Archive for August, 2010

To inquire publicly, or not to inquire publicly, that is the question…

August 24th, 2010 2 comments

Whether ’tis nobler in the parliament to suffer
The slings and arrows of outraged citizens,
Or to send a ship into that sea of troubles
And, by investigating end them….

Ay, there’s the rub

When something goes colossally wrong in Canada, there is often a call for a public inquiry. This just happened with the whole G20 thing in Toronto. This, of course, begs a few questions: what exactly is a public inquiry; when can we/must we have one; who gets to decide that; and what are the alternatives? Let’s start at the beginning….

When there is an important legal or political issue on the table, our democracy has numerous problem-solving mechanisms that can help, including: striking up a parliamentary or legislative committee to make recommendations, passing a law to make changes, or going to court to take an accused to task. Each of these mechanisms has requirements, each has limitations, and each can lead to certain results. But what happens when the problem is so big, the issue so complex, or the blow to public confidence so large, that none of those options, on their own, can provide an adequate response? Enter the public inquiry…. a residual mechanism of government, invoked when it is believed that nothing else will work.

Public inquiries (sometimes called “Royal Commissions”) have been around for a very long time. Hundreds of years ago, English monarchs could use what is known as their “prerogative power” to appoint a commission to investigate and report on matters of public concern. This tradition was incorporated into Canadian democracy and, today, both the federal and most provincial/territorial governments, including Alberta, have laws allowing them to call public inquiries. More specifically, the laws give cabinet the authority to appoint a commission by way of an Order-in-Council (OIC). That OIC provides the commission with the powers necessary to conduct the inquiry (they can be very broad) and it can also outline the exact items to be investigated, any expectations for recommendations, and a general time-line. This then becomes known as the “terms of reference” for the inquiry.

In general, there are two different kinds of public inquiry: the policy-researching kind, and the fact-finding kind.

Read more…


Thanks very much, I’ll take the money!

August 19th, 2010 Comments off

The case of Robinson v. Morrell Estate might be every divorced person’s worst nightmare.  Here is what happened.  Ingrid Ostrum and Ezra Morrell divorced in 2007 after a six year marriage.  They signed a separation agreement in which they both agreed to renounce and waive any claim that they had on each other’s estates. When they divorced, the agreement became part of the divorce settlement. However, in 2008 Ezra Morrell died in an automobile accident at the age of 31 without making a new will.  His existing will left the residue of his estate to his former wife.  You can see where this is going!

Ingrid Ostram decided that she would claim the residue under Ezra’s will.  Ezra’s mother, Anne Robinson  challenged her right to do so.  In a chambers application, the judge ruled that the separation agreement did not revoke the will and that Ingrid was entitled to inherit the residue of the estate.  Ms Robinson appealed that decision to the Nova Scotia Court of Appeal.  The issue before Mr. Justice Oland was whether Ms Ostram was bound by contract law to renounce a gift under her former husband’s will.

The Court of Appeal took an exhaustive look at case law, including some English cases from the 1800s and some American cases.  The Court first stated that “until the death of the testator, a person has nothing more than an expectancy and one cannot disclaim or renounce an interest in something to which he or she has no legal interest.”  The Court said that when there is only an expectation, there is nothing on which a renunciation can “bite”.

Once Mr. Morrell died, Ingrid Ostram had a choice.  The Court noted she chose not to renounce or refuse to take the residue of the estate.  Anne Robinson argued that Ms Ostram shouldn’t get to choose: she was contractually obligated under the separation agreement to renounce any claim to her former husband’s estate.  She further claimed that the agreement was a valid contract because it was supported by valuable consideration.    However, the Court ruled “…the appellant has failed to produce any legal authority that a contractual promise to renounce, given for consideration before the death of a former spouse, binds a person to renounce a testamentary gift after his death.”

Justice Oland identified a further problem with Ms Robinson’s challenge.  He noted that she was relying on contract law to make her case that Ms Ostram could not step away from her renunciation under the separation agreement. However, the Judge stated that “The parties to the contract were Ezra Morrell, and Ingrid Ostram, and its clause 2 states that its terms are binding on their heirs, administrators, executors, successors and assigns. The appellant was not a party to the separation agreement, nor is she one of the persons named under clause 2.  Even if it had been determined that Ingrid Ostram was contractually bound to refuse the testamentary gift, there does not appear to be any privity of contract between the appellant and Ingrid Ostram which would allow the appellant to enforce clause 20 of the separation agreement.”

The Judge dismissed Ms Robinson’s claim and also ordered that she pay costs of $2000 to the estate.

What is the moral of this story?  It is one of the oddities of Canadian law that existing wills are, with certain exceptions, invalidated by marriage, but not by divorce. Lawyers across Canada for generations have cautioned their clients that wills, generally speaking, are not revoked by divorce.  (Note that the law in Nova Scotia changed after the time of Mr. Morrell’s death. Now, the Wills Act has been amended so that divorce will revoke a bequest to a testator’s former spouse.)

The law may vary province-by-province across Canada. For example, Alberta’s Wills Act states that marriage and entering into an adult Interdependent relationship will, in most circumstances, revoke a will, but  that  “ a will speaks and takes effect as if it had been made immediately before the death of the testator with  respect to…real and personal property.”  Note too, that under the Alberta law, “A will is not revoked by presumption of an intention to revoke it on the grounds of a change of circumstances.” So, even though it may seem obvious that after a divorce, a testator intends to make a new will,  good intentions are not enough.  Therefore, prudence dictates that no matter where they live, divorcing parties should make new wills as soon as possible after a divorce.  Most lawyers advise their divorcing clients to make new wills immediately.  It is advice that should be heeded.  If not, then a result like the Morrell decision could occur.

Adapted from the July/August issue of LawNow.


Are you a wanna-be Steven Slater?

August 16th, 2010 Comments off

Working for a living is not always easy:  bosses, co-workers, clients, customers, uniforms, messy tasks…they can all take their toll.  Some days, you just want to quit. Heaven knows, Mr. Slater did. But, although the way he went about it may have been entertaining and the stuff of legends, it really was not very prudent:  he has no work, he has a mountain of legal issues, and he may have difficulty ever finding another job in the field again.

Or not. With the publicity, he may luck out and get a really lucrative book deal. That, however, would not be the case for most of us. If you are unhappy at work, do yourself a favour, find out what both your and your employer’s rights and responsibilities are before you make a knee-jerk decision.

So what do you need to know about quitting?

1. First of all, there are laws about that: you probably won’t be able to just walk out unscathed. There are things to think about. In Alberta, the law that governs employment in a non-unionized setting is the Employments Standards Code (ESC):  know what it says.  For those of you not in Alberta, there will be an equivalent provincial/territorial law). For unionized settings, there is the Labour Relations Code (LRC). That said, you must also look into the terms of your collective agreement.

2. Hopefully, after that whole G20 thing, we don’t need to remind you about to also check if there is anything in any regulations:  ESCLRC. (For those of you not in Alberta, the same applies).

3. You don’t think laws are fun to read? Really? There is good “plain language” information out there, too.  They’ll tell you really important things, like how much notice you have to give, how to give it, and what can happen if you don’t.

a. If you are in Alberta check out our Frequently Asked Questions about employment.
b. The Alberta Government also has a very informative site about non-unionized employment issues.  Similar informational sites exist in almost every province/territory.

4. If your behaviour while quitting physically hurts someone, puts the lives of others in danger, or causes a disturbance, you could face criminal charges.

5. If you work in a specialized field, like … say …  airlines, there be even more restrictions and consequences.

As always… know the law first! And, while you are contemplating your departure, keep yourself happy and entertained by thinking and singing about Mr. Slater, without emulating him.

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Get your AGTA updates here!! Get them while they’re hot!!

August 12th, 2010 Comments off

On October 30, 2009, the new Alberta Adult Guardianship and Trusteeship Act (AGTA) came into force, replacing the 30-year old Dependent Adults Act (DAA).

In a nutshell, the DAA was a law that told us how to get someone appointed to make decisions for a mentally incapacitated person who had not planned for that incapacity (in other words, for someone who had not prepared any documents outlining who would make his/her decisions should s/he become incapacitated). Under the DAA, decision-making ability (or “mental capacity”) was an all-or-nothing concept: a person was considered either capable or not capable of making decisions.

Like, the DAA, the AGTA also tells us how to get someone appointed to make decisions for a mentally incapacitated person who had not planned for that incapacity…. but the whole process is now significantly different. In addition, the AGTA is based on the idea that, for some kinds of decision-making, capacity is a continuum:  a person may only need a bit of help, or s/he may still be able to make some decisions – but not all. Similarly, a person’s capacity may change over time. As a result, for “personal” decision making (which is pretty much everything that is not a financial decision) the AGTA enables a variety of support and substitute decision-making options, depending on individuals’ decision-making needs. The goal is to keep people as independent as possible and intrude on them as little as possible, given their needs and circumstances. Lots new here as well.

Sound confusing? A little overwhelming? Make you want to bury your head in the sand? Not to worry – we can help!

For even more information, see the flowing links.

The Alberta Adult Guardianship and Trusteeship Act (and its regulations)

The Alberta Office of the Public Guardian


A Question about Copyright on the Internet

August 4th, 2010 Comments off

Question of the month from the Garvie Reading Room:

If material is on the internet, and there is no copyright symbol, is it available for anyone to use? Does it matter how it is used?

A work does not have to be marked with a copyright symbol to be protected by copyright. This means that the creator has the legal right to control the use of their creation. Sometimes a website will have a page titled “Terms of Use” or “Copyright” that will describe whether or not any material on the site can be reproduced and for what purposes as well as indicating how you can request permission to use it beyond those restrictions. Many creators make their works widely available by using a Creative Commons License which automatically grants permission to use the material under certain terms.

Copyright is a complicated issue and is frequently misunderstood. Here are a couple of ways to learn more:

The publication “Copyright Matters: Some Key Questions and Answers for Teachers” provides easy-to-read answers to such basic questions as: What is copyright? Why is copyright important? What does public domain mean? What is an exception? and “What material can be copied under the Copyright Act?

Also, the Canadian Intellectual Property Office provides succinct answers to sixteen Frequently Asked Questions about copyright as well as a link to more detailed answers in their 27-page book “A Guide to Copyrights”.

This background could also help you understand some of the impending changes to the rules.  The government has been working on copyright reform and recently introduced Bill C-32 with the short title “Copyright Modernization Act”. One source of information about this is a new Government of Canada website, Balanced Copyright. With so many Canadians using the internet and electronic media, there is much public interest in this bill. A good part of the discussion concerns whether the correct balance or compromise has yet been achieved between the rights of various stakeholders. Law professor and copyright activist Michel Geist blogs regularly about this issue. His post on June 3, 2010 introduces some of the immediate reactions to the Bill. Another active group can be found at Digital Copyright Canada.

The public is being encouraged to get involved in improving this law. See, for example, this post on Digital and another site established by Michael Geist, “Speak Out on Copyright”.