Chair TIME MATERIALS ALLOTTED€¦ · 4. IN CAMERA 5. APPROVALS 6. CONSENT AGENDA The Consent Agenda matters are proposed to be dealt with by unanimous consent and without debate.

COUNCIL MEETING AGENDA VIA VIDEOCONFERENCE

Date Friday, September 25 2020

Time 9:00 a.m.

Chair Jim Rossiter QC, President

ITEM TOPIC TIME ALLOTTED SPEAKER MATERIALS

(Pg #) ACTION

1. INTRODUCTORY MATTERS/CALL TO ORDER 1.1. Introductory Remarks 5 J. Rossiter 2. DISCUSSION OF BIG ISSUE

2.1.

TRC Working Group Council will receive an update on the work of the working group including summary on survey feedback and approval of Members

30 A. Amaral 4 Update & Approval

2.2. FLSC response to the TRC report and recommendations Council will receive a focused presentation on the response

15 M. Cooper & J. Herman Update

2.3. FLSC TRC Working Group Report Council will review and approve adoption of guiding principals

15 T. Young 14 Discussion & Approval

2.4.

Cultural competence Council will review and discuss whether cultural competence should be a mandatory part of a lawyer’s continuing competence

60 A. Simonds & J. Willwerth 33 Discussion

3. POLICIES/PROCESSES

3.1. LIANS six-month Report Council will receive an update from LIANS

10 L. Rubin 63 Update

3.2.

Real Estate Professional Standards Council will be introduced to new Opinion of Title and Certificate of Legal Effect. Council will discuss and approve Plans and Surveys, Trustee’s Deeds and Options and Rights of First Refusal

15 L. Rubin 72 Discussion & Approval

3.3. Feedback Fee Relief Program Council will discuss member comments 10 J. Rossiter/

T.Pillay 93 Discussion

3.4. E. Burke Resignation - Central District Representative Council approval of resignation and next steps

5 T. Pillay 102 Approval

3.5.

Working Group next steps in response to Laura McCarthy Email Council will receive an update from the working group on their recommendations on next steps

10 J. Rossiter Update

4. IN CAMERA

5. APPROVALS 6. CONSENT AGENDA

The Consent Agenda matters are proposed to be dealt with by unanimous consent and without debate. Council members may seek clarification or ask questions without removing a matter from the consent agenda. Any Member may request that a consent agenda item be moved to the regular agenda by notifying the President or the Governance Officer (Katie Lister) prior to the meeting. 6.1. Minutes of July 24, 2020 Meeting 109 Approval

6.2.

Committee Resignations Michelle Williams, Racial Equity Committee John Underhill, Family Law Standards Committee Stephen Robertson, Provincial Court Liaison Committee Ellen Burke, Council, Finance and Family Law Standards Susan MacKay, Provincial Court Liaison Committee

Approval

6.3.

Committee Appointments Kelsey Jones, Racial Equity Committee Marjorie Hickey QC, Chair of the Distinguished Service Award Committee Karen Endres, Chair of the Provincial Court Liaison Committee

Approval

6.4. Resignation: Ms. Kate Macaulay Jurgens Approval

7. FOR INFORMATION 7.1. 2020-2021 Council Calendar 113 Information 7.2. Executive Director’s Report 115 Information 7.3. President’s Report 117 Information 7.4. 2020-2021 Activity Plan 118 Information 7.5. First Quarter Finance Update 128 Information

7.6. CPLED - Brandon Hall Group Bronze Award 131 Information

8. WRAP UP 9. The 2 Minute Evaluation

Council members are asked to complete the evaluation

3 Version 1 Updated August 28, 2019

10. MEETINGS

• November 27, 2020, at 9:00 a.m. • January 22, 2021, at 9:00 a.m. • March 26, 2021, at 9:00 a.m. • April 23, 2021, at 9:00 a.m. • May 21, 2021, at 9:00 a.m. • June 18, 2021, at 1:00 p.m.

Page | 1

TRC Working Group Survey Feedback Summary

Question 1: Are you aware of the TRC Calls to Action?

Summary of Results:

Overall, 88 participants answered (ALL). A total of 73.86% (65 participants) answered with YES, while a total of 26.14% (23 participants) answered NO.

Question 2: Have you taken steps to address, respond to, or implement the TRC Calls to Action? IF yes, which calls to action have you taken up? IF NO, do you have plans to implement any of the calls to action within the next six (6) months?

i) Summary of Results:

Overall, 88 participants answered. A total of 36.36% (32) answered YES, while a total of 63.64% (56 participants) answered NO.

ii) Feedback:

• Generally, Call to Action #27(8 participants) was the most widely implemented byparticipants.

• 12 participants have educated themselves on the Calls to Action.• Some offices have offered cultural competency training.• Individuals have participated in events to gain further education.• Child welfare education through Jordan’s Principle was cited.

Question 3: What activities have you engaged in to address the Calls to Action?

i) Feedback• 11 participants have self educated themselves on the Calls to Action.• 20 participants have participated in workshops and/or training sessions.• A majority (37 participants) have answered that they have NOT participated in activities

that address the Calls to Action.

Question 4: Do you know of other lawyers or firms working on implementing any of the TRC Calls to Action?

i) Summary of Results:

Overall, 88 participants answered (ALL). A total of 28.42 (25 participants) answered with YES, while a total of 71.59% of participants answered NO.

Question 5: What could the society provide that would help you or your firm’s current TRC work or what would help you or your firm as you begin to implement the TRC Calls to Action?

4

Page | 2

i) Feedback:

In reviewing the feedback, participants believed that the implementation of educational programs would be of assistance. Educations tools such as cultural competency training and conferences were generally proposed as ways to assist in the implementation of the TRC Calls to Action.

• 40 participants believed the use of education sessions, conferences, training, and availability of resources would be helpful in implementing the TRC Calls to Action.

• 5 participants would like to be aware of what other lawyers and/or firms are doing to implement the TRC Calls to Action.

• The use of emails (a listserv) to inform and educate on the Calls to Action was suggested.

Question 6: Approximately how many Indigenous clients, Indigenous organizations or First Nations communities do you serve?

i) Summary of Results:

A total of 70.45% (62 participants) answered less than 5. 12.50% (11) answered between 5 to 20. 6.82% (6) answered 21 to 50. 10.23% (9) answered 50+.

Question 7: Approximately what percentage of your practice deals with Indigenous Peoples or Legal Issues?

i) Summary of Results:

A total of 70.45% (62 participants) answered less than 5. 12.5% (11) answered between 5 to 20. 4.55% (4) answered 21 to 50. 12.50% (11) answered 50+.

Question 8: Have you completed any legal education or cultural competence training in Aboriginal Law, Indigenous Law or Indigenous peoples of Canada in the past 12 months?

i) Summary of Results:

A total of 50.00% (44 participants) answered YES, while a total of 50.00% (44 participants) answered NO.

Question 9: Further comments, suggestions, or ideas?

i) Feedback

• 5 participants recommended further education and information be provided for NSBS members. Tools such as education sessions and cultural responsiveness sessions were cited as suggestions going forward.

• Guidance for firms on how to implement the Calls to Action was recommended. • Requiring all lawyers to have Mi’kmaq cultural competency and IRS education was

recommended.

5

1

TRC Working Group Community Gathering

July 11, 2019 Develop a FN specific cultural competency course

• The NSBS should offer a designation before someone can work with FN • Could have a certification that could be required • Must have a way to demonstrate they have met certain criteria • Develop a 3-day cultural program (MFCS already has one)

o Course should include: FN History and values FN concepts around “time”, “waiting”, the meeting starts when everyone

arrives How to communicate

o If you do not know the culture, you won’t understand the law and how it applies to FN • Could be mandatory to take within a 5-year period

What do lawyer need to know …

• Need to know the HISTORY…all of it! o The history of the people and the land around it o They should know why things are they way they are o Need to understand what it means to be an “owned people” o How the communities work and the politics

• Intergenerational trauma o where it comes from o how it affects community members, families and communities as a whole o The connection between trauma and emotional regulation skills

• Need to understand the collectiveness of our being o We are a collective community and society o Need to understand what it means to live as a collective – not take or have more then

other people • The language and the differences between the Mi’kmaq and English languages

o That they should access translators even if the person speaks English, due to the differences in the language.

• That the communities are not all the same. Each community is different • The need to know the cultural practices … all of it!

o They should have an understanding of the ceremonies and their purpose. Layers should know what their recommendations are.

o Need to understand the value systems – the helping nature o Our values on the land and how they infuse everything o The importance of relationships (and repairing relationships) within the family and the

community • Need to dispel the myths about how FN get everything for free, etc. • Need to understand that trust has to be rebuild, trust in the law, in the justice system, in the

government • Lawyers need to understand the role of law in oppressing Indigenous peoples

6

2

• Lawyers need to understand how institutions have been used as a weapon to take things away from us

• Understand traditional teachings on proper social behaviour (should include teachings on humility – it is not about being above – we are all apart

• Lawyers should know the Indigenous resources, services and programs in the province, both on- and off-reserve.

o Lawyers need to know where to find information on community resources o They should get to know the community and the services the community can offer

• Lawyers need to know who the Chiefs are What can the NSBS and lawyers can do …

• Develop relationships – Be a part of things and go into the community • Be present in the community • Build trust and be aware of the intuitions of oppression • We need Indigenous lawyers visible in the community

o Go into the community and present on being a lawyer and what it is and all the different things lawyers can do. Could attend career fairs, job fairs

• Develop (or strengthen) a mentoring program for Articling Clerks • NSBS could go into the JR and high schools

o Present on all things lawyers can do o Have a mentoring program with a high school student where they go work for a lawyer

for a bit o Host a mock trial or debate

• Create a rule that if someone is going to sit on a complaints board they must demonstrate/prove that they have met a set of cultural competence standards, CPD hours or has the certification

• Learn the culturally appropriate way to give and accept help • Complete a part of their CPD or Articling in the community with an Indigenous lawyer

What can be developed to support lawyers …

• Web based courses on basic cultural competencies • A spot where lawyers can find info on up-coming Indigenous conferences they can attend and

track as part of a CPD requirement • Encourage Mi’kmaq law firms • Develop a course that takes place in the community or out on the land as a cohort

Access to justice issues

• Need transportation to court services

7

Members of the TRC Working Group include (Names in red are new for Council approval.):

• Ella Paul, Millbrook Mi’kmaw Community Elder;

• Heather McNeill, Q.C., Kwilmu’kw Maw-klusuaqn: Mi’kmaq Rights Initiative;

• Tuma Young, QC., member of REC and Council;

• Jamie Vacon, Nova Scotia Legal Aid;

• Mike McDonald, Private Practice;

• Darryl Tracey, Mi’kmaw Legal Support Network;

• Tanisha Blackmore, Solicitor Legal Services DOJ

• Victor Carter-Julian, Private Practice

• Dakota Bernard, Law Student;

• Armond Paul, Articling Clerk;

• Madison Joe, Articling Clerk;

• Angelina Amaral, Chair;

8

COMMITTEE WORK PLAN AND PROGRESS REPORT 2020-2021

1

TRC Working Group

Committee Mandate and Responsibilities Mandate: The TRC Working Group advises, monitors and supports Council in the work and governance of the Society on Truth & Reconciliation. The TRC Working Group is established with a mandate to make recommendations to the Council on a response to the Calls to Action. In developing recommendations for consideration by the Council, the TRC Working Group will consider the role of the NSBS in responding to the Calls to Action and the value in supporting any activities the NSBS may undertake.

Responsibilities:

• Develop recommendations on a response to Calls to Action 27 and 28, as its first priority given their urgency and relevance to the regulation of the legal profession;

• Facilitate the exchange of information to the NSBS members about NSBS initiatives related to the Calls to Action and the initiatives of other relevant stakeholders;

• Develop annual work plans and priorities for review and support of Council; • Work with other relevant NSBS Committees and the County Bar Associations to develop a

strategy as to how the NSBS members should receive cultural competency training and education, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law and Aboriginal-Crown relations, as recommended in Call to Action 27;

• Consider actions the NSBS can take to support the establishment and incorporation of Indigenous law and languages in the Nova Scotia legal profession, including Mi’kmaw Elder participation and consultation;

• Evaluate and consider actions the NSBS can take to support Indigenous lawyers and law students, and work towards having the NSBS membership reflect the Indigenous population of Nova Scotia;

• Work with Indigenous communities to access and promote Indigenous laws, legal traditions and knowledge to be shared with the NSBS membership;

• Identify challenges faced by Indigenous peoples in accessing justice and appropriate legal counsel, by providing recommendations to relevant stakeholders on remediating the gap in access to legal services;

• Engage Indigenous members of the NSBS and Indigenous law students in the work of the TRC Working Group; and

• Work in partnership to build relationships with the Schulich School of Law, as the law school works on their activities in relation to Call to Action 28.

Working Group Chair: Angelina Amaral

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

9

COMMITTEE WORK PLAN AND PROGRESS REPORT 2020-2021

2

Matters assigned to Committee by Council’s Activity Plan

To advise and support Council in their work and governance of the Society on Truth & Reconciliation.

Details for each Project or Initiative 1.

Name of initiative: Research

Goal and outcome of initiative: To finalize the TRC Action Plan for Council developed from the information gathered throughout the 2019 environmental scan activities. To explore and research identified initiatives and priorities identified in the 2020 TRC Lawyers survey results and First Nations community engagements, and other relevant stakeholders. To explore how to create an L.nu Bar, which would include the regulatory aspects and licensing processes. To explore the development of mandatory cultural competence training by looking at how other jurisdictions that have implemented mandatory culturally competency training for their members. The focus of the research would be to look at best practices, lessons learnt and possible pit fall, and how to motivate lawyers to participate in the training.

TRC Lead: All Committee members Timeframe for completion: On-going

Resources required (volunteer, staff):

2. Name of initiative: Council Education Series

Goal and Outcome of Initiative: To have up to two speakers a year present to Council.

10

COMMITTEE WORK PLAN AND PROGRESS REPORT 2020-2021

3

To increase Councils knowledge and understanding by coordinating an educational series for Council. Presentations will build upon previous sessions and the identified needs and priorities for Council. Each session will be followed by a debriefing session. To coordinate a speakers list of Indigenous and non-Indigenous presenters that will identify their areas of knowledge and resource materials, which may be shared with the public, the Legal Information Society of Nova Scotia, the courts of Nova Scotia and the NSBS Library.

TRC Lead: All Committee members Timeframe for completion: On-going.

Resources required (volunteer, staff): Administrative support. Availability of Council for about half-a-day per session. Presenter costs

3. Name of initiative: Education and Credentials

Goal and Outcome of Initiative: Ensure members of the NS Bar are competent when they are representing an Indigenous client, organization or community, by researching and developing guidelines and best practice standards. To work with relevant NSBS Committees that work with standards regarding Family Law, Criminal Law, Wills and Estates, Real Estate, Ethics, Education and Credentials, etc. to begin identifying areas of basic competency development and begin working through what level of cultural and legal competence is needed. To work toward the development of an Indigenous Mentoring Program for Mi’kmaq and Indigenous articling clerks and new lawyers. To identify resources and communications pieces that can be developed to increase our members competency levels and to identify the best way to bring this information to lawyers (mandated, voluntary, mix bag). To engage in a review of the Indigenous content of the Bar course, and effective methods of testing Indigenous content (localized vs CEPLED) and incorporating Indigenous content into the Bar course.

TRC Lead: Jamie Vacon and Tanisha Blackmore

11

COMMITTEE WORK PLAN AND PROGRESS REPORT 2020-2021

4

Timeframe for completion: On-going

Resources required (volunteer, staff): Administrative support. Meeting space and catering for up to 15 people. Travel costs for two (mileage and hotel), location of meetings may vary from Halifax to Sydney.

4. Name of initiative: Building Relationships

Goal and outcome of initiative: To engage in partnerships with, and to support, the Schulich School of Law and law Firms in Nova Scotia in various initiatives and activities (such as research and resource development) that involve the implementation of the TRC Calls to Action. To engage the First Nations and Indigenous communities in Nova Scotia in the development of this work through partnerships, hosting gatherings and shared initiatives.

TRC Lead: Heather McNeill, QC and Victor Carter-Julian Timeframe for completion: On-going

Resources required (volunteer, staff): Administrative support.

5. Name of initiative: Revive the Eastern Door Indigenous Bar Association

Goal and outcome of initiative: To engage the Indigenous Bar of NS in developing a strategic plan for reviving the Eastern Door Indigenous Bar Association. To host a series of discussions to determine the level of interest and a strategic direction for reviving the Eastern Door.

TRC Lead: Tuma Young Timeframe for completion: On-going

Resources required (volunteer, staff):

12

COMMITTEE WORK PLAN AND PROGRESS REPORT 2020-2021

5

Administrative support. Meeting space and catering for appx. 25 people. Larger gathering space for up to 25 Mi’kmaq and Indigenous Lawyers in Nova Scotia.

Additional Comments on Committee’s Plans or Progress

13

REPORT

FROM: Truth and Reconciliation Commission Calls to Action Advisory Committee

TO: Federation Executive DATE: May 13, 2020 SUBJECT: Recommendations for Responding to the TRC

BACKGROUND

1. In December 2016 Council of the Federation approved a motion to establish a special committee comprised of Indigenous and non-Indigenous representatives to develop recommendations on how to respond to the Truth and Reconciliation Commission’s (“TRC”) Calls to Action. The TRC Calls to Action Advisory Committee (the “Advisory Committee”) was established in 2017. It was given a broad mandate to develop a response to the Calls to Action beginning with Calls to Action 27 and 28 given their urgency and relevance to the legal profession. 2. The Advisory Committee is composed of eight members representing law societies, the legal academy and Indigenous organizations:

• Karen Wilford (Co-Chair) • Tuma Young (Co-Chair) • Dianne Corbiere • Dr. Val Napoleon • Paul Okalik • Dean Lawton • Stephanie Lisa Roberts • Stuart Wuttke

3. It is supported by Frederica Wilson and Kiara Paylor of the Federation, and by Andrea Hilland, Policy Counsel at the Law Society of British Columbia.

AT A GLANCE: FOR INFORMATION

The Truth and Reconciliation Commission Calls to Action Advisory Committee has developed a series of recommendations in response to the Calls to Action for consideration by the Council of the Federation. The recommendations address actions by the Federation and the law societies.

14

2

4. In accordance with its mandate, the Advisory Committee has considered Calls to Action 27 and 28, and the overall goals of the TRC. Call to Action 27 speaks to the competency of legal professionals in serving Indigenous peoples:

We call upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, which includes the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights and anti-racism.

5. While the language of Call to Action 27 specifically references the Federation, it is understood that individual law societies are directly responsible for training and education of future legal professionals. The Advisory Committee’s mandate (see Appendix A) specifies that its work complement, and not duplicate, those efforts. As a result, the committee gathered information about how law societies have been responding to the TRC and considered how it may support or guide the provincial and territorial approaches. It also considered the role and responsibilities of the Federation in responding to the TRC. 6. Call to Action 28 speaks to the need for law schools to ensure students are educated about Indigenous peoples and the law. It mirrors the knowledge and skills referred to in Call to Action 27. The Federation’s interest in Call to Action 28 is tied to its oversight of the National Requirement1 and its concern for strengthening the continuum of education that exists between law school and legal practice. 7. The recommendations put forward in this report reflect a broad interpretation of the goals of the TRC Calls to Action. They also suggest an expanded role for the Federation and legal regulators in advancing reconciliation with Indigenous peoples across Canada. RATIONALE 8. The Advisory Committee recommends a path to reconciliation that emphasizes enhancing knowledge, sharing information, encouraging ongoing dialogue and relationship-building, and promoting reflection on individual and institutional levels. The Advisory Committee recognizes that cultivating an understanding of the fact that Canada is a multi-juridical country in which Indigenous legal orders, the common law and the civil law all have an important place is integral to transforming the relationship between the legal profession and Indigenous peoples in Canada.

9. “[L]awmakers, judges and lawyers are the gatekeepers to the justice system. Until they understand the truth of our history and their role in making change, our country will not be able

1 The National Requirement was developed by the Federation in consultation with law societies and came into force in 2015. It is the national standard for common law programs across Canada and specifies the competencies that all graduates must have to be eligible to enter the bar admission programs of law societies in common law jurisdictions. The National Requirement also outlines the learning resources that law schools must provide to their student body. It was developed to harmonize the requirements for entry to bar admission programs and also applies to internationally trained candidates going through the National Committee on Accreditation.

15

3

to move forward.”2 These are the words of Senator Murray Sinclair, former Chair of the TRC, from an opinion piece for the Globe and Mail on November 14, 2019. His statement follows his observation that few lawyers he speaks with across the country have read the TRC Report. His words underscore the important role that law societies and law schools have to play in educating current and future legal professionals. In the same piece Senator Sinclair also speaks of the progress that has been made and the work that lies ahead. The Advisory Committee’s recommendations provide a path forward, building on the work that has already been done. 10. The Advisory Committee’s recommendations set out below and summarized in Appendix B are responsive to its mandate, which takes into consideration the Federation’s role, its unique relationship with law societies and the legal academy, and their shared responsibility for responding to the TRC. The Advisory Committee also considered the public’s perception of the legal profession’s progress in responding to the TRC, and how the Federation could promote greater accountability and transparency.

PART 1: RECOMMENDATIONS FOR THE FEDERATION 11. The Advisory Committee proposes that the Federation adopt a framework that would apply to all aspects of the Federation’s work. It would be rooted in recognition of the significance of Indigenous legal orders, legal principles, perspectives and experiences of Indigenous peoples in Canada’s legal fabric.

Adopt a Formal Statement of Commitment 12. At the heart of the framework, the Advisory Committee recommends the development of a formal statement of commitment to reconciliation addressing the Federation’s role and fostering this commitment in all aspects of its work. In developing such a statement, the Federation should consult with national Indigenous organizations to ensure its thoroughness. The Advisory Committee recommends the statement be made publicly available to ensure both transparency and accountability, in line with what other public organizations have done3. 13. The Advisory Committee has also identified specific actions the Federation could take to fulfill its commitment, which are outlined below. These actions are intended to form the beginnings of a journey towards reconciliation that will evolve over time. The Federation is encouraged to reflect on and review these actions regularly to assess whether they are achieving the intended goals and to consider what other actions may be taken.

Adopt Guiding Principles

14. The Advisory Committee recommends the adoption of Guiding Principles to inform and apply to all aspects of the Federation’s existing and future work. A proposed set of broadly drafted Guiding Principles is attached in Appendix C. The principles reflect the Advisory Committee’s discussions about what it considers necessary to promote reconciliation to the

2 Globe and Mail (November 14, 2019) https://www.theglobeandmail.com/business/commentary/article-the-legal-industry-needs-to-understand-the-truth-of-canadas/ 3 In 2016, the Government of Ontario released a formal commitment to reconciliation with Indigenous peoples (see their website), and in 2018 the University of Regina released a formal commitment and accompanying guide.

16

4

fullest extent. They are broad in nature to allow flexibility in their interpretation and application to the Federation’s work. 15. The following is a non-exhaustive list of how the principles might apply:

a) Guiding the work of Federation committees (for example the Standing

Committee on the Model Code, the Standing Committee on National Discipline Standards, the Public Affairs and Government Relations Committee) and any others where appropriate.

b) Informing existing or future Federation policies and business practices.

c) Influencing the training needs of staff and/or Federation leadership.

d) Fostering, assisting and guiding the cultivation of essential stakeholder

relationships.

e) Inspiring the creation of new Federation initiatives. 16. This approach was inspired, in part, by the decision of some law societies4 to develop strategic plans or frameworks aimed at embedding the spirit of reconciliation in their organizational structures. The Advisory Committee considers this approach to be appropriate for the Federation given its role as the national coordinating body of Canada’s law societies.

Become a National Information Hub for Sharing TRC-related Initiatives 17. The Advisory Committee recommends that the Federation position itself as a national, public hub for information about what law societies are doing in response to Call to Action 27. This recommendation aligns with the Federation’s current strategic objective of information sharing, and mirrors the approach being applied to other significant national initiatives (e.g. anti-money laundering and terrorist financing). The Federation may wish to extend an offer to the legal academy to host information about law school initiatives as well if no initiative yet exists for Call to Action 28. 18. A national information hub would help law societies stay informed of each other’s work and facilitate the sharing of resources. It would also provide a convenient source of information for the public on the many activities in which law societies are engaged, demonstrating the progress being made. In developing a national hub, the Federation will want to consider formal mechanisms for gathering this information to ensure its currency and accuracy.

19. The Advisory Committee recognizes that the Federation is already engaging in information sharing on the activities of law societies, law schools and other justice system participants through a designated Reconciliation page on its internal Intranet. The Committee considers it important for these initiatives to be shared publicly and recommends that the Federation Council consider what information is made available to the public.

4 See the Law Society of Ontario’s Indigenous Framework, the Law Society of British Columbia’s Truth and Reconciliation Action Plan, the Law Society of New Brunswick’s Pathway to Reconciliation Policy, and the Law Society of Manitoba’s Road Map for Increasing Cultural Competency.

17

5

Build Relationships with Indigenous Stakeholders

20. The Advisory Committee recommends the Federation explore and promote opportunities for building relationships with national Indigenous organizations. The Federation actively engages with stakeholders on a variety of issues, and it advocates on behalf of law societies when the situation warrants it. The Federation’s ongoing engagement with the Canadian Bar Association (“CBA”) and the federal Department of Justice are examples of such relationships. Building relationships with national Indigenous organizations is a necessary addition to the Federation’s activities. 21. The Advisory Committee recognizes that this relationship building has already begun; in the fall of 2019, then President Ross Earnshaw accepted an invitation to attend the Indigenous Bar Association’s (“IBA”) annual conference. The Advisory Committee urges the Federation to build on its relationship with the IBA, and to explore other opportunities for dialogue, relationship-building and/or collaboration with national Indigenous organizations or groups that may be appropriate. Networking at a national level is a necessary and valuable complement to any engagement, relationship-building or collaboration occurring among provincial and territorial law societies and their local stakeholders.

22. As part of this recommendation the Federation Council will want to consider the types of engagement activities or collaborative opportunities that could form part of this commitment.

Recommendation 1: That the Federation make a formal statement of commitment to reconciliation with Indigenous peoples in Canada as part of its framework for responding to the Truth and Reconciliation Commission of Canada, and that it share that commitment publicly. To demonstrate this commitment, it is recommended that the Federation: • Adopt and implement the Guiding Principles attached as Appendix C to inform all aspects of

the Federation’s work and operations. • Become the national hub for gathering and sharing up-to-date information about what law

societies and law schools are doing in response to the TRC. • Explore and promote opportunities for building stronger relationships with the Indigenous Bar

Association, its representatives and any other national Indigenous organizations it considers appropriate.

PART 2: RECOMMENDATIONS FOR LAW SOCIETIES 23. The Advisory Committee acknowledges and commends the diversity of approaches to reconciliation, particularly Call to Action 27, that law societies across Canada are developing and implementing. Many law societies have advisory committees that are already actively working on reconciliation initiatives, including providing guidance on educational activities for both the profession at large and law society staff and leaders. The Advisory Committee supports

18

6

this diversity and recognizes the importance of each law society’s response reflecting the historical, social, geographical and legal realities of the Indigenous peoples within their borders. 24. At the same time, the Advisory Committee suggests some level of national cohesiveness would be appropriate in light of the shared public interest mandate of the law societies and the national mobility of lawyers. The recommendations below seek to strike a balance between respecting jurisdictional diversity and striving for some level of cohesion. It is the hope of the Advisory Committee that for some law societies these recommendations will represent a guidepost for developing a response; while for others they may reinforce efforts already underway. Ultimately the Advisory Committee seeks to advance the national dialogue on responding to the TRC and foster greater coordination and supports.

Develop a Formal Commitment and Framework 25. Some law societies have already demonstrated their commitment to reconciliation by releasing formal statements, amending their strategic plans, and/or adopting policies or frameworks to guide their regulatory responses. The Law Society of Manitoba developed a Roadmap to realise the commitments to reconciliation set out in its strategic plan, and to guide its efforts in increasing cultural competency in the delivery of legal services province-wide. The Law Society of New Brunswick adopted a Pathway to Reconciliation policy that specifies both its commitment to reconciliation and its actions in responding to the TRC. The law societies in British Columbia and Ontario have taken similar action. These initiatives provide evidence of the seriousness with which these law societies take their role in working towards reconciliation and provide a model that other law societies might consider. In that vein, the Advisory Committee recommends that the Federation urge those law societies that have not already done so to make a formal commitment to reconciliation. 26. Law societies are also encouraged to consider what concrete steps they can take to put their commitment into action if they have not done so already, such as adopting a framework or plan that outlines the changes they intend to implement. To that end, law societies that have not already done something similar are encouraged to adopt the Guiding Principles attached as Appendix C as a framework to guide their work on reconciliation. Recommendation 2: That the Federation urge all law societies to make a formal commitment to reconciliation and develop a framework or steps for putting that commitment into action. Law societies may consider adopting the Guiding Principles in Appendix C, if they do not yet have a framework in place, to guide their work on reconciliation.

Adopt a Broad Approach to Reconciliation 27. Call to Action 27 speaks to enhancing the cultural competency of members of the legal profession. As discussed above, several law societies have taken a broader approach to responding to the Calls to Action. The Advisory Committee endorses this approach. Law societies are encouraged to consider the following recommendations as part of their efforts to foster reconciliation.

19

7

Critically Review Regulatory Processes from Indigenous Perspectives

28. The Advisory Committee encourages law societies to engage in a critical review of all aspects of their regulatory practices from Indigenous perspectives. Doing so will foster an environment of inclusivity, understanding and respect towards Indigenous peoples and may result in significant policy and operational changes. It may also set an example for legal professionals by reinforcing the importance of making space for Indigenous legal orders, traditions and perspectives in the practice of law. 29. Some law societies have already conducted such reviews. For example, the Law Society of Ontario examined how its disciplinary tribunal addresses complaints involving Indigenous persons. The 2018 report of the Review Panel on Regulatory and Hearing Processes Affecting Indigenous Peoples (“Keshen Review”)5 included a number of recommendations for improvement. These recommendations now form part of the LSO’s broader Indigenous Framework. Recommendation 3: That the Federation urge law societies to critically examine their regulatory processes and structures to consider how they may be more inclusive of the needs and perspectives of Indigenous peoples, as well as how they may adversely impact Indigenous peoples.

Enhance the Competency of Law Society Staff and Leadership

30. The Advisory Committee encourages law societies to lead by example by raising their own level of competence in serving Indigenous peoples. One way to do this is by ensuring law society leadership and staff are provided with opportunities for ongoing learning and dialogue. For example, following a work plan developed by its Indigenous Initiatives Liaison, the Law Society of Alberta made staff and leader education a priority. Staff and benchers were provided with opportunities to participate in blanket exercises and other forms of cultural awareness training, weekly lunch-and-learn events, and cultural learning opportunities (e.g. beadwork). Enhancing knowledge, awareness and understanding within the law societies could improve their service delivery to the public. Recommendation 4: That the Federation urge law societies to provide ongoing opportunities for competency and awareness training for law society leadership and staff.

5 The review arose from concerns over the handling of a series of complaints against a lawyer acting for Indigenous clients involved in the Residential Schools Settlement agreement. See Law Society of Upper Canada v Keshen 2017 ONSLTH 90

20

8

Invest in Building Relationships with Local Organizations

31. The phrase “nothing about us, without us” widely used by Indigenous groups across Canada in different contexts is applicable to any initiatives law societies take on in relation to the TRC. 32. Law societies are urged to build relationships with, and seek guidance from, local Indigenous organizations and Indigenous members of the bar. Many law societies are already taking these steps. the Advisory Committee encourages all law societies to find opportunities for including local Indigenous groups in their reconciliation work.

33. Fostering trust and establishing connections with local groups that are also involved in the process of reconciliation is essential to any meaningful action taken by law societies. To complement and support the Federation’s engagement with the legal academy, the Advisory Committee encourages law societies to consider adding discussions about Indigenous cultural competency training to any ongoing or proposed engagement with law schools in their jurisdictions. Recommendation 5: That the Federation urge law societies to continue to build relationships with local Indigenous organizations, the Indigenous bar, and other appropriate groups, including the legal academy, through formal and informal opportunities for collaboration.

Explore Additional Supports for Indigenous Lawyers and Students

34. Some law societies are identifying ways to increase professional and financial supports for Indigenous members of the bar and incoming Indigenous students. For example, the Law Society of Alberta created an Indigenous Law Student Summer Employment Program to assist students of First Nation, Metis or Inuit descent in finding jobs in local firms, to create a support network for Indigenous lawyers, and increase the visibility of the students. The Barreau du Québec has implemented a mentorship and bursary program for Indigenous students entering the École du Barreau. The Law Society of British Columbia also has scholarships for Indigenous students. 35. Some law societies, including the Law Society of Alberta and the Nova Scotia Barristers’ Society, have also launched initiatives to identify ways to support Indigenous lawyers. 36. Law societies are urged to engage with their local Indigenous bars, if they have not done so already, to gain insight into any challenges they are facing as members and how law societies might better support them. Exploring these opportunities also complements the Advisory Committee’s recommendation to continue to build relationships with local Indigenous organizations.

21

9

Recommendation 6: That the Federation urge law societies to collaborate with Indigenous organizations, members of the bar and law students to explore opportunities for providing additional supports to Indigenous students and members of the bar.

Ensure Access to a Wide Array of Professional Development Resources

37. The TRC Calls to Action, particularly Calls 27 and 28, highlight the need for all legal professionals to raise their awareness and competence as it relates to Indigenous peoples. With law schools adding to their curriculum, many recent graduates may be entering the profession with a greater understanding of Indigenous peoples, the existence of Indigenous legal orders and the history of colonization. However, a generational gap in knowledge and awareness may exist for lawyers who graduated prior to the release of the TRC report. 38. In December 2019 the Law Society of British Columbia became the first regulator to require Indigenous cultural competency training as part of continuing legal education. In February 2020 benchers of the Law Society of Alberta passed a resolution to create a new CPD program that would include mandatory Indigenous cultural competency training for all lawyers across the province starting in 2021. Other law societies, including the Nova Scotia Barristers’ Society are also considering this approach. The Advisory Committee is of the view that, at a minimum, members of the legal profession in every jurisdiction should be encouraged to undertake training that will enhance their knowledge and understanding of Indigenous peoples and legal orders. 39. The Advisory Committee considered what it means to be “competent” and what type of training would enhance one’s competence. It agreed that given the range of practice areas a one-size-fits-all approach would not make sense. While all members of the legal profession need a baseline knowledge of the issues outlined in Call to Action 27, including the existence of Indigenous legal orders, some – for example those working in the criminal justice system or on child welfare matters – require expanded knowledge and understanding. 40. Adopting an approach to Indigenous cultural competency that recognizes a continuum of knowledge would be consistent with the ethical obligations of legal professionals. The Model Code of Professional Conduct defines a “competent lawyer” as one who recognizes their limitations in handling a matter and takes the necessary steps to ensure that their client is appropriately served.6 To assist legal professionals in meeting their professional obligations towards Indigenous peoples, law societies are strongly encouraged to ensure that a spectrum of resources are available that will promote knowledge and competence-building at all levels. 41. The Advisory Committee notes that it is generally recognized that competence requires more than a single course or workshop. Some observers suggest that approaching reconciliation in this way could undermine its importance and lead to a perception of legal professionals “ticking a checkbox”. Some academic literature also suggests that focusing on individual obligations ignores the systemic inequalities that may be embedded within today’s

6 See section 3.1-1(h)

22

10

professional legal culture and institutions.7 For these reasons, the Advisory Committee encourages law societies to interpret Call to Action 27 broadly. 42. The Advisory Committee acknowledges there is already an array of TRC learning resources, practical tools and training available across the country, which could be shared more broadly if the Federation were to become a national information hub. Facilitated sharing would support law societies with fewer resources or capability to develop their own materials. The Guiding Principles developed for the Federation may also provide some guidance for developing materials. 43. The Advisory Committee thinks it essential that training be developed in consultation with local Indigenous organizations. The Bimickaway curriculum offered by the Ontario Ministry of the Attorney General to Public Service employees since 2017 is an example of this approach. The curriculum was borne out of meetings between Indigenous communities and the Debewewin Implementation Committee responsible for responding to the independent 2013 report First Nations Representation on Ontario Juries by the Honorable Frank Iacobucci. The Ministry established an Elders Council to review the information collected and advise on how it could be used as a teaching tool. The result was a five-module course that is taught using an Indigenous Methodology (i.e. delivered by ministry staff with Elders, use of story-telling and circle discussions). The Ministry has also partnered with other legal organizations to deliver the training, including with the Law Society of Ontario.

44. The approach of the Ontario Attorney General highlights the importance of the involvement of Indigenous peoples in the development and delivery of cultural competency training. The Advisory Committee recommends law societies follow this approach. Recommendation 7: That the Federation urge law societies to • Consider mandatory Indigenous cultural competency training. • Ensure that legal professionals in their jurisdictions are provided with access to educational

opportunities to enhance their knowledge and understanding of Indigenous peoples, the legacy of colonization and the existence of Indigenous legal orders.

• Ensure the availability of a continuum of educational opportunities and resources to recognize the diversity of legal practices and Indigenous peoples and legal orders within a given jurisdiction.

• Collaborate with Indigenous organizations in the development and delivery of cultural competency training or rely on training already developed by such organizations.

Bar Admission Courses and Materials

45. In 2016 law societies and law schools came together at the Federation’s annual conference to discuss the continuum of legal education from law school to practice. That

7 See for example Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence, Canadian Bar

Review Vol. 97 Jan 2020; https://cbr.cba.org/index.php/cbr/article/view/4558/4465

23

11

continuum is especially relevant to educating legal professionals about the Calls to Action and how to competently serve Indigenous clients. 46. Despite curricular innovations over the past five years, there is merit in law societies providing supplementary education through the licensing process. This is especially important given the diversity of approaches taken by law schools to Call to Action 28 and education on Indigenous legal orders, colonization and its ongoing legacy. It is also important to note that the National Committee on Accreditation, which assess the credentials of internationally trained lawyers and students, produces the largest number of applicants to common law bar admission programs per year. Although these candidates must demonstrate competency in the same substantive law subjects as graduates of Canadian law school programs, their education and experience relating to Indigenous peoples, Indigenous legal orders, and current legal issues impacting Indigenous people are likely to be limited. 47. The Advisory Committee recommends that law societies be encouraged to review their admissions curriculum and licensing requirements and make modifications to ensure candidates receive the training called for by the TRC, including education about Indigenous legal issues and legal orders. This recommendation is one way to ensure all members of the profession have at least a baseline knowledge when they enter practice. 48. The Advisory Committee encourages law societies to consult local Indigenous lawyers, and the academy to identify areas in their bar admissions programming needing modification, and the additional tools or training that would supplement student learning. Recommendation 8: That the Federation urge law societies to review their admissions curriculum and licensing requirements and make necessary modifications to reflect the spirit and intent of the TRC Calls to Action.

PART 3: RECOMMENDATIONS FOR THE FEDERATION’S RELATIONSHIP WITH THE LEGAL ACADEMY 49. The Advisory Committee recognizes and supports the creative responses to Call to Action 28 the legal academy is implementing across the country. The legal academy has demonstrated leadership in this area, and the Advisory Committee has benefitted from learning about its progress.

The National Requirement 50. The Federation’s interest in Call to Action 28 was initially grounded in its oversight of the National Requirement. The Advisory Committee engaged the legal academy early on to learn how law schools were responding to the Call to Action and were impressed to discover a diverse array of learning opportunities and supports. In 2018 the Advisory Committee developed a proposal for engaging with the legal academy about how to collaborate nationally and how to support their efforts in responding to Call to Action 28. The proposal also called for an

24

12

amendment to the National Requirement that would formalize law schools’ commitment within a five-year time span. A special Working Group comprising members of the Advisory Committee, the Common Law Program Approval Committee (“Approval Committee”) and the (now disbanded) National Requirement Review Committee engaged members of the Canadian Council of Law Deans (“CCLD”) in a series of discussions about the proposal between 2018 and 2019. It became evident that while the academy encourages collaboration, it had serious concerns about amending the National Requirement. 51. Members of the Federation’s Approval Committee, responsible for evaluating law program compliance with the National Requirement, also raised concerns about whether that committee would be able to effectively evaluate whether a law school’s initiative(s) were meeting a TRC-specific requirement.

52. The Advisory Committee does not recommend that the Federation pursue an amendment to the National Requirement.

Focus on Collaboration 53. The Advisory Committee sees great value in exploring other opportunities for engagement and collaboration with the legal academy in relation to the TRC. Discussions with the CCLD reinforced the importance of, and need for, information sharing among law schools, something with which the Federation might assist. It was suggested, for example, that the Federation and the legal academy might collaborate on organizing a national conference of Indigenous academics to discuss approaches to including Indigenous curriculum in law school. 54. The legal academy is especially interested in learning about the progress law societies are making in relation to Call to Action 27 and emphasized the importance of information sharing between law societies and law schools. The CCLD suggested establishing a joint working group of representatives of the legal academy and the Federation to discuss educational initiatives in response to the Calls to Action. In addition to sharing information, a joint working group may provide an informal opportunity to monitor the progress of both the legal academy and law societies, encourage responsiveness, and identify other supports that might aid in their progress. The Advisory Committee encourages an ongoing collaborative approach with the academy in advancing Calls to Action 27 and 28. Recommendation 9: That the Federation not pursue an amendment to the National Requirement, focusing instead on: • facilitating ongoing dialogue and collaboration with the legal academy, • identifying effective methods for sharing information about law school initiatives and

resources among law schools, and between law schools and law societies, and • considering other opportunities for collaboration (e.g. national conference) that may be

appropriate

25

13

CONCLUSION 55. The recommendations outlined in this report reflect the views of the Advisory Committee on the actions the Federation and the law societies should take to respond to the TRC Calls to Action 27 and 28 to make meaningful contributions to reconciliation. The Advisory Committee recommends that Council be asked to approve the recommendations. The members of the Advisory Committee remain ready to assist with implementation of the recommendations as may be requested.

26

1

Terms of Reference

1. The Federation of Law Societies of Canada (the “Federation”) establishes the Truth and

Reconciliation Commission Calls to Action Advisory Committee (“the Advisory Committee”).

Mandate and Process

2. The Advisory Committee is established with a mandate to make recommendations to the

Council of the Federation (“Council”) on a response to the Truth and Reconciliation

Commission of Canada’s Calls to Action (“Calls to Action”). In developing recommendations

for consideration by the Council of the Federation, the Advisory Committee will take into

account the role of the individual law societies in responding to the Calls to Action and the

value in complementing any activities the law societies may undertake. In particular, the

Advisory Committee will

a) Facilitate the exchange of information to the law societies about law society iniatives

related to the Calls to Action and the initiatives of other stakeholders

b) Develop recommendations on a response to Calls to Action 27 and 28 as its first

priority given their urgency and relevance to the regulation of the legal profession;

c) Work with the National Requirement Review Committee to consider whether the

National Requirement should be amended to add a requirement that graduates

receive cultural competency training and education on the history and legacy of

residential schools, the United Nations Declaration on the Rights of Indigenous

Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown

relations as recommended in Call to Action 28;

d) Consider actions the Federation can take to support the establishment of Indigenous

Law Institutes; and

e) Review other relevant Calls to Action and make such recommendations to the

Council in relation to them as the Advisory Committee considers appropriate.

3. The Advisory Committee will provide a report in advance of each meeting of the Council,

with the first report being submitted for the March 2017 Council meeting.

Advisory Committee Structure

4. The Advisory Committee membership should reflect a diversity of experiences and

knowledge relevant to the issues under consideration, including knowledge of the history,

cultures and rights of Indigenous peoples, Indigenous law, the Canadian justice system,

legal education, and regulation of the legal profession.

APPENDIX A

27

2

5. The Advisory Committee will be broadly regionally representative and will be comprised of

not more than eleven members as follows:

a) Five members drawn from the Council, past or present law society leadership or law

society senior staff, one representing each of the five regions across Canada

(Atlantic, Quebec, Ontario, West and North).

b) One to two members with experience in the legal academy in Canada.

c) Three to four members representing First Nation, Métis and Inuit communities or

organizations.

6. The following qualifications will be represented on the Advisory Committee, although it is not

necessary that each member possess all the qualifications:

a) Institutional knowledge of law societies and the Federation and an understanding of

regulation of the legal profession and law society mandates.

b) Experience with and/or knowledge of the history and legacy of residential schools.

c) Familiarity with and an understanding of Indigenous law.

d) Familiarity with and an understanding of Constitutional law as it relates to Aboriginal

Peoples.

e) Familiarity with and an understanding of Indigenous cultures.

f) Familiarity with and an understanding of broader justice issues impacting First

Nation, Métis or Inuit people.

g) Experience in the legal academy.

h) Experience in engaging with a diversity of stakeholders.

7. The Advisory Committee will have two co-chairs, one chosen from the Council or law society

representatives, the other chosen from the representatives of Indigenous communities or

organizations.

Outside Participation

8. To fulfill its mandate, the Advisory Committee may seek the assistance of and engage with

outside parties including representatives of national Indigenous organizations and

communities, law societies, the legal academy, the legal profession, other Federation

committees (such as the Law Societies Equity Network) and other justice-system

stakeholders as it considers appropriate.

Resources

9. To ensure that the Advisory Committee is able to carry out its mandate effectively, it should

receive appropriate staff and financial resources.

28

APPENDIX B

Summary of TRC Calls to Action Advisory Committee Recommendations

Recommendation 1: That the Federation make a formal statement of commitment to reconciliation with Indigenous peoples in Canada as part of its framework for responding to the Truth and Reconciliation Commission of Canada, and that it share that commitment publicly. To demonstrate this commitment, it is recommended that the Federation: • Adopt and implement the Guiding Principles attached as Appendix C to inform all aspects of

the Federation’s work and operations. • Become the national hub for gathering and sharing up-to-date information about what law

societies and law schools are doing in response to the TRC. • Explore and promote opportunities for building stronger relationships with the Indigenous Bar

Association, its representatives and any other national Indigenous organizations it considers appropriate.

Recommendation 2:

That the Federation urge all law societies to make a formal commitment to reconciliation and develop a framework or steps for putting that commitment into action. Law societies may consider adopting the Guiding Principles in Appendix C, if they do not yet have a framework in place, to guide their work on reconciliation.

Recommendation 3:

That the Federation urge law societies to critically examine their regulatory processes and structures to consider how they may be more inclusive of the needs and perspectives of Indigenous peoples, as well as how they may adversely impact Indigenous peoples.

Recommendation 4:

That the Federation urge law societies to provide ongoing opportunities for competency and awareness training for law society leadership and staff.

Recommendation 5:

That the Federation urge law societies to continue to build relationships with local Indigenous organizations, the Indigenous bar, and other appropriate groups, including the legal academy, through formal and informal opportunities for collaboration.

Recommendation 6:

That the Federation urge law societies to collaborate with Indigenous organizations, members of the bar and law students to explore opportunities for providing additional supports to Indigenous students and members of the bar.

29

Recommendation 7:

That the Federation urge law societies to

• Consider mandatory Indigenous cultural competency training. • Ensure that legal professionals in their jurisdictions are provided with access to educational

opportunities to enhance their knowledge and understanding of Indigenous peoples, the legacy of colonization and the existence of Indigenous legal orders.

• Ensure the availability of a continuum of educational opportunities and resources to recognize the diversity of legal practices and Indigenous peoples and legal orders within a given jurisdiction.

• Collaborate with Indigenous organizations in the development and delivery of cultural competency training or rely on training already developed by such organizations.

Recommendation 8:

That the Federation urge law societies to review their admissions curriculum and licensing requirements and make necessary modifications to reflect the spirit and intent of the TRC Calls to Action.

Recommendation 9: That the Federation not pursue an amendment to the National Requirement, focusing instead on: • facilitating ongoing dialogue and collaboration with the legal academy, • identifying effective methods for sharing information about law school initiatives and

resources among law schools, and between law schools and law societies, and • considering other opportunities for collaboration (e.g. national conference) that may be

appropriate

30

APPENDIX C

Guiding Principles for Fostering Reconciliation

1. Actively promote reconciliation

a) Reconciliation is, among other things, a commitment to build trust. Trust encourages an

open and full exchange of ideas, including disagreement, which is an essential part of any resolution or decision-making journey.

b) Reconciliation requires genuine and ongoing dialogue, and active exploration of engagement opportunities with all relevant stakeholders. Ongoing dialogue and engagement are essential for building relationships and demonstrating inclusivity and respect for all participants.

c) Reconciliation requires action at both the institutional and the individual levels. 2. Respect and make space for Indigenous legal orders

a) Reconciliation requires that we acknowledge, respect and understand that Indigenous

legal orders existed prior to the establishment of European systems of law in Canada. b) Reconciliation requires that we make space for Indigenous legal orders, processes and

traditions as part of Canada’s legal landscape, and recognize how such traditions connect to, or diverge from, the common and civil law systems.

c) A legal system that fails to recognize and make space for Indigenous legal orders and the experiences of Indigenous peoples fails to properly serve Indigenous peoples.

d) Like all living legal traditions, Indigenous legal principles are not fixed in time; they must be understood as evolving and changing.

3. Ensure institutional transparency and accountability

a) There are many reasons for Indigenous peoples to distrust the justice system and its

participants, including lawyers and legal education providers. Any work in this area must be transparent and demonstrate that meaningful action is taking place.

b) There must be mechanisms for ensuring the accountability of legal regulators and legal educators in:

o improving the knowledge and competency of legal professionals and students o implementing necessary policy, procedural and/or structural changes to better

reflect and serve Indigenous peoples o making space for Indigenous legal orders in the practice of law o demonstrating active leadership and an ongoing commitment to reconciliation

with Indigenous peoples in Canada

31

4. Respect diversity and jurisdictional differences

a) Reconciliation requires respect for the diversity of Indigenous peoples, experiences, and

legal orders in Canada. b) It is essential to recognize the unique experiences of Indigenous women, including both

historical and contemporary harms caused by colonization. c) The Truth and Reconciliation Commission Calls to Action should be interpreted broadly

to encourage a diversity of responses from legal and justice system stakeholders. d) Reconciliation activities should complement, support and encourage the variety of

responses already occurring within law societies and law schools. 5. Encourage individual and systemic responsibility for reconciliation

a) Reconciliation requires thoughtful reflection and change at both a systemic and an

individual level, including reflection on how one’s own experiences, biases, and

perspectives contribute to the process of colonization. b) Individual members of the legal profession have a responsibility to expand their

knowledge and understanding of Indigenous perspectives and experiences and to take steps to ensure they are not contributing to the harms their Indigenous clients experience when engaging with the justice system.

6. View Competence through Indigenous perspectives

a) Indigenous cultural competency requires an appreciation of the existence and

intersectionality of: o Indigenous worldviews, perspectives, legal systems, laws, etc. o The unique legal context of Indigenous peoples in Canada o The history of colonization of Indigenous peoples in Canada o Systematic discrimination and unconscious bias against Indigenous peoples o Racism experienced by Indigenous individuals o The international legal principles that apply to Indigenous peoples in Canada o Diversity amongst Indigenous populations o Regionally significant information and events

b) The depth of knowledge and understanding required to be competent varies depending on the context. Staff and leaders of justice system organizations and all members of the legal profession require at least a general level of knowledge and understanding. Those working in certain areas, including criminal justice and child protection, require a deeper understanding and awareness.

c) General intercultural competence training or awareness does not sufficiently address the realities, experiences and needs of Indigenous peoples. Indigenous-specific cultural competency or awareness training is required.

d) Becoming culturally competent requires ongoing learning.

32

1

MEMORANDUM TO COUNCIL From: Angela Simmonds & Jane Willwerth, Equity & Access Office Date: September 2, 2020 Subject: Towards a policy decision regarding member cultural competence For: Approval

Introduction Information X

Forwarded to Council by: This memorandum is forwarded to Council by the Equity and Access Office to support Council’s decision-making. Background: The topic of cultural competence, and whether it should be a mandatory part of a lawyer’s continuing competence, has been a longstanding topic of interest for Council. This priority is reflected in Element 9 of the Management System for Ethical Legal Practice and the establishment of a Law Office Management Standard for equity and diversity. Council affirmed this commitment following the release of the Calls to Action of the Truth and Reconciliation Commission of Canada, which called for Law Societies to ensure lawyers receive appropriate cultural competence training. Improving the cultural competence of the Nova Scotia bar has been a priority across several strategic plans. This matter was last before Council at its March 2020 meeting, when a brief memo outlining the steps to making a policy decision regarding mandatory cultural competence was included in its meeting package. A discussion of that memo was tabled for a later meeting due to the pandemic. Related to Council Strategic Goal/Objective: Improving cultural competency is the central tenet of Council’s third strategic goal, which calls for Nova Scotians to be served by a legal profession that is diverse, inclusive and culturally competent. Matters related to cultural competence also appear throughout the first strategic goal, which calls on the Society to regulate the legal profession in the public interest in a proactive, principled and proportionate manner. 33

2

Plan of Action: This section updates and expands on the steps described in the memo provided to Council at its March meeting. It describes each step in detail, identifies roles for staff and Council, and provides timelines where appropriate. Note that the steps are numbered for ease of reference, not necessarily to indicate a sequence.

1. Define foundational understanding of cultural competence: It is well known that one can never be “culturally competent” in an absolute sense, as cultural competence requires constant learning. However, an enforced cultural competence standard would require a clear description of the minimum knowledge or skills that lawyers must have in order to be compliant with the standard. Council must determine what constitutes this foundational understanding. For example, we have made an assumption that components of cultural competence in Nova Scotia must include knowledge of Mi’kmaq and African Nova Scotian history and cultures.

DONE TO DATE: Society staff and the TRC Working Group have provided numerous education sessions on various topics related to equity, inclusion and cultural competence. The Equity & Access Office launched its Equity Lens Toolkit last year, and has delivered several training sessions to members and firms. Council approved an equity & diversity standard in 2016. The Management System for Ethical Legal Practice includes cultural competence elements throughout.

COUNCIL ROLE: Council must establish what defines a “foundational understanding,” and solicit ideas and concerns from the community and from members in their districts to inform this decision.

STAFF ROLE: Staff will fulfill Council instructions to develop educational materials for the membership based on this articulated foundation. TIMELINES: Council should be prepared to approve a definition by its January 2021 meeting.

2. Jurisdictional scanning: Many other jurisdictions are at various stages of

investigation or implementation of a cultural competence requirement. The Society will need to constantly monitor develops across Canada.

DONE TO DATE: Society staff are regularly scanning news and listservs for new developments, and liaising with their counterparts at other Canadian law societies.

COUNCIL ROLE: Council should consider the approaches used in other jurisdictions to make informed decisions about the following steps.

STAFF ROLE: Staff will provide information for Council as requested, and continue to liaise with their counterparts at other Canadian law societies.

TIMELINES: This is ongoing work with no required timelines. 34

3

3. Establish the scope of the Society’s authority to mandate cultural competence training:

The Society’s legislation and regulations allow for the enforcement of mandatory competence measures. It is important that the Society make explicit the authorities it is using, and consider whether any regulatory changes are required. Additionally, the Society must consider how a cultural competence requirement could affect all regulatory decisions.1

DONE TO DATE: As previous mentioned, the Society has made cultural competence a part of the MSELP, and Council approved an equity and diversity standard in 2016. In addition to this, the Society has a cultural competence unit in the PREP course.

COUNCIL ROLE: Council must determine the scope of this authority, after referring analysis to staff or committees as appropriate.

STAFF ROLE: Staff will provide information to Council as requested. TIMELINES: Council should be prepared to establish the scope of the Society’s authority at its March 2021 meeting.

4. How would the Society enforce such a requirement? After the scope of the Society’s authority is established, Council must then determine its enforcement appetite. The enforcement of mandatory education for the new Civil Procedure Rules could serve as an instructive example in this instance.

DONE TO DATE: Council has had informal discussions about its enforcement appetite.

COUNCIL ROLE: Council should establish what mechanisms the Society should use to enforce a mandatory cultural competence requirement.

STAFF ROLE: Staff will provide recommendations and analysis as requested. TIMELINES: Council should be prepared to make this decision at its March 2021 meeting.

5. Risk assessment: Rolling out a requirement successfully will require Council, committees and staff to be able to articulate the benefits of such a requirement, and to be prepared for potential risks.2

1 For example, when credentialing a lawyer from another Canadian jurisdiction, would we require them to demonstrate that they meet a cultural competence requirement before their transfer is authorized? 2 For example, what are the potential risks to the Society’s reputation associated with the establishment of a requirement? What are the risks to the Society’s reputation associated with a rollout? What are the risks to the Society’s reputation associated with a decision not to establish a requirement?

35

4

DONE TO DATE: Council has had informal discussions about the risks associated with a rollout.

COUNCIL ROLE: Council should seek out assessments from staff and committees as needed, and consider the risks and benefits through various lenses when making decisions regarding this requirement.

STAFF ROLE: Staff will conduct assessments as requested by Council, and will conduct internal operational risk assessments through the same lenses as Council. TIMELINES: This work is ongoing with no specific timelines. Council can begin to have these discussions immediately.

6. Required time and resources: The Society does not currently have the time, human, or

monetary resources to execute a mandatory cultural competence requirement. An implementation plan for such a requirement will need to account for several costs, notably for development and delivery of any training, which would be outsourced. Council must consider these items in its planning.

DONE TO DATE: Council has funded the work of the TRC Working Group, including two training sessions.

COUNCIL ROLE: Budgetary discussions occur in January 2021, so Council should be prepared to approve a line item in the budget for cultural competence work at that time.

STAFF ROLE: Staff will provide assessments, projections or analysis on request, and will disburse funds once approved. TIMELINES: Budgeting for the rollout of a potential requirement should occur throughout the fall. Council should be prepared to approve a line item in principle in January 2021, with final approval in April 2021.

7. What consultation is necessary? A smooth rollout of any such program will require extensive consultation of membership and community members. Council, committees and staff will all have an important role to play. In addition to a formal consultation plan, Council, committees and staff should also consider informal interactions with members and the public to be opportunities to talk about a potential cultural competence requirement.

DONE TO DATE: The TRC task force has conducted a survey of the membership. This year’s Annual Lawyer Report asked practicing lawyers questions about their cultural competence. Society staff regularly liaise with community partners.

36

5

COUNCIL ROLE: Council members will do their own consultation with the membership and members of the public, and be prepared to report to Council with what they learn.

STAFF ROLE: Staff will conduct their own consultation, including the design and distribution of formal surveys. The management team will have an internal focus, soliciting ideas and concerns from staff. Staff will also support Council members as requested with information or talking points to improve discussions with members.

TIMELINES: Council members can and should start sharing information now about the discussions happening at Council, and invite input. Council’s conversations are ongoing and the Society will survey the membership and community groups in Fall 2020.

8. Decision and implementation: Once Council has taken all the steps described above, it will be ready to make the regulatory and policy decisions necessary to create a requirement, and be prepared to implement those decisions.

Immediate next steps With Council’s direction, staff will begin to develop a consultation plan. Council members should feel free to begin sharing what is being discussed at meetings with the membership. Exhibits/Appendices: The following documents are appended to this memorandum:

a. March 2020 memo to Council b. The Indigenous intercultural competence education for BC lawyers report.

37

- 1 -

MEMORANDUM TO COUNCIL

From: Tilly Pillay QC

Date: March 27, 2020

Subject: Process to Address Cultural Competence Objective Council’s strategic plan envisages a profession that is culturally competent to provide legal services. How we get there has been, and continues to be, a focus of the Equity and Access office. This work has started and will continue into the next Council year, when we hope Council will have the information it needs to make a policy decision on whether cultural competence should be mandatory and, if so, what that would look like in Nova Scotia.

Here is the process we are following to get that information together for you (being led by the Equity and Access office):

1. Research (what does cultural competence mean? What is required of a lawyer to

be culturally competent?) 2. Jurisdictional Scan (What are other Canadian law societies doing? And

elsewhere in the world?) 3. What is the Society’s authority to mandate cultural competence? 4. What are the options available to Council to tackle this issue? What are the pros

and cons? 5. What resources are required? What is the time frame? 6. How will NSBS enforce this requirement? 7. What consultation is necessary? 8. Conduct the consultation 9. Final report to Council

The Equity and Access office will work with the existing committees (REC, TRC and GEC), consult with them along the way and get their input and guidance as this work evolves. There will be regular reports to Council along the way. The goal is for Council to make a decision on this issue in Year 2 of our strategic plan and to implement in Year 3. The above steps are not necessarily in order. I imagine they will overlap and intersect as the work progresses.

38

DM2411613

Indigenous intercultural competence education for BC lawyers Joint Recommendation Report of the Truth and Reconciliation Advisory Committee and the Lawyer Education Advisory Committee Truth and Reconciliation Advisory Committee: Dean Lawton, QC (Co-Chair) Michael McDonald, QC (Co-Chair) Martin Finch, QC Katrina Harry Claire Marshall Karen Snowshoe Ardith Walkem, QC Rosalie Yazzie

Lawyer Education Advisory Committee:

Tony Wilson, QC (Chair) Sarah Westwood (Vice-Chair) Barbara Cromarty Celeste Haldane Rolf Warburton Michael Welsh, QC Heidi Zetzsche

October 10, 2019 Prepared for: The Benchers

Prepared by: Andrea Hilland and Alison Luke

39

DM2411613 2

Table of Contents Table of Contents .......................................................................................................................... 2

Executive Summary ...................................................................................................................... 3

Resolution........................................................................................................................................ 4

Background ..................................................................................................................................... 4

Process ............................................................................................................................................. 8

Addressing Matters Identified by the TRC ............................................................................ 10

The Proposed Model ................................................................................................................... 13

Mandatory or Optional Training ............................................................................................... 16

Option 1 ................................................................................................................................................ 17

Option 2 ................................................................................................................................................ 19

Budgetary Implications .............................................................................................................. 21

Recommendations ...................................................................................................................... 22

Subsequent Steps ....................................................................................................................... 23

© Law Society of British Columbia. See lawsociety.bc.ca>Terms of use

40

DM2411613 3

Executive Summary 1. The Law Society has identified intercultural competence training for BC lawyers as a central

priority in its work to advance reconciliation, and has the statutory authority to introduce

educational initiatives to achieve this goal. Over the last several years, both the Truth and

Reconciliation Advisory Committee and the Lawyer Education Advisory Committee have

recognized their overlapping roles in advancing lawyer education in relation to intercultural

competence and have worked together to develop a joint recommendation to the Benchers in

this regard.

2. Both the Truth and Reconciliation and the Lawyer Education Advisory Committees agree that

providing lawyers with some form of Indigenous intercultural competence training and

education is an integral part of the Law Society’s response to the Truth and Reconciliation

Commission’s Call to Action 27 and one that requires action.

3. The Committees unanimously support the development of an online Indigenous intercultural

competence course (the “Course”) composed of a series of modules that would cover the topics

identified in Call to Action 27 and additional topics identified by the Truth and Reconciliation

Advisory Committee, as detailed in this report.

4. All members of the Truth and Reconciliation Advisory Committee and the majority of the

Lawyer Education Advisory Committee recommend that the Course should be a mandatory

requirement outside of the continuing professional development (“CPD”) program, on the basis

that the objectives of intercultural competence education, including reconciliation, cannot be

fully achieved unless all lawyers have a baseline understanding of the skills and topics

identified in Call to Action 27.

5. Holding a different perspective, a minority of the Lawyer Education Advisory Committee

recommends that instead of establishing the Course as a mandatory standalone requirement

outside of the CPD program, the Course should be optional, with the incentive of providing

“ethics and professionalism” accreditation within the CPD program. This approach aims to

encourage and facilitate lawyers’ participation in Indigenous intercultural competence

education without mandating that all practitioners must complete a minimum number of

training hours.

6. The Benchers are presented with these two options, for mandatory or optional Indigenous

intercultural competence training, and a series of supporting policy rationale, for discussion

and decision.

41

DM2411613 4

Resolution 7. The Benchers adopt the joint recommendation of the Truth and Reconciliation Advisory

Committee and the majority of the Lawyer Education Advisory Committee that:

The Law Society develop, in consultation with subject-matter experts, an online Course

composed of a series of modules that cover the Topics identified in this joint

recommendation report. The modules will be provided to lawyers at no cost, and must be

completed by all full and part time practising lawyers in BC, within two years of the

Course being made available. This new requirement will be established outside of the CPD

program, however CPD credit hours will be provided for time spent completing the Course.

Background 8. On June 2, 2015, the Truth and Reconciliation Commission of Canada (“TRC”) released its

Report and Calls to Action to redress the legacy of residential schools and to offer guidance for

reconciliation. The TRC defines “reconciliation” as:

. . . establishing and maintaining a mutually respectful relationship between Aboriginal and

non-Aboriginal peoples in this country. In order for that to happen, there has to be

awareness of the past, an acknowledgement of the harm that has been inflicted, atonement

for the causes, and action to change behaviour.1

9. The TRC stated that Canada’s treatment of Indigenous peoples amounts to cultural genocide:

For over a century, the central goals of Canada’s Aboriginal policy were to eliminate

Aboriginal governments; ignore Aboriginal rights; terminate the Treaties; and, through a

process of assimilation, cause Aboriginal peoples to cease to exist as distinct legal, social,

cultural, religious, and racial entities in Canada. The…policy…can best be described as

“cultural genocide.”2

10. The TRC reported that law was used to facilitate Canada’s assimilationist policies. As a result:

Many Indigenous people have a deep and abiding distrust of Canada’s political and legal

systems because of the damage they have caused. They often see Canada’s legal system as

being an arm of a Canadian governing structure that has been diametrically opposed to

their interests. Not only has Canadian law generally not protected Indigenous land rights,

resources, and governmental authority, despite court judgments, but it has also allowed,

1 Honouring the Truth, Reconciling for the Future Summary of the Final Report of the Truth and Reconciliation

Commission of Canada (The Truth and Reconciliation Commission of Canada, 2015) [TRC Summary Report] at 6. 2 Ibid at 1.

42

DM2411613 5

and continues to allow, the removal of Indigenous children through [residential schools]

and [the] child‐welfare system.... As a result, law has been, and continues to be, a

significant obstacle to reconciliation.3

11. The TRC also acknowledged the potential of law to advance reconciliation:

In Canada, law must cease to be a tool for the dispossession and dismantling of Aboriginal

societies. It must dramatically change if it is going to have any legitimacy within First

Nations, Inuit, and Métis communities. Until Canadian law becomes an instrument

supporting Aboriginal peoples’ empowerment, many Aboriginal people will continue to

regard it as a morally and politically malignant force. A commitment to truth and

reconciliation demands that Canada’s legal system be transformed. It must ensure that

Aboriginal peoples have greater ownership of, participation in, and access to its central

driving forces.4

12. The TRC also stated that some lawyers were deficient in their provision of legal services with

respect to residential school claims, highlighting the need for lawyers to develop greater

understanding of Indigenous history and culture, including the legacy of residential schools:

The criminal prosecution of abusers in residential schools and the subsequent civil lawsuits

were a difficult experience for Survivors. The courtroom experience was made worse by

the fact that many lawyers did not have adequate cultural, historical, or psychological

knowledge to deal with the painful memories that the Survivors were forced to reveal. The

lack of sensitivity that lawyers often demonstrated in dealing with residential school

Survivors resulted, in some cases, in the Survivors not receiving appropriate legal service.

These experiences prove the need for lawyers to develop a greater understanding of

Aboriginal history and culture as well as the multi-faceted legacy of residential schools.5

13. Accordingly, the TRC’s Call to Action 27 states:

We call upon the Federation of Law Societies of Canada to ensure that lawyers receive

appropriate cultural competency training, which includes the history and legacy of

residential schools, the United Nations Declaration on Rights of Indigenous Peoples,

Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will

require skills-based training in intercultural competency, conflict resolution, human rights,

and anti-racism.

14. The Law Society is well positioned to respond to the TRC’s call to action that lawyers receive

appropriate cultural competence training. The Society’s statutory mandate reflects its authority

3 Ibid at 202. 4 Ibid at 205. 5 Ibid at 215.

43

DM2411613 6

to ensure lawyers are competent and to set educational requirements and competence standards

for lawyers in British Columbia:

3. It is the object and duty of the society to uphold and protect the public interest in the

administration of justice by

(a) preserving and protecting the rights and freedoms of all persons,

(b) ensuring the independence, integrity, honour and competence of lawyers,

(c) establishing standards and programs for the education, professional responsibility

and competence of lawyers and of applicants for call and admission,

(d) regulating the practice of law, and

(e) supporting and assisting lawyers, articled students and lawyers of other jurisdictions

who are permitted to practise law in British Columbia in fulfilling their duties in the

practice of law.6

15. Additionally, the Legal Profession Act provides the Benchers with the authority to “take any

steps they consider advisable to promote and improve the standard of practice by lawyers.”7

16. The Code of Professional Conduct for British Columbia (the “BC Code”) recognizes that

competency is critical to professional, ethical practice, and requires legal services undertaken

on a client’s behalf to be performed to the standard of a competent lawyer.8 The BC Code

defines “competent lawyer” as “a lawyer who has and applies relevant knowledge, skills and

attributes in a manner appropriate to each matter undertaken on behalf of a client and the

nature and terms of the lawyer’s engagement.”9

17. Intercultural competence refers to an ability to interact effectively with people of different

cultures, and a willingness to understand and respect their differences.10 In relation to legal

services, intercultural competence requires the ability to properly understand client

instructions, an appreciation of the client’s social context, and an awareness of systemic factors

that may have implications for a client’s legal issues1.11 Effective intercultural competence

goes beyond knowledge to include self-reflection, positional awareness, interpersonal skills,

critical thinking, attitudinal consciousness, and behavioural change.12

6 Legal Profession Act, s. 3. 7 Legal Profession Act, s 28. 8 BC Code, s. 3.1-2. 9 BC Code, s. 3.1-1. 10 Robert Wright, Aspiring to Cultural Competence: The Why, What and How for Lawyers,

https://slideplayer.com/slide/13310318/ at slide 6. 11 Rose Voyvodic, “Advancing the Justice Ethic through Cultural Competence,” (available online:

https://lawsocietyontario.azureedge.net/media/lso/media/legacy/pdf/f/fourthcolloquiumvoyvodic.pdf). 12

44

DM2411613 7

18. In addition to these factors, Indigenous intercultural competence requires that lawyers be able

to comprehend the implications of the unique worldviews, histories, and current realities of

Indigenous people, in order to provide effective legal services in a respectful way and to

understand how Canadian law has been used in different ways to the detriment of Indigenous

peoples. Indigenous intercultural competence education also involves learning about

Indigenous perspectives on Canadian history and laws to enhance lawyers’ understanding of

the legal system.

19. At the October 30, 2015 Bencher meeting, the Benchers unanimously agreed that addressing

the challenges identified in the TRC Report is one of the most critical issues facing the legal

system, and acknowledged that the Law Society has a moral and ethical obligation to advance

truth and reconciliation. Therefore, the Benchers decided to take immediate action to

demonstrate their commitment to respond meaningfully to the TRC Calls to Action that are

within the purview of the Law Society. The Truth and Reconciliation Advisory Committee was

established shortly thereafter and has continued to move this important work forward.

20. The Law Society’s work to advance reconciliation has largely focused on Call to Action 27,

and its emphasis on lawyer education, given that this was the only recommendation aimed

directly at law societies. Accordingly, the Law Society has identified cultural competence

training of lawyers in British Columbia as a central priority, as reflected in the following

strategic documents:

a. The Law Society’s Strategic Plan for 2018-2020, which states: “We will identify and

implement appropriate responses to the Calls to Action from the Report of the Truth

and Reconciliation Commission by encouraging all lawyers in British Columbia to take

education and training in areas relating to Aboriginal law.”

b. The Truth and Reconciliation Advisory Committee’s Terms of Reference, which

specify that a key goal of the Committee is: “to support the Law Society in its efforts

to…improve cultural competence training for lawyers in British Columbia to recognize

and respond to the diverse legal service needs of Indigenous people, and to understand

the relevance and applicability of Indigenous laws within the Canadian legal system.”13

c. The Law Society of BC’s Truth and Reconciliation Action Plan, which indicates: “The

Law Society of British Columbia will improve the intercultural competence of Law

Society Benchers, staff, and committee members, and all lawyers and Admission

Program candidates in British Columbia by mandating Indigenous intercultural

13 The Benchers endorsed the Terms of Reference at the September 30, 2016 Benchers meeting.

45

DM2411613 8

competence education for all Law Society Benchers, staff, and committee members,

and all lawyers and Admission Program candidates in British Columbia.”14

21. Collectively, these documents – in addition to Call to Action 27 – clearly commit the Law

Society to improve the intercultural competence of lawyers in BC. In recent years, both the

Truth and Reconciliation Advisory Committee and the Lawyer Education Advisory Committee

have been tasked with exploring the question of how this goal might best be achieved.

Process 22. The Truth and Reconciliation Advisory Committee and the Lawyer Education Advisory

Committee have recognized their overlapping roles in advancing lawyer education in relation

to intercultural competence. The Committees have each discussed Call to Action 27 and the

importance of intercultural competence education for lawyers in advancing reconciliation.

What follows is a timeline that briefly summarizes the history of this work.

23. At the December 4, 2015 Bencher meeting, the Benchers resolved to create a Steering

Committee, comprising Executive Committee members and Indigenous representatives, to

develop the mandate and terms of reference for a permanent advisory committee to advise the

Benchers on the TRC Calls to Action. In July 2016, the Benchers unanimously endorsed the

creation of a permanent Truth and Reconciliation Advisory Committee.

24. In November 2017, the Law Society, in collaboration with the Continuing Legal Education

Society of BC, held a Truth and Reconciliation Symposium where over 450 participants,

including lawyers, judges, academics and representatives from Indigenous organizations,

shared their ideas on what actions the Law Society could undertake to facilitate reconciliation.

Numerous participants suggested improving intercultural competence education for lawyers as

a starting point for the Law Society’s reconciliation efforts.

25. In December 2017, the Lawyer Education Advisory Committee released its final report on its

review of the CPD program. As recommended in the report, the Benchers endorsed several

changes to the CPD eligibility criteria that increased the accreditation of programming with

Indigenous content.

26. In particular, programming that addresses “multicultural, diversity and equity issues that arise

within the legal context” was added to the list of topics that may be counted toward the

“practice management” requirement.15 This permits Indigenous intercultural competence

14 See Truth and Reconciliation Action Plan, enumerated point 4.1. Online at:

https://www.lawsociety.bc.ca/Website/media/Shared/docs/initiatives/TruthandReconciationActionPlan2018.pdf 15 All practising lawyers in BC, both full-time and part-time, must complete 12 hours of accredited CPD within the

calendar year. At least two of the 12 hours must pertain to any combination of professional responsibility and ethics

and practice management (commonly known as the “ethics” requirement).

46

DM2411613 9

education to be eligible for “practice management” or “ethics” credit. The new subject matter

“educational activities that address knowledge primarily within the practice scope of other

professions and disciplines, but are sufficiently connected to the practice of law,” was also

added to the CPD program. This allows accreditation of a number of topics that would fall

within the ambit of Call to Action 27, including the history and legacy of residential schools.

27. The report confirmed that substantive law on issues such as treaties, Aboriginal rights, title and

governance, legislation and international legal instruments related to Indigenous peoples would

continue to be recognized for credit under the CPD program. The report also acknowledged

that these outcomes represented a first step, and recommended exploring, in consultation with

the Truth and Reconciliation Advisory Committee, how lawyer education could be further

utilized as tool for advancing reconciliation.16

28. During this period, the Truth and Reconciliation Advisory Committee also developed a Truth

and Reconciliation Action Plan, which was endorsed by the Benchers on July 13, 2018. The

Truth and Reconciliation Action Plan specifies that the Law Society “will improve the

intercultural competence of all lawyers in BC by mandating Indigenous intercultural

competence education.”17

29. Determining how to establish a baseline of intercultural competence for BC lawyers has been a

central focus for the Truth and Reconciliation Advisory Committee in 2019. In the course of

this work, the Committee has considered the meaning of Indigenous intercultural competence,

the topics that should be included to form a baseline of intercultural competency, and who

should be required to participate in intercultural competence training.

30. After deliberation, the Truth and Reconciliation Advisory Committee reached a consensus that,

in their view, the Law Society should implement mandatory, Indigenous-specific intercultural

competence training for all lawyers in BC. To articulate the nuances of this position, the Truth

and Reconciliation Advisory Committee prepared a memorandum outlining the objectives,

rationales, and possible approaches for mandating this training. The memorandum was shared

with the Lawyer Education Advisory Committee and discussed during a joint meeting of both

Committees on May 2, 2019. The goal of the meeting was to consider and collaborate on the

development of a joint recommendation on the role of lawyer education in advancing the Law

Society’s commitment to reconciliation more generally, and intercultural competence training,

specifically.

16 See Recommendation 26 of the Final CPD Report of the Lawyer Education Advisory Committee (December 8,

2017) at p. 49, online at: https://www.lawsociety.bc.ca/Website/media/Shared/docs/publications/reports/LawyerEd-

CPD_2017.pdf 17 See Truth and Reconciliation Action Plan, enumerated point 4.1, online at:

https://www.lawsociety.bc.ca/Website/media/Shared/docs/initiatives/TruthandReconciationActionPlan2018.pdf

47

DM2411613 10

31. The Lawyer Education Advisory Committee met on June 5, 2019 and affirmed that it agreed

with many of the views presented by the Truth and Reconciliation Advisory Committee, and

provided further input on a potential model of intercultural competence education that

incorporated the principles agreed upon at the joint meeting. As part of this discussion, the

Committee canvassed a range of issues, including clarifying the objectives of intercultural

competence education, defining the content and scope of intercultural competence education,

establishing who should receive intercultural competence education and exploring whether

intercultural competence education should be voluntary or mandatory, as well as whether it

should fall within, or exist outside of, the CPD program. The Committee also discussed

possible delivery methods for intercultural competence education and the appropriate amount

and frequency of the proposed training.

32. The Lawyer Education Advisory Committee subsequently developed a draft recommendation

incorporating the views articulated by both Committees and outlined a proposed model for

intercultural competence education in BC. On July 11, 2019, the Committees met separately to

discuss the draft recommendation. At their respective meetings:

a. The Truth and Reconciliation Advisory Committee expressed its support for the draft

recommendation.

b. With the understanding that the Truth and Reconciliation Advisory Committee was

supportive of the proposed model, the Lawyer Education Advisory Committee engaged

in a further discussion to refine the draft recommendation.

33. On September 26, 2019, a second joint meeting was held to finalize the recommendation prior

to its presentation to the Benchers.

Addressing Matters Identified by the TRC 34. The release of the TRC Report and Calls to Action ignited an era of reconciliation. The Report

brought attention to Canada’s history of colonialism that was facilitated by assimilationist laws

and policies that were based on notions of Indigenous inferiority and European superiority.

Such laws and policies facilitated discrimination against Indigenous peoples, and have resulted

in ongoing disparities between Indigenous peoples and the broader Canadian society.18 These

past and present inequalities have led Indigenous peoples to have a deep and abiding distrust of

Canada’s legal system,19 and constitute a stain on Canada’s claim to be a leader in the

protection of human rights among the nations of the world.20 The fundamental problem is that

the role of Canadian law in generating and maintaining disparities between Indigenous peoples

18 TRC Summary Report, supra note 1 at 135. 19 Ibid at 202. 20 Ibid at 183.

48

DM2411613 11

and the broader Canadian society undermines public confidence in the administration of

justice.

35. While identifying past harms caused by law, the TRC acknowledged the potential of law and

the legal system to be a driving force for reconciliation. The TRC observed that reconciliation

will require the legal system to be transformed, not only for the benefit of Indigenous peoples,

but also to improve Canada’s national and international reputation in relation to human rights.

The Law Society acknowledges that reconciliation with respect to the legal system is a

component of the Law Society’s mandate to uphold the public interest in the administration of

justice.

36. Because lawyers are integral to the development, interpretation, and application of laws,

transformation of the legal system to further reconciliation will be contingent on lawyers. The

Law Society expects that improving the intercultural competence of lawyers will help to

advance reconciliation in relation to the legal system in British Columbia, and will be a step

toward implementing, in a significant and meaningful way, Call to Action 27 from the TRC

Report.

37. In the age of reconciliation, lawyer competence necessarily includes Indigenous intercultural

competence. As a basis for truth and reconciliation, all lawyers in BC should understand the

legal history of the province in which they live and work. In British Columbia, historical

colonial laws were effected by a unilateral assertion by the Crown, based on notions of

European superiority and Indigenous inferiority. The TRC has emphasized that reconciliation

will require the repudiation of the concepts that were used to justify European sovereignty over

Indigenous peoples and lands.21 Intercultural competence training is intended to inspire

lawyers to think critically about the legal history of British Columbia and the ongoing

repercussions of this history within the current legal system.

38. The legal history of Canada includes principles and concepts from Indigenous law. There are

precedents within the Canadian legal system for the recognition and application of Indigenous

laws.22 Intercultural competence training is meant to improve lawyers’ knowledge of

Indigenous laws, and the potential relevance and applicability of these laws within the

Canadian legal system.

39. Understanding the role of law throughout Canada’s history and the continuing implications of

the colonial legal system for Indigenous people will also help to increase lawyers’ empathy and

21 TRC Recommendations 45, 46, 47 and 49. For example, recommendation 47 states: “We call upon federal,

provincial, territorial, and municipal governments to repudiate concepts used to justify European sovereignty over

Indigenous peoples and lands, such as the Doctrine of Discovery and terra nullius, and to reform those laws,

government policies, and litigation strategies that continue to rely on such concepts.” See TRC Summary Report, supra

note 1. 22 Connolly v. Woolrich, [1867] Q.J. No. 1, The Queen v. Nan-e-quis-a-ka (1889), 1 Terr. L.R. 211 (N.W.T.S.C.), R. v.

Côté, [1996] 3 SCR 139.

49

DM2411613 12

awareness in relation to the disparities between Indigenous peoples and the broader Canadian

society. The Law Society anticipates that increased empathy and awareness on the part of

lawyers will enhance the quality and delivery of legal services, and improve Indigenous

peoples’ experiences with, and perceptions of, the legal system.

40. Intercultural competence education is also intended to improve lawyer competence in general.

The TRC reported that the shortcomings of some lawyers in residential school claims resulted

in some Survivors not receiving appropriate legal service.23 Although many lawyers do not

practise in areas of law with high Indigenous usage rates, all lawyers should be aware of the

possibility that Indigenous issues may affect legal matters in a broad range of areas of law,

including but not limited to: human rights, administrative law, Aboriginal and treaty rights,

lands and resources, real estate, commercial law, taxation, family (including child welfare) law,

wills and estates, intellectual property, civil litigation, immigration law and criminal law. Even

in areas of practice where Indigenous issues rarely arise, it is important for all lawyers to be

capable of identifying when an Indigenous issue may be relevant to a legal matter, and

responding appropriately.

41. Another objective of intercultural competence training is to increase respect for – and reduce

subconscious biases against – Indigenous legal professionals in BC. The Law Society’s Report

from 2000 entitled “Addressing Discriminatory Barriers Facing Aboriginal Law Students and

Lawyers”24 revealed that presumptions of Indigenous inferiority, both in law schools and in the

legal profession, have negatively affected Indigenous law students and lawyers in BC. More

recently, Indigenous lawyers shared their experiences of racism within the legal profession in

British Columbia in the mini-documentary video, “But I was wearing a Suit”.25 These

examples demonstrate the need for enhanced intercultural competence education.

42. A significant goal of intercultural competence training is therefore to increase the legal

profession’s regard for Indigenous lawyers, articled students, and law students to further the

Law Society’s efforts to foster the recruitment, retention, and advancement of Indigenous legal

professionals in BC. These efforts are in line with the TRC’s observation that reconciliation

will require Indigenous peoples to “have greater ownership of, participation in, and access to

the central driving forces of the Canadian legal system.”26 Further, the enhanced contributions

of Indigenous people in the legal profession is intended to help to imbue Indigenous

worldviews and perspectives throughout the legal system.

43. Lawyers also play an important role in broader civil society, independent of legal practice.

Lawyers often hold leadership positions with corporations, societies, non-profit, and

23 TRC Summary Report, supra note 1 at 215. 24 https://www.lawsociety.bc.ca/Website/media/Shared/docs/publications/reports/AboriginalReport.pdf . 25 Co-produced by the Law Society and the Continuing Legal Education Society of BC in 2017, available online:

https://www.youtube.com/watch?v=HTG7fi-5c3U. 26 TRC Summary Report, supra note 1 at 205.

50

DM2411613 13

community organizations. Their views about society, politics, and social issues are often well-

respected and influential among families, friends, and social networks. In all of these roles, the

Indigenous intercultural competency of all lawyers – even lawyers whose practices never

require them to directly grapple with Indigenous issues or clients – becomes important to the

overall reconciliation between Indigenous and non-Indigenous peoples in Canada.

44. All of the above-mentioned aspects of intercultural competence education are geared not only

toward improving lawyer competence and advancing reconciliation, but also to the Law

Society’s broader objective of upholding and protecting the public interest in the

administration of justice.

The Proposed Model 45. Both Committees agree that providing lawyers with some form of intercultural competence

training is an integral part of the Law Society’s response to Call to Action 27 and one that

requires concrete action. There is unanimous support for the development of an online

Indigenous intercultural competence course (the “Course”) composed of a series of modules

that would cover the topics identified in Call to Action 27 and additional topics identified by

the Truth and Reconciliation Advisory Committee, as listed below.

46. The Course would be funded and developed by the Law Society, in consultation with subject-

matter specialists, and would be provided to lawyers free of charge. Although the Course

would be independent of the CPD program, lawyers would be able to claim CPD credit for the

time spent taking the Course.

47. At the outset, the Course should be framed in the broader context of a vision for a multi-phased

intercultural competence education program, which is responsive to the concern that a “check-

the-box” approach to intercultural competence education is not sufficient to achieve the

objectives of the training, as articulated above. Intercultural competence demands more than

simply acquiring new knowledge; it also requires developing new skills and changing attitudes.

Achieving this learning and attitudinal change in a meaningful way will take time.

48. Accordingly, in the first phase of the educational program, the focus would be on establishing

baseline knowledge for all lawyers in respect of the topics and skills identified in Call to

Action 27 and several related areas identified by the Truth and Reconciliation Advisory

Committee. Although many lawyers may already have some exposure to some matters

identified in Call to Action 27 (e.g. through their practice areas, or as recent graduates of the

Professional Legal Training Course or law school), the Course is intended to ensure that a

baseline of information will be conveyed to all lawyers in the province. As this first phase

progresses, the Law Society will assess the Course’s effectiveness and develop proposals for

subsequent phases of training. A discussion of potential future phases of intercultural

competence education is provided in the final section of this report.

51

DM2411613 14

49. During the first phase, the Course would be specifically Indigenous in focus, rather than

addressing intercultural competence more generally, given that Call to Action 27 is the key

driver for introducing intercultural competence training for lawyers in BC. The goal behind

Call to Action 27 might lose its intensity if intercultural competence training were initially

broadened to a non-Indigenous focus during the first phase. This is not to say, however, that

broad based intercultural competence training would be ignored; rather it would continue to be

encouraged through the CPD program.27

50. The Committees both recognize that Indigenous intercultural competence is a broad and

complex concept. It includes an appreciation of Indigenous worldviews, perspectives, legal

systems, and laws; the diversity among Indigenous populations and other regionally significant

information; and the unique legal context of Indigenous peoples in Canada, including the

constitutional recognition of, and specific legislation in relation to, Indigenous peoples. It also

includes an understanding of the history of the colonization of Canada and the ongoing

repercussions of the colonial legacy; the systemic discrimination against, and racism

experienced by, Indigenous peoples; and the international legal principles that apply to

Indigenous peoples in Canada.

51. To address the core aspects of Indigenous intercultural competence, the Course would address

the content of Call to Action 27 and include the following topics (collectively, the “Topics”):

i. The meaning and purpose of reconciliation;

ii. The history and legacy of residential schools (including day schools, the “60s

Scoop”, and ongoing overrepresentation of Indigenous children in the child welfare

system);

iii. The disproportionate victimization of Indigenous people (including murdered and

missing Indigenous women and girls);

iv. The overrepresentation of Indigenous people in the criminal justice system (including

Indigenous principles of sentencing);

v. The United Nations Declaration on Rights of Indigenous Peoples;

vi. Treaties and Aboriginal rights;

vii. Indigenous law;

viii. The history of Aboriginal-Crown relations;

ix. Specific legislation regarding Indigenous peoples in Canada (including unequal

treatment of Indigenous women under the Indian Act); and

x. Skills-based training in:

a. Intercultural competency;

b. Conflict resolution;

27 As mentioned above, programming that addresses “multicultural, diversity and equity issues that arise within the

legal context” may be counted toward the “ethics” requirement under the CPD program. (CPD Review Report, supra

note 19).

52

DM2411613 15

c. Human rights;

d. Anti-racism; and

e. Trauma-informed service provision.

52. The objectives of the Course would be to:

i. respond directly to Call to Action 27 to ensure that lawyers receive intercultural

competence training;

ii. make progress toward the implementation of the Law Society’s Truth and

Reconciliation Action Plan, which calls for mandatory intercultural competence

education for all lawyers in BC;

iii. increase the legal profession’s respect for Indigenous peoples and their

perspectives, including Indigenous lawyers;

iv. enrich the legal profession’s comprehension of the relevance and applicability of

Indigenous laws within the Canadian legal system;

v. ensure that the legal profession understands how Canadian laws have been, and

continue to be used to the detriment of Indigenous peoples in various ways;

vi. foster the legal profession’s ability to recognize and respond to the diverse legal

service needs of Indigenous people;

vii. enhance Indigenous engagement with the Canadian legal system;

viii. improve outcomes for Indigenous people in the Canadian legal system; and

ix. recognize that in the “age of reconciliation” lawyer competence necessarily

includes intercultural competence.

All of these objectives are aimed at advancing reconciliation in furtherance of the Law

Society’s mandate to uphold and protect the public interest in the administration of justice.

53. In considering the appropriate amount of Indigenous intercultural competence education for

lawyers, there is a need to strike a balance between devoting sufficient time to the Topics, so as

to create a baseline understanding of these issues, and the amount of time lawyers can

reasonably be expected to commit to additional training. It is estimated that six hours, to be

completed within a two year period, would be an appropriate amount of time to meaningfully

address the Topics. Notably, six hours of training is similar to other educational requirements

for BC lawyers that have been established outside of the CPD program.28

54. The proposed model offers a number of benefits.

28 Both the online Practice Management Course (Law Society Rule 3-28) and the training that family law arbitrators,

mediators and parenting coordinators must take to maintain accreditation (Law Society Rules 3-35 to 3-38) are

mandatory six hour educational requirements that are independent of the CPD program.

53

DM2411613 16

55. The Course would cover the broad range of Topics within a specific timeframe. The Law

Society would work with subject matter experts to develop the curriculum and ensure that

baseline knowledge covered by the Topics is being conveyed effectively. Additionally, the

content would be broken down into a number of online modules. This modular approach

would facilitate self-paced learning by lawyers, and would make it easier for the Law Society

to update and revise the content as appropriate.

56. The modules would be delivered online, on the basis that an electronic tool is the most

efficient and effective way to ensure the Course is accessible to every lawyer in BC.29 The

Law Society would fund the development of the modules, and make them available to all

members free of charge. This approach would ensure that training is provided in a timely and

cost-effective manner, and in a way that does not disadvantage any members of the profession

who may struggle to pay for, or otherwise attend, intercultural competence training.

57. The Course would also be a standalone course, but eligible for credit within the CPD program.

In creating a standalone Course, the Law Society will retain greater control over the content of

the programming, so as to ensure that a standardized baseline of knowledge is acquired by BC

lawyers within a defined period of time. Given the breadth of Topics, the number of additional

CPD hours that could reasonably be added to, or devoted within, the existing 12 hour CPD

requirement would be insufficient to cover the required material.30

58. Additionally, the proposed approach would neither result in any annual increase in the CPD

requirement, nor would it commit any of the existing CPD hours to Indigenous intercultural

competence training. CPD credit (including credit for the two hour “ethics” component of the

CPD requirement) would be granted for completing modules, following the approach

employed for the Law Society’s Practice Management Course.

Mandatory or Optional Training

59. All members of the Truth and Reconciliation and Lawyer Education Advisory Committees

unanimously recommend that the Law Society should develop an online Indigenous

intercultural competence Course that covers all of the Topics, and make it freely available to

every lawyer in British Columbia. The only divergence in opinion is whether the Course

should be mandatory or optional for lawyers.

29 There are over 12,000 practicing lawyers and over 1,500 non-practicing lawyers in BC. 30 For example, if lawyers were required to complete one hour of continuing education with Indigenous content each

year (either within the existing 12 hour CPD requirement, or by adding an additional hour), and had the flexibility to

count any Indigenous content toward the requirement, it would be difficult (if not impossible) for most lawyers to gain

exposure to all of the Topics.

54

DM2411613 17

60. All members of the Truth and Reconciliation Advisory Committee and the majority of the

Lawyer Education Advisory Committee recommend that the Course should be mandatory. A

minority of the Lawyer Education Advisory Committee recommends that the Course be

accredited toward the mandatory two hour “ethics” component of the CPD program, and made

optional so that lawyers are encouraged, but not compelled, to take intercultural competence

training as part of their “ethics” requirement.

Option 1

61. Option 1 is to establish, through the Law Society rules, that the completion of the Course is

mandatory for all BC lawyers, regardless of their year of call or whether they are part time or

full time practitioners.31 This option is recommended by all members of the Truth and

Reconciliation Advisory Committee and the majority of the Lawyer Education Advisory

Committee.

62. Those in support of Option 1 draw on both the TRC Action Plan and the Law Society’s

Strategic Plan for guidance. Both of these documents reference “all lawyers” when addressing

the need for intercultural competence education. The mandatory nature of this training is also

reflected in the language of Call to Action 27, which directs that law societies “ensure” that

lawyers receive intercultural competence training, and item 4(i) of the TRC Action Plan which

“mandates” Indigenous intercultural competence training for all lawyers.

63. Guided by these documents, and recognizing that the objectives of intercultural competence

education, including reconciliation, cannot be fully achieved unless all lawyers have a baseline

understanding of the topics and skills identified in Call to Action 27, Option 1 is a proposal for

the Law Society to introduce a mandatory Indigenous intercultural competence educational

requirement for all practising lawyers in BC. Lawyers would be required to complete the six

hour Course over a two year timeframe. Although the requirement would exist outside of the

CPD program, time spent on the Course could be counted toward CPD “ethics”

requirements.32

64. Those in support of Option 1 are strongly of the view that the Law Society’s efforts toward

reconciliation will be less effective if only those lawyers who “opt in” participate in

intercultural competence training, and are concerned that an optional approach may only

engage those practitioners who already have an interest in, or awareness of, Indigenous issues.

31 “All lawyers” includes Indigenous lawyers. 32 Permitting lawyers to complete the training over a two year period would provide practitioners with some flexibility

as to when they participate in intercultural competency training. This flexibility is further enhanced by the relatively

new CPD rule that permits lawyers to carry-over of six CPD credits from one year to the next.

55

DM2411613 18

65. The Committees considered whether the educational requirement should only apply to lawyers

who practise certain areas of law or in particular geographic areas. The Committee members in

support of Option 1 rejected these approaches in favour of a universally applicable mandatory

requirement that avoids any real or perceived inequities that may arise from introducing a

requirement that only applies to a subset of the membership. There was some concern that an

approach in which only some lawyers are required to complete intercultural competence

training may disproportionately affect certain groups or create disincentives to work in certain

practice areas or locations, with unintended negative outcomes for Indigenous people.

66. Other problems with imposing a requirement on a subset of the profession were canvassed,

including the concern that the Law Society does not track lawyers’ practice areas or client bases

and as such, lacks the information necessary to determine which lawyers might be subject to a

new requirement (e.g. based on practice area or geographic area). Creating a system to collect

and monitor this information would be complex and costly. Additionally, as the Law Society

does not currently certify lawyers for specialized practice areas, establishing a system in which

intercultural competence becomes a condition of practice would have considerable logistical

and cost implications.

67. Introducing a mandatory intercultural competence requirement with an exclusively Indigenous-

specific focus may be controversial. Although a proportion of the membership is likely to be

supportive of the new requirement, it may also be met with resistance by some lawyers who are

of the view that Call to Action 27, and reconciliation more generally, are not directly, or even

indirectly, relevant to their legal practice. Others may suggest that an Indigenous focus is too

narrow, and that the requirement should be expanded to intercultural competency more broadly,

given the diverse and multicultural client base of many lawyers. The Committees have some

concern that this opposition may shift the discussion away from reconciliation and toward

controversy about what some lawyers may regard as an overly prescriptive educational

requirement.

68. To address this concern, a communications campaign would be required to clearly articulate to

the membership why Indigenous intercultural competence training, specifically, is relevant to

all lawyers. The communications must show the link between lawyers, as key participants in

the legal system, competency and the process of reconciliation. Additionally, the educational

program itself should include material that clearly demonstrates why learning about these issues

is an essential aspect of lawyer competence in BC.

69. Concern about opposition to the introduction of an Indigenous intercultural competence

educational requirement is also mitigated by the fact that under the Legal Profession Act, the

Law Society has the legislative authority to establish standards and programs for the education

and competence of lawyers as part of its duty to protect the public interest in the administration

56

DM2411613 19

of justice. Requiring lawyers to participate in training activities that enhance their competence

serves both the public interest and enhances confidence in the legal profession.33

70. Additional public interest benefits may include improved provision of legal services to both

Indigenous and non-Indigenous clients and improved public perceptions of both the Law

Society’s regulation of the profession and the legitimacy and fairness of the legal system and

the administration of justice.

Option 2

71. Option 2, which is supported by a minority of the Lawyer Education Advisory Committee, is to

ensure that completion of the Course is eligible for credit within the two-hour “ethics”

component of the CPD, which is mandatory for all lawyers in the province. This would

encourage, rather than require, lawyers to take intercultural competency training. If this option

were pursued by the Benchers, the development of additional incentives may also be

considered.

72. Under Option 2, the Law Society would still develop a series of online modules covering the

Topics and ensure this programming is accessible to the membership free of charge. However,

rather than establishing the modules as a mandatory standalone requirement outside of the CPD

program, they would be eligible (but not required) for CPD credit under lawyers’ existing,

mandatory two-hour “ethics and professionalism” CPD requirement. If the Course is six hours

long, and lawyers are given three years (rather than two years, as proposed in Option 1) to

complete it, then lawyers could count the time spent on the Course toward their annual two hour

“ethics” requirements over a three year period. The goal would be to encourage and facilitate

lawyers’ participation in this Indigenous intercultural competence education without mandating

that all practitioners must complete a minimum number of training hours in this area over a

certain period of time.

73. The minority view is that this approach will achieve many of the objectives of intercultural

competence training, as listed earlier in this report, and is compatible with Law Society’s

strategic priorities in relation to truth and reconciliation. Specifically, the 2018-2020 Strategic

Plan speaks to “encouraging” all lawyers in BC to take education and training in areas relating

33 A similar observation was made by the Supreme Court of Canada in Green v. Law Society of Manitoba, 2017 SCC

20 at para. 3 in the relation to CPD “The Law Society is required by statute to protect members of the public who seek

to obtain legal services by establishing and enforcing educational standards for practising lawyers. CPD programs

serve this public interest and enhance confidence in the legal profession by requiring lawyers to participate, on an

ongoing basis, in activities that enhance their skills, integrity and professionalism.” This sentiment equally applicable

to mandatory educational requirements that exist outside of a CPD program.

57

DM2411613 20

to Aboriginal law. This approach is also within the purview of the Law Society’s authority

pursuant to s. 3(c) and s. 28 of the Legal Profession Act.34

74. Option 2 is responsive to the concern that requiring all lawyers in the province to complete

Indigenous intercultural competency education is overcasting the net because many lawyers

have no Indigenous clients, and do not come across Indigenous issues in their practice areas.

Mandating a program that has little or no perceived value to them in their practices may cause a

reaction that could undermine the Law Society’s efforts toward reconciliation. Some concerns

have been raised that although some lawyers will greatly benefit from participating in

Indigenous intercultural competence training, others will be of the view that the topics and

skills addressed in Call to Action 27 have no direct or indirect connection to their delivery of

legal services.

75. It may, therefore, be in the public interest to ensure that the finite amount of time a lawyer has

to devote to continuing education is allocated to learning that is directly relevant to their

practice, based on the lawyer’s evaluation of their educational needs.

76. Further, a mandatory requirement does not align with the increasingly liberalized approach to

continuing legal education, as reflected in the Bencher approval of the majority of the

recommendations in the Lawyer Education Advisory Committee final CPD review report in

2017.35 In recent years, the CPD program has made a marked shift toward providing lawyers

with greater flexibility as to when and how they satisfy their learning requirements. The Law

Society trusts that lawyers will make wise choices in selecting programming that will improve

their professional competence, which may – or may not – require further training in relation to

Indigenous intercultural competence.

77. Notably, at this point in time, no other Law Society has taken the step of introducing mandatory

Indigenous intercultural competence training for all lawyers. There is a risk that imposing a

mandatory requirement could create controversy that moves the profession further away from

reconciliation rather than towards it. Therefore, the minority encourages caution before using

regulatory requirements to impose mandatory education.

78. On the other hand, the supporters of Option 1 see this as an opportunity for the Law Society of

BC to be a leader on this issue. British Columbia’s position is unique in Canada. Other than a

couple of historic treaties and a few modern day treaties, the vast majority of British

Columbia’s lands and waters are not yet subject to treaties with Indigenous peoples. As a result

of this unique context, a number of lead cases on Indigenous issues have originated in British

34 Supra notes 6 and 7. 35 CPD Review Report, supra note 19.

58

DM2411613 21

Columbia (examples include the Calder,36 Delgamuukw,37 and Tsilh’qotin38 decisions regarding

Aboriginal title, the Sparrow39 decision on Aboriginal rights, and the Haida40 and Taku41

decisions regarding consultation.) Accordingly, the Law Society should support lawyers in this

province in developing greater expertise and capacity in relation to Indigenous legal issues.

79. Option 2 may, however, generate criticism on a number of fronts. Adopting an intercultural

competence option, rather than a requirement, may be challenged on the basis that if fails to

align with the Law Society’s TRC Action Plan, which refers to “mandating” Indigenous

intercultural competence training for all lawyers, and Call to Action 27, which calls upon law

societies to “ensure” lawyers receive intercultural competence training. Both of these provisions

are grounded in the moral imperative for lawyers to advance reconciliation,42 and the need for

the Law Society to protect the public interest. Optional training may be perceived as falling

short of these responsibilities.

80. Given the similarities between Option 2 and the recommendation presented to, and

subsequently rejected by, the Benchers in 2015,43 this approach may also face considerable

opposition from the Indigenous bar and others. Additionally, intercultural competence training,

more broadly, is already eligible for CPD “ethics” credits.

Budgetary Implications 81. The Practice Support Department currently operates four online courses – Practice Management

Course, Practice Refresher Course, Communications Toolkit, and Legal Research Essentials.

36 [1973] SCR 313. 37 [1997] 3 SCR 1010. 38 2014 SCC 44. 39 [1990] 1 SCR 1075. 40 2004 SCC 73. 41 2004 SCC 74. 42 As mentioned above, the TRC reported that the law has been a mechanism for discrimination, and has the potential

to be a driving force for reconciliation. Given that lawyers are integral to the development, interpretation and

application of laws, the transformation of the legal system in furtherance of reconciliation will depend, to a great

extent, on them. 43 At the December 4, 2015 Bencher meeting, the Lawyer Education Advisory Committee put forward a resolution to

amend the CPD requirements to add “appropriate cultural competency training” to the list of optional topics that are

eligible for credit under the “ethics” component of the CPD program14 F The proposal was not to make such training

mandatory, but rather, to provide an incentive for lawyers to take optional training in areas with Indigenous content by

ensuring this programming was eligible to fulfill the “ethics” requirement. Although the resolution passed

unanimously, two Indigenous lawyers in attendance expressed their dissatisfaction with this approach on the basis that

it was not sufficiently responsive to the TRC’s Calls to Action, and was developed without Indigenous input. The

Benchers subsequently retracted the resolution, acknowledging that the resolution was premature, and committed to

engaging with Indigenous leaders (including Indigenous judges, lawyers, and legal academics) for guidance in the

development of a meaningful and effective response to Call to Action 27.

59

DM2411613 22

Earlier in 2019, the Law Society purchased a new online course platform to improve the quality

of the existing online courses and allow for expanded course offerings. The 2020 budget, to be

considered by the Benchers on September 27, includes the cost of setting up the new online site

for existing courses, new course development, and annual user fees of $98,000 for an estimated

3,500 members to access the online courses in 2020.

82. The estimated cost to develop and deliver a Phase I intercultural competence online course will

total approximately $330,000 for the 2020 and 2021 fiscal years. This estimate is based on three

categories of expense:

Course licensing fees: $280,000 to be added in 2021

The Law Society’s new license with the Desire2Learn (D2L) learning management system

charges an annual user fee of $28 per member to access the intercultural competence online

course and any other Law Society online course. The current hosting agreement provides

for access in 2020 for an estimated 3,500 users of the existing courses. In 2021, a

mandatory Phase I intercultural competency course would add a $280,000 expense for

approximately 10,000 more users, at $28 each.

Subject matter expertise: $25,000

A consultant with subject matter expertise would be contracted to research and write the

Phase I course content.

Instructional design: $25,000

Once the Phase I course content is prepared, an expert in instructional design would edit the

material, draft learning objectives, prepare learning elements, and develop a testing

component.

83. The Practice Support department would absorb an in-kind staff contribution to install the

course, pilot test it, set it for general release, and maintain it.

84. When Phase II course development begins, in 2021 or subsequently, the post-2020 budgets

should together include an additional $50,000 for subject matter expertise and instructional

design.

Recommendations 85. The following recommendations are presented to the Benchers for discussion and decision:

Recommendation 1: The members of the Truth and Reconciliation Advisory Committee and

the Lawyer Education Advisory Committee unanimously recommend that the Benchers

60

DM2411613 23

endorse the Law Society developing an online Course comprising a series of modules that will

cover the Topics identified in this report, and will be accessible to all BC lawyers at no cost.

Recommendation 2: All members of the Truth and Reconciliation Advisory Committee and

the majority of the Lawyer Education Advisory Committee recommend Option 1 to the

Benchers: that completion of the Course will be mandatory for all practising lawyers in BC.

Subsequent Steps 86. If Recommendation 1 is approved by the Benchers, the Law Society will work with subject

matter experts to develop the content of the Indigenous intercultural competence programming

in 2020, with the goal of introducing the finalized set of online modules to the profession in

2021.

87. If Recommendation 2 is approved, a new Law Society rule will be drafted to establish that the

Course is mandatory for all lawyers in BC. If Recommendation 2 is not approved, the Course

will be eligible for credit within the two-hour “ethics” component of the CPD, which is

mandatory for all lawyers in the province. Further work would be required by the Committees

to determine whether any additional mechanisms are required to further encourage lawyers to

take this Course within the CPD program.

88. As discussed at the beginning of this report, the proposed Course does not represent the

totality of the Law Society’s efforts to address the Calls to Action. Rather, it is step along a

continuum of learning that will, over time, advance reconciliation. The Course is envisaged as

the first step in a multi-phased approach to improving the intercultural competence of BC

lawyers.

89. As lawyers complete the Course, the Law Society will evaluate the results of Indigenous

intercultural competence training using various methods, including the following:

i. reviewing the timeliness of the completion rate of the Course;

ii. seeking lawyers’ comments with respect to whether there are any areas where they

feel additional learning is required;

iii. modifying the CPD declaration to inquire how many lawyers are completing the

Course, and how many CPD hours contain Indigenous content that lawyers are

taking outside of the Course;

iv. encouraging CPD providers to track attendance in programming with Indigenous

content, as well as the amount of Indigenous content that is included within the

general programming;

v. following developments in other jurisdictions, and at the Federation of Law

Societies, with respect to Indigenous intercultural competence education;

61

DM2411613 24

vi. assessing the Law Society’s progress on other aspects of the TRC Action Plan,

including the development of intercultural competence educational resources;

vii. assessing what steps to take relating to the National Inquiry into Missing and

Murdered Indigenous Women and Girls Report, including in particular Call to

Justice 10.1 for training lawyers who participate in the criminal justice system (e.g.

considering whether specialized training for certain practice areas is required); and

viii. accounting for related learning by Canadian law school graduates and National

Committee on Accreditation Certificate holders.

90. Following this review and analysis, further recommendations will be made to the Benchers

in relation to:

i. the extent to which lawyers should receive additional mandatory or optional

intercultural competence training;

ii. whether such training should be a part of, or independent from, the CPD program;

iii. the focus of any future education (e.g. skills-based training, additional knowledge,

expanding the content to address intercultural competence more broadly);

iv. how to advance social awareness in addition to advancing baseline knowledge;

v. how any additional education will be delivered; and

vi. whether the Law Society or external providers will develop additional free or paid

intercultural competence programming.

62

00144987-1

LAWYERS’ INSURANCE ASSOCIATION OF NOVA SCOTIA

MEMORANDUM TO: Council, Nova Scotia Barristers Society FROM: Lawrence Rubin, Director of Insurance

Lawyers’ Insurance Association of Nova Scotia DATE: September 25, 2020 RE: LIANS Report to Council for the Period January 1, 2020 through June 30, 2020 Pursuant to Regulation 12.5.4 under the Legal Profession Act, I am pleased to provide the following report on the Lawyers’ Insurance Association of Nova Scotia’s (LIANS) 2019 financial statements and its activities for the period January 1, 2020 through June 30, 2020. Part I: Company Information and Governance LIANS conducts the mandatory professional liability (errors and omissions or E&O) insurance program for the benefit of the Membership. Established by the Legal Profession Act, LIANS is managed by a Board of Directors assisted by the Director (who is responsible for the day-to-day operations) and five committees. Three of these committees - Audit, Investment and Governance - have responsibilities not unlike similar corporate committees. The other committees are the Claims Review Committee (akin to an insurer’s large loss committee) that advises on active claims that come within its mandate and the Lawyers Assistance Program Committee that oversees the Lawyers Assistance Program (LAP). As part of its mandate, LIANS also provides risk and practice management (“RPM”) advice and services to the Membership. Some of these efforts are now in conjunction with the Society’s Legal Services Support (“LSS”). Though an insurance program that subscribes to a reciprocal (Canadian Lawyers’ Insurance Association (“CLIA”))1 rather than being an insurer in its own right, LIANS operates in a manner akin to an insurer retaining similar outside advisors, to wit:

(i) an external auditor to prepare its annual financial statements; (ii) an actuary to determine the annual practising levy and necessary capital reserves; and (iii) an investment manager responsible for investing LIANS’ capital to ensure adequate

resources are available for claims and the long-term financial health and viability of the program.

1 CLIA is an Alberta regulated insurance reciprocal

63

00144987-1 Page 2 of 9

Turning to governance, in the context of a not-for-profit organization, governance is focusing on the processes for making and implementing decisions that will continue to advance the organization’s principles and mission and provide strategic leadership.2 Governance should not be a static exercise. It is an ongoing exercise, as important for LIANS as it is for any other similar organization. Last year the Board completed a review and update of LIANS’ governance polices and strategic plan.3 Going forward, the policies will be reviewed by LIANS’ Governance Committee no later than every five years, the strategic plan no later than every three years, all subject to an intervening event that would necessitate an earlier review of any.4 A copy of the strategic plan was provided to Council with my March report. On completing that project, the Board turned its attention to a review of LIANS’ investment policy which was last looked at in 2014. The review commenced in 2019 and the updated policy was approved by the Board this past March. Like the governance policies, it will next be reviewed in five years, subject to there being an intervening event that would necessitate an earlier review. Currently we are completing a guide to the claim system and related administrative processes and then we will be turning our attention to a business interruption plan that, though following from the Society’s plan, will include issues unique to LIANS. Board of Directors The members of LIANS’ Board of Directors for the period of this report and currently, are: Robyn Elliott, QC, Chair Charles Thompson, Vice Chair Sarah Almon Raffi Balmanoukian Greg Barro, QC Glen Campbell

Sean Foreman, QC Oliver Janson Joshua Martin Jennifer Palov Tilly Pillay, QC

The Board is composed of Members from throughout the province representing various firm types (i.e. firms large and small, sole practitioners and in-house departments) and areas of practice. Board members (save the Executive Director of the Society) are required to sit on at least one of LIANS’ five standing committees. As was the case last year at this time, changes in Board membership are on the horizon. At the end of this year, Glen Campbell and Jennifer Palov will reach the term limit and I would like to take this opportunity to thank them for their service to LIANS. In addition, the non-Board seat

2 Non Profit Quarterly, https://nonprofitquarterly.org/2017/06/09/what-is-governance-definition/ 3 The governance policies cover, among other areas, conflict of interest, confidentiality, external communications and conflict resolution. 4 The next scheduled review of the strategic plan will be in 2022, the governance policies in 2024.

64

00144987-1 Page 3 of 9

on the Audit Committee is now vacant as Rob Mediema has reached his term limit. These vacancies have been posted. Anticipated to be that on the agenda of Council’s November meeting will be the appointment of new directors to take effect in January 2020. Council will receive a memorandum setting out the recommendations of LIANS’ Board. If LIANS’ Governance Committee has not completed its work by LIANS’ October Board meeting, the matter will be on the agenda of an early 2020 Council meeting. As for the Audit Committee vacancy, that appointment will be made by LIANS Board on the recommendation of its Governance Committee. LIANS Staff The following is LIANS’ staff for the period of this report and currently: Director of Insurance: Lawrence Rubin Claims Counsel: Patricia Neild Claims Counsel: Lisa Wight Database and Information Officer: Cynthia Nield Administrative Assistant: Alex Greencorn Executive Assistant: Emma Pink LIANS Committees As of the date of this report, all committees save the Audit Committee due to the mentioned vacancy have the requisite number of members to operate though some have room for additional non-Board volunteers. LIANS welcomes applications from Members interested in joining its committees. Non-Board committee members are important because today’s non-board committee volunteer may become a future board member simplifying succession when a board member steps down. Standards Committees During the period of this report, the writer staffed two of the Society’s five professional standards committees – real estate and wills. In addition, LIANS provides recording services for the others. As Council is aware, the Wills, Powers of Attorney and Personal Directives Standards Committee commenced work this year and is working through several draft standards with a target of having some out for comment this year.

65

00144987-1 Page 4 of 9

Part II: Insurance Program LIANS’ mission is to conduct the mandatory professional liability insurance program for the benefit of the Membership.5 The mandatory professional liability coverage provided by LIANS has an occurrence limit of $1,000,000 with an annual aggregate limit of $2,000,000, coverage being subject to the insurance policy’s terms and conditions.6 This has been the limit since 1988 and, from our analysis, remains the appropriate limit. For the current policy year, LIANS self-insured retention remains at $500,000 per occurrence with the next $500,000 reinsured through CLIA for the $1,000,000 total occurrence limit.7 The individual per claim deductible remains $5,000. There is also a stop loss built into the program. The stop loss varies by policy year as determined by CLIA’s actuary. For the 2020 – 2021 policy year, the stop loss is $3,350,000, an increase of $145,000 over last year. CLIA provides the policy wording. It is substantively the same for all its subscribing jurisdictions and covers claims arising from Professional Services and Incidental Services as defined.8 As previously advised, there is the ability for some tailoring to individual jurisdictional needs and the amendment made last year to the definition of Incidental Services to include coverage for lawyers in this province acting as foreclosure auctioneers is continued with this renewal. As I have stated, if an activity, otherwise uninsured, is undertaken by lawyers in this province such that it evolves into something incidental to the practice of law here, I am of the opinion that LIANS should consider providing coverage for the activity provided there is a business case and the cost and risks are acceptable.9 If so, and subject to the approval of CLIA’s underwriting committee which could decline the amendment, the activity can be endorsed on. The cyber coverage was remarketed this year. It has been expanded and improved and is now a standalone policy. The improvements and enhancements will be set out in a note to Members.

Claims Typically, LIANS has between 350 and 425 open files at any one time. There have been times where the file count is out of that range but this is the typical range. As of June 30, 2020, LIANS

5 Regulation 12.1.3 6 Excess coverage above this limit is available through CLIA or in the commercial market. For information on the CLIA program go to www.clia.ca or our website at http://www.lians.ca/services/insurance/excess-insurance. 7 The retention was increased from $300,000 to $500,000 in 2015. 8 The policy package itself is in four parts, Part A is the primary professional liability coverage, Part B is CLIA’s voluntary excess insurance and Part C is the trust protection indemnification coverage. Last year cyber coverage was Part D but it was reworked for this renewal and now a standalone policy. CLIA’s subscribing jurisdictions are NL, PEI, NS, NB, MB, SK, YU, NT and NU. 9 The factors considered and process are set out in the Director’s Report to the Membership in LIANS’ 2018 Annual Report.

66

00144987-1 Page 5 of 9

had 356 open files. This compares to 345 at December 31, 2019. Our being at the low end of the open file range is not indicative of a trend. The first half of 2020 saw 129 new claims. This compares to 144 in the first half of 2019 and 155 in the second half of 2019. We cannot say whether the pandemic was a cause of this reduction but that would be a reasonable conclusion. We closed 149 files in the first half of 2020. I have spoken in the past of complications we experience resolving some claims such as unreasonable expectations. Unrealistic expectations and claimants unwilling to be reasonable or cooperate, though not unexpected, do cause matters to take longer to resolve increasing our costs. Some, including some Members, perhaps in jest, have said that we spend too much on defence when we should be settling claims. Comments like this are not new to me for insurers hear them quite often. I can say that we most certainly do not hear comments like this from those who complete our closed file survey for all those Members are appreciative of our efforts and work. Though admittedly one’s opinion depends on which side of the table you sit at, the fact remains that the integrity of the program relies on resisting economic settlements and making appropriate indemnity payments. And sometimes it takes time to agree on the appropriate number. Acting otherwise, i.e. trading off defence costs for a quicker settlement, would have at least three adverse effects. The first would be to undermine how a professional liability insurance program has to operate to maintain its viability. The second would be to cause an increase in the levy to support increased indemnity payments. The third would be to place the lawyer’s deductible on the table as a matter of course to save defence costs. None of these effects is palatable to us nor, I would hope, the Membership. The Claims Review Committee reviews all claims with a combined damage and defence incurred of $125,000 or greater.10 As of June 3, 2020 there are 16 claims before the Committee. The average incurred figure for damages is $139,949 (median $100,000) and the average incurred for defence costs is $102,186 (median $87,053).11 LIANS’ preferred approach to claim handling is to be proactive whenever appropriate, quickly addressing issues raised by claimants or reported by lawyers. When given the opportunity, we work with the insured to repair, remediate and otherwise resolve issues before there is a loss. Because of the Members’ trust and confidence in LIANS, potential issues that could lead to serious claims are reported promptly (with some exceptions) and effectively handled in the interest of the Member. Claims that are frivolous or vexatious, unreasonable or excessive, are strongly defended. Financial Position

10 Incurred for this purpose means the sum of all amounts paid and reserved. 11 One the 16 matters has been resolved but remains open as we are waiting for counsel’s final account. If that matter is removed, the average damages incurred drops to $125,612 (median $100,000) and the average defence costs incurred increases to $108,999 (median $100,391).

67

00144987-1 Page 6 of 9

At the end of 2019 LIANS’ financial position was stable. The following is the summary of LIANS financial position as at December 31, 2019, as published in the 2019 Annual Report:12 Statement of financial position as at December 31

2019 2018 Assets $ $ Current Cash 2,443,753 1,423,821 Accounts receivable 247,104 210,167 Government remittances receivable 6,068 23,640 Levy receivable 648,375 650,370 Prepaid expenses 87,585 152,751 Recoverable unpaid claims and expenses 833,343 1,035,394 Investments 19,993,492 17,892,044 Property and equipment, net 4,537 4,651 Total assets 24,264,257 21,392,838

Liabilities Current Accounts payable and accrued liabilities 1,579,473 1,506,657 Unearned levy 1,631,827 1,613,683 Total current liabilities 3,211,300 3,120,340 Provision for levy deficiency 188,267 54,900 Provision for unpaid claims and expenses 9,837,337 9,641,561 Total liabilities 13,236,904 12,816,801 Net assets Professional liability insurance reserve 11,027,353 8,576,037

Statement of revenue and expenditure for the year ended December 31

2019 2018 $ $ Revenue 5,625,507 3,309,445 Insurance premiums (239,691) (311,265) Net revenue 5,385,816 2,998,180 Claims and expenses

Payments 1,805,838 1,810,371 Group deductible reimbursement (9,294) ▬ 1,796,574 1,810,371 Current period expense 531,194 (583,676) Total claims and expenses 2,327,738 1,226,695 Administration Total administration 1,005,647 921,078 Total expenditures 3,333,385 2,147,773 Excess (Deficiency) of revenue over expenditure before undernoted

2,052,431 850,407

Return of CLIA surplus subscriber’s equity 398,885 ▬ Excess (deficiency) of revenue over expenditure 2,451,316 850,407 Professional liability insurance reserve, beginning of year 8,576,037 7,725,630 Excess of revenue over expenditures 2,451,316 850,407

12 2019 Annual Report is on LIANS’ website at: https://www.lians.ca/sites/default/files/documents/00146929.pdf

68

00144987-1 Page 7 of 9

Professional liability insurance reserve, end of year 11,027,353 8,576,037 For 2019, LIANS was within its projections for claim and administrative costs combined. Breaking down claim costs, damage payments net of paid deductibles were under our 2019 projection whereas defence costs were slightly over. As compared to 2019, the first half of 2020 looks very different. For the first six months of this year, we are significantly over our projected indemnity payments for this period. The driver was two large losses paid in Q1, one that was both reported and paid in the quarter, the other being expected as we were working to a resolution for some time. Before going further, I will say that the program is sufficiently resilient and able to cover extraordinary quarters like Q1 was. Though defence costs are below the projection through June, there is always the caveat for them that we are often below our projection at six months but by year end we regularly push up against, and sometimes exceed, the projection. The reason is unbilled time incurred in the first half of the year and our requirement that all time incurred in a calendar year be billed by year end. For damages, though we cannot predict what will resolve and what will not, to add to our angst this year, it is not uncommon for there to be an uptick in matters resolving later in the year. This outcome has nothing to do with the coronavirus. We also expect to resolve a few other larger matters this year. Turning to the investment portfolio, the fund earned a significant (albeit unrealized) return in 2019, an improvement over 2018’s virtually nil return. Through February of this year, that trajectory was continuing. And then came the pandemic and its resulting market downturn that, in short order, erased 2019s gains from March of that year on. Since reaching our low point in March, there has been steady, measured, gradual improvement such that by the end of June we were virtually at where we started the year. By the end of July we were back into positive territory on the year, if only by a nose. That trending has continued through August. As a revised expectation for the year, moving off our projections, we will be happy to end the year with a positive return. The portfolio itself is a balanced fund with the targeted allocations being 50% fixed income, 35% equities and 15% alternative investments.13 All these investments are in funds. An action the Investment Committee took this year was to diversify its Canadian Equity, Global Equity and Short Term Bond holdings into other similarly managed funds. Different managers though adhering to a similar investment model invest in different sectors and regions. The purpose of the diversification was not to increase risk but rather to increase the breadth of our holdings so that, for example, a downturn in western Canada would not take all of our Canadian Equity holdings with it. The investment portfolio’s year runs November 1 through October 31st. For the period from November 1, 2019 through June 30, 2020, the portfolio increased in value by 1.04% with the

13 The plans asset mix targets are 50% fixed income, 35% equities and 15% alternative investments, all with an acceptable band of +/- 5%.

69

00144987-1 Page 8 of 9

increase attributed to the fixed income and real estate components. On a calendar year basis, to June 30, the portfolio was down 0.92%. Risk and Practice Management LIANS continues to provide resources to the Membership through information and education, both on its own (e.g. LIANSwers) and with LSS. LIANS also administers the mentorship program which, going forward, in partnership with LSS, may be reconfigured. For the 12th year, we, jointly with the Society like last year, will be presenting the RPM solo and small firm conference. Scheduled for November 5th, and in line with COVID-19 requirements, it will be online for the first time. As the online format so decreases the conference’s cost, LIANS will absorb any costs and offer the program at no charge to the Membership. Though we are still working on the speakers and topics, the tentative list includes tax treatment changes to work in progress, a wellness program from Homewood Health, real property with a speaker from the LRO, the equity toolkit, claims, the new cyber insurance coverage, trust accounts and upcoming regulatory changes and a technology topic. Lawyers Assistance Program The LAP service provider is Homewood Health. The program offers confidential short-term counseling, as well as a variety of online health and wellness resources. We regularly send the Membership reminders of the program. The program was recently renewed for a new three year term and with the renewal we added two new programs – Depression Care and Trauma Care. A notice was sent to all Members introducing these programs. Part III: COVID-19 In my March report I commented on the early impacts of COVID-19 and what we were doing operationally to, for lack of a better phrase, stay open. Six months later I can say that operationally we continued uninterrupted. But this is not to suggest that our business has been unaffected. In my 2019 annual report I set out several factors that could adversely affect the program and noted that some of them turned negative because of the pandemic. Though it is difficult to predict in a time like this, and though we expect some of the negative effects to continue into 2021, we are hopeful that as the year progresses there will be a calming and return to some normality. Prior to our April board meeting where we set the levy, in response to the early effects of the pandemic, I revisited several of our assumptions, from the expected number of lawyers to projected investment returns, from increased reinsurance costs to a look at our open files to see where we were on other large matters given the increase in indemnity payments in Q1. I considered revising the budget (the Board approves it in January) to take into account the new environment we were working in. The net result of that exercise would have been an increase in the actuarial levy from that which was ultimately approved in April. Accordingly I declined to

70

00144987-1 Page 9 of 9

revise the budget and when it came time to set the levy, the Board relied on the actuarial calculations based on 2019, the January budget and our pre-coronavirus assumptions. And we will see how the year plays out. But as I have stated here and in my annual report, aside from increased claim severity and payments generally, the effect of the pandemic will be felt for some time and a levy increase next year is not beyond the realm of possibility. Part IV: Closing LIANS maintains a proactive cost-effective approach to claim handling, assists Members in their practices and provides resources through its website and other initiatives. While providing these services, LIANS keeps sight on its mandate to conduct the mandatory professional liability insurance program for the benefit of Nova Scotia’s practicing insured lawyers. I am available for questions and comments. Respectfully submitted, Lawrence Rubin Director of Insurance

71

00144801-1

MEMORANDUM TO COUNCIL From: Lawrence Rubin

Date: September 25, 2020

Subject: Professional Standards – Real Estate– Standard 1.3 Opinion of Title and Certificate

of Legal Effect

For: Approval Introduction x Information

DATE September 25, 2020

Council Introduction

Council

Approval

Recommendation/Motion: This is the introduction to Council of a revised standard 1.3 – Opinion of Title and Certificate of Legal Effect - by the Professional Standards (Real Estate) Committee. Following introduction, the standard will be circulated to the membership for review and consultation. The Committee will review any comments received and then present the final form, amended if necessary, to Council for approval. Executive Summary:

One of the Committee’s mandates is to review and update existing standards as appropriate and necessary so that they align with current practice. The Committee determined that the current standard, approved by Council on November 22, 2002, requires updating to align with current practice and legislation. Once Membership comments are received on the substantive changes that serve to align the Standard with current practice, the Committee will review it through an equity lens to determine if any further considerations are required.

Exhibit:

Revised Standard 1.3 Opinion of Title and Certificate of Legal Effect with rationale for the revisions.

72

00143075-1

Existing Standard Proposed Standard Rationale

1.3 OPINION OF TITLE AND CERTIFICATE OF LEGAL

EFFECT STANDARD Non LRA parcels (not being migrated) For a parcel or an interest in a parcel not registered under the Land Registration Act a lawyer may give an opinion that the title is marketable1if, after examining the abstract of title, the lawyer is satisfied that title to the parcel is marketable in accordance with legislation, common law and equity. A lawyer who provides an opinion of title must explain any qualifications to the opinion to the client and confirm the explanation of the qualifications

1.3 OPINION OF TITLE AND CERTIFICATE OF LEGAL

EFFECT STANDARD Non LR Parcels not being migrated A lawyer may give an opinion that a parcel or an interest in a parcel which has not been registered under the Land Registration Act is marketable1 if, after examining the abstract of title, the lawyer is satisfied that title to the parcel is marketable in accordance with legislation, common law and equity. A lawyer who provides an opinion on title must explain any qualifications to the opinion to the client and confirm that explanation and any instructions relating thereto in writing to the client prior to closing2. Application for Registration on migration A lawyer may give an opinion that a parcel or an interest in a parcel which has not been registered under the Land Registration Act is marketable3 if, after examining the abstract of title, the lawyer is satisfied that title to the parcel is marketable in accordance with legislation, common law and equity. A lawyer must include in the Application for Registration all encumbrances, benefits, liens, estates and other interests which

1 Marketable Titles Act, S.N.S.1995-96, c.9 s.4 2 Standard 1.5 – Documentation of Advice and Instruction 3 Marketable Titles Act, S.N.S.1995-96, c.9 s.4; Land Registration Act, S.N.S. 2001, c.6, s.37 (9)(b)

73

00143075-1

with the client prior to closing.2 The lawyer must confirm the client’s instructions prior to closing.3

LRA Parcels APPLICATION FOR REGISTRATION

For a parcel or an interest in a parcel being registered under the Land Registration Act a lawyer may give an opinion that the title is marketable4 if, after examining the abstract of title, the lawyer is satisfied that title to the parcel is marketable in accordance with legislation, common law and equity.5

A lawyer who qualifies6 an opinion of title to the registrar in a migration of a parcel under the Land Registration Act, must,

affect the parcel and the direct or indirect right of access to the parcel, if any4. A lawyer who qualifies an opinion on title on migration must document the qualification as a Textual Qualification5 in the parcel register. A lawyer who completes a final Application for Registration of a title under the Land Registration Act must ensure that all documents required under the provisions of the Land Registration Act for the final application are complete and, if required, executed, and must retain copies of the required documents together with copies of all of the documents relied upon by the lawyer to support the opinion on title6. LR Parcels A lawyer who provides an opinion on title respecting a parcel registered under the Land Registration Act must examine the parcel register, review the documents included in the parcel register, and conduct all necessary searches in order to determine the registered ownership and interests pertaining to the parcel. A lawyer who provides an opinion on title respecting a parcel registered under the Land Registration Act must also be aware that there are Overriding Interests which may affect the parcel7.

4 Land Registration Act, S.N.S. 2001, c.6, s.37(9) (a) but noting s.40(Interests not to be included in parcel register) 5 See definition of “Textual Qualification” in the Land Registration Administration Regulations, s.2 (1) 6 Land Registration Administration Regulations,s.10 (6); Regulations made pursuant to the Legal Profession Act, S.N.S.2004,c.28 ss.1.1.1 (ma) and ss.4.6.1(k) 7 Land Registration Act, S.N.S. 2001, c.6,s.3(1)(k) and s.73

74

00143075-1

after examining the abstract of title on which the opinion is based and considering the qualifications, document the qualifications in the opinion.7

A lawyer completes an application for final registration of a title under the Land Registration Act, must ensure that all the documents required under the Act to be filed at the appropriate land registration office8 or retained by the lawyer as part of the registration9 are complete10, executed11, and in all respects in final form12 and shall compile and maintain all foundation documents which a reasonably competent lawyer

A lawyer who provides an opinion on title must explain any qualifications to the opinion to the client and confirm that explanation and any instructions relating thereto in writing to the client prior to closing8. A lawyer who provides a Certificate of Legal Effect9 to the Registrar General with respect to a parcel must examine: a. the parcel register, b. the enabling documents in the parcel register; c. the judgment roll and d. any document to accompany the Certificate of Legal Effect to ensure that the registration or recording will be effective to change the parcel register as required. ____________________________________________________ PRACTICE NOTES The following is a general guide to conducting a review of title to an LR parcel

1. Confirm that the “Parcel Access” appears accurate and, if other than public, substantiated by other information in the parcel register.

8 Standard 1.5 – Documentation of Advice and Instruction 9 The following Forms contain a Certificate of Legal Effect: i.e., require to the lawyer to certify that in the lawyer’s professional opinion “it is appropriate to make the changes to the parcel register(s)” as set out in the Form: Form 6A – Request for correction of a previous Certificate of Legal Effect Form 15 – Notice to the Registrar to cancel the recording of a security interest Form 15A – Notice to the Registrar to cancel a recorded interest or judgment Form 21 – Correction of Misspelling of Name Form 24 – A change to the Registered Interests, Benefits or Burdens Form 26 – Adding a Recorded Interest or a Power of Attorney Form 27 – Cancelling a Recorded Interest Form 45 – Updating the Parcel Register re access, Benefits and Burdens following subdivision Form 49 – Correcting a Form 26 or a Form 27 which contains an error

75

00143075-1

would rely upon to support the opinion of title.13

Parcel Registered Under Land Registration Act A lawyer who provides an opinion or a certificate of legal effect for a parcel or an interest in a parcel registered under the Land Registration Act, must examine the parcel register and conduct all necessary searches in order to determine the registered ownership and interests pertaining to the parcel. A lawyer who provides an opinion of title, must explain all interests in the parcel, qualifications and limitations on the opinion to the client and confirm the explanation of the qualifications with the client prior to closing.14 The lawyer must confirm the client’s instructions prior to closing.15

Revisions and Recordings of parcels under the Land Registration Act

2. Review the Instrument(s) filed under “Registered Interest” to ensure that the registered owners are correctly described in the parcel register and the legal description in the Deed(s) reflects all or, where lots have been consolidated, a portion of the lands described in the parcel description. If lands have been consolidated while under current ownership, the lawyer should review the approved Survey Plan, if any, to ensure that all component lots were conveyed to the Registered Owner(s) and are included in the current legal description.

3. (A) Review all “Benefits” and “Burdens” to determine how they apply to the property and to confirm that they have not expired. (B) for lands other than condominium units, check that all benefits and burdens are accurately reflected in the legal description. (C) Where appropriate check that the mirror image burden or benefit is recorded against title for the affected neighbouring lands and that there are no problems with priorities.

4. Consider the impact of any textual qualifications and whether they still apply.

5. Review the “Recorded Interests” to ensure that the interest holder is accurately reflected in the parcel register and the provisions of the recorded document(s) do not prevent or compromise the current transaction contemplated.

6. Review notes put on the parcel register by Registry staff. 7. Review the current legal description and any relevant

survey information on record for obvious discrepancies. ADDITIONAL RESOURCES C. Walker, QC, “Abstracts and the Land Registration System” in Land Registration Act Education Program, LRA Education

76

00143075-1

A lawyer who applies to revise a parcel register or to effect a recording in circumstances where it is necessary to establish priority of a registered or recorded interest must examine:

a. the parcel register; b. the enabling documents in the parcel register;16 c. the judgment roll;17 d. Non-LR Documents in Process; e. Plan Index; f. Plans in Process; g. By PID for LR-Documents in Process; h. Power of Attorney Roll (if the document enabling the revision or recording is signed pursuant to a Power of Attorney which is not recorded in the parcel register); and i. any document to accompany the certificate of legal effect, and be satisfied that the registration or recording which purports to change the parcel register is effective.

materials C. Walker, QC, “Certifying Title and Qualifying Title under the Land Registration Act” in Land Registration Act Education Program, LRA Education materials I. MacLean , QC, “Searching Land Registered Parcels”, CBA Professional Development Conference, January 8, 2010 I. MacLean, QC, “Title Searching Land Registered Parcels” (April, 2016)

77

00143075-1

FOOTNOTES

1 Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 4 2 Standard 1.5 - Documentation of Advice and Instruction 3 See Footnote #2 4 Land Registration Act, S.N.S., 2001, c. 6, s. 37(9)(b), Marketable Titles Act, S.N.S. 1995-96, c. 9, s. 4 5 Nova Scotia (Attorney General) v. Brill, 2010 NSCA 69. Title to a parcel may be registered pursuant to the Land Registration Act even though title cannot be certified as marketable. Land Registration Act, S.N.S., s. 37(9)(b) and Land Registration Administration Regulations, s. 11 and definition of textual qualification in s. 2(1). 6 Land Registration Act, S.N.S., 2001, c. 6, s. 37(9)(a) and Land Registration Administration Regulations, s. 11 and definition of textual qualification in s. 2(1) 7 See Footnote #2

78

00143075-1

8 Land Registration Act, S.N.S., 2001, c. 6, ss. 37(4)(ba), (f), (g) and 37(5) and Land Registration Administration Regulations, ss. 10(2)(b) and 10(3)(a) 9 Land Registration Administration Regulations, s.10(6) 10 Land Registration Act, S.N.S., 2001, c. 6, s. 37(5) and Land Registration Administration Regulations, s. 10(6) 11 Land Registration Administration Regulations, s. 4(8) 12 Land Registration Administration Regulations, s. 10(2)(b) 13 Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28, ss. 1.1.1 (ma) and 8.2.3.1 14 See Footnote #2 15 See Footnote #2 16 Land Registration Act, S.N.S., 2001, c. 6, s.13(3). 17 Land Registration Administration Regulations, s. 23(1)(h); Standard 3.5 - Judgments; Standard 4.3 - Name Standards.

79

00143075-1

ADDITIONAL RESOURCES

A lawyer must accompany an application to register a parcel pursuant to the Land Registration Act with an opinion of title certified by a qualified lawyer, disclosing to the Registrar General the interests being registered in the parcel and, subject to section 40, all encumbrances, liens, estates, qualifications and other interests affecting the parcel and the direct or indirect right of access to the parcel, if any. See Land Registration Act, S.N.S. 2001, c. 6, s. 37(9)(a).

Sheriff’s Deeds: Standard 3.8 – Judicial Sales; Standard 3.7 - Tax Deeds

C. Walker, QC, “Abstracts and the Land Registration System” in Land Registration Act Education Program, LRA Education Materials

C. Walker, QC, “Certifying Title and Qualifying Title under the Land Registration Act”

80

00143075-1

in Land Registration Act Education Program, LRA Education Materials

Ian MacLean QC, “Searching Land Registered Parcels”, CBA Professional Development Conference, January 8, 2010.

Section 13.3 of the Regulations made pursuant to the Legal Profession Act, S.N.S. 2004, c. 28, provides for audit of foundation documents by LRA Auditors. Practice Notes The necessity of searching the Plan Index is explained in a November 19, 2015 email from Janice M. McNenly (Deputy Registrar General): “One cannot rely on “Property Details” to disclose that there is a plan that may impact the configuration or even PID numbers currently appearing for a lot under search. There is a 5 day turnaround time for the mapper to process a subdivision or consolidation plan so the fact that one does not appear in the “Details” view would not be at all conclusive evidence that a plan has not been filed. In

81

00143075-1

addition, there are other documents recorded in the plan index including boundary line agreements, development agreements and retracement plans to name but a few that are not held to the 5 day turnaround time to be processed. We have seen situations where a lawyer released a mortgage and only named the “parent PID” when a plan had been recorded that created a number of infants to which the mortgage was appropriately inherited. It is imperative that a search of the plan index as well as “plans in process” be included.”

82

00135483-1

MEMORANDUM TO COUNCIL From: Lawrence Rubin

Date: September 25, 2020

Subject: Professional Standards – Real Estate– Standard 2.4 Plans and Surveys

For: Approval x Introduction Information

DATE January 24, 2020

Council Introduction

September 25, 2020

Council

Approval

Recommendation/Motion: This is revised standard 2.4 – Plans and Surveys – by the Professional Standards (Real Estate) Committee. The standard was circulated to the membership and Equity Committees for review and consultation. All comments received were reviewed by the Committee and the Standard is now being brought back to Council for final approval. Executive Summary: One of the Committee’s mandates is to review and update existing standards as appropriate and necessary so that they align with current practice. The Committee reviewed the current standard, approved by Council on November 22, 2002, and determined that it required updating to align with current practice. In particular, the committee added to the existing standard that a lawyer should explain to the lawyer's client the difference between obtaining an up-to-date survey and title insurance. References to Standard 1.5 (Documentation and Advice) and Standard 5.5 (Title Insurance) were added to the footnotes, to tie into the above-noted change. Exhibit:

Revised Standard 2.4 - Plans and Surveys with rationale for the revisions.

83

00141151-1

EXISTING STANDARD PROPOSED STANDARD RATIONALE

STANDARD In preparing an opinion of title, a lawyer must advise the client that any opinion provided to the client will be qualified as being subject to survey.1 A lawyer must advise the client that the lawyer does not deal with ‘extent’ and that boundary and location are only ascertained through a survey and recommend that the client retain the services of a surveyor to determine the extent of title to the parcel being examined. A lawyer must confirm the qualification of the opinion as subject to survey prior to closing. The lawyer must confirm the client’s instructions prior to closing.2

STANDARD 2.4 PLANS AND SURVEYS

In preparing an opinion of title, a lawyer must advise the client that any opinion provided to the client will be qualified as being subject to survey.1 A lawyer must advise the client that the lawyer does not deal with ‘extent’ and that boundary and location are only ascertained through a survey and recommend that the client retain the services of a surveyor to determine the extent of title to the parcel being examined. A lawyer must confirm the qualification of the opinion as subject to survey prior to closing. The lawyer must confirm the client’s instructions prior to closing.2 Before finalizing an opinion of title, a lawyer must examine plans arising from the search and survey information affecting the parcel. A lawyer should identify and reconcile where possible any material discrepancies between the legal description for the parcel or any information contained in the abstract, and survey information.3 After preparing an opinion of title, a lawyer should advise the client of material discrepancies between plans arising from the search and survey information affecting the parcel. A lawyer should explain to their client the difference between obtaining an up to date survey or location certificate and obtaining a title insurance policy.4 ADDITIONAL RESOURCES

The Committee reviewed the current standard as approved by Council on November 22, 2002, and determined that it required updating to align with current practices. In particular, the committee added to the existing standard that a lawyer should explain to the lawyer's client the difference between obtaining an up-to-date survey and title insurance. References to Standard 1.5 (Documentation and Advice) and Standard 5.5 (Title Insurance) were added to the footnotes, to tie into the above-noted change.

1 Opinions subject to survey: Ravina and A & R Properties Ltd. v. Stern (1987), 77 N.S.R. (2d) 406, per Clarke C.J.N.S. (N.S.S.C.A.D.) 2 Standard 1.5 - Documentation of Advice and Instruction 3 Advice about survey matters: Marwood v. Charter Credit Corp. (1971), 2 N.S.R. (2d) 743, per Coffin J.A. (N.S.S.C.A.D.) 4 See Standard 5.5 Title Insurance

84

00141151-1

Before finalizing an opinion of title, a lawyer must examine plans arising from the search and survey information affecting the parcel. A lawyer should identify and reconcile where possible any material discrepancies between the legal description for the parcel or any information contained in the abstract, and survey information.3 After preparing an opinion of title, a lawyer should advise the client of material discrepancies between plans arising from the search and survey information affecting the parcel. FOOTNOTES 1. Opinions subject to survey: Ravina and A & R Properties Ltd. v. Stern (1987), 77 N.S.R. (2d) 406, per Clarke C.J.N.S. (N.S.S.C.A.D.) 2. Standard 1.5 - Documentation of Advice and Instruction 3. Advice about survey matters: Marwood v.

Parcel descriptions: Land Registration Act, S.N.S. 2001, c. 6, s. 21(1) MacLean, Ian H / Title searching land registered parcels (April 2016)

PRACTICE NOTE It is good practice to provide a copy of any survey or plan material showing the approved lot to the client for review, particularly if the approved plan is an instrument of subdivision, as instruments of subdivision are not usually drawn to the same standard as survey plans. A client who is familiar with the land may identify a problem which the lawyer would not have the knowledge to recognize.

85

00141151-1

Charter Credit Corp. (1971), 2 N.S.R. (2d) 743, per Coffin J.A. (N.S.S.C.A.D.) ADDITIONAL RESOURCES Parcel descriptions: Land Registration Act, S.N.S. 2001, c. 6, s. 21(1) MacLean, Ian H / Title searching lan

86

00135934-1

MEMORANDUM TO COUNCIL From: Lawrence Rubin

Date: September 25, 2020

Subject: Professional Standards – Real Estate– Standard 3.9 Trustee’s Deed

For: Approval x Introduction Information

DATE January 24, 2020

Council Introduction

September 25, 2020

Council

Approval

Recommendation/Motion: This is revised standard 3.9 Trustee’s Deed – by the Professional Standards (Real Estate) Committee. Following introduction to Council on January 24, 2020, the proposed Standard was communicated to the membership and Equity Committees for review and consultation. All comments received were reviewed by the Committee and the Standard is now being brought back to Council for approval. Executive Summary: One of the Committee’s mandates is to review and update existing standards as appropriate and necessary so that they align with current practice. The Committee reviewed the current standard, approved by Council on November 22, 2002, and determined that it required updating to align with current practices. Changes to the Standard are adding a reference to Standard 3.10 – Estates as well as adding a third clause to note that in cases when a lawyer is acting for a trust, the trust is not the registered owner, the trustees are. Exhibit: Revised Standard 3.9 Trustee’s Deeds with rationale for the revisions.

87

00141134-1

EXISTING STANDARD PROPOSED STANDARD RATIONALE

STANDARD

Although in general a lawyer is not obliged to inquire as to specific terms of a trust in a conveyance of an interest in a parcel,

1. when the lawyer is acting for the buyer from a trustee, the lawyer must be satisfied that the terms of the trust, on the face of the record or known to the lawyer, are met; and

2. when the lawyer is acting for the seller and circumstances warrant, the lawyer should make further inquiries to ensure that the client as trustee is fully informed of the requirements for an effective conveyance.

STANDARD 3.9 TRUSTEE’S DEEDS

Although in general a lawyer is not obliged to inquire as to specific terms of a trust in a conveyance of an interest in a parcel,

1. when the lawyer is acting for the buyer from a trustee, the lawyer must be satisfied that the terms of the trust, on the face of the record or known to the lawyer, are met;

2. when the lawyer is acting for the seller and circumstances warrant, the lawyer should make further inquiries to ensure that the client as trustee is fully informed of the requirements for an effective conveyance; and

3. a lawyer who is acting for trustees on either the migration or the purchase of land held or to be held as part of the assets of the trust must be aware that the trust itself (e.g. ABC Family Trust or The CDE Personal Trust, to name common examples) must not be named as the Registered Owner of the parcel(s). The Registered Owner(s) must be the trustee(s) of the trust.1

4. a lawyer who is acting on the sale of trust lands must consider who has management and control of the trust. If the sole decision maker or the majority of the decision makers, whether Trustees or beneficiaries, are non-residents of Canada, the lawyer should obtain a clearance certificate from Canada Revenue Agency pursuant to S. 116 of the Income Tax Act (Canada).23

The Committee reviewed the current standard as approved by Council on November 22, 2002, and determined that it required updating to align with current practices. Changes are adding a reference to Standard 3.10 – Estates as well as adding a third clause to note that in the cases when a lawyer is acting for a trust, the trust is not the registered owner, the trustees are.

1 Land Registration Act, S.N.S.2001,c.6,s.28. Note however that the individual Trustees do not always have to be named. For example, a statute creating a particular Church or organization may indicate that the Church/organization lands are to be held by its Trustees. It is acceptable to describe the Registered Owners in the Company/Entity field as “Trustees of [name of the Church or other organization]” as indicated by the constating documents. 2 Garron Family Trust v. Her Majesty the Queen [2010 2CTC 2346 (TCC), aff’d 2010 FCA 309; aff’d 2012 SCC14]; Canada Revenue Agency Technical Interpretation 2012 – 0448681e5. 3 Income Tax Act, R.S.C., 1985, c.1 (5th Supp.), s.116.

88

00141134-1

ADDITIONAL RESOURCES

Trustee Act, R.S.N.S. 1989, c. 479 Public Trustee Act, R.S.N.S.

1989, c. 379 Deeming provisions: Land

Registration Act, S.N.S. 2001, c. 6, s. 28

See also Real Estate Standard 3.10: Estates

5. a lawyer acting on the sale or transfer of trust lands must determine who, if

anyone, might have a matrimonial interest in the lands4 and draft the appropriate Affidavit of Status accordingly.

ADDITIONAL RESOURCES

Trustee Act, R.S.N.S. 1989, c. 479 Public Trustee Act, R.S.N.S. 1989, c. 379 Deeming provisions: Land Registration Act, S.N.S. 2001, c. 6, s. 28 See also Real Estate Standard 3.10: Estates

PRACTICE NOTES

With respect to Affidavits of Status in Deeds transferring residences which are held in trust, it is important to remember that if the Trustee is a pure Trustee, i.e. not also a beneficiary, and not married to a beneficiary of the Trust, the marital status of the Trustee is irrelevant and including in the Deed an Affidavit which states that the Trustee has not occupied the property as a matrimonial home is not helpful. The terms of the trust should indicate whether any beneficiary of the trust has the right to occupy the residence. If a beneficiary does have the right to occupy the residence then it may be appropriate for the beneficiary and the spouse of the beneficiary to consent to the Deed and for the Affidavit of Status to reflect their interest in the property. If no beneficiary has a matrimonial interest under the terms of the trust the Trustee can swear that no beneficiary or other person can claim through the trust an interest in the property under the Matrimonial Property Act or the Vital Statistics Act.

4 Matrimonial Property Act, R.S.N.S., 1989, c. 275, as amended

89

00142906-1

MEMORANDUM TO COUNCIL From: Lawrence Rubin

Date: September 25 , 2020

Subject: Professional Standards – Real Estate– Standard 3.17 Options and Rights of First

Refusal

For: Approval x Introduction Information

DATE January 24, 2020

Council Introduction

September 25, 2020

Council

Approval

Recommendation/Motion: This is revised standard 3.17 Options and Rights of First Refusal – by the Professional Standards (Real Estate) Committee. Following introduction to Council on January 24, 2020, the proposed Standard was communicated to the membership and Equity Committees for review and consultation. All comments received were reviewed by the Committee and the Standard is now being brought back to Council for approval. Executive Summary:

One of the Committee’s mandates is to review and update existing standards as appropriate and necessary so that they align with current practice. The Committee determined that the current standard, approved by Council on November 22, 2002, requires updating to align with current practice and legislation, particularly with respect to the removal of reference to the rule against perpetuities in both the standard and footnotes. Also added was the recommendation that a lawyer consider how an option/right of first refusal can be removed.

Exhibit:

Revised Standard 3.17 – Options and Rights of First Refusal with rationale for the revisions.

90

00142908-1

EXISTING STANDARD PROPOSED STANDARD RATIONALE STANDARD

When a lawyer conducts a title search and identifies an option or right of first refusal, the lawyer must determine whether the rights created are contractual or run with the land.1

If the lawyer determines that an interest in land has been created, the lawyer should consider whether it is void as infringing the rule against perpetuities.2

If the lawyer determines that the interest runs with the land and will not be released, the lawyer must explain the interest to the client and confirm the client’s instructions prior to closing. 3

FOOTNOTES

1. P.M. Perell, “Options, Rights of Repurchase and Rights of First Refusal as Contracts and as Interests in Land” (1991), 70 Can. Bar Rev.1

2. Options void as infringing the rule against perpetuities: Politzer v.

3.17 OPTIONS AND RIGHTS OF FIRST REFUSAL

STANDARD

When a lawyer conducts a title search and identifies an option or right of first refusal, the lawyer must determine if the option or right of first refusal is still applicable. If the option or right of first refusal is still applicable, the Lawyer should consider how the option or right of first refusal can be exercised, and how it can be released. A lawyer who drafts an option or right of first refusal should set out in the document how the option or right of first refusal can be exercised, and how it can be released or terminated. ________________________________________ FOOTNOTES

1. P.M. Perell, “Options, Rights of Repurchase and Rights of First Refusal as Contracts and as Interests in Land” (1991), 70 Can. Bar Rev.1

2. Standard 1.5 - Documentation of Advice and Instruction

ADDITIONAL RESOURCES

F.J. Powell, “Options and Rights of First Refusal” in Real Property, (C.L.E.S.N.S. April, 1987)

The Committee determined that the current standard as approved by Council on November 22, 2002, requires updating to align with current practice and legislation, particularly with respect to the removal of reference to the rule against perpetuities in both the standard and footnotes. Also added was the recommendation that a lawyer consider how an option/right of first refusal can be removed.

91

00142908-1

Metropolitan Homes Ltd. [1976] 1 S.C.R. 363, per Laskin C.J. (S.C.C.)

3. Standard 1.5 - Documentation of Advice and Instruction

ADDITIONAL RESOURCES

F.J. Powell, “Options and Rights of First Refusal” in Real Property, (C.L.E.S.N.S. April, 1987)

92

1

Katie Lister

From: Tilly PillaySent: August 17, 2020 9:15 AMTo: Katie ListerSubject: FW: NSBS Fee Relief Program for Qualifying Practising Members

Hi, Katie. This email exchange will be included in the September Council meeting package under the heading “For Information”. Please save it accordingly. Thank you! 

Tilly 

From: Chris Willison <[email protected]>  Sent: August 14, 2020 6:17 AM To: Tilly Pillay <[email protected]> Cc: [email protected] Subject: RE: NSBS Fee Relief Program for Qualifying Practising Members 

Thank you Tilly,

As a member of the NSBS I, as all other members, am entitled to assume that the council will act in accordance with its mandated goals and in the interest of all members, not only some members.

To remind you, some of those stated goals are (emphasis added)

Our Mission

We regulate the legal profession in the public interest in a manner that is proactive, inclusive and supportive so our members deliver competent and ethical legal services.

Fairness

We operate fairly and impartially. We are proactive, principled and proportionate.

Integrity

We approach our work in an ethical, honest and principled fashion.

In treating some members differently from others you are not meeting these standards, you are in fact actively discriminating against any member that does not fulfil the arbitrary criteria you have set for fee relief.

How can that be fair to all members? How can that not be prejudicial or discriminatory to those members that do not fulfil those criteria – that is not ‘inclusive’? How can it be that you are treating all members fairly and impartially in operating this program? How are you supporting those members that do not fall within the criteria – there will be many members that do not meet the criteria whose business has suffered as much or more than those falling within the criteria?

I am not suggesting any type of dishonesty here, far from it, but treating members ethically, honestly and in a principled fashion is about treating all members equally and fairly. This program does not do this.

93

2

I have no issue at all with the work the society does to promote ethnic and minority group inclusion, however I do have an issue when any group, be it a minority or majority group, is treated differently or discriminated against. This program is unfair and does just that. I strongly suggest that it is reconsidered and changed to a program that any member of the society may access before it is challenged. It is not appropriate that a governing body for lawyers in Nova Scotia is seen or found to be actively discriminating against any part of its own membership, that will neither serve its members or the legal system in Nova Scotia well. Kind regards Chris Chris Willison Partner Tel : +44 (0)20 7841 0390 DDI : +44 (0)20 3818 9217 Mobile : +44 (0)78 2344 6715 Fax : +44 (0)20 7837 3926 London office: 6 Coldbath Square, London, EC1R 5HL with other offices in Cardiff Email : [email protected]

  COVID‐19 update: In accordance with government advice, everyone at FWJ is currently working remotely. But it is very much business as usual. We are all set up to work virtually and be fully responsive by phone and email, and we have the technology in place to conduct meetings via conference call or online.  Please send any post by email as the lockdown means that we are unable to collect it from the office. Should you have any questions in relation to your own response to COVID‐19, please do get in touch. Thank you for your continued support.  In the event that documents are dispatched to Francis Wilks & Jones by post or DX only by way of service of proceedings or in accordance with court deadlines, we are unable to accept service because of current government restrictions. Francis Wilks & Jones, and their clients, reserve the right to rely on this notice in the event any failure to communicate such information causes prejudice to ourselves or our clients. 

       - Please consider the environment - do you really need to print this email?

Francis Wilks & Jones is the trading name of FWJ Legal Limited. Registered in England and Wales (Reg No 8582930). Authorised and regulated by the Solicitors Regulation Authority No. 599151. For more information about the firm, go to www.franciswilksandjones.co.uk   Read our email disclaimer I Read our privacy policy

 IMPORTANT NOTICE: SENDING FUNDS TO OUR ACCOUNTS PLEASE NOTE: It is the policy of this firm to no longer send or accept any bank account details via email that are not separately verified. We will also not send you any notification purporting to be a change to any of our bank details by email. It will be your responsibility to verify directly with the solicitor at this firm known to you all bank account details provided to you before making any payment to ensure payments are correctly and promptly made and to avoid fraud. This firm accepts no liability for any loss suffered by any person as a result of funds being sent to the wrong or a false account. Should you have any concerns about any correspondence which purports to be from this firm relating to the payment of funds to our accounts or any transfer of funds, please telephone the Risk Partner or Practice Director immediately.  

From: Tilly Pillay <[email protected]>  Sent: 13 August 2020 20:12 

94

3

To: Chris Willison <[email protected]> Cc: [email protected] Subject: RE: NSBS Fee Relief Program for Qualifying Practising Members 

Mr. Willison:  Thank you for your emails and for being in touch.  I am sorry to hear that you are disappointed with the Society’s decision to offer fee relief to those of our members who are especially being adversely impacted by the pandemic. One of the lessons we have learned over the years is that treating everyone equally does not mean we are treating them equitably.   The Society is committed to promoting diversity and inclusion in the legal profession. We are also committed to ensuring that Nova Scotians have access to ethical and culturally competent legal services. To achieve these goals, we need to ensure we do what we can to support women (who are the primary caregivers for dependants), our newer members (who bring new ideas and approaches and are increasingly from diverse communities) and members from equity seeking groups so that they can remain in the profession. Targeted fee relief in these challenging times is one strategy to accomplish this.   I respect you may not agree with our desired outcomes, nor with our approach. Thank you for taking the time to share your thoughts with me.  Kind regards,  Tilly  

Tilly Pillay, QC Executive Director Nova Scotia Barristers' Society Cogswell Tower 800–2000 Barrington Street Halifax, NS B3J 3K1 T: 902 422 1491 F: 902 429 4869 [email protected] http://nsbs.org/

We would like to acknowledge that the Nova Scotia Barristers’ Society sits on Mi’kma’ki, the ancestral and unceded territory of the Mi’kmaq People. This territory is covered by the Treaties of Peace and Friendship. CONFIDENTIALITY NOTICE: This message may contain confidential information. If you have received this e-mail in error or are not the intended recipient, you may not use, copy, disseminate, or distribute it. Do not open any attachments. Delete this message immediately from your system and notify the sender by e-mail or telephone that you have done so. Thank you.      

From: Chris Willison <[email protected]>  Sent: August 13, 2020 1:11 PM To: Tilly Pillay <[email protected]> Cc: [email protected] Subject: RE: NSBS Fee Relief Program for Qualifying Practising Members 

Hello Tilly,

95

4

I do not appear to have had a reply to my email. I look forward to your explanation. Kind regards Chris Chris Willison Partner Tel : +44 (0)20 7841 0390 DDI : +44 (0)20 3818 9217 Mobile : +44 (0)78 2344 6715 Fax : +44 (0)20 7837 3926 London office: 6 Coldbath Square, London, EC1R 5HL with other offices in Cardiff Email : [email protected]

  COVID‐19 update: In accordance with government advice, everyone at FWJ is currently working remotely. But it is very much business as usual. We are all set up to work virtually and be fully responsive by phone and email, and we have the technology in place to conduct meetings via conference call or online.  Please send any post by email as the lockdown means that we are unable to collect it from the office. Should you have any questions in relation to your own response to COVID‐19, please do get in touch. Thank you for your continued support.  In the event that documents are dispatched to Francis Wilks & Jones by post or DX only by way of service of proceedings or in accordance with court deadlines, we are unable to accept service because of current government restrictions. Francis Wilks & Jones, and their clients, reserve the right to rely on this notice in the event any failure to communicate such information causes prejudice to ourselves or our clients. 

       - Please consider the environment - do you really need to print this email?

Francis Wilks & Jones is the trading name of FWJ Legal Limited. Registered in England and Wales (Reg No 8582930). Authorised and regulated by the Solicitors Regulation Authority No. 599151. For more information about the firm, go to www.franciswilksandjones.co.uk   Read our email disclaimer I Read our privacy policy

 IMPORTANT NOTICE: SENDING FUNDS TO OUR ACCOUNTS PLEASE NOTE: It is the policy of this firm to no longer send or accept any bank account details via email that are not separately verified. We will also not send you any notification purporting to be a change to any of our bank details by email. It will be your responsibility to verify directly with the solicitor at this firm known to you all bank account details provided to you before making any payment to ensure payments are correctly and promptly made and to avoid fraud. This firm accepts no liability for any loss suffered by any person as a result of funds being sent to the wrong or a false account. Should you have any concerns about any correspondence which purports to be from this firm relating to the payment of funds to our accounts or any transfer of funds, please telephone the Risk Partner or Practice Director immediately.  

From: Chris Willison  Sent: 12 August 2020 15:49 To: '[email protected]' <[email protected]> Subject: FW: NSBS Fee Relief Program for Qualifying Practising Members 

Dear Tilly,

96

5

I am frankly amazed at this announcement. This is unfair, unprofessional and for a profession that prides itself on dealing with people fairly I am very disappointed with the NSBS. What this in effect does is treat a group of members differently from others. How can that be fair? The NSBS now wants the senior members of the Bar to in effect subsidise the fees for its junior members, or minority groups. That is unfairly prejudicial to those that do not qualify under these arbitrarily set criteria. Please explain to me how this is equitable and not prejudicial? As far as I am aware, all members of the NSBS stand equal, shoulder to shoulder, so any fee relief or reduction should apply across the board and there should not be any need for any qualifying criteria. Kind regards Chris Chris Willison Partner Tel : +44 (0)20 7841 0390 DDI : +44 (0)20 3818 9217 Mobile : +44 (0)78 2344 6715 Fax : +44 (0)20 7837 3926 London office: 6 Coldbath Square, London, EC1R 5HL with other offices in Cardiff Email : [email protected]

  COVID‐19 update: In accordance with government advice, everyone at FWJ is currently working remotely. But it is very much business as usual. We are all set up to work virtually and be fully responsive by phone and email, and we have the technology in place to conduct meetings via conference call or online.  Please send any post by email as the lockdown means that we are unable to collect it from the office. Should you have any questions in relation to your own response to COVID‐19, please do get in touch. Thank you for your continued support.  In the event that documents are dispatched to Francis Wilks & Jones by post or DX only by way of service of proceedings or in accordance with court deadlines, we are unable to accept service because of current government restrictions. Francis Wilks & Jones, and their clients, reserve the right to rely on this notice in the event any failure to communicate such information causes prejudice to ourselves or our clients. 

       - Please consider the environment - do you really need to print this email?

Francis Wilks & Jones is the trading name of FWJ Legal Limited. Registered in England and Wales (Reg No 8582930). Authorised and regulated by the Solicitors Regulation Authority No. 599151. For more information about the firm, go to www.franciswilksandjones.co.uk   Read our email disclaimer I Read our privacy policy

 IMPORTANT NOTICE: SENDING FUNDS TO OUR ACCOUNTS PLEASE NOTE: It is the policy of this firm to no longer send or accept any bank account details via email that are not separately verified. We will also not send you any notification purporting to be a change to any of our bank details by email. 

97

6

It will be your responsibility to verify directly with the solicitor at this firm known to you all bank account details provided to you before making any payment to ensure payments are correctly and promptly made and to avoid fraud. This firm accepts no liability for any loss suffered by any person as a result of funds being sent to the wrong or a false account. Should you have any concerns about any correspondence which purports to be from this firm relating to the payment of funds to our accounts or any transfer of funds, please telephone the Risk Partner or Practice Director immediately.  

From: Nova Scotia Barristers' Society <[email protected]>  Sent: 12 August 2020 15:33 To: Chris Willison <[email protected]> Subject: NSBS Fee Relief Program for Qualifying Practising Members 

View email in browser

2020-2021 NSBS Fee Relief Program for Qualifying

Practising Members

As part of our continued support of members through the COVID-19 pandemic, Council

recently approved a program to reduce fees for the 2020/2021 year by 50% for

qualifying practising members.

Criteria

98

7

To qualify for this fee relief program, members must fall within at least one of the following

groups:

0-7 years since call to the bar;

self-identify as a member of an equity-seeking group; or

in a primary care-giving role in relation to dependants;

and

have experienced job loss or reduced employment income of at least 40% due to

COVID-19; or

have experienced a reduction of gross billings of at least 40% for the period of

March 2020 to August 2020 as compared to either March 2019 to August 2019 or

September 2019 to February 2020.

The program is not available to:

members employed by the Nova Scotia Legal Aid Commission or Dalhousie Legal

Aid Service,

members employed in the civil service of the Province of Nova Scotia, and

members employed in the civil service of the Government of Canada.

How to Apply

If you meet the program criteria, please complete the affidavit for application and send it

to the Society’s Executive Director Tilly Pillay QC by Thursday, September 10, 2020, at

[email protected] or mail to:

ATTN: Tilly Pillay QC

Nova Scotia Barristers’ Society

Cogswell Tower, 800–2000 Barrington Street

Halifax NS B3J 3K1

Download the affidavit for application

99

8

Background & Council’s COVID-19 Task Force

As a response to the COVID-19 pandemic, Council created a COVID-19 task force in April

2020 to discuss and respond to hardships that members may be facing. We then

implemented a fee deferral for members until September 2020 as an interim solution. We

also put out a call for feedback from members as the task force gathered information and

data to inform recommendations about long-term options to support members.

After receiving insight from members, the task force introduced the fee relief program and

Council approved it at the July meeting as a longer-term approach to support members.

Council also approved a recommendation from the task force that the LIANS Board

considers granting a similar reduction in the Insurance Levy for qualifying

members. Please note that the LIANS Board has not made their decision yet and we

will update members via email as soon as we have that information.

Read more in the memo to Council on page 12 of the July meeting package.

Questions? Please contact Tilly Pillay QC at [email protected].

Connect with us

Copyright © 2020 Nova Scotia Barristers' Society, All rights reserved.

You are receiving this email as a member of the NSBS. If you choose to unsubscribe you will no longer

receive monthly Society news. You will need to provide an updated email address if you decide to

resubscribe in the future. Questions? Contact the Society's Communications Advisor Collette Deschenes

100

9

at [email protected].

Our mailing address is:

Nova Scotia Barristers' Society

800–2000 Barrington Street

Cogswell Tower

Halifax, Ns B3J 3K1

Canada

Add us to your address book

Want to change how you receive these emails?

You can update your preferences or unsubscribe from this list.

101

MEMORANDUM TO COUNCIL

From: Tilly Pillay QC, Executive Director

Date: September 15, 2020

Subject: Vacancy in Central District

After the recent resignation of Ellen Burke there is a vacancy for Council Representative in the Central District.

There are two options for to how to proceed: a by-election can be held in the district or alternatively as per Regulation 2.3.5 Council can appoint a practising lawyer from the appropriate district.

The last time this occurred, after the last election, we had a vacancy in the Southwestern District. Council opted to have the Governance and Nominating committee handle the matter. If Council wishes, this can now be done by the Nominating Committee. They would put out an expression of interest in the Central District so practising members from that district can put their names forward for consideration. The Nominating Committee will vet the applications, hold interviews as necessary and make a recommendation to Council for appointment.

How does Council wish to proceed?

P.S. There is currently an inconsistency between Council Policy 11 and the regulations. Council Policy 11 is being reviewed by the Governance Committee. In the meantime, the regulation prevails.

102

COUNCIL MEETING MINUTES VIA VIDEOCONFERENCE

Date July 24, 2020 Time 9:00 am

Present Jim Rossiter QC, President

Tuma Young QC, First Vice President Denise Mentis-Smith QC, Second Vice President Tilly Pillay QC Jillian Barrington Cheryl Canning QC Sheree Conlon QC Bryan Darrell Deanna Frappier QC David Hirtle Michelle Kelly Josie McKinney Andrew Nickerson QC Melanie Petrunia Jill Perry Carole Lee Reinhardt Jack Townsend Michelle Ward Patrick Young

Regrets: Dr. Rod Wilson Natalie Borden Ellen Burke Shane Russell Guests: Staff: Kate Shewan Jane Willwerth, recording

1. INTRODUCTORY MATTERS/CALL TO ORDER

1.1 Introductory Remarks President Jim Rossiter QC called the meeting to order. He acknowledged that the Council meeting was taking place on traditional Mi’kmaq territory and that Council lives and works under treaties based on peace and friendship. He welcomed Denise Mentis-Smith QC, Second Vice President, and Carole Lee Reinhardt to their first official meeting. He noted that two items were to be added to the agenda: Discussion of an email from a concerned member, and an item to be held in camera.

2. DISCUSSION OF BIG ISSUE (ACTIVITY PLAN)

2.1 Activity Plan Council discussed a first draft of its 2020-2021 activity plan. It added amendments to include implementation of recommendations to come from the GEC regarding the survey sent out to Nova Scotia lawyers about their experience with sexual harassment and discrimination. They also discussed how best to further engage the membership; learn more about community concerns; and identify ways to inform and educate the membership about community needs.

109

2

Council Executive agreed to make the proposed amendments before bringing it back to Council for approval via OnBoard.

3. POLICIES/PROCESSES

3.1 Council Task Force Update Council received a proposal from its COVID-19 Task Force regarding further support for members most impacted by the pandemic. Council approved the proposal, which identified qualifying categories of members who could be eligible for fee relief. Council also approved the regulatory changes required to enact the proposal. In response to questions, Tilly Pillay QC, Executive Director, explained that the criteria would be enshrined in an operational policy rather than in the regulations. Council also discussed the idea of forming a long-term group to explore and address the challenges the public has had in accessing legal services because of the pandemic. The Executive agreed to explore this matter at a future meeting of the Executive Committee. Council commended M. Petrunia for her leadership of the COVID-19 Task Force.

3.2 FLSC Update T. Pillay informed Council that Jill Perry would be leaving her position as Federation of Law Societies of Canada Representative, as she has been appointed 2nd Vice President of the FLSC. J. Perry expressed thanks for the support of her Atlantic Colleagues. T. Pillay noted that J. Perry’s appointment begins in November, and so Council will need to recruit a new FLSC representative via the Nominating Committee.

3.3 FLSC TRC Advisory Committee Update

Council received the Federation of Law Societies of Canada TRC Calls to Action Advisory Committee’s Summary of Recommendations for Responding to the Truth and Reconciliation Commission. Tuma Young QC, First Vice President and Co-Chair of the Advisory Committee, explained the process leading up to the report’s release, and confirmed that it had been distributed to lawyers for comment. Council agreed by consensus to distribute the report to committees for implementation, as appropriate, and agreed by consensus to adopt the document’s guiding principles at the next meeting of Council. They also agreed to invite Morgan Cooper, FLSC President, to the September meeting.

3.4 Email from concerned member

Council discussed correspondence received from a concerned member and considered how to make a respectful, fulsome response. Council agreed that J. Rossiter and T. Pillay would provide a joint interim response that acknowledged receipt of the correspondence and committed to providing a more detailed

110

3

response after further reflection and discussion. J. Rossiter also agreed to populate a task force to guide these discussions and advise Council.

3.5 OnBoard Voting

T. Pillay explained that two items that would normally be on the consent agenda will be posted for approval on OnBoard because materials arrived after the meeting package had been published. The items are an appointment to the Nova Scotia Legal Aid Commission and additional resignations.

UPON MOTION BY Patrick Young and seconded by Bryan Darrell that these consent items be added to OnBoard for approval. MOTION CARRIED

4. IN CAMERA

There were two items discussed in camera.

5. APPROVALS

None

6. CONSENT AGENDA

6.1 Minutes of May 22, 2020 meeting 6.2 Resignations: Edward David Clairoux Anido, Rachel Bushuev, Rowland J. Harrison,

Harinder Singh Kaberwal, Danielle Elicia Jacinta Kershaw, Gavin Henry Howes Leitch, Aaron David Lemkow, Anastasia Linthwaite, Monika Anna Lozinska, Sumita Pillay-Dason

UPON MOTION BY Melanie Petrunia and seconded by Michelle Kelly that the consent agenda be approved. MOTION CARRIED

7. FOR INFORMATION

1.1. 2020-2021 Council Calendar 1.2. Executive Director Report 1.3. President’s Report 1.4. GEC memo re: gender issues during pandemic 1.5. REC letter re: judicial appointments 1.6. P. Gates-Hammond Exit Interview Summary

8. WRAP UP

UPON MOTION BY Patrick Young and seconded by Bryan Darrell that the meeting be adjourned. MOTION CARRIED

111

4

9. MEETINGS

• September 25, 2020, at 9:00 a.m. • November 27, 2020, at 9:00 a.m.

112

Council Year: July 2020 – June 2021

0B0BJULY 1B1BAUGUST SEPTEMBER OCTOBER 5B5BCouncil Meeting – July 24

Activity plan

Memo from Task Force 6B6BOther Activities

Pride virtual events July 15 – Judge Whalen and July 16, Love, Scott

20B20BNo Council Meeting

7B7BCouncil Meeting – September 25 24B24B

Cultural Competence

Update from TRCWG and Equity& Access office

LIANS six-month Report 8B8BOther Activities

Wickwire (TBD)

9B9BNo Council Meeting 22B22BOther Activities

Notice re: 2nd VP out to membership

FLSC Conference held virtually

Call to the Bar (October 16)

Equity Lens toolkit session for Council and Committee Chairs (October 22)

Dara Gordon Event

LIANS Board & Executive (October 20 at 4:00 pm)

2B2BNOVEMBER DECEMBER JANUARY FEBRUARY 10B10BCouncil Meeting – November 27

Community Engagement

MDPs

Member support (LSS update)

Activity Plan check in

21B21BOther Activities

Posthumous Call to the Bar (TBD)

11B11BNo Council Meeting

Other activities

Committee appointments

Possible TRC Education session

12B12BCouncil Meeting – January 24 27B27B

Cultural Competence

High Level Overview of Budget

13B13BOther Activities

Nominating Committee interviews Second VP

Call to the Bar

Ministers’ reception honouring IB&M Law students (TBD)

14B14BNo Council Meeting

23B23BOther Activities

Possible education session for Council and Committees

MARCH APRIL 3B3BMAY 4B4BJUNE 15B15BCouncil Meeting – March 27

Budget (detailed overview)

Activity Plan check in

Member Support (mentoring program update)

UUCouncil Meeting – April 24 28B28B

Approval of Budget 17B17BOther Activities

Call to the Bar

Possible Education session for Council and Committees

PR Monitoring Report

18B18BCouncil Meeting – May 21 U

Activity Plan check in

Community Engagement

Education & Credentials Monitoring Report

19B19BOther Activities

Council evaluation

UUCouncil Session – June 21

Orientation for new and returning Council members

Other Activities • Main Call to the Bar (June 5 at Pier 21 10:00am)

113

Council Year: July 2020 – June 2021

To be slotted in: Committee Chairs joining Council, Council Election Information Session and other annual social events

(e.g. Recognition Reception)

Updated: August 18, 2020

Equity and Access Monitoring Report

16B16BOther Activities

Council election year

2nd VP election (if required)

ED Performance Management survey

• REC Event Honouring Articled Clerks from Racialized & Indigenous Communities • Council Dinner – • Annual Meeting – • ALR filings due • All Fees due – June 30

114

- 1 -

MEMORANDUM TO COUNCIL

From: Tilly Pillay QC, Executive Director Date: September 25, 2020 Subject: Executive Director’s Report Here are some highlights of what has been going on at the Society since our last Council meeting.

New Employees

Two new employees have joined us – Katie Lister as our Governance, Policy and Planning Advisor and Tammy Manning as our new Complaints and Investigation Lawyer. These were both vacant positions. Katie and Tammy bring skills and experience to the Society that have already enabled them to make some important contributions to our operations and to our strategic work. We are fortunate to have been able to recruit such excellent candidates to join the Society.

Office

Our offices are not yet open to the public, but we are able to accommodate one-on-one meetings with members or the public in a safe manner. Provided numbers are not too large, we are able to hold hearings in the classroom and do investigative interviews. These usually entail 3-7 individuals. For hearings, if there are members of the public who wish to attend, we broadcast the proceedings via Zoom.

All Society employees are in the office on a rotational shift, with 50% of them being in the office at any given time (two bubbles). This enables us to follow COVID-19 protocols and to do our best to minimize risk to anyone.

IT Infrastructure

During the summer we experienced problems with our servers, a power outage and email instability. In order to prepare for the second wave of the pandemic and the future, we are migrating to Office 365 so we can take advantage of cloud computing and minimize the disruptions in our ability to deliver services.

115

- 2 -

Fee Relief Program

In August, we established the Fee Relief Program for those of our members who may have been disproportionately impacted by the pandemic. We received 58 applications and those individuals’ fees and insurance levy have been reduced by 50%.

PREP

We implemented the PREP subsidies for those students who qualified and, due to the Law Foundation grant we received, we were able to help 10 additional students by covering their entire costs for the program. There are 96 students registered with PREP, 86 of whom have articles and 13 who do not. We typically have 77-80 articling students in the bar admission program, so these are higher numbers than expected.

116

MEMORANDUM TO COUNCIL

From: Jim Rossiter QC, President

Date: September 14, 2020

Subject: Presidents Report

I had the privilege to join other leaders in our profession in Nova Scotia in welcoming the 

incoming first year law students at the Schulich School of Law at Dalhousie University on their 

first day on Tuesday, Sept. 8. Among other things, I noted our priorities of equity, diversity, and 

inclusion and cultural competence, and noted these are shared priorities of the law school. I 

encouraged them to look after their mental and physical health, and reminded them our Nova 

Scotia Lawyers Assistance Program is made available to them as students. 

On Thursday, Sept. 10, Tilly and I met with Annie Wiktowy, an officer in the Halifax office of the 

United States Consulate General. In an informal and wide ranging chat we identified and 

discussed overlapping areas of interest. 

On the books is our first virtual meeting with a county bar. We’ll be joining the Pictou County 

bar at their meeting on October 14.  

Jim. 

117

1

NOVA SCOTIA BARRISTERS’ SOCIETY 2020-2021 ACTIVITY PLAN

STRATEGIC GOAL #1: The Society regulates the legal profession in the public interest in a proactive, principled and proportionate manner

OBJECTIVE: Support members at every stage of their careers

Last year, we: So that this year, we can: What did we do to accomplish this?

• Created the COVID-19 Council Task Force and decided to allow members to defer payment of fees to alleviate financial burdens caused by the pandemic

FIRST: Consider options to provide fee relief and other support, to be led by the COVID-19 Task Force THEN: Make policy decisions in relation to the Task Force’s recommendations

• Approved proposed FLSC model code changes regarding technological competence

Have the Law Office Management Committee create a technology competency standard based on changes to FLSC Model Code

• Completed our first year of the LSS rollout and began receiving occasional updates from the LSS team regarding feedback from the profession

Monitor feedback from law firms who participated in first tranche

2

OBJECTIVE: Identify and remove regulatory barriers to support innovation in the delivery of legal services

Last year, we: So that this year, we can: What did we do to accomplish this?

• Attempted to pass amendments to the Legal Profession Act (LPA) regarding the shift to legal services regulation

Continue to seek these same legislative amendments

• Received reports from CPCC and PRPPC recommending the regulation of MDPs in Nova Scotia

Make a policy decision regarding regulation of multi-disciplinary practices in Nova Scotia and if approved, provide direction on implementation

• Expressed our desire to support members during the pandemic by fast tracking the “innovation sandbox” priority

Assess the feasibility of an “innovation sandbox” model for use in Nova Scotia

• Were introduced to the risk index created by staff, and were given several updates about risk work

Always make decisions rooted in consideration of regulatory risk

OBJECTIVE: Investigate and implement, if appropriate, differential membership fee models

Last year, we: So that this year, we can: What did we do to accomplish this?

3

• Began very initial work on differential fee models

• Considered whether differential fees have more relevance as a result of the pandemic

Assess the feasibility of a differential fee model for use in Nova Scotia to increase access to legal services

OBJECTIVE: Communicate and engage with members

Last year, we: So that this year, we can: What did we do to accomplish this?

• Began our initial work on mentorship

FIRST: Assess current mentorship programs supported by the Society, and explore new models THEN: Research and develop a new mentorship approach that is “Triple-P” and applies the equity lens

• Launched our new website • Invited the membership to our Council

in the Community meetings • Held meetings and question and

answer sessions with law firms and county bar associations before these had to be halted as a result of the pandemic

• Held most of our regular celebratory events before these were also halted

FIRST: Devise new ways for Council to engage and communicate with members THEN: Identify member groups for more targeted engagement or collaboration in conjunction with targeted engagement or collaboration of a related community group.

4

OBJECTIVE: Create an advocacy policy

• Established the need for a policy to guide when and how the Society advocates for a particular issue

Develop a public interest advocacy policy to guide Council’s work when advocating for improvements to the administration of justice

5

STRATEGIC GOAL #2: More Nova Scotians will have access to ethical and competent legal services

OBJECTIVE: Promote access to legal services

Last year, we: So that this year, we can: What did we do to accomplish this?

• Rolled out a succession planning standard and toolkit This goes under support for members – standard out for consultation – Council will approve standard.

• Began recruitment for a sole, small practice and rural practitioner working group

• Agreed that in light of the pandemic, supporting sole, small, and rural practices is more important than ever

FIRST: Learn from the COVID-19 Task Force how the pandemic may be impacting sole practitioners, small firms, rural members and those from equity seeking groups THEN: Establish Rural Practitioners’ Working Group and task them with providing recommendations to Council to address these and other challenges and needs

• Held two Council in the Community meetings

• Delayed future meetings due to limitations on gatherings as a result of the pandemic

FIRST: Develop an overall strategy for future Council in the Community sessions THEN: Use information gathered to begin to understand and address barriers these communities face in accessing legal services

6

• Began a review of the Code of Conduct regarding cultural competence

FIRST: Review code of conduct requirements regarding competence to determine if changes are recommended in relation to lawyer’s obligation to be culturally competent THEN: If changes are recommended, refer to the Code of Professional Conduct Committee

7

STRATEGIC GOAL #3: Nova Scotians will be served by a legal profession that is diverse, inclusive and culturally proficient

OBJECTIVE: Promotion of Substantive Equality and Freedom from Discrimination in Delivery of Legal Services and the Justice System

Last year, we: So that this year, we can: What did we do to accomplish this?

• Rolled out the Equity Lens Toolkit • Held an in-person and online training

session accessible to Council, committees and the membership

• Received a cultural competence refresher from Robert Wright

• Received regular updates and education from the Equity & Access Office

FIRST: Hold another equity lens toolkit training session for Council and Committees and apply an equity lens to all our decision making THEN: Ensure committees apply an equity lens to all their decision making

• Heard how many committees plan to examine their existing standards for cultural competence

Review standards for appropriate references to lawyer cultural competence in the delivery of legal services

OBJECTIVE: Promotion of Equity, Diversity and Inclusion in the Legal Profession

Last year, we: So that this year, we can: What did we do to accomplish this?

8

• Discussed ideas for how Council members could leverage its education, experiences and networks to promote equity, diversity and inclusion in the legal profession

FIRST: Continue to develop and leverage our education, experiences and networks to promote equity, diversity and inclusion in the legal profession THEN: Share with each other how we are doing this in our communities

• Administered a GEC survey seeking input from members about their experience with sexual harassment and discrimination in the legal profession

FIRST: Receive GEC report following their analysis of survey results THEN: Create implementation plan for report recommendations

OBJECTIVE: Implementing meaningful responses to the TRC Calls to Action and MMIWG inquiry call to justice 10

Last year, we: So that this year, we can: What did we do to accomplish this?

• Extended funding for the TRCWG into this year

• Received regular updates about the TRCWG’s work, including preliminary results of a questionnaire distributed to the membership

Continue to support the TRC Working Group by funding its work and ensuring its input influences Council decisions

• Attended two education sessions planned and hosted by the TRCWG

Apply our familiarity with the history of colonization, the legacy of residential schools, and Nova Scotia’s treaty environment to our decision-making

9

OBJECTIVE: Develop mechanisms to hold members accountable for the delivery of culturally proficient legal services

Last year, we: So that this year, we can: What did we do to accomplish this?

• Received proposed process leading to a policy decision on how to meet this objective

• Delayed some of this work as our priorities changed because of the pandemic

FIRST: Consult with membership to inform policy decisions on cultural competence THEN: Craft a Society-wide definition of cultural competence and make a policy decision on cultural competency education for members

• Amended the ALR to include a question about cultural competency education

Continue to collect data on the cultural competence of the membership

OBJECTIVE: Addressing barriers to entry to the legal profession

Last year, we: So that this year, we can: What did we do to accomplish this?

• Reflected on our Council in the Community meetings and thought about how we can make our approach more effective

• Identified “quick wins” from these meetings and put them into practice, such as having the Equity & Access

FIRST: Make a policy decision on what community engagement should look like CONSIDER: Identify community groups for more targeted engagement or collaboration in conjunction with targeted engagement or collaboration of a related member group.

10

Manager give presentations about legal careers to high school students

1

Katie Lister

From: Tilly PillaySent: September 1, 2020 11:11 AMTo: Katie ListerCc: Rossiter, Jim (PC)Subject: FW: Brandon Hall Group Bronze AwardAttachments: Brandon Hall Group Award announcement.pdf

Hi, Katie – this email and attachment is to be added to the For Information section of the Council materials. Thank you! 

Tilly 

From: Kara Mitchelmore <[email protected]>  Sent: August 31, 2020 11:58 AM To: X1_Bud_Melnyk <[email protected]>; X3_Don_Thompson <[email protected]>; Cori Ghitter <[email protected]>; X3_Tim_Brown <[email protected]>; X3_Irene_Hamilton <[email protected]>; X3_Kris_Dangerfield <[email protected]>; Tilly Pillay <[email protected]>; X3_Thomas_Schonhoffer <[email protected]> Cc: Carly Thompson <[email protected]>; Vicki Rinke <[email protected]> Subject: Brandon Hall Group Bronze Award 

Good morning,

I am excited to inform you that CPLED has won its first award for PREP! We were awarded a coveted Brandon Hall Group Bronze award for excellence in the Best in Custom Content category for the build of the Legal Skills in Action multimedia Foundation Module. 

The Brandon Hall Group recognizes the best organizations that have successfully deployed programs, strategies, modalities, processes, systems and tools that have achieved measurable results. Their Excellence Awards serve the critical function of reinforcing the essential business benefit of creating great experiences for candidates and employees. 

Attached is a copy of the formal announcement that will be released on today. 

Have a great week! 

Kara 

Kara Mitchelmore Chief Executive Officer Pronouns: she, her, hers

700, 333 – 11th Avenue SW Calgary, Alberta T2R 1L9 Main office situated on Treaty 7 and Metis Nation of Alberta Region 3 Lands

Website | LinkedIn | Facebook

131

2

Important - Confidential Information from the Canadian Centre for Professional Legal Education (CPLED): The sender intends that this electronic message is for exclusive use by the person to whom it is addressed. This message may contain information that is confidential or privileged and exempt from disclosure under applicable law. If the reader of this message is not an intended recipient, be aware that any disclosure, dissemination, distribution or copying of this communication, or the use of its contents, is prohibited. If you have received this message in error, please immediately notify the sender of your inadvertent receipt and delete this message from all data storage systems. Thank you.   

132

700, 333 – 11th Avenue SW Calgary, Alberta T2R 1L9

CPLED AND ARTHA LEARNING INC. WIN AWARD FOR BEST IN CUSTOM CONTENT | PAGE 1

AUGUST 28, 2020

CPLED and Artha Learning Inc. win award for Best in Custom

Content

Calgary, Alberta (Monday, August 31, 2020) – The Canadian Centre for Professional Legal Education (CPLED), the non-profit organization who provides the training needed before students are called to the Bars of Alberta, Manitoba, Nova Scotia and Saskatchewan, alongside Artha Learning Inc., won a coveted Brandon Hall Group Bronze award for excellence in the Best in Custom Content category for their work on the Practice Readiness Education Program (PREP).

“We couldn’t be prouder of PREP and how it all came together to become an innovative and

engaging Bar admission program. Artha Learning Inc. understood our vision and brought the multimedia modules to life, providing students with an interactive learning experience,” says Dr. Kara Mitchelmore, CPLED CEO.

“The project allowed our team to work closely with lawyers and academicians to build two multimedia modules for PREP, providing students an interactive eLearning experience for various lawyer skills such as negotiating, drafting, advocacy and interviewing. We worked with CPLED to support, implement and enhance the modules through their pilots and launch, delivering the project on-time and on budget,” says Garima Gupta, Lead Instructional Designer

and Director, Artha Learning group Inc.

The Brandon Hall Group recognizes the best organizations that have successfully deployed programs, strategies, modalities, processes, systems and tools that have achieved measurable results. “The Excellence Awards serve the critical function of reinforcing the essential business

benefit of creating great experiences for candidates and employees,” Brandon Hall Group CEO Mike Cooke said. “All award winners must demonstrate that their HCM programs drive bottom-line business results. That’s what sets our awards program apart from all others.

The full list of Brandon Hall 2020 award recipients can be found here.

About CPLED

The Canadian Centre for Professional Legal Education (CPLED) is a non-profit organization that provides the training needed before being called to the Bars of Alberta, Manitoba, Nova Scotia and Saskatchewan. Law Societies in the participating provinces require students to article and complete PREP before becoming a lawyer.

For more information about CPLED and PREP, visit cpled.ca.

About Artha Learning Group Inc.

133

700, 333 – 11th Avenue SW Calgary, Alberta T2R 1L9

CPLED AND ARTHA LEARNING INC. WIN AWARD FOR BEST IN CUSTOM CONTENT | PAGE 2

AUGUST 28, 2020

Artha is an award-winning, full-service learning design firm that specializes in the intersection of educational technology, instructional design and design thinking for adult learners. They partner with organizations to design their eLearning from an instructional, engagement and technical point of view.

For more, visit arthalearning.com.

About Brandon Hall Group Inc.

Brandon Hall Group is an HCM research and advisory services firm that provides insights around key performance areas, including Learning and Development, Talent Management, Leadership Development, Talent Acquisition and HR/Workforce Management. With more than 10,000 clients globally and 25 years of delivering world-class research and advisory services, Brandon Hall Group is focused on developing research that drives performance in emerging and large organizations, and provides strategic insights for executives and practitioners responsible for growth and business results. For more, visit brandonhall.com.

134