Minutes for the Meeting of the Benchers June 21 and 22, 2012 Bessborough Hotel, Saskatoon Present: Gregory Walen, Q.C., Dr. Sanjeev Anand, Q.C., Loreley Berra, Thomas Campbell, Robert Heinrichs, Joel Hesje, Q.C., Peter Hryhorchuk, Paul Korpan, Q.C., Laura Lacoursiere, Heather Laing, Eileen Libby, Q.C., Miguel Martinez, Stephen Orlowski, George Patterson, Lorraine St. Cyr, Dr. Greg Stevens, Della Stumborg and Evert Van Olst In attendance: Tom Schonhoffer, Q.C., Tim Huber, Jody Martin, Jennifer Houser, Andrea Johnston and Barbra Bailey. Donna Sigmeth, Q.C., attended the Ethics Committee meeting on Wednesday, as well as the Professional Standards and Discipline Committee meetings on Thursday morning, but departed after lunch with the CBA Executive to attend a prior commitment. Special Guests: Stephen Raby,Q.C., President of the Law Society of Alberta and John Hunter, Q.C., President of the Federation of Law Societies. 1. CALL TO ORDER The meeting commenced at 1:35 p.m. on Thursday, June 21, 2012. 2. APOLOGIES FOR ABSENCE Apologies for absence were received from Darcia Schirr, Q.C., Michael Megaw, Q.C., Lorne Mysko and Thomas Healey. 3. ACCEPTANCE OF AGENDA A motion to accept the Agenda was presented by Dr. Sanjeev Anand, Q.C. and seconded by Lorely Berra. The motion was carried unanimously. 4. AGENDA ITEMS WHICH ARE NOT OPEN TO THE PUBLIC None.
2 5. ADOPTION OF MINUTES A reference to Tom Campbell seconding a motion on page 8 should refer to Tom Healey; subject to the aforesaid amendment, a motion to adopt the Minutes of the meeting held April 27, 2012 was presented by Loreley Berra and seconded by Della Stumborg. The motion was carried unanimously. 6. MATTERS ARISING FROM THE MINUTES None. 7. AGENDA ITEMS FOR DISCUSSION a. Reports i. President s Report Gregory Walen, Q.C., reported on attendance at the following: May 23-25 - Law Society of Upper Canada Convocation in Ontario, along with Heather Laing and Tom Schonhoffer, Q.C. May 31 - Executive Committee meeting in Saskatoon June 6-9 - Law Society of Alberta Bencher Retreat and Convocation Two swearings-in occurred while Greg was away on Law Society business, therefore, other representatives attended and made remarks on behalf of the Law Society. The swearing-in for Brian Barrington-Foote, Q.C. was attended by Victor Dietz, Q.C. and the swearing-in for Darin Chow, Q.C. was attended by George Patterson June 5 - Scholarship Committee meeting June 12 - Canadian Bar Association event June 4 - Model Code Session; Greg brought greetings on behalf of the Law Society May 30 - Advertising Committee meeting ii. Executive Director s Report Tom Schonhoffer, Q.C., reported on the following: 40 new lawyers signed the roll in the past month. Financial Report (end of April 2012) running a small surplus of $142,000 (3% of budget). Equity Report from Barbra Bailey is attached for reference. Libraries: the Saskatoon Court House renovation will reduce the library size by 60% and the library will be closed during renovations from May 1, 2013 to December 31, 2013.
3 b. Committee Reports o Tom Schonhoffer, Q.C. and Peta Bates discussed how to proceed in the face of this news and agreed that the collection will need to be culled. o Perhaps CanLII can be used to substitute some of the old reporters. o Retention of textbooks will be a priority. o This is a good time to discuss what the library should look like in the future and consider possible alternatives to the current model. o Plans are underway to strike a Library Committee, with an initial focus on Saskatoon. i. Admissions & Education Minutes from the meeting held February 9, 2012 were provided for information. Dr. Greg Stevens reported on the following: The committee is discussing whether or not to move to a fixed term for CPD o other jurisdictions are doing this; o there are some problems with changing the format, in that some providers are already modeling their sessions on the rolling three-year term. The committee is reviewing the process regarding applications to be a principal, including articling plans. One Rule waiver application was considered because the applicant failed one NCA exam and will have to rewrite in August, she would not be permitted to participate in CPLED in the fall. The committee granted a Rule waiver, conditional upon passing the exam. Andrea Johnston is working with the library to develop a database for A & E Decisions. The committee is now discussing who should have access and what type of format the decisions should follow. A Hearing for the student who plagiarized in the CPLED course was held this week. The decision was reserved. ii. Discipline Minutes from the meeting held February 9, 2012 were provided for information. Dr. Sanjeev Anand, Q.C. reported on the following:
4 The Discipline Committee approved the proposed legislative amendment to Section 3.1 of The Legal Profession Act, 1990 that further defines the purpose of the Law Society. iii. Ethics Minutes from the meetings held February 9, 2012 were provided for information. iv. Professional Standards Minutes from the meeting held February 9, 2012 were provided for information. v. Executive Minutes from the meeting held April 4, 2012 were provided for information. 8. AGENDA ITEMS FOR DECISION a. Appointments i. Senate of the University of Regina Applications from 10 interested individuals were considered by the Benchers. Moved by Tom Campbell, seconded by Rob Heinrichs, that Jerome Tholl be appointed to the Senate of the University of Regina for a three year term, effective July 1, 2012 June 30, 2015. Paul Korpan, Q.C. abstained. The motion was carried. ii. Canadian Lawyers Insurance Association (CLIA) Applications from 6 interested applicants were considered by the Benchers. Moved by Lorraine St. Cyr, seconded by Miguel Martinez, that Shannon Metivier be appointed to the CLIA Board as an alternate for a two year term, effective June 21, 2012 July 20, 2014. Joel Hesje, Q.C. abstained. The motion was carried. iii. Queen s Counsel Selection Committee A Public Representative, a member-at-large and a Bencher are required for this year s Queen s Counsel Selection Committee. Dr. Greg Stevens was the sole applicant to serve as the Public Representative on this committee. A motion to appoint Dr. Greg Stevens as
5 Public Representative on the Queen s Counsel Selection Committee was presented by Della Stumborg and seconded by Dr. Sanjeev Anand, Q.C. The motion was carried unanimously. The Benchers considered applications from 5 interested individuals for the member-at-large position. Moved by Dr. Sanjeev Anand, Q.C., seconded by Dr. Greg Stevens, that Gary Zabos, Q.C. be appointed to serve as the member-at-large on the Queen s Counsel Selection Committee. The motion was carried unanimously. Lorraine St. Cyr and Darcia Schirr, Q.C. ran for the Bencher position. Ballots were provided to the Benchers for the selection of a Bencher representative on this committee. Tom Schonhoffer, Q.C. and Tim Huber counted the votes and proclaimed that Lorraine St. Cyr was elected to serve on the Queen s Counsel Selection Committee. b. Bencher Election i. Rule Amendments Rules 15-32 The Benchers considered amendments to Election Rules considered at April Convocation, specifically Rule 29(2); Rule 30(2) and (3), with the addition of (4); and Rule 32(4)(b), with the addition of (c). The Rules are to read as follows: Election Record and Disclosure of Votes Received 29 (2) The Executive Director shall, at the request of any member, disclose to that member the number of votes received by each candidate. 29. (2) At the request of any candidate, the Executive Director shall disclose election information from that candidate s electoral division, including: (a) the number of votes received by each candidate; (b) the voter list; (c) the identity of the members who cast a vote; and (d) such other information that, in the Executive Director s discretion, does not violate the principles of a free and fair election. Review by Executive Committee 30. (1) A candidate who is not elected under these Rule and who alleges that he or she should have been elected in place of a candidate who was elected may, not more than 10 days after the election date, apply in writing to the Executive Committee for a review of the election in that division. (2) The Executive Committee shall appoint not less than 2 other members of the Society who are not Benchers or employees of the Society (together, the Review Committee ), to review the election in that division. (2 3) The Executive Review Committee shall promptly review the election in that division and shall: (a) confirm the declaration made by the Executive Director; (b) declare that the applicant or another candidate is elected in place of the candidate declared by the Executive Director to be elected under Rule 27; or
6 (c) order that a new election be held in that division, and give directions for it. (3 4) The decision of the Review Committee under subrule (3) is final. New Lawyer Bencher Definition 32. (1) New Lawyer means a member of the Law Society of Saskatchewan who, at the date of the election, has been admitted to the practice of law in any jurisdiction cumulatively for fewer than 10 years. New Lawyer Bencher (2) One New Lawyer shall be elected as a Bencher. Electoral Division (3) Notwithstanding Rule 15, the electoral division for the election of the New Lawyer Bencher will be the Province of Saskatchewan. Qualification of Candidate (4) Notwithstanding Rule 17, to qualify to be nominated for election as a New Lawyer Bencher the member must: (a) Maintain his or her principal place of practice or employment in the Province of Saskatchewan; (b) Be a New Lawyer on the date of the first term election.; and (c) Not be nominated for election in any other electoral district. Nomination of Candidate (5) Notwithstanding Rule 19, the nomination of a New Lawyer Bencher is valid only if it is in writing and signed by at least 2 members in good standing who, at the time of the nomination, are New Lawyers. Voters List (6) Notwithstanding Rule 21 the Executive Director shall, by September 15 preceding the election of Benchers, prepare an alphabetical voter list of New Lawyers. Entitlement to Vote (7) (a) Notwithstanding Rule 23, only those members whose names appear on the voter list prepared under Rule 32(5) are entitled to vote in an election for a New Lawyer Bencher. (b 6) Notwithstanding Rule 21(3), a New Lawyer shall be entitled to vote for both a New Lawyer Bencher and any other candidate running in the member s electoral division. General Election Procedures (8 7) The general election procedures in Rules 15 through 31 shall apply mutatis mutandis. On first reading, a motion to adopt the omnibus package of amendments to the Bencher Election Rules was moved by Evert Van Olst, seconded by Loreley Berra. The Motion was carried unanimously. A motion to grant second reading on the same day was presented by Tom Campbell and seconded by Lorraine St. Cyr. The motion was carried unanimously. On second reading, a motion to adopt the proposed amendments was presented by Della Stumborg and seconded by Rob Heinrichs. The motion was carried unanimously.
7 ii. Electoral Divisions At April Convocation, a sub-committee was struck, consisting of Joel Hesje, Q.C., Laura Lacoursiere and Loreley Berra, to review, evaluate and propose changes to the electoral process for electing Law Society Benchers. A memo by Barbra Bailey outlined the current ratio of members per Bencher in the electoral divisions, issues that may be cause for changes to the current system, as well as some considerations which may distribute the ratio more evenly. If it is decided changes are to be made to increase the number of elected Benchers, appointed Benchers, or both, or there is a change to the proportion of elected Benchers who practice in Regina or Saskatoon, legislative amendments are necessary. Amendments to the Act must be submitted in one package this fall. A motion that the Benchers recommend changing section 6(2) of The Legal Profession Act, 1990 to delete the reference to all specific constituencies and the requirement for the proportion of Benchers elected in Saskatoon and Regina and outside of Saskatoon and Regina, was presented by Joel Hesje, Q.C. and seconded by Laura Lacoursiere. Peter Hryhorchuk opposed. The motion was carried. c. Advertising Committee Rule Amendments At April Convocation, the Advertising Committee recommended that Part 19 of the Law Society Rules regarding Marketing of Legal Services be repealed. The recommendation was approved in principle, subject to amendments to the Code of Conduct and Law Society Rules which would maintain portions of Part 19. The following have been brought forward for approval by the Benchers: The committee recommended maintaining Rule 1602.1, and the definition of weakened state in Rule 1600, as the sole Rule remaining in Part 19, for now. It was also recommended that Rule 1616 be added as the last Rule in Part 17, as new Rule 1458. On first reading, a motion to approve repealing all Rules except for Rules 1600 and 1602.1 and to relocate Rule 1616 to Part 17 as Rule 1458 was presented by Della Stumborg and seconded by Lorraine St. Cyr. The motion was carried unanimously. A motion to grant second reading on the same day was presented by Peter Hryhorchuk and seconded by Tom Campbell. The motion was carried unanimously.
8 On second reading, a motion to adopt the proposed amendments was presented by Miguel Martinez and seconded by Dr. Sanjeev Anand, Q.C. The motion was carried unanimously. The Benchers resolved to maintain the terminology used in Rule 1615(1)(a), which expands on the prohibition against using the title specialist, expert or leader, by incorporating the terminology in the Commentary following Rule 3.03(1) in the Code. A motion to adopt the proposed Commentary in Rule 3.03(1) of the Code of Professional Conduct, was presented by Miguel Martinez and seconded by Della Stumborg. A motion to grant second reading on the same day for Commentary in Rule 3.03(1) of the Code of Professional Conduct, was presented by Dr. Greg Stevens and seconded by Rob Heinrichs. The motion was carried unanimously. On second reading, a motion to adopt the proposed Commentary in Rule 3.03(1) of the Code of Professional Conduct, was presented by Dr. Sanjeev Anand, Q.C. and seconded by Stephen Orlowski. The motion was carried unanimously. d. Rule Amendments - SLIA Rule 605(4)(c) provides exemptions for those not required to pay insurance. It includes members employed by the Federal Department of Justice. Some of the lawyers formally employed by this department are now employed by the Public Prosecution Services of Canada. On first reading, a motion to adopt the proposed amendment to Rule 605(4)(c) to include Public Prosecution Services of Canada, with a friendly amendment to change department to ministry and to add or the Public Prosecution Services of Canada as an exempt category, was presented by Loreley Berra and seconded by Dr. Sanjeev Anand, Q.C. The motion was carried unanimously. A motion to grant second reading on the same day to Rule 605(4)(c) to include Public Prosecution Services of Canada as an exempt category, was presented by Dr. Sanjeev Anand, Q.C. and seconded by Della Stumborg. The motion was carried unanimously. On second reading, a motion to adopt the proposed amendment to Rule 605(4)(c) to include Public Prosecution Services of Canada as an exempt category, was presented by Peter Hryhorchuk and seconded by Paul Korpan, Q.C. The motion was carried unanimously.
9 e. Amendment to The Legal Profession Act, 1990, Section 3.1 At April Convocation, the Discipline Committee approved, in principle, an amendment to section 3.1 of The Legal Profession Act which would supplement the existing duty of the Law Society to act in the public interest. Proposed amendment to section 3.1 of The Legal Profession Act, 1990: o Currently, there is no clear hierarchy in the legislation for the interests of the parties involved. o Common law provides that the public interest is the overarching principle above the interests of the member, yet there has been some confusion over this issue recently. o The proposed amendment is modeled after section 69.1 of The Medical Profession Act. o The Discipline Committee proposed that this be part of the legislative amendment package to be submitted to the provincial government in the fall. o Dr. Sanjeev Anand, Q.C. seeks a motion to approve the amendment as proposed in the memo from Barbra Bailey as follows: Duty of society 3.1(1) In the exercise of its powers and the discharge of its responsibilities, it is the duty of the society, at all times: (a) to act in the public interest; (b) to regulate the profession and to govern the members in accordance with this Act and the rules; and (c) to protect the public by assuring the integrity, knowledge, skill, proficiency and competence of members. (2) In any proceeding pursuant to this Act, the protection of the public and ethical and competent practice shall take priority over the interests, rehabilitation, treatment and welfare of a person who is a member under this Act. o Discussion as to correct punctuation no changes made. A motion to approve the amendment to section 3.1 of The Legal Profession Act, 1990 for recommendation was presented by Loreley Berra and seconded by Lorraine St. Cyr. The motion was carried unanimously. f. Special Fund Claim Bonnie Grace Marwood was suspended from the practice of law on January 1, 2009 and a trustee was appointed. Three claims have been received against the special fund for pecuniary loss as a result of the member s misappropriation or wrongful conversion of money or other property:
10 a) Client BO Money was paid in trust, no work was completed, the funds were not returned. A motion to pay the claim amount of $500, with potential for a further claim to be made in the future, was presented by Peter Hryhorchuk and seconded by Lorraine St. Cyr. The motion was carried unanimously. b) Client BR Money was paid in trust, no work was completed, the funds were not returned. A motion to pay the claim amount of $2,000 to BR was presented by Dr. Greg Stevens and seconded by Tom Campbell. The motion was carried unanimously. c) Client SA The facts disclose that the money paid was a personal loan. It included a promissory note, collateral and knowledge that the funds would be immediately disbursed for immediate use. The lawyer later agreeing to work off the debt did not constitute a trust. Compensation from the special fund is restricted to wrongful conversion or misappropriation. A motion that the claim be denied was presented by Miguel Martinez and seconded by Eileen Libby, Q.C. George Patterson and Tom Campbell opposed. The motion was carried. g. Remarks from John Hunter, Q.C., President of the Federation of Law Societies of Canada John Hunter, Q.C. made remarks on the role of the Federation of Law Societies. A motion to grant an honourary Law Society membership to John Hunter, Q.C. was presented by Dr. Sanjeev Anand, Q.C. and seconded by Loreley Berra. Mr. Hunter was presented with an honourary membership. Meeting adjourned for the day at 3:36 p.m.
11 9. PUBLICATION OF PRIVILEGED INFORMATION 10. SENTENCING The Benchers convened as the Discipline Committee, Dr. Sanjeev Anand, Q.C. acted as Chair and Tim Huber was invited to make submissions for the Law Society. Dorothy Olson was self-represented. A transcript of the proceedings was prepared by Royal Reporting, Saskatoon. 11. INFORMATION The following was provided for information only: a. AGM Agenda b. Convocation Dates 2013 12. DATE AND PLACE OF THE NEXT MEETING The next Convocation is scheduled for September 27 th and 28 th, 2012 in Saskatoon. The President s Dinner has been scheduled for the evening of Friday, September 28 th at the Riverside Golf & Country Club. THOMAS SCHONHOFFER, Q.C. Executive Director TJS/el