Vol. 37, No. 1. | SUMMER 2018 The Advocates’ Journal Vol. 37, No. 1; Summer 2018
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Diversity and inclusion in the courtroom: A necessity, From the Editor 3 27 not a luxury Erin C. Cowling
Is your case ripe for summary judgment? The “Path”: A case of pursuing How to get your motion past the gatekeeper dreams, conquering goals 7 30 and cultivating resilience Rafal Szymanski and Megan Hodges Instrumental in conducting change. Marie T. Clemens
Why we fall in love with our Managing workplace harassment cases – and how that in the wake of #MeToo 11 33 love blinds us Advocacy—it’s what leaders do. Our dialogue over the last year with the Ministry Miriam Anbar Paul Fruitman of Community and Social Services in Ontario helped to orchestrate progressive change in the way the Ontario Disability Support Program (ODSP) treats personal injury settlements. Contact us to find out more. Laskin’s legacy The good old days Robert A. Centa 13 37 Earl A. Cherniak, Q.C., LSM, ASM
The Journal conversation: Ronald Slaght Witty judgments Stephen Grant, LSM, ASM 20 39 Orestes Pasparakis
CANADA & USA 1.800.265.8381 | EMAIL [email protected] | www.mckellar.com
THE ADVOCATES’ JOURNAL | SUMMER 2018 | 1 FROM THE EDITOR Bordeaux, baseball and civil justice THE ADVOCATES’ SOCIETY
PAST PRESIDENTS I read the news today, oh, boy … “A Day in the Life,” Sgt. Pepper’s Lonely Hearts Club Band (1967), The Beatles 1965-66 J. J. Robinette, Q.C. 1992-93 The Hon. Justice Eleanore A. Cronk 1966-67 The Hon. R. F. Reid 1993-94 Roger Oatley 1967-68 The Hon. Justice R. S. Montgomery 1994-95 The Hon. Justice Mary Anne Sanderson 1968-69 The Hon. Justice P. Cory 1995-96 C. Clifford Lax, Q.C., LSM 1969-71 W. B. Williston, Q.C. 1996-97 Margaret A. Ross, LSM or more than a hundred years, Bordeaux (clar- – born decades ago in the labour law context – and its 1971-72 The Hon. Justice W. D. Griffiths 1997-98 The Hon. Justice Harriet Sachs Vol. 37, 1. No. 2018 | SUMMER 1972-73 C. F. McKeon, Q.C. 1998-99 Michael F. Head et, as the British call it) was the connoisseur’s adjunct, arbitration (sometimes, med/arb). While un- 1973-74 A. E. M. Maloney, Q.C. 1999-00 James A. Hodgson choice of wine. Not only was it long-lived, but it doubtedly attractive as an alternative dispute resolution 1974-76 P. B. C. Pepper, Q.C. , LSM 2000-01 Ronald G. Slaght, Q.C., LSM Ftended to rise in value over time. The Brits would say, process – if nothing else, parties are forced to listen to 1976-77 H. G. Chappell, Q.C. 2001-02 J. Bruce Carr-Harris, LSM 1977-78 W. S. Wigle, Q.C. 2002-03 Philippa G. Samworth “Buy three cases, sell two and drink the third for free.” and hear each other – the default to mediation has ad- Summer 2018; Vol. 37, No. 1. 1978-79 The Hon. Justice J. J. Fitzpatrick 2003-04 Jeffrey S. Leon, LSM 216077_Stephen-8 But 216077_Stephen-9the Bordelais failed to216077_Stephen-10 read the market and priced verse, often unintended, consequences. 1979-80 E. A. Cherniak, Q.C., LSM 2004-05 Benjamin Zarnett, LSM themselves out of reach for most consumers; hence, Lawyers of my generation negotiated cases. If the ne- Editor 1980-81 The Hon. Justice J. W. O’Brien 2005-06 Linda Rothstein, LSM Stephen Grant, Stephen Grant, LSM | [email protected] 1981-82 T. H. Rachlin, Q.C. 2006-07 Michael E. Barrack LSM, ASM the staggering rise of Yellow Tail and all the other gotiations cratered, they tried the case. This is what law- 1982-83 K. E. Howie, Q.C. 2007-08 Michael Eizenga cutely labelled and accessibly priced wine available yers knew and judges were appointed to do. Pre-trials Managing Editor 1983-84 J. P. Nelligan, Q.C., LSM 2008-09 Peter J. E. Cronyn today. Bordeaux still clings to the rigid 1855 classifica- to narrow or settle some of the issues were fine, if a little Aaron Dantowitz | [email protected] 1984-85 Peter Webb, Q.C., LSM 2009-10 Sandra A. Forbes 1985-86 Bert Raphael, Q.C., LSM 2010-11 Marie T. Henein tion of growths: only one addition to the first growth light on substance, as many judges didn’t really make Production Editor 1986-87 A. D. Houston, Q.C. 2011-12 Mark D. Lerner category since then, Mouton-Rothschild (quelle sur- the effort. That lawyers knew or ought to know how Sonia Holiad | [email protected] 1987-88 The Hon. Justice J. R. R. Jennings 2012-13 Peter H. Griffin prise). And the prices remain relatively stratospher- to settle cases themselves was the theory. The evolu- 1988-89 R. A. Stradiotto, Q.C., LSM 2013-14 Alan H. Mark 1989-90 The Hon. Justice Peter G. Jarvis 2014-15 Peter J. Lukasiewicz ic while consumers look elsewhere. tion of the law remained dynamic, not stagnant. While The Advocates’ Journal: cite as Adv J 1990-91 John F. Evans, Q.C., LSM 2015-16 Martha A. McCarthy, LSM According to wine-searcher.com, the average price of this ongoing diminishment of jurisprudence is itself 1991-92 Terrence J. O’Sullivan, LSM 2016-17 Bradley E. Berg a 750 ml bottle of 2015 Château Lafite Rothschild is $921. a problem, the default to mediation is creating a class of Editorial Correspondence Stephen Grant, LSM, Grant Crawford Watson LLP A bottle of Yellow Tail cabernet is $10.95 at the LCBO. (If counsel who lack trial skills, which are necessary even 165 Avenue Road, Suite 201 you are interested, the marsupial on the bottle is a yel- in arbitration proceedings. (Interestingly, there appears OFFICERS Toronto, ON, M5R 3S4 216077_Stephen-11 low-footed216077_Stephen-12 rock wallaby, 216077_Stephen-13a relative of the kangaroo.) to be a neurological aspect to mediation. See Advocate [email protected] | 416-238-7776 Closer to home but along similar lines, before the Daily.com, “Neuroscience Knowledge Boosts Settlement Advertising and Subscription Correspondence President: Sonia Bjorkquist embarrassing 1994–95 baseball strike, the club owners Chances”; online:
2 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 3 CONTRIBUTORS
Miriam Anbar Miriam Anbar is an associate at Rodney Employment Law in Thornhill, Ontario. She handles a broad spectrum of workplace matters including wrongful dismissals, discrimination and harassment, and fascinating workplace investigations. In 2004, she participated in (and won) a reality TV show while studying abroad. Guide for Robert A. Centa Robert A. Centa is the managing partner of Paliare Roland Rosenberg Rothstein LLP. He clerked for Justice John I. Laskin in 1999-2000, and tweets too often about law, jazz and basketball at @RobCenta. Lawyers THE ADVOCATES’ JOURNAL SUBMISSION GUIDELINES Working Earl A. Cherniak, Q.C., ASM, LSM Earl A. Cherniak, Q.C., ASM, LSM, is a partner at Lerners LLP in Toronto and London, and practised in the “good old days.” He still bears the scars and bruises (and the benefits of the lessons learned) from appearing in the ONCA • Content: We value articles about advocacy in the 1960s. and advocates that are topical and crackle with with currency.
Marie T. Clemens • File format: We accept submissions only in Marie is a senior associate at Moodie Mair Walker LLP, practising in civil litigation with a focus on professional Indigenous Microsoft Word format. errors and omissions, product liability and insurance defence litigation. She speaks to legal professionals about self- awareness and mindfulness practices. Stay tuned for her launch of The Power of Presence for Professionals. • Length: Although we appreciate concision, there is no maximum or minimum length for Peoples Journal articles. The majority of our articles Erin C. Cowling are between 1,500 and 3,500 words (excluding Erin C. Cowling is a former “Big Law” litigator turned freelance litigator and founder of Flex Legal Network Inc., notes), but we will consider articles outside The Advocates' Society, in a network of freelance lawyers. Erin spends half her time practising as a freelance lawyer and the other half this range. partnership with the Indigenous Bar explaining to people what a freelance lawyer is. • Notes: We prefer articles without notes, but Association and the Law Society of whether to include notes is at the author’s Ontario, has developed the Guide Paul Fruitman discretion. (All direct quotations should be for Lawyers Working with Indigenous Paul Fruitman is a partner at Lax O’Sullivan Lisus Gottlieb LLP. His focus is on commercial litigation and other legal referenced, however, whether in the body of curiosities. If loving your cases is wrong, he doesn’t want to be right. the article or in notes.) If you include notes Peoples. The Guide is intended to with your submission, we prefer endnotes serve as a resource for lawyers to to footnotes. When reviewing notes after learn about important historical and completing the final draft, double-check cultural elements that provide Megan Hodges that cross-references (“ibid.,” “supra”) haven’t Megan Hodges is an associate at Blaney McMurtry LLP practising commercial litigation, and a recent graduate of changed because of late additions or deletions context for the professional McGill law. When she’s not waxing lyrical about summary judgment motions, Megan can be found exploring the of text. relationships among great outdoors with her pup. Indigenous persons, their • Citation format: We do not insist on a particular citation style. If you include lawyers and other participants Orestes Pasparakis citations, we trust that you will ensure they in the justice system. Orestes is a lawyer with Norton Rose Fulbright in Toronto. are accurate, complete, current and internally consistent. In particular, check that citations to Internet sources refer to web addresses To read the Guide visit that are valid as of the date of the submission. www.advocates.ca Ronald Slaght If a cited web address is no longer valid, we With mixed feelings and considerable trepidation, but embracing the residual hope that the musings of someone expect you to make note of this in the citation. whose first trial was in 1972 might still have some interest, Ronald agreed to answer some of the Editor’s questions, as you will see in the Journal Conversation. Thank you,
Stephen Grant, Editor Rafal Szymanski Aaron Dantowitz, Managing Editor Rafal Szymanski is a partner at Blaney McMurtry LLP. When he’s not defending professional negligence or personal Sonia Holiad, Production Editor injury claims (or playing squash), Rafal goes to the park with his four-year-old son to test how long they can fly a kite without getting it tangled in a tree.
4 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 5 CIVIL ADVOCACY IT IS ALL ABOUT Is your case ripe for summary judgment? TRUST WELL PLACED. How to get your motion past Every time you refer a client to our law firm, the gatekeeper you are putting your reputation on the line. Rafal Szymanski and Megan Hodges
cheduling a summary judgment motion is no longer the routine exercise it once was. More and more, judges are in- voking their “gatekeeper” function and stopping such mo- Stions in their tracks by declining to schedule them altogether. Why are these motions being turned away? In this article, we outline the basis of the gatekeeper’s role and look at some of the common reasons summary judgment motions are not being scheduled. Context is everything. The role of the gatekeeper was built into the test for summary judgment as refined by the Supreme Court of Canada in Hryniak v. Mauldin (“Hryniak”): There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits of a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.1 [Emphasis added] RICHARD HALPERN | WENDY MOORE MANDEL | SLOAN MANDEL Judges are focusing on this third factor at the scheduling stage to vet out motions that, on their face, are not in the interests of justice. In Toronto, early court involvement in the motion is unavoid- able. All counsel must attend Civil Practice Court to convince Since 1936 Thomson, Rogers has built a strong, trusting, and collegial the presiding judge that the motion is appropriate in the cir- relationship with hundreds of lawyers across the province. cumstances. If the motion is scheduled, timetables are imposed to ensure the matter proceeds in an efficient manner. Elsewhere, With a group of 30 civil litigators and a support staff of over 100 people, the onus rests with the parties to seek the court’s assistance. we have the resources to achieve the best possible result for your client. This can be done with a motion for directions under Rule 1.04 or 1.05 of the Rules of Civil Procedure or via case management We welcome the chance to speak or meet with you about any potential referral, under Rule 37.15. Either way, counsel may ask the court to stay and look forward to creating a solid relationship with you that will benefit the clients we serve. or dismiss a motion as premature or improper, or to seek assis- tance in keeping lengthy and complex motions moving forward. The Supreme Court of Canada encouraged such early judicial rinciple 1: Present a severable issue intervention in Hryniak.2 Counsel should tailor their motion to present one or two What factors do judges consider when assessing whether a sum- severable issues that will resolve all or part of the action. mary judgment motion can proceed? The overarching goals of effi- PAs Justice Myers noted, “Summary judgment lies best when the YOUR ADVANTAGE, ciency, affordability and proportionality certainly drive the analy- moving party is able to identify a discrete, neat, gating issue that in and out of the courtroom. 3 sis, but how are these goals achieved at the scheduling stage? might be resolved on a motion ...” Attending Civil Practice Court or a case conference is not merely One example of a severable issue is a limitations defence. In Van- an exercise in judicial rubberstamping. To ensure that a motion gets dermarel Investment Corporation v. Silver & Goren (“Vandermarel”), a de- past the gatekeeper, counsel would be wise to consider and be pre- fendant was permitted to proceed with a summary judgment motion pared to discuss (1) whether the motion presents a severable issue on a missed limitation precisely because the motion presented a sev- to be determined; (2) whether the motion disposes of all or part of erable issue that potentially resolved the litigation with respect to the the action; (3) whether the evidence presents minimal factual con- moving party.4 The fact that a trial was looming did not pose a barrier flict; (4) whether the motion raises novel or evolving legal issues; to the motion being scheduled. Other examples of a severable issue and (5) the timing of the motion. Where these factors do not align include simple debt collections, enforcement of loans or the absence of with the principles of efficiency, affordability and proportionality, a duty of care owed by a defendant. There are many others. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com the motion may not get through the gates. The focus here is not the complexity of a case, but rather the THE ADVOCATES’ JOURNAL | SUMMER 2018 | 7 presence (or absence) of a discrete issue for therefore heed the guidance of the Court was the issue in Baywood Homes Partnership determined that the motion was not in the interests of justice for the entire liability claim against the moving party. Allowing the the court to decide. Motions that advance of Appeal when contemplating partial sum- v. Haditaghi, which dealt with a summary several reasons, one of which was the “inherent difficulty” with con- motion to proceed in that case accorded with the principles of pro- multiple overlapping issues with complex mary judgment: “A motion for partial sum- judgment motion arising from a complex flicting expert evidence presented in this case.16 portionality, timeliness and affordability: facts are more likely to become dispropor- mary judgment should be considered to be series of transactions relating to a prop- While the trial time may not be significantly reduced, a success- tionate to the overall litigation and denied a rare procedure that is reserved for an is- erty. The plaintiff was seeking to enforce rinciple 4: The law at issue should be settled ful summary judgment motion would narrow the legal issues to be at the scheduling stage. In those cases, sue or issues that may be readily bifurcat- a promissory note and relied on a release There is mixed jurisprudence on whether summary judg- decided by the trial judge, and would also result in [the defendant] courts prefer a complete trial narrative that ed from those in the main action and that prepared during the transactions as a bar ment motions are appropriate for novel or evolving issues reducing or avoiding significant expense associated with attending is generally not available on a motion.5 may be dealt with expeditiously and in a to the defendant’s counterclaim. Compet- Pof law. Where possible, counsel should frame their motion in the a trial currently scheduled for seven days.23 cost effective manner.”9 ing versions of events were presented on context of settled law to avoid the issue altogether. The opposite conclusions between Griva and Vandermarel can rinciple 2: Avoid motions for par- the motion, including evidence that some In Marrocco, Justice Mew declined to grant the motion for summary be explained by the nature of the motions being advanced. Griva tial summary judgment rinciple 3: Present a motion with min- of the documents were fabricated. Even judgment partially because the liability of 911 dispatchers in Ontario sought partial summary judgment based on evidence that would Judges must consider summary imal factual conflict and complexity after a mini-trial, the motion judge deter- has not yet been thoroughly analyzed. The jurisprudence on the subject have been presented again six months later at trial on the remain- Pjudgment motions in the context of the liti- Factual conflict reduces the likeli- mined that a full trial was necessary to is sparse and, for the most part, borrowed from other jurisdictions.17 ing issues. The Vandermarel motion was far more contained. It gation as a whole when assessing the goals Phood that a judge will be able to make the decide whether the promissory notes were Likewise, the motion judge in Blanchard v. Parrott refused to sought full summary judgment on a severable issue that would of timeliness, affordability and proportion- necessary findings of fact in the absence enforceable. Nevertheless, the release was grant summary judgment in part because the motion involved a avoid trial altogether for the moving defendant. ality. Partial summary judgment motions of a full trial narrative. It comes in various found to be authentic and summary judg- novel question involving the duty of care in volunteer-organized often do not serve these goals because, by forms: (1) a pure disagreement on facts, ment was granted dismissing the counter- events where alcohol is served. There, the plaintiff was assaulted onclusion definition, the action continues after the (2) a challenge to witness credibility or (3) claim on the basis of the release.13 by the defendant after a community dance. It was alleged that the Summary judgment motions tread a narrow path in fur- motion is concluded. Courts therefore view competing experts. These types of disputes On appeal, the Court of Appeal over- defendant was overserved by volunteers. The defendant third par- thering access to justice. On the one hand, successful mo- motions for partial summary judgment as should be kept to a minimum and present- turned the partial summary judgment find- tied the volunteer organizers of the dance. In turn, the third parties Ctions can facilitate expeditious resolution, save thousands of dol- inefficient, as unduly expensive, and as ed in such a way that they can be resolved ing on the basis considered above in Butera. brought a summary judgment motion, arguing that they were not lars and free up scarce judicial resources. On the other hand, failed increasing the prospect of duplicative pro- by the motion judge using the paper record In the course of its decision, the court com- responsible for the sale or distribution of alcohol at the event. The motions add delays, increase legal fees and overburden the court ceedings or inconsistent findings of fact. or the judicial toolbox available to make mented that assessing the credibility and motion, however, was dismissed in part because it “potentially rais- system. Gatekeeping judges bear the task of assessing whether a Such motions are rarely in the interests of findings of fact. The goal should be to make reliability of a witness is “especially diffi- es a novel question of law concerning the duty of care in situations motion falls into the first or second category. Counsel should there- justice.6 A gatekeeping judge is therefore the judge feel “confident that she can fairly cult” when reading affidavits drafted by of volunteer organized events at which alcohol is served. This is an fore attend Civil Practice Court or a case conference well prepared unlikely to allow a partial summary judg- resolve the dispute.”10 By contrast, where counsel which “obscure the affiant’s au- issue that has not been considered by the courts and it would be to discuss how their motion furthers the interests of justice, making ment motion to proceed, unless counsel can there is concern over witness credibility thentic voice.”14 The court warned that a inappropriate to determine it on a motion for summary judgment.”18 reference to the five principles outlined above. demonstrate that the issue is readily sever- or there are feuding experts, the case may case may not be permitted to proceed to Generally, courts prefer to determine novel issues on the basis of a able and its determination will facilitate the be better off continuing to trial where the a summary judgment motion where there complete record, which renders such cases more suitable for trial. efficient resolution of the action. judge has the benefit of the full trial record. is a possibility that substantive unfairness However, in Wilk v. Arbour, Justice Faieta rejected the argument The Court of Appeal for Ontario in Butera will enter the process by way of decontex- that a summary judgment motion was not appropriate for a nov- Notes v. Chown, Cairns LLP (“Butera”) recently Factual conflict and complexity tualized affidavits or transcript evidence. el question of law.19 This dog bite case involved a dispute over 1. Hryniak v Mauldin, 2014 SCC 7 at para 49 [Hryniak]. confirmed that partial summary judgments Judges prefer to resolve complex factual issues the definition of “possession” under the Dog Owners’ Liability Act. 2. Ibid at paras 69–73. should be used sparingly because they are in the context of a full trial. They are not read- Competing experts Justice Faieta pointed out that Rule 20.04(4) contemplates that 3. 2287913 Ontario Inc. v Blue Falls Manufacturing Ltd., 2015 ONSC 7982 often not in the interests of justice.7 First, ily amenable to summary judgment. For ex- Summary judgment will rarely be appropri- questions of law may be raised on summary judgment and that at para 10 [2287923 Ontario Inc.]. the motion is likely to delay the resolution ample, Sims v. Zaitlen is a medical malpractice ate in cases with competing expert opinions, the rules are to be interpreted broadly, favouring proportionali- 4. Vandermarel Investment Corporation v Silver & Goren, 2015 ONSC of the action, which will proceed regard- case in which a summary judgment motion which will almost always require certain ty and the affordable, timely and just adjudication of claims. In that 2773 at paras 49 and 50 [Vandermarel]. less of how the motion is decided. Delays was not scheduled because of the number of findings of fact on which those opinions case, where the facts were not in dispute, the motion judge was in 5. 2287913 Ontario Inc., supra note 3 at para 11. may be further exacerbated in the event of complex, conflicting factual issues.11 There, rely. A trial is often the better forum to ad- just as good a position to determine the question as a trial judge. It 6. Hryniak, supra note 1 at para 60. appeals. Second, the motion may be very the plaintiff alleged that a delayed diagnosis dress conflicting expert evidence, where the was therefore in the interests of justice for the motion to proceed.20 7. Butera v Chown, Cairns LLP, 2017 ONCA 783. expensive and is likely to compound the exacerbated her medical condition. The defen- trial judge has the benefit of a full record 8. Ibid at paras 30–33. expenses the parties will incur as the ac- dant doctors sought summary judgment on in which to situate the expert opinion and rinciple 5: The motion should not be made too close to trial 9. Ibid at para 34. tion moves through the litigation process the issues of causation and whether they met assess the underlying findings of fact. Don’t wait until it’s too late. The proximity of a summary 10. Hryniak, supra note 1 at para 57. after the motion is decided. It may be less the applicable standard of care. In declining In Marrocco v. John Doe (“Marrocco”), Jus- judgment motion to trial can be one of the reasons a gate- 11. Sims v Zaitlen, 2017 ONSC 2501. expensive simply to proceed to trial on to schedule the motion, the case management tice Mew heard a summary judgment mo- Pkeeping judge refuses to schedule the motion. 12. Ibid at para 49. all the issues than have one or two issues judge held that the motion would not serve the tion brought by a third party against a In Griva v. Griva (“Griva”), Justice Firestone rejected a plaintiff’s 13. Baywood Homes Partnership v Haditaghi, 2013 ONSC 2145. determined partway through the action. principles of proportionality, timeliness and defendant.15 At issue was whether a 911 request to schedule a partial summary judgment motion in a motor 14. Baywood Homes Partnership v Haditaghi, 2014 ONCA 450 at para 44. Third, the Court of Appeal commented affordability. The issues were complex and, dispatcher adequately prioritized a call for vehicle accident claim six months before trial.21 The plaintiff sought 15. Marrocco v John Doe, 2017 ONSC 654. on the scarce judicial resources available to reach a decision, the motion judge would assistance in response to a roadside motor summary determination of the issue of contributory negligence 16. Ibid at para 60. in today’s court system and warned that have to take into account competing expert vehicle accident. A second and far more and general damages, leaving the remaining heads of damages for 17. Ibid at para 64. using court resources on motions which opinions, uncertainty over the effectiveness severe accident occurred while the parties trial. The motion was rejected for several reasons. On the question 18. Blanchard v Parrott, 2015 ONSC 6846 at para 11. will not resolve the dispute is wasteful and of the medication in question, the impact of waited for a response to the first call. The of timing, Justice Firestone determined that it would not serve the 19. Wilk v Arbour, 2016 ONSC 1179; reversed on other grounds 2017 thus problematic. Lastly, partial summary the alleged delayed diagnosis and the clinical third party sought summary judgment in principles of proportionality, timeliness and affordability to sched- ONCA 21. judgment raises the spectre of inconsistent evidence.12 It was preferable to resolve these the third-party claim on the basis that the ule the motion with the trial looming and likelihood that the mo- 20. Ibid at paras 9–12. findings between the motion and the trial.8 issues in the context of a trial. Doing so on a dispatcher met the requisite standard of tion judge would reserve her decision.22 21. Griva v Griva, 2016 ONSC 1820. Civil Practice Court judges know that motion was not in the interests of justice. care. Both the third party and the defendant By contrast, in Vandermarel Investment Corp., the fact that the mo- 22. Ibid at para 20. civil litigation is an expensive undertak- presented conflicting expert reports on the tion was six months before trial was not fatal to the motion. There, 23. Vandermarel, supra note 4 at para 51. ing and will generally decline to schedule Witness credibility applicable standard. Both parties also chal- the moving defendant argued a limitations defence that was in- partial summary judgment motions for the Credibility contests between witnesses are lenged the qualifications, objectiveness and dependent of the merits of the action. The issue on the motion was reasons outlined above. Counsel should also problematic for motion judges. This reliability of the other’s expert. Justice Mew not “interwoven to the facts” of the case and could potentially resolve
8 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 9 full_page_tas_ad_Final.pdf 1 2017-10-17 1:41 PM
FEATURE
Managing workplace harassment in the wake of #MeToo
Arbitration Place Ottawa, Miriam Anbar World Exchange Plaza The author is grateful for the research and writing assistance of Michelle Kaminski, human resources coordinator.
he harassment and sexual assault scandals that have Ottawa dominated the headlines in 2017 and 2018 have sparked a debate on what is considered inappropriate workplace Tbehaviour. Powered by the celebrity-associated infamy of Harvey Weinstein, Kevin Spacey, Matt Lauer and numerous others, the conversation – and the associated repercussions – surrounding this inappropriate conduct continues to intensify. We have felt these reverberations in our own Canadian backyard Toronto with public allegations made against Sportsnet analyst Gregg Zaun, Soulpepper Theatre founder Albert Schultz, former Ontario Progres- C sive Conservative party president Rick Dykstra and the Canadian M Arbitration Place Toronto, pop-rock band Hedley. Although it is the salacious allegations them-
Y selves making the headlines, we would be remiss to ignore what must Bay Adelaide Centre West happen in response to these allegations. In the rush to address harass- CM ment, leaders of organizations must understand what steps need to be MY taken to ensure that due process is not forgotten. CY It is critical for employees and employers alike to understand
CMY what exactly constitutes inappropriate workplace behaviour and how to manage such situations when they arise. For employers K specifically, a delicate balance must be achieved. While taking swift, decisive action is key, it is equally important to provide TWO CITIES. ONE PLACE. due process and allow the accused an opportunity to respond to the claims, even in the worst cases.
hat is #MeToo? Although the #MeToo hashtag was originally created At ASAP Reporting, we do it all. Out-of-court examinations, arbitrations, certified court transcripts: 10 years ago by activist Tarana Burke, it recently went Wviral when actress and producer Alyssa Milano used the hashtag to these are just the start. ASAP Reporting operates out of the facilities of our sister company, Arbitration support her friend’s allegations of sexual harassment against Har- vey Weinstein. The conversation surrounding sexual harassment interested in ensuring that their workplaces are in good shape. Al- Place, which offers a roster of internationally-renowned arbitrators as well as state-of-the-art hearing has become more prevalent because individuals continue to post though fear is, at times, the driving factor, companies are realizing and examination rooms in both our Toronto and Ottawa locations. #MeToo on all social media platforms. The hashtag has encour- that ignoring harassment in the workplace is not an option. Re- aged survivors of sexual harassment and assault to highlight the gardless of their motivation, employers understand that they need importance of their stories while concurrently providing readers to be proactive and well-equipped to handle these types of claims. with a better understanding of the issue at hand. In Ontario, there are legislated requirements for employers to Have another location in mind? No problem. Our services span the globe and we can make act. In the last year alone, Bill 132 amended Ontario’s Occupational arrangements to reach even the most remote locations. hat about #MeToo in the workplace? Health and Safety Act (OHSA) by specifically addressing sexual vi- Harassment of any kind has no place in the workplace. olence and sexual harassment and specifically mandating employ- In Ontario, employers are legally obligated to ensure ers to conduct investigations into incidents of alleged workplace Wthe work environment is safe and free from any form of workplace harassment. The new legislation was a supplement to the earlier harassment and to be proactive when it comes to dealing with Bill 168, which introduced requirements for risk assessments and these issues. While the influence of social media has ignited the policies regarding workplace violence and harassment. public’s interest with the “#MeToo” movement, it is important that Employers should be mindful that non-compliance with this legisla- concrete action and occupational change occur. tion can come at a significant cost, including substantial fines for both In the wake of #MeToo, employers are on high alert and more individuals and corporations, and even potential imprisonment.
THE ADVOCATES’ JOURNAL | SUMMER 2018 | 11 TRIBUTE
orkplace harassment policies, programs and training from a company’s failure to act effectively in these situations. It is imperative that companies have proper policies and procedures in place to address workplace harass- orkplace investigations Wment and violence. It is equally critical that managers and leaders Given today’s complex corporate environment and the in the organization undergo effective training in this area. Having a myriad amounts of legislation that supervisors and written “Respect in the Workplace” policy and program in place, in Wmanagers are required to follow, many different situations may jus- Laskin’s legacy consultation with the company’s joint health and safety committee tify a workplace investigation. Companies must be mindful of their (if applicable), is essential for all workplaces. legal duty to take all reasonable precautions to protect their employ- These policies and programs should be reviewed annually – ees and ensure a safe, healthy and harassment-free environment. this is a legislated requirement if there are five or more employees Employers are legally obligated to investigate all complaints of vio- working in the organization. The policies and programs should lence, workplace harassment or workplace sexual harassment. provide employees with information about their rights as employ- As part of these investigations, it is essential that employers un- Robert A. Centa ees and educate them on the proper steps and precautions to take derstand the importance of due process and ensure that the des- if ever witnessing or becoming the subject of an incident of harass- ignated investigator obtains all sides of the story. A key aspect of ment or assault. the investigation is to maintain an accurate record of the state- Training is a critical part of this process. If a manager does not ments and documentation pertinent to the complaint. An effective he Honourable Justice John I. Laskin retired from the understand how to deal adequately with a harassment complaint, investigation will begin with interviewing the complainant to gain Court of Appeal for Ontario on January 26, 2018.1 For 24 it will likely affect the organization in a direct and negative way. a more comprehensive appreciation for the complaint that has been years, Justice Laskin was a leading light on the great- Claims of a “toxic” or “poisoned” work environment often stem lodged. Subsequently, all material witnesses should be interviewed Test appellate court in the country.2 He made significant doctrinal in a fair and objective manner. Lastly, the respondent should be contributions to every area of the law within the jurisdiction of the given an opportunity to respond to each of the claims and provide court. In addition, he did more than any other person in Canada his or her version of the events. to improve the quality of written advocacy and judgments. An ex- Although companies sometimes opt to handle workplace inves- traordinary and committed teacher, he gave generously of his time tigations internally, in many situations it makes sense to hire an to his clerks, to counsel and to his fellow judges. external professional workplace investigator. This initiative also Justice Laskin has an enormous heart and great compassion, helps to ensure that all the necessary steps are followed, and that which he manifested time and time again in his judgments. End of Term due process is achieved. He cared deeply about the personal circumstances of the liti- TM At the close of the investigation process, the organization or gants before him. He used the law to protect individuals’ right third-party investigator will need to make a determination based to fairness, and he wrote clearly and compellingly to do so. 2018 on the investigation findings and prepare a comprehensive investi- He expected the institutions of civil society to exemplify their gation report. After the investigation is complete, a summary of the best characteristics when affecting the rights and interests of Thursday, June 7, 2018 findings of the investigation must be communicated to the affected people. He called on insurance companies, universities and Reception: 5:00pm | Dinner: 6:30pm parties (alleged harasser and complainant). At this time, remedi- professional bodies, among others, to live up to the trust their al measures or recommendations stemming from the report may clients, students and members had reposed in them. In so do- need to be implemented. ing, he made the province a better place to live. We owe him Thank you to RICOH, our Premier an enormous debt. Dinner Sponsor, for helping us inal takeaways Justice Laskin’s humanity is, in my view, the single most import- th celebrate our 55 Anniversary at this In this #MeToo landscape, there is no question employees ant feature of his jurisprudence. No one anecdote can adequately annual, member-only signature event. and employers are more aware that harassment of any kind explain his warmth and generosity, but this one has always stood Fis not acceptable in the workplace. Employers are recognizing that out for me.3 it is a basic requirement to ensure their work environment is safe In December 2013, the Toronto Raptors traded away Rudy Gay and healthy for employees. This responsibility includes being pro- and appeared to have given up on the season. Improbably, the active in the face of any form of workplace harassment. team would catch fire and win 42 games after the trade, meet the Each incident should be dealt with cautiously and seriously and Brooklyn Nets in the playoffs, and give us the electricity of Jurassic must always be investigated. At times, these situations are not Park and Raptors’ President Masai Ujiri’s infamous cri de coeur.4 friends. It was remarkable, but not surprising, given John’s de- black and white, and in many instances employers must navigate a On January 19, 2014, however, that improvement was nowhere cency, curiosity and warmth. complex grey zone. Situations involving more serious conduct and to be seen. The Raptors allowed Nick Young to score 29 points in a Justice Laskin brought these characteristics to all his judicial du- more senior level or high-profile employees are often complicated 112–106 loss to the terrible Los Angeles Lakers. I was at that game ties, including his leadership of the court’s clerking program. From and more challenging for employers to get right. with my then six-year-old son, who appeared to be paying no at- recruitment and interviewing, to ensuring the clerks met all Law Addressing the issues head on and continuing the conversation tention to the play on the court. With 9:23 left to play, Young hit Society requirements, to putting on a bench-and-bar-and-clerks ed- around harassment can stop a situation from escalating and miti- (another) three-pointer, which put the Lakers up 87–86. Shockingly, ucation program, he was deeply involved in all aspects of the clerk- gate potential risk. In the face of a harassment complaint, it is in my son threw his hands up in the air and (correctly) exclaimed, ship program. He was extremely generous to his clerks, and it was everyone’s best interest for employers to plan properly, engage ef- “Swaggy P is killing us!” a joy to dig in and try (and most often fail) to help him improve his fectively and respond in a timely and effective manner. It’s always Justice Laskin was sitting on the other side of my son. John work. He showed a great interest in the professional and personal a good idea to seek expert advice from an employment lawyer or turned to him and said, “I know. Why don’t they cover him on lives of his clerks long after they left the court. Many of his former seasoned human resources professional. those plays?” Although they had never met before that day, the clerks are proud to call him a mentor and friend. At a minimum, companies must abide by their legislative re- two of them embarked on a wide-ranging conversation about Perhaps most importantly, Justice Laskin’s decency and gener- quirements and have policies and programs in place. More impor- the Raptors’ defence, the mascot and the relative merits of piz- ous nature permeated his decision-making and his writing. I se- tantly, organizations need to become part of the solution by stand- za and popcorn as snacks until the final buzzer. The conversa- lected only two examples from among his extensive body of work ing behind their policies and actively protecting their people. tion was warm and easy, and the two of them laughed like old to elaborate on this point.
12 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 13 oncern with a level playing field: Justices Finlayson and Brooke dismissed Committee was under a duty to act fairly, by cross-examination. Without the report it is probable that the majority decision.13 Howe v. ICAO Mr. Howe’s appeal. Justice Finlayson held which included the obligation to provide this right will be impaired. I confess to being somewhat less convinced by his reasons for Justice Laskin joined the Court that the application was premature because adequate disclosure and which, in this case, The purpose of ICAO discipline proceedings is to protect concluding that the application for judicial review was not pre- Cof Appeal for Ontario in March 1994. Only the decision on disclosure, even if incorrect, given the serious consequences at play (he the public and to preserve the public’s confidence in the ac- mature, but that is not the point. The current generation of ad- three months later, he found himself on a would not amount to a fatal jurisdictional pointed out that “for some professionals, a counting profession by maintaining high professional stan- ministrative law lawyers whom I respect have all embraced his panel with Justice John Brooke and Jus- defect warranting court intervention. Jus- finding of professional misconduct is more dards. The public, therefore, also has an interest in disclosure dissent as their standard operating procedure. That may be the tice George Finlayson. Justice Laskin was tice Finlayson also held that the Discipline serious than a criminal conviction”), required in order to ensure that justice is done.11 greatest legacy of Justice Laskin’s dissent in this case. very much the junior member of this panel. Committee’s decision that the report was production of the report unless it was pro- Justice Laskin, alone among the six judges who heard this case at the Justice Brooke was appointed to the High protected by a common law, Wigmore priv- tected by privilege.10 He pointed out that, in two levels, took seriously Mr. Howe’s interest in seeing the report. He rocedural fairness: Khan v. University of Ottawa Court of Justice in 1963 and to the Court of ilege was reasonable.7 Justice Finlayson a post-Stinchcombe era, administrative tribu- explained what Mr. Howe could do with the report and why fairness In 1997, Justice Laskin wrote another decision that reflected Appeal in early 1969, which was the year closed his reasons by stating, “I do not think nals should provide more robust disclosure required Mr. Howe to have it. Justice Laskin concluded the passage both his big heart and his compassion for a person facing John Laskin graduated from the Faculty of that we should encourage applications such to their members facing disciplinary charges. above with a clever pivot explaining why the public interest, which Pserious consequences.14 Law at the University of Toronto. Justice as these, which have the effect of fragment- Justice Laskin then turned to the question of the ICAO was to serve, also supported the disclosure of the report. Nalini Khan was a law student who failed her evidence examination Finlayson, appointed in 1984, had “devel- ing and protracting the proceedings, except privilege. He thoroughly and systematically Justice Laskin’s reasons articulate eloquently his concern that in December of her second year at the University of Ottawa. If she had oped a reputation for being aggressive, in- in the clearest of cases.”8 Justices Finlayson demolished the reasoning of the Discipline those entrusted with protecting the public interest treat fairly in- passed that exam, she would have passed her year. Given her overall dependent, blunt and honest.”5 Committee. Justice Laskin’s rea- dividuals facing potentially serious consequences. He wrestled grade point average, however, if she failed the evidence course, she On June 28 and 29, 1994, the sons regarding the fourth branch with the real-world implications of the decision of the Discipline would have to complete an additional semester of school before grad- panel heard an appeal from a of the Wigmore test are particular- Committee and the decision to deny Mr. Howe access to the re- uation. After she failed the course, Ms. Khan reviewed her examination decision of the Divisional Court ly strong and reveal his concern port. This case is a very early expression of Justice Laskin’s empa- booklets and discovered that her fourth examination booklet was miss- that concerned disclosure in a for the rights of the individual thy and concern for respecting the rights of individuals. ing. The instructor was adamant that Ms. Khan had handed in only discipline proceeding before facing prosecution: I think it is also important to note that Justice Laskin felt these three booklets. Ms. Khan appealed her grades to two university com- the Institute of Chartered Ac- Wigmore’s fourth criterion re- concerns so strongly that he took the step of writing a dissent. I mittees. Neither committee gave her an oral hearing, and both com- counts of Ontario (“ICAO”). quires the court to weigh the inju- don’t think it would have been easy for him to dissent from Jus- mittees dismissed her appeal. Her application for judicial review was The case was presented by emi- ry and the benefit resulting from tices Brooke and Finlayson so early in his time on the court. Over dismissed, but she obtained leave to appeal to the Court of Appeal. nent counsel including Edgar Sexton, Q.C., and Brooke were on safe doctrinal ground. disclosure. I think the case for disclosure the course of his career, Justice Laskin infrequently dissented Her appeal came before the very same panel that heard Mr. Howe’s for the appellant Mr. Howe, and Ian Binnie, Justice Laskin, however, dissented. He of Mr. Johnston’s report is overwhelming from his colleagues. This decision must have been a difficult but appeal: Justices Brooke, Finlayson and Laskin. This time, Justice Q.C., for the ICAO. The case emerged from held that the failure to produce the inves- and far outweighs any possible resulting principled one for him to make.12 It seems to me that he dissents Brooke joined Justice Laskin’s opinion and the student’s appeal the aftermath of the high-profile allegations tigator’s report breached the duty of proce- injury. Mr. Johnston’s report forms the only when he feels it really matters. Over his career, at least five was allowed. Justice Finlayson would have dismissed the appeal. that the financial statements of Standard dural fairness and that the court should set basis of the charges against the appellant. of his dissents resulted in the Supreme Court of Canada reversing His reasons bristled with indignation. He had a very different view Trust contained significant errors. aside the decision of the Discipline Com- Mr. Johnston is a key witness, if not the The Professional Conduct Committee of mittee, even though the hearing had not key witness for the prosecution. The re- the ICAO began an investigation into its been completed. In two quick paragraphs port is based, at least in part, on informa- member Mr. Howe, who was a partner at at the outset of his reasons, he outlined tion provided by the appellant, who was a major accounting firm and was responsi- what was at stake for Mr. Howe and the po- obliged to co-operate in Mr. Johnston’s ble for the audited financial statements of sition taken by the ICAO: investigation. The prosecutor has the re- Standard Trust. The committee retained a The appellant is facing a wide-ranging port and the appellant does not, which chartered accountant to investigate and to complaint of professional misconduct. means (to use the well-known phrase) report his findings. The investigator met His discipline hearing is scheduled to there is not a level playing field. LEADERS with Mr. Howe, reviewed his audit work begin in late September 1994. If found The appellant should not be left to papers, and prepared a 61-page report guilty, he could lose his licence to prac- speculate whether the summary he was that outlined his main findings about the tise as a chartered accountant. given is sufficient, nor should he be re- deficiencies in Mr. Howe’s work. The Pro- The complaint against the appellant quired to accept the prosecutor’s asser- in future care fessional Conduct Committee received the is based on an investigation report tion that “the will-say statement [i. e., the report and issued charges alleging that Mr. prepared for the Professional Conduct summary] contains more information Howe had violated the ICAO’s rules of pro- Committee. That committee is respon- than what’s in the report.” The summa- fessional conduct. sible for prosecuting the complaint. ry provided to the appellant is not even The Professional Conduct Committee re- It intends to call the investigator as an said to be a summary of the full report; analysis and costing. fused to provide Mr. Howe with a copy of expert witness to prove the case against instead, it is a summary of Mr. John- the investigator’s report. It produced a will- the appellant. Although the prosecution ston’s proposed testimony. The report say and other related documents, but would has a copy of the investigator’s report, it may contain additional statements, ob- not produce the report itself. The Discipline has provided the appellant with only a servations, and opinions which mitigate, CELEBRATING 20 YEARS Committee of the ICAO then dismissed Mr. summary of the investigator’s proposed qualify, or even contradict those set out Howe’s application for disclosure of the re- testimony, and refuses to give the appel- in the summary. The report may sug- port. Mr. Howe then sought judicial review lant the report itself.9 gest lines of cross-examination or oth- Contact us. We look forward to helping of the Discipline Committee’s decision to the Justice Laskin, with cool understatement, er inquiries which the appellant could Divisional Court. That application was also had already seized the high ground. The pursue, and, of course, the report can be you make a difference for your clients. dismissed.6 Mr. Howe’s first glimmer of suc- stakes for the appellant? Very high. The re- used for the purpose of impeachment. cess on this issue came on May 17, 1994, when lief requested? The simple fairness of a lev- Cross-examination is fundamental to our 1.866.314.7335 | cbafuturecare.com the Court of Appeal granted leave to appeal el playing field. Justice Laskin was rolling. adversarial system and the appellant has and ordered that the appeal be expedited. He then observed that the Discipline the right to meet the case against him
14 | SUMMER 2018 | THE ADVOCATES’ JOURNAL CBA-Advocates-Society-Ad.indd 1 THE ADVOCATES’ JOURNAL | SUMMER2018-01-11 2018 9:26 | AM 15 of the merits of the case: It seems to me, with great respect to those who feel otherwise, is a bedrock principle of administrative law. superb writer the range of $15,000–$25,000. In my view, this court must ensure that its judgment is not pre- that the appellant has succeeded in making a mountain out of Justice Laskin meticulously explained how Justice Laskin cares deeply about I would not give effect to Pilot’s sub- mised on a state of facts that accepts in full and without caveat ev- a molehill. The notion that a student can dictate the level of re- and why the committee breached Ms. Khan’s his own writing. Of course, he missions. In my opinion, Pilot’s breach ery claim made by the appellant and her supporters at every stage view of her examination paper by making an allegation such as right to procedural fairness by failing to pro- Aspent hours and hours reading and ana- of its obligation of good faith was an in- of the proceedings in appeal, while reacting negatively to every was made by the appellant here can lead only to mischief. The vide her with a meaningful right to know and lyzing the law, but he also spent countless dependent actionable wrong for which explanation by both the Faculty and Senate Committees as to why Committees in the case in appeal are criticized for not taking seri- respond to the allegations against her. more hours writing and rewriting his judg- punitive damages could be awarded. they were not prepared to grant her appeal of a failing grade. ously an allegation that they did not consider to be determinative It is often the case that a subsequent appeal ments. He strove to drive out ambiguity; to Pilot’s conduct was so reprehensible As a supplement to this observation, it is not up to the ap- of what was before them. Instead of showing deference to these hearing can cure procedural defects at a prior eliminate the passive voice; to reduce the that a punitive award was justified; pellant to define the issue in appeal to her own liking. Despite persons of experience that have the responsibility for maintaining stage.16 Justice Laskin, however, found the ap- use of Latin maxims; to make sentences as and the amount of the award is sup- the protestations of those in authority to the contrary, the ap- academic standards within their faculty and university, they are peal to the senate wanting and held that it did clear as they could be; and to make para- portable in the light of the deference to pellant has consistently maintained that there is and was but criticized for not turning themselves inside out to affirmatively not cure the earlier errors made by the Exam- graphs beautiful structures framing clearly be accorded to the jury’s assessment, one issue in these proceedings. Did the appellant lie when she establish that the appellant was not telling the truth.15 inations Committee. His reasons explained expressed ideas. the extent of Pilot’s reprehensible con- said there was a fourth booklet? By insisting that this was the Justice Laskin took seriously the student’s version of events and why the appeal hearing was far from a trial de Justice Laskin wrote brilliant overviews duct, the need to deter this kind of con- only matter that required a response, the appellant has co-opt- the importance of the decision to her academic career. He seized on novo and why it was infected by the same sort to his judgments. For example, consider the duct and the need to impose a fine that ed the agenda of the Faculty Committee and demanded that a crucial admission by the university: The student would be entitled of procedural errors as the hearing before the introduction to his reasons for decision in is more than a licence fee. Therefore, I she is entitled to a standard of justice reserved to students who to rewrite the examination if the fourth booklet existed and had not Examinations Committee. He ordered a new Whiten v. Pilot Insurance Co.: would dismiss the appeal.19 face sanction because of personal misconduct. She does not ac- been graded. He framed his reasons around this admission. hearing before that committee. Pilot Insurance Company appeals a I think this introduction is just about per- knowledge that the only issue before the Faculty Committee Justice Laskin held that the examination committee should have This decision caused significant waves punitive damages award of $1,000,000, fect. It is functional: Justice Laskin told the and later the Senate Committee was whether the grading of given Ms. Khan the opportunity to appear in person before each among counsel who act for universities in the largest award in Canada against an reader the key facts of the case, the issues an examination had been subject to an error or injustice. The committee that considered her appeal and an opportunity to make Ontario and throughout Canada. It was all insurer for dealing in bad faith with a under appeal and how he proposed to deter- appellant insists upon the right to attend and assert in per- oral representations. Justice Laskin acknowledged that, while most the more surprising because, before his ele- claim by one of its insureds. mine them. It is persuasive: He marshalled son that there was a fourth booklet as if establishing that fact academic appeals would not require an oral hearing, this one did vation to the bench, Justice Laskin was one Daphne Whiten owned a home on the key facts, seized the moral and rhetorical would be conclusive, but the Committee members were aware because the appeal turned on her credibility and because of the of those counsel. He acted for many years as Old Donald Road in Haliburton County, high ground, and left the reader convinced of of the quality of the work in the three booklets she did turn in, serious consequences to her of an adverse finding. If the committee discipline counsel for the University of To- where she lived with her husband, Keith the correctness of his judgment. It is clear: His and the examining professor’s assessment of the poor calibre believed Ms. Khan, she must win her appeal. ronto. Academic discipline at that university Whiten. The home and its contents were language is accessible, plain and devoid of of that work. Comments attributed to the professor regarding Justice Laskin also took seriously the obligation of the university to is taken very seriously. Indeed, the leading insured under a homeowner’s policy is- ambiguity or ornamentation. It is respectful: the examination and possibility of a fourth booklet are illu- give the student an opportunity to know and respond to the factors re- case at U of T on the principles to be applied sued by Pilot. In the early morning hours He treated the parties as people facing serious minating: “More of the same wouldn’t have been beneficial.” lied on by the committee in dismissing her appeal. The right to know when imposing a sanction was argued by of January 18, 1994, a fire destroyed the real-life issues, not as characters in a film-noir … and respond to information and arguments prejudicial to one’s position John Laskin and decided by John Sopinka, Whitens’ home and all of their belong- potboiler. This introduction is an example of Q.C, in 1976.17 When John Laskin went to the ings. Daphne Whiten claimed for the fire the very best judicial writing, and it is typical bench, the role of senior discipline counsel loss under her insurance policy, but Pilot of Justice Laskin’s work.20 was filled first by Justice Kathryn Feldman, refused to pay. Pilot alleged arson, even If Justice Laskin had left us only with his Outstanding neutrals. and then by my partner Linda Rothstein. though it had opinions from its adjuster, body of decisions, we would have an excel- Universities might well have been for- its expert engineer, an investigative agen- lent set of examples of how to write effec- Outstanding facilities. given for thinking Justice Laskin would cy retained by it and the fire chief that the tively. We could, as legal scholars, study the be a good draw on this type of case. Sure- fire was accidental. Pilot maintained its texts and distill what made them great. We Only at Arbitration Place. ly, he would understand universities and defence of arson throughout a four week could then try to incorporate those princi- their procedures – and the institutional trial before Matlow J. and a jury, although ples into our own writing. But he went much challenges faced when dealing with tens it now concedes that the evidence un- further than that. Arbitration Place proudly welcomes The Honourable Thomas of thousands of students and many more equivocally shows the fire was accidental. Cromwell and The Honourable Robert Blair – two of Canada’s examination booklets. The jury assessed damages at dedicated teacher leading jurists – to its roster of leading arbitrators and mediators. In fact, Justice Laskin knew too much about $1,287,300 – $287,300 for the fire loss Justice Laskin dedicated an enor- They join a group recognized across Canada and internationally universities. He knew how important they are and $1,000,000 for punitive damages. mous amount of time and energy for expertise, experience, fairness and sound judgment. The Honourable The Honourable as institutions in a free and democratic society. The trial judge ordered Pilot to pay the Ato teaching judges and lawyers how to im- Thomas Cromwell, C.C. Robert Blair, Q.C. was For your next arbitration, mediation or mock hearing, please He knew they embody principles of liberal- costs of the action on a solicitor and prove their writing. I believe he did more was appointed to the Nova appointed to the Ontario contact us. ism, freedom of inquiry and expression, and his own client scale. Pilot restricts its to advance written advocacy than anyone Scotia Court of Appeal Superior Court in 1991, personal dignity. He knew what a university appeal to whether punitive damages else in Canadian history. in 1997, and in 2008 was where he served as Regional could be at its best and, it turned out, was pre- should have been awarded and, if so, Justice Laskin taught decision writing appointed to the Supreme Senior Justice, Toronto Region, pared to hold a university to that standard. He the amount of the award. It submits at innumerable seminars for judges and Court of Canada. He retired for four years and frequently could not countenance a university acting un- that punitive damages should not have members of administrative tribunals in from the Supreme Court on presided on the Commercial fairly toward a student.18 That was not his vi- been awarded either because it did not Canada. He was frequently an instructor September 1, 2016. Before List. Mr. Blair was elevated sion of the university, of society or of the place commit “an independent actionable at both the National Judicial Institute and his judicial appointment, to the Court of Appeal for of the individual within it. wrong”, or because its conduct was the Ontario Centre for Advocacy Training. Mr. Cromwell taught law at Ontario in 2003 where he The Khan decision was another example not reprehensible enough to justify Courts around the world look to him for Dalhousie University, and served for fourteen years until of Justice Laskin’s generosity of spirit driv- an award. Alternatively Pilot submits advice on how to write better decisions. served as Vice-chair of Nova his retirement from the Court ing his decision-making. His reasons for that the jury’s assessment was exces- He has spoken to judges in Hong Kong, Bay Adelaide Centre • 333 Bay Street, Suite 900, Toronto Scotia’s Labour Relations in October 2017. decision are a pleasure to read. They are sive and was influenced by errors in Albania, The Hague, New Mexico, Barba- World Exchange Plaza • 100 Queen Street, Suite 940, Ottawa Board. well-written, clear, and compelling. By 1997, the trial judge’s charge. Pilot asks this dos, Tanzania and China. 416.848.0203 • arbitrationplace.com he was well on his way to becoming one of court to set aside the punitive damages He has also written a series of articles the best writers on the Court of Appeal. award or reduce it to an amount within for counsel on how to write persuasively.21
16 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 17 One of the most popular was “Forget the Windup Notes and Make the Pitch: Some Suggestions for Writing 1. In 1994, Minister of Justice Allan Rock appointed Justice Laskin to the Court of Appeal directly More Persuasive Factums,” which appeared in this from the bar, where he had distinguished himself as one of Ontario’s leading advocates. His journal in 1999. He explained how important factums practice spanned all aspects of public and private law. Starting after his graduation from are to the judges of the Court of Appeal and urged the Faculty of Law at the University of Toronto in 1969, he practised at Fasken & Calvin; counsel to put more time and care into their factums. Laskin, Jack & Harris; and Davies, Ward & Beck. He was counsel to several Commissions He suggested that counsel focus on their audience of Inquiry and served as legal counsel for Canadian Jewish Congress, Ontario Region. Not and put themselves in the position of their reader, surprisingly, he was elected a fellow of the American College of Trial Lawyers. the judge. Justice Laskin’s most famous advice from 2. To paraphrase Drake, it’s top two and it’s not two. When I clerked for the Court of Appeal for that article was to adopt point-first writing: State your Ontario in 1999–2000 the court comprised Chief Justice Roy McMurtry, Associate Chief point before you develop or discuss it. Justice Coulter Osbourne and Justices John Brooke, John Morden, George Finlayson, He explained that a well-written overview statement Horace Krever, Hilda McKinlay, James Carthy, Marvin Catzman, Louise Arbour, Jean- was important because it provided necessary context for Marc Labrosse, David Doherty, Karen Weiler, Mac Austin, Rosalie Abella, John Laskin, the appeal that would allow the judge to better absorb Louise Charron, Marc Rosenberg, Michael Moldaver, Stephen Goudge, Stephen Borins, and understand the details to follow. Interestingly, Justice Dennis O’Connor, Kathryn Feldman, James MacPherson and Robert Sharpe. This is the Laskin also invited counsel to use their overview state- judicial equivalent of the 1955–58 Miles Davis Quintet, the 1961 New York Yankees or ments to tell their story in human terms and to appeal to Formation-era Beyoncé. You choose. the human being in the judge: 3. I am uneasy about starting this article with an anecdote. After all, Justice Laskin wrote an article In the overview statement, you must begin persuad- called “Forget the Windup and Make the Pitch,” and I fear I am doing exactly the opposite. ing the court of the rightness of your client’s cause. 4. “Fuck Brooklyn!” (if you are curious). It earned him a $25,000 fine from the NBA and an Tell your story in human terms – appeal to the human everlasting place in the heart of every fan of the Raptors. being in the judge. Forget the legal jargon. Pretend 5. Online:
18 | SUMMER 2018 | THE ADVOCATES’ JOURNAL INTERVIEW
The Journal conversation: Ronald Slaght
Stephen Grant, LSM, ASM
STEPHEN GRANT: Did you always want to be a lawyer?
RONALD SLAGHT: It’s easy to say yes, but the answer is no. Partly because of my per- sonal circumstances. I am a fourth-generation lawyer, which is pretty rare in this coun- try. My great-grandfather was the Crown attorney in Simcoe, my grandfather was a very famous counsel in Ontario and my father was a lawyer. But my parents separated when I was young, and I had no exposure to lawyers over all those years, despite the history. So, I didn’t really gravitate toward it or think much about it until I finished political science and economics and took a year off to decide what to do.
SG: What did you do for the year off?
RS: Mostly travelled. As you know, in the late sixties it was a volatile time. The Democrat- ic convention in ’68; the Vietnam war. So, when I came back from a radical and liberating few months, I supply taught in the Toronto system for a couple of months to see what that would be like. That drove me to law school.
SG: Did you find it came naturally to you?
20 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 21 RS: Well, the parts of it that I thought I had September to June. RS: Well, I think it’s a little different from a penchant for involved the expression of that. It’s identifying something that you BringBfififi fithe fififi fi fifightfififififififi fitofififi fianfififi end... something orally. I didn’t have any par- SG: You’ve had a pretty fulfilling career, no? think is a winning strategy or focusing on ticular idea that I could do the analytical an issue and then making the case. part. I didn’t even know what that was. I RS: I have. remember walking into McCarthys on the SG: Finding the winning line of play? first day of articling and realizing there SG: I was looking at your firm’s website, fififi RS: fi fi was something called a client. I had no idea and it’s talking about “known for the stare Yes. And it’s something that can be fififififififi andfifififififi about that – even through law school. that can stop you in your tracks.” Was that learned, and it’s difficult. fififififififi fairly natural or developed? SG: Did you enjoy law school? SG: And it can be taught? RS: It was natural and, to a certain extent, RS: I did enjoy it. unconscious. But it also became a bit of a RS: And it can be taught. It can be taught on tool when I realized that this thing had an the way through, and I was taught it and I SG: How did you end up at McCarthys? effect on people. observed it and I tried to do it. I can think of examples in my own cases RS: In September of my third where it’s a stunning thing to be year, I phoned three law firms able to do. And you need a cer- and said I would like an arti- tain force of personality, usually cling job. I had heard of this at the beginning; but to me it’s guy named Doug Laidlaw. His the real key to being successful. fame had even filtered into the It’s not being bogged down, to law school, and so McCarthys put it in colloquial terms. was where I wanted to go. What is also startling is that they knew who SG: I had no idea it was a trademark. SG: It’s obviously something more than be- I was because they phoned the law schools in ing intuitive. How did you acquire that skill? those days and asked, you know, “Are there RS: It’s mostly a blank stare. I’m actual- any good prospects in your ranks?” ly thinking while I’m staring, but people RS: I saw it being practised, and I watched So, I got an interview at the three places I think I know the answer and that’s why it. As a younger lawyer, I watched it happen phoned, and I got an offer and I accepted it. I’m staring. in cases where I didn’t even agree that that was the issue, or where I didn’t see it as be- SG: I had a similar experience with Ian SG: Nice trick. ing the issue. And I just came to understand Scott and Cameron, Brewin and Scott. That’s that you must have something. Rather than where I wanted to go because I had heard RS: It was a powerful weapon over the years. just A to Z, you know? K, somewhere in and met Ian Scott. Funny how those events there, K is the answer. shape our lives. SG: Apart from the stare, what do you It gives you focus. It gives you pur- think accounts for that successful career? pose. It gives you something the rest RS: It is. don’t have. And you can build on it. And RS: Well, if I had to say something, of all then, obviously, you have to do the work SG: He was quite a formidable guy, Doug the things, opportunity is certainly one of and convince somebody that you’ve got Laidlaw. them. A natural proclivity must have had the right issue. But you can learn to do some effect. And hard work, obviously. it, and that’s been the successful feature RS: He was. Even though people don’t think But what I learned, and all the great ad- of my practice. of him this way, he was quite formal, and vocates I’ve seen have this trait, is that it’s it was “Mr. Laidlaw” for the first few years. the ability to make the case your own – to SG: Did you ever feel that you had the win- At the same time, he was welcoming and a identify the one or maybe two issues that ning line of argument and the ruling was Civil teacher, and awe-inspiring, too. You want- are the significant issues and make those against you? Civil ed to work hard to do his bidding, which is issues what the case is about. Commercial what we did. Leaving extraordinary talent aside, you RS: That happens. This is not a script that have that penchant or that ability, or you we write. This is a human drama, and one Commercial SG: A formidable advocate, though? can be taught it. And it was easy when the of the players is the judge. Construction files were half an inch thick. It’s not so easy You don’t win all your cases. You and I Construction [email protected] RS: And he was probably better in the anymore – but the skill is the same. weren’t always successful at everything [email protected] Court of Appeal and the Supreme Court of While you now have to learn more, there we did. Environmental Canada than he was in the trial courts, al- are only a couple of things that are import- I’ve noticed, though, that young lawyers Environmental though he’s known for the latter. I’ve never ant in any case, and I think I had that point now are so used to success academically, in Estates 647.847.3811 seen anybody make as powerful, concise an drilled into me and watched it, observed it their extracurricular life, that they feel they Estates st647.847.3evensonADR.ca 811 argument as he could, and mostly because and tried to practise it. must win. I never really felt that. You have stevensonADR.ca he prepared for those appeals, unlike the to give it a shot, and you can lose – and you Product Liability trials where it was one after the other from SG: Distilling the case to its essence? can learn a lot from losing. Product Liability
22 | SUMMER 2018 | THE ADVOCATES’ JOURNAL SG: I’m surprised to hear you say that because I always thought RS: Alan Lenczner and Michael Royce and I came into that litiga- RS: It truly was. review is reasonableness, correctness or been a different path. But I quickly decid- you were passionate about winning without being overbearing tion milieu just at the time the big firms were exploding in growth, some ex post facto reasoning. ed I’m better at what I’m now doing than I about it, full of the certitude of your position. and we had an incredible core group. And there was no shortage SG: I’m describing it accurately? think I’d ever be at that. of things to do. So, we were always litigating. It was a great oppor- RS: I think the real trouble with it is that, Anyway, this is a common story. I think RS: I do believe that, and that’s part of what I’ve been describing. tunity to learn. RS: You are describing it. We never really at the end of the day, it’s a bit of a movable as I’m sort of at some point going to come You convince yourself first and, without being blinkered about it, thought about it much. We just worked. It feast. It’s a blocker if the court wants to to the end of this, then what next? I am tak- you obviously have to take into account whatever else is going on SG: You’ve had huge successes. Did you ever have any failures? wasn’t as if it was easy, but that’s what we have a blocker. And that’s the frustrating ing more time off. I always intended never in the case. But disappointment comes with what we do. did. And, as a result, we became pretty part. Then, when you look at deference, to die with my boots on. I’m going to quit at RS: I absolutely did. I can think of a couple of cases that never good lawyers. it’s just not predictable. some point, and I’ve been directing myself SG: Don’t you find that it is so hard to absorb personally unless, got righted, and I believe in my core were wrongly decided and over the last two or three years so I’ll be maybe, you’re more dispassionate about it? wrongly decided on appeal. But there are only a small number of SG: So, what did you do about work/life SG: It seems to me to be calibrated to aid able to do that. those. The other side of it: I have many more where I have a lot of balance in those days? the court to find the just result. RS: It’s devastating because you also have to remember that one of satisfaction from succeeding. SG: I think it’s a bad strategy to retire and the joys of what we do is that you’re representing somebody. So, to RS: First of all, I never heard the term at the RS: Yes. And because we’re in a regulatory then die. lose means your client loses, and that’s very difficult. SG: Did you ever succeed in cases that surprised you? It’s usually time. And I actually didn’t think I didn’t society and there are so many cases com- a binary system, win or lose. The draws are very, very slim. have work/life balance. Maybe the pro- ing out of administrative law, that’s a really RS: Yes, it is. SG: I think the older I get, the harder I find it when I know that the portions were not as somebody might important feature of our practice, which is wrong result happens. RS: Yes, but I think, by and large, courts get it right. think them to be today. But for me it was a new compared to when we used to go to SG: Am I right that you have segued a bit pretty good work/life balance. I look back the Court of Appeal and have at it again. into ADR stuff? RS: And there are more than enough of those. SG: I do, too. on that and it’s hard to be regretful. But that is the new reality, a regulatory liti- gation practice. And it’s an opportunity. I say RS: Yes, I do arbitrations and mediations. SG: You had quite an amazing group of advocates around you when RS: Still, I’m an advocate, doing the best I can for a particular client. SG: It is hard to be regretful. But going to our young people, you know, identify an you started at McCarthys until you left to form Lenczner Slaght. On the other side, when you succeed, it may not be for exactly the back a moment, what’s the key change in interest. It’s going to be hard to be a generalist, SG: As I also do ADR in family law, what’s reason that you thought. But usually it’s probably equally defensible. our professional lives that you have seen? so find something and then be the best at that. interesting is that you see from an adju- RS: You know, it really was, and I was lucky. And this is some- dicative point of view what resonates and thing people, again, would probably be astounded to know. I was SG: What I remember about your and to some extent my old days RS: To me, it’s the growth of the regulatory SG: There are a lot of terrific young law- what doesn’t when counsel are asserting the ninth lawyer in the litigation department at McCarthys. is how hard you guys would seem to work. You would work hard, society that has made a huge difference in yers out there. Your firm and elsewhere? propositions. then play squash and then work some more. Wasn’t that what your our lives. SG: When I was there, there were around 90. days were like? I was startled when I was reading the RS: Oh, for sure. They need the experience. RS: And would it have made you a better new policing legislation, which brings in They need, you know, a bit less work/life counsel then if you’d had the insights? all kinds of new potential causes of action. balance sometimes, maybe, but they have a It is 400 pages long. Think of the field of lot of talent. And they have something we SG: Must be, right? battle that this gives rise to. did not have: They are restless, and change So, I think regulatory litigation is rapid- comes from that. RS: Yes. But coming back to the original ly overtaking what we would think of in We were fortunate when we started point, sitting there as an arbitrator partic- First you forced us to move to a bigger space. broad terms as commercial litigation as the Lenczner Slaght because we were experi- ularly, but also you see it in mediations, is, backbone of the litigator. enced barristers, so we got our work because principle number one, what’s the issue? Do Now you’ve forced us to knock down walls. we had won cases – we had reputations. these lawyers have their finger on the issue? SG: Do you think it’s a less rigorous form That’s how the work came to us. It’s a lot Am I being persuaded by one or the oth- of litigation? harder to do that now because of the special- er of them that they have the kernel of this ty practice and because there just isn’t the case? That’s what I look for. We have just one thing to say: RS: No, I don’t think that. First of all, you volume of cases and, of course, everybody is have to have a specialized knowledge. You out there chasing the same clients. SG: The right path, the right path to the can’t just drop in on a particular tribunal right solution? anymore, something that has changed the SG: But it’s proved to be another fulfilling nature of law firms that do litigation. The chapter, right? RS: To persuade the person up there is to specialty practice is now much more nec- give that person a way to find for you and Thank you. essary than it ever was in the previous, RS: Yes, and it didn’t take that long be- get rid of all the other issues. what, 25 years. fore we realized we were getting enough While we hold ourselves out at Lenczner work that we needed people to help us do SG: So, do you actually ever intend to call We had a vision of bringing court reporting, transcription and Slaght as generalists, and, by and large, we the work, and they needed people to help it a day? Do you have a plan? captioning into the modern era. It turns out many of you share our vision, still do everything, there’s a big learning them do their work. That’s how the firm because we’ve had to expand (again). Thank you for making Neesons curve and you’d better be good at what you grew quickly. RS: Yes, I absolutely do. I’m going to be out do to compete with the people who do that of this job in, you know, a reasonable time your court reporters, transcriptionists and captioners of choice. work everyday. Then there’s the whole ad- SG: Looking back over it all, do you have from today. ministrative law construct. any regrets? SG: It’s a nice stage of life, don’t you think? Court reporting, transcription, captioning & more | neesonsreporting.com | 1.888.525.6666 SG: I look at the standard of review juris- RS: Well, leaving aside work/life balance, prudence and can’t actually figure out at one point I thought I might try politics. RS: It’s lovely. Whether you’ve earned it or how they decide whether the standard of It’s not really a regret, but it could have not, that’s where I am and I’m enjoying it.
24 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 25 THE ADVOCACY PROFESSION
SG: What do you think about the state of the world today? them. And then, I think, they have to take to heart what I took to heart from watching the great lawyers I watched, including your RS: Well, I guess that’s the other thing. I would like in the next partner Ian Scott, with whom, as a young lawyer, I had an appeal life, the life after the one now – not in the hereafter – to make some on a great case. I knew a hell of a lot more about it than he knew Diversity and inclusion in the courtroom: contribution to the shoring up of our democratic institutions and about his side of it. in a public policy sense. SG: No doubt. A necessity, not a luxury SG: Are you worried about your own particular carbon footprint? RS: And he came into the Court of Appeal and persuaded them RS: Well, my wife is an environmentalist, so I’m making very that his side of the case was right, and my side of the case was small contributions to that world. wrong – even though my side of the case was right and his was wrong. And he did it by convincing them that he had this one Erin C. Cowling SG: Don’t we have to? issue that was the answer, and they bought it. An unforgettable lesson for me. And that’s what I tried to do. RS: It’s dropped down a little bit in importance because of what’s And that’s what people should try to do. Because if you do that, going on otherwise in the world. it means you know everything else, too. any will agree that we have more work to do in pro- Because we deal with such a volume of material now, you’ll be moting and improving equality, diversity and inclu- SG: The Doomsday clock has moved up a couple of minutes to two unhappy if you don’t prioritize and find something that you can sion in the legal profession. The glacial pace of prog- minutes to twelve. This hasn’t been that worrisome since you and I be persuasive with. And judges and courts look for that. They Mress is not only disheartening, it is also perplexing. were young in the Cold War/nuclear age, I don’t think. want help. They want somebody to say, “Okay, I’m going to tell It is widely recognized that there is a strong business case for you what this case is about,” and then you only say one thing. diversity. In January, McKinsey & Company released a report RS: It’s so true. So maybe it’s over to them? that looked at the relationship between the level of diversity SG: And how to get there? (defined as a “greater share of women and a more mixed eth- SG: I’m not sure we’ve done them any favours. nic and cultural composition in the leadership of large compa- So, final question: What do young lawyers do to become the RS: And “I’ll tell you how to get there.” It’s the key. nies”) and company financial performance.1 The analysis found next you? a statistically significant relationship between a more diverse SG: Thank you for doing this. It’s very gracious of you. leadership team and better financial performance. Companies RS: Well, they have to be them – that’s the first answer to that in the top quartile for gender diversity were 21 percent more question. With that as a given, they have to find cases and try RS: Very happy to be here. likely to experience above-average profitability than companies in the fourth quartile. For ethnic and cultural diversity, there was a 33 percent likelihood of financial outperformance. Law firms are businesses, too. Why wouldn’t we want to embrace better financial performance? If diversity is directly related to financial success, logically diversity Heu·ris·tic – (pronounced hyu-RIS-tik and from the Heu·ris·tic·a – (pronounced hyu-RIS-tik-ah) a should be directly related to courtroom success as well. Diverse litiga- Greek “heuriskein” meaning “to discover”) pertaining to Canadian law firm dedicated to performing tion teams bring unique talents, skills, experiences and perspectives a process of gaining knowledge or a desired result intelligent, proportionate and cost-efficient discovery to the legal issues at hand and are more likely to think outside the through learning, problem solving, and intelligent projects using advanced analytical techniques and box to respond to the needs of our increasingly diverse clients. analysis drawn from experience. technology. Just as there is no longer a time or place for an all-white male panel speaking at a legal conference, there should no longer be a time or place for an all-white male litigation team. Judges should Heuristica is not a typical law firm. Our legal team is leading the not be looking down from the bench and seeing a uniform set of transformation of electronic evidence review by example. Our practice is faces staring back at them. focused on advising litigation counsel and their clients in the management hite male lawyers (still) monopolize US courts study involving women lawyers speaking in court. The results of and use of information in all phases of civil discovery, regulatory In August 2017, the New York Times published an opin- the study were published in November in a report titled “If Not proceedings, and investigations. ion piece from a retired New York Federal District Now, When? Achieving Equality for Women Attorneys in the WCourt judge, Justice Shira Scheindlin, called “Female Lawyers Courtroom and in ADR.”3 The report found that women were Can Talk, Too.”2 In it, Justice Scheindlin observed that, during her the lead lawyers for private parties barely 20 percent of the time time on the bench, the “talking was almost always done by white while they were twice as likely to appear on behalf of public sec- men. Women often sat at counsel table but were usually junior tor clients. The most striking disparity in women’s participation HEURISTICA and silent. It was a rare day when a woman had a lead role – even appeared in “complex commercial cases.” Women’s representation DISCOVERY COUNSEL though women have made up half of law school graduates since as lead counsel shrank from 31.6 percent in one-party cases, to 26.4 the early 1990s.” Justice Scheindlin also noted that, after the male percent in two-party cases, to 24.8 percent in three- to four-party Canada’s National eDiscovery Law firm lead counsel repeatedly conferred with the sitting female lawyer cases and to 19.5 percent in cases involving five or more parties. (especially after Justice Scheindlin asked a tough question), she The report concluded that the more complex the case, the less like- would ask herself, “Why wasn’t [the female lawyer] doing the ar- ly a woman appeared as lead counsel. guing, since she knew the case cold?” The gender equality numbers were worse for lawyers who ap- 647-347-9350 [email protected] heuristica.ca In 2017, the Commercial and Federal Litigation section of the peared before the Supreme Court of the United States. According New York State Bar Association commissioned an observational to a November 2017 article in the Supreme Court Brief of the
26 Heuristica_AdvocatesJournal_7.5x4.9167_v2.indd | SUMMER 2018 | THE ADVOCATES’ 1 JOURNAL 2018-04-26 2:54 PM THE ADVOCATES’ JOURNAL | SUMMER 2018 | 27 National Law Journal,4 fewer than 18 percent of the advocates before improvement if fewer than 25 percent of the lawyers speaking have also implemented similar initiatives.10 the high court were women. before the highest court are women. Law firms can also keep data on the number of court appear- These reports focused only on gender. However, one can Some may argue that seniority plays a role in these numbers, ances provided to women lawyers or lawyers belonging to other only assume that these numbers are worse for some lawyers; because it is likely senior counsel who argue before the Supreme equality-seeking groups. The people who have the power in firms for example, women of colour who face the double hurdle of Court. I’m not sure I agree that this is always true, but for ar- – equity partners and client relationship managers – can take race and gender. gument’s sake let’s say it is. The problem is, women have been steps to increase diversity and inclusion at the very beginning of a graduating from law school in the same (or greater) numbers as file when deciding how to staff the litigation team. ut Canada is better, right? men for several years now. If women are not making it into se- Compensation committees should also take note. If a partner In 2008, in my early years of practice, I was fortunate to nior level positions, then this is an entirely different issue that consistently chooses all-white male lawyers when assembling a be an associate on a case that went to the Supreme Court needs to be addressed. team, compensation points can be deducted. If a diverse team Bof Canada.5 Of the 23 lawyers in court that day, two of us were is assembled, points can be gained. If a woman or a racialized women. Neither of us spoke. Admittedly, this was a decade ago. ncreasing diversity in the courtroom lawyer speaks in court, extra points can be added. Money can be Appearances by female lawyers at our Supreme Court must have Whatever steps we are taking to improve equality in the le- a great motivator. improved since then. Or have they? gal profession, they are not working fast enough. Most firms And, of course, there is nothing stopping women or other un- To answer this question, I conducted an informal survey. I re- Ihave diversity and inclusion policies and commitments on their derrepresented lawyers from seeking out these roles, too. When viewed all 64 reported Supreme Court of Canada decisions from websites to promote equality and equal opportunities. These are I was a newer lawyer it never crossed my mind to ask if I could 2017 and divided counsel of record according to gender.6 Of the great first steps, but actions speak louder than words. speak in court until I saw a female lawyer ask a senior partner if 635 lawyers listed as counsel (some appearing more than once), In her opinion piece, Justice Scheindlin suggested that judg- she could cross-examine a witness. He said, “Of course.” Some- 205 were women. That is approximately 32 percent. es, law firms and clients all have a chance to improve this “bleak times that’s all it takes. Lead counsel may simply be stuck doing In only seven decisions, female counsel were equal to or outnumbered picture” of underrepresentation of women and racialized lawyers things the old way, are too busy or may assume you are not inter- male counsel. In one case, a party had a legal team of eight lawyers in the courtroom. ested. Speak up and put yourself out there. with not a single woman among them. In the United States, several judges have imposed rules in These numbers, of course, account only for the counsel of record their courts encouraging a more visible and substantial role for dvocates for change Fall Forum 2018 and do not reflect the gender of lawyers who actually speak before female lawyers. For example, Justice Jack B. Weinstein, a senior Maintaining the status quo is always easier than em- October 19-20, 2018 | Blue Mountains, ON the Supreme Court justices. When we look at those numbers, it is federal court judge in Brooklyn, imposed a rule sheet that states bracing change. As often noted in diversity and inclu- worse. Usually the lawyer listed first as counsel is the lawyer who “junior members of legal teams” are “invited to argue motions Asion literature: When you are accustomed to privilege, equality The Advocates’ Society, in conjunction with made the oral argument. Of the 304 lead counsel, 75 were women. they have helped prepare and to question witnesses with whom feels like oppression. the Young Advocates’ Standing Committee, is pleased to present this national premier That is just under 25 percent. they have worked.”8 If we truly want a better legal profession, we need to be advo- networking conference for lawyers one to According to the latest statistics available from the Federation Also, clients, particularly corporate clients and in-house coun- cates for real change. It is our responsibility. Let’s stop simply pay- ten years in practice. of Law Societies of Canada, women represented 43 percent of sel, should be, and have been, demanding that their legal teams ing lip service to our diversity and inclusion policies and initia- the practising lawyers in Canada in 2015.7 Assuming the gender be more diverse. For example, Facebook requires that one-third of tives by our law societies and legal associations. We must actively www.advocates.ca breakdown for litigators in Canada is similar to the overall gen- a law firm’s team working for the social network “be composed take steps to improve diversity and inclusion in our courtroom der breakdown of lawyers in general, we surely have room for of women and ethnic minorities.”9 Hewlett Packard and MetLife and in our profession as a whole.
Fire & Explosion Failure Notes Investigation Analysis 1. Vivian Hunt, Lareina Yee, Sara Prince, Sundiatu Dixon-Fyle, “Delivering first name of counsel and researched the individual lawyers when this Through Diversity” McKinsey & Company, January 2018; online: was not clear. Obviously, this informal review cannot accurately reflect
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28 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 29 REFLECTIONS OF AN ADVOCATE
The “Path”: A case of pursuing dreams, conquering goals and cultivating resilience
Marie T. Clemens
t may not have been the path of least decision to make. I knew I would be leaving “Always go with the choice that scares you resistance when I decided to leave my behind many things I find meaningful in life: the most,” the expression tells us, “because well-established law practice in Otta- the presence, comfort and joy of my fam- that’s the one that is going to require the most Iwa to pursue my dreams in “The Big Smoke” 1 ily who lived nearby; the close friendships from you.”4 I was ready for a change in life- (which, as a side note, I had to Google. The I developed over the years; the established style. I was seeking growth and welcomed term describes Toronto as a city with a “big relationships with my colleagues; and the this new opportunity with open arms. reputation, but little to show for it.” Yikes! Al- relatively secure path of career advancement though it may not be very flattering, perhaps within the Ottawa bar. “So, why move?” you he change: Cultivating resilience it’s better than the nickname Ottawa has been may ask. After all, it would be a hassle to pack Change is essential. In fact, I believe given: “Coma City.”) No matter what city I up my life, say my farewells, start over again it is a key ingredient to success, may reside in, however, my vision for living and prove myself at a new firm. The answer Thappiness, individual growth and career life remains the same. I see life as a journey and for me was simple: personal growth and ca- development. However, along with change, “an adventure of passion, risk, danger, laughter, reer progression. Since my call to the bar in we may also experience difficulties, barriers beauty, love, a burning curiosity to go with the 2011, I have practised in the area of insurance and adversity. While change can be exhila- action to see what it is all about, to search for a defence, which involved many early morn- rating, it may also come with setbacks that pattern of meaning […] and to live to the end.”2 ings, Porter Airlines lounges and long com- can leave us feeling depleted, discouraged quality in our fast-paced, stressful and ever-changing lives. Ac- when you need a shoulder is an essential part of overcoming life’s Perhaps some of you can relate to your ca- mutes from the airport to my final destination and wanting to retreat to our comfort zone. cording to the article, resilience is defined as the ability to face life’s obstacles. Our burdens can be too heavy to carry alone; we all need reer in law being similar to Toronto’s infamous in Toronto. These trips always left me feeling I anticipated that the move to Toronto challenges and cope with disruptive change; it is the ability to re- the emotional and psychosocial support of others to help us work “PATH”3: This underground pedestrian walk- challenged, alive and curious about the To- would have its challenges, but there were bound from setbacks without responding in dysfunctional ways. through our challenges. way has many different routes that no one can ronto market. I was intrigued about the op- (and are) things I did not foresee. From con- Being resilient doesn’t mean we can’t or shouldn’t feel sad, angry Tips: Join an organization such as the Ontario Bar Association, volun- ever truly navigate with ease; it may require portunities a career in Toronto could offer, the do renovations (which included two floods) or upset in response to difficult events; rather, it means we must teer in your community (e.g., Lawyers Feed the Hungry) or organize a direction, assistance and guidance; and, de- benefits that come with living and working in and walking for over an hour in the wrong find a way to manage through the adversity. Resilience allows us to dinner among the associates at your firm. Take steps to make sure you spite having a well-established plan, one may a big city, and the social aspect of it all. direction (“Always remember the lake is endure difficult and challenging situations – whether it is moving are part of a network and work on strengthening your connections. at times be filled with doubt, or encounter I believe it’s important to step back from south,” they said. But how do you know to a new city, overcoming a difficult task or dealing with a challeng- challenges and setbacks along the way. What our everyday demands to reflect on life, to where the lake is when you’re standing in ing client – and enables us to grow. The good news is that resilience Help yourself. When faced with a challenge or setback, stay calm, ex- may have initially seemed simple and straight- consider our career goals and objectives, and the middle of the city surrounded by tall is an adaptive strategy and, as such, can be learned or built through amine the situation and think rationally for solutions that will forward can lead people in circles before they to evaluate the projection and the desired buildings?), to “interesting” experiences changes to our lifestyle and outlook on life.6 assist in advancing and moving you toward your goals. We are often finally reach their destination. Once there, destination we want for ourselves. By doing with public transportation and the partial I have included some recommendations and tips for accepting great at solving other people’s problems and recommending well- however, they quickly realize it’s time to move so, we can take charge of our personal ad- closing of Bay Street thanks to exploding change and cultivating resilience in our lives as we continue to thought-out solutions but struggle when it comes to our own chal- on again. I’m sure that many who have expe- vancement, whether it be as an individu- hydro panels and a subsequent fire, my first work toward achieving our goals. These can be easily remembered lenges. This likely occurs because we are more emotionally invested rienced this downtown underground maze al, in our careers or in our relationships. We few months were chock full of surprises. In as the acronym CHANGE: in our own lives, and, at times of duress, our ability to think critically have, at one point or another, asked them- often get stuck on auto-pilot, going through full disclosure, there may have been a few Create a support network and rationally is clouded by our emotional state. Thus, staying calm selves, “How does one navigate this labyrinth our daily routines without asking, “Is this tears shed along the way and an underlying Help yourself and emotionally grounded should be the primary focus. It will allow with ease and grace?” Sorry to disappoint, but truly what I desire?” The answer may very desire to retreat to my comfort zone. Despite Accept change you to do what you, as a lawyer, do best: problem-solve. I cannot offer a clear answer here. What I can well be yes – which is wonderful – or it the moments of doubt, I quickly learned that Never accept defeat Tips: Try meditation or develop a mantra: “I am strong; I am fo- offer in this article, though, is a lighthearted ac- may be that one aspect of your life requires the key to dealing with change is to embrace Give yourself credit cused; I will get through this.” You can revise the mantra to any count of my journey to Toronto, which I hope change. Perhaps you require a work/life it and endure the setbacks while focusing Exercise and work/life balance words or phrases that inspire you most. will provide some tips on achieving your goals balance, a new challenge or a renewed sense on the positive. In short, the most important and cultivating resilience. of passion that only change can bring. thing is to carry on – to practise resilience. Create a support network. This goal has been the most challenging Accept change. Change is a part of life, and a career in law is vibrant My thought process was that a new market But what is resilience, and how does one one since my arrival in Toronto, most likely a reflection of the great and dynamic – evolving and progressing. We can’t stop change he backstory: Why make the change? could provide exposure to preferred substan- develop, maintain and practise it? “Build- support system in Ottawa: a wonderful and loving family, caring from happening. Trying to do so will only wear us down. If we em- There are many reasons why I decid- tive work, allow for diversity in clientele and ing Your Resilience,” a great article released and supportive friends, and a team of amazing colleagues. Having brace change rather than resist it, we will feel happier, less stressed ed to leave the comforts of Ottawa. offer further entrepreneurial opportunities. by Homewood Health, resonated deeply.5 a great support system with whom you can share your thoughts and, ironically, more in control. TBut believe me when I say it was not an easy Sometimes it’s also about taking a chance. It outlines why resilience is an important and fears, discuss challenges, turn to for advice or simply lean on Tips: Journal about the changes in your life. Document the peaks and 30 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 31 THE PRACTICE OF ADVOCACY
the valleys and how you are feeling in those moments. Focus on the hopeful that my career in law will continue to develop and flourish positives and the opportunities you wish to welcome into your life. no matter where this path may lead. Let us continue to cultivate re- silience so we may persevere in overcoming obstacles and succeed Never accept defeat. Instead, use a difficult situation as a learning op- in conquering our goals. portunity, not only to develop better coping and problem-solving Why we fall in love with our cases skills, but also to strategize and implement solutions. This is also a great opportunity to practise asking for help, which at the same – and how that love blinds us time can strengthen your interpersonal relationships. Learning to Notes take action will help restore balance by allowing you to regain con- 1. J Semley, “Ask Torontoist: Who You Calling ’The Big Smoke’?” Torontoist, trol over your circumstances. May 13, 2010;online:
32 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 33 facts but are really a post hoc assessment of paying their fees. Sometimes it happens hy we need to remain objec- by psychologist-economist Daniel Kahneman and explained in his right and wrong, good and bad, and above consciously. Most of the time, however, it is tive, and how we can do that 2011 bestseller, Thinking Fast and Slow.13 System 1, our automatic all, “fairness.” the natural result of being on one side of a For advocates, that enduring mode, is driven by our emotions. System 2 is our manual mode. It case. Fairness bias is highly infectious, and Wbelief must be reconciled with the need to allows us to think rationally and make calculated decisions. ow we fall in love with our cases there is nothing so special about advocates respond to the arguments of our adversar- Of course, we rely heavily on System 2 in crafting arguments Notes Of course, what is “fair” depends that would make us immune to it. ies. The counterweight to Lyndon Johnson supporting our own side of the case. However, we need to con- 1. Jonathan Haidt, The Righteous Mind: Why Good People on one’s viewpoint and interests. When we take on a matter, we naturally in this regard is English philosopher John sider that our carefully crafted arguments are influenced by our Are Divided by Politics and Region (Toronto: Random HThe findings of the U.S. News poll on los- become partial to it. We quiet the counter- Stuart Mill, who in 1859 wrote in On Liberty, emotions and that we need to go full manual to see the case from House, 2012), 31–41. er-pay costs are echoed in several studies of arguments like we do the cognitive dissonance “He who knows only his own side of the case the other side – and from the standpoint of an objective third par- 2. Ibid, 27–30, 41–48. employee compensation, including one aptly that accompanies our own decisions. We begin knows little of that. His reasons may be good, ty. This is a difficult, but highly revealing exercise. By “tricking” 3. NW van Yperen, K van den Bos & DC de Graaff, titled: “Performance-based Pay is Fair, Partic- to equate our side of the dispute with what is and no one may have been able to refute our brains to assume the other side of a dispute, we can better “Performance-based Pay Is Fair, Particularly When ularly When I Perform Better.”3 “fair.” This may be an unwelcome reality for them. But if he is equally unable to refute the understand the flaws in our arguments and develop ways to re- I Perform Better: Differential Fairness Perceptions Fairness bias is also endemic to sports fans, the advocates who pride themselves on the reasons on the opposite side; if he does not spond to them. I have had the most success with cases that afford- of Allocators and Recipients” (2005) 35(6) European who naturally think referees and commenta- ability to remain detached while engaged so much as know what they are, he has no ed the time, and budget, to engage in full mock cross-examinations Journal of Social Psychology 741. See also DM tors are biased against their favoured team. in litigation’s cut and thrust, but love is ground for preferring either opinion.” of my own witnesses. Messick & KP Sentis, “Fairness and Preference” During one game of the 1986 World Series blindness.8 Think of the last time you received In our fused bar, where the advocate direct- (1979) 15(4) Journal of Experimental Social between the Boston Red Sox and the New a decision that rejected the “obvious truth” of ly advises clients, she or he must also be able ontrolling our bias for maximum benefit Psychology 418. York Mets, the switchboard at NBC, which your argument. Consider the possibility that to advise them properly of both the strengths Being predisposed to our side of the dispute is, on the 4. As recounted by longtime NBC announcer Bob was broadcasting the game, received 1,800 “truth” may not have been obvious and your and weaknesses of their claims. Clients are whole, very helpful. We must believe in our cause to con- Costas on the October 13, 2017, episode of the Bill complaint calls. Approximately 1,000 callers own bias clouded the objective reality that too invested, financially and emotionally, to Cvince others it is right. Sy Sperling made a fortune with his Hair Simmons Podcast. For further evidence of the “home complained that announcers Vin Scully and drove the judge’s decision. see their cases clearly. Counsel’s advice and Club for Men based on the company’s famous, if kitschy, tag line, team” bias, see AH Hastorf & H Cantril, “They Joe Garagiola were biased against the Mets. direction must be tempered by objectivity. “I’m not only the Hair Club president. I’m also a client.” Saw a Game: A Case Study” (1954) 49(1) Journal of The other 800 or so complained that Scul- onviction makes our arguments How do we revisit objectivity when we However, we are better advocates, and we serve our clients bet- Abnormal and Social Psychology 129. In the study, ly and Garagiola were biased against the more compelling are naturally biased toward our side of ter, when we are able to occasionally put bias aside and see cases Princeton students viewing a film of a football Red Sox. The slightly increased number of Falling in love with our cases is the dispute? I believe we need to imagine from the standpoint of our adversaries. By truly adopting the other game between their school and Dartmouth “saw” complaints from New York was attributed to Cnot necessarily a bad thing. In fact, overall regularly the case through the eyes of our side, we will better understand the flaws in our own arguments. Dartmouth commit twice as many penalties as that city’s larger population and the fact that it makes us better advocates. U.S. president adversaries. This goes beyond setting out The key is to be able to turn our bias on and off. The last thing we Princeton. Dartmouth students recorded an equal NBC was a local call for New Yorkers but a Lyndon B. Johnson is famous for having the facts our adversaries need to prove and want is self-doubt when making submissions. If we do not love our number of penalties by both teams. toll call for Bostonians.4 said, “What convinces is conviction. Be- the evidence that can prove those facts. To cases, judges will not care for them at all. 5. L Babcock & G Loewenstein, “Explaining Bargaining Closer to the courtroom are litigation lieve in the argument you’re advancing. If truly counter our fairness bias, we need to Impasse: The Role of Self-Serving Biases” (1997) studies by economists Linda Babcock and you don’t you’re as good as dead. The oth- assume the role of our adversaries and “ar- 11(1) Journal of Economic Perspectives 109; L George Loewenstein. Participants were di- er person will sense that something isn’t gue” the case from their standpoint. Babcock, G Loewenstein & S Issacharoff, “Creating vided into pairs, with each pair having a there, and no chain of reasoning, no matter Indeed, the studies conducted by Bab- Convergence: Debiasing Biased Litigants” (1997) 22 “plaintiff” and a “defendant.” The partic- how logical or elegant or brilliant, will win cock and Loewenstein show that simply Law & Social Inquiry 913. ipants were asked to guess the award from your case for you.” telling people about fairness bias does little 6. White Burgess Langille Inman v Abbott and Halliburton a real personal injury trial and each pair Studies of persuasive speaking back up to help them counter it. While study par- Co., [2015] 2 SCR 182 at 198–210. was then tasked with trying to negotiate a Johnson’s assessment. Based on research ticipants thereafter generated more accu- 7. R v Livingston, 2017 ONCJ 645. settlement. Guesses by the plaintiffs were, he conducted in the late 1960s, University rate predictions about what the other party 8. Bono, pop psychologist. on average, twice as high as the defendant of California Los Angeles professor Albert to their mock negotiation would guess was 9. Harry Mills, Artful Persuasion: How to Command guesses, and the pairs with the more dispa- Mehrabian concluded that perception of the trial judge’s award, their own predic- Attention, Change Minds and Influence People (New rate guesses were less likely to reach resolu- speakers depends mainly on their presenta- tions did not change. Participants accepted York: AMACOM, 2000), 40–43. tion.5 This is fairness bias at work. tion: 55 percent body language and 38 per- that fairness bias would affect their count- 10. Ibid. See also Jeff Thompson, “Is Nonverbal Communication As advocates, we allege bias among judg- cent tone of voice; and only 7 percent based er-parties but believed that they themselves John Collins, B.A., LL .B. a Numbers Game?” Psychology Today (September es (rarely), witnesses (occasionally) and on choice of words.9 were immune to it. However, when partici- Barrister and Solicitor 30, 2011); online:
34 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 35 REMINISCENCE
The good old days
Earl A. Cherniak, Q.C., LSM, ASM
was called to the bar of Ontario in 1960, in what is sometimes euphemistically called “the good old days.” Some of it was good and some was not so good, but Ithe practice of law was certainly different in the 1960s and the 1970s than it is today. There were five thousand lawyers in Ontario in 1960, just about evenly divided between Toron- to and the rest of the province. About two hundred lawyers were called to the bar with me in 1960, and five were women. No LSAT was required for entry to law school – only a recog- nized university degree and about $500 for tuition to enrol in Osgoode Hall Law School, on the grounds of Osgoode Hall. Students could and did fail. In 1960, typewriters were mostly manual. There was no fax ma- chine and no voice mail; “cc” meant carbon copy on carbon paper, and “bcc” did not exist. Printed casebooks were unknown for ar- gument in court, as was highlighting text and redlining drafts. Authorities were trundled into the courtroom on trolleys. Only lawyers in the few large (25-lawyer) Toronto firms docketed their time. The words “email,” “Google” and “internet” had not been coined. Mail took one to three days to be delivered, so an exchange of correspondence took about a week. Lawyers gowned at their lockers in the courthouse, where the day’s gossip (and much more) was exchanged and learned. No one talked about “civility,” but the litigation bar was small, even in Toronto, and word got around if you were a jerk. In magistrate’s (now provincial) court and weekly motion courts, cases and motions were heard in the order of the senior- ity of counsel, which meant that the continuing legal education for young lawyers consisted of watching their seniors in action, where we learned what not to do as much as how to do it. Crown contact at all with the office – international telephone calls were attorneys and judges ate lunch together, while members of the very expensive – and I dealt with the mountain of correspon- criminal bar sat at other tables and looked on. Disclosure de- dence only on my return. pended on the whim of the Crown attorney. Matrimonial law, which was part of my practice for ten years, What passed for diversity in those days was whether lawyers was very different from today. A deserted wife could sue for in- were Protestant, Catholic or Jewish, and many firms had no di- terim alimony, but the test was a sum to allow her to live “quietly versity in that sense at all. and in retirement,” which meant a pittance and was not avail- astering the art and craft of advocacy is a career long commitment and we are There were few organizations for lawyers. In Toronto, the Toron- able to a wife guilty of adultery, irrespective of the conduct of here to help. The Advocates’ Society has een the premier provider of advocacy to Lawyers’ Club did not accept Jews, so they joined the Reading the husband. Divorces were granted only on proof of adultery or skills training for over years. e are proud to provide lawyers across Canada Club. But the Advocates’ Society, founded in 1963, and the county cruelty, and warnings had to be given to each spouse in a trial and district law associations accepted all qualified comers. about collusion and connivance in the proof of adultery, which with the training and the confidence they need to execute on their feet when it Long vacation (all of July and August) actually meant vaca- if present would prevent any relief being granted. Uncontested counts. The Judge will notice your clients will too. tion, since there were no trials, time did not run for the purpose divorce trials before some judges took five minutes or less. Some of calculating deadlines, discoveries could be held only on con- lasted more than an hour. sent (rarely given) and only urgent motions could be heard. In Some judges would not grant custody of children to a woman isit www.advocates.ca. Be part of the legacy of extraordinary advocates. 1970, I took a five-week trip to Europe with my family with no who had committed adultery, irrespective of the conduct of the
THE ADVOCATES’ JOURNAL | SUMMER 2018 | 37 THE LAST WORD husband. For some judges the answer to the question “What about nine days on liability and damages, including argument. (A simi- the children’s religious education?” had better be, “Oh, my Lord, I lar case would take five to six weeks today.) take them to church and Sunday school every week.” Otherwise, a Many of us in the litigation bar in the 1960s practised in the civ- custody award was problematic. il, criminal and family courts and were constantly in all of them, The first Ontario Jewish Supreme (now Superior) Court judge often more than one on the same day, or conducting discoveries, Witty judgments (Abe Lieff) was appointed in 1963. Until Mabel Van Camp was getting the experience on our feet that is unknown to today’s lit- appointed in 1971 (coincidentally, at the same time as Mayer igation bar, at least in any major centre. Specialization, except in Lerner, the second Jewish judge) all Supreme Court and most the insurance defence bar, was almost unknown and many emi- lower court judges (county and magistrate) were old, male and, nent counsel, especially in the county towns, did solicitors’ work with few exceptions, difficult and crusty. Lawyers and parties as well. Discovery and especially production were nothing like whose names ended in a vowel or with a “k” were looked on today. “Trial by ambush” was not uncommon. Orestes Pasparakis by some judges with suspicion. Supreme Court judges went on The number of female lawyers was vanishingly small, and those circuit, and some judges preferred certain county towns, not that there were, with very few exceptions (Judy LaMarsh was one), The author extends special thanks to Stephen Taylor and James Foy. always to the pleasure of the local practising bar. The Ontario did not practise at the litigation bar. Court of Appeal in the 1960s was composed of some very good, I was fortunate to have the opportunity to learn my craft in but very miserable, judges who made life exceedingly difficult those days, because the kind of experience I and my contem- udicial decisions typically range from the dry to the for young lawyers who appeared before them, with the result poraries had is not possible today, for countless reasons, not mind-numbingly dull. There is a good reason we don’t stay that many never returned after one unhappy experience in that least of which is economic. But when I reflect on the changes up at night eagerly turning pages to find out how the latest court. A few of us, such as John Sopinka, Claude Thompson, that have taken place in the profession since those days – for edition of the Ontario Reports ends. Reading judgments, in most cases, Stan Fisher, John Brunner, Lorne Morphy, Doug Laidlaw and instance, the strides that female lawyers have made generally is like taking medication – something done only as needed. While me were gluttons for punishment and kept coming back. (“Mr. and in litigation and on the bench – I cannot help but think back this is not a uniquely Canadian phenomenon, our decisions seem Cherniak, have you anything else to say?” Answer: “Yes, indeed I on the waste of talent in my generation and that of my mother. to be particularly unexciting. As one United States Court of Appeal do, my Lord.”) There were exceptions even then. Ken Morden, The women I grew up with – my sisters, my mother and their judge remarked, “I like my Canadian colleagues, but, boy, when it John Morden’s father, was one, as was Chief Justice Dana Porter, friends – were no less talented and capable than the women I comes to reading their opinions, it’s like wading through molasses.”1 Julian Porter’s father. Things began to change in the early 1970s, interact with today, but it didn’t occur to many of them that When a witty decision is written, it is quickly forwarded from with the appointment of the likes of John Brooke, Syd Robins law (and some other professions) was an option. So, while I look firm to firm and lawyer to lawyer. These judgments bring a lit- and Charlie Dubin. back with nostalgia on some of the “good old days,” for all its tle colour to an otherwise grey landscape. Particularly amusing Trials in that period were short – two or three days at most. Even flaws the world we live in now, and the practice of law in par- decisions may even garner media attention. It seems to me that, Arnold v. Teno, one of the trilogy, tried in June 1974, was completed in ticular, is infinitely better. slowly but surely, more and more judges are writing with liter- ary style, with humour and with wit. Canadian judges are in- creasingly trying to breathe life into their judgments and inject their personalities into their craft. Please don’t. Grey is good and molasses is just fine. Feel free to It’s not that judges can’t be funny. I’ve read a few decisions that were laugh-out-loud funny. Really. There’s a line from a recent Ontario Superior Court of Justice decision that still makes me smile when I think of it weeks later. The problem isn’t judges’ lack of wit; it’s that levity and high style are contrary to the very purpose of judicial writing. A few obvious observations upfront: As Lord Denning noted, a reasoned decision is “the whole difference between a judicial decision and an arbitrary one.”2 And, as the old adage goes, jus- ramble... tice must not just be done – the litigants must see it being done.3 Did you know that the average user spends a maximum of 120 seconds I have come to realize how important reasons are, especially to on a webpage? That doesn’t give you a lot of time to showcase the unsuccessful party. The winning party is usually just pleased are so unreasonable that nothing will satisfy them, even if they your brand in a digital ad. with the prize. Winners don’t fuss over the judge’s analysis or why win. But take the reasonable defeated litigant (you will all have they got their way. Decisions are written for the loser. On reading known many of these), and see whether he feels that he has So why not talk about your expertise in The Advocates’ Journal, a draft of this article, one of my colleagues pointed out that a sim- had a fair crack of the whip. One of the important duties of the where 6000 of Canada’s top litigators come to enjoy articles written ilar sentiment was expressed by the Court of Appeal for Ontario, courts is to send away defeated litigants who feel no justifiable by respected legal professionals? quoting the Honourable Sir Robert Megarry, vice-chancellor of the sense of injustice in the judicial process.4 Chancery Division of the High Court of Justice, albeit dealing with Several years ago, Jonathan Lisus wrote about losing as an ad- Our audience is here to read, so no need to rush your message. judicial fairness generally rather than humour specifically: vocate. His thesis was that losing is part of the job. Lisus explained Feel free to ramble on and on and on... we certainly do. Sometimes I ask students to say whom they consider to be the that losing teaches us humility, it gives us courage and it makes us most important person in a court room. Many pick the judge; better advocates.5 And that may be. All I know is that I hate losing. others give a variety of answers. Once one even opted for the Even more than I hate losing, I hate having to explain to my client usher, without being able to explain why. My answer, given un- why we lost. A well-reasoned judgment can make this awful expe- To request a copy of our media kit, contact Lauren McVittie, Marketing & Communications Coordinator, hesitatingly, is that it is the litigant who is going to lose. Nat- rience a little more palatable. Losing clients benefit from knowing Phone: 1-888-597-0243 x115 | Email: [email protected] | www.advocates.ca urally he will usually not know this until the case is at an end. that the court understood the issues and carefully considered the But when the end comes, will he go away feeling that he has arguments. Losers need to know that the judge (even if we may dis- had a fair run and a full hearing? Some litigants, of course, agree with the ultimate determination) did his or her job.
38 | SUMMER 2018 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | SUMMER 2018 | 39 ION CH AT A R M T B The thought of having to present an unsuccessful client with a judge’s expression of his or her personality. Even when deftly done, I E B R R 2017-18 S flippant decision makes my stomach drop. How do you convince a the “clever” decision fails to fulfill the court’s function. A judge is A general counsel (even worse, a general counsel sitting in London or supposed to be an impartial and largely fungible member of an in- TOP 10 New York) that the wisecracking judge took his or her legal problem stitution that applies the law justly and blindly. The judge as celeb- seriously? Clients will feel that we have wasted their time and mon- rity undercuts the fabric of that institution. ey only to receive a glib decision that makes light of their concerns. From time to time, proponents of more colourful judgments will The moral force of a judgment can be easily lost. In a recent appeal point to “accessibility” as a benefit of unconventional writing.8 decision, the court went through a detailed legal analysis and came There’s no question that clear judgments written in plain language to a fair and reasoned conclusion. However, the decision ended are desirable. However, we must not confuse a decision that “can be e can he p ou ind the with a gratuitous quip. As I read it, it was clear as day that any client read” with one that just “must be read.” A decision that can be read would overlook the analytic strength of the decision, fixate on the and understood is an essential feature of judicial writing. A deci- ending and question the legitimacy of the entire process. No losing sion that must be read for its humour is undoubtedly a hindrance to litigant would feel justice was done even where the earlier analysis clarity for the people to whom the decision matters most. of the court was cogent. George Rose Smith, a former Arkansas Su- Others I suspect will see this as an issue on the margins. And, preme Court judge observed that “the loser is inevitably certain to happily, it still is. Nonetheless, each new witty decision chips away be embittered by the court’s decision, no matter how right it may at the institution. A note from one of the students who helped me be as a matter of law. When an intense fire is sure to be kindled, the pull together materials for this piece reads: “The effective com- wise judge does nothing to add fuel to the flames.”6 munication of judicial reasons is essential to ensure that faith in There are also judgments that poke fun at the parties. Oftentimes, the justice system, and the rule of law, remains strong.” While this these are the litigants who bring their petty grievances and twisted sounds like a sentence from a law school seminar, it remains im- perspectives into the courtroom. While there are cases that should portant and it remains true. Having dealt with local courts in a never see the inside of a courtroom, it should be clear to everyone number of jurisdictions, I have come to realize that what we have that mockery isn’t the right approach. If a proceeding is abusive, in Canada is rare: a judicial system that is unquestionably fair and condemnation should be doled out through costs and not ridicule. impartial. We need to protect that system, even if it means reading Few people go to court for sport. Rightly or wrongly they are and writing dry – and, maybe, even dull – judgments. seeking a hearing – to be heard. Jest, probably the clearest indica- tion that the litigants are not being taken seriously, gives rise to the impression that they have not truly been heard. It is also possible that, from time to time, it’s the court and not the litigants that has lost perspective. One memory stands out for me, Notes and I acknowledge it is not directly on point. As a summer student 1. Nathan Koppel, “Court Jesting: These Sentences Don’t Get Judged years ago, I was invited to watch the hearing of Olympia & York’s Too Harshly,” Wall Street Journal, June 29, 2011; online: < https:// filing for protection under the Companies’ Creditors Arrangement Act. blogs.wsj.com/law/2011/06/29/court-jesting-the-art-of-pop- It was a massive case, with billions in debt and a courtroom filled judging/>. The author notes the allegations of misconduct and with gowned lawyers. During the course of the hearing, one lawyer resignation of Judge Kozinski following the drafting of this stood up in the back of the room to raise concerns about his client, article. His comments nevertheless provide a useful window into a family-run company, that supplied some $76,000 of glass panels. the attitudes of some people including, most importantly, some In response, one of the phalanx of lawyers representing Olympia & judges, toward judicial humour. York stood up and made a jibe about the trivial nature of the claim 2. Sir Alfred Denning, Freedom under the Law (Toronto: Carswell, 1949) 91. and suggested that the court’s time was being wasted. The court- 3. Lord MacMillan, “The Writing of Judgments” (1948) 26 Can Bar Rev 491. room erupted into appreciative laughter. When I was growing up, 4. The Honourable Sir Robert Megarry, cited in JMW Recycling Inc v my parents ran a family business and $76,000 was a huge amount Canada (Attorney General) (1982), 35 OR (2d) 355, 1982 CarswellOnt of money to them. In that moment, my views were aligned with 762 (CA) at para 31. To arrange a mediation, those of Professor William Prosser, who wrote that “[t]he litigant 5. Jonathan Lisus, “The Advocate as Loser” 30 (summer 2011) The arbitration or appraisal has vital interests at stake. His entire future, or even his life, may be Advocates’ Journal 17–20. trembling in the balance, and the robed buffoon who makes merry 6. George Rose Smith, “A Critique of Judicial Humour” (1990) 43 Ark please call our ADR at his expense should be choked with his own wig.”7 L Rev 1 at 26. Coordinator or book online. We also need to remember the critical role judgments play in weav- 7. William L Prosser, cited in George Rose Smith, “A Critique of Judicial ing the fabric of the common law. Our judges’ decisions influence Humour” (1990) 43 Ark L Rev 1 at 2. (416) 866-2400 common law around the world and will shape the law into the future. 8. See eg Tracey Tyler, “Clarity in the Courts: Justices Go to Writing Although we all may know that Justice so-and-so is a wise guy, his School,” Toronto Star, August 5, 2011; online:
With over 40 years of litigation experience, Oatley Vigmond knows personal injury law. We’ve argued hundreds of cases, secured Proud Member record settlements and have helped shape Canadian law. Yet for all our success in the courtroom, we have never lost sight of the fact that people come first. We are dedicated to serving clients across Ontario. Contact us at 1.888.662.2481 or oatleyvigmond.com.