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BearPaw Media and Education: Indigenous public legal education in Alberta

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What is BearPaw Media and Education?

As a department of Native Counselling Services of Alberta (NCSA), we produce and distribute free, multimedia Indigenous public legal education and information (PLEI). Our resources are for Indigenous people, by Indigenous people in Alberta and include culturally-relevant videos, publications and workshops. Our goal is to increase the confidence and self-determination of Indigenous individuals and their families in navigating complex legal systems.

Our documentary, (Re)claiming Indian Status, was a 2020 Calgary International Film Festival Winner …Our Indigenous PLEI helps guide our target populations towards better awareness and understanding of the specific ways Canadian laws affects them and their legal rights and responsibilities. Community Legal Education Ontario contends that PLEI printed text is highly effective due to its wide reach. We agree. We also combine a unique blend of multimedia resources (aimed at various learning styles, challenges and age groups) and distribution formats (print, video, workshops, online and social media platforms) to reach those in urban and rural areas. Our target audiences include:

  • Indigenous (First Nations, Métis, Inuit, status and non-status) people of Alberta who are navigating legal systems themselves or with their families.
  • Service providers working with Indigenous people and families. They act as a bridge to help share BearPaw resources immediately with those most in need. Our videos, publications and workshops also help to increase service provider knowledge on legal topics specific to this population.
  • Other research-based organizations or institutions.
  • First Nations, Métis and Inuit people across Canada and internationally with the aim to increase legal education literacy and access to Canadian legal information.
NCSA Resiliency Model in BearPaw Media and Education

Photo Credit: BearPaw Media and Education

BearPaw’s Indigenous PLEI mobilises Indigenous worldviews, cultural knowledges with evidence-based, healing-centred approaches. This makes our resources congruent and meaningful to Indigenous people. NCSA’s resiliency model is embedded in BearPaw’s work. It centers an interconnected worldview that privileges building, maintaining and strengthening of good relationships with all living things (LaBoucane-Benson 2009). Our resiliency model has three principles that guide BearPaw’s production and community engagement:

  1. Fostering reconciliation
  2. Reclaiming interconnected worldviews, and
  3. Encouraging self-determination.

Below is a brief overview of how BearPaw integrates our resiliency model principles (LaBoucane-Benson and Choby 2018).

To foster reconciliation of relationships damaged by colonization, BearPaw:

  • Reconciles relationships and highlights common ground between Indigenous legal traditions and Canadian society and law
  • Highlights the strength of Indigenous legal traditions
  • Addresses issues related to historic trauma
  • Provides content that promotes healing and reconciliation. We examine the historic and systemic roots of the issue discussed, and raise awareness on how Indigenous individuals can use the law to protect themselves.

To reclaim interconnected worldviews, BearPaw:

  • Encourages connectedness to community-based resources
  • Creates workshops that are culturally congruent, delivered by Indigenous facilitators and offered in Indigenous communities at no cost
  • Creates good and reciprocal partnerships with agencies throughout Alberta
  • Produces PLEI publications that reflect Indigenous worldviews and aim to create positive Indigenous identities

Our resources are for Indigenous people, by Indigenous people in Alberta …To encourage self-determination, BearPaw:

  • Aims to increase Indigenous people’s abilities to understand and navigate legal systems, recognize the areas of law where they can assert their rights and make good decisions for themselves
  • Produces resources that help Indigenous people understand their responsibilities regarding Canadian law. This increases awareness in an effort to prevent evictions, arrests, fines or incarceration.
BearPaw’s Resources

BearPaw focuses on developing new robust Indigenous PLEI. We use effective methods that target many learning styles: visual (spatial), aural (auditory-musical), verbal (linguistic) and physical (kinesthetic), social (interpersonal), solitary (intrapersonal) and logical (systems reasoning).

  • We make print publications and videos that provide the most pertinent legal information related to the topic. Individuals then have the freedom to choose which type of resource best suits them depending on their preferred learning style. All videos and publications are also available in hardcopy and on our website. As we develop new workshops, we embed the new video into the facilitator’s guide to increase connection to material and dialogue with participants as a learning technique to make them visual and tactile.
  • Videos are essential because they can represent Indigenous people and worldviews respectfully and in ways that are accurate to them. Videos can attend to a variety of learning styles (visual, aural, verbal, social, solitary and logical) to increase knowledge transfer. By creating videos, we can effectively reach a broader audience online or on USBs. This makes legal information accessible to Indigenous individuals and educators.
  • Indigenous graphic design is necessary so that Indigenous individuals feel a sense of ownership and connection with written materials that reflect them specifically.

BearPaw’s current resources include over 40 publications and over 30 videos and workshops. Every year, we distribute over 20,000 publications, deliver over 100 public legal education workshops and hit over 98,000 video views on our YouTube channel.

Our resource topics include:

  • Indigeneity: Indigenous identity, natural law, Indigenous hunting and fishing, (re)claiming Indian Status
  • Criminal Justice: children and youth going to court, breach charges, Fetal Alcohol Spectrum Disorder and the law, rights with police, cyberbullying, identity theft, probation, Gladue Reports, domestic violence & reporting sexual assault, impaired driving
  • Family Justice: divorce (child and spousal support, parenting and guardianship orders), parenting legal rights and responsibilities, elder abuse, kinship and foster care, adoption and the Child, Youth and Family Enhancement Act
  • Other: employment rights, education (suspensions/expulsions, learning disabilities), landlord and tenant rights, money matters (payday loans, deferred payments), lateral violence, the criminalization of HIV

Photo Credit: BearPaw

What’s New at BearPaw?

(Re)claiming Indian Status

Since the passing of Bill S-3 and its amendments, thousands of Indigenous people are now eligible for Indian Status. These resources provide a thorough explanation of Indian Status by answering common questions about eligibility, the application process and how to find government records that can assist you with your application. It also provides a historical overview of the Indian Act and sex-based discrimination, including government Bills that changed the Indian Act and affected Indian Status registration.

The target audience is Indigenous adults (18+ years), service providers and educators working with Indigenous communities.

Our documentary, (Re)claiming Indian Status, was a 2020 Calgary International Film Festival Winner (Audience Favourite for Documentary Short Film and Honourable Mention for Alberta Documentary Short: Lese Skidmore). This documentary digs into the stories of Indigenous women and their families to (re)claim their Indian Status through their fight for the elimination of sex-discrimination in the Indian Act. It highlights the impacts of the law on individuals, families and communities. This video also includes Status eligibility information and recommendations for finding family records.

 Other resources include:

  • (Re)Claiming Indian Status Booklet
  • (Re)Claiming Indian Status Workshop

Obtaining Government Identification and the Right to Vote

Visit our website to view our free resources.This group of resources provides step-by-step guidance on how to get Alberta identification (driver’s licenses, Alberta ID card), how to legally reclaim a traditional Indigenous name, how to apply for Indian status and how to vote in federal elections.

The target audience is Indigenous adults (18+ years), service providers and educators working with Indigenous communities.

Legally reclaiming a traditional Indigenous name can be a part of a person’s healing journey and help define who they are as an Indigenous person. Our Legally Reclaiming Your Traditional Name wallet card explains how to legally reclaiming a traditional name at no cost until January 2024, the documents needed, and supports available to help with the process.

Other resources include:

  • Fill Your Wallet (wallet card)
  • Changing Your Sex Marker on Alberta I.D. (wallet card)
  • Obtaining Government Identification and Voting Workshop

Visit our website to view our free resources. Follow us on social media (@BearPawLegal on Facebook, Instagram and YouTube) to stay up-to-date.

References: 

LaBoucane-Benson, P. (2009). Reconciliation, repatriation and reconnection: A framework for building resilience in Canadian Indigenous families [Unpublished doctoral dissertation). University of Alberta. Edmonton, Alberta.

LaBoucane-Benson, P. and Choby, A. 2018. Indigenous Public Legal Education – PLE from an Interconnected Worldview. LawNow, Jul, 2018.

FAMOUS CASES | The Inuit Status Case

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It appears to me to be a consideration of great weight in determining the meaning of the word “Indians” in the British North America Act that the Eskimo were recognized as an Indian tribe by the officials of the Hudson’s Bay Company which, in 1867, exercised powers of government and administration over this great tract … It is clear that the Eskimo are classified under the generic term Indian.

– Inuit Status Reference, [1939] SCR 104 (SCC) at pp 109–10

The Inuit in Canada

An historically nomadic people, the Inuit began migrating into what is now Canada almost a thousand years ago​. First contact with Europeans was the arrival of Hudson’s Bay Company (HBC) traders from Europe at the end of the 1600s at an Inuit whaling camp on Hudson Bay. Inuit and HBC employees traded goods such as animal fat oils and metal knives and co-existed for decades despite some hostilities in the mid-1750s. Languages and cultural teachings were shared. The HBC-provided firearms changed how the Inuit hunted.

The Inuit and European cultures became more integrated through trade. The appearance in 1903 of the Canadian North West Mounted Police brought employment and other support, and with that, greater dependence on western ways. Today this people of storytelling, hunter-gathering, and common survival in the harsh Arctic climate resides mostly in Nunavut, in an area known in Inuktitut as Inuit Nunangat (“the homeland”). Numbering fewer than five thousand in 1867, the ​​Inuit population has grown to 65,000 according a Statistics Canada estimate in 2016. Canada is home to the largest population with smaller groups living in Alaska, Greenland and Denmark.

Just outside Inuvik, Northwest Territories.
Photo Credit: Dave Pettitt

Over the years, the federal government largely left the Inuit alone as a matter of law. This article describes the constitutional case that addressed the status of the Inuit in Canada.

The “Eskimo Case” in the Supreme Court of Canada

The Constitution Act, 1867 established Canada as a self-governing country and divided legislative authority over all matters in the country between the federal and provincial levels of government. “Indians, and Lands reserved for the Indians” were placed under federal responsibility but no mention was made of the Inuit in the Constitution Act, 1867. In 1876, the federal government enacted the Indian​ ​Act, with respect to First Nations, but the Inuit were overlooked.

In the late 1920s and early 1930s, a decline in trade with the HBC saw the Inuit in dire economic straits. As the HBC, Quebec and federal government continued to supply food and other resources to the Inuit, the question arose as to who would pay for it​. The Inuit had not entered into any treaty with the federal government. The question became: are the Inuit “Indians” under the Constitution Act, 1967 and, accordingly, under federal jurisdiction?

The case reached the Supreme Court of Canada as a reference from the federal government in mid-1938. Inelegantly titled, ​Reference as to whether “Indians” includes in s. 91 (24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, the issue took ten months to be decided. The evidence considered was primarily records of how the Inuit were historically viewed by the HBC and governments. Even before Confederation, the HBC considered all Indigenous peoples to be “Indian Tribes”. Along with the Blackfoot, Sioux and Algonquins were the “Esquimaux”. Other accounts of contact from early governors, missionaries and clergymen referred to the Inuit as “Esquimaux Indians”.

In 2001, Kiviaq sued the federal government, asking it to define Inuit status in Canadian law and confer upon the Inuit the same rights as First Nations under the Indian Act​.The North West Territory and Rupert’s Land – where the Inuit were living – were admitted into the Dominion of Canada by 1870. The federal Parliament enjoyed the “full power and authority to legislate for the future welfare and good government” of these territories, the population of which was 93% Indigenous at the time.

The Supreme Court was unmoved that the Inuit had never been under protection of the Crown in the same way as treaty Indians or that, despite the Inuit sharing Aboriginal status, they were genetically and culturally unrelated to Indians. The Court unanimously concluded that the Inuit came within the taxonomy of constitutional “Indian”. This placed them under the authority of the federal government​. [As an aside, the Supreme Court of Canada, employing a different, more culturally-sensitive approach and reasons, rendered the same conclusion for the Métis in 2016.]

Inuit Status in Canada Post-1939

After being assigned legislative responsibility for the Inuit, the Government of Canada seemed reluctant to create the same dependency relationship that had developed with First Nations. It has enacted no special Inuit legislation.​

The 1982 Canadian Charter of Rights and Freedoms corrected the Supreme Court’s 1939 error. It expressly identified the Inuit as an “aboriginal people” in Canada, distinctive from First Nations and Métis (articles 25 and 35). The original 1867 provision about “Indians and Lands reserved for the Indians” now cannot be amended without first consulting with, among others, Inuit representatives at a constitutional conference (article 35.1).

The Court unanimously concluded that the Inuit came within the taxonomy of constitutional “Indian”.Over time the Inuit became more politically engaged and aware that they have not benefited from the special status and privileges of their First Nations counterparts.

The federal government created Nunavut as Canada’s newest territory in 1991. It granted ownership of the land and paid $580 million to the Inuit. In return, the Inuit signed an ​extinguishment clause – whereby any and all historical Inuit claims against the federal government were at an end. However, this did not dissuade one successful and prominent Inuit man in Edmonton. Kiviaq still sought to extend First Nations’ rights and benefits to the Inuit.

Kiviaq (full Inuit names are usually one word) was born in 1936 in Chesterfield Inlet, a hamlet on the western shore of Hudson’s Bay. His birth parents were both Inuit. He was removed with his sister and mother (Kumanaq) by a white RCMP officer (Charles Raymond Ward), renamed David Charles Ward and raised in Edmonton in the English language.

David, beaten by his stepfather and bullied by children at school, took up boxing and became a Golden Gloves champion. He also excelled at football, was elected to Edmonton city council and later served as a popular radio talk show host. In Edmonton in 1983, he became the first Inuit lawyer in Canada. He then won a legal battle to revert to his single-word Inuit name given at birth – Kiviaq.

In 2001, Kiviaq sued the federal government, asking it to define Inuit status in Canadian law and confer upon the Inuit the same rights as First Nations under the Indian Act​. The case was not resolved before the former boxer and lawyer Kiviaq died of cancer in Edmonton at age 80 in April 2016.

HUMAN RIGHTS | Human Rights and Civil Liberties Implications of COVID-19 Mask Laws

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As the COVID-19 pandemic continues to affect the entire world, many governments have passed legislation requiring that face masks be worn in many public locations. This has resulted in claims that the mask requirements violate civil liberties. At the same time, there have been some incidents of individuals being confronted for not wearing masks, yet they have a legitimate exemption from the mask requirements.

Photo by Anna Shvets from Pexels

For example, the City of Calgary passed The Temporary Face Coverings Bylaw, which went into effect on August 1, 2020. It requires face masks in any indoor space the public has access to, including retail stores, shopping malls, recreation centres, churches and public common spaces in office buildings. The Bylaw provides several exceptions to the public face covering requirements:

  • Children under 2 years of age
  • People with underlying medical conditions or disabilities impacting their ability to wear a face covering
  • People who are unable to place, use or remove a face covering safely without assistance
  • People who are eating or drinking at public places that offer food or beverage services
  • People engaging in an athletic or fitness activity
  • People who are caregiving for or accompanying a person with a disability where wearing a face covering would hinder accommodating the person’s disability
  • People who have temporarily removed their face covering where doing so is necessary to provide or receive a service (for example, a visit to the dentist)

The Calgary Herald reported that a city survey done in August found 89 per cent of Calgary residents are complying with the bylaw.

Health officials have released evidence and opinions that wearing a mask can reduce the spread and potency of COVID-19, should one be exposed to the virus. Despite the exceptions, and the evidence from experts, there are people who object to wearing masks. Some of these people believe that the COVID-19 evidence is false.

While an adult is generally at liberty to take risks with their own health and safety, there are limits.There are claims that mandatory mask laws violate individual liberties. Section 7 of the Canadian Charter of Rights and Freedoms says that laws and government actions cannot violate one’s rights to life, liberty and security of the person except in accordance with the principles of fundamental justice. Thus, limits must not be arbitrary, grossly disproportionate or overbroad. While an adult is generally at liberty to take risks with their own health and safety, there are limits. Infringements of individual rights can be justified by a pressing and substantial interest. The government must show that the measures it is using are rational, reasonable in the context and proportionate to the affected individual freedom. Krajewska, Sjolin and Marjin argue that if there are exceptions to mandatory mask laws for those who have legitimate reasons, the limits should be reasonable and justifiable in the circumstances. Presumably, the exceptions to the Calgary Bylaw meet this requirement. The authors conclude:

In the context of a global health crisis, collective action to minimize the spread of the virus enhances everyone’s freedom. Declining to adopt mandatory masking leaves the burden on those who are already at risk. It’s also ineffective. At the end of the day, the virus will not care about philosophical differences. When it comes to mandatory masking, neither should we.

Another potential civil liberties restriction in the context of COVID-19 is the freedom of movement. For a discussion of this issue, see Myrna El Fahkry Tuttle’s LawNow article.

The government must show that the measures it is using are rational, reasonable in the context and proportionate to the affected individual freedom.There have also been incidents of individuals not wearing masks being accosted or refused service. Assaulting someone is potentially a crime and not an appropriate response to someone not wearing a mask. Landlords, employers and providers of services normally available to the public must follow human rights legislation. For example, if a person has a mental or physical disability that prevents them from wearing a mask, they cannot be discriminated against. Service providers must accommodate persons with disabilities to the point of undue hardship. Many human rights commissions have published policy statements on Discrimination, COVID-19 and Human Rights, such as the Alberta Human Rights Commission and the Ontario Human Rights Commission.

Human rights and civil liberties issues arise in many contexts, including in this time of COVID-19. Laws such as the Charter and human rights legislation govern the way Canadians and governments must conduct themselves. It is not usually safe to make assumptions about individuals and government policies without adequate information.

Access to Justice in Family Law: A guide to offering limited scope retainers

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Photo by Jenna Hamra from Pexels

In Canada, access to the justice system is largely reserved for wealthier individuals and corporations. The poor have limited access through legal aid and poverty law clinics. However, the majority of Canadian citizens fall between those two extremes, unable to pay a lawyer to represent them but also not qualifying for free legal help.

Nowhere is this access to justice crisis felt more acutely than in the country’s family law courts, where over half of all litigants have no legal representation. The Action Committee on Access to Justice in Civil and Family Matters prioritized family law as most in need of changes to make it more accessible, fair and efficient. One of the committee’s recommendations was to regulate and promote limited scope retainers.

A limited scope retainer (LSR), as defined in many provincial Codes of Professional Conduct, “means the provision of legal services for part, but not all, of a client’s legal matter by agreement with the client.”  The idea is that people in the middle-income bracket can afford to pay for some legal help so they should be able to do so to create fairer outcomes more quickly.

Lawyers have been offering LSRs on a small scale for years, but only since 2011 have law societies attempted to regulate and encourage these services as an access to justice measure. Even so, most people have never heard of LSRs. Lawyers themselves are divided on whether they help self-represented litigants or simply open up lawyers to greater risk of malpractice claims. It is too soon to know how much such services will relieve the pressure on family courts and self-represented litigants. Preliminary research suggests that ‘something is better than nothing’.

A Step-by-Step Guide for Lawyers Considering LSRs

Before a lawyer begins offering LSRs, they must give due consideration to the matter. To guard against malpractice claims, a lawyer should carefully review what types of service options and fee structures there are and then thoroughly prepare to provide the chosen services in an efficient yet competent manner.

Lawyers Who Should Not Offer LSRs

A lawyer should only offer LSRs on matters that they possess a considerable amount of expertise. In the Canadian Bar Association’s “The Limited Scope Retainer” resource, Anne L. Kirker, QC and Jennifer Blanchard advise:

Consider limited retainers only in cases within your competence. A lawyer must fully understand what issues may arise and what steps may be required in order to assess whether the LSR is advisable and to explain to the client the potential consequences of limited representation. You cannot reasonably discharge your professional obligations if you lack familiarity with the subject matter.

Clients Unsuitable for Limited Scope Retainers

Having a detailed written retainer helps both the lawyer and the client know what services the lawyer will and will not provide.It is important that lawyers offer LSRs only to those clients who can understand what is being done for them and what they must do for themselves (as well as the capability of fulfilling the latter). As a result, people with a low level of literacy, an intellectual disability or a poor grasp of either English or French are not suitable clients for LSRs.

Lawyers offering LSRs must also consider a potential client’s emotional state when deciding whether to provide the service. Family law matters, in particular, can be very emotional. A client in a great deal of distress may not be able to fully understand instructions and thus have difficulty managing matters. Their expectations may also be difficult to contain. “If you are concerned that the client won’t be receptive to your advice and willing to rein in their expectations, the LSR should be declined,” says Jeanette Fedorak, QC.

Matters Unsuited to Limited Scope Retainers

The Code of Conduct of the Law Society of Alberta reads:

When a lawyer considers whether to provide legal services under a limited scope retainer, the lawyer must consider whether the limitation is reasonable in the circumstances. For example, some matters may be too complex to offer legal services pursuant to a limited scope retainer.

If a matter is or has a real potential of becoming too complex (a real possibility in some family law disputes) or is too technical, then a limited scope retainer will not be appropriate. A lawyer should only offer a full-service retainer.

In short, “unbundling can really only work for educated, articulate litigants in routine matters” as a 2000 Australian Law Reform Commission report judged.

Deciding What Services to Provide

Family law lawyers perform a myriad of tasks for their clients. Under the correct circumstances, it is possible to perform many of these tasks discretely. For example, a family law lawyer may choose to:

  • draft or edit court documents
  • draft or edit prenuptial, cohabitation and separation agreements
  • calculate child and spousal support or the proper division of family property
  • provide advice
  • draft or edit speaking notes for court
  • appear in court on a single matter
  • provide behind-the-scenes mediation or negotiation support, or
  • research and prepare a legal opinion.

Lawyers in Canada are divided on whether offering legal services under a LSR is a legitimate way of addressing the access to justice crisis in family law.When deciding what services to provide, a lawyer should make a list of all possible services they can offer on a limited scope basis. This list should be limited to those services the lawyer is experienced enough to provide competently and efficiently in this manner. To do otherwise would be not only unethical but also financially foolish. The lawyer should also consider what matters they feel are too complex to deal with on a limited scope basis. Not all lawyers will draw the line in the sand at the same place, so know where your own line is. Finally, consider how technology might be used to increase your efficiency and your potential client base.

Once a lawyer has determined what limited scope services they can reasonably offer, they next need to determine the price. Will a flat fee be charged or an hourly rate? If the former, how will the fee be determined? If the latter, will it be the lawyer’s regular rate or a discounted rate to align more with the means of a target market?

In the end, whether a lawyer decides to provide a limited scope service to a client must be determined on a case-by-case basis considering the complexity of the matter and the abilities of the potential client. Conducting a thorough initial interview is necessary to avoid future problems. If you decide not to provide unbundled services to a potential client, give them a detailed explanation of why not in writing. Keep a copy for your records.

Drafting a Limited Scope Retainer Agreement

When a lawyer agrees to take a client on a limited scope basis, it is imperative that the scope of the retainer is laid out clearly and precisely in writing. Lawyers offering LSRs may wish to draft a general LSR in advance and modify it as needed to fit the exact services being offered in any given case. One way to do this is with a checklist format.

Having a detailed written retainer helps both the lawyer and the client know what services the lawyer will and will not provide. The importance of having such a carefully delineated retainer cannot be overstated. In ABN Amro Bank of Canada v Gowling, Strathy & Henderson, the court made it clear that it will decide any ambiguity as to the scope of a retainer in favour of the client. Thus, a carefully drafted retainer that outlines precisely what the lawyer has agreed to do can prevent malpractice claims by delineating the lawyer’s duty of care.

Stay Within the Scope of the Retainer Agreement

A retainer agreement only works as long as the lawyer stays within the scope of the agreement. If the lawyer and the client decide to expand the scope of the services, put it in writing and amend the retainer agreement.

A lawyer should only offer LSRs on matters that they possess a considerable amount of expertise.A lawyer should not act in a way that would lead the client, another lawyer or the court to mistakenly believe that the lawyer is providing full-service representation when that is not the situation. The Alberta Rules of Court demand that a lawyer working on a limited scope retainer and appearing before the court must disclose the limited nature of their representation either verbally or in writing.

When the lawyer has fully rendered the agreed-upon service, they should give the client a Notice of Withdrawal form or termination letter so that the client understands that the lawyer’s work is done.

Conclusion

Lawyers in Canada are divided on whether offering legal services under a LSR is a legitimate way of addressing the access to justice crisis in family law. Some lawyers refuse to offer limited scope services, citing liability concerns as well as fears about low-quality service. Others wholeheartedly embrace the notion of LSRs, believing that some legal assistance is better than none at all.

Most of the lawyers who participated in the Alberta Limited Legal Services Project felt LSRs improved clients’ understanding of forms, pleadings and court procedures, and increased their confidence in the justice system, its processes and outcomes. The majority also felt it made legal services more affordable and prices more predictable. However, less than half the lawyers thought such services improved a client’s outcome or made the outcome more just, nor did they think hearings were shorter or more focused or fewer in number then when no assistance was provided. If this is truly the case, then LSRs are, at best, only a partial solution to the access to justice crisis of Canada’s ‘missing middle’.

YOUTH | Money, Money, Money!

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Maybe you have a part-time job. Maybe your parents pay you an allowance. Maybe you make money shoveling snow or cutting grass. In any case, you’ve got money!

Opening a Bank Account

First step, where do you put this money? Have you outgrown your piggy bank? Maybe a bank account would be more appropriate!

If you are under the age of majority, some banks require your parent or guardian to be a joint account holder on the account.Banks in Canada must follow certain laws. Some banks are governed by Canada’s Bank Act – generally those with locations across the country. Banks with locations in one province must follow provincial banking laws. For example, the ATB Financial Act governs ATB Financial bank in Alberta.

Credit unions are similar to banks except that they are non-profit institutions. Customers must first qualify as a member and then become owners, meaning they share in any profits the credit union makes. The Bank Act regulates some credit unions. Provincial credit unions are regulated by provincial laws, such as Alberta’s Credit Union Act.

The Bank Act says that any natural person (an individual, not a company) can deposit money in a federally-regulated bank, regardless of whether they are allowed by law to enter into contracts. The underlined part is important. Canadian common law (judge-made law) says that individuals under the age of majority (in the province where they live) or who do not have mental capacity generally cannot enter into contracts. There are exceptions. Contracts are agreements between you and another person where you give each other something. But the Bank Act makes it clear that a minor can open a bank account even if they cannot enter into a contract.

Photo by Skitterphoto from Pexels

If you are under the age of majority, some banks require your parent or guardian to be a joint account holder on the account. A joint account holder has the same rights to access your money and manage your account as you do, unless the bank allows for different controls. Some banks will let you open an account on your own if you are at least 12 or 13.

For example, let’s canvas a few banks and credit unions, both in Alberta and across Canada:

What about a credit card? Well, a credit card is a contract that is not to be taken lightly. To get a credit card on your own, you must be the age of majority in the province or territory where you live. In Alberta, that’s 18 years. If you are under the age of majority, the bank will require that your parent or guardian co-sign for the credit card. If you do not pay the money back, the person who co-signed will be responsible for repayment of all outstanding balances and debts.

Check with different banks about their rules for youth and the benefits of their youth accounts.

Filing Taxes

Have you heard adults in your life complaining about having to pay taxes? The government collects taxes on different things – income, goods and services (GST), property and more – to help pay for government services, such as healthcare facilities, education, courthouses, registry services, etc.

Filing a tax return means to report your income (and other amounts you earn) each year to the government. Income tax is tax on employment income. Employment income is amounts you receive as salary, wages, commissions, bonuses, tips and gratuities. Your employer deducts this tax from your pay cheque, along with amounts for Employment Insurance (EI) and Canada Pension Plan (CPP) contributions. By law, your employer must collect income tax and deductions. Look at your pay cheque to see if your employer is deducting these amounts.

Both the federal government and provincial governments collect income taxes – the federal government under the authority of the Income Tax Act and provincial governments under provincial laws, such as the Alberta Personal Income Tax Act. The amount of the tax varies by government and by income levels (called tax brackets).

Filing a tax return means to report your income (and other amounts you earn) each year to the government. The deadline to file taxes is April 30 of each year. You may be eligible for deductions (amounts you can subtract from your income) or credits (amounts subtracted from the amount of income tax you owe). The most common tax credit is the basic personal amount tax credit.

Employment income is amounts you receive as salary, wages, commissions, bonuses, tips and gratuities.Both federal and provincial governments have a basic personal amount tax credit. The effect of the tax credit is that individuals who earn income equal to or less than the basic personal amount (BPA) get back the income taxes they paid. Individuals who earn more than the BPA get a credit for an amount equal to the BPA multiplied by the tax rate for the lowest tax bracket. Math? I know, my brain hurts too. For 2020, the federal BPA is $13,229 for individuals with net income of $150,473 or less. The BPA decreases for individuals who earn more than that, with the lowest BPA being $12,298 for individuals with net income greater than $214,368. The Alberta BPA is $19,369. Individuals can apply both the federal and provincial BPA tax credits to lower the amount of taxes they owe. ATB Financial has an article called “Understanding your personal taxes in Alberta” with more detailed information.

So, do youth have to file tax returns? The Canada Revenue Agency’s website has a list of individuals who must file tax returns. If your employer has deducted income tax from your pay cheques but you make less than the BPA (combine the federal and provincial BPAs), then you may get back the taxes you have already paid. That’s a reason to file!

Taxes can be confusing! That is why accounting programs and accountants exist to help us! For a fee of course. Around tax season, there are also tax clinics that help people file their taxes for free. For more information on taxes generally, see the Government of Canada’s website and your province’s website.

Do you have other questions about laws that apply to youth? Check out CPLEA’s Law FAQs website for more information.

HAVE YOU HEARD? | Personal Debt Resources

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Access to Justice Week

Did you know?! October 26th to October 30th, 2020 is National Access to Justice Week! Look for amazing initiatives underway across our country, including here in Alberta.

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What do you love about LawNow? What do you wish was different? Please take a few minutes to complete a short survey about LawNow.

Help with Debt Alberta

Are you or someone you know struggling with personal debt? And not sure where to turn? Check out our new Help with Debt Alberta resource. This webpage is for Albertans struggling with debt and looking for help. Answer questions to find the help you need.

New & Updated CPLEA Resources

We have updated our resources on personal debt. Check them out!

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45-1: COVID-19: Where are we now?

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Volume 45-1 Sept/Oct 2020

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Table of Contents

COVID-19 is still with us. This issue provides a status update – freedom of movement, court processes, contractual relief and tracing apps. And for the filmmakers out there, we report on some of the legalities of producing a film.

 

Feature Articles: COVID-19: Where are we now?

Freedom of Movement during COVID-19
Myrna El Fakhry Tuttle
The pandemic justified restriction on certain fundamental rights and freedoms, such as imposing travel bans, quarantine and isolation.

Aftershocks: COVID-19 and the “new normal” for family lawyers
Erika Hagen
The practice now seems to be finding its “new normal” with some lasting (or hopefully lasting) changes.

Mechanisms for Relief from Contractual Obligations in the Realm of COVID-19
James McTague
How can an individual or business seek relief from their contractual obligations due to COVID-19 business disruptions?

COVID-19 Tracing Apps: Are they secure enough to protect the right of privacy?
Carolina Albuquerque
Concerns about the safety of the information stored can hinder people from downloading tracing apps.

Foreclosures in Alberta: The return of the ’80s?
Judith Hanebury
When the pandemic hit, mortgage companies quickly realized the potential for a large upswing in mortgage defaults due to job losses.

Special Report: The Law of Film

Getting Your Film onto the Screen
Linda Callaghan
You have an idea for a great movie and think it has “legs”. Where do you start?

Lights! Camera! Music!
Gregory Pang
How can you legally use music in your films and video projects? Unfortunately, the answer is not very straight-forward.

My Brain Needs a Rating System!
Nathalie Tremblay
A movie rating – or classification – is a public notice that indicates what kind of content you can expect to see.

The Art of Canadian Taxation
Hugh Neilson
Unusual tax issues can arise within the arts, issues which the income tax system is forced to address.

Departments

Have You Heard?
Lesley Conley
Introducing: CPLEA TV

Columns

Criminal
Melody Izadi
Two Steps Forward, One Step Back?

Employment
Peter Bowal and Curtis Birch-Lucas
Enhanced Job Security for Federal Workers

Family
Sarah Dargatz
When is Shared Parenting Appropriate?

Famous Cases
Peter Bowal and Roberto Torres Martinez
Your Land is My Land: Reeder v Woodward

Human Rights
Linda McKay-Panos
The Importance of Distinguishing Racism from Racial Discrimination

Law & Literature
Rob Normey
Richard Wright’s Native Son: Dread in Chicago’s desolate South Side

Not-for-Profit
Peter Broder
Charity and Non-Profit Law Case Update

Youth & the Law
Jessica Steingard
Hit the Gas!

Foreclosures in Alberta: The return of the ’80s?

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When the pandemic hit, mortgage companies quickly realized the potential for a large upswing in mortgage defaults due to job losses. As a result, many offered homeowners an opportunity to defer their mortgage payments for up to six months.

Photo by paulbr75 from Pixabay

The CBC recently reported that Albertans took lenders up on this offer and deferred more than 1 in 5 CMHC-insured mortgages. This was the highest uptake of the deferral offer of any province in the country.

Those six months are now mostly up, leaving the question of what will happen next? From my time practising foreclosure law in the early ‘80s, and my 14 years as a Master on the bench hearing foreclosure applications, here is what I think is likely.

1. A Wave of Foreclosures and Judgments against Mortgagors

Generally in Alberta, an individual is not liable for any deficiency resulting from a foreclosure on a mortgage on their home. A deficiency is the difference between the amount outstanding on the mortgage and the value of the property. If the property is worth less than the mortgage, the borrowers will lose their home but can walk away owing nothing more.

The same is not true of insured mortgages. Lenders grant insured mortgages when the homeowners do not have a sizeable down payment to buy their home. As a result, the lender requires the borrowers to pay for mortgage insurance. Traditionally only CMHC offered that insurance, but there are now two other insurers: Canada Guaranty and Genworth. With an insured mortgage there is personal liability for a mortgage deficiency. If the property is worth less than the mortgage, the borrowers will lose their home and still owe the deficiency.

In a strong economy, as long as the price of the home increases and the owner can make the payments, things carry on. In time, the owner will often sell the house and either pay off the mortgage or the new buyer will assume it.

The most common scam used in a downturn is an offer to buy the home of a borrower in financial distress.In a downturn, as job losses mount, more and more homes go into foreclosure. The real estate market often ends up with depressed prices and there is a glut of homes offered for sale either by desperate owners or because of the foreclosure process. Trying to estimate the value of a house in foreclosure in such a market can be a guessing game.

Alberta has been through this scenario a number of times, the worst in memory having occurred in the early ’80s. The coming wave of foreclosures may well match or exceed that one.

2. Deficiency Judgment “Surprises” will Return

To many homeowner’s surprise, selling their house does not necessarily relieve them of liability for the mortgage. If the new owner assumes an insured mortgage (takes it over from the prior owner) and fails to make the mortgage payments, both the prior owner and the new owner can be sued and found liable for any deficiency. The lender obtains a judgment and assigns it to the insurer, who then often looks for the party with the deeper pockets. Often that is not the person who has defaulted on the mortgage. The insurer may pursue payment from the previous owner of the house, who may have no viable option but bankruptcy.

However, it is not only the prior owner who is at risk. There are situations where the purchaser does not realize that they have assumed an insured mortgage. The house was purchased for a price sufficiently greater than the amount of the mortgage that the nature of the mortgage assumed by the buyer was not obvious. In Alberta, there is a regulatory requirement that there be a warning on the face of the mortgage to the effect that it is insured, but the court held the regulation was unenforceable. As a result, should the new owners default, they could also find themselves personally liable for the lender’s loss.

… a number of organizations and individual volunteers are working together to create both a new website and a program at an existing clinic to help Albertans who find themselves in financial distress.When the economy and house prices take a downturn, the courts frequently see both owners and former owners who are stunned to find out they are both personally liable for the lender’s loss because the mortgage in default was insured.

3. The Return of the Scammers

In every economic downturn, as well as in overheated housing markets, the scam artists come out. In both cases, many naïve and usually innocent people are caught.

The most common scam used in a downturn is an offer to buy the home of a borrower in financial distress. To find victims, the scammer will search court records for homes in foreclosure, respond to Kijiji ads and place roadside signs offering to buy houses with cash. One case I remember well illustrates how the scam works.

I will call the woman who was before me that December day Kathleen. The matter was in court to determine when she had to move from the house. She explained to the court that it was all a mistake and she shouldn’t be there. She had sold her house, and she did not know why the new owner had not appeared in court. She said that she was a single mom with two kids, both in school. When she lost her job, despite wanting to stay in her house for her kids, she realized she had to sell it.

She placed an ad on Kijiji and a man contacted her, interested in purchasing it. He offered to buy it, rent it back to her and make the mortgage payments. When she got back on her feet she could look at buying her home back. It was the answer to her problems. She sold it for a nominal down payment and started paying rent.

When she understood that her personal liability continued because the mortgage was insured, and realized that the new owner had not used her rent to pay the mortgage, she was devastated.

With each downturn there have been many similar situations. In 1984, the legislature amended the Law of Property Act to provide that if a property was transferred either while the mortgage was in default or within 4 months of it going into default, there was no requirement that the owner be granted any time to bring the mortgage back into good standing.

4. The Effect on the Courts, Lenders and Homeowners

When the wave of foreclosures hit in the early ‘80s, Masters’ Chambers in Calgary would sit into the evening to get through the day’s list of foreclosures. The courts have since imposed limits on the number of applications that can be set down for chambers. With the backlog due to the pandemic and many hearings now virtual, a large increase in foreclosure applications could result in increased stress on the court system. Lenders may find themselves facing timing delays.

To many homeowner’s surprise, selling their house does not necessarily relieve them of liability for the mortgage.From my time on the courts, I noticed a number of homeowners either did not understand the foreclosure process or wanted to make specific arrangements, or both. Some wanted to redeem their mortgages over time. Others wanted some control over the nature of the sale or to plan an “exit with dignity”. Trying to make those arrangements in the middle of a court hearing was stressful for all. Sometimes the homeowner made their request too late in the process for it to be feasible.

Where to Get More Help

With those concerns and the likely increase in other personal debt in mind, a number of organizations and individual volunteers are working together to create both a new website and a program at an existing clinic to help Albertans who find themselves in financial distress. Both expect to launch in the latter part of October, 2020.

The website offers a “guided pathway” of questions to help individuals find what options make sense for their debt situation and what services are available. It includes a budget calculator for those uncertain of their exact financial situation. The Centre for Public Legal Education Alberta will host it.

In conjunction with the new website, the Public Interest Law Clinic at the University of Calgary Faculty of Law is opening a virtual Debt Negotiation Clinic. It plans to be in operation for a period of two years and will help Alberta debtors, particularly homeowners, deal with their debt. Individuals can receive legal advice to understand collection, foreclosure and other legal processes. They will also receive help if they want to negotiate with their creditor to arrange a payment plan or have some control over the legal process. The students at the Clinic will work with volunteer retired lawyers and judges with “active for pro bono” status with the Law Society to provide this assistance.

The hope is that these additional resources will help the anticipated wave of Alberta debtors. Many of these debtors are victims of the economic effects of the pandemic and never expected to find themselves in a situation where they could not pay their bills.

EMPLOYMENT | Enhanced Job Security for Federal Workers

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It is an outcome that is anchored in parliamentary intention, statutory language, arbitral jurisprudence, and labour relations practice. To decide otherwise would fundamentally undermine Parliament’s remedial purpose.

– Wilson v Atomic Energy of Canada Ltd., 2016 SCC 29 at para 69

Photo from Pixabay

Employment security is something every worker is concerned about, especially during a pandemic. It is generally accepted that unionized workers enjoy more security than their non-unionized counterparts do. And public sector workers are better protected than private sector workers are.

The federal government regulates only about 6% of all Canadian employees. They may be directly working for the federal government or in one of the federally regulated industries such as telecommunications, shipping, aeronautics, railroads, banking and atomic energy.

Most of these federally regulated employees are unionized. But some workers in banks, telecommunications companies, airlines, Crown corporations and other federally controlled employers are non-unionized. In 1978, Parliament amended Part III of the Canada Labour Code to add ss. 240 to 246 about “unjust dismissal.” These amendments granted unionized federal workers the right to written reasons for dismissal and to complain to an adjudicator if they believe they have been dismissed without just cause. This is an expansion of their collective agreement rights. An adjudicator finding the dismissal unjust can order the worker reinstated or compensated.

This article describes how the Supreme Court of Canada recently decided that these Canada Labour Code extended protections from 1978 apply to non-unionized workers as well. Federally regulated employees without unions and collective agreements share unionized employees’ statutory rights.

Wilson v Atomic Energy of Canada Ltd

In 2005, Joseph Wilson began work as a Senior Buyer/Order Administrator for Atomic Energy Canada Limited (AECL), a federally regulated Crown corporation. He was dismissed after more than four years of employment despite having a clean disciplinary record. He claimed he was dismissed because he blew the whistle on improper procurement practices at the company. Mr. Wilson’s employer dismissed him without cause and gave him a large severance package. The employer was of the view that it could terminate Wilson at any time without cause since he “was provided a generous severance package that well exceeded the statutory requirements” and was not protected by a collective agreement.

The unjust dismissal scheme in the Canada Labour Code ensures federal non-unionized employees cannot be dismissed without cause.The adjudicator ruled that AECL could not dismiss Wilson with severance payments alone.

In the Supreme Court of Canada

Six of the Supreme Court judges concluded that the adjudicator was reasonable (indeed, correct) in his interpretation of the 1978 Code amendments. They said the unfair dismissal process intended to provide these workers with a method of challenging their dismissals, because battling their employers in courts was very costly and burdensome.

They referred to the Parliamentary intent expressed by the then Minister of Labour Munro when he originally introduced the amendments. Munro said the provisions would provide unorganized workers with some of the “minimum standards” in collective agreements given to organized workers. He added:

The intent of this provision is to provide employees not represented by a union, including managers and professionals, with the right to appeal against arbitrary dismissal – protection the government believes to be a fundamental right of workers and already a part of all collective agreements.

The three dissenting judges noted: “a dismissal is not per se unjust, so long as adequate notice is provided.” They viewed the majority interpretation as an “absurdity,” ensuring “two identical classes” of employees [non-unionized public and private sector] will be handled differently “based on an arbitrary or irrational distinction.” They said Parliament did not mean to change the relationship between these employees and employers “simply by adding the unjust dismissal procedure to the Code.” There is no definition of an “unjust dismissal” in the Code.

In 1978, Parliament amended Part III of the Canada Labour Code to add ss. 240 to 246 about “unjust dismissal.”The dissenting judges referred to provincial schemes that answer this question and “they have done so expressly . . . had Parliament intended to prohibit without cause dismissals, it would have done so by using such clear and unambiguous language.”

Conclusion

The unjust dismissal scheme in the Canada Labour Code ensures federal non-unionized employees cannot be dismissed without cause. Severance payments are not an option for federally regulated employers to justify terminating employees without cause. Non-unionized workers – unprotected by collective agreements – enjoy recourse and protections comparable to unionized employees.

Federally regulated employers must show good cause to dismiss employees. These employees may also have the right to progressive discipline before being dismissed.

Under section 240(1), this protection is available only to those who have worked at least 12 consecutive months and if they are dismissed for reasons other than lack of work or restructuring.

The case represents a big win for employee rights in Canada and a challenge for federal employers who seek to reduce their workforces. It continues a recent trend of the Supreme Court strengthening labour rights of workers to unionize and strike.

LAW & LITERATURE | Richard Wright’s Native Son: Dread in Chicago’s desolate South Side

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Photo by Kelly Lacy from Pexels

As I write, impassioned protests in Kenosha and elsewhere attest to the anguish experienced by many Americans at the racialized violence meted out to African Americans. The incomprehensible shooting in the back of Jacob Blake, father of three, by a white police officer is the latest in a string of recent shootings and assaults. Shocking levels of violence by whites against black Americans is in fact a recurring theme in U.S. history.

One of the first significant protest works to explore racism, oppression and violence against black Americans is Richard Wright’s 1940 novel, Native Son. Wright was a black American who fled the Jim Crow south (Mississippi) to inhabit what must have seemed a new form of prison on the South Side of Chicago in the 1930s. He interrogates the racist practices of his society from the standpoint of its victims. Never before had such a threatening, dangerous character as Bigger Thomas been selected as the central consciousness who will lead the reader through a lengthy novel. The three parts – Fear, Flight and Fate – reveal in economic terms the stark nature of the predicament and the powerful response of the main character.

Major critic Irving Howe summed up the novel’s significance by claiming it changed American culture forever. Howe stated that Wright’s work had made impossible a repetition of the old lies, and brought into the open the hatred, fear and violence that have crippled the culture. The Modern Library’s list of the best 100 novels ranked Native Son as No. 20. As a formidable, path-breaking protest novel, though, it is easier to value it as an important social event and provocative exploration of the vexing problems of race relations in America than it is perhaps to endorse its brilliance and greatness as a work of art.

Never before had such a threatening, dangerous character as Bigger Thomas been selected as the central consciousness who will lead the reader through a lengthy novel.In this Black Lives Matter era, this novel provides readers an unrelenting look at the violence that the forces of law unleash on the black characters who emerge from their one-room apartments and do life in conditions little better than those faced by actual prisoners. The opening chapter is a perfectly executed description of the stunted lives of Bigger, his mother and his two siblings, under the pressure of hunger and despair. It is twenty year-old-Bigger, badgered by his mother to find employment or lose welfare benefits, whose toughness and tenacity is needed to once again battle a huge black rat menacing the Thomas family. The author gives a vivid and authentic account of the desperate struggles in which his protagonist and others in the black community of Chicago’s South Side must engage.

Bigger is encouraged to take employment with a wealthy, privileged white family: the Daltons. His crossing the color line creates in him a palpable sense of dread at the prospect of saying or doing the wrong thing. While escorting home the daughter, Mary, after she had a night of heavy drinking, tragic circumstances result in her accidental death at his hands. A sequence of cascading actions leads Bigger to commit crimes and attempt various deceptions to escape capture.

The most remarkable scenes in the novel depict the harsh circumstances of the black community and the links with the dominant class – whites like Mr. Dalton. We learn Mr. Dalton is more than an impeccable liberal who donates to worthy charitable causes. He is also a slum landlord who enforces segregated hosing through restrictive covenants and who owns the apartment complex Bigger’s family lives in. Further, Dalton charges the vulnerable tenants seemingly unconscionable rent.

Dalton is one of several characters we meet in the third part of the novel – the trial of Bigger for two murders as well as the presumed rape of Mary. Bigger’s counsel, Max, effectively draws out the predatory nature of Dalton’s commitment to market fundamentalism in cross-examination. Dalton purports to be compelled by some iron law of capitalism to charge his stiff rents. The testimony of other witnesses contributes to the portrait of economic injustice and staggering levels of racial discrimination.

One of the first significant protest works to explore racism, oppression and violence against black Americans is Richard Wright’s 1940 novel, Native Son. Max is an elderly Jewish counsel with the Communist-backed Independent Labor Office who takes on Bigger’s apparently hopeless defence pro bono. He appears to me to have employed a rather risky strategy. Many of the submissions in closing argument at trial appear to underpin a radical political critique of the type of society that would create the accused. The submissions do not seem particularly well judged as an attempt to engage the judge’s sympathies (noting he is most unlikely to share the radical views of counsel). However, the efforts of Bigger’s lawyer do link to central themes emerging from the events that have led to the crimes in question. Max’s description of Bigger’s unfortunate life assists in the realization that this young man’s life was, in one sense, a crime waiting to happen. The accused is less someone whose fate is to be determined based on an individualized assessment than he is a symbol. Precisely what is he a symbol of? Perhaps of the depths with which American society can force a black youth – denied a proper education and any opportunity for hope – to descend to.

The novel also offers some engaging arguments for and against the use of the death penalty and incorporates references to other leading trials of the era. Wright makes good use of the shocking trials know as the Scottsboro trials (1931-37). In those cases, the state of Alabama was determined to prosecute nine young black men for the rape of two white girls aboard the top of a freight train, no matter how many miscarriages of justice the state had to keep committing to succeed. In the case of Bigger Thomas, Wright has attempted to depict a very different scenario. His protagonist becomes a figure who can stand as the logical counter to the immoral violence of 1930s law as it applied to black Americans.

I conclude that Native Son is indeed a must-read. I do remain ambivalent about a few of the artistic choices Wright made, the most controversial being telling the tale through the consciousness of such a thoroughly unpleasant and violent character as Bigger. (One should remember as well that this was his first novel.) Some readers will not buy into Bigger being the symbol who brings together the various strands of the author’s radical critique. However, no reader will fault Wright’s courageous attempt at an autopsy of an unhealthy and divided society.

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