period during which files should be retained include:

I. For what period would the contents of this file be useful to the lawyer/fiml for this client or some other client or forgeneral purposes?

2. During what period am I1is the fiffilliable to claims involving professional negligence?

"'f> Representatives of the Nova Scotia Barristers' Liability Claims Fund advise that typically most non-propertyrelated claims arise within ten years ofclosing the file. However, some claims exist for services performed twentyor more years ago. They note that it is ofparticular importance to keep on a more or less peffilanent basis the notesof the limit of the scope of retainer and notes where clients have failed to follow your advice.

"'f> In contract: you are liable to claims within six years after the cause ofaction arose.

"'f> In tort: you are liable to claims within six years after the date the client ought to have discovered with the exerciseof reasonable diligence, the act or omission resulting in Joss or damages. Central Tmst v. RafiJsl: [1986]2 S.C.R.147 varby [1988], I S.C.R. 1206. Also, s. 3(2) ofthe Limitation ofActions Act, R.S.N.S. 1989, c. 258 providesthat in some circumstances an aclion may be permitted to proceed despite the limitation period. Remember thatfor claims involving infants, the limitation period does not begin to run until after the infant reaches the ageof majority. For claims involving mentally incompetent adults, pennanent retention of files is stronglyrecommended.

These guidelines were prepared by the Nova Scotia Barristers' Society Practice Assistance Committee,and endorsed by Bar Council in May 1998.

Page 392 of 486

3. For what period should I keep this file to defend against claims?

9> The Director of Discipline advises that historically, complaints have arisen usually with five years after a file isclosed. However, complaints have been made as late as twenty years after service has been rendered.

,. For what period am I1is the firm required to keep documents under specific laws or rules, e.g. income taxconsiderations (six years after the later of (i) the end of a taxation year, or (ii) the filing of a late return for the taxationyear, C.L.LA. policies etc.)?

5. Is there some other source from which documents can be obtained, e.g. Registry Office, Court House? Keep in mindthat the Prothonotary's Office also destroys old files.

Any retention schedule adopted by a member must address these considerations. As well, different types of files (criminal,civil, estate, family, tax, etc.) may have different considerations for file retention. The following attempts to review someof these considerations for the various file "types".

Income Tax Considerations

The Income Tax Act provides some specific rules concerning retention of records. Most of these deal with a personcarrying on business. For example, Section 230(2.1) requires "...a person carrying on business as a lawyer...whether

by means of a partnership or otherwise," to keep accounting records, including supporting vouchers and cheques. Thegeneral rule provided by Section 230(4) is that these types of records are to be kept at least six years.

Section 230(6) of the Act requires a person who has served a Notice ofObjeclion or filed an appeal to the Tax Court underthe Act, to maintain all records, etc., pending the final resolution of the appeal.

Another concern is the limitation period for reassessment under the Income Tax Act. The general rule is that an individualcannot be reassessed unless the Reassessment is issued within three years of the initial Assessment for the relevant year.There are slightly different rules for corporations. Regardless, the concern is that these limitation periods can be renderedineffective if there has been misrepresentation, fraud, etc., relating to the issues in the relevant retum, and Revenue Canadaan then go back an indefinite number ofyears. As a matter ofpraclice, Revenue Canada generally will not go back any

more than six to seven years, even ifcharges of tax evasion andlor filing false returns are sworn under Section 239 of theAct.

In essence, a lawyer should not recommend to a client that their records need not be retained, simply because the normalassessing period has expired. This is particularly important because often the onus ofproof is on the taxpayer to discreditthe Assessment that has been issued, and this becomes extremely difficult ifrelevant documentary evidence is not available.

Another concern relates to establishing costs ofassets. For example, if a person has owned a property for many years andthen disposes of the property, it may be crucial to determine that cost base of the property. This is a common problem, andquite often lawyers' files are reviewed to determine cost infomlation. In a typical real estate transaction, obviously theDeed for the property is readily available from the Registry of Deeds; however, the cost base of the property may bedependent on verifying the initial transaction. Unfortunately, in many situations people cannot remember what they paidfor the property, in addilion to what amounts they may have spent on the property over the years of ownership. This, ofcourse, is even more difficult if one or more of the owners is now deceased.

Obviously, it would be preferable for lawyers to return all relevant documents and informati~n to clients with instructionsto keep those records indefinitely, and for very crucial documents, that they be kept in a secure place, for example, a safetydeposit box. However, in reality what more often happens is that the client/taxpayer docs not have relevant informationreadily available and must search out files of the lawyer who handled a relevant transaction to determine the history ofanasset.


Page 393 of 486

Civil Litigation

The considerations described in "File Retention" with respect to contract and tort apply to all civil litigation mallers.

Wills and Estates

I n respect ofwills, it must be recognized that a client may make a will which is not probated until the client dies - perhaps40 or 50 years later. A lawyer's file containing original will instructions could therefore be needed 40 or 50 years after

the original instructions were taken. Similarly, a will containing ongoing trusts or trusts for grandchildren, even thoughclosed at probate, may be operative for a considerable period of time after probate is closed. Again, a lawyer's filecontaining original will instructions may be needed many years later.

As a result, it is recommended there be permanent retention of files for wills and estates in which probate has not beenclosed, and which have ongoing trusts after probate has been closed.

Family

Types of family matters:

I. Divorce· no corollary issues2. Custody and access3. Division oCassels4. Spousal and child support5. C.A.S. "Protection" files6. Adoptions

What is on file?

I. Divorce - No Corollary Issues: petition, affidavit ofservice, affidavit, application, waiver of fmancial statemenls, longform marriage certificate, divorce judgment, possibly a corollary reliefjudgment, certificate of divorce.

Commonly, clients call many years after the conclusion of the divorce looking for certified copies of the divorce andcorollary relief judgments (or Decree Nisi and Decree Absolute). As usual, only one certified copy of each oftheseis issued at the time they are granted and those are sent to the client. Only photocopies will be on file in any event.

Certified copies can be obtained at the offices of the various prothonotaries.

Originals of the documentation used will be on the court file.

Give consideration to retaining copies of your own notes and relevant correspondence with your client, particularlyif there were assets of some kind and the client did not wish at the time to pursue a division.

2. Custody and Access: affidavits, custody/access assessments, other professional reports, notes and perhaps a decisionand order.

If the matter is settled then there will be no decision and there may be no affidavits.

In the future, the client may need to make, or respond to, an application to vary and will need to establish or negatea change ofcircumstances.

Ifwe are looking at a time frame of, say, ten years before a file will be destroyed, then in the event of an applicationmade after that time period, in many cases the passage of time itselfwill produce a sufficient change of circumstances,but documents may be necessary for the conduct of the application to vary in any event.

These guidelines were prepared by the Nova Scotia Barristers' Society Practice Assistance Committee,

and endorsed by Bar Council in May 1998.

Page 394 of 486

If the case "went to court" and documentation was produced,then originals will be on the court file. When the file wasclosed, originals of other documents should be sent to the client with a caution to preserve it for the purposes of anapplication to vary in the future.

If the matter was settled early in the process or was not contested, there may be very little documentation to show whatwas relied upon to settle and both parties may have proceeded from different perspectives in choosing to settle.

3. Division of Assets: correspondence, notes, statements of property, supporting documentation such as valuations.

Many agreements effect a division ofassets, but in many cases values ofvarious items of the property, while they mayhave been exchanged between the parties, do not appear in the agreement and one cannot tell from reading theagreement if it effects an equal or an unequal division. The recitals will probably not spell that out either.

That may also be the case when agreement has been reached without the exchange of formally sworn statements, butinformation may be in the correspondence and a clause to the effect that the parties have each made full disclosure maynot be helpful if there is no record of values.

It may be important after division has been effected for a client to establish the nature of the division, particularly ifone of the considerations for it was tied in with the specific spousal support provision.

A division ofassets is considered to be a once and for all settlement, but now some divisions are being revisited as aresult of the recent legislation with respect to the division ofFederal Pension Benefits, and it is therefore very importantto retain whatever may be on the file showing what was taken into account in arriving at the agreed upon division.

They may also be "revisited" in the context of applications to vary support.

4. Spousal and Child Support: correspondence, notes, sworn financial statements and supporting documentation, suchat T.ls, pay stubs.

This is the area where there will most likely be applications to vary and reliance placed upon old material with respectto the onus on one party of establishing a change in circumstances.

Having said that. and again if the kind of time frame we are talking about is around the ten year mark, then the passageof time alone will go quite a ways towards meeting the test in any event.

The form ofaffidavit used in support of the corollary reliefjudgment calls for a pretty barebones statement of the grossincomes ofeach of the parties and if that is all there is, there may be no indication on the record of more details or ofexpenses.

With respect to child support, which will be based upon the payer's gross income as and from May of 1997, the newlegislation may obviate the necessity ofdetailed financial statements unless there is a departure from the new guidelinesin a given case.

With respect to spousal support, it will be important to keep detailed records including, as far as possible, the specificfactors taken into account in arriving at a parti,cular agreement.

;

5. C.A.S. "Protection" Cases: affidavits, assessments, notes, correspondence.

These files will likely provide the most detail ofany family files by reason of the practice ofattaching to the affidavitsthe recordings of the workers. These will be kept on the court file.

The other side of the case, that of your client, may not be recorded in as detailed a manner.

These guidelines were prepared by the Nova Scotia Barristers' Society Practice Assistance Committee.and endorsed by Bar Council in May 1998.

Page 395 of 486

If there is a consent to a disposition which involves a child being placed permanently, it will be most important to haveand to retain documentation supporting instructions from the client to that effect and factors taken into consideration.

6. Adoption: notes, correspondence, affidavits, consent(s), certificate regarding counselling, notice of adoption,application, order.

If this was a private adoption, it will be most important to be able to establish from the perspective ofboth sides a validconsent in strict compliance with the Act as well as compliance with all other requirements.

The valid consent should, if you represent the parents or one of them, include documentation confirming theindependent advice which you have given with respect to the consequences of an adoption order and anacknowledgement from them (him, her) of having received and understood that advice.

Property and Property-Related Files

This area ofpractice is the largest source ofclaims for professional negligence against solicitors. It is particularly importantifyou practise in this area for you to keep notes ofa limited retainer (i.e. client does not want a full title search) and to keepnotes of recommendations made by you but not followed.

Regulation 48C of the Nova Scotia Barristers' Society states:

Interpretation(1) In this Regulation,

(a) "firm" means two or more lawyers in partnership or associates for the practice oflaw;

(b) "lawyer" means an individual practising member of the Society.

Title Infonnation to be Available(2) Where a firm or a lawyer certifies title to real property either with or without qualification,

the firm or lawyer shall keep available either an abstract of title which discloses the chainof title, or such title information or certificate of title on which the flITO or lawyer reliedwhich would justify the certification of title by a reasonably competent solicitor.

Accordingly, even if your file is closed and retained in accordance with your firm's policy, abstract of title must be keptindefinitely.

Purchase Transaction - A lawyer should consider all of the following when deciding to retain the file:

1. The certificate of title to the client is a matter of contract law and the lawyer is responsible to the client regarding thetitle to the property until the client has sold the property. Therefore, the title search is a critical component of the file.

2. The Marketable Titles Act provides that the title is "marketable" if there is a clear chain of title for forty years plus oneday. This factor should be considered when retaining the title search.

3. A legal undertaking is one that is intended to be a personal undertaking. All undertaking~ must be completed accordingto the terms of the undertaking and within a reasonable time. The file should be reviewed for any undertakings for theircontent and impact on the title of the property.

4. The Registry Act does not require that documents relating to title be recorded. Therefore, any unrecorded documentsretained in the file should be reviewed to determine their importance to the title of the property.

5. The statement of adjustments are often the only written fonn of accounting left after the closing. Banks andMunicipalities tend to destroy their records within a ten year period. Situations may arise where the purchaser or


Page 396 of 486

vender has misplaced the documents and requests that a copy be sent to himlher. The client may require copies forincome tax purposes in the future. These factors should be considered when reviewing the file for retention.

6. Although mortgages are recorded at the Registry ofDeeds, mortgage instructions and Statements ofDisclosure shouldbe reviewed for any special clauses which may affect the terms of the mortgage.

7. Zoning letters from the Municipality are important to confirm that the use of the property conforms with the zoning.lfthe zoning changes after closing, this type ofletter can prove that the use at closing was confonning and may protectthe lawyer from a negligence claim. This type of letter is important for the file. Similarly, occupancy pennits areequally important.

8, Surveying infonnation may be relevant to the boundaries of the property. Although i\.is common for surveyors toretain records, any original survey should be retained unless verification has been made that it is recorded at theRegistry of Deeds. The lending institution returns the surveyllocation certificate to the owner or lawyer when themortgage is paid off. Ifthe lawyer has received the location certificate from the lending institution, it is possible thatthe client does not have a copy and therefore should be sent to the client indicating so or retained in the lawyer's file.

9. The Real Estate Standards adopted by the Nova Scotia Barristers' Society provide assistance and direction to the lawyerwhen making decisions about file retention.

Property Sale Transactions - As follows:

I. Similar to 3 above, undertakings given on closing should be reviewed to ensure they were completed. Evidence ofcompletion of the undertaking may take certain forms such as letter paying out a mortgage, recording of documents,etc.

2. Similar to 4 above, any unrecorded documents in the file should be reviewed to determine their effect on the title andthe impact on any undertakings which may have been given.

3. Similar to 5 above, the Statement of Adjustments serve as an important record of the disbursement of trust fundsincluding Mortgage Payouts.

4. Mortgage Payout Statements provide information about the exact balance due on the closing date. It should bereviewed to determine if it may be relevant for the file after closing. Consideration should be given to whether therelease of mortgage had been recorded and whether all undertakings had been performed.

Corporate Law

Some corporate work, such as debentures, chattels, etc., could well be considered to overlap with property law. In thiscontext, ifone is acting for a lender and the documentation is on file at the Registry of Deeds, you could allow for file

copy documentation to be destroyed if the release acknowledgement is maintained in the file. Trust Ledgers and bankinginformation should be retained as long as you are in practice. However, once the certificate conditions are voided throughrepayment of the debt, the lawyer should be able to consider destroying the documentation.

With regard to incorporation and other corporate records, they should be maintained until a company goes through a legaldissolution, when once again, documents may be destroyed; the dissolution order should be maintained for future records.

In any transaction where you act for the Vender or Purchaser of a business, all documentation should be maintained forthe practising life of the solicitor, subject to dissolution of the company as noted above.

Labour and Employment Law

Litigation Services - Litigation scrvices involve appearances before the courts as well as administrative/quasi judicialtribunals, including Labour Relations Boards, Human Rights Tribunals, Arbitration Boards, professional disciplinetribunals, etc.

These guidelines were prepared by the Nova Scotia Barristers' Society Practice Assistance Committee.and endorsed by Bar Council in May /998.

Page 397 of 486

Typically, at the conclusion of the Tribunal hearing, you should review the file and destroy llIl1}' extra copies ofexhibits,cases submilled, etc. That is simply to lessen the storage load. The next review is conducted after the appeal period passes,which vary depending upon the nature of the tribunal. A statutory arbitrator is subject to certiorari (six month appealperiod), and a consensual arbitrator is subject to an application under the Arbitration Act with sixty day appeal periodsrespectively. It should be noted that some tribunals have internal appeal mechanisms such as the Nova Scotia LabourRelations Board which allows for an application for recommendation which may be made upon leave within one year ofthe decision or order of the Board. Certainly before an appeal period passes, you should maintain your personal notescreated at the hearing, copies of cases or submissions made by the parties, copies of all exhibits tendered, copy of thetribunal's decision, etc.

Following the passing of the appeal period, you may decide to destroy notes made at the hearing, copies of cases submilledby the parties, etc. However, it is a good idea to retain a copy of the decision rendered, all briefs sUbmilled, etc.

Seven years after the file is "closed", you may wish to review the materials again with a view to further reducing thematerials in the file.

Advice - Due to ongoing relationships which you maintain with clients, you should not destroy opinion letters. Often anissue will arise again and you will be called upon to reflect on earlier advice; from a client service perspective, it is a goodidea to maintain opinions forever. You may wish to have all opinions indexed and stored on a computer system, whichall members of your firm can access, in order to reduce duplication of research efforts.

Collective Bargaining - Due to the nature of collective bargaining, issues arise in grievances and arbitrations about themeaning and interpretation ofa particular phase in a collective agreement. Sometimes arbitrators are called upon to reviewnegotiating history as a guide to interpretation. Therefore, it is a good idea to maintain collective bargaining notes,proposals, counter-proposals, etc., forever.

File Destruction

When your reminder system brings forward on a monthly, quarterly or semi-annual basis the names/numbers of files. scheduled for destruction, a second review should take place. Again, this review should take place by the lawyer involved(and if this is impossible, then by another lawyer familiar with the malter or type of file).

At this stage there are really three routes to follow:

I. Retain the file for a longer period ifsomething has happened during the retention period to justifY this, i.e. the malterhas been revived.

2. Send the file to the client. Some practitioners will favour contacting the client again about the possibility ofdestroyingthe file. This would be more likely ifno contact had been made at the time offile closure. However, contact may bedifficult to make with the client due to passage of time (death, relocation, etc.). Ifa client wishes to retain the file, andthe alternative is to destroy it, you may wish to give it to the client.

3. Destroy the file. When destruction takes place, confidentiality of the material should be maintained, e.g. shredding filecontents.

At a minimum, a permanent record should be kept of all files destroyed or returned to the client. Information which shouldbe maintained includes:

~ client's name and address, file number and brief description ofsubject malter;~ notices to client of file closure and destruction;~ date file was closed and lawyer who authorized closure;~ date file destroyed and lawyer who authorized destruction; and~ if applicable, authorization given by client to file closure for destruction.

11fese guidelines were prepared by the Nova Scotia Barristers' Society's Practice Assistance Committee, and endorsed byBar Council in May} 998.

Page 398 of 486

File Closure Checklist (Updated November 2015)

DATE: CHECKED BY:

FILENAME: APPROVED BY: FILE#: CLOSED FILE #: DESTRUCTION DATE:

ITEMS YES NO DONE

1. Reporting letters done?

2. All trust conditions met, all undertakings completed?

3. File reviewed for loose ends? Noted for action?

4. Unnecessary limitation dates removed from Limitation Diary?

5. No balances in accounts: (a) Unbilled time (b) Unbilled disbursements (c) Unpaid accounts

6. All accounts on file paid?

7. Does client owe overdue bills on other files?

8. Anything on file which should be sent to clients or others (e.g. executed documents, borrowed documents)?

9. Anything on file useful for other files?

10. Any notes or copies of briefs, opinions, memos of law, etc., to be preserved?

11. Anything else to take off file (e.g. drafts of documents: bulky, repetitive, useless items, including those stored elsewhere, not including correspondence or notes or messages)?

12. (a) Client notified regarding closure and eventual destruction? (b) Client acknowledgement or instructions received?

13. (a) Electronic data including emails and email attachments maintained with the file. (b) Which current storage media is used * (Cloud service, CD, tape, external hard drive etc. )

14. Destruction date marked on file cover? (Not less than ten [10] years from file closure.)

15. Current accounting and file records moved to closed accounting and file records?

16. Closed file renumbered and entered in closed file index?

17. Closed file physically removed to closed file location (including all sub-files, ancillary loose leafs, notebooks, rolls of plans, etc.)?

* Technology will eventually become obsolete Ensure that records are continually migrated to readable, accessible software and hardware Page 399 of 486

ITEMS YES NO DONE

18. Have Client ID records been retained in accordance with Client ID Regulations. http://nsbs.org/regulation/client_id_regulations

19. Comply with Legal Profession Act Regulations. http://cdn2.nsbs.org/sites/default/files/cms/menu-pdf/currentregs.pdf

20. Have trust account and other accounting records been maintained in accordance with the Legal Profession Act, CRA requirements and generally accepted accounting principles?

Page 400 of 486

http://nsbs.org/regulation/client_id_regulations

http://cdn2.nsbs.org/sites/default/files/cms/menu-pdf/currentregs.pdf


Law Practice Today

Technology

Planning Now for File ManagementBy Deborah E. Gillis

January 2009

In planning for the future it is important that you devote sufficient time and money now to developing a to a file management process .In doing so you will save both time and money in the future in dealing with your files.

Before even opening a file you should have a plan in place for what will be done with that file when it is closed. This is frequently referred to as a file retention policy.

What to Consider

Consider the following when developing your file retention policy:

What will be maintained in a closed file? •Where will closed files be stored and for how long? •Who will pay for storage? •How will these files be accessed? •Will there be a destruction date set for each file as it is closed? If so, who sets it and what criteria is used? •If a lawyer leaves a firm, what happens to the files he or she was responsible for? Will the firm continue to store the files indefinitely; will the departing lawyer take responsibility for the ongoing storage of the files?

•

If the firm retains the file, will the firm give the responsible lawyer advance notice of an intended destruction and give that lawyer the option of storing closed files himself/herself, instead of the firm destroying it?

•

If closed files still exist on the death of the lawyer, who will assume responsibility for the ongoing storage of these files?

•

Lawyers frequently ask how long they must keep a closed file. There is no magic or easy answer to this question. It is ultimately a professional judgment that the lawyer and law firm has to make after considering the type of file at hand, the particular matter and the particular client especially, when that client has ignored your advice, or when the client has limited the scope of your retainer.

Without a file, it is almost impossible to defend against a negligence (malpractice) claim. Property, family, commercial, and wills and estates files may be needed long after the file is closed. Having access to well-documented closed files is critical in the successful defense of these claims.

While many files should be kept indefinitely, it does not mean that everything in the file has to be kept when the file is closed. Spend time culling a file as the matter progresses, and when it is being closed. Duplicate or unnecessary information can be removed from the file before it is sent to storage. Return client records to the client. Do not keep a client’s original documentation. If retaining your files in digital form, be mindful of the need for backup and of the possibility that future changes in technology might render this data inaccessible. Maintain a copy of whatever technology you will need to be able to read this data and/or have it reformatted as technology changes.

Page 1 of 3Law Practice Today :: Planning Now for File Management

11/09/2009http://www.abanet.org/lpm/lpt/articles/tch01094.shtml

Page 401 of 486

Once you have determined the criteria for when and what you will destroy in a file, reference these file destruction policies in your retainer agreement so that your client knows and acknowledges what will happen to the file and its contents when the matter is concluded.

When closing files consider marking on the outside of those you want to keep indefinitely, together with the reason why – eg. advice ignored by client; as well consider keeping files of this nature together, so that you are not reviewing these closed files unnecessarily.

When Destroying Files

Don't destroy a file without reviewing its contents carefully, as there could be important materials in those files that should be returned to the client. In addition, a review of the file might lead to a conclusion that the file should be maintained for a longer period. Sometimes an original document or deed belonging to another client might be misfiled in a file that is destined for destruction. The contents of the file and the circumstances of the case are often more relevant than the age of the file.

Ideally the file review should be done by the lawyer responsible for the file, or by a lawyer who understands the significance of the file contents and has a clear understanding of the firm's criteria for document/file destruction.

Before any files are destroyed make a record of what files are being destroyed, the date of destruction, together with the client(s) name, and last known address and other contact information as well as the matter description (e.g. family, property purchase, property sale) and file number. Protect the client’s confidentiality by shredding.

Never close a file for which:

there are any unfulfilled undertakings. •you continue to trust funds. •there are outstanding fees •

Two excellent resources to assist you in developing records management and file retention policies are:

The Lawyer’s Guide to Records Management and Retention , George C. Cunningham and John C. Montana, American Bar Association, Law Practice Management Division, 2006

Records Management in the Legal Environment , Jean Barr, CRM; Beth Chiaiese, CRM; and Lee R. Nemchek, CRM, ARMA, 2003

In planning for the future it is important that you devote sufficient time and money now to developing a to a file management process .In doing so you will save both time and money in the future in dealing with your files.

Bookmark This:

About the Author

Deborah E. Gillis, Q.C., is the Risk and Practice Management Advisor for the Lawyers' Insurance Association of Nova Scotia. She writes and speaks regularly on various risk and practice management topics She is also a member of the LPM section of the ABA and of Practice Management Advisors of North America. She can be reached at [email protected].

Back to Top

TOPICS A-Z ABA SITE INDEX WEB STORE ABA CALENDAR CONTACT ABA

Page 2 of 3Law Practice Today :: Planning Now for File Management

11/09/2009http://www.abanet.org/lpm/lpt/articles/tch01094.shtml

Page 402 of 486

by Deborah E. Gillis, Q.C., Risk and Practice Management Advisor

WRAPPING UP AND WINDING DOWN First Published in the Society Record February 2006, updated November 2015

In Nova Scotia, there are 497 practising lawyers who were admitted to the Bar more than twenty-five years ago. As the baby boom generation of lawyers begins to approach retirement, many private practitioners have questions on what should be considered and tasks completed prior to and upon retirement. The following checklist does not deal with the sale of a practice which involves valuation and accounting issues. It does not propose to be a comprehensive list, but rather a starting point. It is geared primarily to the sole or small firm practitioner who will be winding up his or her practice or to those assisting in an involuntary windup of a lawyer’s practice. 1. Finalize as many active files as possible. Decide when you will cease to accept new files. 2. Notify clients with active files that you are retiring from practice and that a new lawyer needs to be retained. A new lawyer can be recommended but the client should be made aware that he or she can choose another lawyer to assume their file. You should inform them about time limitations and time frames important to their cases, and provide applicable authorizations for the client’s signature. 3. Check for potential conflicts before referring and transferring client files to another lawyer. If the client chooses to self represent, have a receipt of file signed by the client. Maintain a copy of the file. 4. For cases that have pending court dates, discoveries or other appearances, discuss with the client and assuming lawyer how to proceed. 5. Where applicable, ensure that a Notice of Change of Solicitor is filed or a Notice of Intention to Act in Person (signed by the client) is filed. 6. Advise the Prothonotary of your retirement and your contact information. 7. Review closed files to determine whether they should continue to be stored, destroyed, returned to the client or, with the client’s consent, transferred to another lawyer for storage. If transferred to another law firm get written confirmation that these files will be maintained and made available to LIANS or yourself if needed to respond to a claim against you. How long a file should be retained depends on the type of case, the client, and the advice given, especially where your advice is ignored. Many files or copies of files should be kept indefinitely. Without a file, it is almost impossible to defend an errors and omissions claim. For additional information, see the Practice Assistance Manual and its Guidelines for File Closure, Retention & Destruction published by the Society in 1998 (Available at the Nova Scotia Barristers’’ Library). 8. For Real Property Matters ensure that all foundation documents are maintained and or transferred in accordance with Legal Profession Act Regulations http://cdn2.nsbs.org/sites/default/files/cms/menu-pdf/currentregs.pdf 8a. Make sure that all required Client ID documentation is maintained in accordance with the Client ID Regulations http://nsbs.org/regulation/client_id_regulations

00070687-1 Page 403 of 486


http://nsbs.org/regulation/client_id_regulations

by Deborah E. Gillis, Q.C., Risk and Practice Management Advisor 9. If you do destroy a file, keep a record of the files destroyed and the destruction date. Protect the client confidentiality by shredding. For files transferred, maintain a record of instructions received and where file was sent. 10. Maintain your old phone number for six months or a year, or arrange for a new phone number to be given out or a voice-mail activated when your old phone number is called so former clients have some way to contact you for file information. Re-direct mail. 11. Seek instructions from corporate clients for new addresses for their registered and records office and ensure that the notices are filed with the Registrar of Joint Stock Companies. 12. Make satisfactory arrangements to fulfill any outstanding undertakings. Complete reporting letters. 13. Submit the application to the Society required for Change of Category. 14. Close trust accounts and file applicable audit reports. 15. Complete billings to clients. 16. Terminate lease or sublet office premises and deal with office equipment leases. 17. Give sufficient notice to staff of your pending retirement. 18. Pay any outstanding firm liabilities. 19. If applicable, leave open a general account to satisfy any outstanding obligations or for receipt of any accounts receivable after the closure of your practice. This checklist has been adapted and reprinted in part with the permission of the Oregan State Bar Professional Liability Fund - all rights reserved. Contact LIANS at 423-1300 or email [email protected] for assistance or answers to questions.

00070687-1 Page 404 of 486


18 The Society Record 18 The Society Record October 2008 19

LiAns

by Deborah e. Gillis, QC Risk and Practice Management Advisor

Turning the Page – moving towards a less paper dependent office

Tips from The risk & pracTice managemenT advisor

Increasingly, lawyers - from the sole practitioner to those practicing in large firms - are interested in moving to an environment where they work with a minimum amount of paper. It is unlikely that any law office

will be paper-free, but it can be less paper dependent or paperless.

The benefits of a paperless office include:

Reduced environmental impact•

Productivity gains – as you and your staff spend less time look-• ing for a document, file or precedent

Cost savings – in both space, paper and printing costs•

Reduced storage costs•

Remote access with proper security•

Easier disaster recovery planning – electronic data can be eas-• ily backed up, archived and stored off site making for easier restoration in times of disaster, such as fire or flood.

As the price of high end computers, good-sized monitors and servers with sufficient hard drive capacity for a paperless office comes within the reach of most law firms, technology is no longer a huge issue in going paperless. Organization and the discipline necessary to set up and maintain a paperless system is the issue.

Be prepared to commit time, training, and resources to a paperless system. Significant time may be required to organize the data and files you have, to develop policies and procedures relating to your system, and to train lawyers and staff on them. Until you do this, do not spend money upgrading your equipment solely for the purpose of a paperless office.

Involve your staff in the process and in the implementation of the systems necessary to go paperless. This encourages “buy in” to the project from all involved and will play a huge role in whether or not your new system is a success. If you don’t already have one in place, develop good document naming structures and storage conventions to be used consistently

throughout the firm. Insist on compliance by everyone. Organization and consistency is critical in a paperless office. Without it, finding what you have will be difficult and counterproductive. Staff will become discouraged and your paperless plan will likely not succeed.

In developing your naming structures, look at what you already have in place. If present procedures and naming conventions are working, continue using these. If not, you may consider using a date first naming protocol, e.g., 2008 08 15 0945, so that documents appear in chronological order (time included for fax and e-mails) in the same way as your paper file. This is but one suggestion. Develop what works for you and your practice, but be consistent and disciplined in following what you have developed. As part of your procedures, also consider what will be scanned, when and by whom. Include what you have developed in your policy and training manuals.

While some offices scan their closed files, many find this very expensive and choose to proceed on a go forward basis only.

Whether you choose to go paperless or not, always remember to back up your electronic data faithfully. Do this at least daily and check regularly that the backup is, in fact, working. Keep the backup in a safe place, preferably off site. Also, if retaining your files in digital form, be mindful of the possibility that future changes in technology might render this data inaccessible. Maintain a copy of whatever technology you will need to be able to read this data and/or have it reformatted as technology changes.

Deborah E. Gillis, QC, is the Risk and Practice Management Advisor for LIANS. She may be reached at 423-1300 ext. 345 or at [email protected]

Page 405 of 486

20 The Society Record 20 The Society Record July 2008 21

LiAns

by Deborah e. Gillis, Q.C. Risk and Practice Management Advisor

You’ve Planned for Success. Now Plan for Succession.

Well-developed and well-implemented records management systems and file retention policies should be part of your succession planning.

When you open a file, and as the matter progresses, you should put thought into how you manage and document the file and consideration into what information should be retained when the file will be closed. Having well-organized and well-managed records increases your profitability, reduces your risk and makes your practice more attractive to a potential purchaser.

A well-documented file plays a significant role in managing your risk and defending against a negligence claim. Documentation confirming advice given and instructions received, as well as notes of conversations and meetings, and copies of other relevant documentation and correspondence, should be maintained in your closed files.

When developing a succession plan, a lawyer or law firm should decide what criteria will be followed in determining what is retained in a closed file, as well as when, if ever, the file should be destroyed. As well, the lawyer and/or law firm should address what happens to a lawyer’s closed files if a lawyer dies, leaves the firm or the firm dissolves.

Consider the following when addressing these issues:

What will be maintained in a closed file?• Where will closed files be stored and for how long?• Who will pay for storage?• How will these files be accessed?• Will there be a destruction date set for each file as it is closed? If so, who • sets it and what criteria is used?If a lawyer leaves a firm, what happens to the files he or she was respon-• sible for? Will the firm continue to store the files indefinitely; will the de-parting lawyer take responsibility for the ongoing storage of the files?If the firm retains the file, will the firm give the responsible lawyer ad-• vance notice of an intended destruction and give that lawyer the option of storing closed files himself/herself, instead of the firm destroying it?If closed files still exist on the death of the lawyer, who will assume • responsibility for the ongoing storage of these files?

Lawyers frequently ask how long they must keep a closed file. There is no magic or easy answer to this question. It is ultimately a professional judgment that the lawyer and law firm have to make after considering the type of file at hand, the particular matter, and the particular client – especially when that client has ignored your advice, or when the client has limited the scope of your retainer.

Tips from The risk & pracTice managemenT advisor

Without a file, it is almost impossible to defend against a negligence claim. Property, family, commercial, and wills and estates files may be needed long after the file is closed. LIANS has seen negligence claims in family and real estate matters made more than 20 years after representation has ended. Having access to the lawyer’s well-documented closed files was critical in the successful defense of these claims.

In an article entitled Wrapping Up and Winding Down and posted to the LIANS website at www.lians.ca/lossprevention/wrap_up.htm, I provide suggestions on what should be considered, and what tasks completed, prior to and upon retirement. That article includes the following link to Guidelines on File Retention and Destruction published by the Society in 1998.

Two other excellent resources to assist you in developing records management and file retention policies are:

The Lawyer’s Guide to Records Management and Retention, George C. Cunningham and John C. Montana, American Bar Association, Law Practice Management Division, 2006

Records Management in the Legal Environment, Jean Barr, CRM; Beth Chiaiese, CRM; and Lee R. Nemchek, CRM, ARMA, 2003

The first is available at the Nova Scotia Barristers’ Library and can also be purchased from the American Bar Association. The second is on order and should soon be available at the Barristers’ Library.

While many files should be kept indefinitely, it does not mean that everything in the file has to be kept when the file is closed. Spend time culling a file as the matter progresses, and when it is being closed. Duplicate or unnecessary information can be removed from the file before it is sent to storage. Return client records to the client. Do not keep a client’s original documentation. If retaining your files in digital form, be mindful of the need for backup and of the possibility that future changes in technology might render this data inaccessible. Maintain a copy of whatever technology you will need to be able to read this data and/or have it reformatted as technology changes.

Time spent planning now will reap many future rewards, including reduced storage costs.

Deborah E. Gillis, Q.C., is the Risk and Practice Management Advisor for LIANS. She may be reached at 423-1300 ext. 345 or at [email protected]

Page 406 of 486

Practice Advisory on Changes to the Legal Profession Act Regulations August 25, 2009 (updated for November 2015) Law firms and real estate practitioners should be aware of the new obligations created by amendments to the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28 and approved by Council on April 24, 2009. Enforcement of these regulations will begin September 15, 2009. All lawyers should be aware of the changes to Regulations

• 4.5.4 (Client ID) • 4.7.1 (fees)

also approved by Council on April 24, 2009, which took effect on that date. Updated regulations can be found at: http://cdn2.nsbs.org/sites/default/files/cms/menu-pdf/currentregs.pdf For real estate lawyers the new obligations created include the obligation to maintain foundation documents, even when a lawyer leaves a firm, or a firm is dissolved. Foundation documents include more than the abstract. The definition of foundation documents, certificate of legal effect and opinion of title are defined in Part 1 of the regulations. See: 1.1.1. (da) certificate of legal effect 1.1.1 (ma) definition of foundation documents 1.1.1. (ua) opinion of title defined Some of the other changes impacting law firms and real estate practitioners are noted and/or summarized below: Part 5 Content of Application (change of category) 5.5.2 (iii) 5. 8.2 d (iii) A practising lawyer applying to change category, must if applicable, confirm that all foundation documents required to be kept pursuant to Part 8 of the Regulations have been transferred in accordance with that part. Part 7 Law Firms, LLP’s , Law Corporations, Firm Names and Advertising 7.2.1 (a) 7.2.1 (e)

Practice Advisory on Changes to the Legal Profession Act Regulations-1 Page 407 of 486


A law firm must now also have a designated practising lawyer to receive communications regarding an LRA Audit under part 13 of the Legal Profession Act. A law firm must now maintain foundation documents for firm real estate practitioners, unless this obligation is transferred in accordance with Part 8 of the regulations. Part 8 Standards Regulation 8.2.3 has been deleted Regulations 8.2.3.1-8.2.3.4 have been added. These regulations deal with requirements of law firms and lawyers to keep foundation documents unless relieved of this obligation. Part 13 Real Estate Practice –Interpretation See the following new regulations which relate to eligible lawyers and the Land Registration Act and the LRA Audit process. 13.1.1 13.2 13.2.1 13.2.2 13.2.3 13.3 13.3.1 13.3.2 13.3.3 13.3.4 13.3.5 13.3.6 13.3.7 13.3.8 Read the changes to all the parts of the Regulations carefully, and circulate this notice to all real estate lawyers and paralegals in your firm, as well as anyone else involved in the file. It is recommended that you:

• decide now, who from the firm will be the lawyer designated to receive communication regarding a LRA Audit under Part 13 of the Legal Profession Act

• consider adding compliance with the Regulations to your opening and closing checklists • consider offering an in-house education session on the Regulations, so that all who

should be aware of the changes, are in fact aware of them, and complying with them by the September 15, 2009 enforcement date


If you have any questions on this, or any other risk or practice related matter, do not hesitate to contact me, Stacey Gerrard, LIANS Counsel, Lawyers’ Insurance Association of Nova Scotia at 423-1300 ext. 345 or at [email protected]



1


From: Succession Planning Working Group

Date: August 3, 2017

Subject: FINAL REPORT

Date – August 3, 2017 September 8, 2017

Executive Committee Reviewed

Date – Council

Executive Summary: The Succession Planning Working Group is of the view that the Society should commit to three

distinct initiatives to address the risks associated with end of career issues. Firstly, the Society

should, as part of Legal Services Support, develop, maintain and promote resources to assist

lawyers and law firms in preparing for succession or wind-up of practices at the end of a career.

Secondly, Council should consider enacting a regulation that requires all law firms delivering legal

services to the public to have a succession plan and to advise the Executive Director of its location.

Thirdly, the Society should consider enacting clear standards, through regulation or otherwise, that

make it clear when law firms may destroy files and what types of files would not be subject to

these provisions or have a particular retention period beyond what may be a usual retention period.

ANALYSIS Introduction Council created the Succession Planning Working Group because it has recognized that one of the

major challenges for Nova Scotia lawyers and one of the significant regulatory risks for the Society

relate to succession planning (or the lack thereof).

An Aging Demographic

The Society’s ongoing analysis of the aging demographics in the profession indicates that this will

become a greater issue .In its regular reporting on the Annual Lawyer Report to Council the

Director of Finance and Administration has tracked the aging demographic and the concentration

of those lawyers in the oldest segment of the bar. In 2017 the information given to Council is

shown in Table 1. It shows that over 43% of sole practitioners are in the oldest segment of the Bar

and as Table 2 shows, there is an overall aging of the profession as a whole.

Page 410 of 486

2

Sole Practitioners

10.4%

15.4%

24.6%

49.6%

0

25

50

75

100

125

150

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Number of Respondents by year of call

0 - 7 Years 8 - 16 Years 17 - 26 Years 27 + Years

Table 1

“Aging Membership”

24.20%

23.00%

23.20%

29.70%

250

300

350

400

450

500

550

600

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

Number of Respondents by year of call

0-7 8-16 17-26 27 +

Table 2

The Working Group is of the view that with an aging profession and a concentration of the older

lawyers in sole practice there is a risk that needs to be addressed before it becomes more serious.

Increased Costs o Assist at the End of Practice

The Society has also experienced the cost implications of dealing with lawyers at the end of their

careers who have not made adequate plans for the transition of their practices when they are no

Page 411 of 486

3

longer capable of dealing with them because of disability, incapacity or death. In his 2016 Report

to Council on the state of the membership the Director reported:

The number of lawyers requiring assistance “winding-up” practices has continued to increase and has increased costs to the Society.

Since 2014 the Society has expended in excess of $241,000 to look after the practices of eight

lawyers at the end of their careers either through a receivership, custodianship or voluntary wind-

up with Society assistance. The average of just over $30,000 per practice is borne out by the actual

costs which for the eight cost from a low of $7000 for a very small practice to $67000 for a

practice which could only be described as ‘a mess’. Given the numbers above relating to the aging

profession, the Working Group agrees with the conclusion of Society Staff that if this situation is

left unaddressed it will get worse. For that reason we believe Council must now consider taking

serious action to mitigate the risks that we think are inevitable.

Lack of Succession Planning

Lawyers tell the Society, especially when they plan for retirement, that there are few, if any,

options for another practitioner to assume responsibility for their files. This includes their

foundation documents which are required to be preserved under the Land Registration Act.

For several years the Society has asked lawyers, as part of the Annual Lawyer Report, whether

they have a succession plan in place. This data was the basis for Council determining that this

ought to be a priority for the Society. Table 1 captures the responses to the succession plan

question from Annual Lawyer Reports.

Question: I have a documented succession plan to deal with my inability to practice, which includes:

2016 2015

Dealing with Current Active

Clients Arrangements for

Inactive Files Long- Term

Storage of Files

Addressing Current Staff Dealing with Financial Demands Plan Known by Others *

Responses # of No's % of No's Responses # of No's % of No's

567 122 21.5% 545 126 23.1%

567 124 21.9% 545 126 23.1%

567 114 20.1% 545 112 20.6%

567 147 25.9% 545 149 27.3%

567 124 21.9% 545 132 24.2%

567 69 12.2% 545 116 21.3%

Table 1 – Report to Council on the ALR, September 2016

These numbers, in the Working Group’s opinion, present a significant risk to the public and to the

profession and thus, to the Society. In keeping with the Society’s Regulatory Objectives and, in

particular, the need for regulating in a Triple P way that is focused on identified risks, the Working

Group strongly believes that the Society should take steps to address these risks in a manner that

reflects the realities of practice and the circumstances of lawyers.

In undertaking its task, the Working Group focused on three major issues:

1. Should the Society mandate that all lawyers in private practice have a succession plan

and if so, what is the nature of the support the Society should offer to assist in making

the planning process effective?

Page 412 of 486

4

2. Given that file storage is a significant concern to lawyers can the Society, by rule,

enable the destruction of files by lawyers/law firms and create effective guidance for

them to aid their decision-making and to minimize risk?

3. Are there financial arrangements that could be put in place to protect the Society in the

event that a lawyer dies without an effective succession plan and to enable the Society

to respond to appoint a custodian to windup the practice and deal with file storage and

destruction?

Members of the Task Force The members of the Working Group are:

Heidi Foshay-Kimball, Chair

Bob Carter

Gerald Green

Loretta Manning QC

Primary staff support was provided by Darrel Pink, but several staff involved in the

development of the Society’s new approach to Legal Services Support attended meetings and

assisted the Working Group in developing its thinking.

Those who assisted were:

Jackie Mullenger

Lawrence Rubin

Elaine Cumming

Stacey Gerrard

Jennifer Pink

Terms of Reference The key aspects of the Working Group’s Terms of reference are as follows:

Mandate

To advise Council and make recommendations on all issues relating

to implementation of succession planning for lawyers, including how

the Society minimises the risks associated with the end of lawyers’

careers.

Responsibilities

To review information and resources from the Society and other

jurisdictions on succession planning for lawyers

Bringing a Triple P perspective, provide information and options to

Council on the form succession planning and any necessary

requirements for effective planning should take for lawyers in all

areas of practice

To consider how incentives might assist lawyers in the

implementation of succession planning

To enhance the resources available for lawyers, review and make

recommendations on appropriate resources to be made available to

lawyers

Meetings Between January 2017 and July 2017, the Working Group met five times. For each meeting it was

assisted by significant background information that showed how this issue has been dealt with in

other jurisdictions as well as some of the research and thinking that some Nova Scotia lawyers

Page 413 of 486

5

have brought to bear on this matter through the development of file retention and destruction

policies. Among legal regulators there appear to be two distinct approaches – one that mandates a

succession plan be in place and one that provides resources and support to law firms and

encourages them to address the matter internally. These approaches will be discussed in more detail

later in this report.

Working Group make-up and Staff Support PROCESS The Working Group was influenced in its thinking by several things:

Lawyers and law firms consistently report that file retention and destruction presents

significant challenges and they seek clear guidance or rules from the Society about what

files they can destroy and when

Two jurisdictions (Maine and Saskatchewan) have created clear obligations to requiring

lawyers to have succession plans

A number of firms have created clear policies on records management and file destruction

Amendments to the Limitation of Actions Act created a fifteen-year ultimate limitation

period in s. 8(1)1 and law firms ought to be able to take advantage of it

A minute percentage of claims against lawyers are made more than fifteen years after the

work was completed

If files are destroyed pursuant to rules created by the Society, there should not be a

negative impact on a claim against the lawyer if the file no longer exists

The greatest challenge for lawyers in creating effective succession plans is the existence of

a large number of dead files

Lawyers and firms ought to be encouraged to purge files on closure and store them

electronically on a medium that can be updated as technology evolves

Information from the Law Society of Alberta has demonstrated the kind of guidance the

Society can give for effective succession planning

1. Support for Succession Planning The Society has the benefit of a recent publication from the Law Society of Alberta entitled “When

bad things happen to good lawyers.”2 This publication provides significant information and

guidance for lawyers in the preparation and administration of succession plans. The Law Society of

Alberta does not make succession planning mandatory but has determined that this practice

assistance approach is an important step in helping lawyers adopt a culture of effective succession

planning.

The Working Group spent considerable time reviewing the Alberta material and modifying it for

use in Nova Scotia. Attached as Appendices are some examples of material that could be used in

Nova Scotia if Council either makes succession planning mandatory (as is advocated for by the

Working Group) or chooses instead to take an approach that assisting lawyers in succession

planning is the appropriate way to go.

1 Limitation of Actions Act, SNS 2014, c 35, 8 (1) Unless otherwise provided in this Act, a claim may not be brought after the earlier of

(a)two years from the day on which the claim is discovered; and (b)fifteen years from the day on which the act or omission on which the claim is based occurred.

2 https://dvbat5idxh7ib.cloudfront.net/wp-content/uploads/2017/01/22203930/When-Bad-Things-Happen-to-Good-Lawyers.pdf

Page 414 of 486

https://dvbat5idxh7ib.cloudfront.net/wp-content/uploads/2017/01/22203930/When-Bad-Things-Happen-to-Good-Lawyers.pdf

https://dvbat5idxh7ib.cloudfront.net/wp-content/uploads/2017/01/22203930/When-Bad-Things-Happen-to-Good-Lawyers.pdf

6

This is in keeping with the Society’s evolving approach to regulation which first and foremost

requires that the Society be proactive in how it addresses regulatory risks. Therefore, as part of its

legal services support work the Society would publish, promote and educate lawyers with regard to

succession planning. This should include material that will assist law firms in developing effective

file retention and destruction policies (see below for how the Working Group addresses an

approach to permitting file destruction) and deal with the preservation of file material that is

digitally preserved, such as emails, draft documents, financial and trust account records, etc.

As noted above, the Society has benefited significantly from Alberta’s work. Though the legal

services support team will finalize the nature and content of any publications in this area, because

the Working Group spent time reviewing the Alberta materials and their applicability in Nova

Scotia, we have attached some examples of the nature and content we believe must be a central

feature to the Society’s approach.

The Working Group has identified this issue but does not believe this is a genuine policy question

for Council. Given that our conclusions regarding risk are supported by staff, there is no question

that as part of Legal Services Support, the Society will create resources and tools for the profession

regardless of what other regulatory response Council adopts.

Possible Regulatory Responses The Working Group spent considerable time considering whether a regulatory response in addition

to one that provides resources to lawyers and law firms is required. The conclusion was that a

proportionate regulatory response is appropriate. Only then can the Society truly meet its

requirement of promoting the public interest and public protection by ensuring that client matters

are being addressed as lawyers plan for end of career. If that occurs unexpectedly, then the

requirements for effective succession planning and implementation are even more important

2. A requirement for succession planning

Should the Society mandate that all lawyers in private practice have a succession plan and if so,

what is the nature of the support the Society can offer to assist in making the planning process

effective? The Working Group considered whether there ought to be a requirement that all lawyers in private

practice have an up-to-date succession plan.3 In canvassing other jurisdictions we found only two

with such a requirement — Maine in the United States and Saskatchewan. Their rules are attached

as Appendix 2.

The Working Group considered the current Saskatchewan rule and believes it has the correct

elements of a possible regulation. However, some modifications are suggested. The Working

Group suggests the following elements ought to be included in a regulation:

It should apply to law firms engaged in the delivery of legal services to the public;

Law firms ought to be able to satisfy the requirements on behalf of all lawyers in the firm4;

The requirements of the regulation can be met by a firm on behalf of all lawyers in the

firm;

Succession plans must be current and subject to annual review by the lawyer or firm;

3 In focusing on lawyers in private practice, the Working Group, consistent with Triple P approaches to regulation, recognizes that the Society should only regulate areas where there is a real risk. 4 So a law firm of 2 or more lawyers could have a succession plan for all lawyers in the firm which would likely make the firm responsible for the files of individuals.

Page 415 of 486

7

Lawyers and firms must advise the Executive Director of the physical or digital location of

the succession plan;

Succession plans must contemplate arrangements required in the event of:

o Cessation of practice

o Temporary disability

o Long term disability

o Death;

A succession plan must contain adequate information and arrangements to allow for

handling of clients and managing the lawyer’s practice with regard to:

o Open and closed files

o Wills indices

o Foundation documents (LRA)

o Trust accounts, trust funds and trust property

o Other accounts of the practice

o Passwords and means to access computers, emails, accounts and other electronic

information

o Any other arrangements necessary to carry on and wind up the practice;

The Executive Director will provide a recommended form for recording the content of a

succession plan;

Reporting on the succession plan should be done through the Annual Firm Report.

A regulation would provide an objective standard against which all firms could be measured. It

would allow the Society to better focus its educational efforts because there would be an objective

determination that a lawyer/law firm had turned their mind to and could demonstrate that a plan is

in place. Most importantly, mandatory succession planning will ensure that clients are protected

because their lawyer will have to either take active steps to return their files to them when closed or

there will be someone who has been identified as being responsible for the file if the lawyer is

unable to continue to address the client’s interests.

Reasons for not making the requirement mandatory include the fact that this is not yet a common

requirement across Canada; it could cause some hardship for lawyers especially in rural areas

where it is difficult to find another person to assume responsibility for files let alone a practice; and

it may be more prescriptive if it requires a particular approach to succession planning in order to

comply with the rules.

On balance, the Working Group concluded that a requirement, similar to Saskatchewan’s, would be

appropriate for Nova Scotia. It is also of the view that the best approach would be to enact the

regulation and then postpone its enforcement for two years to give lawyers an opportunity to

prepare for it and the Society time to enhance its educational materials and approaches. However in

the meantime the Society, as part of the new approach to Legal Services Support, should actively

develop, adapt and promote resources that will assist both sole practitioner law firms and larger

firms to develop a culture that looks to the future and plans for things need to be considered.

The proposed regulations would be:

A law firm5 providing legal services to the public6 must

(i) maintain a current succession plan for the practiceincluding all lawyers in the firm ;

(ii) annually review the succession plan; and

(iii) provide the Executive Director, as part of the Annual Firm Report, particulars of the location of the

succession plan.

5 This covers all sole practitioners and law firms 6 Thus only firms in private practice are covered by the requirement.

Page 416 of 486

8

A succession plan must contemplate the unique arrangements that will be necessary in the event of any of

the following events:

(i) cessation of the practice7; and

(ii) if the law firm consists of a sole practitioner (a) temporary disability or incapacity,

(b) long term disability or incapacity, and

(c) death of the lawyer

At a minimum, a succession plan must include information and adequate arrangements to allow for the

handling of clients and managing the practice with regard to the following, where applicable:

(i) open and closed files,

(ii) wills and wills indices,

(iii) titles and other important documents and records,

(iv) other valuables,

(v) passwords and the means to access computers, email, accounting and other electronic records,

(vi) trust accounts and trust funds, and

(vii) other accounts related to the member’s practice; and any other arrangements necessary to

carry on or wind up the member’s unique practice.

Issue #1

Does Council agree that a mandatory requirement for succession planning ought to apply to all law

firms delivering legal services to the public? If so, does it believe that the nature of the proposed

requirements is correct? If so, does Council agree with the Working Group’s proposal that

implementation of the regulation be delayed for two years (or some other time period as Council

may deem prudent but not, in the Working Group’s opinion, to exceed two years) to enable the

profession to develop their policies?

3. File retention/destruction

Given that file storage is a significant concern to lawyers, can the Society, by rule, permit (thus

authorize) the destruction of files by lawyers/law firms and if so, create effective guidance to aid in

lawyers’ decision-making to minimize risk? The Working Group had the benefit of significant information about current practices utilized by

some large firms with regard to file retention and destruction. It reviewed a number of policies

currently in use by large and regional firms that outline a principled and legally sound approach for

making decisions with regard to file destruction. Most are premised on the provisions regarding the

ultimate limitation period in the Limitation of Actions Act.

The Working Group had the benefit of staff participation by Stacey Gerrard, Risk and Practice

Manager for LIANS and Jennifer Pink, Manager of Legal Services Support, who is leading the

implementation of that work. Both Ms. Gerrard and Ms. Pink provided significant insight into the

concerns of lawyers relating to when files can be safely destroyed on their discussions and regular

interaction with lawyers. Further input was provided by Jacqueline Mullenger, Director of

Education & Credentials who deals with all lawyers who change their categories from practising to

non-practising or retired. All staff indicated that a significant burden to lawyers in being able to

retire is the problem of maintaining ancient files. Lawyers significantly report that in the absence of

7 For larger firms this requires consideration of a break up or dissolution of the firm Though not a

common occurrence there is recent experience in Canada that now makes this something that can be

anticipated.

Page 417 of 486

9

clear language from the Society which permits file destruction they simply do not feel that

destroying old files is an option. 8

The Working Group is of the view that an effective role for the Society, as part of proactive

regulation, is the development of clear policies and procedures to assist lawyers/firms in making

effective decisions with regard to both file retention and destruction.

The Working Group is aware that the dominant view on file destruction is that in the event a

lawyer is sued, it is better to have the file so the insurer can mount a defense. This view has

assumed “mythic proportions” even if it is not founded on sound principles. Lawrence Rubin, Director of LIANS, also participated in the Working Group’s deliberations. His

perspective, which is now shared by the Working Group is:

A very small, perhaps insignificant, percentage of claims are made more than fifteen years

after legal services were provided

The ultimate limitation period of fifteen years contained in the Limitation of Actions Act

must be given some meaning and lawyers should be able to, and LIANS does, rely on it as

a time limit for claims

If files are destroyed in accordance with a procedure or protocol endorsed by the Society, it

is very unlikely that any adverse inference could be drawn against a lawyer who does not

have documentary evidence to support work done or advice given on an old file

There are some types of files, such as will preparation files when death has not occurred,

that should be kept longer than fifteen years, out of an abundance of caution.

Based on information received by the Working Group, their view is that an analysis of reasonable

risk should allow lawyers to develop destruction policies that would permit files to be destroyed

after fifteen years. The specific form of authorization may need further consideration for it may be

a regulation or a professional standard specifically authorized by regulation. The Working Group

has not come to a conclusion on this and awaits Council’s consideration of the policy before doing

so.

Though any such permission should be broad based, there are definitely exceptions that would need

to be clearly articulated. For example, the limitation clock for certain matters may have a delayed

start date such as the settlement involving an injury to a minor in which case the file should not be

destroyed until that person reached the age of majority (and perhaps for some time after that). Or, a

file for the preparation of a will or power of attorney should not be destroyed if the client/former

client is still alive. There are other examples and a comprehensive list will need to be developed.

Any rules in this regard will have to deal specifically with electronically stored data.

Issue #2

Because the Working Group is of the view that this is a sound policy, it believes Council should

consider whether, as part of its regulations dealing with succession planning, the Society should

create a regulation or a standard that allows for files to be destroyed after fifteen years from the

cessation of the provision of legal services on a file with certain specified exceptions. Is this a

policy that Council supports?

4. Financial Arrangements/Insurance

8 It was noted that this “conservative” approach seems to be more prevalent among sole practitioners

and small firms in opposition to the policies developed by large firms that have had the benefit of

research and consideration in developing their own policies.

Page 418 of 486

10

The Working Group considered whether there might be some form of financial arrangements or

insurance that could be put in place to address the consequences of a law firm that does not have an

effective succession plan and, because of death or disability, the Society is required to appoint a

receiver or custodian to wind-up the practice. It wondered whether there might be a form of

insurance policy or bond that could be purchased to protect the Society from the unplanned

expenditures, which can be more than $20,000, depending on the size of the firm and practice.

On the Working Group’s behalf, Lawrence Rubin, Director of LIANS, made several inquiries of

insurance brokers to determine if such a product exists or if it might be designed. Though a detailed

analysis was not undertaken, initial responses suggested that the complexity and costs associated

with such a product would not make it cost effective and it would unlikely be something that firms

would purchase or the Society could easily mandate. Therefore, the Working Group determined not

to pursue this possibility any further though Mr. Rubin still has an outstanding inquiry.

Issue #3

The Working Group has concluded that, although it seems like a logical idea, there are not easily

identifiable financial mechanisms that can be developed to ameliorate the expenses for the Society

associate with a law firm’s failure to adequately plan for succession.

Page 419 of 486

11

CONCLUSION AND OPTIONS

FOR CONSIDERATION

Page 420 of 486

12

Appendix 1 – Sample materials to be included in Legal Services Support Resources for Succession Planning

Planning Lawyer Checklist

1. Make arrangements for another lawyer (the "Replacement Lawyer") to 0

cover in your absence. This will preserve your practice for your eventual return as well as protect and give comfort to your clients, family and staff. Put it in writing.

2 Consider the big picture to ensure a smooth transition.

a. What role will the Replacement Lawyer play (e.g. Manage your files for a time? Wind up the practice? Sell it for maximum value?).

0

b. How long must your absence continue before they step in? 0

C. How will they be paid? 0

d. How much and when will they be paid? 0

e. The steps you have taken or will take to facilitate their work. 0

f. Desired arrangements to support your family. 0

3. What information will they need to get up to speed as quickly as possible? Things to have ready or to give them in advance include: a. General Information concerning the practice, its organization and 0

staff. b. A full set of keys to the office premises. Keys (or combinations) to 0

file cabinets and safes. Contact information for landlord/property manager.

C. Access in f o rm a t io n for open and closed files, if files are located at a 0

satellite office or off-site storage facility. d. Passwords to your email, voicemail, computer system, online 0

accounts and the lawyer portion the NSBS web site. Leave the passwords in a sealed envelope with your assistant and let your replacement know where they can be found. Provide the location of all backu p drives, disks, memory sticks, hard drives.

Page 421 of 486

13

Contact information for your spouse/domestic partner, next of kin. D

Tell your family and the executor or personal representative of your estate about the Replacement Lawyer and how to contact them.

a. Employee roster with contact information. D b. Names, contract information and account information of your D

accountant, bookkeeper, insurance agent, payroll service, health plan administrator , IT consultant, other service providers, bank (checking, trust account, other), credit cards.

c. Location of wills. D

d. Equipment (telephone, photocopy, furniture, computer, etc.) D

leases including copy of lease agreements, account numbers and contact information of equipment lessors.

e. Current accounts payable and accounts receivable statements. 0

4 As soon as you have arranged who will cover for you, secure NSBS D

approval of the Replacement Lawyer as a signatory on your bank accounts and alternate Responsible Lawyer.

5 Use retainer agreements that explain that you have arranged for the D Replacement Lawyer to manage or close your practice in the event of your death, incapacity, or unexpected absence.

6 Note the names of all parties on the outside of client files to prevent 0 disclosure of confidential infor mation in the event the Replacement Lawyer has a conflict of interest

7. Build an office procedure manual. This will help the Replacement Lawyer as well as any new staff you hire in the meantime. Consider including:

a. Conflicts: How to check for conflicts of interest. D

b. Diarization/Appointments : How to use your calendaring system. D Who is responsible for inputting and retrieving dates and ensuring that deadlines are met?

c. Act ive File List: How to generate a list of active client files, (1

including client names, addresses, and phone numbers .

d. Accounting: How to access your accounting software and the I I location of client ledgers if using a manual system. How to generate a li i st of current accounts receivable.

Page 422 of 486

00097761-1

e. File Organization: How open/active files are organized and assigned numbers. D

f. Closed Files: How and when are files closed, stored and destroyed? D

g. Original Client Documents: Whether your firm keeps clients' wills D

and other original documents and where are they located.

h. Banking: Your bank name, branch address, account signers, and D account numbers for all accounts (trust and general). Where the safety deposit box is located and where the key is . The location of all bank statements and other account records.

i. Mail: Where the post office or other mail service box is located and D

how to access it. j . Deliveries/Faxes: How to deal with deliveries and faxes (incoming D

and outgoing)? What Couriers do you deal with? Account numbers for Couriers.

k. Email: How do you organize/file your email? D

I. Office Hours: What are your office hours? D

m. Office Security: Where to obtain information and who to D contact about office security systems (e.g. alarm system) .

n. Service of Documents: How do you accept or admit service? D

8 Make sure all your file deadlines (including follow-up deadlines) D are calendared.

9. Document your files so the Replacement Lawyer reviewing them will 0

know what has happened to date and the next steps. 10.

11.

Keep your accounting and time and billing records up to date. D

Ensure that you have sufficient funds available to the Replacement Lawyer D

to cover office overhead and expenses for a period of time.*

12. Be sure to tell your bank in advance that the Replacement Lawyer D will have s i gn ing authority on your accounts and when that triggered. Choose your authorized signer wisely . He or she will have access to your clients' funds.

* A li ne of credit issued to a lawyer may not advance funds after the lawyer's death or disability.

Page 423 of 486

00097761-1

Introduce your Replacement Lawyer to your office staff. Make certain D

Ensure they know how to contact the Replacement Lawyer if an emergency occurs before or after office hours.

13 . Consider your insurance, including: professional liability insurance 0

coverage, property insurance (if you own your building) and tenant's insurance (if you do not); contents insurance, including extra riders for computers or other equipment of significant value; commercial general liability for third-party bodily injury or property damage; business interruption insurance ; crimes coverage; and disability, fife, or other appropriate personal coverage .

14. Review your written agreement with your Replacement Lawyer annually,

Page 424 of 486

00097761-1

Notice of Replacement Lawyer

[This is a sample only - modify as appropriate]

I, have authorized the following lawyers to assist with [the closure of my practice] /[managing my practice while I am unable to do so]:

REPLACEMENT LAWYER:

Name: NSBS Member No. Address: Telephone: Cell Phone: E-mail address:

SUBSTITUTE:

Name: NSBS Member No. Address: Telephone: Cell Phone: E-mail address:

Executed in the City of in the Province of .

Signature: Date:

Page 425 of 486

00097761-1

Consent to Release Information to the

Nova Scotia Barristers Society and LIANS

[This is a sample only - modify as appropriate]

I authorize the Nova Scotia Barristers Society and LIANS to disclose information regarding my membership and insurance status, and that of my professional corporation, to my Replacement Lawyer and Substitute, and to accept direction from him/her regarding changes or renewal of either.

Replacement Lawyer’s Name:

Address:

Phone number: Email:

Substitute Lawyer’s Name:

Address:

Phone number: Email:

I have authority to sign this document and authorize the use or disclosure of protected information to my Replacement Lawyer and Substitute. There are no claims or orders pending or in effect that would prohibit, limit or otherwise restrict my ability to authorize the use or disclosure of this information.

Executed in the City of in the Province of .

Signature: Date:

Page 426 of 486

00097761-1

Letter from Planning Lawyer Advising Clients that He/She Closing Down Practice*

[This is a sample only – modify as appropriate]

Dear [Client]: Re:

[Matter]

I will be [retiring from the practice of law/closing my law practice] on [date] and will no longer be able to act as your lawyer after that time.

A review of my records indicates that you have the following file(s) or documents at this office:

1. [file name] [Relevant details, e.g., open file, wills, trust funds, corporate records,

etc.]

You have several choices about how to proceed now that I will no longer be able to assist you:

I have made arrangements with [insert law firm name/Replacement Lawyer’s name] to take over your files provided you agree that he/she has no conflict in representing you.

You can chose a different lawyer to take over your files. I would be happy to provide you with a list of other local lawyers who practice in the area of law relevant to your legal needs.

You can choose to proceed without any lawyer representing you.

I am sending you two copies of this letter. Please let me know what you would like to do by indicating your choice below and returning a signed and dated copy of this letter to me. The other copy is for you to keep for your records.

Since there may be important time deadlines that can affect whether legal cases wi l l succeed, it is imperative that you let me know your decision about a new lawyer as soon as possible so that your case is protected and there is no interruption in the handling of your files.

Once you have decided, would you also contact me as soon as possible to make arrangements to obtain your [file/files] or to provide me with instructions to forward [it/them]

___________________________ * This letter has been adapted from a sample letter prepared by Ian Doddington and Dave Bilinsky of the Law Society of British Columbia

Page 427 of 486

00097761-1

to new counsel, including any balance of funds remaining in trust.

Within the next [fill in number] weeks, I will be providing you with a final invoice for the work I have done on your behalf and a full accounting of the money I am holding for you in my trust account.

For many legal files, notifications of the change in solicitor must be given promptly to avoid any legal steps being taken against you. Your new lawyer can do this for you or I would be pleased to assist you in this regard before [date]. Unclaimed trust funds will be sent to the Public Trustee. Other documents that are unclaimed may eventually be destroyed.

[For corporate records clients:] I note that my office serves as a registered and records office for [name of company]. I cannot continue to provide this service after [date]. Please let me know where your new records office must be filed with the government. Your new lawyer can do this or I will be pleased to assist you in this regard before [date]. Failure to notify the government can result in the company being struck off the rolls of incorporated companies. All assets of the company would then revert to the crown.

I look forward to hearing from you as soon as possible.

If you or your new lawyer need a copy of a closed file, please do not hesitate to contact me to make the necessary arrangements.

I have appreciated the opportunity of serving as your lawyer. Please do not hesitate to give me a call if you have any questions or concerns.

Sincerely,

Instructions:

I would like my file to be transferred to [name of new lawyer/law firm]

I will be retaining new counsel but I am still making the necessary arrangements. I will have them contact you once they have been retained.

I will be proceeding without a lawyer representing me.

___________________________ Client Signature

_________________________ Date

Page 428 of 486

00097761-1

Letter from Replacement Lawyer Advising Clients that

Lawyer Unable to Practice*

[This is a sample only – modify as appropriate]

Dear [Client]: Re:

[Matter]

I am writing you let you know that due to ill health/his/her recent passing, [Lawyer] is no longer able to serve as your lawyer.

He/she has made arrangements for me to assist with his practice however and to help his/her client’s transition to new lawyers.

A review of [Lawyer’s] records indicates that you have the following file(s) or documents at this office:

1. [File name] [Relevant details, e.g., open file, wills, trust funds, corporate

records, etc.]

You have several choices about how to proceed with your case now that [Lawyer] will no longer be able to assist you:

You can retain me to take over. You can choose a different lawyer to take over. You can proceed without any lawyer representing you.

I am sending you two copies of this letter. Please let me know what you would like to do by indicating your choice below and returning a signed and dated copy of this letter to me. The other copy is for you to keep for your records.

If you would l ike to m ee t and d iscuss th is , p lease do no t hes i ta te to contac t m e at [telephone number or by email at [email address] to arrange a meeting.

Please note that until we meet and have signed a new retainer agreement, I do not consider that you have hired either me or my firm and we will not be taking any steps on your file. [If there are urgent steps needed to protect the client’s interests, confirm that you will do so for that reason but that you will not be taking any other actions until retained.]

________________

* This letter has been adapted from a sample letter prepared by Ian Doddington and Dave Bilinsky of the Law Society of British Columbia

Page 429 of 486

00097761-1 - 21 -

Since there may be important time deadlines that can affect whether your case will succeed, it is important that you let me know immediately what you would like to do. So that there is n o interruption in the handling of your files, I look forward to hearing from you as soon as possible.

You will soon be receiving a final account relation to the work [Lawyer] did for you, which will include any outstanding balance you owe [him/her] and an accounting of any funds [he/she] was holding for you in [his/her] trust account.

Please feel free to contact me with any questions you might have. Yours

truly,

[Replacement Lawyer]

Instructions:

I would like my file to be transferred to [name of new lawyer/law firm]

I will be retaining new counsel but I am still making the necessary arrangements. I will have them contact you once they have been retained.

I will be proceeding without a lawyer representing me.

___________________________ Client Signature

_____________________ Date

Page 430 of 486

Appendix 2 – Succession regulatory requirements in Maine and Saskatchewan

Maine State Bar Proxy Designation

Rule 1(g) Roster of Lawyers. The Board shall maintain current information relating to all lawyers admitted to the Maine Bar including, but not limited to, the following:

(1) full name and all names under which the lawyer has been admitted or practiced; (2) date of birth; (3) current office address, telephone number, and email address; (4) current residence address, telephone number, and email address; (5) date of admission to the Maine Bar; (6) registration status and the date of any transfer to or from a status; (7) social security or federal identification number; (8) other jurisdictions in which the lawyer is admitted and date of admission; (9) location and account numbers in which clients’ funds are held by the lawyer; (10) nature, date, and place of any discipline imposed and any reinstatements in any other jurisdiction; (11) whether the lawyer, if engaged in the private practice of law, maintains professional liability insurance (see Rule 4(b)(4)); (12) if engaged in the private practice of law in Maine, the name of an active status attorney who has consented to serve as a proxy on behalf of the attorney (see Rule 32); and (13) the bar number assigned to every admitted lawyer.

The information submitted pursuant to this rule shall be made available to the public with the exception of information deemed confidential by the Board.

What is a Proxy? A proxy is an attorney who will act to protect the interests of clients to manage or conclude the law practice of an attorney who is incapacitated, suspended, disbarred, disappears, or dies. Active Maine attorneys who indicate they are in private practice must designate a proxy when completing the annual registration process.

Who can serve as a proxy? Any active Maine attorney who has given his/her consent may be designated as a proxy. A proxy does not have to engage in the same fields of law as the requesting attorney. A proxy performs functions similar to a triage nurse: Determining the needs of the clients and sending the clients in the right direction.

Does the proxy requirement apply to partners or associates of a law firm? Yes. There is no exclusion for partners or associates of law firms. Much like the IOLTA registration statement, each active status attorney engaged in private practice must complete the designation.

Page 431 of 486

Does the proxy requirement apply to non-resident attorneys? Yes. There is no exclusion for attorneys who do not reside in Maine. If a non-resident attorney engages in the practice of law in Maine, a proxy must be designated.

Why is this necessary? It is a matter of diligence. Any of us could be injured in an accident, or could suddenly suffer a debilitating illness. An inability to work on client files results in ethical issues. “A lawyer shall act with reasonable diligence and promptness in representing a client.” M. R. Prof. Conduct 1.3. “To fulfill the obligation to protect client files and property, a lawyer should prepare a future plan providing for the maintenance and protection of client interests…Such a plan should, at a minimum, include the designation of another lawyer who would have the authority to review client files and make determinations as to which files need immediate attention…” Formal Op. 92-369, ABA Standing Committee on Ethics and Professional Responsibility, Dec. 7, 1992. See also M. R. Prof. Conduct Rule 1.3 Cmt. [5].

Why is consent necessary? Professional courtesy is a factor. Commitment is another. The designating attorney and proxy must realize there will be work involved. If the designating attorney’s practice is reasonably well organized, the proxy’s work will be performed more efficiently. At a minimum, the proxy should be satisfied the designating attorney can provide requisite information for the proxy to make decisions. A list of pertinent information is {link to list #1}. The proxy needs to know what she/he is agreeing to undertake, and assess whether it will be difficult it will be to perform the required tasks.

Can the client hire the proxy? Conflict of interest rules must be followed. The client must understand the proxy has not been appointed to represent the client. The client should also understand that the client is under no obligation to have the proxy represent the client, and the client is free to select any Maine attorney. If there is no conflict of interest, and if the client knows what choices are available, the client can hire the proxy as her/his attorney.

What will the proxy be expected to do? The proxy may be called upon to close the practice of an attorney who can no longer practice. Alternatively, the proxy will oversee the operation of the practice until the attorney can resume work. Closing the practice will involve such activities as transferring files out of the attorney’s office. The files may go to the client or to an attorney designated by the client. Office services will be terminated. Employees will be discharged. Bills will be generated for work in progress. A secure system for accessing closed client files will be established, including a process for destruction of those files when requisite time has passed. {See checklist, #2 attached. (For a possible checklist, see…)} Alternatively, if the attorney is expected to return to practice, the proxy will oversee the operation of the office. Clients would be notified of the attorney’s temporary absence. Depending on the circumstances, clients may have to be advised to secure the assistance of alternative counsel. It is highly recommended that the attorney and the proxy have a clear understanding regarding the intent of the attorney, the financial implications of continuing to operate the practice without a primary income producer, and related issues.

Is a proxy exposed to claims or disciplinary action? A proxy must follow the Rules of Professional Conduct. Confidential information must be protected. Conflict checking and screening is mandatory. If the proxy is appointed as a Receiver under (Revised) Maine Bar Rule 32, the proxy/Receiver will be immune from liability for professional services rendered. Consultation with Bar Counsel is necessary.

http://www.mebaroverseers.org/attorney_services/registration/proxy_designation.html

Page 432 of 486

http://www.mebaroverseers.org/attorney_services/registration/proxy_designation.html

Law Society Saskatchewan Succession Plan 1801. (1) A member who practices with a firm shall maintain a succession plan for the member’s law practice. (2) A member’s succession plan shall contemplate the unique arrangements that will be necessary in the event of each of the following:

(a) temporary disability; (b) long term disability; and (c) death of the member.

(3) At a minimum, a member’s succession plan shall include adequate arrangements for clients, including management of the following where applicable:

(a) open and closed files; (b) wills and wills indices; (c) titles and other important documents and records; (d) other valuables; (e) trust accounts and trust funds; and

(f) other accounts related to the member’s practice; and any other arrangements necessary to carry on or wind up the member’s unique practice.

[Rule 1801 Succession Plan added May 2, 2014, effective July 1, 2014]

Page 433 of 486

- 1 -


From: Darrel Pink

Date: December 29, 2017

Subject: Succession Planning - Workshop The Succession Planning Working Group raised three broad issues for Council to consider:

1. Succession planning should be made mandatory for all lawyers/law firms and the obligation should be they must confirm with the Society that the current plan exists and where it can be found.

2. The Society should by regulation, policy, or standard, create clear rules that allow lawyers/law firms to destroy files after 15 years.

3. The Society should provide support by way of education and otherwise to assist lawyers/law firms in carrying out their succession planning obligations.

Following the introduction of the Report to Council it was circulated to all sole practitioners and designated lawyers at law firms. The feedback received, while not extensive, is helpful and is included in the Responses from Consultation that appears below. Council is now asked to consider the Working Group Report, the feedback, and members’ own perspectives to advance this work. Because the nature of resources for the profession will be part of Legal Services Support, Council need not reflect on that aspect of the Report. However, in the two other areas, Council is asked to dive a little deeper into the Working Group Report and add its thoughts from a policy perspective. Some of the questions to be considered are:

1. Establishing a Regulation requiring succession planning. - Are the elements identified by the Working Group comprehensive? - Are there any other things that should be added in content of the Regulation? - Review the draft Regulation and comment on the proposed wording. - Does Council favor enactment of a Regulation? - If so, what are its views on timing or coming into effect of such a requirement?

2. Establishing provisions regarding file destruction

Page 434 of 486

- 2 -

Given that file retention and storage have been identified by the profession as a significant issue and given that the Working Group has recommended the Society should clearly enable/authorize file destruction, Council is asked to consider:

- Is it the role of the Society, as the public interest regulator, to authorize the

destruction of client files? What is the public interest that would provide the foundation for Council’s action on this topic?

- If the Society was to act, should it do so by means of amendments to the Legal Profession Act, regulations, or professional standards? Provide reasons for each approach.

- Is there sufficient information in the Working Group Report or does Council need additional material?

- Can Council Members identify types of files they would want to see exempted from the file destruction authorization?

3. When considering the results of the consultation process are there specific

suggestions or other items identified that ought to be reflected in any of the Council policy decisions?

Action by Council Council will be asked to pass a resolution that reflects the results of the workshop discussions. A resolution may be prepared before the formal meeting of Council is completed, or will be deferred until the March meeting.

Responses from Consultation

1.Do you believe the Society should mandate all lawyers working in private practice to have a succession plan? Why or why not?

Mandating a succession plan is reasonable albeit not necessary. Succession planning is like having a will for the practice of law. Yes, you can die without leaving a will, but intestacy is not ideal and neither is the sudden cessation of a lawyer's practice without someone who has some idea of how to wind the specific practice down or otherwise deal with the existing clients and files. Avoiding the expense and headache of having a receiver or other stranger to the practice, will benefit clients and save the Bar unnecessary expenses. Yes. A formal requirement is the only way to ensure all lawyers adhere to best practices with respect to succession planning. For example, when a lawyer goes out of practice, they should be required to notify certain clients (e.g. - Wills clients). The public/clients are entitled to know where their files are located and this would significantly reduce the number of lost original/foundation documents. Not all members require a succession plan. Some practicing members with a restricted practice do not have estate, real property etc. files or files that do not contain client materials. Those who focus on administrative decision making in various tribunals do not share the risks for succession planning that a general practitioner does. Their adjudicative work creates a record which is permanent. No Doubt - this is a substantial concern that must be addressed expediently.

Page 435 of 486

- 3 -

I am a sole practitioner. I am not in favour of Mandatory Succession Planning. It has been my experience that additional regulations at the NSBS merely cause me more work, lead to more infrastructure, and lead to more costs in my annual fees. I already spend too much of my non – paying working time reviewing and filing documents for the NSBS, CRA, and the NSRJS Office. I had been given the impression this year at the annual NSBS meeting that we practitioners would be called upon to provide less filing paper – work, not more. We should look to what other Bar Societies/Professional Organizations have done. We can't be the first to face this issue. There should be a mandated succession plan provided that the Society provides sufficient resources and guidance to allow for the establishment of these plans. I am of the view that this is necessary to achieve a proactive approach to regulation, however there must be guidance provided by the Society to allow lawyers, particularly solo and small firms lawyers, to effectively meet this requirement.

2.Have you witnessed/experienced/encountered any of the challenges or implications surrounding succession planning (or lack thereof) that are raised by the report in your own practice/firm? If so, what was the situation? How did/didn’t you/he/she deal with the situation? How might have some of the recommendations made by the report been helpful/unhelpful at the time?

My practice is relatively unique. It is largely limited to commercial real estate in the U.S. As a result, there is no lawyer known to me in Nova Scotia that would be capable of winding down my practice or taking over my existing files. As a result, I have a U.S. lawyer named in my succession plan who was only willing to assume the role because of our long term professional and personal relationship. It could be a challenge for some lawyers to find successors that are suitable for stepping in. I think the Bar needs to provide for this possibility by identifying and providing lawyers that are willing to take on the role. I have witnessed many lawyers who have issues with file storage/retention. Although I sympathize with this challenge as it relates to old files, there is simply no reason this needs to be an issue with current/new files. There should be a mandate to keep an electronic copy of all files going forward. This minimizes storage costs and removes the excuse that record retention/destruction is too complicated and costly. If lawyers choose to keep hard copies, that should be their right, but it is no longer necessary given the advancement of today's practice management technology options. No Whether we have a plan or not, I can see that it will take a considerable amount of time and money to close off my practice if I was to die suddenly even if the files were all documented or a note is put in the file annually if it has not closed The NSBS should focus on education, helpful tips, limitation periods for file destruction, and providing a list of practitioners willing to take over a retiring lawyers` practice. Part of the succession issue is that older lawyers are generalists, while new lawyers are specialists. Older lawyers really only trust older lawyers to take over their practice. The Bar could create a directory of lawyers prepared to be engaged by a sole practitioner to take over and shut down a retiring lawyer`s practice.

3. In your opinion, what would be the best form of support/resources the Society could offer in regards to assisting with succession planning procedures?

I think lawyers should be furnished with model forms of succession plans that are consistent with the proposed regulations, and adoption of which will be deemed to satisfy the regulations. Handbooks, worksheets, checklists, along with one-on-one support or training for those lawyers who feel they need extra help implementing a succession plan or who do not pass an audit of their succession plan.

Page 436 of 486

- 4 -

Perhaps maintain an inventory of resources and members willing and able to assist a retiring sole practitioner so the member can make the arrangements themselves. Should be time limit on files having to be retained. I've heard thirteen (13) years mentioned. That may work only as to responsibility to retain files. But what about evidence within files which may, and likely would, address liability n the conduct of the file historically? Simple example: I've had clients who accusingly approached me years after I'd simply prepared a deed on their instruction with material supplied by the client, and historic instructions from that client to search title -- in time the client and/or successor found title deficiencies. Only the file record would show what the instructions were and what was done. I am presently in the process of closing one estate for another lawyer which had but a few files to take care of as his death was not sudden and time was spent in preparation for that event . None the less, it was still difficult to deal with finding the files and having the trust monies disposed of etc. My experience: Fortunately, after more than forty years of practice, I have never experienced the type of problems encountered by the Society as a result of a lack of succession planning. I did, however, have an experience which caused me to reorganize my records so that they can be passed along to another caretaker who will be able to:

(i) identify and access client files by client name; and (ii) access retained files, including foundation documents on an external, portable hard

drive. In 2010, I suffered a small stroke. Fortunately, this only caused me minor problems. This was a wakeup call for me. After that event I completely reorganized my office so that someone could walk in and find everything easily. I took the following steps to accomplish this:

(i) I shredded all my dead files that were not required to be retained; (ii) I scanned all the files that I retained, including files that contained foundation documents, so they are in digital (and portable) format; (iii) I created a Microsoft Access database containing a complete catalogue of every file I have ever handled; (iv) I purchased an external hard drive and transferred to it electronic copies of every file for which I had electronic data from old shredded files and all more recent files which I scanned into electronic medium; (v) I maintain that hard drive so that it is current at all times so that if an event ever occurs which disables me it would be right up to date for the benefit of a caretaker.

The lack of regulatory guidance relating to appropriate file retention periods is a significant issue. In developing my own retention policy, I found significant variation in the recommended best practices materials and little direct advice from the Society. I adopted a retention policy that was reasonable given the nature of my practice and the current limitations legislation. It would be helpful to have greater clarity as to the acceptability of my policy from a regulatory perspective. I strongly agree with the comments in the Succession Planning Working Group Final Report in this regard. I encourage adoption of practical and proportionate guidance in relation to file retention, as well as guidance which assists lawyers in understanding the processes and opportunities for electronic storage.

4. What do you think would be the best way of educating legal professionals about

succession planning? E.g. Informational sessions/seminars, handbooks, webpages, etc.

I think a combination of resources should be made available to educate lawyers. An informational session that is accessible online and web pages are probably adequate. Web works, also include on agenda for CLE events. Since the society has spent monies to rectify some past situations, yes it would be appropriate to run sessions, courses, etc, but most important to hire staff dedicated to helping lawyers who wish to retire. It would be monies well spent and it would protect the public in the long run. These staffs could work with helping lawyers organize their retirement plan, document files, make certain the lawyer has a will and power of attorney appointing another lawyer to deal with his files and how, etc.

Page 437 of 486

- 5 -

I would recommend that the Society make the following resources available to solicitors so that they can put proper procedures and safeguards in place:

(i) provide a list of the steps which must be completed before a practice can be would down (already in place); (ii) provide a definitive guideline for the destruction of files; (iii) provide a guideline for the creation of a catalogue of all files ever handled by the firm so that if an outside inquiry is ever made it can be determined when and by whom a file was handled and whether any records were ever retained; (iv) provide a guideline suggesting how files should be stored in digital format (root directory, subject headings, etc.); (v) provide a Society repository for electronic data of any and all firms that are wound up so that:

(a) lawyers have a place they can deliver their information to when shutting down practices; and (b) the information is accessible to the public in perpetuity.

The Society should • Provide clarity regarding retention periods • Provide direction in relation to the use of electronic records (what original documents need to be

maintained?) • Recognize for solo practitioners, particularly in rural areas, identification of a replacement lawyer

may be challenging. The Society should provide assistance in identifying/recruiting potential replacement lawyers.

• Provide clarity in relation to the ability to provide confidential information to replacement lawyers. It is unfortunately not practical to deal with this solely by retainer letters and/or seeking consent from each client, particularly with respect to historical files. There needs to be a practical approach which recognizes the potential suddenness of the assumption of control. The Society's support and resources must not be focused solely on the lawyer who is planning the succession, but also on supporting the replacement lawyer to be able to practically manage the practice while minimizing the stress of their assumption of the role. Otherwise no one will agree to act as a replacement lawyer which will prevent proactive management of the issue no matter the quality of the regulation. The Society may also need to provide guidance on the acceptability of remuneration of replacement lawyers.

5. Do you believe that file destruction is something that should be regulated and/or

mandated by the Society?

Yes, clearer controlling regulation of file destruction practices is needed. A major impediment to an efficient and appropriate system is the cost to individual lawyers. Dues and insurances, as are other necessary and associated costs, are burdensome. Is it reasonable to add to that? Already legal fees to clients are becoming prohibitive. and, who's to pay if not the client? Suggestion: Surcharge on every file, to be billed to Client, similar to HST in theory, if not amount, to be held in trust, and regularly (once per month; once every 6 months) to the body which becomes responsible, and liable for this succession of files.

The Society could have a volunteer list of mentors who have already retired. Lawyers could also enter into an agreement with the Society to be part of a program or group set up periodically by staff to organize and plan for the closing of your practice upon retirement or sudden death. It would have the benefit of having individual or group sessions over a certain period of time. It would have added benefit of going through the process with other lawyers who have similar challenges. Has the Society explored the possibility of finding a group insurer who would insure the lawyer's practice in the event of death or retirement due to incapacity so someone can step in and close off the practice. Closing off a practice and even putting in place a plan and documenting your files as you go is time consuming, a commodity that few lawyers have as sole practitioners.

Page 438 of 486

- 6 -

Imposing more obligations or regulations on sole practitioners is not fair without having some resource persons for support. It will make lawyers go through the motions which may not translate into effective planning plus the Society would have to have staff to reregulate and verify that the lawyers are complying. The Society should be proactive instead and set up a program as suggested above. A web site where information can be accessed is in place. That could be supplemented by ongoing CPD seminars/webinars to give lawyers the chance to provide feedback and ask questions which may be unique to their practices. Files not only serve as a record of information but are useful to draw precedents from. This is particularly so where complex documents are drafted or complex legal issues are researched. If those files were destroyed this would be de facto destruction of a useful resource or asset. It seems to me that if the Society wishes to regulate file destruction it should do so on the basis that the Society defines when certain types of files may be destroyed with the proviso that it is in the firm’s discretion whether the files be retained or actually destroyed. I would suggest an approach similar to legal services regulation which would involve a variety of educational approaches. Availability of resources on the NSBS website as well as informational sessions would be key from my perspective.

6. Is there anything that you believe has been neglected from the Working Group’s Report? If so, please specify.

If succession planning is obligatory, lawyers should have the option to pay an annual assessment/surcharge to the NSBS each year that a plan is not in place, to cover the estimated cost of winding down their practices. On the issue of file destruction, yes we should be able to destroy some files upon a reasonable amount of time. Should it not be an option to destroy some types of file once it has been given to the client? Is the client not the owner of the file so why can he not be responsible to retain the file? On the more general front, we sole practitioners just don`t have the available time to provide more “Reports” to the Bar Society. It is fine for a law firm when someone retires, another firm member merely steps up and assumes that practice. So, the NSBS should consider a different approach for sole practitioners, and spend time understanding the time, money, and work constraints. I am for educational actions and practice recommendations by the Bar, and not more Mandatory Regulations.

Page 439 of 486

00108254-1



Date: May 18, 2018


Searching Names Date November 17, 2017


May 18, 2018 Council

Approval

Recommendation/Motion: This is a revised Standard 4.3 – Searching Names presented by the Professional Standards (Real Estate) Committee for approval. Following introduction of the revisions recommended by the Committee to Council on November 17, 2017, the Committee communicated the proposed revisions to the membership for review and consultation. The membership made no comments and accordingly, the Committee is presenting the revised Standard to Council for approval. Executive Summary: In the course of the Committee’s ongoing review of the real estate standards, the Committee noted that the General Comment section appears to overlap with Standard 4.4 – Identification. It is the Committee’s opinion to remove the General Comment. In addition, the Committee observed that the format of the current Standard does not adequately separate the section on the PPSA from the section on the Land Registration Act. Accordingly, the Committee is of the opinion that there be a separate heading for the PPSA. The draft (attached) is in the usual three-column format. Exhibit: Revised Standard 4.3 Searching Names with rationale for the revisions.

Page 440 of 486

00108254-1

Existing Standard Proposed Standard Rationale General Comment

A lawyer who is retained by a client must obtain and record the client’s identification as prescribed by the Regulations made pursuant to the Legal Profession Act for the purpose of identifying the client.1

Real Property

Registry Act

A lawyer who is retained to offer an opinion of title for a parcel of land not registered pursuant to the Land Registration Act should conduct searches based on the applicable naming standard to determine any party with an interest affecting real property interests and judgments, or advise the client(s) in writing if no applicable name searches are conducted and the possible consequences of not conducting those searches.2

Land Registration Act

A lawyer shall conduct searches based on the applicable naming standards prescribed by the Land Registration Act3 and its regulations4 to determine any party

STANDARD Real Property Registry Act A lawyer who is retained to offer an opinion of title for a parcel of land not registered pursuant to the Land Registration Act must conduct searches based on the applicable naming standard to determine any party with an interest affecting real property interests and judgments, or advise the client(s) in writing if no applicable name searches are conducted and the possible consequences of not conducting those searches.1 Land Registration Act A lawyer shall conduct searches based on the applicable naming standards prescribed by the Land Registration Act2 and its regulations3 to determine any party with an interest affecting real property interests and the applicability of judgments.4 Personal Property When conducting searches in the Personal Property Security Registry, a lawyer shall conduct inquiries5 based on applicable naming standards prescribed by the Personal Property Security Act General Regulations6 to determine encumbrances

In reviewing this Standard, the Committee noted that the General Comment section appears to overlap with Standard 4.4 – Identification and accordingly, the Committee is of the opinion that the General Comment be removed. In addition, it was noted that the format of the Standard in its current form may not adequately separate the section on the PPSA from the section on the Land Registration Act. Accordingly, a separate heading for the PPSA is added.

Page 441 of 486

http://www.canlii.org/en/ns/laws/stat/sns-2004-c-28/latest/sns-2004-c-28.html




00108254-1

with an interest affecting real property interests and the applicability of judgments.

Personal Property

When conducting searches under the Personal Property Security Act, a lawyer shall conduct inquiries5 based on applicable naming standards prescribed by the Personal Property Security Act General Regulations6 to determine encumbrances and judgments which attach to the personal property.

A lawyer whose retainer does not include offering an opinion of encumbrances and judgments7 should advise the client in writing if no applicable name searches are conducted and the possible consequences thereof.8

Footnotes

1. Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28, s. 4.5.3-4.5.13 2. Standard 1.5 - Documentation of Advice and Instructions. 3. Land Registration Act, S.N.S. 2001, c. 6, ss.66A and 68. 4. Land Registration Administration

and judgments which attach to the personal property. A lawyer whose retainer does not include offering an opinion of encumbrances and judgments7 should advise the client in writing if no applicable name searches are conducted and the possible consequences thereof.8 FOOTNOTES 1. Standard 1.5 - Documentation of Advice and Instructions. 2. Land Registration Act, S.N.S. 2001, c. 6, ss.66A and 68. 3. Land Registration Administration Regulations, ss.2(2) and 26 4. Standard 3.5 Judgments 5. Standard 5.2 - Personal Property 6. Personal Property Security Act General Regulations, s. 19-21; see also Robie Financial Inc. v. Pye, 2009 NSSC 397 for the consequence of an error in registering the name of a debtor pursuant to the Personal Property Security Act. 7. Standard 5.2 - Personal Property 8. Standard 1.5 - Documentation of Advice and Instructions.

Page 442 of 486

http://www.canlii.org/en/ns/laws/stat/sns-1995-96-c-13/latest/sns-1995-96-c-13.html

http://www.canlii.org/en/ns/laws/regu/ns-reg-129-97/latest/ns-reg-129-97.html



http://www.lians.ca/real_estate/standards/part_i_general_principles_of_certifying_title/15_documentation_of_advice_and_instruction/




00108254-1

Regulations, ss.2(2) and 26 5. Standard 5.2 - Personal Property 6. Personal Property Security Act General Regulations, s. 19-21; see also Robie Financial Inc. v. Pye, 2009 NSSC 397 for the consequence of an error in registering the name of a debtor pursuant to the Personal Property Security Act. 7. Standard 5.2 - Personal Property 8. Standard 1.5 - Documentation of Advice and Instructions.

Amended by Council on May 23, 2014

Page 443 of 486


http://www.lians.ca/real_estate/standards/part_v_off_title_inquiries_and_miscellaneous_matters/5.2_personal_property/



http://www.canlii.org/en/ns/nssc/doc/2009/2009nssc397/2009nssc397.html?searchUrlHash=AAAAAQANMjAwOSBOU1NDIDM5NwAAAAAB

http://www.canlii.org/en/ns/laws/stat/sns-1995-96-c-13/latest/sns-1995-96-c-13.html

http://www.lians.ca/real_estate/standards/part_v_off_title_inquiries_and_miscellaneous_matters/5.2_personal_property/



00108256-1



Date: November 17, 2017


Identification Date November 17, 2017


Council

Approval

Recommendation/Motion: This is a revised Standard 4.4 – Identification presented by the Professional Standards (Real Estate) Committee for approval. Following introduction of the revisions recommended by the Committee to Council on November 17, 2017, the Committee communicated the proposed revisions to the membership for review and consultation. The membership made no comments and accordingly, the Committee is presenting the revised Standard to Council for approval. Executive Summary: In the course of the Committee’s ongoing review of the real estate standards, the Committee noted the identification standard was lacking reference to the use of personal health information. The Committee is of the opinion that there should be a reference to the Personal Health Information Act. The draft (attached) is in the usual three column format. Exhibit: Revised Standard 4.4 Identification with rationale for the revision.

Page 444 of 486

00108256-1


Standard

A lawyer must take reasonable steps to confirm the identity of a person who:

(a) signs a document in a transaction where the lawyer is responsible for the proper execution of the document;

(b) executes a document the lawyer witnesses;

(c) swears an affidavit before the lawyer; or

(d) gives a solemn declaration to the lawyer.1

The lawyer must take reasonable steps to document the confirmation in the lawyer’s file or by other means.

Footnotes

1. Regulations made pursuant to the Legal Profession Act, S.N.S 2004, c.28, s. 4.5; Yamada v. Mock, (1996) 29 O.R.

STANDARD A lawyer who is retained by a client must obtain and record the client’s identification as prescribed by the Regulations made pursuant to the Legal Profession Act for the purpose of identifying the client. A lawyer must take reasonable steps to confirm the identity of a person who: (a) signs a document in a transaction where the lawyer is responsible for the proper execution of the document; (b) executes a document the lawyer witnesses; (c) swears an affidavit before the lawyer; or (d) gives a solemn declaration to the lawyer.1 The lawyer must be aware of what identification may be relied upon.2 The lawyer must take reasonable steps to document the confirmation in the lawyer’s file or by other means.3

FOOTNOTES

1. Regulations made pursuant to the Legal

Profession Act, S.N.S 2004, c.28, s. 4.5;

In reviewing this Standard, the Committee noted that there should be reference to the use of use of personal health information when it comes to identifying clients.

Page 445 of 486



http://www.canlii.org/en/on/onsc/doc/1996/1996canlii8024/1996canlii8024.html

00108256-1

(3d) 731. Supervision of employees: Legal Ethics and Professional Conduct Handbook (See Commentaries 19.4 (ensuring work done by qualified lawyer), 19.6 (work by legal assistant), 19.7 (supervision and education of legal assistant))

Approved by Council November 24, 2006

Yamada v. Mock, (1996) 29 O.R. (3d) 731. Supervision of employees: Legal Ethics and Professional Conduct Handbook (See Commentaries 19.4 (ensuring work done by qualified lawyer), 19.6 (work by legal assistant), 19.7 (supervision and education of legal assistant))

2. Personal Health Information Act, S.N.S 2010. C.41, s.27: Lawyers not authorized to collect or use an individual’s health card number.

3. Standard 1.5 - Documentation of Advice and Instructions.

Page 446 of 486

Notes for Item 4.5 – Council Mid-Term Evaluation and Orientation

Page 447 of 486

Notes for Item 4.6 County Bar Access to Library Services

Page 448 of 486

EXECUTIVE DIRECTOR 2017 JULY

Arrange for President/officers to meet with new AG Recognition reception – schedule Library – Joint Services Agreement

AUGUST Organize meetings - County Bar CBA, NSLA, PPS, DoJ (NS) Legal Services, Large Firms, Law Foundation(?), LISNS(?), other lawyer organizations(?) Legal Services Support: - finalize SAT implementation

plan - Devel.. Education Plan (Equity,

wellness, loss prevention, +)

SEPTEMBER Performance management – prepare goals, revise procedure Finance TF Succession Planning WG Report

OCTOBER Invite Minister to address Council in January Notices re election process - 2nd VP FLSC Conference Recognition reception By-elections

NOVEMBER Orientation for new Council members Law firm designation Trust year ends.- changing

DECEMBER Orientation for new ED

EXECUTIVE COMMITTEE 2017 JULY

Strategy for development of committee work plans Standards Committees – improving processes

AUGUST Meeting with new AG.- identify priorities Succession Planning – update Discuss purpose, goals and approach to meetings with CBA, NSLA, PPS, DoJ (NS) Legal Services, County Bars, Large Firms, LRC, Law Foundation, LISNS – identify Finance Task Force – Review priorities PPRC – expediting PR review and new processes

SEPTEMBER Blanket Exercise LSS/SAT Implementation Plan LSR regulations and policies Succession Planning Working Group Report Review committee work plans LIANS report to Council Finance TF report to Council and outline of income/fee options

OCTOBER Engagement Activities

NOVEMBER Review and prepare for Council 2018 Activity Plan Identify specific Committee activities Consider further amendments to LPA Consider new Council agenda format Update on Succession Planning consultation

DECEMBER Orientation for new ED

COUNCIL 2017 *Matters in italics are reports from the ED

JULY Orientation Pt. 2 – LIANS, FLSC Revised Council Policies FYI – Gender Variant Guidelines

AUGUST No meeting

SEPTEMBER LIANS report to Council Blanket Ceremony (?) Committee work plans - approve Legal Services Regulation – regs and policies Report on 2017 Annual Lawyer Report

OCTOBER No meeting

NOVEMBER

Communications Monitoring Report Approve 2018 Activity Plan Regulations to implement Legal Services Regulation

DECEMBER No meeting

Page 449 of 486

EXECUTIVE DIRECTOR 2018 JANUARY

Prepare for 2nd VP elections Commence Budget preparation

FEBRUARY Budget preparation and analysis of LSR expenses

MARCH Introduce budget 2nd VPelection if required

APRIL

MAY Audit Directors’ evaluations Annual Report & Annual meeting Fee invoicing and collection DSA selection

JUNE Annual meeting Fee collection Main Call to Bar

EXECUTIVE COMMITTEE 2018 JANUARY

Orientation for new ED Committee updates

FEBRUARY

MARCH Review budget

APRIL

MAY Managing Partners Roundtable

JUNE Committee updates

COUNCIL 2018 * Matters in italics are reports from the ED

JANUARY Communications Monitoring Report Administration Monitoring Report, including report on HR policies Updated Policies re CRC amendments Introduction of new ED Approval 2018 Activity Plan Workshop on Succession Planning Presentation on Ontario’s Paralegal Regulation Report on GNC nominee for 2nd VP

FEBRUARY No meeting

MARCH Budget Introduction/ debate/ preliminary approval Workshop on Equity initiatives LIANS Report to Council

APRIL In person meeting – Fee/budget approval

MAY PR Monitoring Report Succession Planning Report and Regulation Hearing Committee Report to Council Council Evaluation

JUNE Annual Meeting Council Mid-term Orientation

Page 450 of 486

YTD YTD YTD Actual vs OV/UN YTD YTD Actual vs Full Year Full Year Forecast vs OV/UNBudget Actual YTD Budget % Last Year Last YTD Actual Budget Forecast Actual % Note:

RevenueFees Revenue 4,928,744 5,005,665 76,921 1.6% 3,933,166 1,072,499 5,339,796 5,425,019 85,223 1.6% 1Education & Credentials 438,674 541,355 102,681 23.4% 555,849 (14,495) 455,125 567,880 112,755 24.8% 2Law Stamps 115,500 137,850 22,350 19.4% 127,175 10,675 126,000 146,000 20,000 15.9% 3Library Revenue 3,208 3,606 398 12.4% 3,065 541 3,500 3,825 325 9.3%Communications 12,100 5,595 (6,505) (53.8%) 12,100 (6,505) 12,100 5,595 (6,505) (53.8%) 4Interest/Investment 50,416 26,630 (23,786) (47.2%) 101,681 (75,051) 55,000 23,919 (31,081) (56.5%) 5Management Fee 45,833 58,332 12,499 27.3% 45,833 12,499 50,000 66,667 16,667 33.3%Other 4,583 15,732 11,149 243.3% 32,810 (17,078) 5,000 23,627 18,627 372.5% 6

Total Revenue 5,599,058 5,794,764 195,706 3.5% 4,811,679 983,085 6,046,521 6,262,531 216,010 3.6%

ExpensesProfessional Responsibility 1,695,476 1,175,426 520,050 30.7% 1,684,852 509,426 1,845,769 1,576,087 269,682 14.6% 7Education & Credentials 691,844 660,685 31,159 4.5% 770,726 110,041 752,345 733,151 19,194 2.6% 8Legal Services Regulation 164,907 124,104 40,803 24.7% 139,956 15,853 179,387 140,000 39,387 22.0%Executive Director's Office 349,972 499,286 (149,314) (42.7%) 2,606 (496,679) 379,309 461,756 (82,447) (21.7%) 9Equity and Access to Justice 239,201 194,091 45,110 18.9% 220,497 26,406 259,082 214,586 44,496 17.2%Governance & Committees 267,101 256,337 10,764 4.0% 359,801 103,464 291,384 288,937 2,447 0.8%Finance & Administration 1,060,466 992,202 68,264 6.4% 1,203,836 211,634 1,153,663 1,193,959 (40,296) (3.5%) 10Library 540,443 478,984 61,459 11.4% 494,419 15,435 588,273 533,121 55,152 9.4% 11Communications 193,740 198,942 (5,202) (2.7%) 173,880 (25,062) 210,480 249,807 (39,327) (18.7%) 12Governance and Regulatory 203,345 163,386 39,959 19.7% 215,012 51,627 221,831 176,136 45,695 20.6% 13

Total Expenses 5,406,495 4,743,442 663,053 12.3% 5,265,586 522,144 5,881,523 5,567,541 313,982 5.3%

Net Contribution to Surplus (Deficit) 192,563 1,051,322 858,759 446.0% (453,907) 1,505,229 164,998 694,990 529,992 321.2%

YTD YTD YTD Actual vs OV/UN YTD YTD Actual vs Full Year Full Year Forecast vs OV/UNBudget Actual YTD Budget % Last Year Last YTD Actual Budget Forecast Actual %

LFCC Revenue 73,333 (598) (73,931) -100.8% 47,197 (47,795) 80,000 (652) (80,652) (100.8%) 14

LFCC Expenses 164,000 144,825 19,175 11.7% 116,359 (28,466) 178,909 158,339 20,570 11.5% 15

Net Contribution To Surplus (90,667) (145,423) (54,756) 60.4% (69,162) (76,261) (98,909) (158,992) (60,083) 60.7%

Consolidated Net Contribution toSurplus (Deficit) 101,896 905,899 804,003 789.0% (523,068) 1,428,967 66,089 535,998 469,909 711.0%

Notes:1. The number of practising lawyers has exceeded the budgeted number, resulting in additional fees (Practising, Admin fees) revenue - 1,997 practising members compared to budget of 1,960 at March 312. The number of lawyers called to the Bar is projected to be 40% higher than budgeted, and Skills Course enrollment is up by 15% over budget, both resulting in increased Education & Credentials revenue.3. Increase in filings requiring law stamps in the summer of 2017 due to one time requirement, revenue has been closer to bduget for the remainder of the year.4. Reduced advertising revenue from publications (Society Record) and advertising reductions.5. Investment income based on current market value and repurchase of investments after cash reserves were replenished via annual (membership) fee payments.6. Other revenue has been received in relation to a Professional Responsibility conference - recovery of costs.7. There is an projected savings from a reduced number of Hearing days expected and budgeted, resulting in expense cost savings, portion offset by an increase in salary costs due to organizational restructuring.8. E&C expenses are projected to follow the budget for the fiscal year other than a slight increase in Skills Course expenses due to an increased number of participants offset by staff vacancies.9. The Executive Director unbudgeted recruitment costs are forecasted to be offset by the contingency item budgeted under Finance and Admin (9). Also, additional compensation costs due to restructuring.10. An increase in bank and credit card fees was larger than expected after the Society began permitting lawyers to pay annuals fees via credit card. Increase in Technology support costs and cyber insurance.

Hiring of internal Trust Auditor for Trust Assurance program.11. Reduction in staff complement and forecasted savings on subscriptions and books. 12. Increase in compensation due to severance and potential consultant costs due to organizational restructuring for this fiscal year.13. A renegotiated contract for the Lawyers' Assistance Program will result in savings for the fiscal year.14. Investment (interest and portfolio balance changes) income has been lowered than budgeted and expected to remain consistent. 15. Annual fee lower than budgeted, credit received as part of fee per lawyer received from CLIA.

BUDGET COMPARISON STATEMENT

NOVA SCOTIA BARRISTERS' SOCIETY - GENERAL FUNDBUDGET COMPARISON STATEMENTFOR THE PERIOD ENDING 2018-03-31

NOVA SCOTIA BARRISTERS' SOCIETY - LAWYERS' FUND FOR CLIENT COMPENSATION (LFCC)

FOR THE PERIOD ENDING 2018-03-31

Page 451 of 486

NOVA SCOTIA BARRISTERS SOCIETYFORECASTED RESULTS F BUDGET COMPARISON STATEMENT

PrefaceThe Finance Committee's Mandate refers to Management providing satisfactory explanations for all forecast variances that are greater than 5 percent (%) of budget or greater than $10,000 of budget In order to assist with the usefulness of the financial statements, color coding has been added to year end forecasted variance amounts. The items not coloured are considered “OK” within a 5% variance or an immaterial dollar amount threshold.Unless otherwise explained the forecast projected amounts are taken as straight-line projections based on year to date results at the time of the Financial Statements. Please see the "Notes Column" for description of method chosen and/or explanations.Green is savings/revenue projected better than budget, Red is expenses/revenue overage projected when compared to budget, Yellow are items to that have potential to fluctuate and will be monitored and are normally within 5% of budget.

SummaryYear to Forecasted Year-End

The Society has budgeted for an operating Surplus of $165,000 for the fiscal year 2017/18. Date Apr-18Compared to Budget the current year to date and Forecasted year-end results are listed as a Surplus (Deficit) 858,759$ 529,992$

and an total Forecasted Operating Surplus (Deficit) calculated as Revenues less Expenses of: 1,051,322$ 694,990$ *Found on bottom of IS7

RevenuesYear to Date Forecasted Year-End Previous Forecast

Membership Fee Revenue

Practising fees 48,057 55,513 48,069 The number of Practising lawyers is currently projected to be approximately 25 above the number budgeted.Instalment Admin. 8,200 8,200 8,000 Additional PAP and credit card fees due to increased number of practising lawyersNon-Practising fees (2,433) (2,460) (2,514) The number of Non-Practising lawyers has decreased from what was budgeted.Retired members 74 89 69 The number of Retired lawyers is on pace with budget

Incorporation (4,750) (4,750) (5,100)

Surcharges/Assessments 23,321 24,321 23,121 With the increase in number of practising lawyers compared to budget, the one-time Surcharge amounts arecurrently and projected to be slightly higher than budgeted.

Library Revenue 22,748 20,325 20,175 The number of Law Stamps purchased in the first 1/2 of the year has been higher than budgeted causing a small revenue surplus.

(6,505) (6,505) (6,505) The Society may only produce one printed copy of the magazine this fiscal year.

Investment Income (Realized and Unrealized gains inc.)

(31,682) (31,081) (25,138)

Sundry Revenue 11,149 10,732 10,732 Conservative forecast based on previous two years.

Management Fees - LIANS 12,500 16,667 16,667 Increase in LIANS management fee effective January 1, 2018

Education & Credentialing RevenueAdmission Fees 4,855 13,650 13,650 The number of lawyers called to the Bar is projected to be 40% higher than budgeted Application Fees 4,284 (1,250) 4,450 Requests for credentialing rulings and letters compared to what was expected in the budget.Other Credentialing Fees #N/A #N/A 7,625 The forecast includes a conservative estimate for the remainder of the fiscal year for.Exam Fees 12,725 12,725 12,725 Large number in the April Call to the Bar were transfers from other provinces who have to pay application feesTransfers-Applications & Materi #N/A #N/A 39,775 We have already seen a large number of transfers, the trend is forecasted to continue, similar to prior year.

Tuition 35,000 35,000 35,000 YTD Revenue variance from budget timing Estimate of a 10-14 extra students compared to budget at this time.

Society Record Advertising

The Society was able to replenish a portion of the investment holdings following the increase of cash available from the initial payment of lawyers' fees in June. Therefore, the balance and interest earned should increasethroughout the year and has been straight-line forecast for the rest of the year.

YTD variance is due to timing/month of revenue being recorded. Year end variance is due to estimated decrease due to pending Tax changes. 24 Law corps did not renew in January.

Page 452 of 486

NOVA SCOTIA BARRISTERS SOCIETYForecasted results for the fiscal year 2017/18 based on March 31, 2018 Financial Results

Professional Responsibility Department ExpensesExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

Salaries and Benefits (44,306) (111,990) (111,990) New staff and severance due to organizational restructuring. Rent 14,276 15,496 10,000 Parking correction Legal Fees/Professional Service 14,008 10,000 10,000 These expenses are under budget year to date but are expected to increase to budgeted levels by year end.

Investigation ExpensesCommittee Expenses 4,794 2,900 2,900 The number of CIC meetings has been reduced from 9 to 6, which should reduce the Committee expenses.Advertising 1,833 1,000 1,000 Estimating advertising prior to year end.

Lawyers' Services/Legal Fees 82,439 94,500 59,500 Currently projecting to equal budget, current investigations are underway and expect to result in costs that are Professional Services (7,602) (10,000) (15,000) similar to what was budgeted. Practise Investigations 21,083 18,000 3,000

Forensic Financial Audits 9,167 10,000 10,000 No forensic audits are expected this fiscal year. Trust Audit 37,268 38,000 40,000 Potential savings due to a reduced number of audits expected and hiring of internal Trust Auditor

Fitness to Practise Expenses Fitness to Practise 9,867 9,818 9,300 Forecasted to be slightly less than budget - based on previous two years of costs.

Prosecution & Hearing Expenses Committee Expenses 38,922 41,500 41,500 Reduction in number of Hearing days projected-HonorariumsFacilities Rentals 33,090 34,500 34,500 Reduction in number of Hearing days projectedLawyers' Services/Legal fees 215,207 81,800 176,800 Reduction in number of Hearing days projected - but recent increase in new HearingProfessional Services 39,755 36,000 36,000 Reduction in number of Hearing days projected

Practice Administration Advertising (2,005) (2,000) (2,000) Currently this area of expenses is being planned for. There are areas where assistance Professional Services (9,114) (9,943) (12,152) may have to be provided to lawyers. As a result, the forecasted expenses have been Wind-up Assistance 20,118 17,000 12,500 set to budgeted amounts. Administration/Practice Supervision 4,228 4,612 1,193 Receiver Fees 40,897 38,000 40,000 Custodian Fees (21,358) (50,000) (39,349)

Education & Credentialing Department Expenses Expenses Year to Date Forecasted Year End VaForecasted Year End Variances

Admissions Expenses 2,906 3,047 3,016 These costs have increased due to the 10-14 additional students who took part in the SkillsCourse this fiscal year. Revenues outweigh the increases in cost.

CPD Expenses 1,763 (1,077) (1,500) Currently CPD/LRA expenses are expected to trend to budget for the year.

Salaries and benefits 26,989 20,000 20,000 Short term vacancy, temporary reduction in hours.

Staff Professional Development 6,069 5,000 5,000 Timing of professional development will result in savings this year.

Lawyers' Services/Legal Fees (8,781) (9,400) 600 Legal support for Credentialing Committee

Page 453 of 486


Legal Services RegulationExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

Staff Travel 8,858 8,500 8,500 Fewer consultations and delays in project rolloutSundry Expense 1,833 2,000 1,000 Fewer consultations and delays in project rolloutLawyers' Services/Legal Fees 9,167 10,000 10,000 Potential savings in legal and professional fees due to a chance of delays in Act (LPA) amendments.

Professional Services 9,167 7,817 7,500 Potential savings in legal and professional fees due to a chance of delays in Act (LPA) amendments. Consulting Fees 9,167 10,000 10,000 Potential savings in legal and professional fees due to a chance of delays in Act (LPA) amendments.

Executive Director's OfficeExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

Salaries and compensation (83,698) (89,660) (89,628) Changes in staffing model due to Organizational restructuring and hiring of new Executive Director.

Staff Benefits 14,487 15,391 15,583 Timing and changes in benefit payments and rates.

Professional Development (1,937) (2,112) (2,593) Approved professional development

Recruitment Fees (72,518) - - Costs for Executive Director are being tracked against Contingency budget item.

Staff Travel 2,942 3,210 (390) Approved additional travel for Prof Development.

Equity and Access ExpensesExpenses Year to Date Forecasted Year End VaForecasted Year End VariancesSalaries and Benefits 28,248 28,248 22,614 Part time staff member hired to assist with Equity & Access work relating to a portion of the new

Strategic Framework.Food and Facilities Rental 2,621 2,859 749 Staff recognition event

Sundry Expenses (5,583) (6,091) (7,250) Staff recognition event and sponsorship for Indigenous event

Professional Services 12,359 12,500 4,000 Potential savings due to part time staff handling some of these functions.

Governance & CommitteesExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

Council - Meeting expenses (3,714) (4,053) (6,208) Projected meeting expenses

Council - Professional/Legal Fees 8,970 4,700 13,516 Fewer issues requiring outside legal advice

Council Committees - Meeting exp 635 (575) (575) The Society has purchased a Board/Committee meeting software management package designed to make the meeting process much more efficient. ED retirement receptions

Federation of Law Societies (9,011) (9,167) (3,002) Annual Society membership fees and meeting expenses higher than budgeted, a portionis expected to be recovered.

Library and Information Services ExpensesExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

Salary & Benefits 19,003 A 20,000 20,000 Savings due to restructuring of Library staff complement

Subscriptions & Books 32,960 24,570 35,269 Costs are estimated on a two year average and are based on contract pricing and purchases.Savings forecasted this fiscal year

Professional Services 308 - (700) Increased costs for support on projects, e.g. Code Web Platform

Page 454 of 486


General Operating ExpensesExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

Staff Travel (570) (900) (900) Staff travel greater than budgeted for conferences, portion may be recoverable.

Bank & Credit Charges (21,390) (21,000) (18,519) Payments received for practising fees have resulted in larger than budgeted credit card fees.

Equipment Rental & Maintenance 3,961 - (3,000) Repairs required to the voicemail system.

External Computer Support (15,805) (30,000) (35,000) Finalization of implementing the Society's new IT Infrastructure and back-up project. Also, the Society May be utilizing a consultant to continue developing the Database (iMIS) system and forms project

Staff Functions (7,686) (7,886) (7,789) ED Retirement staff event

Insurance (945) (2,300) (2,300) Addition of cyber insurance coverage

Professional Services (1,235) (2,000) (2,000) Human Resources Support and consultant to assist with process/procedure documentation

Salaries (1,632) (5,622) (5,622) Savings due to Accounting Administrator position being vacant for part of the year.Addition of Trust Auditor position in January 2018

Staff Benefits 13,052 9,472 27,235 Updated rates have been received from insurance provider - less than budgeted

Recruitment Fees (4,799) (5,000) (5,000) Costs associated with the recruitment of Accounting position and Trust Auditor

Contingency 91,667 27,482 27,482 The Contingency line is projected to be allocated to the Executive Director recruitment expenses

Depreciation & Amortization 20,522 5,250 (4,750) Small increase in Amortization for the purchase price increase for computer equipment and software

CommunicationsExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

Salary & Benefits (14,394) (44,625) (44,625) Additional costs due to organizational structure redesign.

Printing 5,947 5,500 5,500 Savings for printed publications reductions. Only one Society Record printed for the fiscal year.

Professional Services (5,389) (7,300) (11,300) Organizational restructuring may require the need to hire an external consultant to assist with graphicdesign work for Society programs and publications.

Member/Lawyer ServicesExpenses Year to Date Forecasted Year End VaForecasted Year End Variances

LRA Audit 14,214 12,000 6,729 Timing of expenses for LRA audits and based on previous year results

Lawyers' Assistance 23,107 25,040 25,040 A renegotiated contract for the Lawyers' Assistance Program will result in savings for the fiscal year.

Risk and Practise Management 16,800 22,400 22,400 Timing of program adjustments, concluding in December 2017

NON-OPERATING -COST ANALYSIS - Lawyers Fund for Client CompensationRevenues and Expenses Year to Date Forecasted Year End VaForecasted Year End Variances

Investment Income (21,611) (24,473) (22,027) Based on Year to Date results, the investments are not projected to achieve budgeted results.

Claims Paid 4,121 4,600 4,600 One claim projected to be paid

CLIA Premium 9,068 2,220 9,441 Annual fee lower than budgeted, credit received as part of fee per lawyer received from CLIA.

Page 455 of 486

1

ACTIVITY PLAN 2018

INTRODUCTION The Activity Plan for 2018, developed in the new approach and timing for planning, outlines those activities that Council has mandated to address the initiatives approved in the Strategic Framework. Council will also monitor certain activities assigned to the Executive Director. Council Committees will carry on with their work under their Terms of Reference and work plans approved by Council.

STRATEGIC DIRECTION 1 – EXCELLENCE IN REGULATION AND GOVERNANCE

PRIORITY 1: TRANSFORM REGULATION AND GOVERNANCE IN THE PUBLIC INTEREST

ACTIVITY 1.1 – Implementation of Legal Services Regulation

As part of implementing legal services regulation, develop an evaluation system to report to Council on all aspects, including that:

• System is outcomes-focused • Regulatory risks are refined, monitored and reported on • Development of Regulatory Outcomes

Outcome: The Society’s mandate to regulate in the public interest is supported by an effective approach to risk focused and proactive, principled and proportionate regulation across the organization.

Responsibility: ED, Dir F&A, Dir PR, Dir E&C, Exec

WORK PLAN January – Preliminary benchmarks being developed for

measurement February/March – Communications with stakeholders; emerging

regulatory risks evaluated April - follow up survey of MSELP Pilot Project volunteers May – Start communications about MSELP rollout June– Update on Regulatory Risk Matrix with risk responses. June – Engagement at Annual Meeting re LSS July/August – September – October – November – December –

Blue Highlight = Completed Green Highlight = Ontrack Yellow Highlight = Subject to change Red Highlight = Potentially delayed

Page 456 of 486

2

ACTIVITY 1.2 – Implementation of Legal Services Regulation – Law Firms and Legal Services Support

Implement all aspects of law firm regulation including:

• New law firm registration • Responsible lawyer designation COMPLETE • Opening trust account regime • Annual firm and sole practitioner reports • Self-assessment process is undertaken under a clear plan • Legal services support processes and protocols are

developed and implemented, as necessary, in conjunction with LIANS

• Complete consultation regarding in-house and government lawyers

• Develop a comprehensive electronic intake and data collection and analysis system

Outcome: The nature of conversation with law firms has changed; an effective system for documenting lawyer and law firm interactions is developed and used; appropriate regulatory responses are identified and implemented Responsibility: ED, Dir E&C, In-House & Government lawyers WG, Solo & Small Firm Working Group

December – Business plan is developed; Engagement with proposed new law firms; AFR finalized and distributed February/March - business plan finalized; technology for enhanced IMIS sites for staff and lawyers put in place April/May – New electronic processes for intake, recordkeeping and legal services support processes and protocols are starting to be developed; ongoing consultation with in-house and government lawyers WG; report to Council on progress June – Promotion of new processes for advice and education July – July/August – September October – November – December –

Page 457 of 486

3

ACTIVITY 1.3 – Implementation of Legal Services Regulation – The Legal Profession Act

The Legal Profession Act:

• Amendments are passed and regulations adopted to implement legal services regulation

• Further amendments are developed to consider the implementation of paralegal regulation and other matters that Council determines

Outcome: Legislation enables the Society it to advance transformation of legal regulation Responsibility: ED, Exec, (WG for paralegal reg) Collaborators: DoJ, Exec. Council

WORK PLAN December – Engagement with DoJ re details of amendments.

Discuss process for consultation on paralegal regulation. January – Briefing of Council on paralegal regulation in Ontario;

ongoing discussions with government re content of legislation February – Discussions with government continue March/April – May– Update to Council in Executive Director’s Report June – July/August – September – October – legislation introduced (?); begin populating latter half of

plan November – Review of regulations in light of legislation December –

Page 458 of 486

4

ACTIVITY 1.4 – Professional Responsibility Processes and Approaches

Revise the Professional Responsibility process to establish an early resolution and assessment system founded on a restorative approach to complaints handling

Outcome: The public and members are better served by an intake process which is resolution-oriented, Triple P and risk-focused, and facilitates early identification of matters appropriate for resolution or investigation

Responsibility: ED, Dir PR, PRPPC, RA Working Group

Collaborators: Schulich School of Law (Prof. Llewellyn)

WORK PLAN December — create Restorative Approaches project plan; January – communicate changes to stakeholders; February – March – April - create baseline for statistical measurement; May – PR Monitoring Report; June/July – develop case management platform and electronic

intake process; August/September – Review procedures; develop automated

survey for intake process stakeholders September/ October – educate Council re restorative approaches

and goals; staff training re restorative approaches; implement case management system; Part 9 regulation amendments; move PR update to LSR Update;

November – December –

Page 459 of 486

5

ACTIVITY 1.5 – Succession planning

Following consultation on the Succession Planning Report, have final recommendations approved and develop, maintain and promote resources and education needed that will assist lawyers/law firms regarding file retention policies and to prepare for succession or wind-up of practices. Consider regulation that requires law firms that deliver legal services to the public to have a succession plan and advise ED of its location. Enact clear standards, and, if appropriate, regulatory provisions, around file destruction and retention periods. Outcome: Appropriate regulations and policies surrounding succession planning are adopted. Templates are available. Responsibility: ED, E&C, Succession Planning WG Collaborators: County Bar Associations

WORK PLAN December — Follow-up on consultation before deadline; explore

insurance options January – Gather and analyze input from profession; report to

Council and workshop; Council to give policy directions February – Develop regulatory and program regime March – Progress Report to Council April – May – Recommended regulatory amendments and possible

approaches June – July/August – September – October – November – December –

Page 460 of 486

6

ACTIVITY 1.7 – Council – Enhancing Governance Continue to improve the Society’s governance by:

• Enhancing Council education • Creating an introductory and mid-term Council orientation

process • Consider how Council is selected including evaluating

elections, appointments, statutory positions, and Council size • Enhance ongoing communication with Council between

meetings

WORK PLAN December – Exec identifies expectations for Council education January GNC develops discussion paper for Council seeking Council

input on its composition February – GNC finalizes report to Council March – GNC report to Council on Council composition April – May – Council Evaluation; Update from GNC re Council Composition

ACTIVITY 1.6 – Modernize trust account requirements

Review all aspects of the Society’s trust assurance program to achieve the benchmarking standards set out in the CLIA Trust Accounts Benchmarking Survey, including

• The trust regulations (include rule regarding restriction on use of trust account, materiality of balances, reporting timelines)

• Accountants’ Review of Trust Accounts • The trust audit regime • Education and communication of changes with profession • Bank relationship with NSBS and profession

Federation Working Groups (FLSC) – NSBS involvement Anti-Money Laundering including large cash transaction rules and Client ID rules Outcome: Revised trust assurance program and account regulations that reflect Triple-P approaches and national benchmarks with “regular reporting to Finance Committee and Council. Responsibility: ED, Dir. F&A, PR – Counsel, WG (TBA), Collaborators: E&C, Corporate and real estate lawyers; Firm administrators, Federation Steering Committee/Working Group, CLIA

WORK PLAN December – Invite lawyers to help review the FLSC proposals for

AML January – Meet with lawyers re AML proposals; Provide update on

Trust reporting timing. Plan for Accountant waivers March – April/May – Draft ToR and establish WG to help review trust regs; Create work plan for Trust Account Regulations WG (TARWG); ED

advises Council and provides feedback to FLSC re AML proposals; TARWG meets; Trust review Stats Report to Council. June – July/August – September – Report and first draft trust regulations presented October – TARWG meets November – December -

Page 461 of 486

7

Outcome: Principles of good governance are applied to ensure Council has the right skills and attributes to provide the most effective policy leadership. Council is engaged in its work. Responsibility: GNC, Council, Executive Committee Collaborators: Education – Director E&C

June –Ongoing Orientation for Council July/August – September – October – November – December —

ACTIVITY 1.8 – Professional Standards

Enhance the Society’s professional standards by:

• Addressing all processes for identification of new standards, areas for amendment, research, drafting, consultation and promotion of standards

• Consider regulatory regime and procedures used in adopting standards

• Following consultation, if recommended, develop ToR for and appoint a Professional Standards (Wills and Estates) Committee

Outcome: The Society’s professional standards promote the Regulatory Objectives Responsibility: ED, Executive, Standards C’tees, Director LIANS, Director E&C Collaborators: CBA Wills & Estates Section

WORK PLAN December January – February/March – Consider uniform policies and procedures for

standard development; review with committees March – Progress Report to Council on issue April – May – Update to Council in Executive Director’s Report June – July/August – September – October – November – December -

Page 462 of 486

8

STRATEGIC DIRECTION 2 – ADMINISTRATION OF JUSTICE

PRIORITY 2: ENHANCE ACCESS TO LEGAL SERVICES AND THE JUSTICE SYSTEM ACTIVITY 2.1 – Promote increased access to legal services through regulatory strategic initiatives and monitor their impact Through new approaches to regulation of legal services the Society extends opportunities for the provision of legal services and provides information and education on opportunities and encourages legal entities to expand their offerings, including through the activities of qualified and supervised staff. A case for regulation of independent paralegals is examined. Outcomes: A decision is made regarding regulation of independent paralegals. There is clear information about opportunities to expand legal service delivery and the profession has tried to do so. Responsibility: ED, Executive, Council, Task Force TBD Collaborators: DoJ, law firms

WORK PLAN December —Consult with DoJ on paralegal regulation consultation January – Council to be briefed on Ontario paralegal regulation

regime February/March – Monitor progress in western provinces/ engage

with DoJ April – May – Update to Council in Executive Director’s Report June – July/August – September – October – November – December -

Page 463 of 486

9

ACTIVITY 2.2 – Promote substantive equality and freedom from discrimination in the delivery of legal services and the justice system Support lawyers in their efforts to meet obligations related to Regulatory Objective #5: to “promote diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system” Outcome: Create benchmarks and measurable indicators for changes that advance compliance with RO#5 Responsibility: ER Pilot Project, E&A Office,

WORK PLAN December — Develop plan for Council workshop to address AP 3.1 January – February – March – ED and equity committees to facilitate/participate in Council

workshop on equity April – May – June – July/August – Discussion of next steps regarding Equity on Council

agenda September – October – November – December -

PRIORITY 3: PROMOTE EQUITY, DIVERSITY AND INCLUSION IN THE LEGAL PROFESSION ACTIVITY 3.1 Review Equity Program to ensure program is strategic and focused

The Society, while recruiting a new Equity & Access Officer, will review its work in this area to ensure it is advancing the Regulatory Objectives and Strategic Framework and the Legal Profession Act. Council will be involved in and champion this work Outcome: The Society’s Equity and Access work is strategic and focused on achieving identified and measurable goals. Council will create policies as necessary. Responsibility: ED, GEC, REC, Senior Staff team

WORK PLAN December — January – Recruitment of E&A Manager to begin February – Develop plan for Council workshop to address AP 3.1 March – ED and equity committees to facilitate/participate in Council

workshop on equity April – May – Update to Council on status of recruitment of E&A Manager in

Executive Director’s Report June – July/August – September – October – November – December –

Page 464 of 486

10

ACTIVITY 3.2 – Engage with justice sector players and equity-seeking communities to enhance access to legal services and the justice system Collaborate with other justice sector partners to promote a more accessible and relational justice system. Projects include A2JCC, #TalkJustice and the Prestons Land Issues Initiative. Outcome: Identified and measurable outcomes developed in consultation with other justice stakeholders Responsibility: ED, E&A Officer, A2JCC, Officers Collaborators: Community Liaison volunteers

WORK PLAN (Specific plans to await new E&A Manager) December – January – February – March – April – May – June – July/August – September – October – November – December –

ACTIVITY 3.3 – Respond to the calls to action of the Truth and Reconciliation Commission

Collaborate with the other Atlantic law societies and law schools on education initiatives that respond to TRC Calls to Action and in particular Calls 27 and 28. Support the work of community organizations and others in a manner consistent with the TRC recommendations and the Society’s Regulatory Objectives Outcome: A plan is developed and steps taken to collaborate among law societies and law schools re cultural competence training and measurement of success Responsibility: ED, E&A Officer, REC Collaborators: Assembly of Mainland NS Chiefs, other Mi’kmaq organizations, other Atlantic Law Societies, FLSC, Schulich School of Law

WORK PLAN (Specific plans to await new E&A Officer) December — January – Council receives discussion paper from the REC and

members of the Indigenous bar. Intent is to begin to develop 3-year project plan tied to ROs and develop decision matrix to identify NSBS roles/nature of involvement in initiatives

February – March – Workshop will address portion of TRC recommendations April – May –June – July/August – Discussion of next steps re TRC on Council agenda September – October – November – December -

Page 465 of 486

11

4. FOUNDATIONAL ACTIVITY

ACTIVITY 4.1 – Financial accountability Continue to address long-term financial stability including: • Multi-year (rolling) budgeting • budgeting review of how the Society generates revenue. • Review of Reserve balances and policies • Timing of planning year • Finance Task Force • Review of other jurisdictions’ progress • Additional reporting and review by Council Outcome: A measurable long-term plan for financial stability (including assessment of 3-year cycle progress) Responsibility: Dir. Fin & Admin, Finance C’tee, Council

WORK PLAN December — January – High level overview of coming year’s budget February – March – Draft budget presented to Council April – Final budget approved by Council May – June – July/August – September – Report to Council October – November – December –

ACTIVITY 4.2 – Strategic communications and engagement with the legal profession, stakeholders and those who are

affected by legal regulation Review and as necessary amend and update the Strategic Communication and Engagement Strategy to ensure that it remains relevant and effective to address the implementation of Legal Services Regulation and the new Strategic Framework. Outcome: An updated Strategic Communication and Engagement Strategy for 2018 to 2020; and a Strategic Communication and Engagement Work Plan for 2018-2019. Website upgrades. Responsibility: ED, Bus Serv/HR Manager, Communications Officer, Senior Management team; Officers

WORK PLAN December — Conduct communications review, including member

survey and web analytics; draft 2018 work plan January – Present communications update report with review

findings to Council; provide work plan for 2018 February – Begin to implement recommendations from review March – April – May – June – July/August – September – October – November – Prepare Communications Monitoring Report December –

Page 466 of 486

12

ACTIVITY 4.3 – Management Provide effective and long term orientation for new Executive Director. (Council involvement, National Law Societies) Refine Society’s Senior Management team (membership) with clear terms of reference and processes to assist in carrying out its work (LSS, HR, E&A). Improve the internal processes used to identify and manage risk through the Staff Rounds meetings. Outcome: Staff work is shaped by the Regulatory Objectives, the strategic framework and commitment to best in class management. Responsibility: Council, ED, Sen Mngt. Team, Bus Serv/HR Manager

WORK PLAN December — January – February – March – April – May – June – Develop new Rounds meetings process; Start new risk

focused Rounds meetings based on risk identification and management

July/August – September – progress Report to Council re

organizational/management changes and risk focused in ED report October – November – December -

Page 467 of 486

Page 468 of 486

Page 469 of 486

Page 470 of 486

Page 471 of 486

Page 472 of 486

- 1 -


From: Tilly Pillay, QC

Date: May 18, 2018

Subject: Executive Director’s Report LEGISLATION UPDATE We have been in contact with our counterparts in Saskatchewan to determine the status of their consultation process on paralegals. Apparently they are finalizing their report and hope to put this before their Benchers in July. In the meantime, they have started to share some materials for us and we will be discussing this issue again at Executive before we reach back to the Department of Justice. Manitoba is also interested in exploring what this might look like in their jurisdiction, so we have begun discussions with them to see whether we can share resources as we move forward. IN HOUSE COUNSEL AND GOVERNMENT LAWYERS WORKING GROUP This Working Group met earlier this month and are finalizing the assessment tool that would be suitable for use in their legal environment. Now that government has indicated they are open to looking into these groups as part of our new regulatory model, we are seeking volunteers for a pilot project (as we did with the private firms). We are hopeful DOJ lawyers will be one pilot group. We are also looking into having someone from the Indigenous Bar join the Working Group as their corporate/in house practice may look different from other in house groups. IT INFRASTRUCTURE/WEB DESIGN We continue to make improvements to our IT infrastructure and programs. We have run into a few complications, as anticipated, but are confident that the process will lead to a better product and better services. STANDARDS COMMITTEES We had a very productive meeting of Standard Committee Chairs and staff last month. The Chairs were able to share with us what was working well and where there is need

Page 473 of 486

- 2 -

for improvement. Something helpful that they have identified is the need for a manual that they could share with their Committee members and assist them in focusing the conversation at meetings with respect to what is meant by a "standard" and what questions to ask when determining how best to articulate that. There was also a discussion about the need to have standards in the area of wills and estates. The question is how best to achieve that - a stand alone committee or experts in that area embedded in various committees. We will continue those discussions and bring a proposal back to Council. We have agreed to continue to hold these meetings on a regular basis as a useful forum to discuss issues of mutual interest. CURRENT RECRUITMENT We have various job competitions on the go: Legal Services Support Officer, Executive Assistant for our Professional Responsibility group and Equity and Access Manager. We will soon be posting for the General Counsel and paralegal positions. I am pleased to report that with the help of Sheree Conlon, QC and Tuma Young, we have completed the first round of interviews for the Equity and Access Manager. By the time the Council meeting comes round, there will be further developments that I would be pleased to share with you. NSHCC RESTORATIVE INQUIRY The Nova Scotia Home for Colored Children Restorative Inquiry has approached the Society to ask us to facilitate a discussion with those members whom they have identified as being able to contribute to their work. This has meant issuing invitations to lawyers to participate in a dialogue circle with members of the Inquiry and providing them with the use of our classroom. Council members may be aware that the Government of Nova Scotia has committed its full support to the Inquiry’s work looking into the history and legacy of the Nova Scotia Home for Colored Children (Home) and the abuse that occurred within that institution. While the Inquiry has the full powers, privileges and immunities of a public inquiry, they are seeking to use collaborative processes to foster shared understanding and collective action to address the issues related to the history and the impacts of the Home. The Inquiry has, therefore, been hosting a series of dialogue circles with various groups, organizations and institutions to share information and discuss issues relating to the Home. In particular, the Inquiry is seeking to engage with lawyers on the issue of responses to institutional abuse with a particular focus on the Home and what might be learnt from this case for the future. We are pleased to have been able to offer this support to the Inquiry's work.

Page 474 of 486


From: Sean Walker, Director, Finance & Administration Jocelyn Glynn, Trust Assurance Auditor

Date: May 18, 2018

Subject: Trust Assurance Monitoring Report and Update

Date – Executive Committee N/A

Date – May 18, 2018 Council Information

SUMMARY

The following is the Professional Responsibility Monitoring Report for the period of June 1, 2017 to May 18, 2018. This written report will be supplemented by a brief oral report from the Director of Professional Responsibility. This report includes one Appendix: A – 2017/18 Scope of Audits Report prepared by Graham Dennis CPA, CA, Auditor TRUST ACCOUNTS ACTIVITY – RISK MANAGEMENT Lawyers and law firms are required to file annual Trust Account Reports (TARs) by January 31 of each year and Accountants’ Reports on Trust Account Reports (ARTARs) by March 31 of each year. This is a change from prior years in that the date for all firms/lawyers is now based on a December 31 period end date. All reports are reviewed to identify any violations to the trust accounts regulations contained in Part 10 of the Regulations, or negative responses to various risk questions contained in the reports. This information is reviewed with a view to assessing various risk factors:

• any history of the same or similar trust account regulation violations; • whether advice or warnings resulting from previous years’ violations remain unheeded; • the nature and number of violations; • a lack of any or any substantive response to the cause of the violations and the steps taken to correct

them; • reporting of violations in the ARTAR and no reporting of violations by the lawyer or firm in the

TAR; • any relevant history of complaints; • any current or historical bankruptcies or judgments; and • results of prior or recent trust audits through the Trust Audit Program.

Where the specific and general risks are assessed to be reasonably low, the Society’s responses range from a letter of acknowledgment to a phone call and/or a request to confirm the errors or systems have been rectified.

Page 475 of 486

Where risks are assessed to be moderate, responses can include requests for independent confirmation of rectification of the errors or systems, active monitoring such as the filing of monthly trust reconciliations, or the filing of quarterly TARs/ARTARs at the lawyer or firms’ cost. Firms in this category are often added to the list of firms to be audited by the Society in the coming year, particularly where a pattern of regulation violations is observed. Where risks are assessed to be high, responses can include a direction for an immediate trust audit or an order for a full forensic audit by the Complaints Investigation Committee, the commencement of an investigation through the complaints process, and/or required attendance before the CIC under a s. 36(2) meeting or s. 37(1) hearing. Where possible, the trust accounts management process strives to be proactive and proportional in our response to violations. The vast majority are due to inattention, ineffective systems, bank errors, lack of familiarity with the regulations and how to apply them. These situations benefit from identification of the sources of errors, education and follow up. In some cases, our auditor has spent hours instructing a lawyer in the application of the regulations. TAR/ARTAR 2017/18 2016/17 2015/2016 Regulation violations

68% 41% 33%

2017/18 2016/17 2015/2016 Number filing monthly Trust reconciliations 9 (5 closed) 5 (1 open filing

monthly) 7 (4 closed)

Top 10 regulation violations • 10.6.1 – failure to maintain sufficient funds on deposit – no overdrafts permitted • 10.2.7 – mixing of personal and client funds in the trust account (aka ‘floats’ ) • 10.6.3 – failure to report and explain reason for overdrafts to Executive Director • 10.2.3 – failure to deposit trust funds without delay – late deposit of trust funds • 10.3.6 – failure to adhere to the two-signature rule (one signature permitted for sole practitioner only) • 10.3.5 (d) – withdrawal of funds from a trust account must not be released or effected until the lawyer

or law firm is in possession of sufficient funds for the credit of the client on whose behalf the withdrawal is made

• 10.2.4 (a) – failure to properly name the trust account (trust account must be designated as a trust account)

• 10.2.6 – failure to deposit the correct funds in the trust account • 10.6.2 – failure to correct errors in a timely manner • 10.2.4 (c) – a trust account must bear interest which is computed and payable in accordance with Section

30 of the Act (to the Law Foundation).

TRUST ASSURANCE PROGRAM The Trust Assurance Program (recently renamed from Trust Audit Program in January 2018) is an important risk management tool for the Society and assists with our mandate to protect the public and enhance the competence of members. As noted in the Annual Scope of Audit Report, copy attached as Appendix A, the vast majority of lawyers and firms are receptive to the audits and responsive to

Page 476 of 486

recommendations for improvement of their trust account management systems. The audit results inform future education programs, and the continued development of our new online trust account education tools and resources for lawyers. Graham Dennis, CPA, CA’s Annual Scope of Audits Report summarizes his general findings from audits performed May 1, 2017 to January 18, 2018. It is noteworthy that in 100% of audits, the auditor uncovers regulation violations that were not reported on a lawyer’s or firm’s TAR/ARTAR. The vast majority of lawyers and firms respond very positively to audits, and find them to be a valuable learning experience. Those audited are selected each year on the basis of an evolving set of risk criteria that can include the following:

• sole practitioner or firm who has NEVER been audited since 2003; • new firms in the past 12 months; • anyone who has contacted us about Consumer Proposal or Bankruptcy; • anyone who has indicated they have plans to retire but haven’t filed an application to do so; • any firm where the partnership / corporate structure is unclear; • Firms of more than one lawyer where each lawyer has his or her own trust account (and who

has NOT been audited in the past two years); • Firms and lawyers over the past two to 10 years who have continued to file exceptions each

year AFTER having been previously audited; • Any lawyers or firms who have answered affirmatively to our risk-based questions on the AMR

in the past two years; and • lawyers who have been administratively suspended over the past two years.

2017/2018 2016/2017 2015/2016 Number of audits 12 23 38 Number of firms 12 23 37 Number of follow-up audits 6 0 6 Number in HRM 8 11 15 Number outside HRM 4 12 21 Number of sole practitioners 4 14 22

Focusing on Risk As we become more risk-focused in respect of how lawyers and firms handle client trust monies, we are embarking on a full-scale review of the trust account program, from annual reporting requirements to tools for assisting lawyers and firms with compliance, to the audit process. As part of the Triple P approach to regulation, we are taking steps to review every aspect of our regulatory structure and tools for keeping trust monies safe with lawyers. The Society has recently moved its trust account oversight from the Professional Responsibility department to the Finance and Administration group. The newly renamed Trust Assurance Program is a risk-based process to ensure lawyers are in compliance with the Trust Account Regulations that relate to lawyers’ trust accounts, including those regulations related to other client property, client ID and verification rules, unclaimed trust funds, applicable Professional Standards and more.

Page 477 of 486

The Trust Assurance Program strives to be more supportive and educational, with a lens on being “Triple P” (principled, proactive and proportional) in our response to violations and non-compliance. The Society hired an (internal) professional accountant in January 2018 (CPA, CA) to take over audit program that what previously performed by an external accountant/auditor. The new auditor will conduct risk based audits as we have always done as well as engage in education and legal services support work, risk identification and management, and assist with complaint investigations when needed – assist in developing and delivering resources and tools to new firms or those opening new trust accounts and helping them apply and understand the Trust Account regulations and best practices. During 2017, the Society participated with CLIA in the development and conduct of a Trust Account Benchmark Project. The purpose of this project was to prepare a report discussing the results of a benchmarking survey, with recommendations on best practice approaches used to regulate lawyers’ activities associated with trust funds and trust accounting. The report, just recently finalized, also highlights recommended actions to improve the overall efficiency and effectiveness of trust accounting risk management practices among law societies. The key recommendations now under consideration fall into 10 main categories:

1. Identifying and verifying clients (i.e., enhancing client ID processes) 2. Best practices for opening a trust account 3. Best practices when operating a trust account 4. Managing all current forms of trust transactions and risks, including cyber fraud 5. Retaining records and avoiding crises from natural disasters and physical safety

breaches 6. Best practices in retiring trust accounts 7. Best practices with audits and trust account reviews 8. Tools for managing special circumstances, such as falsification of records and complex

financial data 9. Matters to report to the Law Society 10. Relevant practice management concepts

The trust assurance group has developed an action plan to prioritize this work and modernize the overall Trust Assurance program, with an additional view to streamlining the resources needed for trust accounts oversight, and hopefully resulting cost reduction or rationalization both for the organization and for law firms. Modernizing the Trust Assurance program for staff and members will enable the Society to modernize and clearly identify the lifecycle of lawyers trust accounting practices as well as mitigate the risk that the firms (including sole practitioners) will fail to have adequate measures to ensure safety of trust funds and property. The revised program will aid in the achievement of the following:

• Reduce the regulatory burden on lawyers (through technology and innovation) while increasing compliance

• Reduce the complaints/claims received by the Society with respect to Trust Accounts (volume and/or complexity)

• Enhance the risk management practices surrounding trust accounts (using Triple-P methodology) • Enhance access to justice by providing education, resources, tools and increased flexibility for

lawyers with a goal of making it easier to understand and comply with Trust Account “rules” (using Triple-P methodology)

Page 478 of 486

GRAHAM DENNIS, CPA, CA23 JUNIPER RIDGE

GLEN HAVEN, NOVA SCOTIA

B3Z 2V8Tel: 902 823 1239

[email protected]

April 13, 2018

PRIVATE & CONFIDENTIAL

Mr. Sean Walker, CPA, CGA, CIADirector, Finance and AdministrationNova Scotia Barristers’ SocietyCogswell Tower Suite 800, 2000 Barrington StreetHalifax, NS B3J 3K1

Dear Mr. Walker

Re: Scope of Audits – 2017-18

Between May 1, 2017 and January 18, 2018, the date of my last trust audit report to the Society, Icompleted 12 trust audits on 12 practices. Six of them were follow-up audits. A follow-up audit isconducted when the Society determines, based on the results of a trust audit, that a lawyer or lawfirms trust accounts should be re-audited. This compares to 23 trust account audits on 23 practicesin 2016-17, none of which were follow-up audits. I conducted 38 audits on 37 practices and 35audits on 34 practices in 2015-16 and 2014-15 respectively.

Eight of the 12 practices audited this year are located in the Halifax Regional Municipality (HRM)and four are located in other areas of Nova Scotia. Four are lawyers who practice alone as solepractitioners without partners, associates or other lawyers and the other eight are law firms orlawyers who practise with other lawyers either as partners, associates or employees. The small number of audits and the high portion of follow-up audits may have affected thecomparability of my findings with other years in some cases as you will see below and may not beindicative of changes across the Province as a whole. The comparability of last year's results werealso affected because 11 or 48% of the practices audited were new practices as compared to nonethis year, 16% in 2015-16 and 15% in 2014-15. A new practice was one that opened its trustaccounts within a year before the start of the period covered by an audit.

Page 449 of 456Page 479 of 486

GRAHAM DENNIS, CPA, CA Re: Scope of Audits April 13, 2018

Generally the procedures I followed were those conducted by accountants in the completion ofthe annual Trust Account Report. In some cases, depending on the circumstances, I may haveconducted additional procedures if I considered this to be necessary or reduced the scope of mywork if the practice had a limited level of activity in its trust accounts. I also conductedprocedures in connection with:

• Client identification and verification regulations.

• Made inquiries concerning the compliance of lawyers and law firms with 30(5) of theLegal Profession Act that requires them to advise persons for whom they are holdingmoney in trust that it may be deposited into a separate trust account on which the personwould receive the interest when they have reason to believe that it will not be requiredfor more than 30 days.

• 3.6-3 of the Code of Professional Conduct, which came into effect on January 1, 2012,dealing with statements of account delivered to clients.

• 3.4-7 of the Code of Professional Conduct that requires a lawyer to obtain writtenconsent from each client when they act for more than one client on a matter ortransaction.

General Impressions and Observations

I have been conducted trust account audits for the Nova Scotia Barristers' Society for more thaneleven years. My general impressions and observations, which for the most part are consistentwith those included in my previous scope of audit reports to the Society, are as follows:

The lawyers and their staff are cooperative and helpful in providing information anddocuments on a timely basis and making themselves available to answer my questionsand to discuss my audit findings with them.

The lawyers and their staff treat the operation of their trust accounts seriously and make aconscientious effort to maintain records and accounts in accordance with the trustaccount regulations.

Many of the lawyers and their staff are interested in learning more about the trust accountregulations. Many ask questions about matters they were unsure about and are acceptingof suggestions or recommendations made for improvements or to address contraventionsof the trust account regulations.

Generally the lawyers and their staff have a good knowledge of the principles theyshould follow in the operation of their trust accounts. However, in many cases thelawyers, their staff, external bookkeepers and accountants are not familiar as they shouldbe with the specifics of the regulations.

When conducting the audits I am often asked by lawyers and their assistants if there arecourses or other training available for assistants on how to maintain trust accountingrecords and prepare trust reconciliations. This appears to be an unmet need. Perhaps theSociety could consider offering such training to lawyer's assistants.

Page 2 of 8



Many of the audits I conducted were on trust accounts for which all or a portion of thetime period covered by my audit was also subject to audit by a lawyer or law firms’accountants in the completion of the annual Trust Account Report. In many of thesecases I found exceptions to the regulations that were not identified by the lawyer's or lawfirm’s accountants. It is difficult to determine why this is the case but it may, in part, bedue to unfamiliarity with the trust account regulations.

Significant Findings

Exceptions to the trust account regulations were identified in all of the trust account audits Icompleted. The exceptions vary from minor, such as not having a copy of a deposit slip on fileor occasionally completing trust bank account reconciliations a few days more than thirty daysafter the effective date of the reconciliation, to more serious exceptions. This is consistent withprior years. The most frequent significant matters identified in the trust audits are as follows andfindings of higher risk are underlined.

Reconciliation of Trust Bank Accounts and Comparison to Client Trust Ledger Balances

Reg. 10.4.2(i) of the trust account regulations require that a reconciliation of each trust accountand a comparison between the reconciled balance and the total of the listing of client trust ledgerbalances be made monthly within 30 days of the effective date of reconciliation.

I found instances of reconciliations prepared late or not prepared at all in 83% (10 of 12) ofpractices compared to 61% (14 of 23) in 2016-17, 59% in 2015-16, 50% in 2014-15, 58 % in2013-14 and 71% for 2012-13. Reconciliations were prepared for all general trust accounts in2017-18 (with the exception of an account closed in the first month of the period covered by thetrust audit) compared to prior years when no reconciliations at all were completed during theperiods subject to audit for 4% of practices in 2016-17, 8% in 2015-16, and 3% in 2014-15.However, reconciliations needed to be redone for two practices because of the significant numberof errors. No reconciliations were prepared for the SNS trust accounts in 17% (2 of 12) ofpractices compared to 13% in 2016-17, 18% in 2015-16 and 5% in 2014-15. No reconciliationswere prepared for at least one specific trust in 8% (1 of 12) of practices compared to 4% in 2016-17, 18% in 2015-16 and 14% for 2014-15. In other cases, reconciliations may have beenprepared late or not prepared for one or more months.

In 8% (1 of 12) of practices I found that the date reconciliations and comparisons were completedwas not recorded or not always recorded but the lawyers and/or their staff represented that theywere prepared on time. This compares to 35% (8 of 23) in 2016-17, 14% in 2015-16 and 12% in2014-15. In 2016-2017, six of the eight practices were new practices which may explain thehigher exception rate for that year. In these cases I recommended in the future that the dates ofpreparation be recorded to document compliance with the regulations.

In 17% (2 of 12) of practices (22% in 2016-17, 30% in 2015-16, 24% in 2014-15) client listingswere not or not always printed or prepared at the time of the completion of the bank

Page 3 of 8



reconciliations. In such cases the reconciled bank balance and the total of the client listings werenot compared or I could not determine if they were compared within a month of the effective dateas required by the regulations. In some cases the listing may have been viewed on computerscreens but I could not verify this.

In 58% (7 of 12) of practices (48% in 2016-17, 51% in 2015-16, 38% in 2014-15) there weredifferences between reconciled balances and the client listings, differences between client trustledgers and client listings, outstanding deposits and payments not shown as outstanding, depositsand payments shown as outstanding that were not outstanding and unidentified reconciling items,caused by accounting or bank errors and errors in preparing reconciliations and listings. In mostcases these differences were relatively small but in a few cases the errors were more than athousand dollars.

Overdrafts and Overdrawn Client Trust Ledger Balances

Reg. 10.6.1 and 2 requires a lawyer to maintain sufficient balances to meet all trust obligationsand that any shortages shall be restored immediately. Reg. 10.6.3 and 4 requires that anyshortages (defined as overdrafts in the regulations) shall be reported to the Executive Director ofthe Society immediately unless caused by a bank error or service charge and addressed withinthree days of notification.

In 75% (9 of 12) of the practices I found 90 overdrawn client trust ledger balances. Fivepractices accounted for 70 of the overdrawn balances. Almost all of the overdrawn balanceswere less than $250.00 and generally they were addressed within a month or so of when theyoccurred, however, some were not addressed for more than six months. Fourteen of theoverdrafts were more than $1,000.00 of which 5 were more than $10,000.00 as follows:

• $130,124.41 due to funds being deposited into a non-trust account. The overdraft wasaddressed after five days. Reg. 10.2.3 requires that trust money must be deposited into atrust account within one day of receipt.

• $17,725.35 due to the bank rejecting an electronic deposit. The overdraft was addressedafter 39 days.

• Between $168,517.65 and $172,000.00 due to a deposit of funds into the wrong trustaccount. The funds were on deposit in another of the firm's trust account. The overdraftwas addressed after 41 days.

• $250,384.89 as a result of funds deposited by another lawyer being credited to anotherparty's account and not the lawyer's trust account and the lawyer not checking to ensurereceipt of funds before they were disbursed. The error was addressed after 5 days.

• $281,503.22 as a result of funds being deposited into the wrong trust account. Theoverdraft was addressed after one day.

There was also a shortage (overdraft) in a general trust account caused by transferring $29,000.00from it to the firm's SNS trust account. The overdraft was addressed in 27 days.

Page 4 of 8



The incidence of overdrawn client trust ledger accounts has increased to 75% as compared to52% in 2016-17, 57% in 2015-16 and a 63% average for the five years prior to that. The natureand small number of audits conducted this year may be the reason for the higher incidence ofoverdrafts this year.

In addition to overdrawn client trust ledger accounts one practice (8% of audits) had an overdraftof $1,276.37 showing a trust account bank statement that was addressed after 3 days. Thiscompares to 17% of practices audited in 2016-17, 11% in 2015-16 and 24% in 2014-15.

There were also overdrafts caused by bank charges and errors that were not addressed withinthree days of notification and withdrawals made in error by debit card, internet bank transfer orautomatic withdrawal in 42% (5 of 12) as compared to 43% in 2016-17, 51% in 2015-16 and47% in 2014-15. Most of these charges and errors were small and addressed within a short timebut many were not addressed for at least several months.

The vast majority of overdrafts, as in prior years, were not reported immediately to the ExecutiveDirector of the Society as required by the regulations.

Old & Inactive Trust Account Balances

58% (7 of 12) of practices had from three to 198 accounts that had been inactive for at least twoyears as follows (2016-17 amounts are presented for comparative purposes):

# of old accounts # of practices 2016-17 2017-180-20 3 120-50 3 450-100 1 1100+ 0 1 7 7 # of practices audited 23 12 % with old, inactive accounts 30% 58%

The percentage of practices audited that had old account balances excluding practices that hadbeen established for less than two years at the time of the audit was 88% (7 of 8) this yearcompared to 58% (7 of 12) for 2016-17. The nature and small number of audits conducted thisyear may be the reason for the higher incidence of old accounts this year. In addition, the firmthat had more than 100 old accounts has more than 20 lawyers which may, in part, explain thereason for the larger number of old accounts for this firm.

The balances generally represent funds that should be returned to the clients, funds to cover thecost of recording releases, holdbacks and funds for legal fees and disbursements. In a smallnumber of cases, even though an account was old, it was in connection with an active matter.Most of the accounts had balances of less than $100.00 but 28 accounts had balances between$1,000.00 and $10,000.00 as compared to three in 2016-17, 28 in 2015-16. Eight of the accounts

Page 5 of 8



had a balance in excess of $10,000.00 as compared to none for 2016-17 and five for 2015-16.Fifteen of the accounts between $1,000.00 and $10,000.00 five of the accounts with balancesgreater than $10,000.00 were held by a firm with more than 20 lawyers.

My recommendation to the lawyers and law firms with respect to these old and inactive balanceswas to return the funds to the clients as soon as possible after making any required disbursementsto record releases or pay taxes, fees or other items. For those clients where it was not possible toreturn the funds I also discussed the option of making application through the Society to disburseunclaimed funds to the Public Trustee.

Control Over Electronic Fund Transfer Systems Not Retained by Lawyer or Law Firm

Reg. 10.3.5 requires that withdrawals be made by two persons, one of whom is a lawyer.Accordingly, one person should not have the ability on their own to transfer funds from trustbank accounts except in the case of a sole practitioner as provided by Reg. 10.3.6.

75% (9 of 12) of practices had provided assistants with passwords that enabled them to accessinternet banking websites and to transfer funds from trust accounts and/or a lawyer had accesswhich enabled them to transfer funds on their own using internet banking when access shouldhave been under the control of two persons. In three practices transfers were actually made usinginternet banking by one lawyer who was not a sole practitioner or an assistant. Generally theassistants had been provided with the access code so they could monitor activity in the trust andoperating accounts of the law practice. When this matter was brought to a lawyer or a law firm'sattention they recognized the seriousness of the matter and generally took steps immediately tochange the password or to limit access to just viewing bank account activity.

In two of the six follow-up audits the lawyer or law firm had been told that the access had beenrestricted as recommended but my testing found that this was not the case. After a lawyer or lawfirm has been told access has been restricted they should test to see if it actually has beenrestricted.

This year inappropriate access given to electronic funds transfer systems was found in 75% (9 of12 practices, as compared to 48% in 2016-17, 32% in 2015-16 and an average 39% in the fiveyears prior to that. The nature and small number of audits conducted this year may be the reasonfor the higher incidence of inappropriate access this year.

Written Confirmation of Receipt of Funds by Electronic Fund Transfers

Reg. 10.2.5 requires that written confirmation of funds deposited into a trust account be obtainedwithout delay and Reg. 10.2.2 states that money is not considered to be received until its receiptis confirmed. Most lawyers and law firms use a printout of their on-line banking screen showingthe receipt of funds and the date of the on-line inquiry within one day of the receipt of funds aswritten confirmation.

Page 6 of 8



Exceptions to this regulation were identified in 42% (5 of 12) of the practices as compared to anaverage of 43% in the previous four years. In about half of the cases this year and historically itwas not the practice of the lawyer or law firm to print out the screen as written confirmation orotherwise obtain and retain written confirmation of receipt.

In one case the failure to confirm receipt resulted in a deposit of $250,384.89 made by third partybut not credited to the lawyer's trust account not being detected before disbursements were madecausing an overdraft in the trust account. The error was addressed after 5 days.

Directions for the Withdrawal of Funds from a Trust Account

Reg. 10.3.5 requires that any withdrawals from a trust account must be made by two persons, oneof whom is a lawyer, unless the requirements of Reg. 10.3.6 are met. Reg. 10.3.6 allows a solepractitioner to make withdrawals on their own. Reg. 10.3.8 requires signed directions to afinancial institution for the withdrawal of funds be retained in the practice's records. Thesecould include directions for the transfer of funds from trust accounts to third parties or a lawyer'sor law firm's other bank accounts or the purchase of bank drafts.

In 25% (3 of 12) practices (35% in 2016-17, 35% in 2015-16 and 47% in 2014-15) the directionswere verbally made by a lawyer or an assistant or by an email from an assistant or a lawyer alonewhen two persons should have authorized the transaction. In 17% (2 of 23) practices (8% in2016-17, 14% in 2015-16 and 12% in 2014-15) written directions to the bank had not beenretained or they were not signed as required by the regulations.

In total I noted exceptions in 33% (4 of 12) of the practices audited for 2017-18 as compared to39% for 2016-17, 41% for 2015-15 and 47% for 2014-15.

Client Identification and Verification Regulations

Reg. 4.13.3 requires that identification information be recorded for all clients, the person givinginstructions in the case of an organization and third parties on whose behalf a client is acting.This information includes the recording of a person's occupation. Reg. 4.13.4 requires that theidentity of these parties must be verified using what the lawyer considers to be reliableindependent source documents, data or information if funds are received or disbursed by a lawyeron a client's behalf unless the organization or transactions are exempt under Reg. 4.13.8. Copiesof documents used to verify identity and a record of the information used to verify identity are tobe retained by lawyers and law firms under Reg. 4.13.18 to 20.

In 75% (9 of 12) of practices I found that a client’s occupation had not been recorded in at leastone of the client files I reviewed during each audit. For 33% (4 of 12) of the practices copies ofgovernment issued identification cards or other documents confirming a client's identity couldnot be found in at least one of the client files I reviewed during each audit.

Page 7 of 8



The exception rate is high considering that these regulations have now been in force for over nineyears. This year exceptions were found in 75% (9 of 12) of the practices compared to 74% in2016-17, 78% in 2015-16, 82% in 2014-15 and 92% in 2013-14.

Statements of Account - Other Charges and Disbursements

3.6-3 of the Code of Professional Conduct, which came into effect on January 1, 2012, requiresthat a statement of account delivered to a client must clearly and separately detail the amountscharged as fees, disbursements and other charges. Disbursements are only those amounts thathave been paid or are required to be paid to a third party. Other charges could include charges foradministration, paralegal, word processing, computer costs and other charges that are notdisbursements.

In 75% (9 of 12) of practices I found instances where other charges and/or disbursements werenot described as such as required by the Code. Most of the practices where I did not findexceptions had not charged disbursements and other charges on the invoices I reviewed duringthe audits. This is a consistent with 65% in 2016-17, 76% in 2015-16 and 79% in 2014-15, thefirst year I reported on this matter.

Consent to Act for Vendor and Purchaser

3.4-7 of the Code of Professional Conduct requires a lawyer to obtain written consent from eachclient when he acts for more than one client on a matter or transaction.

In 33% (4 of 12) of practices I found instances during my review of client files of lawyers or lawfirm's acting for clients on both sides of a transaction without having written consent from one orboth of the parties. In 2016-17 I found this to be the case in 17% of the practices audited. This isthe first year I have reported on this matter because of the increased frequency I found thisoccurring.

Conclusion

I trust you will find this report to be informative and helpful. Please do not hesitate to contact meshould you have any questions or require additional information.

This report covers the last of the trust audits I have completed for the Society. It has been apleasure and honour to serve the Society and its members over the past eleven years.

Yours sincerely

Graham Dennis, CPA, CA

Page 8 of 8


Date post:	30-May-2018
Category:	Documents
Upload:	nguyenthien
View:	213 times
Download:	0 times