SR Vol 25 No 1, January 2007 - Nova Scotia Barristers' Society

Forensic Engineering Servicesfor Civil Litigation LawyersGeotechnology Ltd. is a consulting engineering firm that provides forensic civil engineering, geotechnical, foundationand environmental engineering services to civil litigation lawyers and insurance personnel.Forensic Engineering ExperienceGeotechnology has 36 years engineering investigative experience in Atlantic Canada, western and northern Canada,offshore, and overseas in the UK, Australia and the Caribbean.We have investigated and determined the cause, and assisted in establishing fault, for the six main types of problems anddamage experienced by buildings, civil engineering structures, and property: 1. Structural Collapse and Failure; 2.Architectural Finish; 3. Functional and Serviceability; 4. Hidden Damage; 5. Monetary Losses, Construction Delays and CostOverruns; and, 6. Environmental Contamination.Engineering and environmental investigations have been completed for most types of civil engineering structures: Buildings;Bridges; Wharves and Harbour Works; Towers, Storage Tanks; Dams; Pipelines; Drainage Works; Embankments andEarthworks; Tunnels; Highways; and Motor Vehicle and Industrial Accidents.Professional QualificationsEric Jorden, M.Sc., P.Eng., president of Geotechnology Ltd., has a Master’s degree in geotechnical and foundationengineering from the University of Birmingham, England. He has a first degree in civil engineering from the University ofNew Brunswick, and a diploma in land surveying from the College of Geographic Sciences, NS.Mr. Jorden writes impartial, unbiased reports and opinions based on the facts. His reports are clear, concise and easilyunderstood by non-technical readers. He has published a number of engineering papers and co-authored a book on soils,groundwater and foundation investigation. Mr. Jorden has been qualified by the courts as an expert witness. He is credibleand composed when giving expert testimony, and under cross-examination.Forensic Engineering Services(Case management follows project management principles to ensure thorough, cost effective forensic engineeringinvestigations).1. Preliminary Forensic Engineering Services• Assess the technical strengths, weaknesses and merits of a claim for damages based on existing data andinformation. Outline the scope of a thorough investigation of the problem, if justified by the initial assessment.2. Main Forensic Engineering Services• Carry out field work and laboratory testing to investigate the cause of the problem, the damage to a building orcivil engineering structure, or the reason for the contaminated soil and groundwater. Review engineeringdrawings, and applicable engineering and environmental regulations, codes and standards of good practice.• Analyze, interpret and evaluate the data and investigation findings. Develop conclusions and formulate opinion.• Determine the cause of the damage, or the reason for the contamination.• Recommend and design repair and remedial work. Evaluate repair and remedial costs.3. Additional Forensic Engineering Services• Assist counsel finalize evaluation of the strengths and weaknesses of the damage claim based on the findings ofthe forensic engineering investigation.• Help develop litigation strategy for discovery and trial; litigation support.• Develop lines of questioning for testimony and cross-examination, including questions not to ask.• Attend discovery and trial, assist counsel by listening to opposing witnesses and experts, identify flaws and errors,and the strengths and weaknesses of opposing testimony, develop additional lines of questioning.• Testify as an expert witness at discovery and trial• Review and audit engineering investigations and environmental assessments and reports by others; dispute resolution.More InformationContact Eric Jorden, M.Sc., P.Eng. at Geotechnology Ltd. for more information: Curriculum vitae;fees; publications and major reports; list of forensic engineering and major investigations; typicalengineering investigations for design and construction, and environmental assessments for siteremediation; professional activities; technical associations.Geotechnology Ltd.Forensic EngineersCivil, Geotechnical, Foundation and Environmental Engineers23 Roslyn Dr., Dartmouth, Nova Scotia, Canada B2W 2M2Tel: (902) 435-4939Fax: (902) 435-5840E-mail: ejorden@eastlink.caEric Jorden, M.Sc., P.Eng.Forensic EngineerConsultingProfessional Engineer

C o n t e n t sVOLUME 25 | NO. 1 | JANUARY 2007theSocietyRecordis published six timesannually by theNova ScotiaBarristers’ SocietySuite 1101-1645Granville StreetHalifax, NS B3J 1X3(902) 422-1491Copyright ©2007Mailed under CanadaPost publicationsagreement number40069255Return undeliverableCanadian addresses to:PublicationsAdministrator,Nova ScotiaBarristers’ SocietySuite 1101,1645 Granville StreetHalifax NS B3J 1X3lneily@nsbs.orgEditor:Pam Sullivanpsullivan@nsbs.orgGraphic Design:Lisa Neilylneily@nsbs.orgNOVA SCOTIABARRISTERS’SOCIETYwww.nsbs.ns.ca4 Dear Members4 From the Editor’s desk5 The President’s View6 Briefs14 Society News16 Feedback from the Frontlines — Andrea Rizzato, Don Urquhart, Nicole Godbout, Paul Drysdale20 LIANSPullout section — Vol. 32, No. 1 Nova Scotia Law News23 In the Community24 An Enviable Record — Gavin Giles, Q.C.27 Long Overdue — David Blaikie29 A Smart Partnership — John Briggs30 LAP32 You be the Judge35 In Defence of Small Claims Court — W. Augustus Richardson, Q.C.38 Summation — Kevin A. MacDonaldpage 6 page 16C o n t r i b u t o r sAndrea Rizzato is an associatelawyer with the Sydneyfirm, Sheldon Nathanson,Barristers & Solicitors. Shepractises Property Law andCivil Litigation.Cynthia L. Chewter is aninstructor with the BarAdmission Course and aformer Small Claims CourtAdjudicator.Nicole Godbout is anAssociate with the Dartmouthfirm of Boyne Clarke. Shepractises in the areas ofBusiness Litigation, CivilLitigation, Estate Litigationand Financial Recovery.Don Urquhart is theManaging Partner with theKentville firm Muttart TuftsDewolfe and Coyle. Hispreferred areas of practiceinclude Criminal Law, FamilyLaw, and Litigation.Kevin MacDonald, an associatewith the Halifax firm Crowe DillonRobinson, practises primarily inthe Civil Litigation, Insurance andWill & Estates areas of the law.He also sees his share of time inSmall Claims Court.David Blaikie is an assistantprofessor at Dalhousie LawSchool. He currently teaches CivilProcedure, Torts and ADR.Gus Richardson has been alitigator for over twenty years, andan adjudicator for over five. Hisexperience with both has led himto start his own practice in thefields of arbitration and mediation.Mary Jane McGinty of theHalifax firm McGinty McCleaveconducts a client-centredgeneral practice which includesCivil Litigation (part. FamilyLaw), Wills and Estates, andEntertainment Law.page 25 page 29John Briggs is Executive Directorof the Law Reform Commissionof Nova Scotia. He also acts asOutside Counsel to the FederalMinister of Justice on allegedmiscarriage of justice cases, and isthe President of the Federation ofLaw Reform Agencies of Canada.Gavin Giles is the Co-RegionalManager of McInnes Cooperin Nova Scotia. He practisesInsurance Defence, Litigation,and Maritime Law. Appointedas an adjudicator of the SmallClaims Court of Nova Scotia in1994, Gavin has also served asthat Court’s first Chief Adjudicatorsince 2002.Paul Drysdale is a partner withthe Amherst firm of CreightonShatford & Drysdale. He carrieson a general practice whichincludes Property, Criminal,Family, Commercial, andCorporate Law.January 2007

We’ve MovedYour one-stop shop has moved. So what’s different?Nothing. We’ll still pickup and deliver any order while offeringthe same great print and legal copy service you’ve come to expect.E-mail us at info@fusionprint.ca for a pickup or call 442 5031.FuSion PriNt + imagiNg26 Crane Lake DriveHalifax, Nova Scotia B3S 1B4t 902 442 5031 f 902 420 9357e info@fusionprint.ca w fusionprint.caWelcome to 2007, and to this, the slightly new and improvedversion of the Society Record. As most of you are alreadyaware, the Record – in a bid to more productively make use ofour limited time and resources here in the Society’s Communicationsdepartment – will now be published on a quarterly basis.That means we’ll be coming to you every three months insteadof every two, while still delivering the same quality and contentyou’ve grown used to receiving. Also, in a bid to maximize thecommunications potential of the magazine, we’ve now added anew “Society News” section (which you’ll find located on pages14-15 of this issue). Through this new two-page section, we’ll bepassing along Society communications or “news” of interest andimportance; letting you know what’s happening in the Society’sfour departments: Administration, Admissions & ProfessionalDevelopment, Professional Responsibility, and Library & InfomationServices.And finally, I’d like to wish everyone health and happiness in2007, and send a warm thank-you to all those who contributed tothe magazine over the last year, as well as to those whose doorsI’ll be knocking on over the coming one.D e a r M e m b e r sWith this issue of the SocietyRecord we embarkupon the next phase of theSociety’s improved communicationswith our members.For, within weeks of receivingthis issue, our new websitewill be launched. This newsite will complement ourprint and electronic publications– which currently provide the more thoughtful and reflectiveinformation of the work of the Society and lawyers from allparts of the Province - by providing you with up-to-date information– truly at your fingertips.To free up resources needed to develop and maintain the websitewe will be reducing the number of issues of the record to fourper year. That is unfortunate, but we do want to maintain thequality you have come to expect, and with finite resources wecannot do everything we would like.Over the next few months we will be introducing other means toallow you to receive information more specifically tailored to yourindividual needs. Every member has a unique password for entryinto the Society’s database and we’ll soon be asking you to letus know about which areas of law you’d like to receive new casesfrom, or, in another vein, which areas of Continuing ProfessionalDevelopment most interest you. This new tool, which we refer to as“e-Communities” provides us with yet another way of improvingthe quality of the information you receive.These are exciting times and we are pleased to continue toenhance the quality of the services we provide, which in turnimproves your ability to practice better.Darrel Pink, Executive DirectorNova Scotia Barristers’ SocietyThe Society Record

thepresident’sviewrecently had occasion to speak at an All Courts Conference inI Halifax – sponsored by the National Judicial Institute – on theissue of courthouse security. Various other stakeholders werealso present in order to give their perspective on this issue– currently high on the radar screen of judges, lawyers, government,and the public in general. I’d like to share a brief summaryof my thoughts, as conveyed at that conference.Before making any hard and fast decisions on this issue, Ibelieve it’s important to first identify and outline the variousissues and concepts which need to be addressed. I see thoseissues as follows:1) Conducting a proper risk assessment – Before jumpinginto this quagmire feet first, the appropriate authorities mustdetermine where and how tax dollars are best spent. We needonly look at the goings on in a courtroom, on any given day,to see that emotions often run high (which we’ve all witnessedat one time or another), and often come on both quickly andunpredictably. It is important, through further investigation,to develop a mechanism whereby certain types of cases orcourtrooms are identified as being more likely to experience anincident than others, while always recognizing the possibilityfor an incident to occur in any legal forum. Suffice it to saythat a risk assessment is crucial to identifying the best use oflimited tax dollars.2) Costs – This leads me into the second important issue –costs. Obviously, as with any other situation, the governmentwill not have unlimited resources or monies at its disposal.When attempting to effect appropriate changes, it must bedetermined whether new money will be expended in this area,and if so, to what extent. Equally important is whether taxdollars are going to be diverted from other important issues,or to the potential detriment of other programs or groups ofpeople. Obviously, not everybody is going to be satisfied withthe end results of any assessment.3) Proportionality – The present line of thinking wouldseem to indicate that the types of programs that may beimplemented in one area will not necessarily be consistentthroughout the Province. In making decisions as to where andhow to enact new procedures, the system needs to be able toprovide adequate responses as to why substantial changes arebeing made in some courts, while little or no change is madein others. While nobody is suggesting that certain courts orjudges are more important than others, the authorities shouldnonetheless be prepared (and have appropriate responsesin place) to answer those who may question the need formechanisms in place in some areas and not others.These issues have been the subject of considerable discussionamong the Judiciary, the Department of Justice, the Nova ScotiaBarristers’ Society, as well as other stakeholders. In attemptingto craft a solution, we must not lose sight of public perceptionwith respect to access to justice and the openness of the justicesystem. It is important that we not create a regime whichappears to offer a measure of privilege to judges, lawyers, orother participants in the system. We must also be careful not tocreate a system which makes us look (to the public and others)as if we are using a sledgehammer to kill a flea. It’s a finebalance to strike.We must take both a principled and yet practical approachand strive to implement measured appropriate responses andsafeguards to potential acts of violence in our courtrooms. January 2007

BRIEFSj u d i c i a l p o r t r a i t u n v e i l i n gOn Friday, October 6, 2006 members of the Province’slegal community gathered for the unveiling of the portraits ofthe former Chief Justice and three former Justices of the NovaScotia Court of Appeal.The portraits of The Honourable Constance R. Glube (below),Former Chief Justice of Nova Scotia and the Court of Appeal;The Honourable James Doane Hallett (top right); The HonourableDavid Ritchie Chipman (right centre); and The HonourableGerald Borden Freeman (right bottom) will soon be hung in theLaw Courts building.The Society Record

BRIEFSC r i m i n a l L a w C o n f e r e n c e 2 0 0 6Keynote speaker Jennifer Thompson Cannino (right)delivered a riveting speech to delegates of the 2007 CriminalLaw Conference “Sexual Offences: From Wrongful Identificationto Computer Luring” in Halifax on November 3.In partnership with the Criminal Lawyers’ Association of NovaScotia, this sold-out conference featured members of theJudiciary, Bar and other subject-matter experts who deliveredoutstanding presentations on topics such as Internet crime,eyewitness identification, issues around consent, as well asother relevant issues to prosecuting and defending sexualoffences.The conference received rave reviews and concluded with awell-received post-conference networking reception.Keynote speaker Jennifer Thompson Canninon e w N S B S s i t eComing Soon to aComputer Near You!After much discussion,many meetings, and evenmore discussion, the Societyis happy to finally be in thelast stages of completing anew and very much improvedwebsite. Working with Halifax’sImpact Communications, we’repleased to be producing a sitewhich will better serve ourmembers with its improvedorganization of information,and clean, uncluttered look.Look for it at the old address –www.nsbs.ns.ca – lateJanuary/early February. Anyfeedback, once we go live,would be most welcome.January 2007

BRIEFSS k i l l s c o u r s ephotos: Skills Course class photos from October (1), November (2),and December (3) of 2006.213 The Society Record

BRIEFSR o c k f o r K i d s R a i s e s O v e r $ 1 3 , 0 0 0Halifax’s finest amateur legal musicians shook theMarquee Club on Thursday, October 26 to battle for the titleof “Halifax’s Best Legal Band”, and raise money for Halifaxchildren with physical disabilities.McInnes Cooper’s band, “MC Dagremi and the No Chrimes”,was proclaimed Best Legal Band in an extremely close contest,winning out over Cox Hanson’s band, “The Smokin Guns” andStewart McKelvey’s “C-Diddy and The Verdict”.Rock for Kids benefits March of Dimes Canada’s ConductiveEducation Nova Scotia (CE) Program, which helps children andadults with physical disabilities improve their mobility, and increasetheir self-confidence and motivation. Over $13,000 wasraised at the event in support of CE Nova Scotia.photos clockwise from top-left: MC Dagremi and the No Chrimes(McInnes Cooper), C-Diddy and The Verdict (Stewart McKelvey),The Smokin Guns (Cox Hanson), and the Rock for Kids judges.January 2007

LLPGO NORTH!Davis & Co. LLP has been serving Canada’s northern business communities for over12 years. Business is booming in our northern climes and Davis’ Yellowknife officeis seeking to hire corporate commercial lawyers with more than five years ofexperience. These positions offer an excellent remuneration package and theopportunity to work with one of western Canada’s premier firms.Established in 1892, Davis & Company LLPprovides comprehensive legal services to clients around theworld through our offices in Canada and the Pacific Rim. With over 110years of experience representing clients in every sector of industry andgovernment, nationally and internationally, and expanding from just one office to seven in Canada-– we’ve learned a few things about growing a successful and strong national law firm.Please forward CVs to the contact below, quoting Ref#HSR7070.zsa.caAlison C A Bennett N A D A ’ S L E G A L R E C R U I T M E N T F I R M T Mabennett@zsa.caTel: (403) 205-3444 or 1 877 205-3444C A N A D A ’ S L E G A L R E C R U I T M E N T F I R M T MNorthern Lights… every nightCEO, Law Society of Nunavut, IqaluitEstablished in 1999, our client, the Law Society of Nunavut, is a self-governing Society that derives its authority from the Legal Profession Act of Nunavut.The Law Society is seeking to fill the newly created role of CEO. The successful candidate will be responsible for handling all operational mattersof the Society, including communications, applications for admission, CLE seminars, implementation of Board policies, disciplinary actions, liaisingwith committees and other law societies across Canada, and overseeing the financial affairs of the organization.The ideal candidate will possess legal experience from a law firm or regulatory body, excellent management and organizational skills, strongdecision-making ability, and the capacity to be a self-starter. The successful candidate must be willing to learn about the Inuit and deliverculturally relevant services.The draws of Nunavut are many; it is a landscape of mountains and snow, where dog sledding and cross-country skiing are popular leisureactivities, the aurora borealis can be seen throughout the winter, and life beats to the rhythm of a different drum. This is an opportunity to becomepart of an emerging Canadian economy where the people are social and welcoming. If this position appeals to you, please contact us for moreinformation. Ref #HSR10079As this is an exclusive arrangement with ZSA, all resumes sent directly to the Law Society of Nunavut will be redirected to ZSA.zsa.caEmily LeeTel: (416) 368-2051Fax: (416) 368-5699E-mail: elee@zsa.caC A N A D A ’ S L E G A L R E C R U I T M E N T F I R M T M10 The Society Record

BRIEFSS o c i e t y W e l c o m e s N e w E q u i t y O f f i c e rThe Society is pleased to announce the recent hiring ofSherida Sherry Hassanali as the new Equity Officer. Sherry, whobegan work mid-October, is a welcome addition to the Society,and brings a wealth of experience to her position.For the past eight and a half years, she’s been a member of theFaculty of Education at Mount Saint Vincent University whereshe has taught numerous courses in both the Pre-Service(B.Ed) and Graduate Education (M.Ed) programs. She also hadwhat she refers to as “the eye-opening and joyous privilege” ofteaching English as a Second Language (ESL) to internationalstudents, immigrants and refugee newcomers to Canada inboth Halifax and Toronto.Sherry is nearing completion of a Ph.D in Education from theOntario Institute for Studies in Education of the University of Toronto(OISE/UT) where she is specializing in social and culturalstudies, curriculum studies, and teacher education and development;her research areas of interest are critical and transformativepedagogies, identity negotiation, pre-service teacher education,post-colonial discourse, and leadership. She has a furtherbackground in Adult Education, Teaching English as a SecondLanguage, Literacy Education, and Educational Foundations.Sherry has served as the Multicultural Education Consultant forthe Nova Scotia Department of Education, and is currently thePresident of the Multicultural Education Council of Nova Scotia(MECNS), and a member of the Canadian Council for Multiculturaland Intercultural Education (CCMIE). Sherry works as aCultural Competency Training (CCT) Consultant/Facilitator withthe Multicultural Association of Nova Scotia (MANS) and is aformer member of the Board of Directors for MANS. Sherry isalso a Consultant for Oxford University Press, and an IndependentConsultant specializing in Equity and Diversity.In her spare time, Sherry is a gourmet cook, loves to travel,read, oil paint, garden, and sail. She lives in picturesque HerringCove with her husband David Gray, and her two cats, Basil& Sybil.New Continuing ProfessionalDevelopment CentreThe Nova Scotia Barristers’ Society is pleased toannounce the opening of the new Continuing ProfessionalDevelopment Centre in early January of 2007. This new spaceis located on the 4th floor of the Centennial building, and plansare now underway to create a unique learning environmentfor our membership. Stay tuned for updates and the grandopening, coming in January.January 2007 11

BRIEFSE q u i t y O f f i c e / R R C N e t w o r k i n g E v e n tOn Tuesday, November 28, the Equity Office and the Race Relations Committee hosted an informal networking event for lawyersfrom Aboriginal, Black and other racialized communities. This first-time event provided a relaxing opportunity for networking,support, and “catching-up” with colleagues. The event was well-attended and feedback was positive.Guests mingle at the Economy Shoe Shop during this first-timenetworking eventMariott Gilpin and Perry BordenAlicia Arana and Josie McKinneyAleta Cromwell, Michelle Williams, Alicia Arana and George Ash12 The Society Record

BRIEFSR e - e v o l u t i o nOn September 27, 2006 NSBS President Phil Star andProfessional Educator Claudia Chender MacLellan spent anafternoon with the “Re-Evolution Crew”, a group of four ‘highrisk/high potential’ youth who are currently engaged in a yearlongpersonal development and youth leadership program inYarmouth. Each participant was invited to share a story of whenthey had come into contact with the Justice system, and anyquestions that they had reflecting on their experiences. Thediscussion was excellent and everyone involved came awayfrom the session energized and engaged.The participants were very appreciative of Mr. Star’sinvolvement. They remarked that they felt that they had reallybeen listened to, and looked forward to sharing their newknowledge and understanding with their peers. They thankedthe Society for giving them the chance to share their experienceand to learn from someone as knowledgeable as Mr. Star.“The Re-Ev Crew got a huge amount out of it in terms of whatthey could pass onto other youth, but also a shift in how theysee law and lawyers after meeting you two... perhaps this isthe real change that can take place in meetings like this – tore-create the trust between the youth and the people involved inthe legal system.” – Tim Merry, Program Director, Re-EvolutionThis was the second in the Uncommon Law series of events. Thenext event will be a larger conference in Yarmouth in April 2007for lawyers, judges and youth at risk. Contact Claudia ChenderMacLellan for more information at cchender@nsbs.org.Call to the BarThe Nova Scotia Barristers’ Society recentlywelcomed the following new members to the Bar:Susan Yvonne BourSarah Powell BradleyRichard Patrick BridgeJoseph Assad ChedraweDavid A. DanielsFrederick Alexander EmbreeMark Gordon EverettAndrew Donald GodfreyJacqueline HenryAnita Maria HudakSterling KendallRoland Vincent LevesqueJohn Daniel MacDonaldVictoria MainprizeMary Kathryn MartinJulien MatteTimothy McLaughlinRobin PenkerJanus SiebritsRobert Keith WardWilliam ChristianWeisenburgerAndrew Charles WhiteBlake WrightQ.C. AppointmentsThe Society would like to congratulate the following 15Nova Scotia lawyers on their Q.C. designations, announcedDecember 21, 2006, by Justice Minister Murray Scott:Anthony Ross, Oakville, Ont.Alan Ferrier, BridgewaterJohn Khattar, SydneyRobert Carruthers, ShubenacadieJulia Cornish, DartmouthGordon Forsyth, HalifaxRobert Dickson, TruroShirley Lee, HalifaxCarole Gillies, AntigonishYvonne LaHaye, HalifaxStanley MacDonald, HalifaxJohn Traves, HalifaxDarlene Jamieson, HalifaxFrank Hoskins, HalifaxPeter MacKay, MP, New GlasgowJanuary 2007 13

societynewsadmissions & professional developmentThe Admissions & Professional Development Departmenthas had a busy year with the addition of new staff and theimplementation of an ongoing roster of programs that supportsour mandate of education, training and competency of both newand experienced lawyers.AdmissionsThe new Regulation has allowed the number of boutique firms andsole practitioners taking on Articled Clerks to increase this year.Under the new regime, Articled Clerks are not limited in whatthey can or cannot do in the various courts or proceedings.Therefore, there is a greater onus on Principals to ensure thatArticled Clerks are appropriately supervised, that they are notasked to appear on their own in the various courts or proceedingsuntil they are competent to do so, and that the EducationPlan is being adhered to. Thank you to all of the hard workingPrinicipals who make this system work!The number of lawyers applying for admission under the NationalMobility Agreement is increasing. We are regularly dealing withlawyers who have misunderstood or have not properly apprisedthemselves of our transfer regulations. Lawyers who move to NovaScotia from reciprocating jurisdictions cannot practice here untiladmitted to the Nova Scotia Bar, or unless they have an ExecutiveDirector’s permit. Lawyers who have a permit are considered visitinglawyers until admission and cannot advertise themselves, includetheir names on letterhead, or hold themselves out as associatesof a firm until they are admitted to the Nova Scotia Bar.CPD Report CardThe CPD team has been busy delivering dozens of outstanding programsduring 2006 and planning continues for 2007/2008. Accessibilityto education has greatly improved with the addition of ournew Lunch ‘N Law Program in the spring of 2006. Registrants canjoin the program via teleconference from any part of the province.Stay tuned for more Lunch ‘N Law programs in the new year.We have also undertaken a major revision of the Land RegistrationAct Course mandatory training materials, and look forwardto offering an updated course in the spring.We are now looking forward to 2007, and have many excitingconferences and seminars planned. See our website (www.nsbs.ns.ca/cpd.htm) for details.This exemplary education would not be possible without ourgenerous volunteers – members of the Bar and Judiciary!finance & AdministrationTrust Account ReportsIf you have a December 31 year end for trust account reporting,you may have already received your blank Trust AccountReport for 2006. The report has changed slightly from the reportissued last year as we’ve removed references to the Barristers andSolicitors Act and clarified some questions to remove the ambiguityin last year’s form.This would be a good time to start on Part A and contact your accountantto arrange completion of Part B of the report to ensureyour complete Trust Account Report is received in the Society’soffice before the deadline. The regulations around not filing theTrust Account Report on time are severe and are strictly enforced.At a recent meeting of the Trust Accounts Committee, the committeeagreed on an interpretation of Regulation 10.3.3. This isthe regulation that requires lawyers to obtain written confirmationfrom their bank to confirm that trust funds were depositedin their trust account. The Committee agreed that a printed copyof the lawyers online banking information will serve as the confirmationrequired by the regulation.WebsiteLook for a new website for the Nova Scotia Barristers’ Society earlyin the new year. If you have found the existing website confusingand cluttered, the new website will be a vast improvement.A cross-functional team of staffers has been working with ImpactCommunications since the spring to design and develop a websitethat meets the needs of the Society’s stakeholders. Throughthe summer, Impact Communications interviewed a number ofmembers, media, and members of the general public to identifyall the uses of the Society’s website. That information was thencompiled and shared with the Society’s team.Through the early fall, work began on the site map for the website.The site map is the foundation on which a website is built.In late October the Society signed off on the site map for the newwebsite.As of this writing, staff are updating various content pages and finalizingthe look and feel of the final product. We trust you will find thenew website informative, intuitive, and a useful tool in your work.A special note of thanks goes to the team who’ve helped makethis new site a reality: Barbara Campbell, Susan Jones, Pam Sullivan,Lisa Neily, Pierre Benoit, and Dan Davis (and his predecessor,Shawn Ward).14 The Society Record

societynewslibrary & information servicesIn this first issue featuring the “Society News”, the staff ofLibrary & Information Services (L&IS) would like to take theopportunity to update members on developments within the departmentsince the Library Services Committee’s Report to BarCouncil of November 14, 2004 (the “Report”). A key aspect arisingout of the Report was the adoption of a new service deliverymodel – one which provides as much information as possible tomembers’ computer desktops.As part of the new service delivery model, L&IS established satellitecollections at the Simon J. Khatter, Q.C. Memorial Barristers’Library in Sydney and the Kings County Barristers’ Library in Kentville.The satellite collections consist of recent editions of wellknownand well-used textbooks, which are available for loan tomembers. In an effort to deliver information directly to members’desktops, these books are listed in the online catalogue, accessiblethrough the Society’s website. For those members who do nothave convenient access to the satellite collections or the barristers’library in Halifax, L&IS has established a toll-free telephoneline. Please call 1-866-219-1202 to request books, which can becouriered to members outside metropolitan Halifax at no cost.Again, in an effort to provide more information online, L&IShas posted its research guides for online databases and print resourceson the Society’s website. The guide for online databasesoutlines how to use all of the L&IS databases, while the guide forprint resources summarizes the valuable print material availableat the barristers’ library in Halifax. In the near future, L&IS willbe posting the personal injury damages and sentencing chartsthat regularly appear in the Nova Scotia Law News, as well asresource lists of materials specific to particular practice areas.Yet another way in which L&IS is achieving the goal of deliveringinformation directly to the desktop is through CanLII. The CanadianLegal Information Institute, or CanLII, is an online collection ofprimary legal materials. Since 2001, L&IS has contributed currentdecisions from Nova Scotia’s Court of Appeal, Supreme Court,and Provincial Court to CanLII for posting on its website. Recently,L&IS completed an extensive retrospective conversion project toincrease the number of older decisions available on CanLII.Finally, with the release of the Report, the name “Library Services”was changed to “Library & Information Services” in orderto more accurately reflect the work of the department. Pleasedo not hesitate to contact staff for any of your information needsby dialing 1-866-219-1202 or 425-BOOK (2665), or by sending anemail to nsbslib@nsbs.org.professional responsibilityWhat is the Department of Professional Responsibility (PR)?Many of you would have known it under its previous name:“Discipline Department”. ‘Discipline’ represents such a smallproportion of what we do – our focus being on ethics educationand complaints resolution – that the decision was made tochange the name to “Professional Responsibility”.We receive approximately 800 complaint calls each year. Ourstaff mediate and otherwise resolve issues, or refer callers tooutside resources, so that the number of written complaintsreceived is reduced to approximately 250. Of these, staff mediate/resolveover 50 per cent, and dismiss another 35 per cent onaverage. About 15 per cent of written complaints are thereforefully investigated and referred to the Complaints InvestigationCommittee. These complaints, however, are increasingly complexand require more resources and Committee time.The number of complaint files opened this year dramatically increasedfrom an average of less than 50 to over 100. Complaintsrelating to the Land Registration Act have had a significant impacton the work of our department, both in terms of respondingto audit problems, and issues with lawyer competency. Thatbeing said, complaints from financial institutions regarding delaysin filing final reports and releases have decreased.At this halfway point in the year, we have already held three formalhearings and have six more scheduled for the winter. Themajority of these matters involve younger lawyers who have becomeoverwhelmed in practice for various reasons and againstwhom we have received multiple client complaints.Our department receives over 100 calls from members each yearwith inquiries relating to duties under the Legal Ethics Handbook.This proactive approach by members is applauded and encouraged.Our Best Practices database is available on our website atwww.nsbs.ns.ca to assist members in researching ethics matters.The PR Department is also responsible for processing claimsagainst the Lawyers Fund for Client Compensation, addressingbreaches by members of the trust account regulations, the trustand LRA audit programs, and monitoring members’ bankruptciesand judgments, which are required to be reported.So please don’t cringe when you receive mail from our department.We work hard to reduce the number of complaints towhich lawyers have to respond, to improve the reputation of thelegal profession, and to provide assistance; remember that ‘discipline’doesn’t have to be the answer!January 2007 15

Feedback from theFrontlinesWe asked four lawyers from around the province who regularly find themselves in SmallClaims Court, a few questions with respect to the new $25,000 limit. Here are their thoughts.is difficult to tell a client that while Small Claims Court process isless cumbersome and more efficient than Supreme Court procedure,unlike Supreme Court, there is no provision for costs to a successfullitigant. This is particularly frustrating for a client who is obligatedto defend what they believe to be, and what may prove to be, anunmeritorious claim that is at the top end of the range. The result isthat the client may be compelled to hire a lawyer to defend them, butcannot be comforted by any award of costs when they are successful.Adjudicators are often generous in granting adjournments to ensurethat lay-litigants have their day in court, and also in permitting themgreater leeway in presenting evidence that may not be relevant to thesubstance of the claim. Section 2 sets out purposes of both informalityand cost efficiency. These two purposes do not necessarily complimenteach other, which can be discouraging for your client when he or she isnot permitted an award of costs for his or her success.Should general damages be increased from their current $100?If not, why?Has SCC, with the new ceiling of $25,000, gotten too far awayfrom its original intention? Has this become an access to justiceissue, since it’s the only forum for lay litigants?Nicole GodboutBoyne ClarkeSection 2 of the Small Claims CourtAct provides:It is the intent and purpose of this Actto constitute a court wherein claims up to but not exceeding themonetary jurisdiction of the court are adjudicated informally andinexpensively but in accordance with established principles of lawand natural justice.The new ceiling naturally brings more complex matters before theCourt. Previously, a claim in the $20,000 range often could notjustify the expensive pre-trial disclosure and discovery process inSupreme Court. With the new ceiling, people who would otherwisebe self-represented in Small Claims Court may opt to retain counsel.More complicated substantive issues often equal increased costs. ItI support maintaining the current limit for general damages.Assessment of general damages can be a complex exercise and oftenrequires expert evidence and/or presentation and evaluation of caselaw. With no pre-trial disclosure requirements, expert evidence wouldbe presented in a trial by ambush manner and adjournments wouldbe more prevalent in order to obtain rebuttal evidence.Furthermore, there is no jurisdiction in the Act for any increasedaward for expert witness fees for attendance at trial. Section 9 of theRegulations applies equally to an expert witness as it does to a laywitness. Therefore, an expert would only be entitled to witness fees inthe amount of $5 for attendance plus $.20 per kilometer for travel.Do you feel, since the stakes are now much higher ($25,000, asJustice Warner recently stated, is more than the average NovaScotian makes in a year), that there should be greater proceduralrules, including pre-hearing disclosure of documents and recordingof hearing?16 The Society Record

Justice Warner stated at paragraph 27 in Kemp v. Prescesky [2006]N.S.J. No. 174 (NSSC):With the increase in the monetary jurisdiction of the court is aconcomitant requirement for rules that protect the integrity andfairness of the court.I believe that encouraging pre-trial disclosure, and making theSmall Claims Court a court of record must occur to fulfill thisrequirement.Dealing with lay-litigants on the issue of pre-hearing disclosure isoften difficult. On occasion, I have proposed the mutual exchangeof documents but was met with suspicion when the individualfailed to appreciate that my motives were simply to expedite andsimplify matters. However, we could impede access to the courtsby discouraging impecunious lay-litigants from bringing theirclaim because of fear of court process or procedure, particularly iftheir opponent is represented by a lawyer and is demanding strictcompliance with the rules. That said, I believe it to be in the interestsof justice and expediency to encourage pre-trial disclosure.I believe recording proceedings is critical. A record will give clarity onappeals and provide accuracy to all involved, including the adjudicators.the more people who can get into court quickly and cheaply for aresolution. I would disagree.Take this example: With the advent of property condition disclosurestatements, many cases in Small Claims Court deal with unhappynew homeowners who discover the dream home they just bought hasa few nightmares. The purchaser argues the vendor knew or oughtto have known about the defects. The vendor says they had no idea,or the defects were obvious, or they aren’t all that serious. The resultis the price the vendor agrees upon may not be the final amount,perhaps by as much as $25,000. Did the vendor know that prior toagreeing upon a price?Should general damages be increased from their current $100?If not, why?One quirk of the Small Claims Court system is the cap on generaldamages of $100. So why have it at all? Or, if adjudicators can betrusted to deal with $25,000 claims, then are they not also ableto determine general damage awards to, say, $2,500? That wouldcertainly speed up the personal injury system with our broaddefinition of minor injury, and take the negotiating out of the handsof insurance adjusters.Another oddity of the system that government should reconsider isawarding costs. In Small Claims Court, there are none. For a $25,000case, it’s likely worth it to retain lawyers. Shouldn’t the successful partybe entitled to something for costs? If the government is worried aboutlawyers claiming excessive costs in a simplified court system, cap costsat, say, $500. Adjudicators already serve as taxing masters, and theyare lawyers, so they know what legal bills look like, and how muchwork goes into preparing for a trial, no matter what court it is.Do you feel, since the stakes are now much higher ($25,000, asJustice Warner recently stated, is more than the average NovaScotian makes in a year), that there should be greater proceduralrules, including pre-hearing disclosure of documents and recordingof hearing?Justice Warner, in Kemp v. Prescesky, 2006 NSSC 122, has recognizedthat a $25,000 judgment is enough to bankrupt most Nova Scotians.He has suggested a broader appellate approach when asking if therequirements of natural justice have been met. In my opinion, he’scorrect.Has SCC, with the new ceilingof $25,000, gotten too farDonald UrquhartMuttart Tufts Dewolfe & Coyleaway from its original intention?Has this become an accessto justice issue, since it’s the only forum for lay litigants?Small Claims Court – I consider it the wild wild west of the judicialsystem. With few rules and unrepresented parties, anything canhappen. And with the April 2005 amendment upping the limit to$25,000, the stakes are high.Procedure? In Small Claims Court there is no tape recording, so notranscript is available. There are only three grounds of appeal in thelegislation. If you represent the loser of a $25,000 claim, the only“record” for the appeal judge is a written decision of the adjudicator,who prepares it after learning an appeal has been filed. Maybe thisinformal approach was okay when the limits on liability were only afew thousand dollars and the tradeoff was a speedy resolution. But for$25,000, most lawyers would probably want a few more proceduralsafeguards, like formal exchanges of relevant documents, to protecttheir clients.Is bigger really better? The provincial government seems to thinkso. But what about the litigants? Avocates of a $25,000 limit willprobably say it’s an access to justice issue. The higher the limit,January 2007 17

Has SCC, with the new ceilingof $25,000, gotten tooPaul DrysdaleCreighton, Shatford & Drysdalefar away from its original intention?Has this become anaccess to justice issue, since it’s the only forum for lay litigants?When Small Claims Court limits were raised to $25,000 in 2005, Iwas surprised to learn that there had been no representations of anykind made on the subject to government by the profession. AlthoughI am not one to encourage the Barristers’ Society to involve itself inissues where the protection of the public is not directly involved, itcaused me some concern to learn that this legislation was passedwithout comment from those practising within the system. In myview, the Small Claims Court has been moved dangerously awayfrom its original purpose, which was to provide quick, informal andfair decisions on simple issues between individuals, toward a situationwhere unsophisticated individuals, facing substantial claimsfrom bill collectors and other experienced corporate representatives,or from represented opponents, may find themselves at a significantdisadvantage.There is need for reformin order to reduce thecosts and delays involvedin litigation. Chief JusticeMcLachlin recentlywas quoted by the CanadianPress as saying that,“Legal fees are so highthat up to 40 per cent oflitigants are now representingthemselves at trial,armed with a weak ornon-existent grasp of thelaw.” This, in itself, can cause great strain on the court system.It is obvious that costs of litigation are no doubt a threat to the averageperson’s access to the courts. Over-broad discovery and increasingnumbers of pre-trial procedures are increasing costs to a point whereprosecuting just claims is simply not cost effective. Ordinary peopleare unable to afford the costs of bringing these claims before thecourts. In raising the Small Claims jurisdiction to $25,000, however,it is submitted that the access to simple, inexpensive justice – that theSmall Claims Court is intended to provide – is put at risk.Should general damages be increased from their current $100?If not, why?No.Do you feel, since the stakes are now much higher ($25,000, asJustice Warner recently stated, is more than the average NovaScotian makes in a year), that there should be greater proceduralrules, including pre-hearing disclosure of documents and recordingof hearing?I cannot imagine that a $25,000 claim could be considered “small”by many individuals in Nova Scotia. Any of us who appear in SmallClaims Court regularly are aware that more lawyers are appearing onbehalf of litigants as amounts involved become more significant. Wetherefore retain many of the problems of legal costs without the proceduralprotections provided by the Civil Procedure Rules. There are norules for pretrial disclosure of witnesses, documents or other evidence.There is no method of encouraging pre-trial negotiation, since partiesmay not know the other side is represented until they show up atcourt for their hearing. How often have you appeared at Small ClaimsCourt with a client, having prepared for trial and subpoenaed witnesses,only to have the unrepresented party on the other side, whetheran individual or a corporation, ask for an adjournment of the hearingin order to get counsel to “level the playing field”?There is often a relaxation of the strict rules of evidence, resultingfrom the “informal’ nature of the Court. There is no record of theevidence taken – other than the adjudicator’s notes, and no appeal,other than by way of stated case. There are no significant cost consequencesto unsuccessful litigants, even where the successful partymay have gone to the expense of having legal counsel. More importantly,I submit, given that I always understood the purpose of pretrialdisclosure to be the encouragement of settlements, the absenceof any kind of process forthis has the potential tocreate more litigationrather than less.“Any of us who appear in SmallClaims Court regularly are awarethat more lawyers are appearingon behalf of litigants as amountsinvolved become more significant.”I am in complete agreementwith those who saythat the costs of and thedelay inherent in pretrialprocedures is often whatlimits the average person’sability to seek the protectionof the Courts for justice.I do question, however,the solution of raisingthe Small Claims limits, without adding some procedural protections.An alternative solution was proposed by the Canadian Bar Associationin the 1990s and an example can be found in New Brunswick, whereRule 79 of the Rules of Court has recently been added to provide fora simplified procedure in claims under $50,000, without affecting theSmall Claims limits of $6,000. I encourage you to access Justice DavidH. Russell’s overview of the new rule, which can be found on the Webat www.cba.org/NB/pdf/Rule%2079.pdf . The procedure provides forearly and mandatory disclosure of documents and witness statements,no expensive discovery proceedings, expedited hearings and time limits,and serious cost consequences for failure to comply with the rules.This type of rule has successfully been in effect in Ontario, Manitobaand Saskatchewan for some time.January 2007 19

January 2007 21

C O N T I N U I N G P R O F E S S I O N A L D E V E L O P M E N TAges & Stages:Generational Issues in the Practice of LawNova Scotia Barristers’ Society Annual General MeetingJune 22 & 23, 2007Mark June 22 & 23, 2007 in your calendar for the Nova Scotia Barristers’ SocietyAnnual General Meeting.Join us for this dynamic & interactive event that is sure to provide you with the inspiration andthe tools to return to your practice revitalized and better able to serve your clients.The CPD Team is excited to bring you a relevant and timely program that provides you with thetools you need to bolster your practice.Choose from an extensive roster of educational offerings designed to meet the needs of today’slawyer. There will be opportunities for both substantive education as well as informal and educationalnetworking both for lawyers and for the whole family!And, of course, bring your family to enjoy the ocean surf and long sandy beach, not to mentionthe children’s programs that run day and evening.Set on the scenic South Shore of Nova Scotia & located only 90 minutes from the Halifax InternationalAirport, you will find Atlantic Canada’s oldest privately owned seaside resort, White PointBeach Resort and Conference Center (www.whitepoint.com). With its beautiful setting, familyfocus, and convenient location, White Point is an ideal setting for this terrific annual program.Stay tuned for updates and registration!22 The Society Record

In thecommunityRandall Prime of Waterbury Newton in KentvilleIt’s a great pleasure for me to be able to write something for theBarristers’ Society on Randall Prime, a lawyer with the Kentvillefirm, Waterbury Newton. A well known and highly respectedmember of our community, Randall is first and foremost known asa business person who provides his clients with high quality service.Likely unbeknownst to many, he is also an individual who providescountless hours to the Valley community as a volunteer.I’ve known Randall for approximately ten years; initially meetingwhen he volunteered to coach my son David’s soccer team. As a coachhe always went above and beyond what was required to ensure thatthe boys and girls in his program developed as players and as youngpeople in an atmosphere of fun, often providing treats and awardsto the kids from his own pocket. Players and parents alike alwaysenjoyed the end of season party – complete with BBQ and hundredsof water balloons. In fact, parents and players have so enjoyed him asa coach that they oftenwrite on the registrationform “Randall Prime’steam please.”John Bedard President,Valley Sport & Multipurpose AssociationAs a competing coach I can say from experience that Randall alsoenjoyed being a “competitor”, and more often than not always achievedhis year-end goals. (He was the first coach with the Kings West SoccerClub to bring home a Provincial Gold Medal.) At the same time I canalso attest to his sportsmanship when not on the receiving end of a win.He was always ready with a warm smile, a hearty “congratulations”,and a slap on the back for a job well done.More recently, Randall devoted a significant number of hours in legalwork, free of charge, to the Valley Sport and Multipurpose FacilitiesAssociation, and was one of the founding members of the new andhighly successful $2 million dollar indoor soccer facility located inKentville. His office door is always open – even at his busiest time ofthe year – to listen to the daily issues and challenges of constructingthis large community project. He has provided work on mortgages,land leases with the Town of Kentville, tenant leases, and managementagreements to our organization free of charge – and usually deliveredto our door with a smile.Randall has also provided many, many volunteer hours to the NovaScotia Spina Bifida Association, and I believe sits on their nationalbody as well.The new $2 million dollar indoor soccer facility located in Kentville, NSRandall Prime is a quiet but very strong pillar in our community herein the Valley.January 2007 23

24 The Society RecordCourtroom No. 3 at the Provincial Court House on Spring Garden Road, Halifax, NSPhoto by Catherine Neily/NSBS

An Enviable RecordThere have been many wonderful privileges in my legalcareer to date – one of the greatest of which has been theopportunity I have been afforded to serve the litigants ofthis province as an adjudicator of the Small Claims Court of NovaScotia, and, since September of 2001, as the Province’s first ChiefSmall Claims Court Adjudicator.Though it has gone through immense changes since my appointmentas an adjudicator in August of 1994, the Small Claims Court remainslargely as the forum of choice for “ordinary people” looking to resolvetheir civil disputes. For these litigants, the Small Claims Courtprovides quick and informal access to civil redress “in accordancewith the principles of law and natural justice” as provided for in s. 2of the Small Claims Court Act.To many, the Small Claims Court is their only available arbiter. Theprohibitive costs and lengthy delays associated with civil actions inthe Supreme Court of Nova Scotia have rendered that forum wellbeyond the reach of those other than the wealthy and those whoseclaims lend themselves to representation through contingency feeagreement. Is it then any wonder that the jurisdiction of the SmallClaims Court has expanded, monetarily and otherwise, in recentyears, to the extent it has?There are many, I realize, within our profession who regard the SmallClaims Court as little more than some form of adjudicative lottery.They may regard the forum as one within which almost anythinggoes, in the evidentiary and argumentative senses. They may see theprocess as one which results in little more than “rough justice”. Theymay also conclude that decisions are rendered only on the basis ofmixed fact and myth and with little or no analytical consideration.How wrong those perceptions really are!Monetarily, the Small Claims Court’s jurisdiction now standsat $25,000. Additionally, the Small Claims Court is the primaryappellate tribunal for residential tenancy matters. It is also theprimary authority for the taxation of costs and legal accounts. The$25,000 monetary limit does not apply to those. Several adjudicatorshave, to date, taxed accounts which have ranged into the hundreds ofthousands of dollars, rendering lengthy and complex written reasonsfor decisions which have survived more than one level of appeal.To bring poignancy to the Small Claims Court’s expandingjurisdiction, the Supreme Court of Nova Scotia (per: Warner, J.)recently reminded the adjudicators (and others), in Kemp v. Prescesky,[2006] N.S.J. No. 174, that $25,000 was very close to the annualaverage income of all adult Nova Scotians. The Supreme Court’smessage was clear: as the Small Claims Court’s jurisdiction expands,so must its procedural formality. So what might change?As it’s now configured, the Small Claims Court is populated by nofewer than two dozen adjudicators, most of whom are appointedby the Governor-In-Council for terms of not less than five years.They come from many different geographical areas within theprovince, and their legal practicebackgrounds vary widely.Gavin Giles, Q.C.McInnes CooperMost of the adjudicators have inexcess of twenty years practice experience. A high proportion of themare Queen’s Counsel. Some possess graduate degrees in law. Someothers have combined their experiences in adjudication with formaltraining in mediation, arbitration and decision-writing. More than halfof the current sitting adjudicators have been presiding over the Courtfor more than ten years. Theirs is an exemplary record of communityand professional service and voluntarism. While paid for their “sittingtime”, most adjudicators spend three hours preparing and writingdecisions outside of court for every hour they spend sitting in it.In any given year, the Small Claims Court will collectively receiveupwards of 3000 claims. Of those, approximately two-thirds tothree-quarters will proceed to formal hearing. Of those, two-thirds tothree- quarters will result in written reasons for decision after varyingperiods of reflection. The balance are usually decided on the spot.Perhaps remarkably, fewer than three per cent of all Small ClaimsCourt decisions are taken on appeal to the Supreme Court ofNova Scotia. Of those which are, only approximately one in nineresults in an outright reversal or an order for re-hearing. Orders forre-hearing are by far the predominant Small Claim Court appealremedy. Outright reversals are extraordinarily rare. That is, by anymeasure, an enviable record. It is one for which the Small ClaimsCourt, its adjudicators, the Department of Justice, and the otheradministrators of justice in this province, can be justifiably proud.That the Small Claims Court will continue to have its challenges isclear. Kemp has been a watershed and has presented the Small ClaimsCourt with something of a lightening rod. The future challenge willbe to both ensure the establishment of appropriate and acceptableprocedural safeguards, whilst at the same time maintaining theuniversal access which has been the hallmark of the Small ClaimsCourt’s twenty-five year history. The signal from the Supreme Courtof Nova Scotia is that it is watching carefully.To that end, issues currently being examined by the Nova ScotiaDepartment of Justice’s Small Claims Court Options DevelopmentCommittee include pleadings, default judgment as opposed to “quickjudgment”, pre-hearing documentary disclosure, oral discovery,verbatim hearing records, costs, witness compellability, enforcementof Orders through contempt and like procedures, and the limitationof appeals to en banc panels of adjudicators.It is likely that through the options development process, in whichall of the Small Claims Court stakeholders are capably represented,the type of process we now know will change in manners difficult togauge at present. That change notwithstanding, the Small ClaimsCourt will continue to offer itself as a forum for which public accessis its most common feature.January 2007 25

Alberta Bound!Where energymeets peopleEnbridge Inc. is a leader in energy transportation, distribution and services in Canada and the United States and operatesthe world’s longest crude oil and liquids pipeline system.The company also has a growing involvement in natural gas transmission, liquids marketing, electrical power distribution,international energy projects and the provision of retail energy products and services.Enbridge offers very attractive compensation, benefits and relocation packages.Our client, Enbridge Inc.,is a leader in energytransportation, distributionand services in Canada andthe United States.Enbridge operates theworld’s longest crude oiland liquids pipeline system,and provides natural gas to1.7 million customers inOntario, Quebec and NewYork State.The company also hasgrowing involvement innatural gas transmission,liquids marketing, electricalpower distribution andinternational energyprojects.Enbridge’s continuedsuccess and growth hascreated these challengingcareer opportunities in theAlberta OfficeLaw DepartmentSenior and Junior Regulatory Legal Counsel (3 positions) Calgary, ABReporting to the Associate General Counsel, Liquids Pipelines, these positions will assist in providing advice and guidance onregulatory legal issues affecting all aspects of Enbridge’s petroleum pipeline assets. Your major responsibilities will involve preparationof complex applications, corporate regulatory strategy, submissions and interventions to federal, provincial and municipalgovernments and regulatory agencies. In addition, you will be actively involved in negotiating, drafting and reviewing complexcontracts and preparing legal opinions. Other duties include ensuring compliance with all applicable laws and protection of Enbridge’sassets and interests. You will advise on regulatory issues arising in relation to facilities, public/aboriginal consultation, land acquisition,real property, environmental matters, operations, tolls and tariffs, among others.The successful candidates will be versatile and broadly trained as regulatory lawyers with 5 – 12 years of relevant experience,preferably as lawyers in the oil or gas pipeline industry. The candidates must be members in good standing with a provincial lawsociety and be eligible for admission to the Law Society of Alberta.As well, our successful candidates must be pro-active team players who also have business acumen to help with regulatory strategyand filings on such proposed projects as:• Gateway Pipeline Project – petroleum and condensate pipelinesbetween Edmonton, AB and Kitimat, BC – approximate capital costs $4Billion• Southern Access Expansion – facilities modifications in Canada– approximate capital costs $200 Million• Southern Lights Project (Cdn and US portion) – Diluent pipeline fromChicago, IL to Edmonton, AB – approximate capital costs $920 Million(USD)• ACCE Project – Alida, SK to Cromer, MB Capacity Expansion Project– approximate capital costs $14 Million• Alberta Clipper – pipeline from Hardisty, AB to Superior, WI– approximate capital costs $1.8 Billion (USD)• Hardisty Merchant Tank Farm – 19 merchant hydrocarbon tanksapplication recently filed with EUB – approximate capital costs $300Million• Waupisoo Project – 380 km pipeline from Cheecham Terminal (nearAthabasca) to Edmonton Terminal and a diluent pipeline fromEdmonton, AB to Cheecham, AB – approximate capital costs - $400Million• Stonefell Project – terminal and pipeline facilities for the HeartlandUpgrader that includes supply and product tanks – approximatecapital costs $80 Million…plus many more energy related projects that Enbridge plans to pursue.Ref# 8728 and 8729.Junior Legal Counsel – Operations (1 position) Edmonton, ABReporting to Senior Legal Counsel, you will assist in providing advice and guidance on all corporate and commercial legal mattersaffecting the operations and acquisitions of Enbridge and its affiliates. Your major responsibilities will involve negotiating, drafting andreviewing commercial documentation, as well as advising on general operations matters, including employment matters, safety &environment, land acquisitions, construction contracts, builders liens, power contracts, tax and insurance, information systems,providing legal opinions, and assisting and coordinating outside counsel involved in litigation.The successful candidate must have 2 - 5 years of relevant legal experience and engineering or business experience would be anasset, but is not a prerequisite. The ability to communicate in an effective and nontechnical manner and excellent organizationskills are essential. The successful candidate will be a pro-active team player with excellent interpersonal skills and a keeninterest in becoming involved in the company's business. Ref#8727If you are interested in these opportunities, please submit your application and inquiries to:Alison Bennett, Manager Tel: (403) 205-3444 • Toll Free: 1-877-205-3444 • E-mail: abennett@zsa.cazsa.caC A N A D A ’ S L E G A L R E C R U I T M E N T F I R M T M26 The Society Record

Bill No. 92, Act re Small Claims Court, was the final bill of theevening on May 21, 1980. There were but 15 members remainingin the chamber for discussion of the bill. Setting out theprinciple and object of the bill, Attorney General Harry How stated:The purpose of this court is stated in the preamble of the bill inthat I think all who have practised law and those who have perhapshad matters which they wanted to bring before the court,have oftentimes been frustrated by the fact that the costs of processingclaims through courts, of general use, has been consideredby some to be out of proportion at times, when the claimis small. Therefore, we come to the basis of this bill, it is a SmallClaims Court. (Hansard, 21 May 1980)He explained that the bill under discussion had been developedthrough consultations with consumer groups, the Law Reform AdvisoryCommittee, and input from the Barristers’ Society, who “werestrongly supportive of this legislation”.The Attorney General continued on to provide further details of a ratherunhappy and undesirable state of affairs in Nova Scotia. He spokeof individuals “who had small claims and who were frustrated by thethought that they had no court.” He noted that for many years, backinto the 1960s and perhaps long before, “...that although there was aso-called municipal court available in the statutory sense, that in thepractical sense it was [not] available because there were really no judgesthat were prepared to sit in judgment in respect of that court.”There is no doubt that reform of the court structure was long overdo in1980, and the establishment of Small Claims Court was only one partof a rethinking and restructuring that would take place over the nextdecade or so. Significant reform took place following the Report of theNova Scotia Court Structure Task Force (March 1991), chaired by ProfessorBill Charles, Q.C. of Dalhousie Law School. In a brief history of theNova Scotia Courts, which appears as Appendix 1 of the Charles TaskForce, it was noted that complaints were heard from the Bar Society asfar back as 1913 about the multiple framework of Justices, StipendiaryMagistrates, Municipal, City, County and Supreme Courts. It isapparent that these complaints fell on unlistening ears for many years.Magistrates Court, established in Nova Scotia in 1827, continued until1985. Municipal Court was in existence from 1888 to 1985.In discussion on the bill, one honourablemember took issue with thefact that the proposed legislationpermitted parties to be representedDavid BlaikieDalhousie Law Schoolby lawyers. The Consumers Association of Canada had recommendedthat lawyers be barred from Small Claims Court. David Muise,member for Cape Breton West, stated that:The Attorney General, in his opening remarks, said he hoped to simplifythe process and to make it informal, and I think that that thinkinghas been felled with one blow in Section 16 by saying that theperson may be represented by counsel. I disagree with that very strongly,although I am a lawyer. I feel that there is nothing that will muddy thewaters more or make it more formal than the presence in that systemof lawyers. I think that the system can be run very successfully and veryinformally without the use of lawyers.In a somewhat related critical vein, the honourable member from CapeBreton East, Jeremy Akerman, questioned the wisdom of section 6 (3)that requires small claims court adjudicators be “a practising memberin good standing of the Nova Scotia Barristers’ Society.” He said thathe “had often thought that the introduction of more lay persons intothe judicial system would be no bad thing indeed.…” He praised as amodel to emulate, magistrates court in Australia, where the judges arelay persons, and explained, in part, as follows:You would not want, you know, and I say this with no disrespect tocoal miners or doctors, but you would not want a coal miner or doctorjudging a murder trial in which there were very complicated proceduresand some very complicated evidence, some tricky points of law. You justwould not want that to happen. But at other levels [such as a smallclaims court], it seems to me that we could involve more lay persons.Following a discussion and debate on these and several other concernsand questions, the bill passed second reading and was referred to theCommittee on Law Amendments, and eventually, of course, becamelaw. Most Nova Scotians would agree, I think, that Small Claims Courthas addressed quite effectively the fundamental concerns and needsidentified in 1980, perhaps in part because of, or no doubt in the eyesof some, despite, the fact the legislation requires adjudicators to be lawyersand allows parties to be represented by legal counsel.January 2007 27

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A Smart PartnershipDuring the past summer, the Law Reform Commission ofNova Scotia initiated a collaborative access to justice projectwith Saint Mary’s University to examine the workings of theSmall Claims Court.The Small Claims Court was established in 1980 as a result of recommendationsfrom the Commission’s predecessor, the Nova ScotiaLaw Reform Advisory Commission. The Court was established inorder to provide Nova Scotians with an informal, inexpensive, andspeedy means of having their disputes resolved without the necessityof a lawyer. The increasing inaccessibility of the civil justice system inNova Scotia, and all other jurisdictions in Canada, has provided thestimulus for this project.Concerns about access to justice in Canada are not new. Indeed, theCanadian Bar Association published a report on civil justice systemsin Canada 10 years ago in which it highlighted the emerging crisis inthe civil justice system, with its increasing costs, delays and complexity.While many of the problems afflicting the civil justice system wereclearly recognized, the almost complete absence of empirical data was,and continues to be, a real impediment to understanding the underlyingcauses of these problems. Ten years later, and notwithstanding thehuge amounts of money expended on the civil justice system, there hassince been very little empirical research conducted in Canada. Duringthis time, we have also seen a very significant increase in the number ofself-represented litigants in the courts at all levels.It is against this background that the Commission decided that therewould be merit in examining the workings of the Small Claims Courtfrom the perspective of two questions. The first relates simply to thequestion of how well the Court is doing in relation to its originalmandate. The second has to do with whether the civil justice systemat large might usefullylearn – and perhaps even John Briggsadopt – something from Executive Director & General Counselthe workings of the Small Law Reform Commission of Nova ScotiaClaims Court.The first stage of the project has involved a series of structured interviewscarried out by social scientists who have a particular interestin psychology and the law. Interviews have been conducted withthe excellent cooperation and participation of Small Claims Courtadjudicators, court administrators, and lawyers who appear in theSmall Claims Court. Those interviews are nearing completion andthe results will soon be collated and analyzed. It is expected that theinterviews will not only provide interesting and valuable informationabout the workings of the Small Claims Court, but also help informthe development of an extensive questionnaire - to be administered toSmall Claims Court users during the second stage of the project.This project is somewhat unusual for the Commission. Generally, theCommission undertakes a project related to an area of the law that it isbelieved may require some reform. This project does not presume thatthere is anything wrong with the workings of the Small Claims Court.Nonetheless, it is hoped that the work of this project will contribute insome way to a better understanding of how the Small Claims Courtworks, and ultimately, that it might lead to improvements not only inthat Court, but perhaps in the civil justice system at large.Established by legislation in 1990, as an independent provincial agency, the LawReform Commission is mandated by statute to review Nova Scotia law and makerecommendations for its improvement, modernization and reform.January 2007 29

1-866-299-1299 • Completely Confidential AssistanceLawyers Assistance Program AwardAwarded to Lori Duggan at the November 24, 2006Council meeting. The award was introduced by LAPAdvisor, Blanche Keats:The Lawyers Assistance Program Award is given to anindividual who has made a significant contribution tothe Nova Scotia Lawyers Assistance Program. The Awardrecognizes an outstanding contribution by way of a singleeffort, achievement or event, or a series of efforts andcontributions over a long period of time.The Award recipient must possess qualities importantto the Lawyers Assistance Program: determinationand patience; kindness and strength; leadership andacceptance; as well as courage and humility.Lawyers Assistance Program AwardLori Duggana program that was fielding somewhere around 20 callsper year. The program we have today, providing a widebreadth of confidential counselling services to lawyers,their family members, and their staff, at a rate of morethan one new case per week, is very much thanks to thework and personality of Lori Duggan.Blanche Keats explains how that happened:“Since the early nineties, when LAP was strugglingto get off the ground, the presence that came inand took hold was Lori Duggan. Lori has been somuch more than a staff member. Her devotion tothe program has resulted in many days, evenings andweekends of involvement. Lori has been the voice andface of LAP, the one we all turned to for advice andsupport.”Pat Cassidy, former Chair of our LAP and now Chair of ournational body, was more succinct. He says:“If it had not been for Lori our LAP would havefailed. She was the consistent thread which held ittogether and allowed it to flourish.”Whether it was attending National conferences on ourbehalf, or developing new initiatives such as our programto specifically address needs of women lawyers inthe 2000–2001 program year, or sole practitioners a fewyears later, or most importantly, taking calls directly fromlawyers who decided they needed help, Lori did indeedbecome the face of our program.Blanche Keats (LAP Advisor), Eleanor Duggan, Lori Duggan(Award Recipient), and Donald Murray, Q.C. (LAP Committee)The following remarks were made by LAP Committeemember, Donald Murray, Q.C.:The Lawyers Assistance Program began operations in1990, though it was not formally established until February1991. Lori Duggan began her involvement with theCommittee in 1993, providing administrative support toFor lawyers to call Lori directly, rather than use theconfidential 1-800 number, was a lesson to us that it wasimportant for lawyers to speak to someone they knew,someone they could trust, and someone they knew wouldprovide compassion, understanding, and direction towardsa better situation.None of us ever get too many lessons or examples of effectivecompassion in action. Lori’s work with the LAPprovided us with those kinds of lessons, year in and yearout. Her departure leaves us poorer, but her example ofhow to run an effective LAP is her legacy to us. That iswhy we are saying a partial thank you with this award.30 The Society Record

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You bethejudgeQ:A :Does Small Claims Court need more procedural protection now thatclaims are higher?Informality in Small Claims Courts has traditionallybeen justified on the basis that “Cadillac-styleprocedures are not needed to process bicycle-sizedlawsuits.” In Nova Scotia’s Small Claims Court,forms can be filled out by hand, there is no process for pre-trialdisclosure, the rules of evidence are relaxed, and hearings are notrecorded. Appeals are limited to errors of law or jurisdiction, ordenials of natural justice. Streamlined procedures make the processlightning-fast by litigation standards: the time from filing a claim totrial is usually only a matter of weeks.the Small Claims process.According to those whostudy such things, few selfrepresentedlitigants say theyCynthia ChewterBarrister & Solicitorwould prefer greater formality at hearings. Self-reps say they wanta process that (a) doesn’t cost them too much money, (b) proceedsrelatively quickly, (c) is easy to understand, (d) gives them a chanceto say their piece, and (e) involves an adjudicator they regard asindependent and fair-minded. To that end, here are some reformsthat would enhance fairness in our smallest and fastest of courts:Back in 1981, when the Small Claims Court had a $3,000 limit,informal procedures made good sense. But the current monetary limitof the Small Claims Court is $25,000. Along with British Columbia,Alberta and the Yukon, we now have the highest monetary limit ofany Small Claims Court in North America, but our court’s rules andprocedures – what few there are – are still bicycle-sized.This is a problem. For example, in Kemp v. Prescesky, [2006] N.S.J. No.174; 2006 NSSC 122 (S.C.), the defendants had just two weeks afterservice of the claim to learn the Court’s procedures, file their defence andprepare their case for trial. Justice Warner concluded that justice thisspeedy is “fundamentally unfair” in part because the $25,000 monetarylimit now exceeds the average gross annual income in Nova Scotia. Abasic tenet of natural justice is that the more there is at stake, the greaterthe level of procedural safeguards required to ensure fairness.I am not advocating that we impose the Civil Procedure Rules on(a) The proceedings must be recorded. We record proceedingsover a $25 parking ticket but not a $25,000 negligence claim.Adjudicators regularly hear matters that take the equivalent oftwo or three days of trial time. Justice should not depend on thecomprehensiveness of the adjudicator’s notes.(b) The rules should provide for mandatory pre-trial disclosureof documents, exhibits, and the anticipated evidence ofwitnesses, well in advance of the hearing. Contact informationfor all witnesses should be exchanged. If expert evidence is to becalled (a common occurrence), an expert’s report should be filedalong with a summary of the expert’s qualifications. This is theonly way to eliminate trial by ambush.(c) The rules should provide a way to set aside a judgmentgranted in the defendant’s absence on the same basis as adefault judgment obtained in the Supreme Court. Justice32 The Society Record

Warner pointed out in Kemp v. Prescesky, [2006] N.S.J. No. 174;2006 NSSC 122 (S.C.) that the current Act gives an adjudicatorno power to set aside a judgment obtained after a hearing inthe defendant’s absence where no defence was filed – even if thedefendant’s failure to appear was due to error or inadvertence.Similar sorts of procedures are seen in the other Canadian jurisdictionswith $25,000 limits. The bottom line: in monetary terms, our SmallClaims Court has graduated from ten-speed to motorcycle. It’s timethe Court’s procedures followed suit.A :monetary jurisdiction of the Court are adjudicatedThe purpose of the Small Claims Court is to providea forum “wherein claims up to but not exceeding theinformally and inexpensively but in accordance withestablished principles of law and natural justice.” The purpose andintent of the Act would be undermined, if not defeated, by proceduralroadblocks. The principle of natural justice can safely be relied uponto ensure a fair hearing, no matter what the stakes. In my view, theinformality of the Court, enhanced by the overriding principles ofnatural justice, provide a forum with the flexibility to respond to theneeds of the litigants and to the situation at hand, neither of which isdefined exclusively by the amount of money involved.Some would argue that the application of the principles of law andnatural justice cloak the Small Claims adjudicators with the abilityto order pre-hearing disclosure. I believe that in a court governed byprinciples of natural justice, the adjudicator is in a position to do whatneeds to be done to ensure procedural fairness. What needs to bedone will be case specific and may include things such as pre-hearingdisclosure. In 2003, Justice Scanlan stated that there is “no requirementfor a claimant or defendant to make all relevant documents available tothe opposing party prior to trial. If this is done, in part or in full, it is ona purely voluntary basis.” (MacEwan v. Henderson 2003 NSSC 120.)I do not believe that Justice Scanlan’s accurate observation precludesan adjudicator from ordering disclosure, as it had not been orderedby the adjudicator in the caseupon which Justice Scanlanwas commenting. Further, thecomment was made prior toMary Jane McGintyMcGinty McCleavethe increase in the Court’s monetary jurisdiction. As Justice Warnerpointed out in Kemp v. Prescesky 2006 CarswellNS 175 , “...therequirements for natural justice in the Small Claims Court system haveincreased with the increase in the monetary jurisdiction of the Court.”The informality of the Court is of great value and it should onlybe compromised when the circumstances warrant more formalprocedures. A blanket compromise of the Court’s informality isbound to inhibit accessibility and increase expense. I doubt there isa seasoned litigator who has not experienced the frustration of theopposition’s abuse of procedural “safeguards” to prolong and increasethe expense of the litigation. It would be a great loss to the system ifthis were possible in Small Claims Court.The Court of Appeal gave some valuable guidance last month inAttorney General of Nova Scotia v. Stewart Bishop 2006 NSCA 114.The Nova Scotia Utility and Review Board ordered discovery of theAttorney General’s expert in an expropriation case. The AttorneyGeneral appealed the decision of the Board, stating that the Boardhad no authority to order discoveries. The Court of Appeal held firstlythat discoveries are procedural in nature rather than substantive and,January 2007 33

MassageTherapyRoma McInnisBSc. Kin., RN, RMT7037 Mumford Road, Halifax, NSPH (902) 453-1525 | FAX (902) 453-1571located within PERFORMANCE PHYSIOTHERAPYsecondly, that pursuant to its regulations, the Board was authorized tomake rules governing “practice and procedure”. The Court of Appealheld that the regulations authorized the Board to regulate its practiceand procedure and “on a case specific basis, to direct that an expertwitness be discovered.” (paragraph 23) (emphasis added)I am not aware of any authority that would suggest that principlesof natural justice would not be sufficient to enable the SmallClaims Court to order pre-hearing disclosure in the appropriatecircumstances. However, if such an authority were identified orestablished hereafter, it should be addressed with an amendment tothe Small Claims Court Regulations, not to establish hard and fastpre-hearing procedures, but to specifically give the court jurisdictionto regulate its own procedure as it sees fit. There is now compellingauthority that such a regulation could be relied upon to support theCourt’s use of an appropriate procedure on a case specific basis. Thiswould maintain the informality of the Court, where appropriate, andenable the Court to order disclosure, where necessary.The effective application of such a fluid system is an art which canonly be applied by dedicated adjudicators who can devote a greatdeal of time and energy to the important task with which they arecharged.Just like youTranscontinental plays an activerole in the communities in whichit operates. The concept of socialresponsibility is solidly rooted inour corporate culture, and it has aspecific focus on the crucial areasof law, health, education, cultureand community development.At Transcontinental, respect isa core value that defines all ourrelationships.Proud printers of“The Society Record” and “The Law News”.For complete printing solutions in Atlantic Canada please contactKellie or Jenny at 1 866 857-7468 or on atlantic.sales@transcontinental.caPrinting • Direct Marketing • Publishing • Distribution • Web solutions34 The Society Record

In Defence ofSmall ClaimsCourtOn April 1, 2006 the financial limit for the Small ClaimsCourt increased from $15,000 to $25,000. The increasebrought concerns that the new limits would enable “deeppocketed” corporations and their lawyers to oppress “the little guy”,who could not afford legal representation. 1 Coupled with theseconcerns is a tendency on the part of members of the Bar as well asthe Supreme Court to want to impose more formal procedures onthe Small Claims Court, perhaps on the reasoning that a financiallimit that approaches the industrial average wage requires adoption ofmore formal procedures. 2 Finally, there have been suggestions that theLegislature ought to fund the recording of hearings so that judges onappeal could evaluate the fairness of what took place at a hearing.I suggest here that these concerns are misplaced. Increases in thefinancial jurisdiction of the Small Claims Court, in fact, help rightthe balance between “deep pocketed” corporations and “the littleguy”. Attempts to introduce more procedure would only decreaseaccess to justice (both substantive and procedural). And finally,money spent on recording hearings would be better spent on otherchanges to the Small Claims Court that would better improve thepublic’s access to justice.What characterizes the procedure and practice of dispute resolutionin the Small Claims Court? There is a brief description of theclaim, and then the Court assigns a date for the hearing at the timethe claim is issued – a date that is usually only a few months (atmost) away. There is no pre-hearing disclosure or discovery. Thereare no default judgments. The rules of evidence at the hearing arerelaxed. 3 There are no formal rules of procedure, other than theoverarching requirement that claims “are adjudicated informally andinexpensively but in accordance with established principles of lawand natural justice.” 4 And finally, there are no party and party costs.This system – which resembles that of labour arbitrations – providesbetter accessto justice forthe poor, theworking class,W. Augustus (Gus) Richardson, Q.C.AD+REM Alternative Dispute Resolution Services Inc.and indeed for larger segments of the middle class than the complexformality of the Supreme Court. Why? Because it dispenses withmuch that is unnecessary, employs a “procedure” that minimizesthe cost of legal representation (if it is chosen), encourages its mostproductive use (when it is employed), and finally, levels the playingfield between represented and unrepresented parties in court.One of the most obvious differences between the Small ClaimsCourt and the Supreme Court is the former’s lack of disclosureand discovery. The criticism that is sometimes leveled against sucha system is that it constitutes “trial by ambush”. This analogy ismisleading.In a true ambush one side is taken totally by surprise by the other.In the scenario beloved by “B” movie directors, soldiers marchingthrough a narrow defile are suddenly fired upon by attackers whoseexistence is revealed only with the first bullet. The presence of theattackers (and the fact that a battle is about to occur) comes as acomplete surprise to the hapless victims.Such a scenario hardly characterizes what happens when a disputeends up in the Small Claims Court. Most lay litigants know whatthe other side will say and produce by way of documentation. Theyhave been living the “case” (and fighting with the other side aboutit) as active participants, and have been phoning and meeting andwriting letters and emails back and forth to each other for weeks ifnot months before they decided to sue. The documents they arrivein court with are the documents they have been exchanging fromthe start. They may be outraged at what the other side says, but theyare not surprised.January 2007 35

In short, pleadings, disclosure, and discovery are not necessary toenable adequate preparation for a hearing. Doing away with themenables the parties to have their hearing more quickly. It also meansthat the cost of legal representation, if it is chosen, is substantiallyless than would otherwise be the case. If delay and the expense oflegal representation are barriers to justice, then the Small ClaimsCourt’s approach clearly lowers both for the lay public.The way in which default proceedings are handled is anotherexample of how the Small Claims Court protects “the poor”against “the rich.” Default judgments in the Supreme Court aregranted without any review of the claim to determine whether ithas any merit. The process assumes that failure to appear or to filea defence represents an admission of liability. The assumption maybe appropriate in theory, but in practice it fails to acknowledge thatsome defendants fail to defend because they lack the knowledge toknow they have a defence, or the financial resources to mount one.This is not the approach in the Small Claims Court. There is no“default” judgment. Adjudicators must be satisfied that a claim hasmerit before granting judgment, even if the defendant fails to file adefence, or to appear for the hearing. 5 The system thereby providessome procedural protection to those too poor or too ignorant toadvance a meritorious defence – a protection that is not available inthe Supreme Court.Then there is the issue of party and party costs. Imagine a laylitigant in the Small Claims Court confronting a large corporationand its legal team, either as a claimant or as a defendant. They feelthey have a good claim or defence. They cannot afford a lawyer, butbelieve that if they are heard by a neutral decision maker they willwin. The only downside associated with loss in the Small ClaimsCourt is either the filing fee (if they are a claimant), or having to paya claim that in many cases they had at one point budgeted to pay. 6In such a case the litigant presses forward to have his or her day incourt.The risks are different (and far more oppressive) in the SupremeCourt. There the same lay litigant in the same case is told that heor she may have to pay a portion of the corporation’s legal costs ifthey lose. Now the corporation’s ability to pit a lawyer against anunrepresented litigant truly becomes oppressive. Now the fear ofhaving to pay party and party costs can cow a litigant into giving upa meritorious claim or defence.Finally, there is the fact that the Small Claims Court is the onlyforum that lay litigants have to enforce their rights under suchpieces of consumer protection legislation as the Consumer ProtectionAct and the Residential Tenancies Act. Such legislation is rarely, ifever, considered in the Supreme Court. But the rights designed tobe protected by them remain valueless if they cannot be enforcedbecause enforcement would cost too much and take too long.To conclude, extending the financial jurisdiction of the SmallClaims Court in fact increases the lay public’s access to justice. Itmakes it possible for ordinary people to get to court to enforce orprotect their rights. It also enables them to “do it themselves”, or toemploy lawyers without bankrupting themselves in the process.The suggestion that hearings ought to be transcribed is misguided.First, appeals from decisions in the Small Claims Court are basedon questions of law or denials of natural justice, not on fact. Havingtranscripts would add nothing to the appeal. Second, there is thequestion of the cost of obtaining the transcript. For many peoplewho find themselves in the Small Claims Court $500 is “a lot ofmoney”. Expecting them to come up with the cost of a preparingand then copying a transcript would only erect a barrier to theappeal process. A far better use of Legislative time and money wouldbe to improve the enforcement mechanisms of the Small ClaimsCourt or make legal advice available to lay litigants.Regarding the first point, lay litigants often experience difficultyenforcing their judgments. There is confusion and uncertainty overthe extent of the Small Claims Court’s ability to enforce its orders(for example, through a judgment debtor examination). To givelay people the right to sue in court but then deny them the abilityto enforce their judgments is to deny them access to justice. Suchconfusion and uncertainty ought to be rectified.Regarding the second point, for all the laudable informality of theSmall Claims Court process, adjudicators are still required to makedecisions based on “established principles of law”. Those principlesare not always understood by lay litigants. Providing a way to obtainlegal advice on those principles, and the evidence necessary to satisfythem, would be a far more useful expenditure of public funds thanthe recording of proceedings. It would also reduce the barriersotherwise created by the lay public’s ignorance of those “establishedprinciples”. (I am not suggesting here that the public purse be usedto fund legal representation; only that it fund the provision, say, ofan hour’s “free” advice.)Footnotes:1 See for example the comments in the Legislature ofKevin Deveaux and Graham Steele: Hansard, 20 Oct2005; and of Michel Samson: Hansard, 31 Oct 2005.2 My discussions with members of the bar; and seeKemp v. Presceskey 2006 NSSC 122; Surrette Battery Co.Ltd. v. McNutt 2003 NSSC 6.3 Section 28(1) of the Small Claims Court Act (the “Act”).4 Section 2 of the Act.5 See sections 23(1)(b) and 23(3) of the Act.6 I am thinking here of contract disputes, where thedefendant had initially agreed to pay a contract price(and so had notionally budgeted for that expense)but only later disputed liability to pay because of aperceived breach of contract.36 The Society Record

Trust inJusticeJanuary 11, 2007, at 7:30 pmGuest speaker: Madam Justice Rosalie AbellaMcNally Theatre Auditorium, Saint Mary’s UniversityFebruary 8, 2007, 7:30 – 9:00 pmPanel presentation: Trust in Criminal JusticeRoom 105, Dalhousie Law SchoolMarch 8, 2007, 7:30 – 9:00 pmPanel presentation: Trust in Family LawRoom 105, Dalhousie Law SchoolApril 19, 2007, 7:30 – 9:00 pmPanel presentation: Trust in Civil JusticeRoom 105, Dalhousie Law SchoolPresented by:CCEPA is a joint initiative of:January 2007 37

SummationSmall ClamsNo MoreIvividly remember arrivingat Stewart MacKeen& Covert for my firstday of articles in June 1987.The first thing I rememberfrom that day, was that a filethat had been assigned to meby senior partner David R.Chipman, Q.C. (as JusticeChipman was then known).You can imagine mytrepidation as I reviewed thematter for approximately anhour before concluding thatit was really a ResidentialTenancy claim. With kneesknocking and mouth dry, I went to speak to Mr. Chipman.Kevin A. MacDonaldCrowe Dillon RobinsonHow to diplomatically raise theissue with him? My concernwas unfounded as he was mostgracious in quickly agreeingwith me. I will never forget the discussion that ensued. Among otherthings, I asked how I should refer to the adjudicator. He wisely observedthat “a court, is a court, is a court” and therefore it would be appropriatefor me to refer to the presiding adjudicator as “Your Honour”.A simple observation, but it helped me considerably; not onlyduring my appearances in Small Claims Court (SCC), but also byunderscoring that the goal of advocacy is to persuade. Knowing yourjudge (or audience) is a universal truth not just confined to the “big”case, or, for that matter, court work.It used to be that a typical night in Small Claims Court would start at7 pm and often not finish until 12:00 am. The claims were many andvaried, but in those days, most were brought forward by individualsfor things as simple as dry cleaning complaints, damage to goods,return of engagement rings, and the like. The filing was $10, and assuch, not a barrier. Claims in the range of $100 were common, andthe use of lawyers was the exception, not the norm.A recent discussion with trusted veteran Halifax SCC Clerk, TanyaPellow, confirmed my suspicion that the sharp decrease in personal andtruly “small” claims corresponded with the increase in the filing fees.A testament to the fact that a lawyer was not necessary in SCC wasbrought home to me in the early 1990s. It wasn’t funny at the timebut is now. I had a defence I was handling for an insurer, and throughan error on my part, missed the hearing.I was extremely surprised but pleased to receive a decision noting wehad won. I suspected the fact that our insured was a nun probablyhelped. You can imagine my embarrassment when I called the insurer(an insurance company) to “fess up”. They were most gracious andrather than damaging our relationship, my confession (consideringtheir comment that they wouldn’t have known any different had Iremained silent) actually strengthened it.When I contacted my insured (the nun) to pass along my apologies,the plot thickened. She told me that she had explained to theadjudicator that I was not present, but was reassured when he said “Iknow Mr. MacDonald and I don’t think his not being here will makeany difference.” (meaning of course, that a lawyer being present wasnot really necessary)This is not the only humorous mistake I’ve made. I recall sending aletter to a client in which I failed to note that the “re” line read Small“Clams” Court. My client and I had a great chuckle over this, as itseemed to work on so many levels. Of course, this mis-descriptionwas more apt when the jurisdiction was $3,000. At $25,000 one ishard pressed to say that is “small clams” anymore. $25,000 is a lot ofclams by anyone’s measure.You see some very interesting claims in SCC that would take days ifheard in Supreme Court, and yet are compressed into a night. Alongwith a raft of dog cases I have run into, there are many other bizarrestories from SCC.I once had to sue a horse in SCC (well, really the owner, but it makesa better “war story” this way). Thanks to having accidentally stumbledacross the “Fences and Impounding of Animals Act” while researchingthe issue, I was able to establish that the fence in question did notmeet the required standard and therefore the loss caused to my clientby the errant Nelly was compensable.This April’s increase to $25,000 has triggered judicial comment andhas been the matter of considerable discussion among practisinglawyers; neither has it gone unnoticed by the public. The Provincehas struck a Committee (Small Claims Court Option DevelopmentCommittee) to wrestle with the balancing act between the monetaryjurisdiction and the procedure that is available.It is difficult to know where SCC will end up. It is obviously a courtthat, since 1981, has greatly served Nova Scotians. Some would saythat the SCC has come of age and perhaps others would say it’s gottentoo big for its britches. Time will tell what comes of our “little, bigcourt”. In the meantime, more clams anyone?38 The Society Record

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Financial Strength Ratings: Demotech, Inc. A” | Fitch Ratings A+ | LACE Financial A | Moody’s A2Over the past 100 years, Stewart Title has become one of the largest, most reliable title insurancecompanies in the world. However, global presence and financial strength tell only half the story. It’s howwe work with legal professionals that sets us apart. A solid history of initiatives to support the legalcommunity is a hallmark of our company.We are continually investing in both technology and people to streamline the real estate process, andgive you the resources you need to handle transactions faster and more efficiently. Unparalleledinformation technologies and the Examining Counsel Program are only two of the ways we make iteasier for legal professionals. Experienced underwriters and claims counsel who are there when youneed them is another.At Stewart Title, we know it’s our relationship with our clients that determines our success. That’s whyservice is the foundation of our business and integrity, the keystone in all our dealings.Call us today or visit www.stewart.ca.Canadian Head Office (Toronto): (888) 667-5151 Atlantic Canada: (888) 757-0078Western Canada: (866) 515-8401 Québec: (866) 235-9152