A NEW CHAPTER

MAY/J UNE 2011 V OLUME XV, ISSUE 3 

STARTING 

A NEW CHAPTER 

Justice J. Vertes moves to 

the classroom after over 20 

years on the Bench

2 | ARCTIC OBITER 

4th Floor, 

Diamond Plaza 

5204 – 50 th Avenue 

P.O. Box 1298 

Yellowknife, NT 

X1A 1E2 

TEL: (867) 873-3828 

FAX: (867) 873-6344 

info@lawsociety.nt.ca 

www.lawsociety.nt.ca 

PRESIDENT 

Sheila MacPherson 

VICE-PRESIDENT 

Erin Delaney 

SECRETARY 

Cayley Thomas 

TREASURER 

Janice Walsh 

LAYPERSON 

Maureen Crotty Williams 

INSIDE 

8 

11 

14 

A Judge’s Judge 

by Ben Russo 

Developing a Financial Plan 

for Your Office 

by Deborah E. Gillis, QC 

Balance at Any Age 

by John Starzynski 

P.O. Box 1985 

Yellowknife, NT 

X1A 2P5 

TEL: (867) 669-7739 

FAX: (867) 873-6344 

info@cba-nt.org 

www.cba.org/NorthWest 

PRESIDENT 

Elaine Keenan Bengts 

VICE PRESIDENT 

Malinda Kellett 

SECRETARY / TREASURER 

Jeannette Savoie 

PAST PRESIDENT 

Janice K. Walsh 

MEMBERS OF COUNCIL 

Betty Lou McIlmoyle 

Glen Rutland 

3 President’s Message 

4 CBA Bar Notes 

(from the President) 

5 Executive Director’s Message 

7 Membership News 

26 NWT Legislative News 

27 Supreme Court of Canada 

Update 

30 Notices 

31 Resources 

Sheldon Toner 

Caroline Wawzonek 

16 NWT Decision Digest 

EXECUTIVE DIRECTOR 

Linda Whitford 

linda.whitford@lawsociety.nt.ca 

DIRECTOR OF COMMUNICATIONS 

LEGAL EDUCATION COORDINATOR 

Ben Russo 

ben.russo@lawsociety.nt.ca 

ADMINISTRATIVE ASSISTANT 

Shannon Hogan 

shannon.hogan@lawsociety.nt.ca 

Arctic Obiter is a joint publication of the Law Society of 

the Northwest Territories and the Northwest Territories 

Branch of the Canadian Bar Association. It is published 

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

NWT informed of news, announcements, programs and 

activities. Comments, articles and photos for 

consideration can be submitted to Ben Russo. Past and 

current issues are available on the Law Society website. 

FROM THE EDITOR 

When I first started at the Law Society, the big news in the office 

was that Chief Judge Brian Bruser was retiring from the Territorial 

Court. Since then, we’ve witnessed the appointment of Judge 

Robert Gorin as the new Chief Judge, as well as the appointment 

of Judge Christine Gagnon and Judge Garth Malakoe to the 

Territorial Bench. The Supreme Court, now, has been taking its 

turn in changing the Territories’ legal landscape. 

With the unfortunate departure of Justice Donald Cooper, and a promising career 

change for Justice John Vertes, the Court now holds two vacancies for the Bar to 

consider. Of course, the more immediate change is Justice Virginia Schuler’s new 

position as Senior Judge of the Supreme Court. We all congratulate her in this 

assumption, and look forward to watching the Supreme Court grow further under her 

guidance. 

The changes to our Bench & Bar are always remarkable, but it proves to be a true sign 

of the profession’s perseverance when we can all adapt to these tides of change. 

- Ben

MAY/JUNE 2011 | 3 

PRESIDENT’S MESSAGE 

Back in the Day... 

As spring turns to summer, and we all enjoy the glorious 

northern sun (if we are so fortunate), it is a good time to 

reflect back on the changes to the legal community and 

celebrations of milestones over the past year. 

The changes evident in the legal community were 

highlighted by the retirement of Senior 

Judge John Z. Vertes on June 30, 2011. The 

Law Society held a function for Justice 

Vertes on June 23, 2011 to honour his many 

contributions to the legal profession and 

the public, both as a lawyer and a judge. 

There were many reflections on the early 

years of the law society, and the 

commitment of John Vertes, and others of 

his ilk, such as Don Cooper and Ted 

Richard, to the development of a 

competent northern-based bar able to serve 

the diverse needs of the public. 

Back then, the “firms” did almost every 

type of law, and many lawyers 

Sheila MacPherson 

individually juggled broadly based practices comprised of 

legal aid criminal and family law, the occasional real estate 

and corporate transaction, and the even more occasional civil 

trial. As young lawyers, we were expected to build our 

practices and our skill sets by getting on the legal aid panel 

and by taking just about any matter that came through the 

door. 

There is no doubt that there are challenges with the general 

law firm model but there is also no doubt that, back in the 

day, there was more public access to justice than there is 

today. The reasons for the changing legal landscape in the 

north are many, including the increasing complexity of the 

practice of law and the national trend towards the large 

business law firm model. People have busy lives and there 

is a real desire for a work-life balance that is not always 

achieved with a general practice. Having said that, as 

distinguished speaker after speaker spoke about the early 

days of the law society, and Justice Vertes’ contribution to so 

much of the spirit of those days, I was left with some 

nostalgia for the days gone by. 

We, as members of our law society, need to 

pick up the reins that Justice Vertes and 

others, like Justice Richard, the late Justice 

Cooper and Katherine Peterson, QC, have 

left to us. It is time for us to think seriously 

about how we each, individually, can 

contribute to the continued development of 

a strong Law Society and strong northernbased 

legal community that truly serves the 

broad needs of the public. The continued 

development of the Law Society’s legal 

education program and committee structure 

is one way that contributes to a dynamic 

bar, as do programs like the Legal Services 

Board poverty law clinic run so ably by 

Jeannette Savoie. 

There must be more ideas out there for programs that the 

Law Society can support with a view to us meeting that 

clarion call to action for which Justice Vertes was so often 

responsible. 

— 

On a completely unrelated note, the organizers of the Trial 

Advocacy Program are delighted with the registration to 

date and I would encourage anyone who is thinking of 

registering for this course to do so as soon as possible. The 

course promises to be full fairly soon and, as past instructors 

and participants will attest, the skill set development on the 

part of all is nothing short of amazing.


BAR NOTES 

“Summertime, and the Livin’ is Easy…” 

...It’s why we continue to live in the North, despite the -40 

degree temperatures during the long, long winters. There 

is absolutely nothing that beats a northern summer. 

So much happens here in the summer; the solstice, Folk on 

the Rocks, and all sorts of sporting and 

outdoor events. And what better way to 

celebrate summer than at a barbeque with 

friends and colleagues? 

It’s time for our annual CBA Family 

Barbeque! We have once again rented the 

cook house at Fred Henne Territorial Park 

on Tuesday, June 28 th starting at 6:00 pm. 

Bring the kids and enjoy a beautiful 

summer evening at the beach. We’ll be 

there rain or shine. And, if the weather 

doesn’t cooperate, we’ll relax inside the 

cook house. I hope to see you all there. 

For those who are not yet CBA members, 

come on out and find out about some of the 

benefits of membership. 

Elaine Keenan Bengts 

Summer also brings our general meeting, also on June 

28th, at noon. The meeting will start at 12:15 pm at the 

Champagne Room. Come and find out what the CBA is 

doing and hear about some of the things that are being 

planned for the next few months. 

This summer also seems to be the year for retirement with 

a number of the senior members of our legal community 

announcing their transition to a more laid back way of 

life. As everyone will know by now, Justice John Vertes 

has taken retirement after 21 years on the bench, and will 

be moving to Calgary to take on some new projects, 

including some teaching at the law school. Justice Vertes 

be returning from time to time as a deputy judge, but he 

will most certainly be missed. We all wish John and his 

wife, Louise, all the very best in 

retirement. We’d also like to take this 

opportunity to congratulate Justice 

Virginia Schuler on becoming the Senior 

Judge of the Supreme Court. 

Three senior lawyers with the 

Department of Justice have also 

announced their retirements this spring - 

Clarence Hudson, Yvonne MacNeill and 

Larry Pontus. We wish each of them a 

happy and fulfilling retirement. I can’t 

help but feel a wee bit jealous. 

Summer also brings the end of my term 

as President of the CBA’s Northwest 

Territories Branch. It has been my honour 

and privilege to be your president this year. It’s been a 

great experience, the highlight undoubtedly being the 

chance to meet and have dinner with the judges of the 

Supreme Court of Canada in Ottawa. To me, membership 

and participation in the CBA has been a way for me to 

meet some of the most inspiring and brilliant legal minds 

in the country and to be able to name many of them 

amongst my friends. As my term winds down, and I pass 

the reins to Malinda Kellett for the next year, I would 

encourage all lawyers to join the CBA and take advantage 

of everything that membership has to offer.

MAY/JUNE 2011 | 5 

THE DIRECTOR’S CHAIR 

Social Media and Unauthorized Practice 

Wikipedia states that the Dog Days (Latin: diēs caniculārēs) 

are “the hottest, most sultry days of summer. In the northern 

hemisphere, they usually fall between early July and early 

September. In the southern hemisphere they are usually 

between January and early March. The actual dates vary 

greatly from region to region, depending on 

latitude and climate. Dog Days can also 

define a time period or event that is very 

hot or stagnant, or marked by dull lack of 

progress. The name comes from the ancient 

belief that Sirius, also called the Dog Star, in 

close proximity to the sun was responsible 

for the hot weather.” (http://en.wikipedia.org/wiki/ 

Dog_Days) 

The Old Farmer's Almanac lists the 

traditional timing of the Dog Days as the 40 

days beginning July 3 and ending August 

11, coinciding with the ancient heliacal (at 

sunrise) rising of the Dog Star, Sirius. These 

are the days of the year when rainfall is at 

its lowest levels. . 

Linda G. Whitford 

July 3 rd is not yet upon us, and we have already experienced 

some of the warmest temperatures in the country, with 

incredibly low precipitation levels. The rain in the last 

couple of days has made somewhat of a difference. The air 

was so fresh and clean this morning, making for a great run. 

The downside: June 21 st has come and gone and the hours of 

daylight we have just become used to will begin to diminish. 

According to my Twitter and Facebook sites, today is Social 

Media Day. A posting on Mashable claims that, “Today we 

acknowledge and celebrate the revolution of media 

becoming social. A day that honors the technological and 

societal advancements that have allowed us to have a 

dialogue, to connect and to engage not only the creators of 

media, but perhaps more importantly, one another.” 

I willingly confess that my day starts with a cup of coffee 

and a quick look at my Twitter and Facebook accounts. 

Social networking sites have provided a quick and easy way 

for me to connect with family and friends on a scale I would 

never have thought possible, and to stay on top of what is 

happening when and where – depending on the sites I 

choose to subscribe to. Further, the internet and the 

connectivity it affords has taken my “Family Tree” research 

efforts and results to an extent I would 

never have believed possible when I began 

my search back in 1977. 

Having said that, there are definitely 

pitfalls, and one needs to be cautious on 

both a personal and professional level on 

what they post and how privacy is 

managed. LawPro’s Avoid a Claim Blog 

and Lifehacker are good places to start for 

information in that regard. 

UNAUTHORIZED PRACTICE 

To practice law in the Northwest Territories 

you must either have been called to the Bar 

in this jurisdiction, maintaining active 

practicing status, or have been granted a 

Restricted Appearance Certificate to deal with a single matter or 

a series of closely related matters over a limited period of 

time. 

There are two forms of unauthorized practice. The first are 

from non-lawyers who endeavour to provide services. Nonlawyers 

engage in unauthorized practice when they perform 

or offer to perform legal services for members of the public 

for a fee. Examples include preparing separation agreements 

or divorce papers, incorporating companies, drafting wills 

and probate documents, or appearing or offering to appear 

as counsel before a court or an administrative tribunal. 

The prevention of unauthorized practice is every lawyer’s 

responsibility as outlined in Chapter XVII of the Code of 

Professional Conduct: “The lawyer should assist in 

preventing the unauthorized practice of law.” 

The first guiding principle outlines the supporting rationale:


“Statutory provisions against the practice of 

law by unauthorized persons are for the 

protection of the public. Unauthorized persons 

may have technical or personal ability, but they 

are immune from control, regulation and, in 

the case of misconduct, from discipline by any 

governing body. Their competence and 

integrity have not been vouched for by an 

independent body representative of the legal 

profession. Moreover, the client of a lawyer 

who is authorized to practice has the protection 

and benefit of the solicitor-client privilege, the 

lawyer’s duty of secrecy, the professional 

standards of care that the law requires of 

lawyers, as well as the authority that the courts 

exercise over them. Other safeguards include 

group professional liability insurance, rights 

with respect to the taxation of bills, rules 

respecting trust monies, and requirements for 

the maintenance of compensation funds” 

The second form is from lawyers called in other jurisdictions 

who neglect, for one reason or another, to obtain 

authorization before acting on behalf of an NWT client on an 

NWT matter. 

When the Law Society receives a complaint of unauthorized 

practice, or discovers an unauthorized lawyer practicing 

within the Northwest Territories, it will review the 

information and investigate. If the facts show there is 

unauthorized practice, the Society will explain the 

restrictions that apply to the practice of law and will ask the 

non-lawyer to refrain from any activity that is unauthorized 

practice. Usually this step is sufficient. When it is not, the 

Society has statutory authority to seek a legal solution. 

I want to close by wishing a personal fond farewell to several 

people. The first is Justice John Vertes and his wife Louise. 

We will miss you on many levels, but look forward to 

frequent return visits. The second is Janice Walsh, a current 

member of the Law Society Executive, a Past-President of the 

Northwest Territories Branch of the CBA, and a friend. 

Last, but not least, the Administrative Assistant for the last 

year and someone who fast became a good friend, Arlene 

Baker. Our loss, in all three instances, is Calgary’s gain. 

Be safe, be well, be happy and enjoy your summer. 

Changing of the Guard 

The Law Society salutes the hard 

work and dedication of its nowformer 

Administrative Assistant, 

Arlene Baker, as she returns home to 

Calgary. It has been a spectacular 

year with her at the helm, and she will 

be greatly missed. 

The feeling seems mutual, as she 

wrote in her farewell address to the 

profession: 

“It has been both a privilege 

and pleasure to have had the 

opportunity to serve you on 

behalf of the Law Society. Your 

commitment to your profession, 

the public, and your Society is 

admirable. You have an amazing 

team - directed by Linda, 

communicated by Ben and 

administered through Shannon - 

who are dedicated to making your 

Society operate efficiently and 

effectively. You have been the 

highlight of my Northern 

experience! Wishing you all the 

b e s t p r o f e s s i o n a l l y a n d 

personally.” 

Arlene’s final task was to teach 

incoming Assistant Shannon Hogan 

the many ropes of running a Law 

Society (and local CBA Branch). 

Shannon has already proven to be a 

welcome addition to the family, and 

we look forward to having her onboard 

for years to come. 

JE VOUS PRÉSENTE: 

Shannon Hogan, 

Administrative 

Assistant

MAY/JUNE 2011 | 7 

MEMBERSHIP 

NEW MEMBERS 

LEE RUSINKO 

J.H. BROWN & ASSOCIATES - EDMONTON, AB 

Before his current practice at a 

personal injury litigation firm, Lee’s 

role was defence counsel for insurance 

companies. He has experience in all 

levels of court in Alberta and has 

successfully concluded claims in the 

Federal Court of Canada. In addition, 

he has been involved in cases in 

British Columbia, the Northwest 

Territories and Nunavut, and is an 

active member of the Alberta Civil 

Trial Lawyers Association. 

MATHEW JOHNSON 

PPSC - YELLOWKNIFE, NT 

JESSICA PATTERSON 

PPSC - YELLOWKNIFE, NT 

CATHERINE MCKENDRY 

DAVIS LLP - YELLOWKNIFE, NT 

Catherine was first called in 

1992 in Ontario. She practised for 14 

years in the business groups of 

national Bay Street firms before 

relocating to the Calgary office of a 

large national firm in 2006. 

C. McKendry 

She 

moved to Davis in August 2010 to 

work with its business specialists to 

deliver specialized transaction 

services to clients. 

Catherine has experience in corporate/ 

commercial transactions including 

private M&A, dispositions, joint 

ventures, strategic alliances and 

corporate reorganizations, both 

domestically and internationally. She 

has worked with clients in many 

industrial sectors and has broad 

experience working with mining 

clients specifically. 

She has also 

practised extensively as a financial 

services transactions specialist, 

working with both syndicate lenders 

and borrower groups in major 

domestic and cross-border financings. 

Her work has involved the full 

range of domestic and crossborder 

financial services, 

including asset-backed lending, 

general secured and unsecured 

transactions, bond transactions 

and project finance. 

NOTICES 

SUSPENSION 

On March 22, 2011, a Hearing 

Committee of the Law Society of 

Alberta ordered E. Nikolaus 

Homberg, a bi-jurisdictional member 

of the Law Society of the Northwest 

MEMBERSHIP STATS 

Active Residents: 130 

Active Non-Residents: 251 

Inactive Members: 87 

Total Membership: 468 

(Restricted Members: 69) 

Territories, be suspended for a period 

of nine months, effective immediately. 

On May 20, 2011, following 

proceedings under s. 32.3 of the Legal 

Profession Act R.S.N.W.T., 1988, C. L-2, 

Glenn D. Tait, Chair of the Discipline 

Committee, issued a Decision 

ordering that the member, E. 

Nikolaus Homberg, be suspended for 

a period up to and including 

December 22, 2011. 

REINSTATEMENT 

Take notice that Christopher Reid, 

Barrister & Solicitor, previously 

suspended pursuant to Section 48.1(1) 

of the Legal Profession Act, has been 

reinstated as an active member of the 

Law Society of the Northwest 

Territories effective June 3rd, 2011 and 

is entitled to practice law in the 

Northwest Territories. 

News 

Events 

Publications 

Forms 

www.lawsociety.nt.ca 

It’s all online.


BENCH & BAR 

[LEFT] Justice Vertes accepts a small gift and a charitable donation in his name. [RIGHT] Elaine Keenan Bengts spills some secrets about Vertes, as wife Louise Vertes and others look on. 

A Judge’s Judge 

by Ben Russo 

BACKGROUND 

John Vertes was already a few years deep in snow and cases 

before his adventures in governance and, ultimately, his seat on 

the Bench. He arrived from Ontario in 1977 to join Searle, Sigler 

& Richard, a booming firm at the heart of a capital city in its 

infancy. From there, it took only three years to establish himself 

as a partner. 

It was 1982 when Vertes became President the Law Society of the 

Northwest Territories. His experience with the Society had 

started almost immediately on his arrival, and continued 

throughout his career as a lawyer. He showed a keen interest 

and commitment with many committees, such as the Education 

and Legal Ethics & Practice committees, and Law Society issues, 

such as the establishment and security of a fair Legal Services 

Board. 

His first office as president, however, was with the Canadian Bar 

Association in 1978. It was a first for the CBA as well, since the 

Association had never had an executive from the North. Vertes, 

with fellow conspirers Ted Richard (now Mr. Justice Richard of 

the Supreme Court of the NWT) and Ron Veale (now Mr. Justice 

Veale of the Yukon Supreme Court), set out to create an active 

CBA branch in the NWT. After a spur-of-the-moment lobbying 

mission at the CBA’s Annual Conference, the three watched as a 

vote was taken to create a seat on the Executive for the NWT and 

Yukon to share. 

In the fall of 1991, the Honourable Justice John Z. Vertes was 

appointed the bench of the Supreme Court of the Northwest 

Territories. 

In early 2011, Justice Vertes made clear his intentions of retiring, 

indicating July 1 as his and his wife’s last day in the Territories. 

After over 20 years of service, the Hon. Justice was beginning a 

new chapter at the University of Calgary, Faculty of Law. 

A FULL HOUSE 

The Law Society was honoured and pleased to host a small 

farewell celebration for Justice Vertes, who has dedicated 34 

years to the profession. All Law Society members, as well as 

some special guests, were invited to attend the Tuesday evening 

reception. Most residents and some non-residents attended the 

standing-room-only event, which offered a very casual setting 

for shaking hands with the guest of honour.

MAY/JUNE 2011 | 9 

Ed Gullberg, long-time friend of Justice Vertes, took the role of 

master of ceremonies and promptly set the stage for laughs at 

the expense of the learned Justice. 

But it was the open letter from Chief Justice Catherine Fraser of 

the Court of Appeal (Alberta, Nunavut and the NWT), read by 

Justice Schuler, that stole the spotlight. In preparing her speech, 

it was apparent that the Hon. Justice had had a lengthy 

discussion with Justice Vertes’ mother, much to the amusement 

of all those present. 

Sheila MacPherson followed with her own recollections of times 

past, and finished with expressing the Law Society’s sincere 

appreciation for Justice Vertes’ service and dedication to the 

profession and to the public. Vertes was then presented with a 

token gift and a donation to the Yellowknife Community Fund 

made in his name. 

Elaine Keenan Bengts spoke on behalf of the CBA branch Vertes 

worked so hard in establishing. She, too, disclosed some 

valuable information on Justice Vertes’ past life, much to his 

further embarrassment. But the message was clear: his 

continued contributions to the CBA throughout his career will be 

missed. 

It was Justice David Gates, of the Court of Queen’s Bench of 

Alberta, who labeled Justice Vertes as a Judge’s Judge, and as a 

Lawyer’s Lawyer. In his stories, he admitted that he did not 

truly comprehend the meaning of those titles until his flight to 

Yellowknife, spending most of that trip planning his speech for 

Justice Vertes. It was then that he realized, in Vertes, what a 

Judge’s Judge actually was. 

Justice Virginia Schuler found herself a tough act to follow, after 

reading for Justice Fraser, but prevailed with warm wishes from 

the Supreme Court, knowing that Justice Vertes would not be 

that far out of reach. 

Justice Vertes kept his response short, insisting that it was not 

goodbye. His new position as a professor at the University of 

Calgary will not be enough to completely remove him from his 

judicial calling, and members can expect to see him sitting on 

occasion, as the Supreme Court requests it. His brief talk, 

however, focused on his wife, Louise Vertes. Without her, his 

high school sweetheart, and his family, he would not have been 

where he was today. As well, he questioned how he was ever 

able to start out as a immigrant, refugee child and end up as a 

Supreme Court judge. In his answer to himself, he thanked 

Canada and all those around him for all the support. 

Justice Susan Cooper and the Nunavut Court of Justice then 

shared in wishing their close colleague well on his new travels. 

EVERYBODY HAS A STORY [FROM LEFT]: Edward Gullberg introduces Law Society President Sheila MacPherson, Justice Susan Cooper of the Nunavut Court of Justice and Justice David Gates of the 

Court of Queen’s Bench (Alberta).


COURT OF APPEAL BBQ 

Appealing to Taste 

All puns aside, the Annual Court of Appeal Barbeque was a treat 

for all those who were able to attend. 

The Barbeque, scheduled during the summer sitting of the Court 

of Appeal, brings the Bench and Bar together in an informal setting. 

Although regrets were sent from the Court of Appeal judges, both 

of whom had pressing schedules back home, this was certainly no 

deterrent for the Court and Law Society members to continue with 

this Northern tradition. 

The Department of National Defence (JTFN) was very 

accommodating, as usual, allowing us exclusive access to their 

famed Bear’s Den and patio. Chef Pierre kept the grill alive with 

steaks, arctic char and portabella mushrooms. All were happy with 

the luxurious variety of items. 

Finally, a big thank-you to the Social Committee and volunteers for 

ensuring this event went smoothly and wonderfully.

MAY/JUNE 2011 | 11 

PRACTICE MANAGEMENT 

Developing a Financial Plan for Your Office 

by Deborah E. Gillis, QC 

Regardless of your firm’s size or location, it is critical to your 

ongoing viability that you understand and pay attention to 

the business side of the practice of law. 

To ensure the ongoing success and viability of your practice, 

you must take a hands-on role in ensuring that your firm’s 

finances are in order. With healthy finances and a consistent 

cash flow, you should be in a position to hire, train and 

retain competent staff, adequately equip your office, and 

provide excellent client service. 

Generally, clients who receive excellent service pay their 

bills on time and refer like-minded clients to you, resulting 

in a profitable and satisfying practice. 

WHAT YOU SHOULD CONSIDER 

In developing and implementing a financial plan you should 

understand very basic accounting and business concepts 

such as business plans, income and expenses, operating 

budgets, profitability, cash flow, time and billing, 

disbursement recapture, accounts receivable, and client and 

matter selection. 

Retain a professional accountant to give you expert tax 

advice on how you should structure your practice and 

whether or not you should consider incorporating it. Hire a 

competent bookkeeper to take care of the day-to-day aspects 

of accounts. Adequately supervise and monitor his or her 

work. Do not abdicate this responsibility. 

HOW TECHNOLOGY CAN HELP 

Investment in technology is critical in your firm 

management and in your service delivery. It is fundamental 

to the success of your practice. 

There are numerous trust accounting, time and billing, 

general ledger, and case management software options in 

the market place. Document management systems allow for 

fast and easy access to your paper and electronic data. 

Document assembly software will automate the creation of 

documents that you use repeatedly. The use of scanners in 

your practice can reduce the amount of paper you use and 

ultimately lead to reduced storage costs. 

Voice recognition software such as Dragon 

NaturallySpeaking is used by many solo and small-firm 

lawyers who prefer talking to doing their own typing. The 

time it takes to train Dragon to respond to your voice has 

shortened considerably in the past few years. 

This is but a small sampling of the technology you can use to 

improve the efficiency and profitability of your firm. For 

more detail on the various products available, I recommend 

The 2011 Solo and Small Firm Legal Technology Guide by 

Sharon Nelson, John Simek and Michael Maschke, published 

by the American Bar Association. This is an excellent and 

reasonably priced resource for anyone looking to invest in 

legal technology. 

Just purchasing a particular product, however, will not 

ensure financial success. Everyone in the firm (including 

you) must use it, and you must allocate adequate time and 

money for training on the features of each product. Before 

rushing out to buy the latest technology, do an inventory of 

what you already have and determine whether or not you 

are using it to its full capacity. 

Ask respected peers about their experience with particular 

products. Check to see which products can and should be 

updated. Budget for the regular replacement and upgrade of 

your technology, as there will come a time when it will 

become obsolete. 

BILLING AND COLLECTION TIPS 

As our economy tightens, the always important aspects of 

client and matter screening and comprehensive retainer 

agreements become even more critical to your practice


success. You should not panic and accept every inquiry for 

representation that you receive. For your practice to be 

viable you need to take steps to ensure that you get paid for 

the services you provide, unless you make a conscious 

choice to work pro bono. 

Think carefully before acting for anyone who won’t sign a 

retainer agreement or pay the requested retainer. If they 

can’t or won’t pay a retainer at the outset, what confidence 

can you have that they will pay for your services as your 

bills are rendered? 

If you agree to represent a client, put that agreement in 

writing at the outset. This is often referred to as a retainer 

agreement or engagement letter, and it is a valuable risk 

management, financial management and communication 

tool. An agreement that is clear on the services to be 

provided and your policies and procedures for 

communication and billing helps reduce 

misunderstandings about your role and your client’s 

responsibilities in the 

matter. 

Sign a new retainer agreement for each new matter you 

accept, even with the same clients. Clearly spell out in each 

agreement what you have been retained to do and what you 

have not been retained to do. 

Discuss fees during your initial interview. Your retainer 

agreement should clearly set out how and when you bill, 

payment methods, payment schedules, interest rate charges, 

disbursements and HST, as well as the consequences to the 

client for non-payment of accounts when rendered. 

Be clear that you expect to be paid for your services on a 

timely basis. Discuss with your 

client the best time of the 

month to be billed and

MAY/JUNE 2011 | 13 

the interest rate you charge on overdue accounts. This assists 

the client in budgeting and reinforces the message that 

payment of your account should be a priority. If you do not 

currently accept payment by credit card, consider doing so. 

The merchant fees you pay will more than likely be offset by 

reduced accounts receivable. 

Make sure that your requested retainer is sufficient to cover 

your initial work and that your agreement requires that the 

retainer be replenished once the initial retainer has been 

reduced to a specified amount. Set out the consequences if 

the “top up” is not received. Be clear that you will not be 

considered retained for a matter until the signed retainer 

agreement and the requested retainer are received by your 

office. 

Once you begin your work, keep detailed and 

contemporaneous time records so that you can issue an 

accurate and detailed statement of account on a timely basis, 

and while a client is still appreciative of the work you have 

done. Time and billing software is invaluable in helping you 

get timely and accurate bills to your client. 

DON’T PANIC 

If, in the current economy, you find business slowing down, 

don’t panic and take every request for representation that 

you receive. Have a plan and stick to it. If you find that you 

have extra time, see this as an opportunity to introduce new 

efficiencies to your practice. Update your precedents. Learn 

more about technology. Use any extra time you might have 

to connect with your clients. Remember: most new business 

comes from existing clients and referrals from them. 

Deborah E. Gillis QC is a lawyer and consultant in Bedford, N.S., providing 

professional advice to lawyers on Risk Management and Practice 

Management matters and on Succession Planning. She can be reached at 

dgillis@dgillislegalservices.ca 

This article was reprinted from the Canadian Bar Association’s 

PracticeLink website, www.cba.org/cba/PracticeLink/. Find this and 

other helpful articles and discussion topics for free today. 

Keep a close eye on your accounts receivable and Work In 

Progress. Don’t let either build up to unreasonable amounts. 

The longer you delay in preparing and sending a bill, the 

longer it will be before you are paid. Billing regularly and at 

the agreed time conveys the message that you value the 

work you do, and it should improve your cash flow. 

Be aware of where your business is coming from, which 

areas of practice are most profitable, who your best clients 

are and where you should focus your efforts. Legal software, 

properly used, can help you glean all this information from 

your files. 

MATTER SCREENING 

When screening matters, resist the temptation to dabble in 

unfamiliar practice areas. It is very risky to do and the 

likelihood that you will make a mistake is high. If you are 

thinking of branching out to a new practice area, consider 

partnering with experienced co-counsel until you are 

familiar enough with the area to be able to practice 

competently and efficiently.


HEALTH CHECK 

Balance at Any Age 

by John Starzynski 

I am reading a book called Advanced Law Firm 

Mismanagement by Arnold Kanter (1993, Catbird Press, 

North Haven, CT). The senior partner in the fictitious law 

firm of Fairweather, Winters & Sommers is one Stanley J. 

Fairweather. He is in his 80’s and has practiced law his 

whole life. He has been asked by those junior to him to write 

down his thoughts, reminiscences and advice. 

Stanley writes about his brief marriage at page 69: 

“After I graduated, we decided to have a child. 

Harriet decided really. I did not oppose it, 

though I had no idea in the world what having 

a child meant. 

“We had the child, Juliete. Juliete was Harriet’s 

child. I had the law which consumed almost all 

of my waking hours; Harriet had Juliete. We 

had a deal: Harriet didn’t write my briefs, and I 

didn’t change Juliete’s. Oh, on a sunny 

weekend afternoon we would walk Juliete 

through the park in her pram, together. And I 

smiled and shared willingly in the 

compliments that admiring passersby offered. 

(She did look a lot like me, but fortunately 

outgrew it in time.) But I did not participate. I 

had the law; Harriet had Juliete. As we did at 

our first square dance, Harriet and I do-si-doed 

through these first years together, our backs to 

one another.” 

I do not know any 80+ year-old Stanleys who practice law in 

the province of Ontario. I know people who are generally 

balanced and happy with life. The extremity of the portrayal, 

however, acts as a warning that, without some balance 

personally and professionally, Stanley may lurk to some 

extent in your future. 

I have three tips to consider to avoid the Stanley Syndrome. 

1. FIGURE OUT WHAT YOUR PRIORITIES ARE 

I speak to many people who tell me that their families are the 

most important thing in their lives. But when we look at the 

appointment book black and blue with meetings, telephone 

numbers and scribbles, a bigger picture emerges. Add 

volunteer work a few nights a week, obligations for care of 

elderly parents, invitations to client’s events and continuing 

education commitments, and there is not much left for the 

most important thing in your life. 

It is easy to say, but fitting work around your family instead 

of your family around work can be done. Oh, there must be 

room for things that come up but, generally, prioritizing can 

make this happen. 

It has been said that on our deathbeds, we will regret the 

things we did not do (like spend time with family) than 

remember the things we did (like work many hours). My 

wife assures me that she knows my children’s every event 

that I missed, like soccer games, plays and speeches, but she 

cannot remember one client I had that took that time away. 

2. LIVE IN THE MOMENT AND BE IN TOUCH WITH YOUR FEELINGS 

Feelings are tough for lawyers to recognize and enjoy or be 

uncomfortable with. In Benjamin Sells’ book, The Soul of the 

Law (1994, Element Books, London), there is an examination 

of the socialization of law students that carries though to 

practice and personal lives. 

For example, in first year criminal law, the crime of rape or 

assault may be discussed. The discussion will go through 

what the state is, what the rights of private individuals are, 

what rights of the state are for the general good, what is a 

crime, and elements of the offence and defence. What is 

never discussed? The victim. The people in the crime are 

depersonalized. This becomes an academic exercise rather 

than human drama.

MAY/JUNE 2011 | 15 

scream for attention. And that darn fax machine gives your 

clients and other lawyers another way to get in touch with 

you. 

How can you afford to take time off? How can you not? 

Working tired and under pressure increases your chances of 

slipping up. Not on purpose, but because there is too much 

to think about to prioritize time and work. 

Here is a suggestion: Blitz to get things under control by 

dictation, delegation or referral of work to someone else. Get 

someone to cover in case of an emergency. Then, go away for 

two weeks without a briefcase, cell phone, forwarding 

number or any way to be reached. Expect that the first three 

or four days will be unwinding days as your body and mind 

adjust to the shock of living without a constant flow of 

adrenaline. Do something that you have always wanted to 

do – golf every day, biking with your spouse, junk reading – 

whatever will get you back in touch with you... and your 

family. 

Intellectualizing criminal, corporate, matrimonial and any 

other kind of behavior that a lawyer will deal with distances 

the lawyer from his/her feelings. This is a defence 

mechanism from the pressures of representing a client, not 

being the judge of the facts and coping with some horrid and 

emotionally-charged situations. 

My tips are pretty simple, really. Slow down. Let the 

sunshine wash your face. Enjoy your victories. Mourn your 

losses. Hug those you love often. Love yourself. Don’t take it 

personally. 

In such a high-pressured profession as law, there is lots of 

room for humanity. 

3. TAKE A VACATION 

Many of us are overworked and overtired. The piles of files 

get larger every day. The phone calls pile up. The emails 

Think about life. It’s okay. It doesn’t have to be a deep or a 

cathartic experience. Just think of who you are and whether 

you like you. If not, what do you need to do to recapture 

yourself without throwing out the baby with the bathwater? 

Watch a sunset and think of how lucky you are to be alive 

and not in the office reading tomorrow’s motion record. 

Breathe deeply and enjoy being alive. 

Life is not supposed to be hard. Slowing down to decide 

whether you are walking, running or dancing will be time 

well spent. 

Balance is achievable. It is not the elusive brass ring. It is well 

within your grasp! 

John Starzynski practiced matrimonial litigation for 14 years until his bipolar 

illness made it impossible to handle the pressures of practice. He 

now volunteers as a peer support lawyer for the Ontario Lawyers 

Assistance Program (OLAP) which provides peer support and counselling 

to lawyers, law students and their immediate families with issues of 

stress, burnout, addictions and mental wellness challenges.


NWT DECISION DIGEST 

SUPREME COURT 

CIVIL 

Werner v. Hay River Mobile Home 

Park 

2011 NWTSC 8 (CanLII) | February 24, 2011 

Presiding: Justice J.E. Richard 

For the Appellant: H. Latimer 

For the Respondent: M. Hansen 

Appeal of a rental officer’s decision 

granting compensation pursuant to s. 66 

of the Residential Tenancies Act. Appeal 

dismissed and the Appellant ordered to 

pay the Respondent’s costs of the 

appeal, set at $2,000 inclusive of 

disbursements. 

“The chronology commences late in the 

last century.” (at para. 4) This appeal is 

the culmination of the three separate 

actions commenced by the Appellant 

pursuant to the Residential Tenancies Act. 

The facts were carefully analyzed. The 

learned Justice found, with respect to 

the Rental Officer’s off-setting of 

relocation costs that “This was a 

reasonable finding open to the rental 

officer on the evidence before 

him,” (para. 32), and further, “Upon a 

careful review of the voluminous 

evidence, and the rental officer’s 

Reasons for Decision, it cannot be said 

that the rental officer’s determination of 

values was unreasonable, and, 

accordingly it is not for this Court on 

appeal to intervene or second 

guess.” (at para. 35) With respect to the 

issue of mitigation, “... I am not the factfinder 

of first instance – the rental 

officer is the fact finder, and the 

decision to award partial compensation 

was reasonable and within the 

discretion of the rental officer as factfinder.” 

(para. 36) 

The learned Justice noticed, “...the 

Appellant did not state any grounds for 

his appeal when it was filed... 

Arguments in support of the appeal 

appear in the Appellant’s Brief, ...and in 

counsel’s oral submissions...” (para 40). 

In summary, the Court found that the 

rental officer made no errors in his 

findings. 

Hay River Mobile Home Park Ltd. vs. 

Harvey Werner 



For the Applicant: M. Hansen 

For the Respondent: H. Latimer 

“Reasons for Judgment on Mr. Werner’s 

appeal file CV 2005-0090 are being 

issued concurrently with the within 

Memorandum. 

Those Reasons for 

Judgment ought to be read in 

conjunction with this Memorandum. 

M r . W e r n e r ’ s a p p e a l i s 

dismissed.” (para. 4) “There is no merit 

in the cross-appeal.” *this application+ 

(para. 12) 

Arctic Grocers v. HMTQ 

2011 NWTSC 17 | March 15, 2011 


For the Appellants/Applicants: S. Tarrabain, QC 

For the Respondents: E. Delaney 

Application for a stay of the 

suspensions of the Applicant’s two 

Tobacco Retail Dealer’s Permits 

pending the hearing of the appeal. The 

outcome of the three-part test: 

Is there a serious issue to be tried at the 

hearing of the appeal? Yes. 

Has the Applicant shown that it will 

suffer irreparable harm if the stay is not 

granted? No. The Applicant provided 

no supportive evidence and there is no 

risk that the Respondent would not be 

able to pay damages if the appeal is 

successful. 

Does the balance of convenience favour 

the Applicant? No. “There is irreparable 

harm to the public interest when a 

public authority such as the Minister is 

restrained from exercising its statutory 

powers in a case like this where there 

has not (yet) been any finding of wrongdoing 

or error by the public 

authority.” (at para. 10). 

Application denied. 

S.W. v. C.M. 

2011 NWTSC 21 (CanLII) | April 27, 2011 

Presiding: Justice V.A. Schuler 

For the Applicant (grandparents): B. McIlmoyle 

For the mother: M. Nightingale 

For the father: G. Wallbridge 

A p p l i c a t i o n b y t h e m a t e r i a l 

grandparents for leave to make an 

application for joint custody of and 

access to their grandchild. Factors 

considered: 

[1] whether the applicant has played the 

role of a caregiver to the child for a 

substantial period of the child’s life, *2+ 

whether the applicant has a parentallike 

connection to the child in the sense 

of providing care, nurture and support, 

[and 3] whether the application for 

custody or access is devoid of merit or 

patently tenuous. (at para. 3) 

The mother had sole custody from 2005. 

In 2010, the son of the mother’s 

boyfriend was accused of molesting the 

grandchild. The mother and her 

boyfriend contacted the police and child 

protection services, and the accused was 

removed from the home, is living in 

another province, and has been 

charged. The grandparents did not

MAY/JUNE 2011 | 17 

approve of the manner in which the 

mother handled the issue and arranged 

an “intervention” with family members, 

in which the mother was shocked, 

frightened and upset. 

The grandparents brought the 

application because the mother had 

prevented the grandparents from 

having access since the fall of 2010 

when the “intervention” occurred and 

the grandparents had only seen the 

child at recreational activities and 

events since. The mother alleged that 

t h e g r a n d p a r e n t s h a d s a i d 

[inappropriate] things to the child, 

upsetting her, and that the child’s 

counsellor recommended that the child 

not see the grandparents for a while. 

The grandparents are also alleged to 

have breached the grandchild’s privacy 

by informing family members and other 

individuals of the alleged molestation. 

The mother intends to leave 

Yellowknife soon for Ontario. 

Application for leave for joint custody 

denied; application for standing for 

access granted. Directed that the 

grandparents be added as respondents 

in the application for custody and 

access by the mother against the father 

(for the purposes of access only). 

CASES CITED 

W.L. v. K.D.H., 2007 NWTSC 38 

G.D. v. G.M., [1999] N.W.T.J. No. 38 

Stewart v. Macdonnell, [1992] N.S.J. No. 612 (Fam. 

Ct.) 

G.N. and Y.N. v. D.N. and E.P., 2009 YKSC 75 

Parmar v. Parmar, [1997] B.C.J. No. 2094 

LEGISLATION CITED 

Children’s Law Act, S.N.W.T. 1997, c. 14 

Children’s Act, R.S.Y. 2002, c. 31 

Menzies v. Simon 

2011 NWTSC 26 (CanLII) | May 17, 2011 

Presiding: Justice J.Z. Vertes 

For the Applicant/Respondent: D.J. Olson 

For the Respondent/Applicant: J. Savoie 

Application by the Respondent/ 

Applicant for variation of a child 

support order and rescission of arrears. 

The mother (Respondent/Applicant) has 

custody of the child. A child support 

order of $1,200 per month was made in 

1997. The accumulated arrears are 

$195,870.16. The decision includes a 

detailed history of the father’s 

(Applicant/Respondent’s) earnings 

since 1997. Despite the child support 

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INFLUENCE. LEADERSHIP. PROTECTION.


order, the father believed he did not 

have to pay because the mother 

allegedly told him that he was not the 

father, and the mother then refused to 

agree to a DNA test. Orders: (1) 

support order of 1997 varied to $560.00 

per month, and effective start date for 

those payments is March 31, 2011; (2) 

accumulated arrears reduced to 

$97,935.08; (3) the stay of enforcement 

proceedings is vacated. 

CASES CITED 

Haisman v. Haisman (1994), 7 R.F.L. (4 th ) 1 

(Alta.C.A.), leave to appeal to S.C.C. refused 

[1995] S.C.C.A. No. 86 

Filipich v. Filipich (1996), 26 R.F.L. (4 th ) 53 (Ont. 

C.A.) 


Domestic Relations Act, R.S.N.W.T. 1988, c. D-8 

Children’s Law Act, S.N.W.T. 1997, c. 14 

Child Support Guidelines 

953785 NWT Ltd. v. Attorney General 

of the NWT 


Presiding: Justice A.W. Germain 

For the Applicant/Appellant: S. Prithipaul 

For the Respondent: B. Asmundson 

Appeal of a decision of the Liquor 

Licensing Board that (1) the Applicant 

allowed an intoxicated person to enter 

or remain in a licensed premise, and (2) 

that the Applicant was responsible for a 

person working in the licensed premises 

for consuming liquor. 

The standards of review available are 

reasonableness and correctness. 

With 

respect to the first ground of appeal, 

“There is a thread of evidence accepted 

by the board that indicates that they 

relied and preferred Constable Flatt’s 

evidence over that of the owner of the 

establishment. 

decision....” (para 22). 

This is a factual 

Application to 

set aside the decision on count one is 

dismissed. 

On count two, the board found the 

company guilty of the infraction 

committed by an employee. 

“The 

employer does not become vicariously 

liable pursuant to section 131 for this 

type of infraction.” (para. 25) “On its 

face it appears that the board made an 

error of law, and here the paucity of 

reasons reinforces that conclusion. 

There is no deference given to the Board 

on an error of law.” (para. 30). “The 

board’s finding and penalty on count 

two is set aside in its entirety. “ Count 1 

remitted back to the board for a new 

suspension date and to establish new 

deadlines for the payment of the fine 

and remedial training. 

CASES CITED 

New Brunswick v. Dunsmuir, [2008] 1 S.C.R. 190 


Liquor Act, S.N.W.T. 2007, c.15 

Saigon’s Smoke Shop v. 

Commissioner of the NWT 


Presiding: Justice L.A. Charbonneau 

For the Applicant: G. Phillips 

For the Respondent: K. Lajoie 

Appeal of the decision of the Minister of 

Finance to cancel the Applicant’s 

Tobacco Retail Dealer’s permit. 

Application allowed; cancellation of the 

permit is rescinded. 

The standards of review are 

reasonableness and correctness. 

Determining the appropriate standard 

of review requires consideration of (1) 

the presence or absence of a privative 

clause; (2) the purpose of the tribunal as 

determined by interpreting the enabling 

legislation; (3) the nature of the question 

at issue, and (4) the expertise of the 

tribunal. The learned Justice reviewed 

each factor in depth, and determined 

that the correct standard was 

reasonableness. 

Procedural fairness was breached. The 

notice to the Applicant, suspending the 

permit, was set out in the same 

document as the notice of cancellation. 

The Applicant had no opportunity to 

pay the outstanding taxes because the 

notice had already been issued. “So she 

was given an opportunity to do 

something that, by all accounts, the 

Minister knew she could not possibly 

do.” (para. 39) “... she had absolutely 

no opportunity to be heard before the 

decision was made... (para 40). 

[the responsibility o f people in the 

tobacco industry to inform themselves 

about the various rules and 

requirements that govern the industry] 

does not relieve public decision makers 

to act fairly in coming to decisions that 

have significant consequences for those 

involved. In my view, the Minister 

ought to have given the Applicant some 

opportunity to make representations 

about penalty before deciding that the 

most severe administrative penalty 

available would be imposed. The 

failure to do so constituted a breach of 

procedural fairness which warrants this 

Court’s intervention. (para 42) 

In addition, the learned Justice found 

that the Notice failed to articulate the 

basis for the decision to cancel the 

permit, and that was another reason 

justifying the Court’s intervention. 

CASES CITED 

Inuvik Housing Authority v. Kendi, 2005 NWTSC 

46 

Dunsmuir v. New Brunswick, 2008 SCC9 

Law Society of New Brunswick v. Ryan [2003] 1 

S.C.R. 247 

Arctic Grocers v. HTMQ, 2011 NWTSC 12

MAY/JUNE 2011 | 19 

Werner v. Hay River Mobile Home 

Park 



For the Appellant: H. Latimer 

For the Respondent: M. Hansen 

Decision on the issue of costs arising 

from the Court’s dismissal of the 

appeal. The learned Justice affirmed his 

earlier decision, that the unsuccessful 

Appellant will pay the Respondent’s 

costs in the fixed amount of $2,000, 

inclusive of disbursements. No costs to 

either party concerning the application. 

Anderson v. Bell Mobility Inc. 

2011 NWTSC 28 (CanLII) | June 1, 2011 

Presiding: Justice R.S. Veale 

For the Plaintiffs: S. Marr 

For the Defendant: B. Dixon 

Application for costs of certification of a 

class action. Application granted. 

“There is no class proceeding statute, as 

found in other jurisdictions, to guide the 

Court and the parties.... it is fair to say 

that there is a certain amount of 

uncharted territory where there is no 

Class proceedings Act.” *paras 9 and 10+ 

The Court noted that this is the first 

contested certification of a class action 

in the Northwest Territories. 

Rule 649 is a “default” rule. But was the 

application for certification an 

“interlocutory proceeding”? The Court 

found it was not for the following 

reasons: 

(1) Rule 643(1)(a) gives 

discretion to the court and this is an 

exercise of judicial discretion; (2) 

judicial discretion is explicitly provided 

for in Rule 649 and is not a direction on 

when or how to award costs, even in an 

interlocutory proceeding [at para. 31]; 

(3)”... a certification motion is unique to 

class actions [and] is not an 

i n t e r l o c u t o r y p r o c e e d i n g a s 

contemplated in Rule 649”. *at para. 32+ 

“... I conclude that an award of costs in 

the cause is not a necessary nor an 

appropriate cost disposition for this 

certification application.” 

With respect to costs on the Tariff or 

enhanced costs in any event of the 

cause, the learned Justice thoroughly 

reviewed the case law and concluded 

that enhanced costs are appropriate. 

With respect to the time in which the 

costs are payable, the learned Justice 

noted, “For the Andersons and class 

members, a class action is the only 

economically viable procedure given 

the small financial value for each 

member. If the certification motion did 

not succeed, there would have been no 

economically feasible alternative 

procedure. [para 55] The Court ordered 

the costs to be paid within 30 days. 

AUTHORITIES CITED 

Rules of Court, Rules 643, 648, and 649 

CASES CITED 

Anderson v. Bell Mobility Inc., 2010 NWTSC 65 

Storr (c.o.b. Robert Storr Contracting) v. Akalvik 

(Hamlet), [1998] N.W.T.J. 173 

Kuptana v. Canada (Attorney General), 2007 

NWTSC 1 

Western Canadian Shopping Centres Inc. v. Dutton, 

2001 SCC 46 

Anderson v. Bell Mobility Inc., 2008 NWTSC 85 

Fernandes (Next friend of) v. Sport North Federation, 

[1996] N.W.T.J. No. 131 

Fullowka v. Royal Oak Ventures Inc., 2005 NWTSC 

60 

The Canadian Legal Information Institute 

Making Canadian law accessible for 

free on the internet. 

www.canlii.org 

Caputo v. Imperial Tobacco Ltd., (2005), 74 O.R. 

(3d) 728 (S.C.) 

British Columbia (Minister of Forests) v. Okanagan 

Indian Band, 2003 SCC 71 

Ayrton v. PRL Financial (Alta.) Ltd., 2006 ABCA 88 

Pauli v. Ace INA Insurance Co., 2004 ABCA 253 

Beamish v. Miltonberger, [1997] N.W.T.J. No. 54 

Rosebrugh v. Iapaolo, [1991] N.WT.J. No. 140 

Engle v. Carswell, [1993] N.W.T.J. No. 74 

5142 NWT Ltd. v. Hay River (Town), 2008 NWTSC 

31 

Diavik Diamond Mines Ltd. v. Northwest Territories 

(Director of Human Rights), 2007 NWTSC 83 

CRIMINAL 

R. v. Kodzin 

2011 NWTSC 02 (CanLII) | January 28, 2011 


For the Crown: B. MacPherson 

For the Accused: P. Fuglsang 

NOTE: AN ORDER HAS BEEN MADE BANNING 

PUBLICATION OF THE IDENTITY OF THE 

COMPLAINANT/WITNESS PURSUANT TO 

SECTION 486.4 OF THE CRIMINAL CODE. 

The accused was convicted after a trial 

of sexual assault. 

The accused had 

sexually assaulted the victim when the 

victim as unconscious. 

The accused was 22 years of age at the 

time, a Dene man. 

A pre-sentence 

report indicated the accused came from 

a stable home, was a high school 

graduate, had been employed full-time 

for a number of years, was in a common 

-law relationship for five years and had 

a two-year old child. 

criminal record. 

He had no 

He was “truly 

remorseful” and had strong family 

support. 

Crown counsel sought a 

sentence of three to four years, while 

defence asked for consideration of a 

sentence of less than two years. 

Section 742.1 of the Criminal 

Code 

precludes the availability of a 

conditional sentence on a conviction for


sexual assault. Sentence: 30 months 

less the three months the accused had 

already served in custody. Additional 

orders for a sample for DNA analysis 

and submission to the DNA bank; 

registration with the Sexual Offender 

Information Registry, firearms 

prohibition for 10 years with the 

possibility of lifting that order for 

sustenance purposes. 

CASES CITED 

R. v. A.J.P.J. (2011) NWTCA 2 

R. v. Arcand, 2010 ABCA 363 

R. v. Apsimik 



For the Crown: A. Godfrey 

For the Accused: J. Bran 

The accused was convicted by a jury of 

the included offence of assault in a 

charge of robbery. He had been 

drinking and consuming marijuana 

with a 17-year old friend through the 

day of the offence. The two then took a 

taxi cab to a parking area where the 17- 

year old put a knife to the throat of the 

driver and demanded money. The 

driver got away but suffered cuts to his 

hands. The 17-year old got out of the 

car, the accused punched the taxi driver 

in the face. No money was taken from 

the victim. 

Although the accused may have acted 

“in the heat of the moment,” the victim 

was a vulnerable taxi driver. The victim 

suffered short-term swelling to his lips 

or face from the punch, and was unable 

to work for a period due to traumatic 

stress. The victim changed his work 

schedule to no longer work the late 

night shift. 

The accused was 23 years old with a 

grade 10 education and additional 

upgrading. He was employed, in a 

common-law relationship for two years, 

and expecting his first child in April. 

He has a criminal record that includes 

three separate assault convictions, and 

he would have only recently completed 

his probation period for the last assault 

when this incident occurred. Sentence: 

six months. 

R. v. Alookee 

2011 NWTSC 11 | March 15, 2011 


For the Crown: M. St-Germain 


Application by the Crown for bail 

estreatment. The accused’s mother had 

deposited $2,500 for bail. The accused 

had moved to his mother’s home 

community and was financially unable 

to travel and missed his jury trial. A 

warrant for the accused’s arrest was 

issued. On learning of the warrant, the 

accused immediately turned himself in 

to police and was released and told to 

return two days later, and did so. He 

was then taken into custody and 

brought to Yellowknife. 

The accused and his mother both 

testified at the hearing as to whether the 

accused was entitled to a jury hearing 

and that testimony, unchallenged by the 

Crown, was reviewed with respect to 

the facts surrounding the failure of the 

accused to travel to Yellowknife for his 

jury trial. 

Application denied. This transcript of 

the decision contains a detailed analysis 

of the principles concerning bail 

estreatment. 

CASES CITED 

R. v. Howell, [2008] N.J. No. 259; [2009] O.J. No. 

4308 (C.A.) 

R. v. Wan, [2010] B.C.J. No. 766 

MATERIALS CITED 

Trotter, The Law of Bail in Canada, 2 nd ed. 

R. v. Jones 

2011 NWTSC 13 | March 17, 2011 

Presiding: Justice W. Darichuk 

For the Crown: J. Walsh, D. Praught 

For the Accused: T. Boyd 

The accused pleaded guilty to robbery 

(s. 343(b) of the Criminal Code) on the 

scheduled date of the beginning of his 

jury trial. Crown and defence jointly 

submitted a sentence of a range of 

imprisonment of two to two and a half 

years. 

The agreed statement of facts indicated 

the accused entered an apartment, 

assaulted a person and took his laptop 

computer, cell phone and wallet, likely 

as collection for a drug debt. The 

assault resulted in minor scrapes and 

bruising to his face, neck and shoulder 

area. 

The accused was 35 years old with an 

“extensive” criminal record, and had 

served pre-trial custody of fifteen 

months. The accused was sentenced to 

seven and one-half months and bound 

to keep the peace and be of good 

behaviour for one year, post-release, 

with a recognize of $1,000 and 

conditions to have no contact with the 

victim or two witnesses. 

CASES CITED 

R. v. G.W.C., (2001) 5 W.W.R. 230, 150 C.C.C. (3d) 

513 

R. v. Sears, (1978), 39 C.C.C. (2d) 199 

R. v. Matwiy, (1996) A.J. No. 134 

R. v. P.P. 


Presiding: Justice P.M. Clark 

For the Crown: J. Walsh 

For the Accused: M. Hansen

MAY/JUNE 2011 | 21 

Transcript of the Reasons for Sentence: 

The accused was found guilty on a 

charge of sexual assault. The 

circumstances of the offence are not set 

out in the transcript, nor are any details 

of the submissions of counsel on 

sentencing. The accused was sentenced 

to three years. 

R. v. Tonka 


Presiding: Justice P.M. Clark 




The accused was charged with assault, 

assault with a weapon, and breach, but 

it is unclear from the transcript as to 

what the accused was convicted of. The 

accused was sentenced to a total of two 

and a half years imprisonment, 

including the time spent on remand 

(one for one). 

R. v. Fairbairn 



For the applicant Crown: B. MacPherson 

For the respondent: C. Wawzonek 

Application by the Crown to extend the 

time to file and serve a Notice of 

Appeal. Application dismissed. 

Facts: The respondent was sentenced 

on January 12. The Crown filed the 

Notice of Appeal on February 10 th, one 

day before the expiration of the period 

for filing the Noticed of Appeal. The 

Crown had until February 11 to serve 

the Respondent with the Notice of 

Appeal but served it on February 16 th ; 

the Crown had until February 21 st to file 

the proof of service, but filed it on 

March 4 th . 

The three factors in a decision to grant 

an extension are: (1) whether the party 

seeking the extension has shown a bona 

Trial Advocacy 2011 

Yellowknife · September 28 - October 1 

This fall, the Intensive Trial Advocacy Program 

returns to Yellowknife. Modeled after the Legal 

Education Society of Alberta (LESA) course, this 

program is specifically tailored to address the 

challenges faced by lawyers in the North. 

This is your chance to test your advocacy skills 

and get one-on-one mentoring from senior lawyers 

and judges. For four days, you will develop your 

courtroom and hearing presence and explore 

every aspect of trial and hearing work in both civil 

and criminal contexts. 

Report all your CPD hours at once with over 20 

hours of instruction and participation. 

The Yellowknife Courthouse becomes your 

classroom this September. 

SPACE IS LIMITED. REGISTER NOW! 

CONTACT THE LAW SOCIETY OR 

WATCH THE BULLETIN FOR DETAILS


fide intention to appeal within the 

appeal period (the Crown met this 

factor by filing the Notice of Appeal by 

the deadline); (2) whether that party has 

accounted for, or explained, the delay 

(the Crown agreed there is no evidence 

giving an explanation for the late 

service of the respondent – and the late 

filing of the Affidavit of Service resulted 

from having to return the Affidavit to 

the process server for correction twice, 

but by filing the Notice only one day 

before the deadline, the Crown “placed 

itself in a difficult position as far as 

effecting service within the deadline – 

para 11); and (3) whether there is merit 

to the proposed appeal. 

Although there was merit to the appeal, 

the Crown could launch another appeal 

of a curative discharge sentence in 

Territorial Court another case, and not 

“place an unfair burden on this 

particular respondent” (para. 25) who 

had already served 3 months of her 

probation order. 

AUTHORITIES CITED 

Criminal Procedure Rules of the Supreme Court of the 

Northwest Territories, Rule 110 

CASES CITED 

R. v. Menear, [2002] O.J. No. 244 (Ont. C.A.) 

R. v. Soosay, 2001 ABCA 287 


Criminal Code, s. 255(5) 

R. v. Bertrand 


Presiding: Justice L.F. Gower 


For the Accused: S. Petitpas 

Reasons for Sentence: The accused 

pleaded guilty to assault causing bodily 

harm. The accused had a consensual 

fight with the victim. The victim was 

knocked to the ground and knocked 

out. The accused then struck the 

victim’s face and neck area with kicking 

motions. The victim was later found to 

have a fractured vertebra in his neck 

and had to wear a neck brace for seven 

weeks and to return to Edmonton for a 

check-up. 

The accused is 20 years of age, a Slavey 

First nations person. He is single with 

no dependents. He completed Grade 12 

and is unemployed but works on a 

casual basis for catering companies and 

local contractors. The accused is 

remorseful and apologetic. He was 

heavily intoxicated at the time of the 

offence and can remember little of it. 

He has a criminal record and no prior 

related offences of violence. The Crown 

and defence made a joint submission, 

agreed to by the Court: 12 months’ 

incarceration and probation of 18 

months with a recommendation that the 

incarceration be served in the South 

Mackenzie Correctional Centre. 

Mandatory DNA and firearms 

prohibition orders. Victim of crime 

surcharge is waived. 

R. v. Gladue 





The accused pled guilty to assault with 

a weapon after a preliminary hearing. 

The accused and victim got into an 

argument and the accused went into his 

house and came back with a golf club 

and swung it at the victim. The victim 

received a puncture injury to his arm, 

and the victim then got the golf club 

away and started hitting the accused 

who suffered a gash requiring stitches. 

The victim was charged separately. 

A pre-sentence report was prepared by 

Ms. Beck, who was complimented by 

the Court on the thoroughness of the 

report. Crown and defence made a joint 

submission on sentencing. The accused 

is 22 years old, of aboriginal ancestry, 

and has no criminal record. The Court 

reviewed in detail the requirements for 

a conditional sentence and sentenced 

the accused to 12 months’ conditional 

sentence. Standard conditions, and 200 

hours of community service, house 

arrest for the first four months, curfew 

for the entire year, firearms prohibition 

order with authorization for the chief 

f i r e a r m s o f f i c e r t o i s s u e a n 

authorization on certain conditions; 

DNA order and victim of crime 

surcharge. 

R. v. Kudlak 




For the Defence: T. Boyd 

Application by the Crown to declare the 

offender a dangerous offender and to 

sentence him to an indeterminate 

period of detention in a penitentiary. 

Preliminary application by the Crown 

to amend the Notice of Application to 

delete the reference to an offence 

committed in 2005. Application granted: 

the pre-amendment provisions were 

more favourable to an offender. “’The 

real questions are whether (a) the mere 

inclusion of the 2005 predicate offence 

determines the applicable legislative 

scheme; and (b) whether the Crown can 

amend its notice.” *para. 12+ 

Application to amend the Notice of 

Application was granted: there is no 

prejudice to the offender, no change in 

the evidence, no change in the case the

MAY/JUNE 2011 | 23 

defence has to meet, no change in the 

law that must be applied to the 2009 

predicate offences. 

The predicate offences are sexual 

assaults, and “*a+ sexual assault is 

c o n d u c t t h a t i s i n h e r e n t l y 

violent.” *para. 33+ 

The expert witness, a psychiatrist, 

provided a report and gave viva voce 

evidence. The offender is 37 years of 

age, of Inuit heritage. “


while at the wheel could claim to have 

rebutted the presumption. 

The test must take into account the 

accused’s purpose when he first 

occupied the seat and then, if there has 

been a continuous occupation, 

determine whether the purpose has 

changed. [at paras. 12, 13] 

The accused was convicted. 

CASES CITED 

R. v. Hudson, (1989) 23 M.V.R. (2d) 284 

R. v. Weir, [2005] BCSC 1740 

R. v. Potes, 2008 ONCJ 703 

R. v. Mallery, [2008] N..J. No. 72 

R. v. Whyte, [1988] S.C.J. No. 63 

R. v. Toews, [1985] 2 S.C.R. 119 

R. v. Price (1978), 40 CCC (2d) 378 (NBCA) 

R. v. Liske, [2004] N.W.T.J. No. 63 

R. v. Lyle Richard Omilgoituk 

2011 NWTTC 6 (CanLII) | February 18, 2011 

Presiding: Judge C. Gagnon 

[counsel is not identified in the Reasons] 

Reasons for Decision: The accused was 

found guilty at trial for assaulting his 

common-law partner, uttering threats to 

kill her and her children, assaulting two 

peace officers and obstructing the work 

of three peace officers in the execution 

of their duties. 

To summarize the facts, the accused 

arrived home intoxicated, alleging he 

had been “jumped” by a number of 

individuals and his ankle was injured. 

He was combative, attempted to gain 

access to knives in the kitchen, 

threatened his common-law spouse and 

her children. The eldest child, a 19-year 

old, heard some of the threats and was 

concerned about his mother’s safety 

when she called his name. He took a 

weighted pipe into the bedroom where 

his mother and the accused were and 

found the accused on top of his mother, 

LINKS TO CASES IN THIS DIGEST ARE DIRECTED TO THE ARCHIVED 

DECISIONS ON CANLII. ALTERNATIVELY, THESE DECISIONS ARE FREELY 

AVAILABLE AT THE GNWT DEPARTMENT OF JUSTICE WEBSITE: 

http://www.justice.gov.nt.ca/ 

holding her on the bed. The child hit 

the accused on the head twice. 

The 

child then called the emergency number 

for an ambulance. 

Police were 

dispatched as well. The mother gave 

permission to the officers and 

ambulance attendants to enter. 

The 

officers became concerned about the 

safety of the mother and the children. 

The accused was unco-operative and 

then became combative with the officers 

during the arrest. 

CASES CITED 

R. v. MacNearney, 2010 NWTSC 94 

R. v. Godoy [no citation given] 

R. v. Dedman, [1985] 2 S.C.R. 2 

R. v. Landry¸[1986] S.C.J. No. 10 

R. v. Nasogaluak, 2010 SCC 6 

R. v. Shott, [2006 A.J. No. 1337 

R. v. Cunningham, [2007] O.J. No. 1419 

R. v. Jeremick’a, [2003] N.W.T.J. No. 72 

R. v. Clemente, [1994] 2 S.C.R. 758 


Royal Canadian Mounted Police Act, R.S. 1985, c. R- 

10 

Interpretation Act, R.S.C. 1985, c. I-21 

Canadian Charter of Rights and Freedoms, s. 24 

R. v. Carter Industries Ltd. 

2011 NWTTC 08 | Mar 2, 2011 

Presiding: Judge R.D. Gorin 

For the Crown: J. Cliffe 

For the accused: S. Eichler 

Reasons for sentence: The accused 

pleaded guilty to one count of failing to 

take all reasonable precautions and 

carrying out all reasonable techniques 

and procedures to ensure the health and 

safety of every person, including [the 

victim] T.M., contrary to s. 4 (1)(b)of the 

Safety Act. The accused company was 

contracted to upgrade a bridge at a 

hydro facility. 

The north end of the 

bridge had to be raised but during that 

procedure, it fell on T.M.’s foot. 

His 

injuries resulted in the loss of his leg, 

below his knee. After the guilty plea 

was accepted, the Crown stayed the 

remaining 24 charges. 

The Judge accepted the joint submission 

on sentence of $55,000 plus a victims’ of 

crime surcharge. 

Note: there is a typographical error in 

paragraph 5 of the decision which 

states, “The maximum penalty 

provided for under s. 22(2) of the 

[Safety] Act is a maximum fine of 

$5,000....” The maximum fine is 

$500,000. [Ed.] 

R. v. Bowden 

2011 NWTTC 10 (CanLII) | April 1, 2011 

Presiding: Judge R.M. Bourassa 

For the Crown: B. MacPherson 



[Ed. note: the transcript does not indicate the 

precise charges, nor does it indicate whether the 

accused was found guilty at trial, or pleaded 

guilty.] 

Accused forged cheques from August 

2008 to January 2010, and stole 

approximately $181,000 from her 

employer, a small business. 

This 

involved a breach of trust. “*T+here was 

planning, forethought, in preparing, 

signing and processing the forged 

cheques over such an extended period

MAY/JUNE 2011 | 25 

of time... all of the cheques were for 

different unique amounts which would 

appear to avoid a pattern. It was 

cleverly done.” (at p. 6, lines 4 to 11) 

The loss to the victims in this case is 

significant and can’t be downplayed: 

the spouse of the owner of the business 

has to go back to work full-time. Trust 

is lost. The business has been 

compromised and in fact their pensions 

have been compromised. It may very 

well be that they will be paying for this 

crime longer than the perpetrator. (At 

p. 3, lines 17 to 24) 

The pre-sentence report indicates the 

accused had no criminal record and no 

remarkable history. The learned Justice 

found no evidence to suggest a 

gambling disorder or addiction: “It 

seems to me, rather, that the selfdescribed 

addiction is almost in the 

nature of an attempt to rationalize the 

crime, including her as a victim, and 

thereby distanc[ing] herself from the 

mens rea or the criminal intent.” (at p. 5, 

lines 3 to 8) There was no restitution. 

The learned Justice found that “... the 

crime is of such significance that 

anything other than a term of 

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

inappropriate.” (at p. 13, lines 12 to 14) 

The accused was sentenced to 17 

months in jail and one year’s probation. 

CASES CITED 

[Ed. note: no citations were given] 

R. v. Shott, a decision of Judge Bruser in 1994 

Kirkwood, a decision of the British Columbia 

Court of Appeal 

R. v. Holmes (BCCA) 

R. v. John 

R. v. McGyver 

R. v. Layton (distinguished) 

R. v. Burkhardt (BCCA) 

Cleary (distinguished) 

YOUTH JUSTICE COURT 

R. v. J.K. 

2011 NWTTC 11 (CanLII) | April 29, 2011 

Presiding: Judge R.D. Gorin 

For the Crown: W. Miller 

For the Accused: S. Petitpas 

Reasons for sentence. [It is unclear from 

the Reasons whether the accused 

pleaded guilty or was found guilty at 

trial of the offence of sexual assault. 

The two issues addressed in these 

Reasons is whether a custodial sentence 

is available and the quantum of 

sentence. – Ed.] 

The Reasons contain a detailed analysis 

of whether the nature of the offence is a 

“serious violent offence” and therefore 

warranting a custodial sentence. There 

is one short paragraph reflecting that 

the Pre-Sentence Report indicated the 

accused was genuinely remorseful and 

has a problem with alcohol that he is 

dealing with. 

Sentence: 180 days of custody followed 

by 60 days of supervision, and a 12- 

month probation order. 

CASES CITED 

R. v. C.D.; R. v. C.D.K., [2005] 3 S.C.R. 668 

R .v. McCraw, [1991] 3 S.C.R. 72 

R .v. McDonnell, [1997] 1 S.C.R. 948 

R. v. T.F., 2008 NWTTC 11 

R. v. K.G.B.; R. v. S.R.B. (2005), 291 N.B.R. (2d) 

327; 202 C.C.C. (3d) 521; 69 W.C.B. (2d) 418 

R. v. L. (S.) (2005), 70 W.C.B. (2d) 821 (Ont. C. J.) 

R. v. G. (N.), (2007), 73 W.C.B. (2d) 584 (Ont. C. J.) 

moot 79 W.C.B. (2d) 100 (Ont. C.A.) 

R. v. P. (G.S.M.) (2007, 74 W.C.B. (2d) 734 (Ont. 

C.J.) 

R. v. S.(D.) (2009), 81 W.C.B. (2d) 726 (Ont. C.J.) 

R. v. S. (K.G.) 2009, 82 W.C.B. (2d) 797 (Nu. C.J.) 

R. v. T. (S) (2009) B.C.J. No. 1206 (C.A.) 

R. v. W. (R.E.) (2006), 205 C.C.C. (3d) 183, 36 C.R. 

(6th) 234 (Ont. C.A.) 

R. v. Arcand (2010), 264 C.C.C. (3d) 134 


Criminal Code, ss. 2 (definition of “bodily 

harm”) 

Youth Criminal Justice Act, ss. 38, 39(1)(a) and 39 

(1)(d); ss. 2 and 42(9) re “serious violent offence” 

CIVIL 

Child and Family Services and S., (S.) 

and S., (H.) 

2011 NWTTC 12 (CanLII) | May 13, 2011 

Persiding: Judge G. Malakoe 

For the Director: S. MacPherson, M. Jones 

For the Mother: D. Large, QC 

Application by the Director of Child 

and Family Services for the two 

children to be declared in need of 

protection and placed in the permanent 

custody of the Director. 

Application 

granted. The test for deciding between 

a temporary and a permanent custody 

order is, whether there is a substantial 

likelihood that within a reasonable time 

period from the date of the making of 

the child protection order, either or both 

of the parents will be in a position to 

provide sustained adequate care for the 

children (para 41). At the time of the 

hearing, neither parent was available or 

able or willing to properly care for the 

children and the children’s extended 

family had not made adequate 

provision for the children’s care or 

custody. 

CASES CITED 

British Columbia (Director of Child, Family and 

Community Service) v. S.G., [2006] B.C.J. No. 779 

(B.C. P.C.) 


Child and Family Services Act, S.N.W.T. 1997, c. 13 

as amended


NWT LEGISLATIVE NEWS 

by Mark Aitken, Director of Legislation Division, GNWT Justice 

THE NWT LEGISLATIVE NEWS IS 

NOT A COMPREHENSIVE REPORT 

OF LEGISLATIVE ENACTMENTS. 

ONLY ITEMS CONSIDERED TO BE 

OF INTEREST TO THE BAR ARE 

LISTED. 

ELECTRONIC TRANSACTIONS 

ACT 

The Electronic Transactions Act, 

S.N.W.T. 2011, c. 13, came into force 

on Assent on May 19, 2011. The Act 

provides for the recognition of 

electronic communications and 

documents under Northwest 

Territories law, in the absence of 

specific treatment in each applicable 

enactment. The Act does not require 

the use of electronic communications, 

but does establish minimum 

standards that must be met when 

electronic documents and information 

are used in transactions. 

The 

Interpretation Act is consequentially 

amended to further authorize and 

regulate the use of electronic forms. 

LOCAL AUTHORITIES ELECTIONS 

ACT 

An Act to Amend the Local Authorities 

Elections Act, S.N.W.T. 2011, c. 15, 

received Assent May 19, 2011, and 

comes into force on August 1, 2011 by 

virtue of a commencement order 

registered as SI-004-2011. 

The Act 

amends the Local Authorities Elections 

Act to increase options for voting at 

elections for municipal councils and 

education bodies, to implement 

reforms jointly developed by the 

Department of Municipal and 

Community Affairs and the 

IT’S ALL ONLINE! 

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

Territories Gazette at the GNWT website: 

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

Northwest Territories Association of 

Communities, and to make minor 

changes consistent with prevailing 

drafting practices. 

MISCELLANEOUS STATUTE LAW 

AMENDMENT ACT, 2011 

The Miscellaneous Statute Law 

Amendment Act, 2011, S.N.W.T. 2011, 

c. 16, came into force on Assent on 

May 19, 2011. The Act corrects 

inconsistencies and errors, repeals 

provisions that have ceased to have 

effect, and makes other amendments 

of a minor, non-controversial and 

uncomplicated nature in 27 statutes of 

the Northwest Territories. 

PUBLIC SERVICE ACT 

An Act to Amend the Public Service Act, 

S.N.W.T. 2011, c. 17, came into force 

on Assent on May 19, 2011. The Act 

amends the Public Service Act to 

remove the restriction that prevents 

the appointment of more than three 

Staffing Review Officers for the 

hearing of staffing appeals.

MAY/JUNE 2011 | 27 

S.C.C. UPDATE 

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

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

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

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

TRACK AND CHECK OUT THE C.A. JUDGMENT. 

APPEALS 

ACCESS TO INFORMATION: 

ACCESS TO RECORDS 

Canada (Information Commissioner) v. Canada 

(Minister of National Defence) (Fed. C.A., May 

27, 2010; May 29, 2010) (33296, 33297, 33299, 

33300) 

2011 SCC 25 (CanLII) | May 13, 2011 

Records located within the offices of the 

Prime Minister, the Minister of National 

Defence, the Minister of Transport, and 

those parts of the Prime Minister's 

agenda in the possession of the RCMP 

and the Privy Council Office are not 

subject to disclosure under s. 19(1) of 

the Access to Information Act. 

CIVIL PROCEDURE: ANTON 

PILLER ORDERS 

British Columbia (Attorney General) v. Malik 

(B.C.C.A., May 7, 2009) (33266) 

2011 SCC 18 (CanLII) | April 21, 2011 

In the context of an Anton Piller order 

authorizing search of business and 

residential properties, a Superior Court 

judge hearing an ex parte application 

may admit into evidence the findings 

and conclusions of a prior judicial 

d e c i s i o n ( h e r e a R o w b o t h a m 

proceeding). 

CLASS ACTIONS, CHARTER: 

GOVERNMENT LIABILITY; 

FIDUCIARY; NEGLIGENCE; BAD 

FAITH/UNJUST ENRICHMENT; S. 

15 

Alberta v. Elder Advocates of Alberta Society 

(Alta. C.A., December 4, 2009) (33551) 

2011 SCC 24 (CanLII) | May 12, 2011 

Alberta is responsible for the cost of 

medical care required by residents of 

nursing homes and auxiliary hospitals, 

but patients may be asked to contribute 

to costs of their housing and meals 

through the payment of accommodation 

charges. A class of elderly residents of 

Alberta's long-term care facilities 

alleged the government artificially 

inflated the accommodation charges to 

subsidize the cost of medical expenses. 

Breach of fiduciary duty, negligence 

and bad faith in the exercise of 

discretion were struck from the 

statement of claim; unjust enrichment 

and the s. 15(1) Charter claim allowed to 

proceed to trial. 

CORPORATE COMMERCIAL LAW: 

SECURITIES DISCLOSURE; 

FIDUCIARY DUTIES 

Sharbern Holding Inc. v. Vancouver Airport 

Centre Ltd. (B.C.C.A., May 22, 2009) (33280) 

2011 SCC 23 (CanLII) | May 11, 2011 

Justice Rothstein: "When securities are 

offered to the general public, the rule of 

caveat emptor no longer applies. 

Securities legislation imposes on issuers 

a statutory duty of disclosure. 

That 

duty may vary in detail from one Act to 

another or from one jurisdiction to 

another< Rather than issuers being 

required to provide unlimited 

disclosure, disclosure obligations have 

been enacted to provide a balance 

between too much and too little 

disclosure”. The S.C.C. held (upholding 

the B.C.C.A.): sufficient disclosure on 

the facts of this case; no negligent 

misrepresentation; no breach of 

fiduciary duty. 

CRIMINAL LAW: CHARACTER 

EVIDENCE 

R. v. O'Brien (NS C.A., July 14, 2010) (33817) 

2011 SCC 29 (CanLII) | June 9, 2011 

The S.C.C. held: 

the trial judge said in his reasons that 

he relied "entirely" on the DNA 

evidence; that meant that he did not 

rely on the character evidence 

a trial judge has an obligation to 

demonstrate through his or her 

reasons how the result was arrived 

at; this does not create a requirement 

to itemize every conceivable issue, 

argument or thought process 

trial judges are entitled to have their 

reasons reviewed based on what 

they say, not on the speculative 

imagination of reviewing courts. 

CRIMINAL LAW: OBSTRUCTION 

OF JUSTICE 

R. v. Reynolds (Ont. C.A., September 8, 2010) 

(33919) 


The SCC upheld the dissenting judge


(Blair J.A.) in the C.A. below: “*s+ 

uggesting a facile, albeit deceitful, way 

of accomplishing the desired objective is 

just as much a part of the "persuasion 

package" as providing the incentive to 

carry out the desired objective in the 

first place.” 

CRIMINAL LAW: REASONABLE 

DOUBT 

R. v. V.Y. (August 5, 2010) (33841) 

2011 SCC 22 (CanLII) | May 6, 2011 

Convictions for sexual assault and 

forcible confinement were set aside by a 

majority in the C.A. below, and the 

S.C.C., based on their review of the trial 

judge's reasons as a whole, agree that he 

erred in law by failing to give adequate 

consideration to the question of 

whether the evidence raised a 

reasonable doubt. 

CRIMINAL LAW: SEARCH & 

SEIZURE; SEARCH INCIDENT TO 

ARREST; S.24 (2) 

R. v. Loewen (September 7, 2010) (33914) 

2011 SCC 21 (CanLII) | May 5, 2011 

After stopping the accused for 

speeding, a police officer smelled 

freshly burnt marijuana coming from 

the vehicle and found $5,410 in the 

accused's pocket. 

He arrested for 

possession, searched the vehicle, and 

found 100 grams of crack cocaine. The 

trial judge admitted the evidence of 

cocaine. The accused was convicted of 

possession of cocaine for the purpose of 

trafficking. A majority of the Court of 

Appeal upheld the conviction. 

S.C.C. dismissed the appeal. 

The 

CRIMINAL LAW: SEXUAL ASSAULT 

R. v. J.A. (Ont. C.A., March 26, 2010) (33684) 

2011 SCC 28 (CanLII) | May 27, 2011 

The definition of consent for sexual 

assault requires the complainant to 

provide actual active consent 

throughout every phase of the sexual 

activity. 

It is not possible for an 

unconscious person to satisfy this 

requirement, even if she expresses her 

consent in advance. Any sexual activity 

with an individual who is incapable of 

consciously evaluating whether she is 

consenting is therefore not consensual 

within the meaning of the Criminal 

Code. 

DEBTOR/CREDITOR: PPSA; TRUST; 

BFPFV 

Trade Finance Inc. v. Bank of Montreal (Ont. 

C.A., August 18, 2009) (33394) 

2011 SCC 26 (CanLII) | May 20, 2011 

The transaction herein by which BMO 

acquired its enforceable PPSA security 

interest made it a "purchaser" within the 

meaning of the words "bona fide 

purchasers for value without notice". 

BMO therefore fell within the exception 

to the tracing order previously given. 

LABOUR LAW: COLLECTIVE 

BARGAINING 

Ontario (Attorney General) v. Fraser (Ont. C.A., 

November 17, 2009) (32968) 


The Ontario Agricultural Employees 

Protection Act, which excluded farm 

workers from the Labour Relations Act, 

but crafted a separate labour relations 

regime for farm w orkers, i s 

constitutional. 

TRADEMARKS: CONFUSION 

Masterpiece Inc. v. Alavida Lifestyles Inc. (Fed. 

C.A., October 13, 2009) (33459) 

2011 SCC 27 (CanLII) | May 26, 2011 

Consideration of all the circumstances 

of the case, including the factors set out 

in s. 6(5) of the Trade-marks Act and 

particularly that Alavida's trade-mark 

"Masterpiece Living" and Masterpiece 

Inc.'s "Masterpiece the Art of Living" are 

very similar, lead the S.C.C. to a finding 

that Masterpiece Inc. has proven that 

the use of Alavida's trade-mark in the 

same area as those of Masterpiece Inc.'s 

would be likely to lead to the inference 

that the services associated with 

Masterpiece Inc.'s trade-marks were 

being performed by Alavida. Because 

Masterpiece Inc.'s use preceded 

Alavida's proposed use, Alavida was 

not entitled under s. 16(3) to registration 

of its trade-mark. 

LEAVES TO APPEAL 

GRANTED 

CIVIL PROCEDURE: FORUM 

SELECTION CLAUSES 

Momentous.ca Corporation, et al v. Canadian 

American Association of Professional Baseball 

Ltd., et al (Ont. C.A., October 29, 2010) (33999) 

May 19, 2011 

Are the choice of forum and arbitration 

clauses in this case valid? 

COPYRIGHT: "FAIR DEALING" 

EXCEPTION 

Province of Alberta as represented by the 

Minister of Education, et al v. Canadian 

Copyright Licensing Agency Operating as

MAY/JUNE 2011 | 29 

"Access Copyright" (Fed. C.A., July 23, 2010) 

(33888) 

May 5, 2011 

What is fair dealing in the Copyright 

Act, and what comes under the 

exception under s. 29.4 of the Act. 

CRIMINAL LAW: SEXUAL 

ASSAULT 

R. v. C.L.M. (Man. C.A., October 13, 2010) (33976) 

May 5, 2011 

There is a publication ban in this case 

involving alleged failure to disclose HIV 

-positive status. 

INSURANCE & MUNICIPAL LAW: 

“DAMAGE CAUSED BY AN 

AUTOMOBILE” 

City of Westmount v. Richard Rossy, Sharon 

Rossy, Justin Rossy, Luke Rossy, Nicholas Rossy 

and Société de l'assurance automobile du 

Québec (Que. C.A., November 22, 2010) (34060) 

May 19, 2011 

When a municipally-owned tree falls on 

a car and kills an occupant, is this 

“damage caused by an automobile”? 

PENSIONS: PUBLIC SERVICE 

Professional Institute of the Public Service of 

Canada, et al v. Attorney General of Canada 

(Ont. C.A., October 8, 2010) (33968) 

May 5, 2011 

In what circumstances can there be 

c o n t r i b u t i o n h o l i d a y s a n d / o r 

withdrawal of surplus in mandatory 

contributory defined benefit pension 

plans. 

PHARMACEUTICALS: GENERIC 

VIAGRA 

Teva Canada Limited v. Pfizer Canada Inc., et al 

(Fed. C.A., September 24, 2010) (33951) 

May 5, 2011 

This generic Viagra test case comes up 

to the S.C.C. for review, the generic 

alleging Pfizer’s patent is invalid for 

obviousness, lack of utility, and 

insufficient disclosure. 

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

at McMillan, Ottawa. His primary area of 

work is with the Supreme Court of Canada, 

mainly assisting other lawyers in taking cases 

(both Leave to Appeal and Appeal). He also 

does Public Law generally. For previous 

summaries, and to keep up-to-date with all 

SCC appeals and leave to appeals, contact 

Eugene at eugene.meehan@mcmillan.ca.


NOTICES 

The Supreme Court of the Northwest Territories 

Court of Appeal of the Northwest Territories 

SCHEDULING NOTICE 

TO MEMBERS OF THE BAR 

PLEASE TAKE NOTICE THAT THE NEXT SUPREME COURT 

GENERAL CRIMINAL LIST WILL BE CALLED ON: 

Thursday, September 1, 2011 at 14:00 hrs 

NOTE: 

AT YELLOWKNIFE NT 

IN COURTROOM #1 

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

Calling of the List, either personally or by agent. 

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

by Judge and Jury, counsel (both Crown & Defence) are to advise the 

presiding Judge at the time of, or prior to, the Calling of the List whether 

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

the estimated duration of the Jury Trial. 

3. For those with Summary Conviction Appeals, please be reminded of 

Rule 117 of the Criminal Rules of the NWT. 

NOTICE TO MEMBERS OF THE BAR 

PLEASE TAKE NOTICE THAT THE LIST OF CASES PENDING AND THE 

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

Thursday, September 1, 2011 at 15:00 hrs 

at Yellowknife NT 

IN COURTROOM #1 

for the Court of Appeal Assize commencing 

October 18, 2011 

COUNSEL ARE REMINDED OF THE FOLLOWING NEW FILING 

DEADLINES FOR APPEALS FILED AFTER MARCH 1, 2006: 

CIVIL APPEALS and CRIMINAL APPEALS 

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

which the notice of appeal was filed. 

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

book or within 7 months of the notice of appeal whichever date is 

earliest. 

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

appellant’s factum. 

d) Only those appeals that have been perfected as at September 1, 2011 

will be set for hearing at the October 18, 2011 assize. 

The Supreme Court of the Northwest Territories 

NOTICE 

Northwest Territories Courts 

Please be advised of the following changes to the 

2011 Supreme Court Chamber schedule: 

September 5 Criminal Chambers is cancelled. 

October 10 Criminal Chambers will be held on 

Tuesday, October 11, in Courtroom 5. 

TO ALL MEMBERS OF THE BAR 

Please be advised there will be no Civil Chambers on Friday, 

July 29, 2011. Instead, Civil Chambers will be held at 2:00pm 

on Thursday, July 28, 2011. 

October 17 and 24 Criminal Chambers are cancelled.

MAY/JUNE 2011 | 31 

RESOURCES 

The Legal Profession 

Assistance Conference 

(LPAC) of the Canadian Bar Assocation is 

dedicated to helping lawyers, judges, law 

students and their families with personal, 

emotional, health and lifestyle issues 

through a network of Lawyer Assistance 

Programs, a national 24-hour helpline and 

Provincial Programs. If you need 

assistance, please call the helpline or visit 

their website. 

1-800-667-5722 

www.lpac.ca 

The Law Society of the 

NWT and the CBA-NT 

Branch have partnered 

with Human Solutions to offer members 

free, private and confidential professional 

counseling and consultation for the 

resolution of personal issues or work 

related difficulties. 

This service is available 24 hours a day, 7 

days a week. Call any time. 

1-800-663-1142 

Mentor Program 

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

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

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

Practice Advisors 

The Practice Advisors from the 

Law Society of Alberta are 

available to discuss legal, ethical and 

practice concerns, and personal matters 

such as stress and addiction. Members are 

invited to contact the Practice Advisors at 

any time: 

Ross McLeod (Edmonton) 

Tel: 

780-412-2301 or 

1-800-661-2135 

Fax: 780-424-1620 

ross.mcleod@lawsocietyalberta.com 

Nancy Carruthers (Calgary) 

Tel: 

403-229-4714 or 

1-866-440-4640 

Fax: 403-228-1728 

nancy.carruthers@lawsocietyalberta.com 

THE LIGHTER SIDE 

From the Judges’ Chambers 

Before a burglary trial, the judge 

explained to the defendant, “You can 

let me try your case, or you can 

choose to have a jury of your peers.” 

The man thought for a moment. 

“What are peers?” he asked. “They're 

people just like you - your equals.” 

“Forget it,” retorted the defendant. “I 

don't want to be tried by a bunch of 

thieves.” 

Delivering his decision, the judged 

addressed the husband of a divorce 

case directly. “Mr. Smith, I have 

reviewed this case very carefully, and 

I've decided to give your wife $275 a 

week.” 

“That's very fair, your honor,” the 

husband said. “And every now and 

then I'll try to send her a few bucks 

myself.” 

Judge: “Is it true that you owe your 

neighbor a thousand dollars?” 

Defendant: “Yes, it’s true.” Judge: 

“Then, why don’t you just pay him 

back?” Defendant: “Because then it 

wouldn’t be true anymore.” 

The defendant stood up in the dock 

and said to the judge, “I don’t 

recognize this court!” 

“Why not?” asked the Judge. 

“Because you’ve had it decorated 

since the last time I was here.” 

Judge (to his dentist): “Pull my tooth, 

the whole tooth and nothing but the 

tooth.”

THE LAWYER REFERRAL SERVICE 

A SIMPLE, FREE WAY 

TO CONNECT YOU WITH THE PUBLIC 

The Lawyer Referral Service pairs the public with 

lawyers, improving the public’s access to proper legal 

advice and representation and access to justice. 

Call it free advertising. Call it a public service. 

Whatever you call it, it works. 

With an average of 5 requests a day, the Service 

proves people are looking for legal advice. 

Add your name to the Lawyer Referral Service today. 

Help yourself and the public. 

IT’S AS EASY AS 1, 2, 3! 

Visit lawsociety.nt.ca today. 

This Service is available to the public via web and telephone. The complete list of lawyers who have volunteered for the Service is available on the Law 

Society website (www.lawsociety.nt.ca) and is organized by practice area. By telephone, callers with access to the internet are first referred to the complete 

list online, and then referred to three lawyers chosen randomly from the same lists. There is no fee for the public or for lawyers to use this Service.

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