Law Reform Commission of Saskatchewan Annual Report for 2016-17
The Intestate Succession Act, 1996 determines how an estate is divided when there is not a valid will, or if there is a portion of an estate remaining after a will has been completely applied. The Commission has undertaken a comprehensive review of The Intestate Succession Act, 1996. This Final Report makes several recommendations for reform based on current estate planning practices that will ensure Saskatchewan’s intestate estate distribution system remains relatively simple, certain, and efficient.
The Homesteads Act, 1989 protects spouses who do not own their homes against the sale, mortgaging or other disposition of the homestead by requiring the non-owning spouse to sign a consent and be examined separately from the owning spouse before such action can be taken. This Final Report considers two distinct issues: (1) whether an attorney acting under a power of attorney should be able to consent to a disposition of the homestead, and (2) whether a homestead should include mines and minerals. This Final Report recommends allowing an attorney to consent to a disposition of the homestead in place of a non-owning spouse, subject to the condition that where the attorney is the spouse of the non-owning spouse, the attorney only be able to consent to a disposition of the homestead where the non-owning spouse lacks capacity. This Final Report also recommends that The Homesteads Act, 1989 be amended to specifically exclude mines and minerals from the definition of the homestead.
Please comment by October 31, 2016.
Please comment by October 31, 2016
Foreclosure involves lengthy legal proceedings taken in the Court of Queen’s Bench and is governed by several statutes, including The Land Contracts (Actions) Act (the LCAA). The LCAA is consumer protection legislation intended to protect borrowers by requiring lenders to obtain leave of the court before starting foreclosure. The protection is provided as time: time to bring the mortgage up to date, refinance, or sell the property before foreclosure or judicial sale or, if that is not possible, time to find alternative accommodation. The LCAA is 70 year old legislation, having been enacted in 1943. This Final Report considers the steps required by the LCAA for non-farm land mortgages and recommends reforms to better protect borrowers in current conditions.
The doctrine of Crown immunity provides that a statute does not bind the Crown unless the statute expressly so states or it is otherwise clear from the enactment that the legislature intended the Crown to be bound. The Commission draws a distinction between legislation currently in force and future enactments in its recommendations for reform.
Under The Queen’s Bench Rules, a potential litigant may, in some circumstances, obtain a waiver of court fees by obtaining a Needy Person Certificate. Needy Person Certificates are useful, but challenges exist respecting their scope and availability. This report sets out the Commission’s proposals on improving access to justice for the less advantaged members of our community through fee waivers.
The Commission sets out proposals to improve civil rights in Saskatchewan’s long-term care facilities. Many are unfamiliar with rights in long-term care, including how to assert those rights and seek remedy for their breach. The Commission’s focus in this report is on violations involving non-physical abuse that are not effectively addressed by existing protocols.
The Land Contracts Act is meant to protect consumers by requiring leave of the court before a mortgagee may start foreclosure proceedings. The Commission reviews the steps required by the Act for residential mortgages and considers whether they remain necessary or desirable. It suggests approaches that might be taken for reform of the Act and invites responses.
The presumption of Crown immunity holds that the Crown is not bound by statue unless expressly bound by a specific enactment. This Consultation Paper discusses the presumption and the consequences of reversing it. The Paper discusses how the courts in Canada have interpreted and applied the presumption, reviews the criticisms of the presumption, and considers how reversing the presumption would affect the law in Saskatchewan.
Some argue that not all people requiring fiduciary services can afford or qualify for those services from trust companies, and so other corporations should be permitted to provide fiduciary services. The Commission finds that current legislation ensures that the fullest protection comes from trust companies and that there is no need to allow other corporate fiduciaries to provide these services.
Loi_uniforme_Transactions_Revisables (Sept, 2012)
This Act is intended to provide a comprehensive approach to the debtor/creditor relationship. Uniform legislation is needed to incorporate the piecemeal reforms from the last 100 years and to improve on the often inconsistent approach to creditors’ rights. The proposed Act clarifies transactions at undervalue, relief for unsecured creditors, creditor hierarchies, securities, and the creditor sharing principle.
The Law Reform Commission examines the issues of natural justice and potential procedural unfairness that arise from the administration of penalties by regulatory bodies. Recommendations include allowance for appeals in all cases, with consideration for appropriateness of the appeal, and minimal procedural rule observance.
Appeals to the courts from decisions directly affecting individuals are usually made by officials under statutory authorization. However, there is a lack of consistency in the form and scope of statutory appeal rights, and some statutes do not provide for appeals. The Commission makes recommendations respecting the right to appeal, grounds of appeal and structure of appeals.
There is a growing need for legislators to amend existing privacy rules in the face of rapidly advancing technology and growing data protection issues. The Commission recommends several changes to The Privacy Act that it believes would make the Act a more effective complement to more specific legislation.
This paper outlines the current issues in Needy Person Certificates, their scope and availability, and the access to justice issues that arise from different rules in different courts. The Commission cites widespread confusion about eligibility, and seeks solutions to issues regarding eligibility and personal representation, stages of the proceedings, and accessibility to the certificates.
A joint project with the Uniform Law Conference of Canada on reform of fraudulent conveyances and fraudulent preferences law. This report is in response to suggestions by delegates at the 2010 Uniform Law Conference of Canada to Part 1 of the project addressing transactions at undervalue and fraudulent transactions. It incorporates clarifications and changes regarding recommendations in the original report on exempt properties, limitation periods, risk for bona fide purchasers, and remedies for creditors.
Topics covered in this report include title and structure of the proposed Act, the scope of new preferential payments law, provincial harmonization with the federal Bankruptcy and Insolvency Act, the integration of preferences law with other law on transactions, remedies for creditors, the exemption of arm’s length payments from challenges, and limitation periods.
The Commission addresses two conflicting viewpoints: that access to justice is reduced by the high cost of litigation and the relatively low value of awards, and that such costs should be higher to deter frivolous lawsuits. The Commission outlines Saskatchewan’s partial indemnity cost regime and compares it to full and no indemnity systems in other jurisdictions, canvassing arguments in favour of each approach.
There is grave concern among families and professionals over the treatment of residents of special care homes. This discussion addresses the adequacy of existing civil rights protections, whether Saskatchewan should legislate a Residents’ Bill of Rights, and how to investigate and protect the civil rights of residents.
Under Quebec’s Code Civil, transactions at undervalue and preferential transfers are subject to the same rules, and outcomes have been found to be predictable and consistent. This paper is meant to provide an overview of this part of Quebec law, and no recommendations are made.
This paper is part one of a two-part report on fraudulent conveyances and fraudulent preferences. The entire report outlines draft legislation that, if adopted in each province and territory, would provide uniform laws across Canada.
The Law Reform Commission reviews Saskatchewan vaccination programs and makes three recommendations: create a compensation fund for vaccine-related injuries, expand vaccination education programs to increase informed consent, and add a statutory requirement to report adverse vaccine effects. The Commission considers but recommends against mandating vaccinations for public school children.
This report provides an update on The Uniform Law Conference of Canada’s project on reform of fraudulent conveyance and fraudulent preference laws. The aim of the project is to create draft legislation for each province/territory to adopt.
Saskatchewan’s Privacy Act creates an action in tort for breach of privacy. The Act is vague and little-used. The Commission recommends reforms be considered to the plaintiff’s burden of proof and to the limited scope concerning public invasions, and that the legislation’s examples of violations include reference to new information technologies.
There are two tiers in Saskatchewan administrative law appeals: all decisions may be judicially reviewed on jurisdictional issues, but only some are appealable to the courts on their merits. The Commission recommends that a standard should be established across all administrative schemes that provides a degree of uniformity while conforming to the specific needs of each tribunal.
Administrative penalties are relatively new in Saskatchewan. These monetary penalties are imposed by a regulator without the involvement of a court or tribunal. The process raises concerns over procedural fairness. The Commission invites discussion of various legal issues that arise from administrative penalties, with the goal of developing consistent and appropriate principles of fairness and efficiency.
The Uniform Law Conference of Canada (Civil Law section) outlines its work on fraudulent preferences and the effort to create uniform draft legislation for the provinces to adopt. This report includes summaries of existing provincial and federal legislation, and review of the policy considerations and issues still to be determined.
Legislation allowing for enduring powers of attorney exists in all four Western provinces. The Western Canadian Law Reform Agencies’ report reviews Western legislation, notes differences between provinces, and reviews duties of attorneys and steps to prevent misuse. The Agencies recommend increased harmonization of Western Canadian law to support cross-boundary rules and recognition.
To address the problem of light pollution, municipalities could enact by-laws and the province could enact provincial minimum standards. Appendices of American legislation addressing this issue and a sample by-law from the Royal Astronomical Society of Canada are included.
This paper focuses on policy options available for the province with respect to solar access legislation. The three most relevant policy issues for Saskatchewan include legislation to define solar easements, legislation to allow a board to grant solar access rights in appropriate cases, and zoning regulations that include solar access.
Childhood vaccination programs have been described as “a cornerstone of
improving the health of people worldwide, ” Most people in Saskatchewan
take the benefits of vaccination for granted, and the province has a
successful, publicly funded and delivered childhood vaccination
program. However, the Commission has identified emerging issues that
could threaten public confidence in vaccination programs. Some of these
concerns raise legal s well as medical issues:
1. Compensation for vaccine-related injury
2. Mandatory vaccination
3. Informed consent and refusal
4. Reporting adverse effects
The Commission’s consultation paper is intended to provide background
for public discussion and debate of the issues it identifies.
The Uniform Law Conference of Canada (Civil Law section) outlines its work on fraudulent preferences and the effort to create uniform draft legislation for the provinces to adopt. This Report includes summaries of existing provincial and federal legislation, and review of the policy considerations and issues still to be determined.
At present, only trust companies are permitted to act as corporate trustees, executors, and administrators in Canada. However, trust companies have increasingly become multi-purpose financial institutions. The trust and fiduciary part of their business has diminished in importance. At the same time, because of our aging population, more people require assistance to manage the wealth they have accumulated over a lifetime, and may require a variety of fiduciary services. In other jurisdictions, including the United States, Britain, and other Commonwealth countries, trust and fiduciary services are more widely available, and more varied in content. This consultation paper examines the law governing corporate trustees and fiduciaries in Saskatchewan, and asks whether the monopoly on trustee services currently possessed by trust companies is still necessary. This project is part of the Commission’s focus on legal issues affecting the elderly.
This Report is concerned with the maintenance of public confidence in the real property system, and whether and how title insurance might affect that public confidence. The Commissions identified two separate aspects of maintaining that confidence:
(1) consumer protection; and
(2) protection of public infrastructure.
The Commissions make a number of recommendations that they believe will both protect the interests of individual purchasers and protect the existing public system of land registration, while guaranteeing as much freedom of choice as is compatible with those goals.
This Handbook is a guide to procedure in disciplinary investigations and hearings conducted by most professional associations in Saskatchewan. Of the 50 self-governing professions in the province, 29 are governed by legislation that incorporates what can be called the “standard model” of disciplinary procedure. The handbook follows the stages of discipline proceedings under the “standard model” from receipt of the complaint to assessment of the penalty.
The handbook directs attention to statutory requirements and explains them. Decision of the courts and the general law governing procedure are discussed when they are relevant.
This publication may also be purchased in a bound, index-tabbed format from the Queen’s Printer.
Reverse mortgages can provide access to home equity for cash-poor seniors, but critics suggest that the true cost of these loans is high, and that borrowers forced to move for health or other reasons may find the reverse mortgage to be a problem. The Commission recommends regulation, including disclosure requirements to insure that consumers are fully informed about the effects of reverse mortgages.
Recreational activities such as hunting, fishing, hiking and cross-country skiing often take visitors onto private or Crown land without the permission of the landowner. A landowner may be liable for injuries to visitors even if they are trespassers. The Commission recommends reducing liability of landowners who are not operating commercial recreation facilities.
Guarantees of loans from financial institutions by a family member of the borrower can be problematic, especially if the guarantor is a vulnerable elderly person. The Commission recommends consumer protection measures to protect guarantors, including enhanced mandatory disclosure by financial institutions of the legal effects of guarantees.
Much of British received law has now been superseded by Saskatchewan legislation or become inapplicable to the conditions of the province. However, some English statutes remain in force, and are routinely applied by the courts. The status of many other English statutes is uncertain. The Commission recommends eliminating the remaining received law.
According to the default rules found within the Saskatchewan Wills Act, 1996, a will is automatically revoked on marriage or divorce. This rule also applies to common law relationships. The Commission does not recommend either abolition or retention of the rules, but focuses on the need for public education to inform citizens about the default rules with respect to wills.
This consultation paper investigates loans made by one family member to another, and guarantees of loans obtained from financial institutions by a family member of the borrower. Both are common, and are often ways in which a parent can help an adult child financially. Unfortunately, both can also lead to misunderstanding. Potential problems are greatest if the lender or guarantor is a vulnerable elderly person. In such cases, the financial transaction may amount to elder abuse.
Reverse mortgages allow seniors to use equity in their homes while remaining in the home. The interest is allowed to accumulate, and is paid off when the person dies or leaves the home. There are various benefits and drawbacks to reverse mortgages. The Commission looks to regulation of these loans, including the need for full disclosure and independent advice and counselling.
In order to promote certainty and efficiency, an increasing number of jurisdictions have adopted model codes of procedure for administrative tribunals. In this paper the Commission formulates a preliminary model code for Saskatchewan tribunals in order to facilitate discussion.
This paper argues that federal and provincial governments renew their self-government policies to give meaning to the inherent right of First Nations to self-government. The authors suggest that First-Nations’ self-government is a key and complementary principle to the Canadian constitution. It recommends that both the federal and provincial governments renew their policies on Aboriginal self-determination to reflect existing commonality on issues such as social, institutional and democratic control for First Nations.
The Manitoba and Saskatchewan Law Reform Commissions consider title insurance and its effect on both individuals and the public interest in residential real property transactions. Some conveyance practices have been found to be inefficient and unsecure, and suggestions are made to improve security of title without causing delay or difficulty in transfer
This paper is a companion to theTrustees Act: Proposals for Reform (2002) and addresses the powers of personal representatives who are not trustees as defined in The Trustee Act. The Commission recommends including some provisions garnered from existing statute in The Administration of Estates Act and omitting other out-dated provisions, in effect replacing the Devolution of Real Property Act.
A will created on a computer and stored on computer media such as a CD-ROM or on a computer network rather than printed out and signed in the usual manner is probably invalid under Saskatchewan law at present. This paper discusses the issues and problems surrounding recognition of electronic wills.
It concludes that the technology is now available to legislate a set of formalities for recognition of electronic wills, but recommends delaying doing so until there is sufficient interest in legal profession and public to warrant doing so. In the mean time, the report recommends amendment of the Wills Act to make it clear that the courts can admit electronic wills to probate in the same manner as other formally deficient wills that “substantially comply” with the requirements of the Wills Act (2004).
Under the present law, a will is automatically revoked on marriage or divorce. These long-standing rules are intended to protect the interests of spouses and children of the makers of wills. However, it has been suggested the the changing social and legal context may sometimes defeat the purpose of the rules, and even make them a problem. This Consultation Paper discusses when a will is automatically revoked due to marriage or divorce.
This handbook provides guidelines for Investigation and Discipline Committees where guidance is not available in current statute or where an organization lacks ready access to legal advice. The handbook is designed for self-governing professional groups following the standard model of internal discipline.
The Commission undertook a review of history and interpretation of The Evidence Act at the request of the Department of Justice. This paper is intended to facilitate modernization of the legislation’s language, rather than recommend significant changes in the law. Much of The Evidence Act is based on 19th century English statutes that are now both obscure and irrelevant. The Commission believes the analysis in this paper is a prerequisite to reform of the law of evidence (2004).
In order to promote certainty and efficiency, an increasing number of jurisdictions have adopted model codes of procedure for administrative tribunals. In this paper the Commission formulates a preliminary model code for Saskatchewan tribunals in order to facilitate discussion.
This Report, issued in March 2003, completes the Commission’s project on the personal liability of board members in the not-for-profit sector. A consultation paper issued in July 2001 was the basis for consultations with the sector, the bar, and regulators. The report proposed significant limitation on the personal liability of directors and officers of volunteer organizations, which have not been adopted in substance in The Non-Profit Corporations Act.
The Commission suggests that the harmonization of Aboriginal laws is necessary and desirable due to changes in technology and infrastructure, as well as the changing nature of Aboriginal law-making. Aboriginal and non-Aboriginal laws can work in parallel without overlap in the jurisdiction of the respective law-making bodies.
This report, issued in December, 2002, completes the Commission’s project on the law of trusts. It is the product of an extensive research program that included circulation of consultation papers on aspects of the law of trusts for comment from the bar and public. The report recommends adoption of a modernized Trustees Act reflecting the contemporary needs of settlors,
The law regarding the partition of land is governed by English legislation rather than Saskatchewan statute, with a few exceptions. The existing Farming and Communities Land Act and the Matrimonial Property Act contain out-dated and obscure reasoning, and clarification on the partition and sale of land is recommended. The Commission recommends that a Partition and Sale Act be adopted in Saskatchewan.
Gaps in the Powers of Attorney Act have left those who wish others to administer their affairs vulnerable to abuse and without adequate guidance. The Commission suggests addressing a number of issues, including standard forms, a standard test of capacity, criteria of admissibility for attorneys, the effect of death or divorce on power of attorney, and appointment of a corporate attorney under an enduring power.
A sector governed by volunteers needs protection, both for the volunteers and for the public. Safeguarding the public is paramount, but personal liability should not deter volunteers from seeking board membership in non-profit organizations. Recommendations include restricting personal liability, immunity for directors and officers, and reasonable restriction of that immunity to avoid gross misuse.
This paper reconsiders the Commission’s 1989 Proposals for a New Limitations of Actions Act. It compares the Uniform Limitations Act, adopted by the Uniform Law Conference of Canada, and suggests adaptions that could be made to either or both Acts to arrive at a new limitation of actions statute.
The Contributory Negligence Act allows a plaintiff to collect damages against any or all defendants held liable at trial for the plaintiff’s injuries. The goal of the contribution rules is to shift the burden of underpayment away from the plaintiff and onto contributing defendants. The Commission encourages discussion of the contribution rules, which sometimes produce unfair results.
The Commission recommends that common law relationships be included under The Matrimonial Property Act. People in same-sex common law cohabitation relationships should be able to opt into the system. In addition, the province ought to consider a scheme under which cohabitees, whether in a sexual relationship or not, may choose to be governed by the legal rules that apply to families.
The Statute of Frauds requires that many sorts of contracts be evidenced in writing and signed by those bound. The Commission suggests that these requirements are necessary only in the case of contracts for sale of land. It recommends that The Statute of Frauds be repealed and that provisions regarding the sale of land be included in The Land Contracts (Actions) Act.
After fifteen years of experience with the Matrimonial Property Act, the Commission recommends amendments to correct problems of implementation. Clear definitions of matrimonial property and value ought to be included to avoid problems in the division of matrimonial property. Provisions ought to be introduced to address the status of gifts and inheritances received during the marriage.
The Dependants’ Relief Act should be reformed to limit liability of estates to provide for handicapped adult children. It should be permissible to use funds for purposes other than day-to-day maintenance without jeopardizing eligibility for social assistance. The changes proposed would not impose any new or additional burdens on taxpayers.
The Saskatchewan Trustee Act limits the investment options of trustees to a list of approved investments. This fails to promote balanced portfolios, and has motivated drafters of trusts to avoid statutory oversight entirely. The Commission favours a broadened British approach that encourages balanced investments and requires trustees to obtain adequate advice before investing.
Saunders v. Vautier established the rule that beneficiaries of a trust can call upon the trustee to terminate the trust and distribute the trust property as they direct. The Commission’s recommendation is to abolish this rule in Saskatchewan by amending The Variation of Trusts Act. The Commission believes that modification of a trust should occur only with court approval under the Act.
Distress allows a landlord to seize and sell a tenant’s goods to satisfy arrears in rent. It is a remedy fraught with uncertainty and in need of integration into the personal property security regime. The Commission recommends abolishing distress in its current form, and replacing it with a new system that would allow a landlord’s interest in rental payments to be converted into security interests.
Structured settlements provide compensation to a plaintiff in periodic payments instead of a lump sum. Though Saskatchewan courts approve settlements negotiated between parties, they lack jurisdiction to deliver structured judgments. The proposed Structured Judgments Act would allow courts to make structured awards while providing them with some guidance on the complexities involved.
This Report considers changes to the proposed Personal Property Security Act since publication of Tentative Proposals for a New Personal Property Security Act. These proposals follow a December 1990 Commission publication that recommended repealing the existing Personal Property Security Act and replacing it with a new Act. Changes were made to the proposed Act as a result of extensive discussion and developments since publication.
Advance directives, or living wills, may be used to promote death with dignity by allowing the termination of treatment when death is imminent. The proposed Advance Health Care Directives Act would recognize advance directives that meet minimal formal requirements, and would afford liability protection to physicians following directives in good faith.
Though The Personal Property Security Act has functioned well for the seven years it has been in place, it is in need of sufficient amendment to warrant its repeal and replacement. Most importantly, this approach would allow harmonization of the personal property security law of Western Canada. The Commission proposes a draft of a new Act.
The Bulk Sales Act applies to the sale of operating retail businesses. The Act is out of touch with contemporary commercial reality, most notably the growth of secured credit. The Commission recommends that the Act be repealed.
Though receiving British law facilitated the development of our legal system, the remaining laws are now a source of confusion. The Commission recommends ways of undertaking the complex process of extricating and disposing of applicable English statutes in the province.
Statutes of limitations prescribe a certain period of time in which an action against another party may be brought. The law in Saskatchewan is in need of both simplification and modernization. The proposed Limitation of Actions Act allows for limitation periods of two years, six years, and ten years – subject to events that delay the running of time. An ultimate limitation period of 30 years is proposed.
Saskatchewan’s out-dated consumer credit legislation needs to be reformed to better address the needs of consumers. This is a final report based on the Commission’s earlier tentative proposals. The Commission recommends enactment of two statutes: The Consumer Credit Act and The Pawnbrokers Act. These proposals reflect current thinking in the area of consumer protection.
Legislation is proposed that gives more power to the courts to require fair restitution when a contract has been found to be frustrated. The Commission recommends an approach that allows the courts to more fairly allocate the burden of frustration between the parties.
This Handbook offers an in depth look at the Saskatchewan Personal Property Security Act. Information is provided on the content of the Act, including basic explanations of the provisions of the Act and of relevant case law that has emerged. The authors offer their opinions on the strengths and weaknesses of the legislation and provide commentary where appropriate.
This Report concerns monetary compensation for those who are innocent and have been drawn into the legal system through no fault of their own. The Commission believes that a scheme of compensation is warranted and would be met with support from the Canadian public. Certain conditions must be met in order to support a claim for compensation.
The complexity of the law of perpetuities and accumulations can lead to unexpected and undesirable results. Social concerns originally justifying the rules no longer obtain. The Commission thus concludes that the rule against perpetuities and accumulations ought to be abolished
A contract is frustrated when an unforeseen event so distorts the agreement that the law declares it ended and discharges the parties from their duties. The Commission proposes a Frustrated Contracts Act that allows courts a wider ability to adjust the situation post-frustration to ensure a fair result for all parties.
Using semen from a donor other than the recipient’s husband gives rise to a multitude of legal and medical issues. There is little background guidance on these issues. The Commission offers proposals on the legal treatment of artificial insemination, including confidentiality, civil liability, the selection of recipients and donors, and consent of the husband.
The Commission recommends that there be statutory guidance in classifying provincial offences. It recommends further that the defences available for criminal offences be made available for all provincial offences. The Provincial Offences Act is proposed.
A limitation period is a fixed period of time within which an action may be brought. If the time expires, then the action is barred. The Commission advocates that fixed time periods for limitations be retained, with an aim towards unity in limitation periods.
Marriage is now seen as a partnership between two people who expect to share in the obligations and benefits of their union. Matrimonial property legislation should be amended to reflect the current view. The Commission outlines basic principles it believes ought to guide any change to the legislation.
The Commission recommends that the distinction in contract law between joint obligations and joint and several obligations be abolished. All joint obligations should be construed to be joint and several. It recommends further that the release of one person from an obligation owed with others not ordinarily release the others. A Joint Obligations Act is proposed.
The Commission makes a number of recommendations on recovery by the estate of a deceased victim, and claims against a deceased wrongdoer. The report contains a draft Survival of Actions Act to amend unclear current legislation.
There is currently no obligation to consult a non-custodial parent upon application to change a child’s surname after divorce. The Change of Name Act should be amended so that parental consent is required, except where a court determines that dispensing with consent is in the best interest of the child.
The Commission believes that it is possible to strike a balance between protecting civil liberties and facilitating mental health care for those unable to recognize their own need for treatment. This report includes recommendations on commitment procedures, treatment, and review, and a proposed Act Respecting the Compulsory Commitment of Mentally Disordered Persons.
Under The Automobile Accident Insurance Act, lack of vehicle registration results in forfeiture of insurance coverage, which can bar tort recovery of loss in the case of an accident. The Commission believes that the Act should be amended so that loss of insurance benefits under the Act does not impair a claim against a negligent owner of another vehicle.
Ademption resulting from equitable conversion has had unjust consequences for beneficiaries. This report proposes amendment of The Wills Act to provide that when a testator enters into an agreement for sale of devised property, the beneficiary takes the interest of the testator under the agreement, mortgage or option agreement.
The Commission proposes reforms in the law of guardianship of a child’s person and estate. A draft of a Children’s Act is presented as an alternative to The Infants Act, which is now disjointed and in need of modernization and clarification. The draft incorporates proposals from this report and from the Commission’s 1981 Custody Report.
The traditional role of a coroner is to participate in criminal investigation. This role has expanded to include a duty to ensure examination of all violent and unexplained deaths in the province. The Commission proposes a new Coroners Act that will both accurately reflect and better facilitate the current role of coroners.
The Matrimonial Property Act, though a significant improvement over foregoing legislation, retains some flaws. The Commission recommends that the Act be amended to correct these flaws and to better reflect current ideas of marriage as a partnership.
The Lieutenant Governor’s Warrant allows indeterminate detention of mentally ill offenders and those found unfit to stand trial or not responsible by reason of insanity. The Commission undertakes a study of the provincial advisory board that reviews the cases of those detained under the warrant. It proposes The Lieutenant Governor’s Advisory Review Board Act to provide direction on the review process.
Guest passenger legislation was adopted all over North America in the 1920s and 30s to limit the liability of drivers for injuries suffered by passengers in their vehicles. Courts have whittled down liability limits, and the trend is now to remove these limits in statute. The Commission recommends that Saskatchewan amend its guest passenger laws to remove the liability limit.
The Saskatchewan Mentally Disordered Persons Act fails to meet the needs of mentally ill persons requiring personal guardians. The Commission proposes a Personal Guardianship Act to provide a clear and efficient legal framework for legal guardianship. The Commission also recommends the creation of an Office of the Public Guardian, as well as an ombudsman to regulate the system.
Under the common law, wives had no legal status as persons apart from their husbands. While this has been reformed by statute, the Saskatchewan Married Persons’ Property Act does not create legal equality between married men and women. This report reviews some discriminatory sections and recommends that an Equality of Status of Married Persons Act be enacted to simplify and modernize the law.
This Report recommends that the maintenance enforcement system be reformed to provide a regular flow of income without trauma or delay. Defaulting spouses and parents must be encouraged and compelled to meet their obligations. A draft Act to Facilitate the Enforcement of Maintenance Orders is included.
Between August 1979 and May 1980, the Law Reform Commission published three sets of tentative proposals concerning child custody and child civil rights. The 20 specific final recommendations in this report (mostly pertaining to the Infants Act) would implement the Commission’s earlier findings and recommendations. This report also includes a comment on the proposed Children’s Rights Act.
The Law Reform Commission considers issues surrounding the decision to commit a mentally ill person, appropriate criteria to be used in making this decision, and the required level of review or oversight. The Saskatchewan Mental Health Act is reviewed, along with a draft Compulsory Mental Health Care Act, the Commission’s recommended replacement legislation.
Artificial insemination is an area of law with little regulation and many important social, legal and medical consequences. The Law Reform Commission recommends that legislation be adopted that protects the basic rights of all those involved. The Commission proposes a draft Human Artificial Insemination Act.
The application of the Limitation of Actions Act creates specific problems in real property transactions subject to the Land Titles Act. The Commission recommends repealing the sections of the Limitation of Actions Act that deal with agreements for sale. Amendments to the Land Titles Act would also help clarify matters.
There are still examples of discrimination on the basis of marital status within Saskatchewan statutes. Married women are presumed dependent on their husbands in many provincial laws enacted in the early 1900s. Reform is needed to abolish this assumption.
These proposals are meant to act as a supplement to The Personal Property Security Act that was enacted in 1980. They are designed to enhance consumer protection in credit transactions.
Generally, provincial offences are found to be strict liability offences, which do not have a fault requirement. However, defences of due diligence or reasonable mistake of fact are available. The Commission recommends that some reform be undertaken to protect those inadvertently caught by offence provisions not requiring fault.
A legal framework on personal guardianship is needed to protect elderly and mentally disabled people in need of care. The Commission recommends that this area of law be reformed so that personal guardians can be appointed for people who cannot take care of themselves, whether or not property management is involved.
Medical technology can artificially extend some life functions, making it unclear when death occurs. The definition of “death” ought not to be left to the courts. Nor should the medical profession bear the responsibility of reaching a philosophical conclusion. The Commission proposes legislation defining “death” as the total and irreversible cessation of brain function.
The Commission recommends the enactment of The Occupiers’ Liability Act as set out in this report. The law as it stands currently is unnecessarily complex. Enacting this proposal can mitigate the confusion in the law.
This Report suggests that consumer credit is on the rise in the province and will continue to grow. As a result, the complex law surrounding consumer credit should be reformed. Creditor education is key to reforming the laws to ensure full disclosure and fair treatment.
The enactment of an Occupiers’ Liability Act is proposed in this Report. The law as it stands is unnecessarily complex. Enacting this proposal would mitigate the confusion in the law.
Significant advances in medical technology, which now allows heart and lung function to be maintained artificially, create a need for a legal definition of “death.” This definition will have important implications for the permissibility of removing donated organs after brain death. The Commission proposes legislation defining “death” as the total and irreversible cessation of brain function.
This report looks at support services available in family law courts and how innovative approaches can be integrated into the court system. Procedural mechanisms must be implemented to give legal reforms proper effect.
In response to public reaction to its earlier proposal fixing the age of capacity to consent to medical treatment at 16, the Commission now recommends judicial determination of the capacity of a minor. It also recommends an extension of the present law to allow ex parte orders permitting a mature minor to consent to medical treatment without parental notification.
The Law Reform Commission recommends that Saskatchewan’s jury-selection process be reformed to ensure that it draws from as wide a pool as possible and excludes as few as possible. The Saskatchewan Hospital Service Plan is an ideal source of contact information for eligible jurors. The Commission also recommends revamping the compensation scheme for juries.
Saskatchewan uses a flexible model that recognizes the civil rights of children and expands these rights based on age and circumstance. The Law Reform Commission does not recommend changing Saskatchewan’s philosophy in this area, although it should be codified with more clarity, and amendments should be made to The Infants Act.
The Law Reform Commission recommends that Saskatchewan abolish interspousal tort immunity and extend this abolition to The Insurance Act, where it serves only to help insurance companies avoid payments. This final report goes beyond the previous proposal on the topic in recommending repeal of an additional subsection of The Insurance Act.
Saskatchewan has adopted a number of changes to The Infants Act to modernize and codify best practices for the courts in adjudicating custody disputes. The Commission recommends that the legislature make explicit the rationale for these amendments to make them more effective. The Commission outlines specific recommendations for improvement and guiding principles for further reform.
In this report, the Law Reform Commission examines juror qualifications and relief, the current method of selecting jurors, payments to jurors and the enforcement of attendance, as well as the use of juries in civil trials. The Commission makes recommendations for reform in each of these areas.
Interspousal tort immunity is based on the archaic fiction of the unity of husband and wife, and is not supported by any of the arguments offered in its defence. If the abolition of interspousal tort immunity is to have any significant practical consequences, it must be accompanied by repeal of bars to damage recovery in intrafamily torts.
The Law Reform Commission reviews the steps taken in other jurisdictions to deal with issues of obtaining valid consent for medical procedures from minors. It recommends that a Consent of Minors to Health Care Act be passed, setting an age of consent at 16 years. Procedures to obtain consent for those under 16 years of age are included.
The Law Reform Commission submits draft legislation for a Personal Property Security Act. The proposed Act follows work in other Canadian jurisdictions and the United States in harmonizing personal property security agreements. Where possible, the Commission attempts to modify and adopt, rather than replace, existing law.
Many provincial offences carry penalties similar to those prescribed for violations of the Criminal Code. These sanctions are imposed with regularity, though the offences often do not appear to merit them. The Commission suggests reforms to the provincial sentencing options to include diversion, conditional discharge, and suspended sentence-type penalties.
The Law Reform Commission proposes legislation that would better control conflict of interest for members of the Saskatchewan Legislative Assembly. The legislation should apply to legislators, government officials, political appointees, and candidates. The applicable rules should reflect differences in potential conflicts faced by each group.
The division of matrimonial property is inadequate in Saskatchewan law. This report contains recommendations concerning the exercise of judicial discretion and co-ownership of the matrimonial home.
This report follows the Commission’s tentative proposals on personal property security law. Draft legislation is included to introduce the technical proposals. Background information on basic characteristics of the proposed Act is also included.
In this Background Paper, the Law Reform Commission examines the current law on children’s maintenance orders. The law is unclear, fragmented, and riddled with exceptions. The Commission identifies problems and some potential solutions before publication of tentative proposals on the issue.
Current maintenance law in Saskatchewan fails to ensure that those who are entitled to maintenance actually receive it. The law is based on the archaic idea that a husband is the principle wage earner and the wife is his dependent. The Commission looks at the inadequacies of the current law and at some suggested solutions. A second paper will be published containing tentative proposals
A personal property security transaction occurs when a person borrows money or purchases something on credit and gives the lender or seller security for the debt. The law in this area has developed chaotically. As a result, the Commission has decided to undertake a study of personal property law in the province with a final report to be submitted to the Attorney General.
This Report makes proposals that are predicated on the idea that marriage is a partnership of equals in which contributions are made by both the husband and wife. Contributions will vary between cases and over time. Consequently, the distribution of property requires a combination of certainty and flexibility.
This Working Paper outlines a variety of approaches to remedying the unfairness in matrimonial property law. The present law of matrimonial property is unfair as it does not allow recognition of the wife’s role. In response to this out-dated and complex law, the Commission outlines a variety of approaches that have been recommended or implemented in other jurisdictions. Approaches can be classified as discretionary, fixed, composite or patch-up.
Over the last decade, there has been an increased awareness of the rights of women. The law does not adequately address these issues. This minor paper is the first of three on the division of matrimonial property. The Commission discusses current law in Saskatchewan and its problems.