A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

By: Sarah Burton

PDF Version: A Smart Decision – Access to Counsel for the Poor and Disabled in a Legal Aid Crisis

Case commented on: R v Smart, 2014 ABPC 175

Access to justice advocates should to take a few moments to review R v Smart, 2014 ABPC 175, where the Honourable Assistant Chief Judge Anderson stayed proceedings against three accused persons who could not afford counsel, but did not qualify for Legal Aid. While such applications are not uncommon, the evidence considered in Smart extends far beyond the norm. This extensive evidence, coupled with Judge Anderson’s probing commentary on access to justice, places a welcomed spotlight on Alberta’s Legal Aid funding crisis. In Smart, Judge Anderson sought to provide concrete guidance to courts facing similar applications. While he accomplished this task, his engagement with access to justice issues may be the more lasting legacy of the judgment.

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Deference, Discretion, and Adjudicative Substitution

By: Camille Sehn

PDF Version: Deference, Discretion, and Adjudicative Substitution

Case Commented On: E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2014 ABCA 237

Editor’s Note: The University of Calgary Faculty of Law runs a fantastic legal clinic, Student Legal Assistance (SLA), that employs several students during the summer. This year’s crop of students was encouraged by SLA’s Executive Director, Michelle Christopher, to submit posts to ABlawg in the criminal and family law areas. This is the second post in the series; the first is available here and there will be more to come.

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In a recent decision from the Court of Appeal of Alberta, the Honorable Mr. Justice Jack Watson engages in a discussion around judicial discretion in an often nuanced and complex area of the law. At trial, the Director of Child and Family Services (“the Director”) applied for a Permanent Guardianship Order (“PGO”) of two twin boys; both parents contested the PGO. After 16 days of evidence at trial in Provincial Court, the Honorable Judge L.T.L. Cook-Stanhope concluded that there was gross abuse of the twins based on evidence of a pattern of maltreatment and poor attitudes towards parenting. Judge Cook-Stanhope found that the parents presented a substantial risk of further physical and emotional harm, and relied on the testimony of several witnesses to support this apprehension of substantial risk if the twins were to be returned to their parents. She granted the PGO on this basis. (E.G. v Alberta (Child, Youth and Family Enhancement Act, Director), 2013 ABPC 311 at para 224)

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New Parameters for Family Status Adopted in Alberta

By: Linda McKay-Panos 

PDF Version: New Parameters for Family Status Adopted in Alberta

Case Commented on: Clark v Bow Valley College, 2014 AHRC 4

Recently, human rights decisions in federal tribunals and courts have adopted a broader definition of “family status” as meaning more than just one’s relationship to another person, and recognizing childcare responsibilities. Rights groups have been positive about this development, but perhaps some employers are concerned. The leading case, Canada v Johnstone, 2014 FCA 111, was discussed in previous posts (see here). Alberta’s Human Rights Tribunal has now adopted and applied this jurisprudence in Alberta.

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Access to Justice: The DIY Index

By: John-Paul Boyd

Editor’s Note: John-Paul Boyd, the Executive Director of the U of C-affiliated Canadian Research Institute for Law and the Family (CRILF), started a new blog in August on Access to Justice in Canada. John-Paul will be cross-posting on ABlawg from time to time and blogging on family law decisions (see also his blog JP Boyd on Family Law). This first post is an index to five separate entries on DIY access to justice approaches originally posted on Access to Justice in Canada.

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DIY #1: Write and share plain-language information on the law

Prepare and distribute handouts with clear information about the law and dispute resolution processes. Handouts could cover topics including the substantive law on different issues, management of common litigation tasks and tips for successful mediation. Leave them in a brochure rack in your reception area; give copies to colleagues and to pro bono and community legal clinics; give them to social service providers such as abused women’s centres and immigrant settlement agencies.

DIY #2: Work with others and other’s work

Connect with a few of the social service agencies in your neighbourhood, find out where the holes are in their library of legal resources, and fill them. Think and write about the law in a way that addresses the unique legal needs and realities of each group’s target population. Work with community media and larger social service groups; these generally have a broader reach and better funding, and the work you do often goes much further.

DIY #3: Talk to your community

Get in touch with the libraries, community centres and social service groups in your area and arrange to provide one or more public lectures; public talks are a rewarding, enriching and engaging way of improving access to justice. The range of topics you can address is unlimited and could include introductions to court processes, alternatives to court, landlord tenant law, wills and estates, the basics of family law, and anything else that could of interest to the people you are talking to. Providing handouts gives the community group and the people at your talk an additional resource.

DIY #4: Unbundle your services, reinvent your billing model

Working on an unbundled basis is a great way to maintain a remunerative practice while offering legal services that are more accessible than services offered on a comprehensive, billable-hour basis, however few lawyers offer such services. Unbundling gives clients the services they select on fixed or predictable prince and within a defined time period; it gives lawyers a less stressful practice with a lower likelihood of mounting accounts receivable.

DIY #5: Do more work on a flat rate basis

Offering services on a flat rate basis is another way to maintain a profitable practice while improving access to justice. Under this model, the client can pick and choose which and how much of a lawyer’s services he or she will buy, at a fixed rate which is determined up front. The client and the lawyer are protected from the client’s frustration if a legal issue is not resolved before his or her resources are exhausted. The lawyer gets a file with a fixed scope of required labour and a minimal potential of becoming a dog file, payment up front and a minimal likelihood of collections issues, and a file free from the tyranny of recording time.

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The Relevance of Sattva for Appeals from Arbitration Awards in Alberta

By: Jonnette Watson Hamilton

PDF version: The Relevance of Sattva for Appeals from Arbitration Awards in Alberta

Case commented on: Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53 (CanLII)

The Supreme Court’s decision in Sattva Capital Corp v Creston Moly Corp has quite rightly received a great deal of attention. It has attracted notice in contract law circles for changing the law by holding that contractual interpretation involves questions of mixed fact and law, and not questions of law (see e.g. “Contract interpretation is no longer a question of law”, “A blockbuster decision in contractual interpretation” and “SCC issues ‘big change’ to contract law – Sattva gives last word to trial judges, arbitrators”). And, because the precedent-setting decision arose from an arbitration hearing in British Columbia, it has also attracted commentary more focused on the arbitral aspects (see e.g. “Finally, the Supreme Court of Canada puts some finality into Arbitrations” and “Supreme Court of Canada Limits the Right to Appeal Commercial Arbitral Decisions on Issues of Contractual Interpretation”). Because the British Columbia arbitration legislation that facilitated and regulated the arbitration in Sattva is unlike that in the rest of common law Canada, I will focus on the arbitration aspects of the decision and then explore the difference the Sattva decision may make in arbitrations in Alberta (and in Ontario, Saskatchewan, New Brunswick, Prince Edward Island, Manitoba and Nova Scotia, all of which also adopted the Uniform Law Conference of Canada’s Uniform Arbitration Act (1990)).

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