ALUMNI MAGAZINE | 2008

A Perfect Match DAVID SHOEMAKER ’96 BRINGS WOMEN’S TENNIS TO CENTRE COURT

WHAT’S INSIDE

WAR & PEACE IN SIERRA LEONE PROF. CRAIG BROWN ON WHY LAWYERS LOVE GOLF PROF. RICHARD MCLAREN AND BASEBALL’S MITCHELL REPORT A GREAT CASE – JOHN PELLER ’80 - CANADA’S LEADING VINTNER THE MAGIC OF DAVID BEN ’87 www.law.uwo.ca

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y h h a o f f R A p o n I D T T W Alumni O G I F S L It ALUMNI MAGAZINE | 2008

Featured Sections

Law & Sports From Around the School 2 A Message from the Dean 14 A Heavy Hitter 3 Legal Briefs 16 Why Lawyers Love Golf 9 Conferences 19 Digging Deep 10 Speakers 20 A Perfect Match 22 Achieving his Goals Profiles 23 On Your Marks... 12 Legal Leader 24 Playing in the 32 Tales of Two Cities Premier Leagues 38 A Magical Transformation 20 26 Strokes of Success 43 A Teaching Life Research Alumni Relations and 28 War & Peace Development 30 Of Mouse and Man 44 Western’s Major New Cheers! Fundraising Campaign 44 Cassels Brock supports Faculty 34 Making a Great Case Fellowship in Contracts Law 36 Grape Expectations 45 Blakes: Investing in Students 37 A Career Well Served 46 Osler’s: ‘Programs of Excellence’ 4 Discussion Faculty News and Information 2 40 Public Law and Legal 48 Faculty Briefs Philosophy at Western 55 In the News Memorial Western Law Alumni 47 Honouring the Memory of a Legal Pioneer 56 Western Law Alumni Dinner 57 Message from the President Law Seminar 58 Class Notes 62 Business Law Seminar Series Brings World Renowned Scholars In Closing 34 to Western Law 60 Franchise Law 101 61 Why Lawyers Should be Concerned About Bill C-61 Editor: Susanna Eayrs Western Law Alumni Magazine Editorial Board: Tim Edgar, Ian Holloway, 2008. Western Law Magazine Grant Huscroft is the alumni magazine of the Faculty of Law, The University Contributing writers: Susanna Eayrs, Katherine of Western Ontario, Canada. Low, Dawn Milne, Karen Otto, Jeffrey Renaud Photographers: David Chidley, Alex Dimson, Post Publication Agreement No. Craig Glover, Rachel Lincoln, Matt May, Paul Mayne, 40710538. The views and opinions Geoff Robins, Warren Toda expressed in this magazine are those of the authors and not Design & Production: The Marketing Department necessarily of Western Law. Creative Consultant: Terry Rice Editorial Assistants: Teresa Bourne, Comments and contributions Tigger Jourard, Molly Lyle are welcomed. Please email [email protected] Printer: Contact Creative Cert no. SW-COC-002956

Copyright 2008. The University of Western Ontario 3 A Message from the Dean

WELCOME TO THIS YEAR’S WESTERN This year has brought several LAW ALUMNI MAGAZINE. Our new changes to the school: We’ve issue makes clear just how far Western revamped our Career Services Offi ce, Law has grown from its origins, and enabling our students to have the how national – indeed, international best possible advantage in the work – we’ve become in outlook. place, our Faculty Council has voted This being an Olympic year we in favour of providing alumni the though it would be fun to highlight option of changing their degree to a some of our faculty, alumni and J.D. (Juris Doctor) or retaining their students who are involved in the LL.B. designation, and this July we world of sports as athletes and as welcomed two new Associate Deans. WESTERN LAW TODAY lawyers. And as you will see, there is Mark Perry is the new Associate an impressive array of stories to tell. Dean for Research, Graduate Studies IS A VIBRANT AND Several of our articles also and Operations and Michael Lynk is showcase the impressive level of Associate Dean, Academic. They are EXCITING PLACE, AND research that is taking place in the succeeding Grant Huscroft and Tim law school today. We’ve included a Edgar who brought a great deal of I FOR ONE COULDN’T feature on law and philosophy at professionalism and dedication to Western – an area of historic strength, their positions and to whom I owe a BE MORE PROUD TO BE but one which is undergoing a period great deal of thanks. of sustained renaissance. There is a I’m concluding my eighth year as ASSOCIATED WITH IT. wonderful story on Professor Valerie Dean and my bullishness about our Oosterveld’s work on the special future is tinged with sadness over DEAN IAN HOLLOWAY court for Sierra Leone and we report the retirement of our colleague, Syd on some of Professor Mark Perry’s Usprich. Syd is leaving Western Law scholarship in the fascinating arena after thirty-eight years as a member of of biotechnology law. faculty – the longest-tenure of anyone We also feature Doug Ferguson ’81 in the history of the law school. He will and the important work being done by be greatly missed. him and his colleagues in Community Western Law today is a vibrant and Legal Services, our legal aid clinic. exciting place, and I for one couldn’t Doug was recently elected President of be more proud to be associated with it. the Liberal Party of Canada. For him, I hope that after reading what follows public service comes as second nature. you will feel the same. One of our great success stories this past year was the Pre-eminent Business Law Scholars Seminar Series, organized by Professor Chris Nicholls. Chris’s series provided a unique opportunity for members Dean Ian Holloway of the Western Law community to hear and engage with some of the world’s most infl uential corporate law scholars. There is no other course like it in Canada.

4 2008 WESTERN LAW ALUMNI MAGAZINE S F E

From Around the School I R B

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Top lawyers reveal art of M & A deals Geoff Beattie ‘84, Deputy Chairman Thomson Reuters A G

Five of Canada’s top lawyers visited the law school in and President of The Woodbridge Company Limited has E September to share their insights at a special mergers and made a commitment of $50,000 to establish the Beattie L acquisitions panel. Family Speaker Series in Business Law. This Speaker Series will allow Western Law to bring a prominent speaker, to The University of Western Ontario. The Law School will host a public lecture on a topic in Law and Business, to which Western Law students, Ivey HBA and MBA students, faculty from both schools, members of the regional business and legal community, and others will be invited. The public lecture will profi le topical issues in the fi eld and will serve to promote the profi le of business law at Western. “These are magnifi cent gestures on the part of Steve Coxford and Geoff Beattie,” says Western Law Dean, Ian Holloway. “The rule of law is perhaps the most precious stone in our national bedrock – yet it is something that we often take for granted. These new prestigious lecture series will remind ourselves afresh each year of the importance (L-R): Western Law alumni Garth M. Girvan (McCarthy Tétrault), Ronald K. Durand of taking the rule of law truly seriously.” (Stikeman Elliott), Grant R. H. Haynen (Bennett Jones), Joan M. H. Weppler (Dofasco) and William J. Braithwaite (Stikeman Elliott) Western Law welcomes new Director The fi ve alumni, all from the class of ‘76, provided Robyn Marttila, a lawyer with the London litigation fi rm of Western Law students with a lively and insightful look at Cohen Highley, is the new Director of Career Services at the high stakes world of mergers and acquisitions. Western Law. A graduate from the University of Windsor “The panel was a wonderful and exciting opportunity Faculty of Law, she was called to the Ontario Bar in 1995. for our students to learn from some of the top M & A lawyers in the country,” said Professor Chris Nicholls, the seminar’s organizer. “We’re grateful that the panelists very generously took time from their very busy schedules to share their wisdom and, I’m delighted to say, their wit with Western Law students.”

Two new lecture series established by law alumni Stephen R. Coxford ‘77, a member of Western’s Board of Governors, has donated $150,000 to endow the Coxford Lectureship Fund, which will be held at Foundation Western. Beginning in the academic year 2008-09, this fund will allow Western Law to invite a prominent practising or academic lawyer each year to deliver an original Robyn Marttila, Western Law’s new Director of Career Services lecture on the “rule of law” or another topic addressing questions related to the transparency and accountability “Robyn is an extremely impressive person,” says Dean of government. Ian Holloway. “She has an excellent reputation as a lawyer “Although I haven’t practised law for more than and brings a depth of skill and experience to this very 15 years, in my current endeavours I’m reminded daily of important position.” the value of my time at the law school,” says Coxford. “My During her ten-year career at Cohen Highley, Robyn interests as a student tended in the direction of corporate worked in a variety of areas including class actions, law and fi nance. But with the passage of time, one takes a environmental law, labour and employment law, tax more expansive view of the issues that shape society and appeals, oil and gas law and commercial litigation. She I hope that this lecture series will direct attention to some appeared before the Federal Court of Appeal, Divisional questions of broad pubic importance.” Court and various tribunals, and has litigated applications It is anticipated that the annual lecture will appear in for leave to appeal to the Supreme Court of Canada. For Canadian Journal of Law and Jurisprudence, published the past fi ve years she was the fi rm’s Director of Student by the Faculty of Law, and that over a number of years a Programs and was responsible for recruiting, training and serious body of scholarship will develop. coordinating their summer and articling program.

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From Around the School

Economy Outreach grant held by Western Law Professor, Western Law team wins national hockey title Margaret Ann Wilkinson. The conference was co-hosted The Western Law hockey team took home its second by Professor Wilkinson and Professor Mark Perry, consecutive trophy this past March at the Aird and Berlis Western Law’s Graduate Chair. “The Canadian Intellectual hockey tournament championship in Kingston. Despite the Property Academy: Outreach and Audience” took place cold outdoors, Western Law was red hot, fi nishing undefeated September 19–21, 2007. at the national inter-law school tournament, cementing its Panels and discussions focused on existing relationships status as the only school ever to win the A&B cup. between the I.P. professoriate and the legal information needs of the courts, business and citizens. The principle aim of the outreach grant work is to explore ways of bringing the expertise of the academic bar in intellectual property in Canada to assist the clinical environment of public legal education. Western Law has received a special grant of $75,000 from the Law Foundation of Ontario to support a community-based project in I.P. law. The research project will connect the intellectual property expertise in Ontario law schools and at the Ontario Bar with clinical education in Ontario’s law schools to help underserved members of the public. The project will explore at least six potential models for delivery of intellectual property expertise to the public. “There is an increasing depth of experience among the I.P. faculty in Ontario law and an increased awareness in the The champs celebrated their victory at the Aird and Berlis hockey tournament public that they need specifi c information about I.P.,” says this past March Wilkinson. “This project will examine the role of student law clinics to deliver an effi cient and effective means of The squad, composed equally of returning champions connecting the two.” and new blood, made an impressive run to snag the hardware amid steep competition. The team was solidly anchored at the blue line by veteran defenceman Damien Liddle and rookies Jon Domanko, Bryan Ward and Ryan Nielsen. Firepower up front included vets Hugh McKee, Robert Kallio, Eli Cranley, Brendan Jones and Andre Kuyntjes along with young guns Gord Cameron and Sean Flaherty. The MVP of the tournament was goaltender Will Hooper, and the winning team’s proud coaches were Dan Bellefontaine and Andrew Scott. The A&B Cup remains in London for yet another year as a symbol of a hard- fought tournament and a job well done.

Law’s Faculty Council favours J.D. degree The Western Law Faculty Council has voted over- Professor Margaret Ann Wilkinson whelmingly to change Western Law’s degree designation The project will have four phases over the next several from LL.B. to J.D. years, including surveys, consultations, pilot study and “I was gratifi ed by how collegially the debate took historical analysis. The work will include consultations place,” said Dean Ian Holloway. “This was an issue that with other law school faculty and clinics, with university could easily have enfl amed passions. It says something administrators, with members of the Bar and with members special about the culture at Western that the whole process of the public. Professors Wilkinson and Perry will be joined went as smoothly as it did – even when people disagreed by Doug Ferguson (Director, Community Legal Services), with one another.” Professor Richard McLaren (Director, Western Business Alumni consultation was sought on this question and Law Clinic), and Margaret Capes (Faculty Advisor, Pro their input was made available to all members of Faculty Bono Students program at Western, and Review Counsel, Council prior to the vote. Community Legal Services).

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January Term attracts international experts Honorary Doctor of Civil Law – Sir David Williams In January, Western Law students undertook an intensive The University of Western Ontario conferred an honorary month-long course taught by 15 high-profi le faculty and Doctor of Civil Law upon Sir David Williams for his work practitioners from across Canada and abroad. in the world of common law. Williams, jurist, lawyer and The ‘January Term’, first introduced in 1999, law teacher spoke to graduates from the faculties of provides upper-year students with an active learning Graduate Studies, Law, the Schulich School of Medicine & experience and an opportunity to choose from a wide Dentistry and the Richard Ivey School of Business at the range of courses. June 13 afternoon session of “The January Term is one of the most special parts Western’s 291st Convocation. of our curriculum,” says Western’s Dean of Law, Ian In his citation, Faculty Holloway. “Through it, we are able to draw to Western of Law, Dean Ian Holloway, each year a group of tremendously accomplished says Williams did much to visitors from all over the world who teach courses we professionalize and modernize could not otherwise offer. It represents a way for us to the administration of the broaden our institutional horizons and is a key part in University of Cambridge during our strategy for internationalization.” his time as Vice-Chancellor. Courses offered this year included Law and Religion, “David Williams is someone National Security Law, and Corporate and White Collar who typifi es generosity of Crime. spirit, and is known by all as Professor Rick Bigwood from The University of Sir David Williams a paragon of fairness and Auckland in New Zealand taught Advanced Contract integrity,” says Holloway. Law. Bigwood, a former Senior Solicitor with Australia’s “Truly, his career exemplifi es the old motto, labore et Federal Attorney-General’s Department and editor of honore – by labour and honour. It is a tremendous source the New Zealand Law Review, enjoyed the different legal of pride for all of us at Western that someone of his stature and cultural environment. and accomplishment stands among us today.” Williams, who served as Vice-Chancellor of the University of Cambridge from 1989 to 1996 and who has more than a dozen honorary degrees to his name, says the graduates have the ability to change the world with their actions, as long as ego remains in check. “There is nothing that cannot be achieved if you don’t worry about who should receive the credit,” says Williams.

Jessup International Law Moot Court Competition – Call for Judges The University of Western Ontario Faculty of Law will host the Canadian National Division Qualifying Tournament of Back Row (L-R): Perry Dane (Rutgers), Rick Bigwood (University of Auckland), Hilary Josephs (Syracuse), Dean Ian Holloway, Poonam Puri (Osgoode), Geoffrey the 2009 Philip C. Jessup International Law Moot Court Leane (University of Canterbury), John Cross (Brandeis School of Law), John Competition. The Jessup Competition will be held March 4 Blum (Loyola), Raymond Friel (University of Limerick) Front Row (L-R): Munir to 7, 2009 at the Lamplighter Inn & Conference Centre in Maniruzzaman (University of Portsmouth), Barry Barton (University of Waikato), Cynthia Williams (Osgoode), Ron Atkey (Osler, Hoskin & Harcourt) London, Ontario. Approximately 120 lawyers, legal academics and “It’s a great opportunity to form collegial bonds with a new judges will be needed to act as competition judges. community of fi ne teacher-scholars at Western, as well The 2009 topic will involve questions on the power and as to experience the teaching and learning initiatives and authority of the International Court of Justice. One need practices of an institution that takes the student learning not have a specialty in international law, only knowledge experience very seriously,” says Bigwood. “It was a of good advocacy. privilege to be associated with the Faculty, if only for such More information on the competition will be available a short time.” August 2008, at www.jessupcanada.org or contact the Canadian National Administrator, Jamie Larkam, at [email protected]. Advance registration deadline is December 19, 2008.

9 1 0 LEGAL BRIEFS 2 0 0 8

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From Around the School N E R E International Symposium on Contract Law F N O

The symposium attracted leading international academics C from England, Hong Kong, Australia, New Zealand and the United States and senior appellate judges from across Canada. “Having judges discuss and debate with scholars made for a wonderful interplay of theory and practice,” says Neyers. “We were fortunate to have had such a wide array of impressive speakers.” International contract law scholars participating at the conference included Charlie Webb (London School of Economics); Robert Stevens (University College London); Ralph Cunnington (Birmingham Law School); Kelvin Low (University of Hong Kong); Mindy Chen-Wishart (University of Oxford); Andrew Robertson (University of Melbourne); Rick Bigwood (University of Auckland); Daniel Markovits (Yale Law School); Mark Gergen (University of Texas at Austin); and Andrew Gold (DePaul Professor Jason Neyers University College of Law). Judicial participants in the symposium included the Honourable In January, Western Law hosted “Exploring Contract Law”. The Justice W. Ian C. Binnie of the Supreme Court of Canada, the international symposium investigated under-theorized and Honourable Justices Blair, Feldman and Sharpe of the Court of complex areas of contract law that are likely to be examined by Appeal for Ontario, and the Honourable Chief Justice Finch of the appellate courts in the near future. British Columbia Court of Appeal. Western Law professor Jason Neyers, the Cassels Brock Faculty Papers presented at the conference will be published in fellow in Contract Law, organized the conference. Exploring Contract Law by Hart Publishing of the U.K. in early “The basic fundamentals of contract law are very well 2009. The book will be edited by Neyers along with Professors understood but we wanted to take a closer look at the principles Stephen Pitel and Richard Bronaugh, also of Western Law. animating those legal rules and how the basic rules fi t together with the more obscure,” he says.

The Charter and Human Rights At Work

The role of the Canadian Charter of Rights and Freedoms in the workplace was the subject of a conference staged by the Faculty of Law this past October. The Charter and Human Rights At Work: 25 Years Later brought together prominent international labour law academics, practising lawyers, chairs of Canadian labour relations boards, Canadian and international policy advisors, law students and representatives of employers, unions and government. The conference, co-sponsored by the national law fi rm of Heenan Blaikie LLP, featured broad-based debate on the present and future (L-R): Dean Ian Holloway, Chief Justice Beverly McLachlin and Professor Michael Lynk direction of human rights and equality law in the workplace. “Human rights and equality have become the leading The Right Honourable Beverley McLachlin, Chief Justice of legal issues in the Canadian workplace,” comments Western the Supreme Court of Canada, delivered the 5th Annual Koskie Law professor Michael Lynk, the conference coordinator. Minsky University Lecture in Labour Law on the topic The Charter “Anti-discrimination clauses in collective agreements, human of Rights and Freedoms and Canadian Labour Law. In her talk, rights statutes and even the Charter of Rights and Freedoms the Chief Justice commented on the seminal court decision she are regularly litigated in labour and employment law cases. As co-authored called BC Health Services. Although the court had our society becomes more diverse and more rights-oriented, traditionally not interfered with imposed collective agreements and as our employment relationships become more transitional, such as the one put in place for BC Health Services employees, it workplace “glass ceilings” have become more visible and human broke precedent by doing so in that case. rights talk has become more evident.”

11 1 2 SPEAKERS 2 0 0 8

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Entertainment lawyer talks about new music model Israel’s ambassador on law and terror David Steinberg ’89 is a man who really knows rock and Israel’s ambassador to Canada, Alan Baker, spoke at roll well. He was a professional drummer with The Mods – a Western Law in November on the “The legal challenges to leading punk band of the 1970s that opened for the Police. fi ghting terror”. On March 27 he gave a talk on some trends and buzz in the In his speech Ambassador Baker, considered one of music industry at the law school. Israel’s most experienced diplomats, said, “Terror isn’t Steinberg believes we are moving towards a subscription something new, what is new are the techniques that are model in music. A recent suggestion by the Songwriters’ used by terrorists. A combatant is no longer the standard Association of Canada is to tack on a $5 surcharge on your defi nition of a member of an army – in uniform – with a ISP or cable bill to pay for music. People will pay it because defi ned military structure. they can not live without their Internet access. The new defi nition is Steinberg noted that recently Radiohead blew the lid someone who is not off of the music industry when fans could buy their CD necessarily in uniform. and pay what they want on the site. “The average amount We have to deal with people were paying was between $6-8 going directly into the incitement; whether the pockets of artists …. There is no absolute way they in universities, religious would have made more money than that on a record institutions, or on contract. They could have sold for $2.50. It was nothing television, that glorifi es short of genius, the entire marketing campaign.” the act of blowing oneself up and becoming Binnie delivers Pensa lecture on Human Rights a martyr. International In March, the Hon. Justice Ian Binnie of the Supreme Court law has not kept up with of Canada delivered the 2nd annual Claude and Elaine these changes.” Pensa Lecture on Human Rights at Western Law. His talk – The Reasonable Accommodation of Minorities – provided Canada and the United States Security Issues a wide-ranging and eloquent overview of the history of Allan Gotlieb delivered the inaugural Canadian–United minority rights in Canada. States Distinguished Lecture at Western Law on Thursday From the “honour of October 4. The former Canadian Ambassador to the United the Crown” obligations States under Prime Ministers Trudeau and Mulroney called towards aboriginal peoples for the creation of a common security perimeter in order and linguistic educational to ensure Canada’s sovereignty and independence. rights embedded in the The lecture was sponsored by The Canada–United 1867 constitution to the States Law Institute. contemporary social and The Institute is a legal debates over same- bi-national, not-for-profi t, sex marriage, disability multi-disciplinary entity rights and reasonable created jointly in 1976 by accommodation, Mr. Justice Case Western Reserve Binnie stated that “those University School of rights are at the very heart Law in Cleveland, Ohio and soul of what Canada is, and has always been, about.” and the Faculty of Law The Lecture series was established in honour of the at The University of 50th anniversary of Claude Pensa’s call to the Ontario bar. Western Ontario. It serves The 2007 Lecture was given by Michael Ignatieff, deputy as a forum where the leader of the federal Liberal Party. The 2009 Lecture respective governments, will be delivered by the Hon. Richard Goldstone of South business communities, Africa, former chief prosecutor at the United Nations legal professionals, International Criminal Tribunals for the former Yugoslavia academics, non-governmental organizations and the and Rwanda. media explore and address the issues confronting the Canada–United States relationship.

13 E L I F O R P

LEGAL LEADER BY KATHERINE LOW

IN APRIL OF THIS YEAR, DOUG FERGUSON, DIRECTOR OF WESTERN’S COMMUNITY LEGAL SERVICES AND ADJUNCT PROFESSOR OF WESTERN LAW, BECAME THE NEW PRESIDENT OF THE LIBERAL PARTY OF CANADA. FERGUSON, WHO HAS BEEN WITH WESTERN SINCE 2003, ADDS HIS LATEST ACCOMPLISHMENT TO AN ALREADY IMPRESSIVE LIST OF VOLUNTEER AND COMMUNITY SERVICE PROJECTS.

14 2008 WESTERN LAW ALUMNI MAGAZINE A 1981 graduate from Western Law, Ferguson specialized in running for Vice-President of the Liberal Party of Canada. He litigation and handled federal prosecutions for the Canada took so much on, he says, because “I wanted to make sure that Revenue Agency in private practice as a partner with Bitz, party reform took root.” He won the vice-presidency at the Szemenyei, Ferguson & MacKenzie (now Szemenyei Kirwin leadership convention, after which he re-energized Liberal MacKenzie) before eventually returning to Western. University and took charge of governance issues. Then, in April But politics have always been a passion of Ferguson’s – and of this year, he was elected President of the Liberal Party of something he has remained active in despite his other Canada by its national executive following the resignation of commitments. Senator Marie Poulin due to illness. “I’ve followed politics since I was a child,” he said. In fact, As president, Ferguson’s top priority is to modernize the Ferguson’s father was twice elected as an MP, served as Minister party’s fundraising. He also wants to rejuvenate ridings in areas of Agriculture, and was in the House of Commons when the that Liberals have had trouble winning in the past, as well as Charter of Rights and Freedoms was passed. bring former Liberals back to the fold. “We need all Liberals to “Through my dad, I could see that one person can make a come back and help us to build a better country,” he said. diff erence,” Ferguson said. “By the time he was elected, my He has already had the opportunity to address the Liberal interest in politics was already in my soul.” national caucus. “That was an incredible experience. I’m grateful So, Ferguson pursued his own political career, right from the for the warm reception I’ve received from Liberals across the time he became president of his high school students’ council. country. I’ve had to hit the ground running, and there is so much And when it came time for university, the University of Ottawa I want to get done.” was the logical choice so Ferguson could be close to the action at But even with his new responsibilities, Ferguson plans to Parliament Hill. There, he earned his Bachelor of Administration stay at Western – which is good news for the students involved in in 1977 and his Bachelor of Commerce (Honours) in 1978. He also the extremely popular and successful Community Legal Services founded the Young Liberal club there. (CLS) at Western, which provides legal services to those in need in the London community in the areas of litigation, landlord and tenant law, criminal law, public legal education, IT WAS A PERFECT FIT. I LOVE TO TEACH, estate law and immigration law. “I’m a big believer in learning by AND OUR STUDENTS HELP PEOPLE IN NEED doing,” Ferguson said of the importance of CLS for students. “I really think that WHILE LEARNING HOW TO PRACTICE LAW. handling cases for real clients deepens your understanding of what you get in I CAN’T THINK OF A BETTER PLACE TO BE. the classroom.” And he’s never looked back on his DOUG FERGUSON decision to make the move back to Western. “I never dreamed I would be After completing his LL.B. at Western and beginning his law back at the law school when I walked out the door when I practice, Ferguson joined the London West Federal Liberal graduated,” he said. “But it was a perfect fi t. I love to teach, and Association, working his way from director to president. He our students help people in need while learning how to practice became campaign manager for Sue Barnes in London West in law. I can’t think of a better place to be.” the 1990s, before becoming Vice-President ‘Organization’ for the Ferguson is grateful to his colleagues in CLS, Jason Voss, Ontario wing of the federal Liberals. Margaret Capes, and Sue Latta, who “have built CLS to the He said a moment of clarity came for him during the 1984 high level it is today. They have been a huge help since my election when Brian Mulroney defeated John Turner. “The Liberal election as president.” party was not ready,” he said. “Despite the fact we’re the ones Ferguson’s work also extends to his volunteer experience that called the election, we were not ready. That experience – he is the president of the Canadian Club of London, was a taught me the value of being prepared and having a strong club president and Lieutenant-Governor in the local Optimists, organization.” As riding president, he organized the London and was president of London’s Covent Garden Market when it West riding for the 1993 election, when they won the riding. was rebuilt. Then in 1998 he ran for offi ce with the Liberal Party of Canada Ferguson is truly making a diff erence not only in the city of – and won – as National Organization Chair. He served two terms London, but also for students at Western Law. until 2003, and founded Liberal University, a training program “To come back to the beautiful campus once again, and to that provided organization and campaign skills to thousands of help create in our students the skills they need to succeed, that’s grassroots Liberals. a huge thing,” he said. “Because their success speaks volumes In late 2006, he was campaign manager for Glen Pearson in for the program at Western.” the London North Centre by-election, while at the same time

15 15 S T R O P S

&

W A L A HEAVY HITTER BY JEFF RENAUD

ALBERT EINSTEIN ONCE SAID, “YOU HAVE TO LEARN THE RULES OF THE GAME. AND THEN YOU HAVE TO PLAY BETTER THAN ANYONE ELSE.”

Relatively speaking, that’s all fi ne and dandy.

But when someone breaks the rules to get ahead, those who govern sport call in Richard McLaren. No arbitrator has ever been asked to hold court at more Olympic Games than the Western Law alumnus (fi ve and counting) and when George Mitchell needed someone to bat cleanup for his 20-month investigation into the use of steroids and human growth hormone in Major League Baseball, the former United States senator called McLaren’s number.

Quite simply, McLaren has ascended to the top of his game as one of the best sports arbitrators in the world.

16 2008 WESTERN LAW ALUMNI MAGAZINE McLaren, who continues his prolifi c roles as a The press conference was the shot heard professor at Western Law and as a counsel to round the world in regards to steroids and McKenzie Lake Lawyers LLP in London, says baseball. Carried live on December 13 by CNN, sport has always been a big part of his life so ESPN and TSN, highlights of the conference, when he pauses for a moment to consider featuring McLaren (who spoke second after some of the landmark cases he has been only Senator Mitchell), were also shown by involved with over the past 15 years, he can media outlets across North America over and hardly believe it. over again for days and days. “I loved sports growing up as a kid. I McLaren says if Major League Baseball played everything that was going,” says wants to fi x itself the league can start by McLaren. “And when I look back at how this educating its players. But they need help from life in sport all got started, it wasn’t something outside the game too. I went after, it just sort of happened.” “They also need to have a more rigorous McLaren entered the sports arena in the THE PRESS CONFERENCE WAS testing regime and they need to apply it with early 1990s as Alan Eagleson was on his way consistency and vigour,” offers McLaren. out of hockey, and the NHL and NHLPA were THE SHOT HEARD ROUND THE “That’s what Baseball doesn’t do. Every year, looking for replacements for salary WORLD IN REGARDS TO STEROIDS they have changed some part of their anti- arbitrators. AND BASEBALL. CARRIED LIVE doping regime rules but all of those changes “Each side had a list of eight potential have been marginal in their improvement. It’s ON DECEMBER 13 BY CNN, people and I was on the NHL’s list,” recalls still dependent on running a system with a McLaren. “I didn’t know any of this was going ESPN AND TSN, HIGHLIGHTS OF view to actually try to catch people and I don’t on until I got a letter from the league’s lawyers. THE CONFERENCE, FEATURING think they are doing that as well as they could It was unplanned. I hadn’t even applied.” or should. MCLAREN (WHO SPOKE That was 1992. A year and half later, “And nor will they ever be able to. Because a second letter came. This time it was from SECOND AFTER ONLY SENATOR there is too much collective interest involved the General Secretary for the Court of MITCHELL), WERE ALSO SHOWN in not running the system independently and Arbitration for Sport. They were looking for BY MEDIA OUTLETS ACROSS even-handedly with a complete transparency North American-based arbitrators, who had to it. That’s what Senator Mitchell professional sports experience. NORTH AMERICA OVER AND OVER recommended. That there be an independent McLaren had to apply this time around. AGAIN FOR DAYS AND DAYS. agency and Baseball hasn’t gone there. He was successful and in 1993 he was elected “They claim they have and they have to the adjudication body for the International changed things a little bit but it’s still not an Olympic Committee. He has since been an arbitrator at Nagano independent agency. And what they do have doesn’t have any (1998), Sydney (2000), Athens (2004) and Torino (2006). And control over the actual testing process and how it’s run. That’s this summer, McLaren is scheduled to serve a record-setting fi fth where all the weaknesses are. time at the Olympics in Beijing, China. “Baseball has moved a little further along the road but they Like his NHL and Olympic posts, McLaren’s work with Senator really haven’t moved to the point of being rigorous about it. And Mitchell regarding the use of steroids in baseball came from that’s where they’ve got to be.” left fi eld. McLaren says people like to play sports themselves, so they “I truly was not expecting it,” laughs McLaren. “I got a call on are happy to recognize (and sometimes worship) others who my cell phone and Senator Mitchell invited me to come to New perform better than they can. York about possibly joining his team.” But when professional athletes cheat in an effort to become “He liked what I had to say,” says McLaren. “And he also better than the rest, that’s when the “Average Joe” stops recognized the role I had contributed to the USA Track & Field playing along. inquiry.” Not to say they won’t watch the Barry Bonds of the world Following the Sydney Olympics and the resulting fallout self-implode. surrounding C.J. Hunter’s multiple failed drug tests, McLaren “There is a human interest element to it,” says McLaren. chaired an international independent review commission that “Everyone loves the story of the fallen hero. It fascinates people, led to drastic changes in how USA Track & Field handles its watching a Barry Bonds or a Marion Jones fall to earth. drug testing. “It’s scandal. It’s corruption. That seems to make news these Mitchell asked McLaren to head up the group that evaluated days. Performance-enhancing drugs and their use is just a the actual rules being used by Major League Baseball and how different way of the corruption of sport. In the same way, you the league was administering those rules. can corrupt sport and destroy it by throwing games and “The idea was to come up with a better set of rules and to by gambling. investigate the current ones,” explains McLaren. “That was my But when it comes to baseball, the stakes are raised. role and I worked with him pretty constantly through December “Baseball is America’s past time so when it is corrupt, America when we had the press conference.” takes notice.”

17 1 8 LAW & SPORTS W 2 m p e f o g E G 0 0 a v 8 u i l A

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LIKE MANY LAWYERS, PROFESSOR CRAIG BROWN ENJOYS A GOOD ROUND OF GOLF. IN HIS NEW BOOK “WHY LAWYERS LOVE GOLF”, HE EXPLAINS THE VARIETY OF LEGAL CASES THAT HAVE EMERGED FROM THE SPORT AND EXPLORES WHY LAWYERS HAVE SUCH A PASSION FOR THE GAME.

LOVE GOLF An excerpt from Craig Brown’s new book, Why Lawyers New Zealand and, especially, Canada and the United States, Love Golf... together contain literally hundreds of judgments delivered ince golf began many of its devotees have found in cases which, but for the royal and ancient game, would themselves before the courts or have felt the need not have arisen at all. Sto summon others there so that the King’s justice or Every judgment tells a story. In their own way, these the people’s justice may be served. In the fi fteenth century, stories are part of golf history. They stand witness to some hefty fi nes were levied against those who defi ed a ban on of the game’s most signifi cant developments. The emergence the game decreed by a Scottish statute. The law was enacted of professionals from the servant class to great prominence because golf was a threat to national security. is a case in point. You and I might consider Too many of the stout-hearted had succumbed it fl attering to be described publicly as a golf to the temptations of the links when they should professional. But, in a particular time, place, have been out practising their archery. In 1994, and set of circumstances a court found that a Japanese gentleman was prosecuted in his to depict an amateur golfer as a pro was to country for “polluting the ocean” by driving defame him. A few decades later another more than two thousand golf balls into the sea golfer was suing to gain admission to the for practice. ranks of professionals. In between, in both time and geography, Caddies are another example. In North encounters of various kinds between golfers and America at least, outside big-time tournaments, the law have occurred with frequency. The law they have all but disappeared. But theirs is an reports of England, Scotland, Ireland, Australia, important chapter in golf’s story and some of

19 that chapter has been written by judges. The claims of Musselburgh, and Glen Abbey. Some are even about women to greater equality in golf cannot be told at all well-known equipment, like the Haskell golf ball and without mentioning lawsuits. Technological developments in Ping clubs. equipment have yielded their share of legal actions too. But most are about ordinary golfers or ordinary places, Lawyers and judges attended the birth of the wound-rubber doing the kinds of things we hackers have all done or seen; golf ball and they were there too for the circumcision of the things to which, one way or another we all relate. Hooks, square-grooved iron. The ongoing popularity of golf has meant slices and shanks, out-of bounds, lost balls, slow play, pressure on clubs, pressure on courses. This produces friction. impatient golfers behind you hitting before you are out of And friction, often leads up the courthouse steps. At many a range, the pressure of hitting a shot under the stony gaze of signifi cant turning point in the story of golf, a court case has the slow group in front of you when they fi nally invite you to not been far away. play through, reckless cart drivers, clubhouse celebrations; An entire law school curriculum could be taught using these are the seeds of many a plot that has had its climax nothing but golf cases. There are those in court. There are stories too that bring that raise issues of constitutional law. to mind your secret golf dreams. Maybe Some have to do with land law; ownership, it is building your own course. If it is you easements, leases and mortgages. Others The ongoing had better get a lawyer fi rst. Perhaps it is deal with zoning. There are contract representing your country or turning pro. cases, personal property cases, trademark popularity of golf Getting a judge on your side could help cases, tax cases, patent cases, corporate there. What about a hole-in-one? There is cases and bankruptcy cases. There are has meant pressure even a case about that. criminal cases from theft to murder. With luck the telling will convey some Administrative law and municipal law, on clubs, pressure of the snippets of history, some of the involving disputes with bureaucrats or variety of law and circumstance, some of club offi cials, feature too. Labour law, that which we presume to call “philosophy”, family law, human rights, insurance, on courses. This or at least some of the humour and irony defamation; they are all represented that seem, to one golfi ng lawyer, to be as well. produces friction. contained there. But for the lawyer there The most numerous are the tort cases; is, may I presume to say, something those where golfers or golf clubs have And friction, more. In a sense this is a reference book been accused of negligence or creating a containing sources to which reference may nuisance for neighbouring landowners. often leads up the be made in legal argument or opinions To use a phrase popular among judges, (hence the footnotes). Of course, no claim these could be characterised as the “a courthouse steps. is made to comprehensive coverage golf ball is a dangerous missile” cases. of the law of negligence, defamation, The missiles have found unlimited ways An entire law trademarks, contracts, land use planning, to make unwelcome contact with the and so on. But when it comes to placing heads (it seems most often to be an eye) school curriculum a case involving golf in the context of a of other golfers, or passers-by, or adjacent broader legal subject, there may be some residents. This explains, incidentally, why could be taught assistance to be found here. physicians love golf too. The road from The great questions of the law have the golf course leads to the emergency to do with humans trying to fi nd ways to room. But then that road seems invariably using nothing but occupy the same space and identifying the to continue on from the hospital to a rights they should enjoy as against each barrister’s chambers and thence, should golf cases. other and as against the bodies that govern necessity dictate, to the courthouse. them. Those questions include, who makes And no aspect of the game is immune. the rules? Are those people constrained in The subject matter might be the course you play on (seen any way, for example by some concept of morality? Various any hidden hazards? been poisoned by the fertilizer?), the points of view are brought to bear in addressing these clubs you hit with (did the maker steal the trademark), the questions, such as feminism, economics. In the body of law ball you hit (if it’s a former lost one, do you really own it?), the discussed in this book, all of the approaches to legal theory, way you play (watch out for others), caddies, professionals, from positivism to natural law, from law and economics committee politics, greenkeepers, clubhouse incidents, to feminist analysis are on display for those who wish to membership applications, and so on. fi nd them. Some of these legal golfi ng stories are about prominent players, like Jane Blalock, a leading contender on the To purchase copies of Why Lawyers Love Golf, women’s professional tour in the U.S. in the 1970s, and Cyril please contact: scribblerpublishing.com Tolley, Britain’s leading amateur in the 1920s. Some are or the Canadian distributor Helen Reutis, about famous golfi ng places, such as Carnoustie, Prestwick, at [email protected]

20 2008 WESTERN LAW ALUMNI MAGAZINE REBE CCA MO CO SK MPETE IN THEO 2WITZ ’06 IS AIMING T 012 OLYMPIC G O AMES BY D AWN MILNE

WHEN REBECCA MOSKOWITZ ’06 WAS AT THE END OF HER ROPE DURING EXTENSIVE DRILLS FOR PRE-SEASON BEACH VOLLEYBALL TRAINING, SHE PERSEVERED; Since graduating, volleyball training has taken the forefront. RECALLING THAT SHE HAD ALREADY SURVIVED THIS KIND She’s focused on training full time for the next four years in OF GRUELING DEMAND. hopes of qualifying to compete in the 2012 Olympic Games in “In one particularly rigorous practice, I distinctly remember London, England. Already she has won a silver medal in the 2001 harkening back to my last year of Law School when I was on my Canada Games, won two gold medals at the Canadian National last set of exams. I was totally exhausted, beaten down after Championships, AA division, and represented Canada in the so many years of studying while also training and starting my 2002 World University Games. own business. My body was ready to quit, In addition, she’d like to help other athletes but mind said “no”; I have to keep going; to achieve their Olympic dreams. Through her I have to fi nd a way,” recalls Moskowitz. company, Dig Deep Inc., her staff organizes “When I was training for volleyball with corporate beach volleyball events that bring the best coaches in the world, they were the benefi ts of athletics to the business complimenting me and admiring my work world in exchange for profi t, some of which ethic and my ability to push myself – my she invests in her sponsorship campaign and mental toughness – and that was very much hopes to invest in other athletes as profi t trained and honed in law school.” increases. “In addition to being fun, the “MY WORK ETHIC, MY ABILITY TO PUSH Moskowitz, a professional beach volleyball events exemplify to participants how team player, enjoys challenging her mind as well as MYSELF, MY MENTAL TOUGHNESS work, communication and perseverance her body, referring to the mind as another – THAT WAS VERY MUCH TRAINED – critical to success in beach volleyball – are “muscle” that requires rigorous training AND HONED IN LAW SCHOOL.” equally applicable to success in the business the same as the body. That’s why she chose world,” says Moskowitz. REBECCA MOSKOWITZ Western Law after getting an English degree Once she achieves her goal of competing from the University of Toronto. Coming from in the Olympics, Moskowitz hopes for a a family of lawyers, she was intrigued by the legal profession’s use career as a motivational speaker. of language and the competitive nature of the work. “What I feel I’m meant to be doing now is my athletic goals. “I thought law school would be a great fi t for me in terms of I almost feel that it has been training me, just like law school did, being able to challenge my mind,” she says. “I would recommend for a future of helping people to achieve their dreams,” explains law school to anybody, even if you don’t want to be a lawyer, Moskowitz. “There are lots of people who are excellent lawyers because it teaches you to use your mind and work your mind. but not everybody has had the unique experiences that I have I honestly feel like I left there mentally stronger than the day had and, therefore, I want to do something that combines them I arrived.” all to maximize the benefi ts for others.”

21 S T R O P S

&

W A L A PERFECT

LAW ALLOWED ME TO MARRY MY PERSONAL INTEREST IN SPORTS WITH MY PROFESSIONAL CAREER AND THE FIT WAS GREAT.

DAVID SHOEMAKER

22 2008 WESTERN LAW ALUMNI MAGAZINE BY KATHERINE LOW

EIGHT YEARS AFTER GRADUATING AS THE GOLD MEDALLIST OF HIS WESTERN LAW CLASS, DAVID SHOEMAKER ’96 WAS LIVING HAPPILY IN NEW YORK CITY, WORKING IN AND TEACHING SPORTS LAW, WITH NO PLANS TO LEAVE THE CITY ANYTIME SOON. HE WAS WORKING WITH PROSKAUER ROSE LLP ON PROJECTS WITH THE NHL, THE NFL, THE ATP MEN’S TENNIS TOUR, MAJOR LEAGUE SOCCER, MAJOR LEAGUE BASEBALL, AUTO RACING AND BOXING.

“IT ALLOWED ME TO MARRY MY PERSONAL SportsBusiness Journal’s annual list of “Forty INTEREST IN SPORTS WITH MY PROFESSIONAL Under 40” which honours sports’ top young CAREER AND THE FIT WAS GREAT,” HE SAID. executives. Shoemaker is the fi rst tennis Tour But when an opportunity came up at the executive to ever appear on the list. worldwide headquarters of the Women’s Tennis “It was exciting,” he said. “I was able to celebrate Association (WTA) in St. Petersburg, Florida, that night with all my colleagues at the WTA because Shoemaker, who was in his partnership year, couldn’t I regard it as much of an acknowledgement of what say no. After all, tennis is in his blood. Shoemaker, 37, the WTA has achieved in the past couple of years.” was born in Ottawa into a family well-versed with the But now, Shoemaker has made another move sport. His grandfather, Gilbert Nunns, held the top – this time to Beijing, China to head the WTA’s Asia- men’s ranking in Canada in the 1930s and his mother, Pacifi c headquarters. With several rising tennis stars Brenda Nunns Shoemaker, was a former Tour player in Asia, he is seeing an increased popularity for the and member of the Canadian Fed Cup team. She sport and many opportunities to promote it. also played Wimbledon in the 1960s and shared the “Sports marketing in China is very much in its Canadian Open doubles title for one season. infancy,” he said. “I don’t think Chinese companies And just over 18 months after being hired as WTA have really thought of sports marketing as the general counsel, Shoemaker was promoted to Chief vehicle to grow their brands. At least not yet.” Operating Offi cer. Now, he has been with the WTA for In order to make his move to Beijing go smoothly, over four years and his fi ngerprint there is hard to Shoemaker has been learning Mandarin. miss. Shoemaker has negotiated multi-million dollar “It almost reminds me of my law school days,” he sponsorship and tournament deals for the WTA. said. “I cram every once in a while.” He also helped secure equal prize money for Shoemaker says he’s thankful for his law school men’s and women’s tournaments at Wimbledon and days at Western and has used his education to his the French Open, putting them on the same page as advantage. After graduation, he worked as a law the Australian and U.S. Open. And he helped establish clerk for the Supreme Court of Canada for former four tournaments that will pay equal prize money to Chief Justice Antonio Lamer. He then went to New both sexes. York to work in the litigation department at Cravath, “We’re the only pro sport in the world where Swaine & Moore. There he was surrounded by the women and men compete for the identical amount fi rm’s other new hires – all Ivy League grads. of prize money at the highest level,” he said. “We’re “And there I was, UWO Law grad, and I think not changing the world here at the WTA but I think people looked at me like I had three heads,” he said. it sends a pretty great message to young girls the “And I can honestly say looking back that yeah, I world over. And I guess it sends a very positive would absolutely stack up my education against any message to moms and dads that they should cancel single one of them. And I say that with great pride.” their daughters’ golf lessons.” Shoemaker plans to stay in Beijing for a few years Shoemaker’s work has caught the sports and hopes to eventually return to work in Canada. world’s attention. He was recently named to the

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A FORMER COMPETITIVE ATHLETE IN BOTH HOCKEY AND EQUESTRIANISM, LESLIE ROSS ’88 SAYS HER LOVE OF SPORT PROMPTED HER TO PURSUE HER DREAM CAREER OF SPORTS LAW.

“MOST PEOPLE WHO ARE INVOLVED IN the Olympics or the Tour de France. and licensing deals, including sponsorship THIS FIELD ARE PASSIONATE ABOUT The opportunity to work in a truly and broadcast rights. SPORTS. People are attracted to sports international sports field was a real Ross is also legal counsel to the law because it’s interesting, it’s dynamic draw,” explains Ross. former lawyer-turned-professional boxer and it’s fascinating,” says Ross. “I would At Freshfields, she co-represented Laura Saperstein. Saperstein has created say the proportion of dynamic people the International Olympic Committee something of a media frenzy in the United I have encountered who are absolutely (IOC) in a case involving a British Kingdom and is quickly becoming one of passionate about sports law is much higher skier who tested positive for a banned the hottest prospects in British boxing. than those I have encountered who are substance at the 2002 Salt Lake City “She’s the fi rst female boxer to be enthralled with the much more traditional Winter Olympic Games. It was a high- signed to a major promoter,” Ross explains. world of corporate or securities law.” profile case and went all the way to the “She’s fi ghting a lot of stereotypes. It According to Ross, another advantage to Court of Arbitration for Sport. reminds me of my hockey days when a career in sports law is that it can take women had to battle simply to get the right one into a wide range of areas of law. to play. Laura is breaking new territory and “It really can mean just about “I GET TO LIVE fi ghting both literally and fi guratively. It is anything. It can be employment law, fascinating to be part of her story. Women commercial law, mergers and acquisitions AND WORK IN AN should have the right to participate in any and even criminal law, to some extent. So sport they want, at any level.” you need a really strong legal grounding ENVIRONMENT THAT Ross has fallen in love with her in whatever particular fi eld you want to adopted city of London, England. She’s pursue,” she says. I AM ABSOLUTELY also involved with the group London Ross says her education in business Legacy 2020, which is dedicated to and corporate law from Western provided PASSIONATE ABOUT... helping East London capture the long- her with a solid foundation on which to term benefits of hosting the 2012 build her successful career. IT’S A PRETTY Olympic Games. The group is partnering To date, Ross has worked as an in-house with companies in the City of London solicitor for a major sports broadcasting PHENOMENAL WAY TO and Canary Wharf to assist in both rights holder and has acted as CEO of the regeneration of the area and the England Netball, the national governing creation of sporting opportunities for body for the sport of netball (similar to PURSUE A CAREER.” disadvantaged youth. Ross says there women’s basketball) in England. LESLIE ROSS is excitement in London gearing up to “My education at Western Law was the Olympics. phenomenal. It really stood me in good “We’re going to have an amazing run stead. It’s training I use in all aspects of “It was one of the fi rst major challenges up. It’s a great time to be in this wonderful my career,” notes Ross. where an athlete lost his medal and it was city,” she says. Western Law continues to provide a tremendous experience to represent the In her own way, Ross has already won help with her career. Ross still calls upon IOC,” recalls Ross. her own Olympic medal. Professor Richard McLaren, her former She spent three years at Freshfi elds, “I get to live and work in an teacher, for advice. allowing her to get a fi rm foothold in the environment that I am absolutely “He certainly motivated and inspired United Kingdom market and the credibility passionate about. I work for my clients a lot of his students and he has been an to keep pursuing her love of sports law. and part of my job is to attend world-class invaluable contact and resource for me,” Ross then worked as a sports sporting events. In this fi eld, you get to she says. consultant, providing advice on legal and meet, represent and interact with athletes After graduation, Ross practised commercial matters arising from the and sports organisations at the very top of in the corporate fi nance and capital licensing and distribution of broadcast the sporting world,” says Ross. “Because market areas in Vancouver and Toronto rights to various international sports I am so interested in sports, it’s a pretty before joining the ‘magic circle’ fi rm events. phenomenal way to pursue a career.” of Freshfi elds Bruckhaus Deringer in She joined the law fi rm of Hextalls in London, England in 2000. 2007, where she now represents numerous “I wanted to be involved with football (soccer) clubs in the English FA international sporting events like Premier League, negotiating commercial 27 S T R O P S

&

W A L Strokes of BY DAWN MILNE Success IF THERE IS ONE THING WESTERN LAW law school at Western. I had heard from STUDENT COURTNEY MACINTOSH HAS other people what a good program it was PROVEN, IT’S THAT SHE IS NOT AFRAID and how welcoming the students and OF A CHALLENGE. faculty are. With law being an inherently Whether it’s a high-stakes legal competitive program, the atmosphere battle or the rigorous race to qualify as means a lot.” a rower to compete in the 2012 Olympic After attending her fi rst year of WHETHER IT’S A HIGH- Games in London, England, the mention Western Law in 2006/2007, MacIntosh of a challenge appeals to MacIntosh’s took this past year off to train in rowing STAKES LEGAL BATTLE competitive nature and inspires her to full time and hopes to qualify for the put forth her best effort. World Championship Games in Linz, “I defi nitely have a competitive edge Austria at the end of July. Although OR THE RIGOROUS all of the time,” says MacIntosh. “The legal she’ll return to law school this fall, she’ll fi eld has always interested me because of continue her rowing training and hopes RACE TO QUALIFY the competitive nature of the job as well to later qualify for the 2012 Olympics. She as getting to help people.” is currently seeking sponsorship for her AS A ROWER IN THE She also competes as a rower. rowing pursuits through a program called MacIntosh became involved in rowing Adopt-a-Rower from Rowing Canada. 2012 OLYMPIC GAMES, while in high school in St. John’s, “After 2012, my legal career will take Newfoundland and won a full scholarship the forefront but, until then, I’m focused THE MENTION OF A to the University of Texas in Austin for on rowing,” says MacIntosh. rowing. While in Texas, she excelled in In fact MacIntosh says the discipline CHALLENGE APPEALS academics as well as rowing and received and time-management skills needed the university’s Scholar-Athlete Award to accommodate rowing practices and TO MACINTOSH’S for the senior female student athlete with competitions should serve her well in her the highest overall grade point average. next two years of law school and in her COMPETITIVE NATURE From Texas, she moved on to London, future career. Ontario where she has been able to meet She is also infl uenced by a belief that her needs in both academics and athletics, nothing can stand in the way of your attending Western’s law school and training dreams, inspired by watching Silken with Canada’s national rowing team at Laumann, a Canadian champion rower, Fanshawe Lake. Since joining the national make a strong comeback and earn team, she competed in the Commonwealth Olympic medals after suffering a serious Championship Games in Scotland and the leg injury in a boating accident just prior World University Games in Lithuania, both to the 1992 summer Olympics. in 2006, and earned two silver medals at “It showed me that if you choose to the Commonwealth Games. overcome obstacles, you will. The only “I feel like I get the best of both obstacles that really stop you are the ones worlds,” says MacIntosh. “I knew I you put in your own way,” says MacIntosh. ultimately wanted to come to London Those interested in sponsoring to pursue a rowing career but I also MacIntosh can contact her at was fortunate enough to get into the [email protected]

28 2008 WESTERN LAW ALUMNI MAGAZINE A WESTERN LAW STUDENT CHASES THE DREAM OF OLYMPIC COMPETITION

29 H C R A E S E WR & WESTERN LAW PROFESSOR VALERIE OOSTERVELD IS TRYING TO ENSURE A SPECIAL COURT REVIEWING BRUTALITIES IN SIERRA LEONE SERVES THE NEEDS OF THE CITIZENS OF THAT COUNTRY.

30 2008 WESTERN LAW ALUMNI MAGAZINE “IT’S NOT LIKE THE THREAT TO THEIR LIVES GOES AWAY. WHAT ARE THE MECHANISMS AND MODALITIES FOR KEEPING THEM SAFE.”

PROFESSOR VALERIE OOSTERVELD

BY KAREN OTTO

VALERIE OOSTERVELD SAYS HER RESEARCH TOPICS She’s also examining how best to create a body to SOUND LIKE “DRY ISSUES” BUT BY EXAMINING HATE, address all of the continuing obligations not only from the BRUTALITY, WAR, AND PEACE, NOTHING COULD BE Special Court but the two International Criminal Tribunals FURTHER FROM THE TRUTH. for the former Yugoslavia and Rwanda which will also close The assistant professor is examining legal obligations in a few years. that continue after the United Nations-backed Special Court There are many things to consider, she says. Should the for Sierra Leone closes its doors in 2010. body be a joint mechanism? Should it consist of judges who The United Nations-backed Special Court was set up in tried the cases? Maybe judges who didn’t hear the cases? 2002 to deal with war crimes and crimes against humanity Regardless, it all comes down to two simple questions, she committed in Sierra Leone after November 1996 during the says: “Who do you give authority to and how do you give it Sierra Leone Civil war. And just as the Special Court was to them?” groundbreaking, so too are the topics she’s researching. Another question Oosterveld is examining is where &“The only other time the international community has dealt and how to keep the Special Court’s archives after it closes. with the closure of a war crimes tribunal was with the Tokyo Currently, they’re being stored in Freetown where all but one and Nuremburg tribunals after World War Two,” she says. of the trials are taking place but whether or not that’s the best The international criminal law, international human place for them to stay remains to be seen, she says. rights and public international law professor is looking “It’s a diffi cult question,” Oosterveld notes. Being a poor specifi cally at three legal obligations the United Nations country, Sierra Leone doesn’t have humidity-controlled and Sierra Leone will face after the court closes: continuing facilities to keep the archives from deteriorating over time protection of those who testifi ed, tracking of those convicted and the country is still recovering from the decade-long by the court and serving lengthy sentences and conservation war. But, she adds, if they’re transported to, for example, the of the court’s archives. Hague then they’re not immediately available to the citizens “I know they sound like dry issues but they’re very deep and that’s a problem for Oosterveld. issues that link to reconciliation and peace,” Oosterveld says. “Why did we set this Special Court up?” she asks, “To help The Special Court for Sierra Leone is very much like the people of Sierra Leone.” the International Criminal Tribunals for both the former And helping them is a high priority for her. Prior to Yugoslavia and Rwanda, she explains. joining Western Law in 2005, Oosterveld was a lawyer at Set up in 2002, 13 people have been indicted in Sierra the Department of Foreign Aff airs and helped set up the Leone and 10 people prosecuted (one later died). Those who Special Court. testifi ed to the atrocities of the war did so at great personal That’s the reason for the concentration of her academic risk and are currently being protected by the Special Court work, she says. It’s extremely personal to her to help the but Oosterveld is concerned with what happens to them after country’s inhabitants recover from the extreme brutality the court closes. of war. “It’s not like the threat to their lives goes away,” she says. “I really want this Special Court to serve Sierra Leone in “(I’m looking at) what are the mechanisms and modalities for its transition from war to peace.” keeping them safe.”

31 H C

R “It all started with a mouse.” A WESTERN LAW PROFESSOR MARK PERRY ECHOES THE E

S FAMOUS QUOTE BY WALT DISNEY WHEN SPEAKING OF THE E

R INCIDENT THAT HAS SHAPED HIS LEGAL CAREER. OF MOUSE BY KAREN OTTO

A“(I’ve been) intNerested in the topic sinDce I followed the Harvard Mouse case in 1999 researching the patent aspect,” says Perry, Western Law’s Associate Dean for Research and Graduate Studies. And the topic Perry’s talking about is biotechnology law – his academic passion and the topic of his soon-to-be-published book tentatively titled Biotechnology Law, Regulations and Infl uences. “Ten years ago I started looking in detail at the patenting aspects of the transgenic Harvard Mouse, which was created to aid research into cancer, and its path through the courts around the world. With work and collaboration on the paper Making Sense of Mouse Tales: Canada Life Form Patents Topsy-Turvy ((E.I.P.R. 2001), it became clear to me that there was a lot more to the picture than just the OncoMouse,” says Perry. “I soon became fascinated with biology, its application, and its relationship with the legal system.” Very simply, Perry says, biotechnology is applied biology or, using any biological science to do something. Examples of biotechnology are everywhere, he says, from traditional crop breeding to invitro fertilization to genetically modifi ed foods. A And examples of controversies surrounding biotechnology are also everywhere. “Different people have different concerns. Some MOUSE people are very concerned with human body parts, cell lines and embryos. Others are concerned with genetically modifi ed food,” INSPIRED he says. “You look at any area of biotechnology and someone has a strong interest.” WESTERN LAW Especially Perry. He doesn’t specialize in just one area as he’s PROFESSOR researching them all. “I try to look at all different aspects of biotechnology law,” he MARK PERRY’S says. That ranges from examining the regulatory side which deals with such things as restricting dealings with human body parts PASSION FOR THE to the intellectual property side, or, who can do what with the biotech innovations. DIVERSE WORLD OF His forthcoming book is a comparative work discussing what BIOTECHNOLOGY LAW. the legal frameworks are in the United Kingdom and Europe, the United States, Australia, New Zealand and Canada and he hopes it will get people thinking.

32 2008 WESTERN LAW ALUMNI MAGAZINE “I hope (readers) see that life is complex and we need to know more how it works, and how our regulation of this will determine how much we fi nd out about it,” he says. There are differences between the various countries, he states. “It would be fair to say the United Kingdom is moving ahead more in stem cell research than we are in Canada simply because their framework supports that,” he explains while adding the United States is in the process of patenting gene sequences. In New Zealand, he says, there’s no genetically modifi ed food (GNF) where as here people eat GNF all the time while in Australia there’s no transgenic soybeans or corn but there are transgenic fl owers.

M“The science is exAtremely diffi cult but fascinNating to see work,” says Perry. “Biological mechanisms are so complex we need to do a lot of work in this area to see what’s going on.” But some don’t want to do that and Perry fi rmly believes the reason people are both so passionately opposed and passionately in favour of biotechnology is because it’s interwoven with life and morals. That’s what makes biotechnology law so interesting, he says, because what the majority fi nd uncomfortable isn’t necessarily the direction the law should take. “The problem with the legal side,” Perry explains, “is that it can’t be so far off the majority’s views of what we should or shouldn’t be doing but at the same time you don’t want to stifl e the scientists’ progress either.” Perry uses invitro fertilization as an example. Years ago, he notes, IVF was “abhorrent” to many people but now it’s no more looked askance at than naturally making a baby. The intellectual property and biotechnology law professor contends people need to carefully think about biotechnology and the laws surrounding it because of the wide variety of potentialities it offers. And if his classes and book help with that education he thinks that can only be benefi cial. “I hope more people think about it more deeply than the headlines in the newspapers,” he says. “If people study the issues they’ll learn more and really understand what’s going on.”

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TWO CITIES TOM COLEBATCH “MY PROFESSOR The bus pulls into the terminal and a crowd of refreshed but somewhat dreary INQUIRED ‘SO YOU’RE students bustle through the aisle and out into the bitterly cold, snow-swept landscape outside. I can already make out the obligatory Tim Hortons across the road THE AUSTRALIAN?’, (a delicacy I had already become intimately acquainted with during my travels RIGHT FROM THE through “the corridor” from Quebec City to Toronto), AbouTown taxis litter the parking lot, and a quick glance at a map reveals scores of street names that remind OUTSET I WAS MADE me of a Monopoly board. It’s January 6, 2008. Welcome to my new home for the TO FEEL WELCOME.” next four months – London, Ontario.

The University of Western Ontario (or “Western” as it is known in these parts) TOM COLEBATCH is a place that grows on you rather hitting you smack in the face. It works quietly yet quickly to win your affection and respect, but it succeeds... and then it takes you over. Studying law in Canada is certainly a different experience. Did I miss large lectures that provided a shelter of anonymity? Not necessarily, I enjoyed the collegiality and interaction small classes encouraged. Were the graduate students I would be learning with really as bad as the ones I observe at home sitting up the front of class, always doing the reading and asking lecturers endless stupid questions? No, they are mature, insightful and surprisingly welcoming. Although I may have brought it upon myself by wearing my green and gold Wallabies jersey to my fi rst class prompting my professor to inquire “So you’re the Australian?”, right from the outset I was made to feel welcome. Western has a beautiful campus. Old English style buildings sprawled leisurely across grassy grounds. The law school building itself exudes a feeling of familiarity and intimacy. It helps foster the atmosphere that is unique to law school where everyone seems to know everyone else. And that’s not to mention the fortnightly Denning’s (celebrating one of the most revered English judges of all time by sharing a few pints every second Wednesday at a designated pub), Obiter Dicta, Third Year Party, and a constant stream of guest speakers accompanied by enticingly free lunches. There is plenty going on here, and that’s before you even hit the classroom. What did I get out of my exchange to Western? From a professional point of view it’s obviously a great thing to do. You can enrich your university education by studying in another country and learning a different approach, although Western’s fairly extensive list of courses means that you are able to avoid studying anything too Canada-centric that won’t be of use back home if need be. It’s also a great thing to have on your CV as it gives you a unique edge and says a lot about your character. From a personal perspective, going on exchange is an invaluable experience. Sure you get to travel the world making friends from all corners of the globe, but more importantly than that you get the opportunity to actually live in another country, something which you don’t get on a six week backpacking expedition in Europe or a two week cruise in the Caribbean. Going on exchange is an amazing experience that broadens your perspective and I would highly recommend it to anyone and everyone.

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JOHN PELLER, CEO AND PRESIDENT OF ANDREW PELLER LIMITED, HAS ONE After graduating from law school in 1980, Peller articled and OF THE MOST IMPORTANT practised corporate and commercial law with the fi rm Evans, Husband WINE JOBS IN CANADA. in Hamilton, Ontario. Peller also spent a year in France, studying French at L’Institute de Touraine and working with DeLuze, the wine subsidiary of Rémy Martin. He then honed his sales and marketing skills at RJR Nabisco in New Jersey. In 1989, Peller began working at the family business, joining his father and grandfather. “It was the right time. I wanted to help grow the business and felt my passion and skill in marketing and sales could help,” explains Peller. It was a critical period of time for the Canadian wine industry, one that proved to be a turning point for the company. The NAFTA trade agreement had produced a fl ood of import products into the Canadian market “THERE WAS A COLLECTIVE and some critical business decisions had to SURGE IN OUR CONFIDENCE be made. “We had to either focus on quality and AND AN EXPLOSION OF make aggressive strides quickly or risk falling INVESTMENT AND GROWTH IN behind. We decided to put our efforts into VQA THE INDUSTRY. THE QUALITY viticulture,” states Peller. VQA stands for Vintners Quality Alliance JUST KEPT GETTING BETTER and is the offi cial appellation system used to AND BETTER.” verify origin and quality of Canadian wine. JOHN PELLER The company focused on Chardonnay and Pinot Noir grapes, which, to the surprise of many other vintners, thrived in the Niagara climate. Peller ended up producing some of the fi nest wines in the world. In 1991, Andrés established Peller Estates as the preeminent premium wine label in Canada and, shortly after, a Peller Chardonnay “Sur Lie” won best in show at an international competition in Italy. Peller says that recognition, along with top awards around the world for other Niagara wineries, brought new life to the Ontario wine industry. Case “There was a collective surge in our confi dence and an explosion of investment and growth in the industry. The quality just kept getting better and better,” he says. In recent years, the company has continued to build its stable of higher end wines by acquiring premium brands such as Sandhill and Red Rooster in the Okanagan and Thirty Bench on the Beamsville bench in Niagara. The company is now focused on increasing its reach in the United States. Peller believes the company will be successful by marketing a world-class product, so it is concentrating on niche wines like its quality Icewines, Rieslings and Pinot Noirs. Peller is keenly interested in supporting a strong economic and competitive business environment for Canada and this year has taken on the role of Chair of the Canadian Chamber of Commerce. “One of our top issues is climate change and the leadership role businesses have to take. It’s the issue of our generation, and we need to make some signifi cant strides in this area,” says Peller. In refl ecting on his career, Peller speaks philosophically. “There is a beautiful pace to the wine industry that transcends modern life. My job involves farming, marketing a luxury consumer product and being meaningfully engaged with wine, food and family,” he says. “The industry has allowed me to combine all the things that I love most in life and I consider it a real blessing to have this opportunity.”

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A Career Well Served BY SUSANNA EAYRS Larry Innanen, ‘73, says his General Counsel job at Labatt was the best legal job in Canada. His fi rst legal assignment there was to draft a contract between Labatt, Canadian Pacifi c and the Toronto Sun to sponsor the ascent of Mt. Gongga in Sichuan, China by a group of Canadian mountain climbers.

HE ALSO HAD TO DRAW UP THE Prohibition and temperance FILM RIGHTS CONTRACT WITH movements dramatically reshaped the BILL MARSHALL TO FILM THE legal requirements and structure of the ENTIRE EXPEDITION. beer industry in North America, providing His fi rst thought was, “Joe Samuels in-house counsel with numerous snakes didn’t cover this in fi rst year Contracts! and ladders to navigate successfully. Where was the standard form sponsorship NAFTA and GATT (now WTO) requirements agreement for taking a hike and fi lming recently challenged local Canadian it in the Himalayas? Have the hikers brewers to become globally competitive each released the sponsors of any or risk extinction. The business expedition liability?” aspirations of Labatt caused its legal “THE SECRET TO As executive vice-president and team to travel extensively in search ALL SUCCESS General Counsel of Labatt and Interbrew of licensed partnerships, joint IN LAW AND IN Americas, Innanen says his 23-year career ventures and the global licensing of LIFE IS GETTING in beer was like winning the lottery. And its Canadian brands. it made him realize that what he had Labatt became an international TO KNOW AND received in his three years at Western Law player that was subsequently acquired UNDERSTAND THE was the ability and confi dence to think and by lnterbrew of Belgium after fending PEOPLE YOU ARE draft outside the box. Over the course of off a hostile takeover bid launched by his successful and varied career, Innanen ONEX in 1995. “The long-range plans DEALING WITH.” worked on special contracts, court battles, developed by Labatt as ‘Canada’s LARRY INNANEN public relations challenges, acquisitions, local brewer’ were embraced and dispositions and joint ventures. further expanded to become Interbrew’s “The secret to all success in law and ‘World’s local brewer’ campaign,” says in life is getting to know and understand Innanen. “They played out successfully to the people you are dealing with,” he says. the point where InBev, formerly Interbrew, “In law school this may be viewed as the became the largest brewer by volume in the obiter, but in reality it ultimately led to world. And now InBev have just launched the ratio in every relationship. Beer is a a takeover bid to buy Anheuser Busch, wonderful social lubricant to enhance America’s largest brewer.” this process.” It’s a lesson that served Even after retiring from Labatt, him well in the ‘living room’ at Labatt Innanen’s passion for the law and for the headquarters – a bar where employees beer industry has not diminished. “For 23 would meet to resolve outstanding issues years I had the best seat in the house and at the end of the day. the best General Counsel job in Canada. In “Years later I found myself in Havana 1998, I was riding behind the clydesdales sharing cans of Blue with Fidel Castro after signing an historic long-term licence during a fi ve-hour dinner in his living Agreement for brewing Budweiser in room at the Palace of the Revolution,” Canada. Now, I can sit with the customers recalls Innanen. “That evening set the in the stands and enjoy watching the stage for our highly successful Cuban industry evolve with a beer of my choice international joint venture, Cerveceria in hand,” he concluded. “Cheers!” Bucanero S.A.”

39 E L I F O R P A Magical

40 2008 WESTERN LAW ALUMNI MAGAZINE Transformation BY KATHERINE LOW After a successful career as a Tax Lawyer, David Ben ’87 followed his dream to make magic

WHEN DAVID BEN WENT TO PICK HIS SON UP FROM DAY “The income tax act was just like a palette of diff erent CAMP A NUMBER OF YEARS AGO, A COUNSELLOR HAD colours…and you’re just blending all these colours to achieve SOME CONCERNS. “YOUR SON SAYS SOME VERY STRANGE the objective that you want.” Ben compares this process to THINGS,” SHE SAID. “HE SAID YOU SWALLOW NEEDLES designing magic tricks. “So, much to my surprise I really FOR A LIVING.” To this, Ben laughed and then replied, “Well, loved it.” he’s telling the truth.” After graduating from Western Law in 1987, Ben achieved Ben, 47, has been practising magic since he was a young a master’s degree in international tax and fi nance at the teenager, and his favourite trick involves swallowing needles London School of Economics before working at Goodman’s and thread separately and then regurgitating them threaded. LLP in Toronto. But a year after being called to the Bar, “Very few people in the world actually do it,” he said. But leaving the tax law world to pursue magic full time was no for Ben, doing things his own way has been a pattern most of illusion for Ben. his life. “Goodman’s is a superb fi rm and I loved the people there After his undergrad at the University of Toronto, and the work was really great, but I didn’t want to practise law Ben originally pursued law to learn the legal side of for 20 years and say, ‘what if I had followed my dream?’” producing theatre and fi lm. But although his ongoing magic So Ben did follow his dream – and he hasn’t looked back. An performances left his attendance at Western “less than international performer, Ben has also written books and plays stellar,” he found a love for tax law. in which he has performed, appeared on numerous television programs and been involved with fi lms. He’s also a sought-after keynote speaker and Western Law’s 2008 graduating class was lucky enough to have him as their speaker this past June. Ben talked about the three things he learned at Western – the importance of challenging assumptions, the need to make decisions, and the confi dence to say, if you don’t like it, “sue me.” “Western gave me a rigorous intellectual training – one that “ Western Law gave me has had a huge impact on my life,” he said. Ben also stressed the importance of giving back, something he knows fi rsthand. Six years ago he helped establish his a rigorous intellectual charity Magicana (www.magicana.com), which is dedicated to studying and promoting magic as an introduction to the arts. training – one that The program includes Magic Hands, which helps disadvantaged children learn the process of performing magic to exercise creativity and build confi dence. It also includes Senior Sorcery, has had a huge impact where magic shows are performed at senior homes so residents can invite their families and watch a show together. on my life.” DAVID BEN And Ben, who is married with two children, says that as much as he loved tax law, he’s never doubted his decision to pursue magic full time. “I vowed that I would return to (Goodman’s) but as a client, which turned out to be a mistake,” he chuckled. “Because any time you visit lawyers you’re usually spending money.”

41 N O I S S U

C Public Law S I D and Legal Philosophy at Western TOO OFTEN CANADIAN SCHOLARSHIP IS SIMPLY REACTIVE TO THE DECISIONS OF THE COURTS. At Western Law we’re not interested in just explaining the cases. We want to encourage deep thought about public law and bring philosophic clarity to the basic concepts. PROFESSOR GRANT HUSCROFT

Western Law is committed to bringing “and yet it has provoked a massive leading scholars to Western to join us in body of provocative scholarship in the exploring the most pressing questions in United States over the past 20 years. constitutional law through the analytical These debates are essentially unknown resources of moral, political, and legal in Canada.” The colloquium will bring philosophy. Expounding the Constitution: leading scholars including Larry Essays in Constitutional Theory, Alexander, James Allan, Randy Barnett, published in April 2008 by Cambridge Mitchell Berman, Brian Bix, Stanley Fish, University Press and edited by Professor Jeffrey Goldsworthy, Mattias Kumm, Grant Huscroft, is a prime example of Michael Perry, Steven Smith, Larry Solum, the sort of collaborative scholarship Grégoire Webber, and Keith Whittington Western Law is producing. to Western Law to debate the idea of “We brought some of the world’s originalism and its relevance in the leading moral philosophers and constitutional order. constitutional theorists to Western Law Another colloquium, one that will in 2006,” says Huscroft. “We debated the address the concept of proportionality place of moral reasoning in constitutional in constitutional interpretation, is in the law, the legitimacy of judicial review, and planning stages. Additionally, funding PROFESSOR GRANT HUSCROFT unwritten constitutional rights, and the has been secured for distinguished book is the product of that effort.” visitorships along with intensive courses Western Law will host another in public law and philosophy and a colloquium in October that will explore the seminar series course. concept of “originalism” in constitutional ‘”The University has made a interpretation. “Originalism; the idea that commitment to public law and philosophy the constitution should be interpreted at Western Law”, Huscroft says, “and in accordance with the original meaning with talented and energetic colleagues of the text, has never been seriously like Professors Miller, Botterell and Martin discussed in Canada,” states Huscroft, we will be making a mark.”

42 2008 WESTERN LAW ALUMNI MAGAZINE The job of demarcating the sphere “freedom” and “equality” are undeniably of prohibited action is a serious central legal concepts in addition to responsibility shouldered by lawyers, being inescapably philosophical. judges and legislators. Knowledge of As soon as one begins defending a the kinds of arguments and counter- certain understanding of rights, freedom arguments that are brought to bear on or equality, for instance, it becomes clear the issues that go before the court is that not all views are equally defensible. part of discharging this responsibility. Consider, once again, the concept of a For instance, we may ask what it means legal right. If a legal right is simply what to say that I have legal rights. Do my legal an offi cial says it is, then it follows such rights exist solely because certain people rights can have any content. But can we (legislators and judges) said so? Can have a law requiring murder? Can we have this account of legal rights adequately a law requiring us to be eight feet tall? explain the prohibition on murder, for Can we have a law that prohibits judges PROFESSOR MARGARET MARTIN instance? Or is it more accurate to say from relying on decisions from previous that the legal prohibition against murder judges, statutes, or legal principles? is founded upon a moral right? If so, then These questions point to the potential From Theory what precisely are moral rights and what limits of the law, in addition to calling into to Practice is their relationship with legal rights? Or, question the vision of law as a content- in line with a more skeptical stance, can independent set of rules written by I CONSIDER PHILOSOPHY AN the law against murder be IMPORTANT PART OF THE STUDY OF explained by the idea that all “GETTING IT RIGHT IS IMPORTANT NOT JUST FOR THE LAW AS IT BRINGS AWARENESS TO THE humans are fundamentally FULFILLMENT OF PHILOSOPHICAL CURIOSITY, BUT ASSUMPTIONS THAT INFORM LEGAL self-interested and it is in ARGUMENT WHILE PLACING THE LAW the best interest of those FOR THE VERY PRESSING AND PRACTICAL TASK OF IN A LARGER CONTEXT. Traditionally, in power to prevent those DETERMINING THE FATE OF EACH DEFENDANT” philosophers have approached the without power from killing PROFESSOR MARGARET MARTIN study of law by asking how the use of each other? coercive force by the state is morally Regardless of one’s answers to these offi cials. Understanding the nature of law, justifi ed. While this framework has questions, what becomes clear is that the which is the focus of my research, allows currently fallen out of favour, the notion of a legal right is not a simple one us to discriminate between the various question regarding the justifi cation and defi ning the term inevitably involves assumptions made by practitioners. coercion places the importance of the reliance on philosophical assumptions— Getting it right is important not just legal profession in sharp relief. Public assumptions that can only be defended by for the fulfi llment of philosophical law determines the boundaries between engaging in philosophical argumentation. curiosity, but for the very pressing and actions that are permissible and those The law is rich with such contested practical task of determining the fate of that are prohibited by the state. concepts. “Reasonableness”, “harm”, each defendant.

The courts in western democracies Philosophy Inquiry tend to resort to proportionality analysis and Constitutional and balancing tests, of which our Oakes test is one example. In my current work, Balancing I argue that notwithstanding judicial protests to the contrary, judges who W H AT A R E W E TO D O W H E N are balancing interests, principles, and O N E P E R S O N ’ S (O R G R O U P ’ S ) values are straightforwardly engaged CONSTITUTIONAL RIGHTS CONFLICT in an exercise of moral and political WITH RIGHTS OF OTHERS? Consider the philosophy. There is nothing particularly situation of the polygamous community legal or judicial about this sort of in Bountiful, BC. On the face of it, this reasoning. Legal technique takes the form of polygamy constitutes a confl ict bows, while philosophical argument does between an exercise of freedom of all the work. religion and the public good (including How does constitutional balancing protection of the equality rights of entail philosophical reasoning? PROFESSOR BRADLEY MILLER women). How should we resolve such First of all, political philosophy allows confl icts? us to address the fi rst order question

43 about the legitimacy of judges exercising important to legal practice. If it turns out answer the third order questions: what review power. Is this something that that judges have scant moral authority does it mean to treat people as equals? judges ought to be doing? Simply to make these sorts of evaluations, it What is the nature of marriage? What is some evidence that they is the harm caused to the polity by “THERE IS NOTHING PARTICULARLY LEGAL OR should approach decisions of polygamy? JUDICIAL ABOUT CONSTITUTIONAL BALANCING. Parliament deferentially. These are the sorts of issues Philosophy also has that I pursue in my research into the LEGAL TECHNIQUE TAKES THE BOWS, WHILE much to say about second interpretation of s. 1 of the Charter. PHILOSOPHICAL ARGUMENT DOES ALL THE WORK” order questions: how should As part of this project, I have spent we structure a balancing the spring of 2008 in Florence, Italy, PROFESSOR BRADLEY MILLER enquiry? What interests as a Visiting Fellow at the European pointing to s. 52 of the Constitution should be included? Or are some University Institute, researching theories Act, 1982 is no answer. It is a question matters incommensurable, such that it is of constitutional balancing that inform of political morality, and a moral answer senseless to try to compare them? the decisions of European courts. is necessary. But while it is not a legal Finally, and most obviously, resort question, the answer is enormously to philosophical inquiry is necessary to

death. To achieve success in philosophy payment has done nothing wrong, should would be, to use a contemporary turn of she/he be under an obligation to return phrase, to ‘know one’s way around’ with the money to the payor, an obligation respect to all these things, not in that unrefl ective way “AS A PHILOSOPHER OF LAW, I TRY TO USE THIS in which the centipede of the ATTITUDE OF CURIOSITY AND RIGOR TO ‘KNOW MY story knew its way around before it faced the question, WAY AROUND’ THE LAW. GIVEN MY INTELLECTUAL ‘how do I walk?’, but in that BACKGROUND, HOWEVER, THIS MEANS THAT I TEND refl ective way which means TO BE DRAWN TO LEGAL ISSUES THAT HAVE A that no intellectual holds are barred.” CERTAIN PHILOSOPHICAL DEPTH TO THEM” As a philosopher of law, PROFESSOR ANDREW BOTTERELL I try to use this attitude of curiosity and rigor to ‘know my way that seems to presuppose that she/he around’ the law. Given my intellectual has somehow interfered with the payor’s PROFESSOR ANDREW BOTTERELL background, however, this means that legal rights)? I tend to be drawn to legal issues that To paraphrase Kant, it seems to have a certain philosophical depth to me that in the study of the law theory Understanding them. While many legal issues satisfy without doctrine is empty, doctrine Law in the that description, these days I am without theory blind. In other words, to particularly interested in different ways be a good lawyer – to really know one’s Broadest in which rights can be interfered with. I way around the law – it is not enough Possible Sense am interested in this question both for to know some legal theory, or to know doctrinal reasons – what is the content of some legal doctrine. Rather, one must WILFRED SELLARS, WHO TAUGHT Bohlen’s ‘incomplete privilege to infl ict be able to interpret cases in light of PHILOSOPHY AT THE UNIVERSITY intentional invasions of property and theory, and to test theory against cases. OF PITTSBURGH SAID: “THE AIM OF personality’? – as well as for theoretical This attention to the abstract as well PHILOSOPHY, ABSTRACTLY FORMULATED, reasons – what marks the boundary as to the particular is characteristic of IS TO UNDERSTAND HOW THINGS IN THE between justifi cations and excuses, good legal scholarship as well as good BROADEST POSSIBLE SENSE OF THE between permissible and impermissible legal advocacy, and is part of the reason TERM HANG TOGETHER IN THE BROADEST rights interferences? And how, if at all, do why I think the study of philosophy can POSSIBLE SENSE OF THE TERM. Under the answers to these questions bear on enrich our understanding and practice ‘things in the broadest possible sense’ issues in constitutional law (what does it of the law. I include such radically different items mean for an interference with a Charter as not only ‘cabbages and kings’, but right to be ‘demonstrably justifi ed’), numbers and duties, possibilities and or the law of unjust enrichment (why, fi nger snaps, aesthetic experience and if the innocent recipient of a mistaken

44 2008 WESTERN LAW ALUMNI MAGAZINE E L I

A F O R TEACHING P Life Western Law’s Longest Serving Professor Retires WHEN I FIRST ARRIVED HERE BY SUSANNA EAYRS I REMEMBER THINKING ‘WHAT

WHEN SYD USPRICH FIRST ARRIVED AT WESTERN LAW AS A GREAT PLACE TO WORK’ A YOUNG PROFESSOR IN THE FALL OF 1970 HE REMEMBERS FEELING BOTH EXCITED AND APPREHENSIVE. “Starting any AND THAT REMAINED TRUE new job is a daunting prospect, but this was more so. I was told to show up at a class at a certain time and the rest was up to me. We FOR MY ENTIRE CAREER. were given a lot of freedom and I was trying to fi gure which way was up. Fortunately, both senior faculty and my contemporaries PROFESSOR SYD USPRICH were very generous with their time and support.” Usprich was thrilled to begin teaching criminal law right from the start. It was the subject that fascinated him the most and one he excelled at as a law student under Professor Martin Friedland at the University of Toronto and as a grad student Usprich has taught thousands of students over the years under legendary Cambridge professor Glanville Williams. and he fi nds it gratifying to know that so many of them have Apart from a brief stint teaching commercial law, Usprich gone on to have successful and productive careers. He still was able to focus solely on criminal and evidence law during his gets the occasional email from former students asking for his 38-year teaching career at Western. thoughts on a criminal or evidence problem. “It’s nice to know “Criminal law is a fascinating area. There’s so much rich they remember me,” Usprich says with a wistful smile. material to work with. The cases and issues involve life, death Usprich notes he is proud that his work has made its way and morality, it’s not just about money. It’s never static, new to the Supreme Court of Canada. “I’m still thrilled when I read and important cases are always emerging that change decades judgments and I am quoted. It makes me feel that I have made of thinking.” a difference.” Usprich says the biggest change he has seen over the past Over the years Usprich has been asked by the media to four decades of teaching law has been the infl uence of The comment on various issues of the day. It’s a role he feels is an Charter. “It’s had a huge impact. As criminal lawyers we are all important one. constitutional lawyers now.” “As professors we should be contributing to the public He’s also witnessed the school’s technological revolution discourse. It’s another form of teaching; it’s what we do,” he and played a signifi cant role in its development. A self-taught asserts. “The media and the public benefi t from our academic computer nerd, Usprich wrote the original programming for expertise. It’s something that I certainly would encourage us to computerized law grades. He takes pride that he leaves behind do more of.” other creations that remain in use: the course-bidding system A packrat, Usprich says it’s going to take him quite a bit and the Canadian law deans mailing list. of time to organize the accumulated “chaos” of 38 years. But There are many things Usprich will miss about his job, and sifting through his papers and fi les bring back fond memories. at the top of the list will be the day-to-day interaction with his “When I fi rst arrived here I remember thinking ‘what a great colleagues and students. place to work’ and that remained true for my entire career.”

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Alumni Relations and Development

FACULTY OF LAW DONORS We would like to recognize the following donors who have given or pledged $1,000 or more to Western’s Faculty of Law between May 1, 2007 and April 30, 2008. We also wish to thank those donors who have chosen to remain anonymous.

DONORS OF $100,000+ Stephen R. Coxford Blake Cassels & Graydon LLP Cassels Brock & Blackwell LLP Law Foundation of Ontario The Ontario Legal Aid Plan Osler, Hoskin & Harcourt LLP The Thomson Group

DONORS OF $25,000 – $99,999 W. Geoff Beattie (L-R) Western Law students: Martina Nikolic, Azmat Jay A. Carfagnini & Karen E. Trimble Ramal-Shah, Kenneth Ng and Dara Lambie with Blakes: Investing in Students Gail Lilley ’78 (seated) a partner at Blakes Mark Uhrynuk Torys LLP Through Student Awards

DONORS OF $10,000 – $24,999 BLAKE, CASSELS & GRAYDON LLP multinational and Canadian clients. She Mr. David G.F. Ellins (Blakes) has made a gift of $175,000 to has particular expertise in the Canadian Heenan Blaikie Lawyers support student awards at Western Law. aspects of global business transactions, Torkin Manes Cohen & Arbus LLP Blakes generous gift will be used to including the cross-border structuring establish an endowment at The University and fi nancing of those acquisitions. DONORS OF $5,000 – $9,999 of Western Ontario that will support the During her third year of law school, Mark G. Lichty existing Blake, Cassels & Graydon LLP Lilley participated in an exchange Bastedo Stewart Smith Scholarship. The gift, held at Foundation program in Cleveland, Ohio with the Western, will support second year Canada/U.S. Law Institute. She credits DONORS OF $1,000 – $4,999 Western Law students who demonstrate this program for giving her an early Robert Black and Judy Adams academic excellence in the fi rst year of interest in cross-border issues. Peter G. Jaffe their law studies. Blakes is one of Canada’s leading Mr. Ryan Kalt Blakes will host a reception in business law fi rms and has a long and Nicholas J. Koppert September at Western Law to formally rich history with Western Law. Over the Mrs. Lara Masur-Leitch announce this gift to students. years, many Faculty of Law alumni have Brian and Loretta Phillips “Our general philosophy is we like chosen to work at Blakes, including a The Harold G. Fox Education Fund to invest in students,” says Gail Lilley, a number of gold medallists. Currently, LexisNexis Canada Inc. partner at Blakes who graduated from Blakes has 34 Partners and Associates Miller Thompson LLP Western’s Faculty of Law 30 years ago. who graduated from Western’s Faculty Scotiabank “Students face high tuition and we want of Law and this past May, four summer to invest in the best and the brightest. students began with the fi rm. Western Law is an important school to Founded in 1856, Blakes has more than us, the students bring a broad range 550 lawyers in nine offi ces in Canada, the of skills.” United States, Europe and China. Blakes Lilley has been a Partner at Blakes since was recently named “Canadian Law Firm 1986. Her practice involves a wide range of the Year” by Chambers and Partners of corporate commercial transactions Legal Publishers, one of the world’s with a principal focus on mergers and leading publishers of legal directories acquisitions of businesses for both and trade periodicals.

47 T N E Alumni Relations and Development M P O L E V E D

Osler: Supporting Western Law Through its (L-R): Ashley Richards ’05 and David Forrest ’06, associates in the fi rm’s Toronto offi ce and ‘Programs of Excellence’ Ian McSweeney ’79, partner at Osler

The fi rm OSLER HOSKIN & HARCOURT legal knowledge and help Canadian law Rand dedicated his life to the law as a together with our Western Law Alumni schools retain top students. Osler has practitioner, a judge and a scholar and left a at the Firm recently have made a gift of committed a further $3.5 million over the lasting legacy that has inspired generations $225,000 to support student entrance next ten years. of law students,” says McSweeney. “Osler is scholarships at the Faculty of Law. This Osler has a long-standing relationship honoured to establish an award in Justice gift, held at Foundation Western, will top with Western Law. There are currently Rand’s name.” up the current endowment Osler Hoskin more than 45 lawyers and student alumni With 450+ top lawyers working from & Harcourt has created at Western Law from Western Law working at Oslers. offi ces in Toronto, Montréal, Calgary, – the Osler Rand Scholarship. This new gift “We consider Western Law as an Ottawa and New York, Osler is widely along with the Firm’s endowment will now essential part of our ongoing initiatives regarded as one of Canada’s leading law create one of the top scholarships offered to recruit the brightest and best new fi rms. Osler provides integrated legal to a fi rst-year student at Western Law. lawyers,” McSweeney says. services with specialists in virtually “It is important for lawyers to give “The new donation will result in all every area of business law, advising back to their communities and support of our awards, including the renamed many of Canada’s corporate leaders as their profession,” says Ian McSweeney, Osler Rand Entrance Scholarship, being well as U.S. and international clients a Western Law grad and partner in the fully-endowed for the ongoing benefi t of with interests in Canada. Toronto offi ce of Osler. “Donations to law Western Law and its students.” schools provide much needed funding to The Osler gift will build on the strong ensure that academic excellence can be foundation already established through promoted and maintained, especially in the sponsorship of the Osler seminar times of government funding constraints.” room, academic prizes and existing Osler Through its ‘Programs of Excellence’, Rand Scholar Award at Western Law. Osler has contributed approximately $3 Ivan Rand retired from the Supreme million over the past ten years to law Court of Canada in 1959 and became the schools across the country to further fi rst Dean of Western’s law school. “Justice

48 2008 WESTERN LAW ALUMNI MAGAZINE L A I R O M E M

Honouring the memory of a legal pioneer

Tom Cline ’63, Robert Blackwell ’64, Marshall Pollock, Charlie Ross ’64, Law Marks Life of Founding Dean Margaret Banks Roger Yachetti ’64, John McGarry ’63, Wes Rayner, Marg McNulty, Robert Cline ’62, Don Taliano ’64, Al Oosterhoff

In his remarks Western Law Dean (Minister of Justice and Attorney Ian Holloway said, “In 1959, at an age General of Canada), Ms. Elizabeth Weir when most people are thinking of ’74, (former leader of NDP in New enjoying retirement, Rand moved to Brunswick) Michael and Paul Rand (son London and assumed the responsibility and Grandson of Ivan Rand) Moncton for establishing a new law school at Mayor Lorne Mitton, New Brunswick Western. Rand took to his new career MP Brian Murphy. A dinner followed the with relish, and helped set the law school ceremony at which remarks were made on the path to acquiring the national by Roger Yachetti, a former student of prominence it enjoys today. Rand; Marshall Pollock, Rand’s Former (L-R): Paul Rand and Michael Rand “Even though Rand retired from the Law Clerk, and Brian Murphy, MP for Supreme Court almost 50 years ago, Moncton. The Ivan C. Rand memorial window was his imprint remains on many areas of formally unveiled on September 27 at a Canadian law. It is our great fortune ceremony in Western Law’s Moot Court at Western Law to be able to claim Room. The Hon. Ivan Cleveland Rand him as our founding Dean. The chance (1884-1969) was founding dean of the to honour him – and celebrate our Faculty of Law and a towering fi gure in connection with him – in this way makes Canadian legal history. He was a Justice this a very special occasion for us.” of the Supreme Court of Canada, a Western Law would like to thank Companion of the Order of Canada, and all the donors who so generously a labour arbitrator. The unique stained contributed to the The Ivan C. Rand glass window contains a selection memorial window. of symbols that, taken together, Among those attending the special (L-R): Lorne Mitton (Mayor of Moncton), encapsulate Rand’s life and career. ceremony were The Hon. Rob Nicholson Dean Ian Holloway and Brian Murphy (MP)

49 5 0 FACULTY BRIEFS 2 0 0 8

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Faculty News and Information

at a symposium held in Toronto in June. Sponsored jointly by responsibilities were instead focused on the Family Law area. the Canadian branch of the International Fiscal Association, In September, Hovius’ article on “Spousal Support in Canada” the Canadian Tax Foundation and the Faculty of Law of the appeared in International Family Law, a European journal. His University of Toronto, the symposium focused on the subject article entitled “Property Rights for Common Law Partners” of international tax reform; it was held in anticipation of the appeared in the Jay McLeod Memorial Book, Contemporary report of the Advisory Panel on Canada’s International Tax Issues in Family Law: Engaging with the Legacy of James System, which was established by the federal government on G. McLeod, published by Carswell in late 2007. This book November 30, 2007. Edgar subsequently completed a report, illustrated and celebrated Jay’s infl uence on the development commissioned and published by the Advisory Panel, on the of Family Law in Canada. In addition, Hovius delivered papers subject of the deductibility of interest expense in the context on family property issues at two conferences organized for the of inbound foreign direct investment. legal profession in June. In April, Edgar was awarded a three-year SSHRC grant to support three different empirical studies of the effect Grant Huscroft of legal uncertainty on tax-driven fi nancial innovation, and Professor Huscroft published an edited collection of essays he has begun work on the project. He also delivered two entitled Expounding the Constitution: Essays in Constitutional short intensive courses on the tax treatment of fi nancial Theory (New York: Cambridge University Press), and contributed instruments and fi nancial innovation: one in November for the chapters to two books. He contributed “The Duty of Fairness LLM (International Taxation) program at the Vienna School of from Nicholson to Baker and Beyond” to Flood and Sossin, Business and Economics, and the other in August for the LLM eds., Administrative Law in Context (Emond-Montgomery, (Taxation) program at the University of Sydney law school. 2008) and “Rationalizing Judicial Power: The Mischief of Dialogue Theory” to Kelly and Manfredi, eds., The Charter at Randal Graham 25 (forthcoming). Professor Graham was on sabbatical leave this year, working Huscroft appeared on television and radio in a variety on his fourth book, which will address roles of scarcity and self- of contexts this year, debating everything from freedom of interest in the design of legal doctrine and social institutions. expression and human rights laws to changes to the electoral During his sabbatical he also published a paper entitled “Politics system and the constitutionality of polygamy. and Prices” in the Indian Journal of Constitutional Law, served He has completed his term as Associate Dean (Academic) as an adjunct professor (teaching Statutory Interpretation) at and is looking forward to returning to his research in the fall. the University of Toronto, and presented works-in-progress In October, he and Professor Bradley Miller will be hosting a at a number of symposia on topics ranging from legislative colloquium on Originalism in Constitutional Interpretation, language to genetics. Graham’s most recent presentation was involving the world’s leading constitutional theorists. a keynote address at the Hugh M. Ketcheson Lecture series hosted by the Saskatchewan Crown Counsel Association in Rande Kostal Regina, Saskatchewan. His paper was titled “Activism vs. Professor Kostal worked to complete the archival research of Restraint: the Judiciary’s Approach to Legislative Intention.” Laying Down the Law: The Legal Reconstruction of Germany and Japan, a forthcoming book for Harvard University Press. In Ian Holloway the process he made a number of visits to the National Archive Ian Holloway has just completed his eighth year as Dean of the United States in Washington, D.C., and single visits to the of Western Law. In December he was elected Chair of the Douglas MacArthur Memorial Library in Norfolk, Virginia, the North American Cooperation Section of the Association of Truman Presidential Library in Independence, Missouri, and American Law Schools. In June, 2008, he became Chair of more recently the Institut fur Zeitgeschicte in Munich, Germany. the Ontario Law Deans Council. In May, he was one of the In August, Oxford University Press will publish the revised speakers on a panel sponsored by the Law Society of Upper paperback edition of Kostal’s A Jurisprudence of Power: Canada in honour of South Asian Heritage Month. He spoke Victorian Empire and the Rule of Law. on “The Diversity Pipeline.” On June 26, he delivered the Chief Justice Thane Campbell Lecture at the University of Michael Lynk Prince Edward Island. Throughout the year, he has been During this past academic year, Professor Lynk published chairing a committee to establish a new law school at Sultan articles on disability at work in Canada (in R. Echlin & C. Paliare Qaboos University in Oman. (eds.), Law Society of Upper Canada Special Lectures 2007: Employment Law (Toronto: Irwin Law, 2008)) and on the 40th Ben Hovius anniversary of the adoption of United Nations Security Council At the end of June, Professor Hovius completed his thirtieth Resolution 242 ((2007), 37:1 Journal of Palestine Studies). His year as a member of the Faculty of Law – and for the fi rst time in current research work has been focused on Canadian labour all those years, he did not teach a fi rst-year course. His teaching law in the international sphere, on mental illness and addiction

51 5 2 FACULTY BRIEFS 2 0 0 8

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Faculty News and Information

a book of the same title which will be published by Hart Ltd. of Nicholls also attended conferences in Toronto and New the United Kingdom in January 2009. York City, and was quoted in articles appearing in Maclean’s Neyers also created and administers the Obligations magazine, the Toronto Star and the Globe and Mail. In June, Discussion Group (ODG), which is an international mailing list his article “Canada’s M&A Rule Book May be Written”, devoted to all aspects of the law of obligations. The ODG has discussing aspects of the pending Supreme Court of Canada over 200 members from seven different countries. An archive appeal of the BCE arrangement, appeared in the Globe and of the group’s discussions can be found at http://www.ucc. Mail’s Report on Business. Finally, he has completed his fi fth ie/law/odg/home.htm. To be added to the list please send a book, on the Regulation of Financial Institutions, which is now message to [email protected] in production and will be published by LexisNexis in late 2008 or early 2009. Christopher Nicholls One of the great highlights of the past year for Professor Valerie Oosterveld Nicholls came in September, when he co-organized and served Over the past year, Professor Oosterveld continued her work as moderator for Western Law’s remarkable “Spirit of ’76” panel, in the fi eld of international criminal law. She published, with featuring leading M & A and tax practitioners, all proud graduates Andrea Marlowe (’07), Prosecutor v. Brima, Kamara and Kanu; of the Western Law class of 1976. The program was originally Prosecutor v. Fofana and Kondewa: Special Court for Sierra the idea of William Braithwaite (Stikeman Elliott), with a key role Leone (2007) 101(4) American Journal of International Law played from the start by Gary Girvan (McCarthy Tétrault). All of the 848-857. As well, “Prosecution of Gender-based Genocide” in participants including William and Gary, Ronald Durand (Stikeman Samuel Totten (ed.), The Plight and Fate of Women in Genocidal Elliott), Grant Haynen (Bennett Jones) and Joan Weppler Situations, Volume 7 of Genocide: A Critical Bibliographic (Dofasco) were outstanding. The panel was a tremendous hit with Review (Transaction Publishers, 2008) and “Women’s Rights the “standing room only” crowd of students who attended. and International Criminal Law” in David Forsythe (ed.), In October, Nicholls presented a paper on piercing the Encyclopedia of Human Rights (Oxford University Press, 2009) corporate veil at the Consumer and Commercial Law Workshop are currently in press. Her article titled “The Special Court at the University of Toronto. A much revised version of that for Sierra Leone’s Consideration of Gender-Based Violence: paper, entitled “Piercing the Corporate Veil and the ‘Pure Contributing to Transitional Justice?” was accepted for Form’ of the Corporation as Financial Innovation” was later publication in 10(1) Human Rights Review (2009). published in the Canadian Business Law Journal v.46 (2008). During the academic year, she presented several papers: He also was privileged to be engaged by the Securities Fraud “The Politics of War Crimes Tribunals: The Case of the Special Enforcement Working Group, established by the federal/ Court for Sierra Leone” (Washington D.C.); “The International provincial/territorial cabinet ministers responsible for justice, Criminal Court, Criminal Accountability and the Lord’s to assist in the writing of its report. Resistance Army” (London); “Gender and the Special Court In January, Nicholls was invited to make a presentation for Sierra Leone” (Berkeley); “Questioning International Law” on mergers and acquisitions law as part of Osgoode Hall Law as part of Western Law’s Faculty Seminar Series; “Making School’s LLM program in securities law. Two weeks later, he Gender Matter in International Criminal Justice” (Vancouver); spoke at the National Centre for Business Law at UBC on the “Canada’s Continued Support for International Criminal Justice: subject, “Principal Protected Notes: A Case Study in Financial Is it Justifi ed?” (Ottawa); and “Treaty Compliance Mechanisms Innovation.” At the end of January he acted as “rapporteur” for in International Criminal Law: Canada’s Contribution” (Ottawa). a roundtable on securities law enforcement convened by the She also served as an invited discussant on the International Capital Markets Institute at the University of Toronto’s Rotman Criminal Court at a roundtable on international law theory (St. School of Business. In March, he was invited to Dalhousie Law Louis). She chaired the “Women and Peacebuilding” panel at a School to deliver a lecture on take-over bid law. conference she co-organized, When the Fighting Stops: Roles In the spring, the federal Minister of Finance’s long-awaited and Responsibilities in Post-Confl ict Reconstruction (Newark). Federal Task Force on the Effectiveness of Securities Regulation Oosterveld co-hosted, with Professor Carmody, an (chaired by the Hon. Tom Hockin) held its fi rst meeting in international law symposium at Western Law titled Is Our House Ottawa, and Nicholls was invited to make a presentation to that in Order? Canada’s Implementation of International Law. She Task Force on proportionate regulation. produced a discussion paper for the Special Court for Sierra Nicholls was a co-applicant on two of the four successful Leone on legal obligations that continue after that Court’s major SSHRC grants received by law school faculty members physical closure in 2010. She served on the Canadian delegation this year: a grant of $117,000 to complete an empirical study to, and chaired the fi nal dialogue for, the Hemispheric Seminar (with Professor Mohamed Khimji of Dalhousie Law School) on Towards the First Review Conference of the Rome Statute of the veil piercing cases in Canadian corporate law; and a grant of International Criminal Court (Mexico City). In March, she was $59,000 for a research study (with Professor Stephen Sapp of awarded the University Students’ Council Teaching Honour Roll the Richard Ivey School of Business) on corporate governance. Certifi cate for her teaching during the 2006–07 academic year.

53 S F E I R B

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U Adam Parachin to speak at the Birla Institute of Technology and Science where C

A Professor Parachin continues to research and write on the he focused on the economic aspect of adoption of the WIPO F legal regime governing the succession of wealth in support Copyright Treaty for India and Canada. of philanthropic works. Appearing in journals this year were Perry delivered the paper (co-authored with Q. Zhao) “An articles he has written on the preferred treatment of charities Ontology for Autonomic License Management” at the Fourth in relation to the rule against perpetuities, the rationales offered International Conference on Autonomic and Autonomous by courts to justify the boundaries of the legal defi nition of Systems on March 19 in Gosier, Guadeloupe. This paper was charity and new income tax rules dealing with the tax treatment published in the Conference Proceedings (ICAS’08). of inter-charity transfers of property. His forthcoming articles and works-in-progress include papers on why the rule against Stephen G.A. Pitel accumulations should be repealed, goal oriented judgments in Professor Pitel was awarded the Bank of Nova Scotia, University the law of charity and the income tax treatment of charitable of Western Ontario Alumni Association and University Students’ gifts. In addition, Parachin presented research results this year Council Award of Excellence in Undergraduate Teaching. He before the Congress of Humanities and Social Sciences, the was also a semi-fi nalist for the TVO Best Lecturer competition Southeastern Association of Law Schools, the American Bar and was named the Jay McLeod Professor of the Year in the Association and the Ontario Bar Association. Parachin was also Faculty of Law. He very much appreciates his students’ support admitted to the USC Teaching Honour Roll. of his efforts in teaching, mentoring and curriculum reform. Prof. Pitel published “Enforcement of Foreign Non- Mark Perry Monetary Judgments in Canada (and Beyond)” in The Journal Professor Perry has been awarded a SSHRC Standard Grant of Private International Law (2007) 3:2; “The Standard of of $100,400 over the next three years to pursue his research Proof for Jurisdiction Clauses” (with Jonathan de Vries) in the into Legal Theory and Models for FLOSS (Free/Libre and Open Canadian Business Law Journal; “Counselling and Negotiation” Source Software) in Government and Business. in LexisNexis Canada’s new national book on legal ethics; In September, he co-organized with Professor Margaret Ann “Charting New Courses: Leadership in Curriculum Reform” in Wilkinson a national intellectual property-related conference the Journal of Commonwealth Law and Legal Education, and entitled “The Canadian Intellectual Property Academy: comments on Schreiber v. Mulroney, Juman v. Doucette (with Outreach and Audience” at Western Law. Professor Dale Ives) and Marche D’Alimentation Denis Theriault In 2007, he published a chapter (with H. Kaminski) entitled ltée v. Giant Tiger Stores Ltd. “Employing Intelligent Agents to Automate SLA Creation” in In June, Pitel presented a paper on restitutionary claims Emerging Web Services Technology edited by C. Pautasso and under the new European Community regulation on the law C. Bussler. He also published “Autonomic Creation of Service applicable to non-contractual obligations at a conference Level Agreements” (with H. Kaminski) in Proceedings of IADIS at Trinity College Dublin. He is the Canadian editor for e-Society Conference 2008. www.confl ictofl aws.net and also maintains a national He presented a paper (with H. Kaminski) entitled “Open e-mail news and discussion list for confl ict of laws professors. Source Software Licensing Patterns” at the OOPSLA While on sabbatical for 2008–09 he is co-authoring a text on conference in Montreal, October 21–25. He was also an invited private international law. speaker at the international symposium “Playing the Gallery: The Art of Games” where he spoke on “Modelling Licences in Melanie Randall Virtual Environments: a Creative Commons Approach”. The Professor Randall’s scholarly work continues to focus largely symposium, held October 3–5 at The University of Western on legal remedies for gendered violence, in both the private Ontario, explored the creative spirit of gaming and whether and public law contexts. Her forthcoming publications include: parallel worlds represent a unique opportunity for expression the article “Honest But Mistaken Judicial Beliefs About Sexual and social and cultural change. Assault in Spousal Relationships, Consent and the Law: When Perry (with P. Krishna) exhibited a poster on the “Use of No Doesn’t Mean No”; a book chapter entitled: “Private law, the Material Transfer Agreements in Biotechnology in Canada” at State and the Duty to Protect: Tort Actions for Police Failures the Canadian Society of Plant Physiologists (CSPP) Eastern in Gendered Violence Cases”; and a published review essay Regional Meeting at The University of Western Ontario on addressing the book “Rethinking Domestic Violence” (in the November 30. UBCLR, 2008). In February, he delivered a talk at the Rajiv Gandhi School During the 2007–08 academic year, Randall delivered of Intellectual Property Law, Indian Institute of Technology in several invited presentations: “Educating Courts About the Kharagpur, entitled “Copyright Reform and the World Intellectual Complexities of Domestic Violence: Challenges for Crowns” Property Organisation Copyright Treaty”. He also spoke on at the Ontario Crown Domestic Violence Co-Leads Provincial “Does India need a DMCA?” to students at the Banaras Hindu Conference, Ministry of the Attorney General, in Toronto on University Law School in Varanasi. In March, Perry was invited November 28, 2007, and also at the British Columbia Crown

54 2008 WESTERN LAW ALUMNI MAGAZINE Faculty News and Information

Counsel Conference, Whistler, B.C., in April. In October, she faced by an accused in a criminal trial in testing and contesting presented “Private Law and State Accountability for Gendered forensic pathology evidence adduced by the Crown. The paper, Violence: Tort Actions for Failure to Protect,” for “Feminist entitled “Defending a Pediatric Death Case: Problems and Fridays” at the Institute for Feminist Legal Studies, Osgoode Solutions”, is available on the Inquiry web site: http://www. Hall Law School. goudgeinquiry.ca/policy_research/index.html. In September, She also participated in an invited consultation with Sherrin was a speaker at “The National Conference on the academics for the Hon. Roy McMurtry’s Victim Compensation Charter and Criminal Justice in Canada” held to mark the 25th Review, an assessment of the criminal injuries compensation anniversary of the Charter. He discussed whether the Charter scheme in Ontario has made a positive or negative contribution to protection against wrongful conviction. His paper from that conference, Daniel Sandler entitled “The Charter and Protection Against Wrongful Last fall Professor Sandler presented two papers on the taxation Conviction: Good, Bad or Irrelevant?”, is now published in both of international entertainers and athletes at a conference in the Supreme Court Law Review and in the book The Charter Geneva, Switzerland (“Canada” (a country report) and “Problems and Criminal Justice – 25 Years Later. Taxing Non-Resident Artistes and Sportsmen”) and a paper on the source allocation rules under Article 17 of the OECD Model Robert Solomon Tax Treaty at a conference in Vienna, Austria. The papers will be Professor Solomon continues his research, publications and published in conference proceedings in 2008. presentations in the fi elds of torts, traffi c safety and healthcare. In January, Sandler taught a two-day course on the In conjunction with Professors M. McInnes (University of Taxation of International Artistes and Sportsmen in the Alberta), E. Chamberlain and S. Pitel, he published the 7th LL.M. program at the Vienna University of Economics and edition of Cases and Materials on the Law of Torts in the summer Business Administration. He also participated in a panel at of 2007. The book, now in its 25th year, addresses every major the FullSail Summit in Saint John in March, hosted by the area of Canadian tort law. Solomon and Chamberlain’s papers New Brunswick Securities Commission, where he spoke on “From Research to Reform: The Rating the Provinces and funding entrepreneurs. In May, he was one of the faculty Territories Project in Canada” and “Youth and Impaired Driving presenting at a two-day PhD seminar on comparative taxation in Canada: A Progress Report” were published in B. Logan ed. law issues at the University of Uppsala, Sweden. Proceedings of the 18th International Conference on Alcohol, Drugs and Traffi c Safety – T’2007 (online: www.icadts2007. Sara Seck org/). With Chamberlain, Solomon published “Zero BAC Limits On November 8 and 9, Professor Seck participated in an for Drivers Under 21: Lessons from Canada” (2008), 14 Injury invitation-only experts’ meeting in Copenhagen on the role of Prevention 123. A second paper on minimizing impairment- states in effectively regulating and adjudicating the activities related youth traffi c deaths is scheduled for publication in the of corporations with respect to human rights. The meeting was Canadian Journal of Public Health this fall. organized by the International Commission of Jurists, and by Solomon’s research is supported by grants from Auto 21: Professor John Ruggie of Harvard University in his capacity Networks of Centres of Excellence Program (NESRC, CIHR, as the Special Representative to the UN Secretary-General on SSHRC, and Industry Canada), the Centre for Addiction and Business and Human Rights. The meeting brought together Mental Health, and Mothers Against Drunk Driving Canada. legal academics from around the world with representatives In addition to the preceding papers, the funding supported from governments, non-governmental organisations, industry, the publication, with A. Carlson and M. Nikolic, of Rating the and law fi rms. She spoke at the fi rst session on the meaning Provinces and Territories: The 2007 Progress Report which and scope of the state duty to protect human rights in relation was released in September. to business. In December, Seck successfully defended her PhD Solomon presented a brief entitled “The Comprehensive dissertation at Osgoode Hall Law School. In March, she spoke and Innovative Reform of the Criminal Code’s Impaired Driving at conferences at the Faculty of Law, University of Victoria, Provisions” to the House of Commons Standing Committee on and at Yale Law School, both on the topic of Corporate Social Justice and Human Rights on February 12, 2008. His proposal Responsibility and the Extractive Industries. Her paper, entitled to establish a working group on youth traffi c crashes was “Home State Responsibility and Local Communities: The Case adopted by the International Council on Alcohol, Drugs and of Global Mining” is forthcoming in the Spring 2008 edition of Traffi c Safety in the fall of 2007. Solomon was also a participant the Yale Human Rights and Development Law Journal. at a two-day colloquium on young impaired drivers hosted by the Transportation Research Board of the American National Christopher Sherrin Academy of Sciences. Further to his retainer as a researcher for the Inquiry Into For the third year in a row, Solomon was a recipient of a Pediatric Forensic Pathology in Ontario, Professor Sherrin University Students’ Council Teaching Honor Roll Certifi cate. In prepared and submitted a paper discussing the challenges August, The International Council on Alcohol, Drugs and Traffi c

55 S F E I R B

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U Safety (ICADTS) presented him with the 2007 Widmark Award Margaret Ann Wilkinson C

A and Gold Medal at its 18th International Conference in Seattle. Having completed work over a number of years on the Social F The award and medal were presented at the Gala Dinner before Sciences and Humanities Research Council (SSHRC) Initiatives 900 delegates from around the world. Established in 1965 to in the New Economy (INE) Grant that she held, entitled honour Professor Erik Widmark of the University of Lund, “Inalienable Rights or Property Interests: Reconciling Confl ict in the award is the highest honour that ICADTS can confer on the New Economy,” Professor Wilkinson has received a further individuals. It recognizes those “who have made an outstanding, SSHRC INE Public Outreach Grant, “Accessing Information and sustained and meritorious contribution to the fi eld that has led Exercising Information Rights.” This outreach grant will further to international standing and respect.” Recipients “must have the work she and Professor Mark Perry have done over the past an impressive record of accomplishments in the fi eld.” Solomon half dozen years to foster the Canadian Intellectual Property is the 27th recipient in the 43-year history of this prestigious Academy Project. The project has brought together Canada’s international traffi c safety award. intellectual property professorial research community for several days of workshops at Western Law every two years. Thomas Telfer This year’s conference took place in September and included Professor Telfer presented the paper, “The Evolution of scholars from coast to coast. Bankruptcy Exemption Law in Canada 1867–1919: The Triumph The outreach grant also supported her tour of seven of the Provincial Model” at the Annual Review of Insolvency universities in the United Kingdom in conjunction with her Law Conference at the University of British Columbia. The appointment during the 2008 January term as Visiting paper was subsequently published in the 2007 volume of Professor at Newcastle School of Law. In addition to giving the Annual Review of Insolvency Law. He also published a series of three guest seminars at Newcastle and advising “Statutory Licences and the Search for Property: The End of graduate students, she met with information and intellectual the Imbroglio?” in the Canadian Business Law Journal. property law colleagues at Cambridge and Oxford. Telfer was also the co-author, with Anthony Duggan of the Wilkinson presented guest lectures at the Intellectual University of Toronto, of two articles on insolvency reform Property Research Centre at Queen Mary College (University that appeared in a book essays entitled: Canadian Bankruptcy of London), Edinburgh School of Law, Glasgow School of Law and Insolvency Law: Bill C-55, Statute c. 47 and Beyond. The and Strathclyde School of Law. One paper was based upon fi rst paper examined the law of fraudulent preferences and work already published in part as “The Public Interest in Moral the second examined gift and transfers at undervalue. One Rights Protection,” (2006) 1 Michigan State Law Review 193- of the essays was also re-published in the Texas International 234, and continued in “The Author as Agent of Information Law Journal. Policy: the Relationship between Economic and Moral Rights Telfer continued his involvement with the Uniform Law in Copyright” (with doctoral student Natasha Gerolami), Conference of Canada. He was an invited speaker at the Annual forthcoming in Government Information Quarterly. Another Meeting of the ULCC at Charlottetown where he gave a paper was based upon work which will shortly appear as a chapter on the Federal Interest Act. Telfer has since been invited to join entitled “Battleground between New and Old Orders: Control a Working Group of the ULCC on the reform of the Interest Act. Confl icts Between Copyright and Personal Data Protection” He also attended meetings in Washington D.C. and Tucson as a in the Canadian contribution, edited by Ysolde Gendreau, to delegate of the ULCC on the Project to Create a Harmonized the Queen Mary Studies in Intellectual Property series: “An Legal Framework for Unincorporated Associations in North Emerging Intellectual Property Paradigm: Perspectives from America. Canada” (London: Edward Elgar, in press). The third paper, In the fall of 2007, Telfer was invited by the Insolvency “Privacy, Photos and the Press,” is currently under review for Institute of Canada to attend their annual conference in publication. The fourth paper related to research funded under Napa Valley for the presentation of the Annual IIC Student both the INE grant and another SSHRC grant (with Professor Writing Awards. Two of his students, Marie Bruchet and Mark Perry) concerning the relationship between the ethics Michael Mangan, fi nished fi rst and second respectively in review process in Canadian universities and personal data the writing competition. protection requirements. Wilkinson is also Adjunct Faculty at the Richard Ivey Bruce Welling School of Business where she teaches a course on intellectual Professor Welling and Jim Corkery of Bond University have property and other law related to health sector business. She co-authored a new treatise, Principles of Corporate Law in provided an expert report to proceedings now before the Australia, published in mid-March. In June, he delivered a talk to Copyright Board of Canada on the implications of the fair the partners and associates of Wildeboer Dellelce at their Toronto dealing provisions in Canada. offi ces on the potential impact for corporate legal advisors of the Québec Court of Appeal decision in the BCE case.

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8. Back Row (L-R): Berkley Sells ‘96, Nadia Jandali ‘06, Christine Tabbert ‘98; Front Row (L-R): Cheryl Dusten ’06, Jesse Langdon ‘07, Stacey Stoneham ‘06, Jared Gordon ‘07 9. (L-R): John Zinn, Greg Kinlin ‘74, Jay Carfagnini ‘80 10. (L-R): Ron Atkey ‘65, Dean Ian Holloway 11. Back Row (L-R): Lisa Kwasek ‘07, Andrea McKinnon ‘07, 8 9 Becky Griffi ths, 10 11 Erin McDermid ‘06; Front Row (L-R): Morgan Martin, Mavis Butkus, Gary Rodrigues ‘71 12. (L-R): Srijan Agrawal ‘06, Professor Adam Parachin, Nadia Jandali ‘06, Jesse Langdon ‘07, Stacey Stoneham ‘06

12

Message from the President

As President of The University of the event. You can see photos from the of this magazine. I’d like to emphasize Western Ontario Law Alumni Association evening below. that we are your alumni association and (UWOLAA) I encourage all law alumni to Our next alumni dinner will be in the planned events and activities are for participate in our events and activities. London on Friday, October 3, 2008 during you. As always, I encourage your Your involvement is a great way to support Homecoming Weekend. I hope you will participation! your alma mater and reconnect with consider joining us. Nominations for this colleagues and former classmates. year’s Alumni Award of Distinction are now The highlight of the past year was our being accepted. The award is presented Western law alumni dinner held in October to an outstanding Western law graduate at the King Edward Hotel in Toronto. That who has made an exceptional contribution Richard Morelli (LL.B ’95) evening we awarded The Hon. J. Edgar to our community and/or the law school. Borden Ladner Gervais LLP Sexton, LL.B ’62, with the Alumni of To make your submission please contact Waterloo Region Distinction Award and welcomed guest Carolyn Ross, Alumni Outreach Offi cer, at (519) 741-9100 x241 speaker Mr. Dick Pound, former President [email protected] [email protected] of the World Anti-Doping Agency. I’d like For a complete list of upcoming to express my sincere appreciation to all UWOLAA activities please have a look at of the fi rms and alumni that supported our ad located on the front inside cover

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Western Law Alumni

89 Michael Eizenga of Siskind, Cromarty, Ivey & Dowler In Memoriam LLP was named President of The Advocate’s Society for the 2007-2008 term. Jack Roberts passed away on April 13, 2008. He was a Professor of Law at The University of Western Ontario 87 Douglas Powrie was admitted into partnership at for 23 years. He joined the law school in 1973 and taught Borden Ladner Gervais LLP and heads their regional a number of courses, including Contracts, Commercial tax practice at their Vancouver offi ce. Law, International Business Transactions, IP (notably, Jack was a registered Patent Agent), Competition Law and 80 I an Dantzer, a trial and civil litigation lawyer at Legal Writing. He was a steady scholar whose most notable Lerners since 1982, was elected Managing Partner in publication was a comparative treatment of competition January 2008. law, fi rst published by Butterworths in 1980. One of his most lasting contributions to the school was the establishment 79 Christopher Bredt, a partner with Borden Ladner of the Canada-US Law Institute, of which he served as the Gervais LLP in Toronto, was elected as a Bencher of founding Canadian Director. the Law Society of Upper Canada, replacing Carole He will be remembered as a dynamic, colourful Curtis who was appointed a judge of the Ontario classroom teacher. His door was always open, and his small Court of Justice. group of students (one of whom was Professor Michael Coyle) remember him as having an important impact on 74 Glenn Hainey has become a Bencher of the Law their later lives. He is survived by his wife, Leigh, his three Society of Upper Canada. children, Jeannine, Marie-Lise and Nicole, and his seven grandchildren. He was 65. 73 Mary Jane Hatton has been appointed senior judge in the family court branch of the Ontario Superior Joanne Poljanowski (’85) died on March 18, 2008. Joanne was Court Justice. She was counsel at Toronto’s Children’s a partner with the fi rm of Borden Ladner Gervais LLP. An Aid Society for fi ve years before entering private endowed bursary at The University of Western Ontario Law practice, where she specialized in family law. School has been established by her friends and colleagues. To contribute please contact Donna Swanson, Foundation 70 Bill Donaldson participated in conducting a workshop Western at 519-661-2111, ext. 88810 or [email protected] at the Canadian Institute’s 8th Annual Conference in Managing Legal Risks and Responsibilities in Mental Michael Frank Peterson (’88) died on May 6, 2008 in his 50th Health Care: “The Fundamentals of Mental Health year in London, Ontario. Too soon. Mike had a passion for life Law” in April. On May 3, Bill also addressed the and all things in it. His love of fl owers, plants and trees was Schizophrenia Society of Ontario’s Family Conference, embodied in his beautiful backyard garden. Mike was always Justice and Mental Health section on the subject of willing to share his views and engage in a lively discussion. “Understanding the Ontario Review Board”. Bill is It did not matter whether the subject of conversation covered now in his sixth year on the Board as Alternate Chair the growing of orchards or the American Civil War. Mike’s and Legal Member. enthusiasm was evident. Ken Peacocke (’88) writes, “Mike John McNeil, Q.C., had the 5th edition of his text was a brilliant municipal lawyer, a rare breed. He had an Motor Carrier Cargo Claims, a leading Canadian legal amazing ability to understand the nuances of municipal law, text on cargo liability, insurance and freight claims, and to grasp complicated issues at lightning speed. There published by Thomson Carswell in April 2008. The was many a time when I would run issues by him and would book has now been in service for more than 20 years, receive the benefi t of his wisdom.” Mike will be missed by ever since the fi rst edition was published in 1986. his family, friends, classmates, and wife Jane Cavanagh (’88). He encourages his classmates to purchase multiple Much too soon. copies in order that his royalties might defray the costs of the weddings of his two daughters in successive years, Courtney’s (A.C.S. UWO ’03) in 2007 and Ceara’s (Hon. B.Sc. UWO ’01, M.Sc., UWO ’03, M.D. Queen’s ’07) this year.

61 G N I S O L C

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I Franchise Law

some individual states. 1The premise0 Many do no1t appreciate the very of these laws is to treat the sale of a wide defi nition given in these statutes LARRY WEINBERG ‘87 franchise akin to the sale of a security. on what constitutes a franchise in law. So, franchisors need in some cases to Guaranteed that the defi nition is wider WHEN I LEFT WESTERN LAW IN 1987 register to sell franchises, and always and more encompassing than anything THERE WAS NO COURSE IN ANY need to precede the offering with the the reader would ascribe in plain English SUBJECT CALLED “FRANCHISE LAW”. preparation and dissemination of a as to the meaning of the word. While it Today, in 2008, there is still no course in franchise disclosure document, which certainly covers the standard fast food franchise law. Come to think of it, I cannot is a prospectus-like document offering outlets on most major streets in any recall the concept or the word “franchise” information on the franchise being city or town, it also covers many other coming up even once in my three years of offered, and the people involved. licensing arrangements that involve law school, and that is probably still the In Canada, only Alberta followed suit making some payment and use of a case today. right away, adopting its own franchise “system” of knowhow. These “accidental Yet, there does exist in this country law also in 1971, and then reshaping franchises” are everywhere in the a smattering or handful of lawyers who their law in 1995. It was not until 2000 business community, and the unfortunate practise what they refer to as “franchise that Ontario fi nally saw the wisdom in reality is that many do not come to the law”. So, to address the reader who may adopting a franchise law. But since that attention of anyone until a dispute arises be asking the inevitable question “What time both Prince Edward Island and more and the putative franchisee asserts a the heck is franchise law?”, I offer this recently New Brunswick have followed claim based on non-compliance with explanation. And, if you are asking this with their own laws, patterned on the the law. This is even the case amongst question, not to worry, it was the same Ontario statute. The approach taken by the Bar, where there is a high level of question my partners at Cassels Brock these provinces differs to some degree ignorance on the existence of franchise in Toronto asked before I joined the fi rm from the U.S., in that, in Canada there is laws, the expanded legal defi nition of a in 1997. no regulatory authority that reviews the franchise, and the ramifi cations of non- Rightly put, practising franchise franchise disclosure document. However, compliance. law usually means offering advice on there is an obligation to provide such a The handful of franchise lawyers an activity that is now regulated in document to a prospective franchisee in in Canada are generally quite busy in many jurisdictions, namely the sale advance of the sale, and it must comply providing specialized advice to their of a franchise, while also providing all with a minimum statutory standard of domestic and perhaps international necessary legal services to stakeholders disclosure. Failure to meet the standard clients, and representing a large number who participate in franchising as a method can result in civil liability. In addition, of well known or never heard of brands of doing business, such as franchisors, these Canadian franchise laws mandate offering franchises. franchisees, landlords, investors, a statutory standard of good faith in Perhaps there ought to be a course bankers, brokers and consultants. This the conduct of the ongoing relationship on this subject. type of advice cuts across many legal between franchisor and franchisee. Larry Weinberg is a partner at Cassels specialties, including commercial law More Canadian provinces are likely Brock & Blackwell LLP in Toronto. He (contract preparation and negotiation) to follow the course now set by these will be teaching the fi rst ever franchise mergers and acquisitions, trademark law, four, all of which has created a need for law course in Canada, scheduled for the leasing, dispute resolution and litigation. knowledgeable counsel in Canada who Winter Term of 2010 at Western Law. For many years the offering of a are able to understand the business model franchise has been a well-regulated and provide value added advice to new and activity in the United States. California experienced franchisors on the structure adopted its fi rst franchise law in of their operations, the standards of 1971, and now there is regulation at disclosure, methods of expansion, and the the federal level in the U.S., and in benchmarks in their industry.

62 2008 WESTERN LAW ALUMNI MAGAZINE G N I S O L

Why all Lawyers Should C

N be CoBncerinleld ACbou-t61 I IN 2008, THE FEDERAL GOVERNMENT creating new legal resources, be they INTRODUCED BILL C-61, AN ACT TO documents for clients, papers for use in AMEND THE COPYRIGHT ACT. The long litigation, reasons for judgments of the PROFESSOR SAM TROSOW awaited bill was expected last December, court, or academic law review articles. The but was delayed because of massive practice of law would be hugely impeded in exceptions. And the basic premise from public opposition to a Canadian version an environment where access to materials the Supreme Court that users rights are of the U.S. Digital Millennium Copyright was not a central concern and where an integral part of the balance underlying Act (DMCA). For the fi rst part of this year, the needs of transformative users were the Copyright Act has been totally lost on rumors were fl ying about when the bill not carefully balanced with the needs of the drafters. would be tabled, what it would say, and content owners. No doubt the worst aspect of the law whether the Harper government was This tension in the legal profession was are the new technological protection going to make any changes to what they the subject of a seminal case CCH v Law measures (TPMs), which are modeled on had planned to table. Society of Upper Canada [2004] 1 S.C.R. the controversial anti-circumvention rules Over the past month, along with many 339, 2004 SCC 13, where Supreme Court of the U.S. DMCA. Since the prohibitions other colleagues interested in copyright held that fair-dealing is not just a technical on circumventing TPMs would apply policies, I’ve been immersed in the analysis defense to copyright infringement, regardless of whether there is an infringing of this bill. It’s a complex work of over but is a basic users’ right which must be purpose, many otherwise lawful uses of 50 page, and it contains a level of detail carefully balanced with owners rights. CCH works would now be outlawed. And while uncharacteristic for copyright legislation. is of interest to the legal profession not many sections of the Bill promise new The Bill imposes severe new restrictions only because it promises to improve out of rights (i.e., sections 29.21, 29.22, 29.23, to access to information. It also cuts short a law library’s document delivery service 30.01, 30.02 and 30.04) these provisions many of the rights that the public already to its lawyer patrons. Unfortunately, the are emaciated by detailed counter- enjoys under the existing Copyright Act. bedrock new values of copyright policy measures and exceptions. In many There is a tendency in the legal are not respected in Bill C-61. While the instances, the addition of unnecessary profession to leave matters we consider bill contains several provisions that detail obfuscates the important point that as specialties to the specialists. But in could benefi t users, any such benefi ts a reasonable interpretation of fair-dealing the area of copyright law, the Act has are stripped away in a maze of complex would already cover the situation. such a signifi cant effect on the day-to- counter-measures, and the ability of As changes to copyright laws are likely day work of everyone involved in the law, content owners to over-ride statutory users to have serious effects on how we all go we all need to be concerned with it. Law rights through contracts or by employing about doing our work, it’s important that practitioners, students, professors, judges technological protection measures is we become more aware of what our rights and librarians; law offi ce administrators, recognized in several instances. are, and how they are being threatened by legal secretaries and clerks; in short The sheer complexity of the bill some of the provisions in this bill. It’s not everyone involved in the profession has itself will make it diffi cult for most something that can be left to intellectual cause for concern. lawyers, much less average Canadians property specialists; everyone who is The practice of law is an information to understand what their new rights and involved in the legal system needs to be intensive activity, so changes in the obligations are in the emerging digital concerned about Bill C-61. rules governing the access, use, storage, environment. Laws need to be simple Sam Trosow is an Associate Professor dissemination, and reuse of information and easily understandable by those who at Western (holding a joint appointment resources are of central concern. Law are expected to comply with them so it in the Faculty of Law and in the Faculty of practice is particularly dependent on is frustrating that the government has Information and Media Studies). He is the access to and use of works in which chosen to take such a complex approach co-author of Canadian Copyright: A Citizen’s copyrights subsist. But law practice is to drafting the bill. In many cases, the act Guide (with Laura Murray) published by essentially transformative, we don’t just purports to give users new rights but then Between the Lines Press, 2007. use works; we use them as a means of claws them back with minute counter-

63 R A N I M E S

W A L

(L-R): Stanford Law School Professor Ron Gilson and Professor Chris Nicholls

Seminar Series Brings World Renowned Scholars to Western Law

Western Law welcomed some of the world’s leading business corporate fi nance, comparative corporate governance and law law scholars to the school to discuss their research with and economics and is the author of a leading U.S. law school students and faculty this past academic year. casebook on corporate fi nance. The Pre-eminent Business Law Scholars Seminar Series Professor Ron Gilson, an authority on corporate law, provided a unique opportunity for members of the Western corporate governance and securities law visited the faculty community to hear and engage with some of the world’s most in early April to deliver his talk on “Sovereign Wealth Funds infl uential corporate law scholars. and Corporate Governance: A Minimalist Response to the “The Scholars Series encourages diversity of academic New Mercantilism”. Gilson, a professor of law at the Stanford perspectives and an international approach to the study of Law School, is the author of numerous infl uential articles business law,” says series organizer Professor Christopher and books, including (with B. Black) The Law and Finance of Nicholls, Director of the Business Law program. “It embodies our Corporate Acquisitions. commitment to remain at the forefront of business law education Professor Reinier Kraakman of the Harvard Law School in Canada, and to continue to provide an important leadership was the fi nal speaker of the 2007-08 series. He presented a role in the business law area for other law schools to follow.” paper entitled “The Essential Role of Organizational Law” in The fi rst speaker in the series was Professor Roberta April. Kraakman is a leading expert on corporate and securities Romano, Director of the Yale Law School Center for the Study law and was involved in drafting company law in Russia and of Corporate Law. Romano is a leading U.S. corporate fi nance Enterprise Law in Vietnam. He has authored and co-authored and securities scholar and is perhaps best known as one of a host of major articles and books, including the well-known the foremost proponents of the benefi ts of “competitive recent book, The Anatomy of Corporate Law. federalism” in corporate law (i.e., the Delaware phenomenon). “The series was a tremendous success,” says Nicholls. She visited Western in September to speak on “The Promise “Our students took full advantage of the chance to exchange and Peril of Corporate Governance Indices.” ideas with our distinguished visitors, and our visitors, in turn, Professor Merritt Fox, co-director of the Center for Law and were uniformly impressed with the Western Law students Economic Studies at Columbia Law School, spoke to Western Law they met here. They told me that they particularly enjoyed students in early November on “Civil Liability and Mandatory our students’ enthusiasm and intellectual excitement, and the Disclosure”. Fox, who also chairs the Columbia University Advisory thoughtfulness and quality of their questions and comments. Committee on Socially Responsible Investing, is an expert on Clearly, Western Law students rank among the very fi nest in securities regulation and comparative corporate governance. the world.” Brian Cheffi ns, Professor of Corporate Law at the University With the generous support of Torys LLP, we are able to offer of Cambridge and author of the leading theoretical corporate this series for the next six years, allowing us to name it The Torys law book in the United Kingdom entitled Company Law: LLP Business and Law Speaker Series. The Firm and our Alumni Theory, Structure, and Operation, spoke at Western law in late at Torys have made a total contribution of $215,000 with an November on the topic: “Private Enforcement of Corporate additional $60,000 from their previous endowment at Western Law: An Empirical Comparison of the U.S. and U.K.” to support the continuation of this program in Business Law. In February, Georgetown Law Professor, William Bratton, Special thanks to our alum Mitch Fraser ’99 and Danial Lam ’02 spoke on “Shareholder Primacy’s Corporatist Origins: Adolf and Deborah Dalfen for their assistance with this gift. Berle and The Modern Corporation”. Bratton is an expert on

64 2008 WESTERN LAW ALUMNI MAGAZINE www.law.uwo.ca

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Western Law Turns 50...

In 2009-2010 help us celebrate Stay tuned for our schedule of events! our golden anniversary! For information please contact: Matoula Zesimopoulos Alumni Relations & Development O# cer at Western Law 519-661-3953 or email: [email protected]

WESTERN LAW 1959-2009 CELEBRATING FIFTY YEARS

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