Manitoba eLaw – New Edition – Labour and Employment Law

The October 2018 edition, No. 33, has just been released.

In this Issue

  • Letters of Guidance Not Disciplinary: MBQB
  • No Reason Needed for Termination of Independent Contractor: MBQB
  • Injunctions Rarely Granted in Constitutional Challenges: MBQB
  • Other Court Decisions
  • Inappropriate Social Media Use and the Workplace: MBLA
  • Legislative Update
  • New Parental Sharing Benefit to be Implemented Early
  • Report of Modernizing Federal Labour Standards
  • Reports on Sexual Harassment in the Workplace
  • Recommended Reading
  • 2018 Isaac Pitblado Lectures
  • Annual Manitoba Labour Law Review
  • CBA Conference

Referral Fees – What you should know

[Reprinted with permission from the October 2018 edition of Communiquéby Darcia Senft, General Counsel , Director of Policy and Ethics at the Law Society of Manitoba.]

From time to time, we receive questions about fee referral “pitches” and whether such fees can be paid and received without causing a lawyer to act in breach of the rules set out in the Code of Professional Conduct.

The Code has rules and commentaries that relate to the division of fees and referral fees. Rule 3.6-7 specifically prohibits a lawyer from directly or indirectly sharing, splitting, or dividing his or her fees with any person who is not a lawyer and from giving any financial or other reward for the referral of clients or client matters to any person who is not a lawyer.

From time to time lawyers receive telephone calls or emails from individuals who indicate that they want to help increase the number of new cases that the lawyer takes on. For example, a caller explains that his company will provide contact information to potential clients in whatever practice area or geographic area that the lawyer selects. It is not a directory service but some form of customized referral process that relies upon the company’s technology. When asked how the company makes money from the proposed referral process, the lawyer is told that he will be required to pay a flat fee each month to the company although they will not charge a fee for each referral. The caller is from another jurisdiction and is not a Manitoba lawyer. Under the circumstances, the proposed payment system would amount to a referral scheme that no Manitoba lawyer could participate in without breaching the referenced Code referral fee rules. If you have become involved in this kind of an arrangement, you should revisit it in light of the Code restrictions.

Certain types of referral fee payments are allowed. With the exception of referrals as a result of conflicts, Rule 3.6-6 allows a lawyer who refers a matter to another lawyer because of the expertise and ability of the other lawyer to handle the matter to receive a referral fee but there are a couple of conditions that must be met. First, the fee itself must be reasonable. Second, the client must be informed about it and must consent to its payment. You might wonder what a “reasonable” fee might look like. You might also wonder why the Law Society would even care about a referral fee arrangement where the client consents.

Consider the following situation. A lawyer who does not practise in the area of family law at all meets with one of his long-standing clients who now needs a divorce. The lawyer says he doesn’t practise in that area but can make a referral to a lawyer in another firm who does this work. The lawyer who accepts the domestic retainer agrees to pay 15% of all fees generated back to the lawyer who made the referral. The domestic case may take several years to complete and the client may end up paying in excess of $40,000 to the family law lawyer. Would it be reasonable for the referring lawyer to receive $6,000 in fees simply for making the initial referral? Even if the client purportedly “consents” to the referral fee, at the beginning of a retainer the client would have no idea how much the referring lawyer ultimately will be paid. How could consent, under those circumstances, be described as “informed?” What would the client say if he knew that in order for the domestic lawyer to keep up those anticipated long-term referral payments, she had to charge a higher hourly rate?

Where the Code allows payment of a referral fee from one counsel to another, it stands to reason that the fee must be fully known (i.e. quantifiable) in order for the client to provide informed consent. Before considering any kind of division of fees or fee referral payments, consult the Code and please call us if you have any questions about whether the contemplated arrangement is appropriate having regard to your ethical obligations.

Manitoba eLaws – New Edition – Business Law No. 83

The October 2018 edition of the Business Law Update has been published. Selected contents include:

  • Application of Common Interest Privilege in Commercial Transactions Restored: FCA
  • Private Disputes Not Enforceable Via the Oppression Remedy: MBCA
  • Exclusion Clause a Bar to Negligent Misrepresentation Claim: MBCA
  • Legislative Updates, including several regarding the upcoming legalization of marijuana
  • and more.

Manitoba eLaws – New Edition – Family Law

The September 2018 edition of the Family Law Update has been published. Selected contents include:

  • SCC Adopts Multi‑factored Hybrid Approach to Hague Convention Analysis
  •  Limiting “Death by a Thousand Cuts of Litigation”: MBCA
  • Timely Decisions Essential in Child Welfare Cases: MBCA
  • Judges Have a Duty to Take a Hard Look at the Merits of Summary Judgment Claims: MBCA
  • Legislative updates
  • Final Report on the Review of Manitoba’s Child Welfare Legislation, Opportunities to Improve Outcomes for Children and Youth

Members have the option of signing up for email delivery.

Traditional Land Acknowledgements: More than Just a Gesture

[Reprinted with permission from the August 2018 edition of Communiqué, by Alissa Schacter, Equity Officer and Policy Counsel at the Law Society of Manitoba.]

Traditional Land Acknowledgements:  More than Just a Gesture

Many of you will have noticed that a couple of years ago the Law Society began acknowledging the traditional territory of Indigenous peoples at the beginning of all of our CPD programs and other events.  In doing so, we joined a growing number of organizations that routinely acknowledge the traditional territory of the Indigenous people who called this land home long before the arrival of European settlers.  You can now hear similar acknowledgements at the start of Jets home games, concerts, religious and civic events and many other public gatherings.

When we began this practice we had a few lawyers ask why we were doing it.  In the intervening years, some have commented appreciatively about it and others have remarked that it strikes them as a pro forma and empty gesture. A few fair minded and well intentioned people have expressed a genuine lack of understanding of the relevance of making a land acknowledgement at events that don’t have a direct connection to Indigenous issues, for example a CPD on costs in estate litigation.  This article aims to shed some light on the purpose of the practice.

Why do we acknowledge the traditional territory of Indigenous peoples?

There are various reasons.  Acknowledging the land and territory which you are on is a long-standing Indigenous cultural practice.  Land is sacred to Indigenous people and much of their traditional knowledge and teachings derive from the land, so acknowledging the land is a way of showing respect for it, according to Stryker Calvez, a Saskatchewan based Indigenous educator and researcher.  Adopting this practice is a way to prompt us to think about our relationships with Indigenous peoples as well as incorporate an Indigenous tradition into our usual mode of operations.

When asked, Alyssa Bird, an Anishinaabe-Kwe (Ojibway Woman) and Ininiwi-Iskew (Cree Woman) from Peguis First Nation of Treaty 1, and third-year law student at Robson Hall had this to say on the topic: “Manitoba is fully covered from north to south by treaties that were signed by Indigenous Nations and Crown. Indigenous Nations did not approach the negotiations and signing of the treaties lightly.  Days were spent having discussions between leadership, traditional ceremonies were held to seek out guidance from the Creator and negotiations with treaty commissioners were extensive.  Indigenous Nations deeply believed that entering into a treaty with the Crown would be the start of a meaningful and reciprocal relationship with those living within treaty boundaries.  The acknowledgement and reminders of that treaty history and whose original homelands you’re on is an important practice and a small way to show respect and acknowledge the time when treaties were signed, because it is likely that those leaders, years ago, were also thinking of you.”

Since the Truth and Reconciliation Commission released its 94 Calls to Action in 2015, Canadians have been grappling with what reconciliation means practically and how to engage in it.  The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country”. The Calls to Action enumerate a series of concrete steps we should take, but establishing a respectful relationship starts with the simple act of acknowledging one another – seeing the other for who they are and “making space” for them. This goes to the heart of one of the deepest human needs: to be understood and accepted.  The approach Canada has taken toward Indigenous peoples for most of its history – denying their fundamental rights and attempting to forcibly assimilate them – has been in diametrical opposition to this basic human need. 

Land acknowledgements are a way of creating space for Indigenous peoples.  They are a way of saying “we see you, we acknowledge you were here on this land before us and we are committed to reconciling our relationship”.  Taking a couple of minutes to recognize the traditional lands we are on gives us an opportunity to reflect on and re-frame our understanding of where we are.  It demonstrates respect by acknowledging our history, which is that the communities we live in today were built on land that Indigenous peoples inhabited long before Canada became a country, and that functional and vibrant systems of Indigenous law and governance were replaced by European systems.

It is because generations of Indigenous people have suffered and continue to suffer profoundly from complex social problems as a result of the policies adopted by Canadian governments that we need to actively make space for and acknowledge Indigenous peoples – even at a CPD on costs in estate litigation.

In response to those who posit that land acknowledgements are pro forma and meaningless, we routinely sing “Oh Canada” at the start of many events and ceremonies without the suggestion that its meaning is diminished through repetition.  Is this really any different?

Acknowledging that we are on the traditional territory of Indigenous peoples is a nod to our country’s history and a gesture of respect.  It is but one of many steps on the journey toward reconciliation.