Cultural competence Cultural competence - Nova Scotia Barristers ...

the SOCIETY RECORD VOLUME 34 | NO.1 | spring 2016

NOVA SCOTIA BARRISTERS’ SOCIETY

www.nsbs.org

Cultural competence Seeing the world through different perspectives

Fall 2015 1 VISION, LEADERSHIP, EXCELLENCE – THE LEGAL PROFESSION IN NOVA SCOTIA

dal.ca/execed/lpm

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Manage the Practice. Practise the Law. Running a legal practice requires not only a strong grasp of the law, but also the skills to run a business. The details of running your office — marketing & social media, human resources, client care, finances, and sales — on top of practising law can be overwhelming, and may require you to draw on skills that were not necessarily part of your legal education. Offered in partnership with the Schulich School of Law, this program, taught by experienced leaders from legal practice and Faculty in the Rowe School of Business, will develop the practice management skills you need to keep your business competitive and growing. CONTINUING PROFESSIONAL DEVELOPMENT PLAN  In Nova Scotia, each practising member of the NSBS is required to complete and implement an annual professional development plan. Individual modules in the Law Practice Management Program can be applied to the annual professional development plan.

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C ontents VOLUME 34 | NO 1 | spring 2016

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The President’s View

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Briefs

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Society News

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Begun in Faith, Continued in Determination: Burnley Allan (Rocky) Jones and the Egalitarian Practice of Law – Professor Richard F. Devlin

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In search of the Ethical Lawyer: 25th F.B. Wickwire Memorial Lecture – Marla Cranston

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Truth and reconciliation: Heeding the Call to Action in Nova Scotia – Marla Cranston

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Introducing the Equity Portal

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Historical trauma can resonate for generations – Michael Lightstone

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Community engagement and commitment to social justice: A keynote address by the Society’s Equity & Access Officer – Emma Halpern

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Untitled: Resolving historic land title issues – Marla Cranston

is published by the Nova Scotia Barristers’ Society Cogswell Tower 800–2000 Barrington St. Halifax, NS B3J 3K1 (902) 422 1491

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Canadian Association of Black Lawyers launches Nova Scotia chapter – Michael Lightstone

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4th annual Women: Strength in Leadership – Remembering Dara Gordon QC – Marla Cranston

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Gender neutral language tips – Kaitlin Pierce & Melanie Anderson

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Cultivating empowered workplaces: Cultural competence case studies – Lisa Teryl

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LIANS – Tips from the Risk & Practice Management Program

Copyright ©2016 Mailed under Canada Post publications agreement number 40069255

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In Memoriam: The Honourable Constance Glube QC, former Chief Justice of Nova Scotia

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inside

Return undeliverable Canadian addresses to: Publications Administrator,

Nova Scotia Barristers’ Society Cogswell Tower 800–2000 Barrington St. Halifax, NS B3J 3K1 [email protected] page 12

Editor Marla Cranston [email protected] Graphic Design Lisa Neily [email protected] NOVA SCOTIA BARRISTERS’ SOCIETY nsbs.org

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For ongoing Society news, follow us online at nsbs.org: via InForum at nsbs.org/inForum

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on the web at talkjustice.ca Fall 2015

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the president’s

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view

Call to Action #27: The cultural competence imperative

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his issue of The Society Record highlights the value and complexity of cultural competence for lawyers.

Cultural competence is a commitment to developing the knowledge, skills and ability to interact and communicate effectively with people from different cultural backgrounds. It is also about understanding that one’s own cultural background is not the standard or the norm against which everyone else should be judged as “other,” and that other elements like gender and socioeconomic standing matter too. In other words, cultural competence is about more than simply “not being a racist.” It isn’t a box you check off as “done.” Cultural competence is a far-reaching goal that demands a life-long commitment to inclusion and equity. I would like to take this opportunity to share a few thoughts about cultural competence from the perspective of the regulator of the legal profession. Since 2013, the work of the Nova Scotia Barristers’ Society has been guided by two main strategic priorities: 1) transforming regulation and governance in the public interest; and 2) enhancing access to legal services and the justice system for all Nova Scotians. Cultural competence figures prominently in the work we are doing in each of these areas. The access-to-justice connection Nova Scotia is a diverse place. It has been that way from the beginning. Mi’kmaw, African Canadian and Acadian communities, for example, all have unique, rich and at times tragic histories in this province. Nova Scotia’s historic diversity has multiplied over the decades – the recent arrival of Syrian refugees comes to mind. Yet while we rightly celebrate diversity, it is critical to acknowledge that not all groups in Nova Scotia are situated similarly in relation to legal services. When a person or entire group is systemically disadvantaged, legal services are often out of reach. Even if they are able to find an appropriate and affordable legal service provider, that service can be rendered meaningless at best (and potentially harmful at worst) if cultural incompetence prevails. In addition to the risks of appearing insensitive or offensive, critical substantive aspects of an individual’s legal situation may be missed, to the detriment of both the individual and the lawyer. Marginalization may be compounded as a result.

A key feature of the new model is a move away from prescriptive, reactive rules towards a more principled, preventive approach. As part of this reorientation, we are asking lawyers and law firms to reflect on how they are doing in 10 areas – from conflicts of interest and fees to competence and timely communication. Taken together, these 10 areas are referred to as the “Management System for Ethical Legal Practice.” Cultural competence is a key aspect of this new model and is directly relevant to at least three of the 10 areas. Element 1 looks at delivering legal services with appropriate skill and competence. Element 9 asks lawyers to consider if their legal entity is “committed to improving diversity, inclusion and substantive equality and ensuring freedom from discrimination in the delivery of legal services and the justice system.” Element 10 requires reflection on the degree to which your legal entity “encourages public respect for, and tries to improve, the administration of justice and the enhancement of access to legal services.” The point is not to penalize lawyers for failing to be culturally competent; instead the goal is to encourage lawyers to consider their practices from this perspective and to provide the resources for self-improvement. Cultural competence – an ongoing imperative The mandate of legal regulators is to regulate in the public interest. We fail to do so if we ignore the cultural competence imperative, which was underscored by the recent report of the Truth and Reconciliation Commission. Its Call to Action #27 specified that cultural competence training for lawyers must be part of redressing the toxic legacy of residential schools in this country. The Federation of Law Societies of Canada has responded positively to that call for action. At the Nova Scotia Barristers’ Society, we already have a well-established commitment to cultural competence thanks, in large part, to our strong Equity & Access Office. But as I said at the outset, this is not a box we simply tick off and move on. We can and should do more. I hope you will read this issue and conclude that you can too.

The Legal Services Regulation connection Formerly known as entity regulation, “Legal Services Regulation” is the name for the new model of regulating the profession that we have been developing and talking about broadly during provincewide consultations.

Jill Perry President

Fall 2015

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BRIEFS THE HOBBIT ON TRIAL FOR HALIFAX HUMANITIES 101 Photos provided by Schulich School of Law at Dalhousie University

J.R.R. Tolkien’s classic tale was reimagined for the sixth annual Weldon Literary Moot, with Gollum and Bilbo Baggins duking it out in a courtroom for ownership of the precious ring of power. The Hon. Justice Jamie Campbell of Nova Scotia Supreme Court presided over the mock trial on March 10 at the Schulich School of Law, with students, professors, lawyers and local actors rounding out the cast. The event is a fundraiser for Halifax Humanities 101, a barrier-free humanities education program for adults living below the poverty line. Participants in the program serve as the moot’s jury.

NEW APPOINTMENT IN NOVA SCOTIA’S JUDICIARY The Honourable Judge E. Ann Marie MacInnes, formerly a Managing Lawyer with Nova Scotia Legal Aid, was appointed on November 10 as a Judge of the Provincial and Family Courts of Nova Scotia. Judge MacInnes presides primarily in Sydney. She was called to the Nova Scotia Bar in 1991 and prior to her appointment to the Bench, appeared regularly on behalf of clients in Sydney’s Domestic Violence Court. Judge MacInnes had also been an active member of the Cape Breton Barristers’ Society and served on the numerous committees of the Nova Scotia Barristers’ Society and CBA-NS. On the next page: January 18 at Province House 1. The Hon. Judge Corrine Sparks, Jasmine Hudson (student), Jennifer Crewe (student), John Bodurtha (DOJ, NSBS Council) 2. The Hon. Diana Whalen, Heather McNeill QC (DLAS), Karen Hudson (NSLA) 3. Students: Houston Barnaby, Nico Jones, Trevor Silver, Fenessa WilliamsApostolakos, Chantelle Flowers-Jarvis, Payton Tench 4. Alise Brown (DOJ), Alicia Alana-Stirling (DOJ), Heidi Schedler (NSSC) 5. Michelle Williams (Schulich School of Law at Dalhousie), the Hon. Tony Ince (MLA Cole Harbour, Minister of African Nova Scotian Affairs)

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BRIEFS THE Justice MINISTER’S RECEPTION FOR THE IB&M INITIATIVE

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BRIEFS HONORARY NSBS MEMBERSHIP FOR JUSTICE MINISTER Diana Whalen The Honourable Diana C. Whalen, Minister of Justice and Attorney General, attended a meeting of the Nova Scotia Barristers’ Society Council on February 26, 2016. Minister Whalen provided greetings and an update from the Nova Scotia Department of Justice, followed by a question and answer opportunity for Council members. She was accompanied by Acting/ Deputy Minister Tilly Pillay QC. Following a resolution passed by Council, President Jill Perry (at left) presented Minister Whalen (at right) with an honorary membership to the Society.

CBA-NS LAW DAY AWARD: LISNS PUBLIC NAVIGATOR PROGRAM

The Canadian Bar Association – Nova Scotia Branch presented its 2016 Law Day Award on April 14 to the Public Navigator Program of the Legal Information Society of Nova Scotia (LISNS). The new program trains community members to work with self-represented litigants and provide legal information, identify issues and explore alternate methods of dispute resolution.

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The CBA-NS Law Day Award honours, recognizes and celebrates organizations that foster greater public understanding of our justice system and the role of the Charter of Rights and Freedoms; who encourage and promote access to justice; who inform and educate the public about the courts, law enforcement, the justice system and the legal profession; and who act as advocates on behalf of citizens in the Canadian justice system. Find out more about the LISNS Public Navigator Program at legalinfo.org.

BRIEFS

Photos provided by Schulich School of Law at Dalhousie University

IDEALAW 2016: ACCESS TO JUSTICE IN CONTEMPORARY CANADA

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The sixth student-run IDEALaw conference focused on the theme of Access to Justice in Contemporary Canada, Feb. 5 and 6 in Halifax. The event brings together students, lawyers, activists and community members to create conversations around social change through law. 1. Elder Joe Michael presented an eagle feather to the Honourable Mr. Justice Thomas Cromwell of the Supreme Court of Canada. While a law professor earlier in his career, Justice Cromwell taught Elder Michael’s son James Michael, who became the first Mi’kmaq lawyer called to the Nova Scotia Bar in 1993. Justice Cromwell, who will retire from the Bench this September, serves as Chair of the National Action Committee on Access to Justice in Civil and Family Matters. He led the Committee’s study that produced Access to Civil and Family Justice: A Roadmap for Change in 2013.

2. Nearly 250 people attended Justice Cromwell’s keynote address at the Halifax Central Library, and law students enjoyed meeting him in person. Watch his 43-minute keynote online: bit.ly/21BD5cX. 3. Panel workshops featured speakers from across Canada, on socioeconomic barriers to justice, miscarriages of justice, litigating a better future for animal justice, the internet as an A2J tool, and immigration and refugee law. Alex Neve, Secretary General, Amnesty International Canada, provided the event’s closing remarks. Four law student societies collaborated on IDEALaw 2016: SALSA (Social Activist Law Student Association), CARL (Canadian Association for Refugee Lawyers), SALAD (Student Animal Law Association of Dalhousie), and the ELSS (Environmental Law Students’ Society). Fall 2015

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BRIEFS INSPIRATION FROM NOVA SCOTIA’S ‘FAMILY LAW GODFATHER’ A framed version of this photo was presented to retired Justice Walter Goodfellow by three former partners. Its caption: ‘The Honourable Walter R.E. Goodfellow QC, Nova Scotia’s family law Godfather, founded a family law department at Cox, Downie and Goodfellow prior to his appointment to the Supreme Court of Nova Scotia. With the benefit of his mentorship, that entire department was subsequently appointed to the Court. From right to left, pictured with Justice Goodfellow, is Justice Douglas C. Campbell, Justice Leslie J. Dellapinna and Justice Jamie S. Campbell.’

PRIX DU JURISTE DE L’ANNÉE 2015

(Photo: gracieuseté AJEFNE)

Lucien Comeau (centre) received the award of Juriste de l’annee 2015 (2015 Jurist of the Year) from l’Association des juristes d’expression française de la Nouvelle-Écosse (AJEFNÉ). President Réjean Aucoin (left) and Vice-President Robyn Fougere (right) made the presentation on October 23 at the Accès Justice Access centre in Halifax during AJEFNÉ’s annual general meeting. The award follows two complaints made by Mr. Comeau to the Nova Scotia Human Rights Commission regarding a scholastic surcharge by the Regional Municipality of Halifax (HRM), which was resolved last autumn at the Supreme Court of Canada. Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission) [2012] 1 364 SCR, 2012 SCC 10 (CanLII)

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society news

Council updates Society leadership for 2016-2017 On June 18 during the 2016 NSBS Annual Meeting, the Society will welcome new leadership for the next Council year. President for 20162017 will be R. Daren Baxter QC, TEP (centre), who is a Partner at McInnes Cooper in Halifax. Dartmouth lawyer Julia Cornish QC (at left), a Partner at Sealy Cornish Coulthard, will be will be First Vice-President. Frank E. DeMont QC (at right), a sole practitioner at DeMont Law in New Glasgow, will be Second Vice-President, as the acclaimed candidate in the nomination process for the position. The rest of the Society’s 21-member Council is nearing the halfway mark of its two-year term. Elected District members of Council for 2015-2017 are Diane L. McGrath QC and Jillian MacNeil, Sydney; Kelly R. Mittelstadt, Truro; H. Heidi Foshay Kimball QC, Wolfville; Andrew S. Nickerson QC, Yarmouth; and Nancy F. Barteaux QC, John Bodurtha, Sheree L. Conlon and Alonzo Wright, Halifax. A nomination process is underway to fill a soon‑to‑be vacant seat in Central District.

Update: TWU’s proposed law school The Nova Scotia Barristers’ Society has appealed the decision of the Nova Scotia Supreme Court in the matter involving Trinity Western University’s proposed law school. A three-day hearing took place before a five-judge panel at the Nova Scotia Court of Appeal from April 6 to 8, with a total of 20 lawyers representing the Society, TWU and 11 intervener groups in the case. To read the range of arguments, find facta and other legal briefs from all parties on the Society’s website at nsbs.org/twu-court-documents. The Court’s decision is pending. Prior to its conditional approval on April 25, 2014 of TWU’s application to open a law school, Council held an extensive public consultation process, receiving a wide range of input from the legal profession, the public and Trinity Western officials. The Langley, B.C. university requested a judicial review of Council’s decision, and the Hon. Justice Jamie Campbell heard the matter in December 2014, delivering a 139-page decision on January 28, 2015.

At Large members of Council are Gavin Giles QC and Loretta Manning, Halifax; and Tuma Young, Sydney. Public Representatives are Michael Baker, Natalie Borden and Dr. Manoj Vohra. The representative of the Attorney General is Karen Fitzner of the Nova Scotia Department of Justice, and Dean Camille Cameron represents the Schulich School of Law.

Council felt that if left unchallenged, the ruling could significantly restrict the scope of the Society’s authority to uphold and protect the public interest in regulating the legal profession, and prohibit the Society from continuing to take on a wider role in the promotion of equality in all aspects of its work, including in the administration of justice.

Visit nsbs.org/council-materials for Council updates, agendas and meeting documents throughout the year.

Law societies in British Columbia and Ontario are appealing similar rulings in those provinces, with both hearings scheduled in early June. Fall 2015

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society news society Access ebooks via online Lawyers’ Reading Room Society staff in Library & Information Services are developing a webbased portal that will provide Nova Scotia lawyers and articled clerks with access to licensed ebook collections from Irwin Law and Emond Publishing.

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The Irwin Law Collection provides virtually all Irwin Law titles published since 1997, including the complete set of the “Essentials of Canadian Law” series – such 2015 titles as Paciocco’s The Law of Evidence, 7th ed., Wood’s Bankruptcy and Insolvency Law, 2nd ed., and Liew’s Immigration Law, 2nd ed. Also included are titles in the Young Advocates Series, a new set of resources to support newly called lawyers in developing skills in interviewing, mediation, discovery and conducting examinations. Emond Publishing’s Working With The Law series manuals provide procedural guidance (think checklists and samples) and comprehensive overviews of legal subjects – alternative dispute resolution, criminal, debtor-creditor, employment, immigration, family, small claims and more – as well as titles in practice management support.

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Watch for launch and access details for the Lawyers’ Reading Room on the Society’s website, in InForum and on Twitter @NSBS. Integrating ‘Triple P’ into the complaints process The Professional Responsibility (PR) department has been working to introduce Triple P (principled, proportionate, proactive) concepts into its response to complaints where appropriate. Most of the committees this department supports have been moving in this direction over the past year. The Professional Responsibility Policies and Procedures Committee (PRPPC) has been reviewing alternatives to the traditional disciplinary system, including practice assistance programs that are being offered in other jurisdictions. The majority of complaints received by the Society relate to competence and quality of service issues that may be better addressed through diversionary processes. It is hoped that the adoption and implementation of such processes will allow complaints to be managed in a manner that works at the root of the problem, and results in behavioural changes, in a way that our traditional system does not. Some examples to illustrate the changes underway: •

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In a recent complaint involving a law firm, the Complaints Investigation Committee (CIC) decided to create an education program tailored to effectively address the weaknesses that had been identified in a firm’s systems. In another case of long-standing trust account management problems with a senior practitioner who is due to retire next year, the CIC decided to assist the member in winding down the practice and monitoring the trust account, rather than pursuing any other practice conditions, which, in relation to relative risk, would not be in the member’s or the public’s best interests. In 12

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these ways, the CIC is also focusing on proportionality when making decisions in the public interest, and tries to be creative in its decision making in an effort to be ‘proactive’ while still having to be ‘reactive’ to complaints. Another area being examined is the extent to which restorative justice concepts may be able to be implemented in the complaints resolution process. Too often, complaints arise from broken relationships and there can be great impact from working to repair these relationships, rather than further harming them through the name-shame-blame process that often ensues from complaint investigations. Lawyers do not usually appreciate the harm their actions can cause to clients’ trust and sense of selfworth, and often measure ‘harm’ by the value, if any, placed on an error, or whether or not the case for the client was ‘won’ or ‘lost’. We hope to devote more time to working with lawyers and clients to identify and repair underlying harm, and restoring healthy solicitor-client relationships where possible. The Fitness to Practise Program has allowed for the identification of capacity issues earlier and the diversion of lawyers into the program before major public protection issues arise. The agreements between the lawyers and the Committee are flexible and creative, prepared in a manner that is intended to ensure the public is protected while assisting the lawyer in regaining his or her health and thereby supporting the Society’s object of rehabilitating its members. This process has helped lawyers avoid more formal discipline, including hearings, and the requirements that a lawyer must comply with are proportionate to the level of risk that has been identified.

All of these efforts involve ‘changing the conversation’ with lawyers and the public, and this will be a work in progress. Update: Transforming Regulation initiative Council has approved the creation of a pilot project that will evaluate the Society’s proposed self-assessment process for the future requirement that all legal entities have a Management System for Ethical Legal Practice (MSELP). In May, Council will be asked to adopt the final design elements for our new Legal Services Regulation model. The Society has engaged in an extensive consultation process across the province since November, to discuss advancements in the new regulatory model, entity regulation and the potential effectiveness of the draft self-assessment tool. The Executive Director, the Officers and members of Council have met with lawyers and managers from every type of legal practice: sole practitioners; small, medium and large firms; corporate counsel and public sector legal departments. There is strong support for the concept of legal services regulation, and wide recognition that legal practice is in the midst of significant change. A few highlights from what we have been hearing: • •

The concerns and issues for lawyers/firms in Halifax and those outside differ considerably. Most participants welcome an approach that will see the Society,

society news as the public interest regulator, supporting lawyers in the delivery of enhanced legal services. In the MSELP, it is crucial that the standards against which lawyers/law firms assess themselves be clear and based on those currently applied to the profession through the Code of Professional Conduct, the Professional Standards, the Regulations and the Common Law. Legal entities should be able to deliver legal services in whatever way they determine appropriate and through lawyers and other staff in law firms, so long as the standards are the same for all and the duty of supervision and oversight is in place to ensure that non-lawyers who provide legal services are both competent and ethical in providing the services they do. There must be a clear way for lawyers/law firms to report to the Society on compliance matters such as trust accounts, Client ID rules, etc. and these should be distinct from the self-assessment process. Because the circumstances of lawyers and firms vary significantly, there may be a need for alternative versions of the self-assessment tool.

For ongoing updates, stay tuned to InForum and @NSBS on Twitter. To receive direct notices via email, see nsbs.org/legalservices-regulation-update and subscribe by emailing us at [email protected].

The fact that Nova Scotia is the first law society to specifically recommend this approach was raised as a concern. Some felt a ‘competitive disadvantage’ could arise from Nova Scotia developing an approach that is not adopted in the rest of the Atlantic region or nationally, with added costs associated with complying with different regulatory regimes. Council members are alive to these concerns, and are committed to being leaders but not ‘alone’.

Creating an annual CPD plan Although there are no strict requirements for what may be included in your CPD Plan, it’s a good idea to include the following elements: • substantive legal education and skills development; • risk and practice management; and • professionalism and cultural competency.

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National and international update The Society’s work to modernize regulation continues to be reflected in our ongoing collaborations and discussions with other jurisdictions: •

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In Ontario, the Law Society of Upper Canada expects to provide a report to Benchers shortly on its Compliance-Based Entity Regulation project. We have been sharing the results of our consultation, especially relating to the work of our Solo and Small Firm Working Group. In British Columbia, consultations are nearly complete with the expectation that a report will soon be released by the law society’s Law Firm Regulation Task Force. In the Prairies, in-person consultation processes are just launching, with reporting likely in late summer or early fall on the Innovating Regulation collaboration.

The Society also maintains a liaison with several U.S. jurisdictions, where there is considerable interest in Proactive and ManagementBased Regulation (P&MBR). The American Bar Association, the National Organization of Bar Counsel and several upcoming conferences this year (the International Legal Ethics Conference in New York and the International Conference of Legal Regulators in Washington, DC) will devote part of their programs to addressing P&MBR in general and our work in Nova Scotia in particular. The consultations so far have shown we must continue to learn more as we move toward implementing a new regulatory model in Nova Scotia – thus the plans for a pilot project to commence this summer, to further test and fine tune the draft self-assessment process.

Practising lawyers: CPD Plans to be in place by June 1 The Nova Scotia Barristers’ Society requires all practising lawyers to create an annual professional development plan and commit it to writing. Commencing June 1, 2016, you will be expected to have your CPD Plan in place for the reporting year. On your 2016 Annual Lawyer Report, if you report that you do not yet have a plan, the Society will follow up to ensure your plan is in place by the end of August. All practising lawyers are still expected to complete a minimum of 12 hours of professional development each year, pursuant to Regulation 8.3.4, however you are no longer required to record these hours on the CPD Log as in the past.

For ideas on how to create a professional development plan, see For lawyers > Professional development on the Society’s website. You’ll find complete details on the revamped mandatory CPD Requirement, plus FAQs, model plans and templates, and suggestions for assessing your plan. The NSBS CPD Requirement is a flexible and convenient method to ensure lawyers meet their professional duty of competence and the Society’s public interest mandate. As the Society regulates lawyers in the public interest, it is important to be accountable and demonstrate to the public that lawyers maintain and strive for high levels of professionalism and competence in the practice of law. The new requirement to develop annual CPD Plans is a more purposive approach, unique to each individual and their own area of legal practice. It’s also in keeping with the Society’s new ‘Triple P’ risk-based approach to regulation: proactive, principled and proportionate. Also a reminder that the website’s Events calendar and Upcoming events page are updated frequently with a wide variety of CPD opportunities here in Nova Scotia and elsewhere, including online webinars. If you have any questions, or would like assistance from Education & Credentials staff in creating your CPD Plan, please email us at [email protected] or leave a message on the CPD line at (902) 422 1491 ext 371.

Fall 2015

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Photos provided by Schulich School of Law at Dalhousie University

Begun in Faith, Continued in Determination Burnley Allan (Rocky) Jones and the Egalitarian Practice of Law Please note, these passages were excerpted with permission from In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession, edited by Adam Dodek and Alice Woolley, 2016, UBC Press, Vancouver and Toronto, Canada. Professor Devlin wrote Chapter 4 of the book; the following excerpts are the introduction and conclusion from his 32-page chapter.

perhaps notorious – Black lawyer in Nova Richard F. Devlin, Professor of Law Scotia. An engaging, Schulich School of Law at Dalhousie University provocative, and fearless speaker, he took the lead in identifying pervasive racism in awyers are not well loved in Canadian society. Jokes about Nova Scotia and served as counsel in several of the most significant lawyers are legion … and sometimes vicious.4 Public opinion cases of those two decades. In the first part of this chapter, I discuss polls often place lawyers among the lowest ranks of trusted three key interventions by Jones: his role in helping to establish the professionals.5 Even the leaders of the legal profession itself express Indigenous Black and Mi’kmaq Program at Dalhousie Law School pointed concerns about its reputation for untrustworthiness6 and its (as it then was); his role as counsel in the famous R.D.S. case (1997); and his role as co‑defendant in a defamation suit brought by a Halifax ability to ensure access to justice.7 police officer in Campbell v. Derrick and Jones (2002). Whatever the accuracy or fairness of these criticisms or concerns, … there is one segment of the legal community that might merit a Some Larger Themes kinder, gentler assessment: egalitarian lawyers. They devote their This chapter has provided three glimpses into the career of Burnley practice to the pursuit of social justice. They recognize the structural “Rocky” Jones to illustrate some of the opportunities and challenges forces of inequality – class, race, gender, disability, sexual orientation, that might be encountered by an egalitarian lawyer. It is impossible, of course, to generalize from a and so on – and dedicate their particular case study to any larger energies to challenging such claims about egalitarian lawyering. forces through law. “The black people today in North However, the foregoing account does raise several themes that can This chapter provides a America are the revolutionaries, because generate further reflection and snapshot of some of the consideration. achievements and challenges of one such egalitarian lawyer: they are faced with extermination. We First, the interventions of Jones Burnley Allan “Rocky” Jones, help us to reflect on the larger one of the first Black lawyers 1 are forced to fight.“ – Rocky Jones (1969) debate in socio-legal theory about in Nova Scotia. From the the relationship between structure 1990s to the early 2000s, Jones and agency. Clearly, Jones has exercised significant agency in a established himself as the most high-profile – certainly celebrated,

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“You are responsible … [Y]ou are responsible for learning … [T]he more you learn, the more you are responsible … [Y]ou are either part of the solution or you are part of the problem.“ – Rocky Jones (1994)

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progressive manner with manifestly positive consequences. However, at the same time, there is little doubt that structures are equally important. The historical and sedimented racism in Truro and Halifax had a major impact on Jones, his family, and his community. He left Nova Scotia, he returned, he battled, and he had victories and defeats. Contexts can be formative but not determinative; individuals can make change happen, but it is complex and can go in unanticipated directions. Second, egalitarian lawyering can be challenging on multiple levels. Although there might be moments of achievement, even glory, those moments are the consequences of many years of hard graft, drudgery, and stress, usually accompanied by low levels of remuneration. Moreover, the bonds of professional collegiality are frail. Although some members of the Nova Scotian legal profession supported, admired, and collaborated with Jones, others resented and reviled him. Furthermore, the powers of conservatism do not give up without a fight. For many players in society, structural inequality is not just a norm or social condition but also a reality from which they benefit. To preserve that structured privilege, they will not only resist but also go on the offensive. Third, egalitarian lawyering, to be effective, entails collaboration and support. Although his industry, character, and charisma were vital, Jones was rarely a solo actor. In each of the three instances discussed here, family members, friends, professional colleagues, and even some institutions rallied to his various causes. This did not always mean that there was consensus or that others simply deferred to him. Indeed, as indicated, there were often intense (even testy) arguments at the levels of principle, policy, politics, and strategy. This should come as no surprise, of course, given the issues at stake and the inevitable diversity of normative visions for the good society. Fourth, and finally, there is the perennial question of the impact of legal education, legal practice, and legal culture on progressive activists. Is the practice of law really an effective mechanism for social reconstruction, or does it result in deradicalization through partial incorporation?95 Or, more pointedly, did “Rocky the Revolutionary” become “Rocky the Reformer”? How one answers this question, and the correlative question of whether or not such a shift is a good thing, will likely depend more on one’s political orientation than on any purportedly objective assessment of the career of Jones.96 Conclusion Many other stories could, and should, be told about Burnley Jones that would provide a richer and deeper understanding of an egalitarian lawyer’s ethical identity. Jones retired from the practice 16

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of law in the mid-2000s and passed away at the age of seventy-one in July 2013. However, the unfortunate reality is that, despite his best efforts, racism continues in Nova Scotia. As recently as 2012, White lawyers seem not to have learned from the Marshall Inquiry and continue to be incompetent in their representation of members of the Black community.97 In 2013, the Nova Scotia Human Rights Commission published a report on racialized discrimination in the current marketplace.98 Nova Scotia needs more lawyers with the “faith and determination” to pursue social equality; it needs more lawyers like Rocky Jones. Notes Thanks to John Dickieson, Andrew Nicols, Molly Ross, Philip Girard, Dianne Pothier, Ora Morison, Dick Evans, Faye Woodman, and Vince Kazmierski. Special thanks to Jim Walker for his enthusiastic support of this chapter. Research funding was provided by the Schulich Academic Excellence Fund. 1 Cited in Martin O’Malley, “Rocky the Revolutionary,” Globe Magazine (15 February 1969) [O’Malley, “Rocky the Revolutionary”]. 2 In Almeta Speaks, “Nova Scotia: Against the Tide,” part 2, Hymn to Freedom (videocassette), dir. Sylvia Hamilton (Mississauga: International Tele-Film, 1994). 3 Cited in Stephen Kimber, “Profile of Rocky Jones” (20 November 1995), online: Stephen Kimber, http://stephenkimber.com/bio/journalism/profile-of-rocky-jones/ [Kimber, “Profile of Rocky Jones”]. 4 Kirk Makin, “Tired of Being the Butt of Jokes, Ontario Lawyers Plan Image Overhaul,” Globe and Mail (6 February 2013), online: Globe and Mail, http://www.theglobeandmail. com/news/national/tired-of-being-the-butt-of-jokes-ontario-lawyers-plan-image-overhaul/ article8321520/#dashboard/follows/. 5 Ipsos Reid, News Release, “What Do Pharmacists, Doctors, Soldiers, Pilots and Teachers Have in Common? They’re among the Most Trusted Professions in Canada” (4 January 2011); Angela Fernandez, “Polling and Popular Culture (News, Television, and Film): Limitations of the Use of Opinion Polls in Assessing the Public Image of Lawyers” in Lorne Sossin, ed., In the Public Interest: The Report and Research Papers of the Law Society of Upper Canada’s Task Force on the Rule of Law and the Independence of the Bar (Toronto: Irwin Law in association with the Law Society of Upper Canada, 2007) 209. 6 Justice Ian Binnie, “Sondage après sondage … A Few Thoughts about Conflicts of Interest,” edited version of remarks at a panel discussion at Les Journées Strasbourgeoises in Strasbourg, France, 4 July 2008. 7 Chief Justice Beverley McLachlin, “Remarks of the Right Honourable Beverley McLachlin, P.C.,” delivered at the Empire Club of Canada, Toronto, 8 March 2007; Chief Justice Beverley McLachlin, keynote address delivered at the Access to Civil Justice Colloquium, Toronto, 10 February 2011; Chief Justice Robert Bauman, “Remarks of the Honourable Chief Justice Robert J. Bauman,” lecture delivered at the Trial Lawyers Association of British Columbia 2013 Bench Bar Awards Luncheon, 5 April 2013; Access to Justice Committee (CBA), “Reaching Equal Justice Report: An Invitation to Envision and Act” (April 2013), online: CBA, http://www.cba.org/CBA/equaljustice/secure_pdf/EqualJusticeFinalReport-eng.pdf. 8 A preliminary disclosure is essential. I first met Jones in the late 1980s and collaborated with him in establishing the IB&M Program and in helping to develop arguments in the R.D.S. case. I would characterize our relationship as one of occasional colleagues. I asked Jones to collaborate on this essay, but for several reasons he was reluctant to do so. … 95 Karl E. Klare, “Judicial Radicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941” (1978) 62 Minnesota Law Review 265. 96 Another response is to argue that this is a false dichotomy and that the preferred position is “radical reformism.” See, further, Richard Devlin, “On the Road to Radical Reform: A Critical Review of Unger’s Politics” (1990) 28(3) Osgoode Hall Law Journal 641. 97 Richard Devlin and David Layton, “The Cultural Incompetence of Lawyers and the Trial Level Judge: A Legal and Ethical Analysis” (2014) 60 Criminal Law Quarterly 360. 98 Nova Scotia Human Rights Commission, “A Report on Consumer Racial Profiling in Nova Scotia” (2013), online: Nova Scotia Human Rights Commission, http://humanrights.gov.ns.ca/sites/default/files/files/crp-report.pdf.

“But law was never a dream for me. It’s more of a way of continuing to do the political things I want to do and have a profession that allows me to make a living without being dependent on government.” – Rocky Jones (1995) 3

Photos provided by Schulich School of Law at Dalhousie University

25th F.B. Wickwire Memorial Lecture In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession

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thical challenges are inevitable in legal practice, and it’s a complicated subject to teach in university. In a new book, In Search of the Ethical Lawyer: Stories from the Canadian Legal Profession (UBC Press, 2016), leading academics and practising lawyers share their perspectives and case studies, raising important questions about what it means to be an ethical lawyer. “I have a fantasy that the book is mandatory reading for all first-year law students,” Richard F. Devlin told a full house at the Society’s 25th annual F.B. Wickwire Memorial Lecture in Professional Responsibility and Legal Ethics. A professor at the Schulich School of Law, where the event took place on February 24, Devlin contributed a chapter to the book, which was coedited by his fellow panelists Adam Dodek and Alice Woolley. “The book was a lot of fun to put together,” said Woolley, Professor and Associate Dean Academic in the University of Calgary Faculty of Law. “I think it allows people to understand and think differently about what it means to be part of the profession in a more positive and aspirational way.” In her own chapter, “Michelle’s Story: Creativity and Meaning in Legal Practice,” Woolley explores how a legal career can provide a strong sense of self identity, fulfillment and purpose – and profound loss when you can no longer practise law. ‘Michelle’ was a colleague and employment lawyer who had to retire early after being diagnosed with multiple sclerosis. “Michelle lost her sense of herself when she lost her ability to be a lawyer,” said Woolley. “She had such a strong idealism about democracy, politics and law, and as a lawyer she felt like she was a participant in that process … she was a problem solver, and she was good at it.” In his chapter “Keeping Secrets or Saving Lives: What Is a Lawyer to Do?” Dodek examines ethical challenges facing criminal defence lawyers: Does protection of the public ever outweigh a lawyer’s duty to maintain client confidentiality? He analyzes the Supreme Court of Canada decision in Smith v. Jones, in which the Court held that a lawyer can disclose privileged information when there is an imminent threat of serious bodily harm or death to an identifiable group or person. In that particular case, a man accused of aggravated sexual assault revealed violent criminal intentions to a psychologist who had been retained by the defence lawyer. The lawyer obviously didn’t disclose this information in defending the client, but the psychologist later came forward with concerns that public safety was at risk. “It’s not the role of the criminal defence lawyer to worry about what their client might do in the future,” said Dodek, Vice-Dean Research and Associate Professor in the Common Law Section at the University of Ottawa.

Adam Dodek, Alice Woolley and Richard Devlin When he interviewed the lawyer 15 years after the case had concluded, he asked if the lawyer had ever thought about reporting his client after hearing the psychologist’s evaluation.

Marla Cranston Communications Officer

“He said he never considered it for a moment. If he had gone to police with concerns about his client, that very likely would have been his last day as a criminal defence lawyer,” said Dodek. Devlin’s chapter dissects several significant Nova Scotia cases to illustrate Halifax lawyer Rocky Jones’ ‘resolute advocacy’ on behalf of equity-seeking and economically disadvantaged clients, which was also a key factor in establishment of the law school’s Indigenous Blacks & Mi’kmaq Initiative. “Law, legal processes and legal institutions are deeply embedded in the structures of power and inequality said Devlin, admitting “this was one of the most difficult papers I’ve ever written.” He added: “The lesson is clear: Being a progressive lawyer is not always glorious. It may take up many years of your life.” Founding members of the Canadian Association for Legal Ethics, Professors Dodek and Woolley were both named in recent years by Canadian Lawyer to be among the 25 most influential figures in Canada’s legal profession. Woolley had kind words for the Nova Scotia Barristers’ Society, which she called “Canada’s most innovative and forward-thinking legal regulator.” She also had advice for the students and young lawyers in attendance. “Some of you may feel some disillusionment about your chosen profession,” she said. “What I’ve learned is that being a lawyer can be great. It can involve things that may seem morally doubtful. But being a lawyer does involve doing something that matters. You get to use your brain and help people navigate through the world of law. Sometimes you get to win, which is nice, especially when you’re right!” And also this: “For everything you can control in your life, there are a thousand things you can’t. Resilience is a good quality to nurture. Even the worst loss will have some gain.” The Wickwire Lecture is co-hosted annually by the Society and the Schulich School of Law. It’s named for former Society President Frederick B. (Ted) Wickwire QC, who had a distinguished career that included public service. See videos of previous Wickwire Lectures online on the F.B. Wickwire Memorial Lecture in Professional Responsibility and Legal Ethics page, located in the Public Lectures section of the Schulich School of Law website at dal.ca/faculty/law.html.

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Truth and reconciliation Heeding the call to action in Nova Scotia

Marla Cranston Communications Officer

“The legal system needs to figure out how to do its business differently.”

This was the challenge issued by the Honourable Justice Murray Sinclair in Halifax on January 28, during his keynote address at the CBA-NS Bench & Bar Dinner. The Truth and Reconciliation Commission (TRC) has issued 94 recommendations to redress the legacy of Canada’s Indian Residential Schools; its Call to Action #27 asks law societies across Canada to ensure all lawyers receive appropriate cultural competence training. “Reconciliation involves all of us Canadians needing to come to terms with our own miseducation and re-educating ourselves so that we can come together as a society in a better relationship – a mutually respectful relationship,” said Justice Sinclair, who was recently appointed to the Senate of Canada. As TRC Chair, the Manitoba judge led the Commission for six years as it travelled to 300 communities across Canada, hearing from thousands of residential school survivors. Former students of the Shubenacadie Residential School, which operated in Nova

Scotia from 1930 to 1967, had experiences very common to those expressed elsewhere in the country, said Justice Sinclair. They spoke about the “discipline and abuse they experienced, the harshness of the behaviour and the treatment, the fact that they were separated from their families. Many of them grew up with no sense of who they were as individuals and as a part of a collective,” he said. Cultural competence refers to the knowledge, skills and attitudes required to work with diverse communities. The Commission heard stories about many lawyers who demonstrated a “lack of sensitivity,” and “did not have adequate cultural, historical, or psychological knowledge”. While the TRC report renews the urgency, cultural competence is by no means a new concept. One of the recommendations of the Marshall Inquiry: Royal Commission on the Donald Marshall, Jr., Prosecution (also #27, coincidentally) was to establish better ongoing liaison between the legal profession and Indigenous communities in the province. It also called upon the Barristers’ Society to educate its members concerning the special needs of Aboriginal clients. Since the Marshall Inquiry, the Society has been acutely aware of the issues of equity, diversity and inclusion as necessary guiding principles for regulating the profession in the public interest. Introduced in 1994, the Equity Office was established permanently in 1997. Renamed the Equity & Access Office last year with an expanded mandate, it addresses racism, sexism and other forms of discrimination in the legal profession, makes numerous efforts to ensure the legal profession adequately reflects the public it serves, advocates for enhanced access to legal services and the justice system for equity-seeking and economically disadvantaged groups, and much more. The Office also facilitates a growing number of requests for cultural competence education. Throughout the winter and spring, the Society has been providing mandatory full-day cultural competence workshops for Society staff and volunteers, including members of Council, committee chairs and targeted committees such as the Hearing Committee and Complaints Investigation Committee. “We see our history in Nova Scotia as requiring us to be at the forefront of these issues,” says President Jill Perry. The present and future require it as well, she adds, as the Society works to assist lawyers and firms in building capacity to better serve clients in an increasingly diverse environment. In March, the Federation of Law Societies of Canada established a working group to develop recommendations on how best to effectively respond to the Calls to Action, and committed to a process that engages representatives of Indigenous communities.

The Hon. Justice Murray Sinclair, Jan. 28 in Halifax: “It’s the way we’re going to have a better society in the long run.” 18

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“In providing a national response, we will ensure it complements the ongoing work of law societies across the country,” said Federation President Jeff Hirsch.

Call to Action #27 “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.” - Truth and Reconciliation Commission of Canada, June 2015 Significant efforts underway in Nova Scotia Launched in December 2015, the Society’s online Equity Portal is a comprehensive resource designed to assist legal entities in enhancing cultural competence and building equity strategies in their practices. It contains toolkits, model policies, assessments, articles, training videos, a reference library and much more. See nsbs.libguides.com/equityportal. The Society’s new model of legal services regulation will be tested in a pilot project this summer and fall. Cultural competence is a critical component of the proposed Management System for Ethical Legal Practice, which will ask lawyers and firms to reflect on how they are doing in 10 areas. In particular, Element 9 asks legal entities to ensure they are committed to “improving diversity, inclusion and substantive equality,” and provides a detailed list of things to think about when assessing their own cultural competence. It was developed in consultation with the Racial Equity and Gender Equity Committees. The six new Regulatory Objectives, approved by Council in April, clarify the Society’s purpose and articulate the key parameters of legal services regulation. Objective #5 is “Promote diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system.”

2016 NSBS

ANNUAL MEETING Saturday, June 18 | 8:30 am to 12 noon

Marion McCain Arts & Social Sciences Building Dalhousie University, 6135 University Ave. ALL LAWYERS, ARTICLED CLERKS & NON‑PRACTISING MEMBERS are welcome to attend the 2016 NSBS Annual Meeting. It begins at 8:30 am with the Annual General Meeting, followed by a two-hour educational component. For complete details, watch InForum | nsbs.org @NSBS | NS Barristers’ Society |

NSBarristers

A few more highlights: • Articled clerks receive cultural competence education as part of the Society’s Skills Course. • The Society is creating a cultural competence education module for lawyers throughout the Maritimes in collaboration with law societies in New Brunswick and PEI. • The Equity & Access Office is partnering with community and government organizations to increase education around issues of trauma. • The updated NSBS CPD Requirement calls upon lawyers to create professional development plans that include cultural competence education. • The Society supports new Mi’kmaq clerks through the Ku’TawTinu: Shared Articling Initiative with the Schulich School of Law; a similar initiative is in development for African Nova Scotian articled clerks. • Consultation is underway with the profession following the recent introduction of a new Professional Standard in Equity and Diversity, proposed for addition to the Professional Standards in Law Office Management.

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the equity portal Nova Scotia’s diversity is increasingly reflected in its legal profession. With this comes the expectation that lawyers are able to communicate effectively with diverse clients and competently manage a diverse workplace. The Society’s Equity Portal provides resources for lawyers and legal services organizations to promote equity, diversity and cultural competence in their workplaces.

How can my firm achieve employment equity goals? These tools support lawyers in their efforts to meet obligations related to Regulatory Objective #5: to “promote diversity, inclusion, substantive equality and freedom from discrimination in the delivery of legal services and the justice system”.

What is cultural competence? Cultural competence is the requisite knowledge, skills and capacities required to interact and communicate effectively with people of different cultures.

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What are diversity assessment tools? • Scorecards and checklists assess organizational performance against best practices • Toolkits provide templates and guides to assist employers with recruitment, retention, development and inclusion

What’s in the Reference Library? • Legislation: What governs employment equity and human rights in Nova Scotia? • Notable Canadian cases: selected cases in which diversity, substantive equality and freedom from discrimination are at issue, on CanLII Connects • Foundational documents: reports and findings foundational to understanding our Nova Scotian history and context • Links to further resources in the Barristers’ Library

nsbs.libguides.com/equityportal

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Historical trauma can resonate for generations

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he tentacles of trauma can reach out and grab succeeding generations – the children and grandchildren of those who survived short-term or enduring horrors.

Offspring of survivors from Canada’s now-defunct residential school system and the grandchildren of Holocaust survivors have been cited as examples by researchers. The cross-generational effects of trauma have hit other communities, too, such as Black families in South Africa that suffered under Apartheid, children of Japanese-Canadians shipped to internment camps during the Second World War and Americans born to U.S. veterans of the Vietnam War.

She said that among the findings of Michael Lightstone research into Holocaust survivors and Freelancer their families were “some parallels” to the residential school experience in this country. She pointed to communication, or lack of same, regarding coping with past trauma. “We found a lot of the same issues – like this conspiracy of silence” around talking about residential schools, Bombay told CBC Radio last September. This communication problem can harm individual households, she acknowledged in her talk at Dalhousie.

In this province, Indigenous people and families that include former residents of the Nova Scotia Home for Colored Children have experienced psychological distress due to past trauma affecting their elders, or other relatives.

“We find those whose parents went to residential schools, those families don’t have a good sense of communication within the family,” said Bombay, who’s Anishinaabe from the Rainy River First Nation in Ontario.

A seminar hosted by the Dalhousie Health Law Institute in midJanuary examined historical trauma among Aboriginal peoples. Guest speaker Amy Bombay, a Dalhousie University faculty member and researcher – and the granddaughter and niece of former residential school students – said historical trauma has a cumulative effect.

Canada’s residential school system saw children forced to live at schools away from their families and enrolled in programs designed to “kill the Indian in the child.” Aboriginal youngsters were taught to be ashamed of their heritage; many students were victims of neglect and/or abuse.

“We find those whose parents went to residential schools, those families don’t have a good sense of communication within the family,”

The risk of psychological difficulties is greater among residential school survivors than among adult Aboriginals who didn’t attend these schools, said Bombay, who teaches at the university’s school of nursing and in the faculty of medicine’s psychiatry department. Having a parent who attended a residential school “is associated with a greater likelihood of experiencing various types of childhood adversities, including not only abuse but various types of neglect, like emotional neglect (and) physical neglect,” she said.

“It’s when I was starting my graduate work that I came across this idea, and it really spoke to me and helped me reflect on my family’s history (and) why I see some of the dysfunction and problems in my family that I do,” Bombay told a packed lecture hall of law students, faculty, social work students, health professionals and others in Dalhousie’s Weldon Law Building. Photo provided by Schulich School of Law at Dalhousie University

She said the law, as it relates to the health and well being of Aboriginal people, does address health-care rights. “In international law, we’re talking about the United Nations’ declaration on the rights of Indigenous peoples,” said Bombay. “When we’re talking about constitutional law, scholars have argued that (traditional) healing and health practices were integral to indigenous societies pre-contact (with European colonizers), and should thus be protected.” Bombay began her research more than a decade ago and zeroed in on mental-health outcomes. Studying the long-term impact of trauma, she examined why Canada’s First Nations peoples, and Indigenous people elsewhere, had higher levels of emotional problems.

Dr. Amy Bombay, Dalhousie University

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“True community engagement is about building the public voice into our processes and finding continuous opportunities for those voices to be heard. It is about transforming our justice system so it is responsive and responsible to the people who use it and engage with it every day.” – Emma Halpern, NSBS Equity & Access Officer 24

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Community engagement and commitment to social justice A keynote address by the Society’s Equity & Access Officer

The Social Justice Soirée is an annual fundraiser for Dalhousie Legal Aid Service (dal.ca/dlas), which serves the province’s low income community on legal issues related to child and adult protection, family law, income assistance matters, landlord‑tenant disputes, human rights and more. This year’s event took place January 30 at Casino Nova Scotia. The evening’s keynote speaker was Emma Halpern, Equity & Access Officer at the Nova Scotia Barristers’ Society (and a former student at the Dalhousie Legal Aid Clinic in 2005). Here are some highlights from her address, in which she described the #TalkJustice approach to community engagement.

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quity and access to justice work can sometimes be a long and frustrating road. Often it feels as though for every two steps forward there is one step back. But lately things have been different, hopeful – change is in the air. We have received some powerful recommendations from the Truth and Reconciliation Commission of Canada that provide guidance and direction for our work. There is encouraging new case law like R. v. X., and the recent human rights decision that acknowledges that our child welfare system discriminates against Aboriginal children. Our law schools are gradually becoming more diverse and there is a growing call for diversity among lawyers and on the Bench. When I deliver a cultural competence workshop, participants are familiar with the definitions, case law, and academic literature on the topic.

Some who work in the system might say this is tradition or the way we ensure respect in the process but many others, particularly those trying to access the system, are calling for a system that is easier to navigate, diverse, inclusive and responsive to our changing culture and society. So how do we change? Where do we start? What do we do? My work for the last few years as Equity and Access Officer has been, in large part, about engaging directly with the diverse communities of this province who frequently do not have a voice in our justice system. We are trying to engage differently then we used to, to build relationships and truly hear people’s stories and experiences. We go into communities and speak directly to community leaders and organizers and social change agents.

And these are just a few examples. I was at a meeting a few weeks ago and said to a colleague: “You know, for the first time in eight years doing this work, I am frequently in meetings and at education seminars where I no longer have to convince lawyers that understanding equity, inclusion and access to justice are crucial aspects of their work.” It seems that change, however slow, is happening, and that is motivating and hopeful. But of course, now, there are new challenges. Because now that we are beginning to understand the impact of power and privilege on access to our justice system, now that we acknowledge the horrific legacy of residential schools, the barriers faced by victims of sexual violence, and the continued existence of racism and discrimination in every part of our justice system ... Now we have to change. And change is hard and scary and uncomfortable. We have a legal system that is virtually identical to the system that existed 100 years ago. There are few other institutions in our society where we could take a person from 100 years ago plunk them down and they would know what to do. But a lawyer from 100 years ago would be right at home in a courtroom today.

Through our #TalkJustice initiative, we have been listening to community perspectives on justice and building those perspectives into our work. Over the past year we have spoken to more than 100 Nova Scotians about their views on access to justice and we continue to be committed to building a long-term, sustainable public conversation about justice in this province. We are hearing and listening to a wide range of views and perspectives on access to justice and we are trying to weave this public engagement model into both our everyday and long-term work on justice in this province. We have learned a lot through this work. To begin with, community engagement is not a one-off. It is not a focus group or a survey or a one-sided set of questions. True community engagement is about building the public voice into our processes and finding continuous opportunities for those voices to be heard. It is about transforming our justice system so it is responsive and responsible to the people who use it and engage with it every day. Or, as Justice Cromwell has put it: It is putting the public first. Through this public engagement work, we have heard many incredible suggestions about how we can change and improve our Fall 2015

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Wright. I sat in our classroom and listened, surrounded by lawyers, many of whom were hearing about cultural competence and what it means in practice, for the first time. What struck me most was Robert’s remark that cultural competence is not a passive exercise. It is not only about learning or even about knowing, it is, most importantly, about acting. It is about changing behaviour. In Robert’s words, cultural competence requires a demonstrated commitment to social justice.

Emma Halpern, NSBS Equity & Access Officer, with members of the #TalkJustice team at the Social Justice Soirée on January 30: (left to right) Jane Willwerth, Officer, Strategy & Engagement; Angela Simmonds, Consultant, Preston Area land issues; and LaMeia Reddick, Community Engagement Consultant. justice system and interestingly, many of the things we heard are not traditionally viewed as aspects of a legal system.

And this for me was a light bulb moment. I have been working on education initiatives for years, thinking that if only people had the knowledge, or the right information, then they would change perspective and alter their behaviour. In that moment I realized that although knowledge of course is crucial for change, knowledge is not enough. It is time to move beyond knowing to action. As a profession, it is time to demonstrate our commitment to social justice. As Justice Murray Sinclair commented in his remarks at the 2016 CBA Bench and Bar dinner, the time is now: “The legal system needs to figure out how to do its business differently. Not because it’s the right thing to do, although it is. Not because it’s the popular thing to do, although it seems to be. But because it’s the way we’re going to have a better society in the long run.”

We heard that elementary and high schools need to weave justice knowledge into all subjects with a focus on solving conflict, and the rights and responsibilities of individuals under the law.

Learn more about the work of the Society’s Equity & Access Office at nsbs.org/equity-access, and follow #TalkJustice at talkjustice.ca.

We heard about a desperate need for transportation to get to lawyers’ meetings and court dates and community services.

Social justice efforts recognized

We heard about a lack of adequate housing and a need for child care. In particular, a need for a more child-friendly court system with places for children to go and welcoming attitudes.

The Social Justice Soirée also honoured two recipients of the fourth annual Irving and Ruth Pink Award for Youth Development and Social Justice:

Over and over again the people we spoke to asked for a kinder, friendlier, nicer, more compassionate justice system.

DeRico Symonds is founder of Future Roots, a social enterprise employing youth aged 14-19 in North End Halifax. Find out more about the organization at FutureRootsHalifax on Facebook and @futureroots_hfx on Twitter.

We also heard about racism and discrimination. We heard loud and clear that lawyers and judges and front line staff need to be more culturally competent. More able to represent, understand and, I should add, be more representative of the public they serve. One quote, more than anything, sticks out for me from this engagement work and it came from a young man in a youth program: “How can a lawyer represent me when they don’t have the time to get to know me? And if they don’t believe me or can’t understand where I am coming from, then they can’t really represent me.” To me, this quote speaks to the need for extensive cultural competence education. Recently, the Society hosted a five-hour cultural competence workshop with 64 lawyers and staff present, facilitated by Robert S. 26

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The Sea Star Child and Youth Advocacy Centre is an accessible, welcoming setting where young people who have experienced abuse can access and navigate the services they need, all in one streamlined process. It’s a collaborative project among the IWK Health Centre, government and community partners. For details, see iwk.nshealth.ca/children-health/ child-and-youth-advocacy-centre. Created after Mr. and Mrs. Pink left an endowment to Dalhousie Legal Aid Service in 2012, the award recognizes those who work with at-risk youth, and also aims to inspire youth to work for social justice in Nova Scotia. It highlights the important role of community organizations in improving access to justice, and demonstrates how this work is not solely the job of what is traditionally considered to be the “justice sector.”

Untitled:

Resolving historic land title issues

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he Equity & Access Office plays an important advisory role in the setup and implementation of a new Land Title Clarification Pilot Program.

Lack of land title clarity has been a long-standing issue for African Nova Scotian communities, and emerged as a pressing priority during community engagement efforts several years ago. In the summer of 2014, the Society hired North Preston law student Angela Simmonds to conduct qualitative research to learn more about the experiences of community members in relation to property issues. A working group was formed with partners in the legal sector and government, including Nova Scotia Legal Aid, the municipality, the Department of Natural Resources and the Office of African Nova Scotian Affairs, leading to the pilot announced in March. The provincial government is hiring an outreach worker for the pilot phase, which focuses on East Preston, North Preston and Cherry Brook and relies on pro bono assistance from lawyers and land surveyors. The Legal Information Society of Nova Scotia is offering free wills clinics to seniors in need, giving them an opportunity to express their wishes even where land title has been unclear for many generations.

“We need to all be in this together,” says Executive Director Darrel Pink. “The Society continues to work with the affected African Nova Scotian communities, government and the legal profession to find workable solutions to these historic injustices.” The complex issue is explored in a powerful investigative web series produced by journalism, radio and TV students at the Nova Scotia Community College. Initially inspired by a class visit from the Society’s #TalkJustice team, the students drew national media attention in February when they launched “Untitled: The Legacy of Land in North Preston”. Watch the series online at NorthPrestonLand.ca and visit talkjustice.ca to learn more about the project’s origins. #TalkJustice.ca is a hub for the Society’s efforts to ‘put the public first’ in high-level discussions about how to improve access to justice in Nova Scotia. LaMeia Reddick, community engagement consultant, says it’s crucial to invite and allow the public voice to guide justice system reform. “Effective engagement is about building relationships with diverse communities in order to better understand their unique justice needs,” she says.

Photos provided by Erin Moore, Faculty, Radio & Television Arts, NSCC

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1. The investigative web series by NSCC students includes an interview with author Lawrence Hill. 2. & 3. Stills from the production of “Untitled: The Legacy of Land in North Preston”. Elaine Cain pays taxes on a piece of property that has been in her family for generations; she hopes to gain clear title so her descendants will be able to enjoy it too. Fall 2015

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volunteer profile

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Canadian Association of Black Lawyers launches Nova Scotia chapter

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group of Nova Scotia practitioners has formed the newest chapter of the Canadian Association of Black Lawyers.

The provincial branch was established with an eye to providing support and networking for Black lawyers and mentorship to students. Community work will be an integral part of the chapter’s mandate, too. In December, the branch hosted its launch event at a downtown Halifax hotel. The gathering gave attendees a -with files from CABL-NS chance to meet members of the local executive and the organization’s national president, Toronto lawyer Donna Walwyn. Michael Lightstone Freelancer

She said the lawyers’ association now has chapters in British Columbia, Ontario and Nova Scotia, and its goal is to have one in every province. The association has at least 350 members, Walwyn said. Chapters need a minimum of 10 members; the Nova Scotia branch is starting with more than that number. The national organization originated in 1996, so it is marking its 20th anniversary this year. In Nova Scotia, there were discussions over the years about setting up a chapter here and it is finally a reality. Among the association’s objectives, according to its website, are “promoting academic and professional excellence, fostering among Black lawyers and law students a greater awareness and commitment to the needs of the Black community” and procuring “increased access for Black students to law schools.” The Nova Scotia Chapter has a student liaison position on its executive, currently held by Jasmine Hudson, a third-year student at the Schulich School of Law. Alicia Arana-Stirling, branch president, is happy to celebrate the launch of the Nova Scotia Chapter in CABL’s 20th anniversary year. Members of the chapter are hoping to attend CABL National’s 20th anniversary gala event in Toronto on October 15. “Promoting access to justice and diversity – in the Bar, on the Bench – this would be part of our mandate,” said Arana-Stirling, adding it’s still early in the life of the provincial chapter. The launch event in December included a suggestion sheet for guests to use to recommend matters and projects the chapter should consider. Branch vice-president Duane Eddy said the opportunity for him to contribute as a community volunteer was a motivating factor in joining the lawyers’ association. “I have enough experience under my belt that I can devote more time to giving back to the legal community, and offer my legal expertise

volunteer profile

to the community and really address issues – not only from a legal perspective but from a social perspective that have a legal aspect to them,” he said in an interview. The most recent Nova Scotia Barristers’ Society statistical snapshot, from the fall of 2015, indicated that 2.3 per cent of practising lawyers in the province are African-Nova Scotian. (Note: Not all practitioners chose to self-identify in the annual lawyers’ survey.) Nova Scotia’s first Black lawyer was James Robinson Johnston of Halifax, who died in his late 30s in 1915. It would be 35 years before the next native-born, African-Nova Scotian lawyer would be called to the Bar. Dalhousie University’s Chair in Black Canadian Studies, in place since 1991, is named in Johnston’s honour. “Access to legal education is a huge issue,” Eddy acknowledged. “Change has been slow, in terms of getting more diversity at the Bar here in Nova Scotia.” He said one hurdle is the challenge racialized law graduates face when trying to secure articling positions. “Access to legal education and career advancement is only one issue facing the legal community,” said Eddy. “Part of CABL-NS’s mandate is to work with other stakeholders in order to find practical solutions to issues facing the legal community at large.” CABL-NS is an inclusive organization that fosters diversity across all spectrums, and it aims to provide a unique perspective and contribution as a legal organization here in Nova Scotia. CABL will work to ensure that the legal profession and the provision of legal services remain progressive and responsible to changes in the economic, social and demographic mosaic. The chapter had its second networking event on April 15. Attendees had the opportunity to donate to the Dalhousie Black Law Students’ Association Annual Suit Award, which provides a new business suit to a law student. This year, the DBLSA hopes to provide a suit to both a male and female student. CABL-NS is open to all practising and non-practising members of the Bar and law students, and hopes to engage in partnerships with other equity-seeking organizations. In addition to expanding its membership in its inaugural year, the chapter plans to provide a networking/interviewing workshop for law students and host a summer family picnic. Find out more about the national association at cabl.ca. Contact the Nova Scotia chapter via email at [email protected]. Fall 2015

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Leadership takes a village “Be purposeful” in finding mentors and sponsors

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he road to leadership is not a solitary one, says Lydia Bugden, Chief Executive Officer and Managing Partner of Stewart McKelvey. Last August, she became the first woman to helm a major Atlantic Canadian law firm – and says she couldn’t have done it without the strength and encouragement of a “village” along the way. “I think that is the overriding message I wanted to share with you ... you are not alone on your leadership quest,” said Bugden, speaking at the Society’s fourth annual Women – Strength in Leadership: Remembering Dara Gordon QC event, held April 14 at the Canadian Museum of Immigration at Pier 21. Mentors and sponsors are important allies: mentors take on a teaching and coaching role, while a sponsor tends to be a person in a position of influence who can help open doors to opportunities.

“For example in our profession, many of Marla Cranston our colleagues may take on the mentor Communications Officer role from time to time but a sponsor is the one who is willing to recommend you to others with the intention of advancing your career for no real or apparent personal gain,” said Bugden, sharing examples from her own path to leadership before and after joining Stewart McKelvey in 1999. Called to the Nova Scotia Bar in 1992 and the Ontario Bar in 1994, Bugden spent her first seven years in the profession as inhouse counsel focusing on corporate/commercial and real property matters, first at The TDL Group Ltd. (Tim Hortons) and then The Consumers Gas Company Limited / Enbridge Inc. During her time with Stewart McKelvey, she has provided counsel to corporate clients in relation to mergers and acquisitions, financings (bilateral and syndicated facilities), renewal energy projects (wind and tidal), corporate restructuring and governance matters.

”...as women, we need to be more active than men in helping each other find that right combination of mentor and sponsor in order to advance the position of women in leadership roles.” A turning point in her career was meeting Sir Graham Day, who became both a mentor and sponsor, and gently urged Bugden over the years to take on new roles of responsibility within the firm. Six years on the Halifax office’s Management Committee led to a threeyear term for Bugden on the firm-wide Partnership Board (20082011). She was also Department Manager for the firm’s Business Department (2012-2013), and Associate Practice Manager for the Halifax office’s Corporate Group (2001-2008, 2012-2013). Less than a year into her tenure as CEO, Bugden is taking the firm into uncharted but promising waters, in an innovative new collaboration with Seattle-based software company, TheFormTool LLC. Getting ahead of major change in the legal sector was the impetus for the new strategic partnership, perhaps the first deal of its kind in Canada.

Lydia Bugden: “You are not alone on your leadership quest.” 30

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Women have a particular responsibility to help each other cultivate leadership confidence and acumen, said Bugden: “In addition to being more purposeful in finding our own mentors and sponsors, as the numbers in our profession and around boardroom tables still

show us – as women, we need to be more active than men in helping each other find that right combination of mentor and sponsor in order to advance the position of women in leadership roles.” This holds true, even at the top. While Bugden was applying for the CEO position, “a village” of female partners, colleagues and friends were especially supportive through the hiring process. They shared leadership articles and tips, reassured her on her somewhat daring choice of interview attire (the same kiss-patterned dress she wore at the April 14 event), and helped her ‘mentally prepare’ for the hard questions she would be asked. For anyone who has appreciated a mentor, it’s important to pay it forward to younger lawyers, she said. “Up until last August I was still practising law, so a lot of the support and mentorship I could offer to others was something everyone practising can do to help advance another woman’s career. Putting forth a female colleague to take on a significant role on a file, or a leadership role within your firm or organization. Introducing female colleagues or clients to others who may be helpful to them in terms of opening doors. Suggesting female friends and colleagues for board positions in our community. Encouraging young female lawyers to ‘stick with it’ as it does get better. Celebrating successes. These are things we can all do.”

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Many organizations, C M Y K including LIANS, recognize that mentoring is key to maintaining and enhancing professionalism and lawyering skills. It can improve relationships among lawyers, promote camaraderie, and help address issues of stress and isolation faced by many lawyers. Mentors receive the satisfaction of helping someone grow and succeed in the practice of law, while mentees benefit from the opportunity to receive regular encouragement and support, explore new ideas and alternatives, and develop new contacts and networking opportunities. Acting as a mentor/mentee may also be part of your personal professional development. To participate, visit the LIANS website and find the Mentorship Program Application Form. Once registered, you can also access the Model Mentoring Activity Plan and a Mentoring Guidelines Booklet. find out more at:

www.lians.ca/services/mentorship-program.

Fall 2015

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Are you a boy or a girl?

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Gender neutral language tips Words have an impact on inclusion

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any mainstream and government institutions have adopted gender-neutral language standards. Such standards often tend to address concerns about male-oriented language in traditionally male roles or capacities, and female-oriented language in traditionally female roles or capacities. These existing policies provide a solid starting place. However, we recommend that legal entities and other organizations go much further in their own gender neutral policies. Gender does not exist solely on a male-female binary. Some people feel that they do not fit with the gender or sex, or both, which they were socially assigned at birth. By adopting a policy that recognizes gender neutrality is about more than the traditional malefemale binary, the Society (and other organizations) can actively work toward creating a safe and inclusive space for all people.

of how the name you use for someone can have Kaitlin Pierce & Melanie Anderson a huge impact on that Students, Schulich School of Law individual. “Having a name at Dalhousie University that matches one’s gender identity is not only important to allow people to live life as their full selves, but it is also important for their safety.”5 There are many barriers to accessing employment, housing and services for people whose identification documents do not match their gender identity or expression, but getting a different name on identification documents requires a legal name-change process. A name given at birth can also be emotionally challenging because it may be connected to losses, such as family, or a disconnection from their true self.6

Tips on preparing to be an ally and creating an inclusive space1 • Use inclusive language to ensure everyone feels welcome and respected. • Learning is ongoing and making mistakes is normal. What people will look to is how you respond when you realize your mistake or it is brought to your attention. • Don’t be afraid to apologize. Be open to receiving feedback, reflecting and questioning your own stereotypes and assumptions. • Learning is your responsibility. Some LGBTQ* people may be happy to help you learn more, but not everyone is comfortable being an educator in all circumstances. Also, everyone’s experience is different, so one person cannot speak for all LGBTQ* people. • Remember that LGBTQ* people or their loved ones are in the room when you’re talking about LGBTQ* topics.

“Out”: Everyone has their own way of being “out.” Each individual will choose whether and with whom they will share their gender history. Never “out” someone who has disclosed their gender history unless you have been given permission. At the very least it is disrespectful, but it could lead to more serious consequences such as job insecurity or increased safety risks.7

Terms and concepts Binary: The socially constructed idea that gender and sex are only divisible into two discreet, opposite categories of male (man/ masculine) and female (woman/feminine).2

prefer:9 -- use the pronouns people have told you they prefer; -- ask even when you think you know; -- avoid asking only when you “don’t know,” which could put particular people in an uncomfortable or vulnerable position; -- do not say “I don’t care” when you are asked, which can trivialize the experience for people who have been struggling for recognition. Never require someone to identify if they are trans if they do not want to.10 Never disclose someone’s trans identity without their permission.11 Ask for preferred names rather than legal names. If you require

Gender identity: How someone identifies their gender, which may not align with the gender identity socially assigned at birth. This is different than sexual orientation, which is about who a person is attracted to.3 Someone’s gender identity does not determine their sexual orientation. Gender identity is also different than gender expression, which is how someone publicly expresses their gender by their public actions.4 Names: Names are vital to our identity. It is important to be aware

Pronouns: These are the words we use when we are identifying someone in the third person. In English, we commonly use pronouns that indicate a person’s gender identity such as he and she, but there are many more pronouns.8 (See Additional resources for a list.) General principles

• Allow people to self-identify by using open-ended questions. • Make it standard practice to ask people what pronouns they

• • •

Note: The Society is exploring the development of gender neutral language standards, and enlisted law students Kaitlin Pierce and Melanie Anderson for research and recommendations, and to compile the related resources. Fall 2015

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•

•

legal names, also ask for preferred names and put this first. This establishes your respect for a person’s identity.12 Watch for commonly used words that import gender where it is not informative or necessary: -- use partner instead of wife or husband; -- use child instead of son or daughter; -- use parent instead of mother or father; -- avoid using gender in descriptions when it is irrelevant (e.g., female suspect); -- do not add terms like woman or man as descriptors when it is unnecessary (e.g., policewoman or policeman); if the term requires a word to be complete, use a neutral word such as person (e.g., police officer). When discussing gender, talk about all genders rather than “both genders” or “the genders”.

Written communications • When listing particular people, use something other than gender to decide how to order their names (e.g., alphabetical order). • When you know people’s preferred pronouns or titles, list in a parallel construction (e.g., Ms. Daniels and Mr. Porter, rather than Mr. Porter and Suzy Daniels). • When working with material that is written to a general audience, here are some ways to avoid using gendered language: -- Use the third-person plural instead of gendered singular, for example: •• Original sentence: When your client comes to your office, he may want advice immediately. •• Alternatively: When your clients come to your office, they may want advice immediately. -- Eliminate pronouns altogether by repeating the noun or using articles such as the or a: •• Example: When your client comes to your office, the client may want advice immediately. -- If you are writing to an audience, use you, your (informal) or one (formal). -- On forms, ask yourself whether you need to know someone’s gender or sex. If not, remove it. If you do, ask for preferred pronouns, sex and gender with an open space for people to identify themselves.13 -- Find out whether people want to be contacted by their legal or preferred name, and contact them this way. For trans people, receiving information to one or the other could create issues in their community depending on their status.14 Ideas for gender inclusive event planning15 -- Determine which washroom(s) can be accessed by all genders and make it clear for guests and organizers where they are. -- Provide opportunities for people to specify preferred pronouns before and during the event (e.g., nametags that include pronouns). -- Make it clear that it is a safe space and an inclusive event. Additional resources -- Youth Project Nova Scotia provides excellent online resources and tailored education sessions for professionals and organizations, covering topics such as sexual orientation and gender identity: youthproject.ns.ca. 34

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-- EGALE Canada has great resources, such as this list of pronoun types and how they can be used in a sentence: egale.ca/know-your-gender-pronouns. -- Trans PULSE E-Bulletin has compiled information about the experiences of trans* people in Canadian workplaces: transpride.ca/assets/trans-discrimination.pdf. -- Tips for Making Your Event/Activity LGBTQ-Inclusive, EGALE Canada: egale.ca/tips-for-making-youreventactivity-lgbtq-inclusive. Notes 1 How to be an Ally: EGALE Canada; egale.ca/how-to-be-an-lgbtq-ally/. 2 Guidelines for Supporting Transgender and Gender-nonconforming Students: Nova Scotia Student Services; studentservices.ednet.ns.ca/sites/ default/files/Guidelines%20for%20Supporting%20Transgender %20 Students_0.pdf. 3 Transgender 101: Transformative Justice Law Project of Illinois; tjlp.org/ wp-content/uploads/2013/04/Transgender-101-download.pdf. 4 Protect Gender Identity & Gender Expression: Nova Scotia Rainbow Action Project; nsrap.ca/issues/genderidentityexpression. 5 Transgender 101, supra note 3. 6 Ibid. 7 Ibid. 8 Ibid. 9 Strategies for Trans Inclusion, online: Youth Project; valleyyouthproject. files.wordpress.com/2015/02/strategies-for-trans-inclusion.pdf. 10 Ibid. 11 Ibid. 12 Ibid. 13 Ibid. 14 Ibid. 15 Tips for Making Your Event/Activity LGBTQ-Inclusive: EGALE Canada; egale.ca/tips-for-making-your-eventactivity-lgbtq-inclusive/.

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Dan Jennings, CA, CBV, CF Partner

Halifax: 902 444 5540 www.bdo.ca/litigation-support

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Cultivating empowered workplaces Cultural competence case studies

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n employer’s search for employment equity can feel like Alice in Wonderland. Sensible, successful solutions are tough to find. When Michelin, a French tire manufacturer with three plants in Nova Scotia, went down this rabbit hole, its quest became part of an adventure that generated not just employment equity for Nova Scotia’s indigenous population at Michelin, but also pierced the heart of its culture and enhanced its bottom line.1

Harley Davidson is another example of a company that radically transformed its workplace culture, leading to innovations that took the motorcycle company from the brink of bankruptcy in the mid‑1980s to a 30 per cent-plus profit margin by 1999.2 Both of these companies produce world-class leadership and globally competitive efficiencies and innovation. They also reveal some of the ingredients that allow companies to create successful long-term changes to workplace culture.

workplace relations overall.”6 The Lisa Teryl empowerment of its employees is Teryl Scott Lawyers Inc. striking, particularly within a unionized context that can be marked by grievances. The departure from a command and control, hierarchical corporate structure to a “Freedom company” that characteristically values a collaborative, egalitarian approach was instrumental in turning around the failing company.7 Core values/principles An element of Michelin’s and Harley Davidson’s success comes from articulating their core values and principles. Foundational principles guide businesses like a roadmap. And just like maps, when institutional values are clearly articulated, they can help lead businesses to arrive at their desired destinations. In contrast, when a company’s core values are unclear it leads to costly inefficiencies and dead ends.

Michelin: employment equity Articulating the institutional principles of an organization also Michelin first began to closely examine its workplace culture in the brings into focus its climate and culture. Behaviours inconsistent early 2000s when it attempted to achieve employment equity at with the principles become dramatically pronounced, making them its three Nova Scotia plants. After several attempts to increase the easier to address. Effective procedures and protocols also need to number of Mi’kmaq be in place so when workers, it successfully actions and behaviours “… [r]emove all the symbols and practices that adopted a federal are not aligned with government designed the core principles, program that involves they can be rectified. prevent … people from feeling intrinsically equal …. partnering with If the organization’s organizations that work culture does not Mahogany executive floors and big corner offices with underrepresented encourage people to groups.3 take responsibility, there is a greater need with expensive furniture, company limousines Establishment of to intervene to hold an advisory council people accountable and personalized reserved parking spaces are – comprised of key to the organization’s Mi’kmaq and Michelin principles. leadership – and the some of the symbols of unequal status.” trusting relationships it If these principles are fostered also proved to not upheld, the mission be essential, as the barriers to indigenous participation in Michelin gets sidelined. The consequence of not having a fair system of plants were identified and creative solutions implemented. It took accountability creates workplace cultures driven by fear, arrogance four years to achieve proportional workplace representation of 1.3 and discontent. These negative mindsets create costly inefficiencies per cent.4 Applications increased in this time period from 20 to and dysfunctional work cultures. 240, a tenfold increase.5 It also took four years to work with the existing employees to embrace the initiative. This involved adopting The core values that drove Michelin’s success: a collaborative management approach and working diligently to • respect for customers, understand the company’s core values and principles that would • respect for people, inform their work. • respect for stakeholders, • respect for the environment, and Employers who actively use a collaborative, egalitarian management • respect for the facts. approach to engage the institution’s core values are better able to support progressive changes to the organization’s culture. The When the foundation of a company is premised on its core values, it success of implementing this difficult work determines the viability is better able to unleash employee passion, motivation and creativity. of achieving goals such as employment equity, having empowered Workplaces gain the following benefits: employees and enhanced union-management relationships. • high productivity, • high innovation and problem solving, Harley Davidson: a Freedom company • high profits, Harley Davidson’s change in workplace culture involved a “total • low turnover, and rethinking of labor-management relations, which then transformed • low absenteeism.8 Fall 2015

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Michelin’s core values were also connected to its employment equity success. The company understood employment equity as a strategic advantage because it supports different perspectives that cultivate innovation. A Michelin manager shares this insight: “We are the innovative leader in our industry. Innovation comes from thinking differently and the best teams that we’re going to be able to put together are going to be teams of people who all think differently and yet miraculously work really well together. And if we can bring in more and more diverse people into our population, not only will we be mirroring society around us but we’ll be building a stronger team here. Ultimately that’s going to reflect an advantage for this company.” Michelin’s core values, including respect for the environment and an innovative workplace, also led to the development of a new tire in 1992 that reduced rolling tire friction, which, in turn, dramatically reduced CO2 vehicle emissions.9 Collaboratively cultivating core principles also allows workplaces to eliminate wasteful, non-productive “busy work” as tasks are eliminated or maintained based on the core vision. The organization also shifts from the cult of personality – dependent on the personality of its CEO for success – to adopting long-term institutional cultural values that are more likely to survive the tenure of a CEO. Living a principle-driven life As employees and managers engage a principle-driven work life, this encourages framing our personal lives, as well, in principled ways. Stephen Covey famously wrote about living a principled life and from it, forging principled career paths.10 He suggests core principles are established by answering such fundamental questions as: “How do I want my family and my friends to remember me at my funeral?” Clarity of purpose therefore is important to ensure that one’s life effort achieves goals based on these values. Principles are the roadmap for identifying our life passions and extending them into our work lives.

motivation. Covey writes if people are not motivated, their creativity and resourcefulness do not get released into the workplace: You can buy a person’s hand, but you can’t buy his heart. His heart is where his enthusiasm, his loyalty is. You can buy his back, but you can’t buy his brain. That’s where his creativity is, his ingenuity, his resourcefulness.11 Furthermore, the authors of Freedom Inc. define the connection between self-actualization and motivation this way: Stop trying to motivate people. That’s right. Instead, build an environment that allows people to grow and self-direct – and let them motivate themselves. If they understand the vision [you shared with them as an equal], they’ll take care of the rest if you let them.12 Relationships are important: Psychologists who study human motivation acknowledge the connection between quality relationships and motivated employees. Leading psychologists Dei and Ryan find three characteristics fundamental to human development: “relatedness,” “[the need to achieve] competence,” and “autonomy.” They confirmed these traits across cultures.13 Rich Teerlink, Harley Davidson’s successful CEO who retired in 1999, says his development of relationships with the union leadership and his own middle management were what pulled the company through much of the “deeper corporate transformation.”14 When the union’s three-year contract expired in the early years of his tenure, his first and only negotiating request of the union was for it to work with management for a year to develop a joint vision for Harley Davidson. His request began an important process of building trusting relationships between union and management, which set the foundation necessary for transformational changes.

“...if we can bring in more and more diverse people into our population, not only will we be mirroring society around us but we’ll be building a stronger team here.”

Workplaces can enhance this well-being and life passion by connecting employees to a greater vision of the company. Or, workplaces detract from this well-being by eroding motivation and initiative. Companies like Michelin and Harley Davidson support the argument that articulating vision and principles are essential elements of successfully changing a work culture. They achieved these changes by connecting them to a vision that motivates employees to bring their best talents and skills to work. Creating a principle-driven workplace The case study of Michelin, Harley Davidson and others found in Freedom Inc. reveal four essential principles or ingredients to create culture shifts that lead to company success. Freedom/self-actualization: Freedom Inc. defines freedom as employee self-actualization, which is intrinsically tied to employee 38

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Equality: Equality is not defined by compensation packages that are tied to the amount of responsibility and accountability inherent in the employee’s position. Rather, equality is based on all employees being accountable to the same principles, which results in everyone feeling valued for their contributions. Regardless of one’s position, no task is too menial if it helps to advance the organization’s goal. As a way of demonstrating this value, many CEOs of Freedom companies “… [r]emove all the symbols and practices that prevent … people from feeling intrinsically equal …. Mahogany executive floors and big corner offices with expensive furniture, company limousines and personalized reserved parking spaces are some of the symbols of unequal status.”15 This equality principle also frequently results in a flattening of the organizational chart. For example, at Harley Davidson, like other Freedom companies, traditional job descriptions collapsed and were redefined by self-directed, naturally forming project teams. Each team

became a self-contained business unit responsible for every aspect of its business, “from hiring and training to purchasing, budgeting, and, of course, production.” Having done that, some companies significantly downsize their human resource and legal departments.16 Grace: A workplace where employees treat each other well is like grease that lubricates an engine. This quality of grace is: defined as a disposition to kindness and compassion, benign good will – is a perfect characterization of all the aspects of an environment ... in liberated companies …. An environment that treats people with grace is not merely nice to have. It translates directly into the way employees relate to everyone around them: colleagues, partners, suppliers, and, of course, customers.17

Not coincidentally and not incidentally, these highly respectful and employee-driven organizations are also inherently supportive environments for employment equity initiatives. Of course placing value on employee self-actualization, good relationships, equality, grace and fairness make a successful tea party for all. Lisa Teryl is a lawyer who is a mediator and legal facilitator, working with clients, lawyers and judges for fair and reasonable outcomes. She is also the coordinator for the Canadian Rights and Freedoms Centre. Notes 1.

2.

A myriad of workplace transactions fall into sync with each other when they are underpinned by goodwill. Although not explicitly articulated, there is a fifth guiding principle that is also noteworthy and embraced by Freedom companies. They view fairness in the workplace as an important element to a successful work culture. Making things right when things go wrong for employees ensures the principles of the company and its vision are maintained. Freedom companies use egalitarian procedures such as juries of their peers to decide how to handle breaches of firm values. A collaborative approach that draws on restorative justice principles involves all parties being consulted on how to make things right. Matters are made right through people taking personal responsibility for upholding the principles of the organization and repairing any harms that have been done. Otherwise, if fairness is not ensured, the vision and principles are jeopardized.

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17.

Pamela Sloan & David Oliver, “Michelin’s Strategic Partnership with Indigenous People” (Oikos Global Case Writing Competition, 1st Place, 30 June 2009) online: http://oikos-international.org/publications/michelins/. Brian M. Carney & Isaac Getz, Freedom, Inc.: Free Your Employees and Let Them Lead Your Business to Higher Productivity, Profits and Growth (New York: Crown Business, 2009), at 90. Aboriginal Workforce Participation Initiative (AWPI), Indigenous and Northern Affairs Canada. Nova Scotia’s indigenous population is 1.2% of the total population. Supra note 1 at 16. Supra note 2 at 90. Ibid. Ibid. Supranote 1 at 2. Stephen R. Covey, The 7 Habits of Highly Effective People: Restoring the Character Ethic (New York: Simon & Schuster, 1989). Supra note 10 at 58. Supra note 2 at xii. Supra note 2 at 133. Supra note 2 at 91. Supra note 2 at xii, 93. Supra note 2at 99, 115. Supra note 2 at 120.

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lians TIPS FROM THE RISK AND PRACTICE MANAGEMENT PROGRAM First review territorial jurisdiction, then look at forum non conveniens BY STACEY GERRARD, LIANS Counsel

The law in Nova Scotia has changed. When we had a client who was involved in an accident in a different location, we used to first apply the test of forum non conveniens. Now, following the Supreme Court of Canada case in Club Resorts Ltd. v. Van Breda, [2012] 1 SCR 572, and the interpretation of the Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003, we need to think about jurisdiction before we assess forum non conveniens. Let’s start with the Supreme Court of Canada. In a decision appealed from the Ontario Court of Appeal, the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, [2012] 1 SCR 572 reviewed the factors enunciated by the Ontario Court of Appeal in Muscutt v. Courcelles (2002), 60 O.R. (3d) 20, on which the plaintiff can rely to meet the “real and substantial connection” test, and removed “fairness and inconvenience to the plaintiff” as a factor to consider. The Court further stated that the parties can rely on “other connecting factors” derived from the principles that govern the analysis. Both Van Breda and Charron met their burden and established the Ontario court as being the appropriate forum in which to pursue their actions. Factors considered by the Court: (a) the defendant is domiciled or resident in the province; (b) the defendant carries on business in the province; (c) the tort was committed in the province; and (d) a contract connected with the dispute was made in the province. The appeal by the defendants to the Supreme Court of Canada was dismissed and the Court clarified the test to be applied and the factors to be considered. Nova Scotia courts have interpreted this case against the backdrop of the Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003. Nova Scotia is one of only three provinces or territories that have a statute governing court jurisdiction. In Li v. MacNutt & Dumont, 2015 NSSC 53 (CanLII), the plaintiff sued the lawyer she had retained to defend litigation in Prince Edward Island. The defendant challenged the jurisdiction of the Nova Scotia court. The Court reviewed the case law 40

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and provisions of the Court Jurisdiction and Proceedings Transfer Act and determined that fairness, convenience and efficiency were no longer factors to consider on the issue of jurisdiction. The Court reviewed in detail the five factors set out in section 4 that would establish territorial competence and the numerous circumstances that could give rise to a rebuttable presumption of a real and substantial connection as stated in section 11 of the Act. Further, the court determined that the claim did not have a real and substantial connection with Nova Scotia, nor were the residence of the plaintiff and the location of the damage sufficient to give a Nova Scotia court jurisdiction. The proceeding was therefore stayed. The Court noted that once jurisdiction is established, then the court will examine the doctrine of forum non conveniens. The Court noted that jurisdiction does not exist in the absence of a presumptive connecting factor or a new factor established applying the criteria in Van Breda, primarily because of the importance of the objectives of order, certainty and predictability. (at para 35) In Brown v. Mar Taino S.A., 2015 NSSC 348, the plaintiff commenced an action in Nova Scotia for injuries he sustained while in the Dominican Republic in March 2012. The plaintiff (Brown) sued two corporations – one Dominican and one Spanish – that had connections with the hotel. The third defendant was the hotel’s owner. The following salient facts were noted: 1. Brown had purchased tickets to the all-inclusive resort online from his home computer from a company called Vision 2000. 2. The airline ticket he received had the trademark name “SunQuest” on it and he flew to the Dominican Republic on a Thomas Cook airline. 3. None of the defendants carried on a business in Nova Scotia, owned assets, had employees, or offered accommodations to the public. Rather, the defendant hotel offers room through tour operators, such as Thomas Cook Travel.

4. The principal office for Thomas Cook Travel is Ontario and the agreement between the Dominican Corporation and Thomas Cook Travel indicated that is it governed by the laws of Ontario. The Court noted that there are several ways in which the court may have “territorial competence” under the Court Jurisdiction and Proceedings Transfer Act but the only one that could apply on the facts of this case was a real and substantial connection between the province and the facts on which the proceeding against that person are based. The Court then examined the presumptive connecting factors for tort cases (as set out above). The Court noted the only common law presumptive factor that could find territorial jurisdiction in this Court for the plaintiff was that a “contract connected with the dispute was made in the province”. However, in considering the facts, the Court determined that the contract had not been made in Nova Scotia, territorial jurisdiction had not been established and therefore the action was dismissed. Justice Moir reiterated that in Van Breda, the Supreme Court of Canada held that neither the plaintiff’s residence in the province nor losses suffered on return to the province were enough to find territorial jurisdiction.

NSLAP

Interestingly, the Court went on to say that if territorial jurisdiction had been established, the Court would not have stayed the action on the ground of forum non conveniens. However, it is important to remember that if territorial competence is not first established, a court does not even get to consider the forum non conveniens arguments.

lians

If you have a client who was injured outside of Nova Scotia, you need to diligently review the law with respect to territorial jurisdiction in order to ensure that you bring your action in the appropriate court. Also remember that limitation periods vary from province to province, so be sure to check the legislation carefully so you bring the action both in the right place and in the right time. Otherwise, you could face a claim. If you have any questions on these, or any other risk- or practice-related matters, do not hesitate to contact the Risk and Practice Management Program at [email protected] or call the Lawyers' Insurance Association of Nova Scotia at 902 423 1300.

Nova Scotia Lawyers Assistance Program

Confidential Referral and Short Term Counselling Program Available to members of Nova Scotia’s legal profession, as well as their staff and families. Through our provider, Homewood Health short‑term counselling and other resources are available for managing personal, family and life events as well as helping you take charge of your health and well-being.

Call in confidence from anywhere in Nova Scotia, 24 hours a day: 1 866 299 1299 1 866 398 9505 (en français) | 1 888 384 1152 (TTY) Or log on to our website to access online wellness resources. Remember that your company name is NSLAP: www.nslap.ca

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IN MEMORIAM

The Honourable Constance Glube QC Former Chief Justice of Nova Scotia

I

n 1955, she was one of just two women in Dalhousie Law School’s graduating class and quickly went on to become a trailblazer in Canada’s legal profession and judiciary.

The Honourable Constance Glube QC, former Chief Justice of Nova Scotia, passed away on February 15 at age 84 in Halifax. She was “a woman of vision” who “left the Canadian justice system richer and more effective than she found it. We are all indebted to her,” said The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada. Marla Cranston Communications Officer

“In a day when married women were denied careers, she became a respected lawyer. In a day when the number of women judges in Canada could be counted on the fingers on one hand, she earned a reputation as a stellar trial judge and a farsighted and pragmatic Justice of Appeal. At a time when only men served as Chief Justices, she became Chief Justice of the Supreme Court of Nova Scotia and the first woman to hold such an office in Canada.” Called to the Nova Scotia Bar 60 years ago, Connie (as she preferred to be called off the Bench) initially practised at the Halifax law firm of Kitz Matheson and later as a partner in Fitzgerald and Glube. She joined the legal department at Halifax City Hall in 1969 and soon became Halifax’s city manager, the first woman to hold that position in any Canadian city. She was also the first female justice of the Nova Scotia Supreme Court (1977), and the first woman appointed as Chief Justice of a Canadian court (1982, NSSC). In 1998, she was appointed Chief Justice of Nova Scotia and of the Court of Appeal. When Executive Director Darrel Pink joined the Society in the post-Marshall era, “Chief Justice Glube and Chief Justice Clarke were leading their courts through a time of tremendous change,” he recalled. “Institutional reputations had been shattered and individual ones had been sullied. As a duo, the two chiefs were exemplary in their commitments to changing their courts, to improving the courts’ public images and to working to restore faith that justice in Nova Scotia was fair and impartial.” Chief Justice Glube retired from the courts in 2004 after 48 years in the legal profession – 21 as a lawyer and another 27 as a judge. Soon afterwards, the Schulich School of Law at Dalhousie University unveiled the Constance R. Glube Room and created the Constance R. Glube Bursary. Colleagues paid tribute to her integrity, sound judgement and sense of fairness, describing her as “always respectful of others, open to new ideas, thoroughly prepared, articulate and so genuinely interested in the lives of people around her.” Connie remained a Life Member of the Nova Scotia Barristers’ 42

The Society Record

Society and an active volunteer during her retirement. She served on the executives of many local and national organizations, including the Canadian Judicial Council, the Judicial Education Committee and the National Judicial Institute. She was one of the first recipients of the Frances Fish Women Lawyers Achievement Award, presented to women who have achieved professional excellence and demonstrate a commitment to women’s equality in the legal profession. In 2009, the Canadian Bar Association-Nova Scotia established the Constance R. Glube Spirit Award, which annually recognized achievement in law by Nova Scotian women lawyers. Chief Justice Glube was appointed as an Officer of the Order of Canada in 2006, in recognition of her “enduring contributions to the administration of justice” and her status as “a role model for women of all ages and professions.” She was a woman of many ‘firsts’, an exceptional role model, and is greatly missed.

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