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Greg Moore Maintains the Century-Old Tradition « THE VOICE OF MONTREAL ENGLISH-SPEAKING LAWYERS » Vol.2, No 1 $4 As Bâtonnier of the Montreal Bar Greg Moore maintains the century-old tradition Anti-terrorist bill C-51 «Clearly not-constitutional !» says CBA McCarthy Tetrault’s Kim Thomassin and four other executive women leaders help young women students reach the top The new covered terrace DISCOVER THE SINCLAIR WORLD DISCOVERY MENU | WINE PAIRING BUSINESS LUNCH | URBAN BRUNCH TAILORED CORPORATE EVENTS BANQUET HALL | WEDDINGS [email protected] | RESTAURANTSINCLAIR.COM 514 284.3332 | 414, RUE SAINT-SULPICE Maintaining the almost 100-year old tradition. An interview with the bâtonnier of the Bar of Montreal, Mtre Greg Moore of Joli-Cœur Lacasse Edited by André Gagnon by-law of the Montreal Bar stipulates that at least 4 of the 13 Council members must be English-speaking. The presence of English-speaking lawyers on the Bar Council ensures that our programs reflect and respond to our membership. Members of our Council sit on the Quebec Bar’s Conseil général and Executive Committee, so the contributions of English-speaking members have an impact across the province. For example, when the Quebec Bar made submissions to the National Assembly on the new Code of Civil Proce- Me Greg Moore, dure, our members pointed out that the English trans- bâtonnier of the Montreal Bar lation contained many inaccuracies that needed to be corrected. In suggesting corrections, we identified am- ou are designated as an English-speaking bâ- biguities in the French text, which were corrected and tonnier. What is the significance of that? improved the overall law. The same occurred when the Y Quebec Bar drafted the new Code of Ethics. The Montreal Bar traditionally elects an English-speaking The quality of Quebec legislation in English is a funda- bâtonnier every three years. This tradition is close to 100 mental component of access to justice. When English- years old. Before that, English-speaking members of the speaking Quebecers or parties from outside the province Bar were regularly elected as bâtonnier; the tradition cannot properly understand a law because it is poorly chrystallizes that fact. drafted, they cannot assert their rights or fulfil their obligations. The tradition underscores the important contributions that English-speaking lawyers have made to the Montreal legal In addition, the English and French texts of a law have community. Recent English-speaking bâtonniers include equal force and will be interpreted with reference to Elizabeth Greene, Stephen Schenke, David Collier, and each other. When the French text is drafted without Allan Stein. consideration for the English text, and when the En glish text is translated instead of being drafted by legislative In addition to this rotation at the bâtonnier level, the drafters, that interpretation will be frustrated, which ••• 3 «The English speaking section of the Montreal Bar could lead to distortions to the has a proud tradition of producing first class barristers. legis lator’s intent. Lawyers like Colin Irving, Vince O’Donnell, Finally, the National Assem bly has Arclen Blakely and Lynne Kassie are just a few examples. a constitutional obligation to pu- blish legislation in both languages, which implies an obligation to do Greg is following in these footsteps and has done a terrific it properly. job maintaining the bilingual tradition of the Montreal This is an important problem that Bar. His diversified background with the Federal might have escaped the Quebec Ministry of Justice, McCarthy Tétrault and his role as Bar’s attention had it not been batonnier while serving with Joli-Coeur Lacasse have raised by English-speaking mem- bers of the Montreal Bar, such as groomed him to become one of our the former bâtonnier of Montreal, leading litigation counsel. His reputation in Casper Bloom. intellectual property litigation where he was retained Will the representation of to represent one of the leading firms in the city English-speaking lawyers change speaks for itself. We will hear a lot more from with the new governance struc- ture at the Quebec Bar? Greg Moore in the future.» The Montreal Bar Coun- cil is not affected by those — Stephen G. Schenke, former bâtonnier of the Montreal Bar, changes. Montreal’s representa- partner, McCarthy Tétrault Montreal . tion at the Quebec Bar will, change, 4 ••• however, and we are working to of law. We want to remind our September, the Montreal Bar will ensure that English-speaking mem- 14,000 members that the Bar de- organize a day of continuing legal bers and young members of the pends on their individual contri- education with representatives of Montreal Bar will continue to be butions to our committees and the Bars of Paris, Toulouse, Phila- heard at that level. activities. delphia, and Port-au-Prince. The campaign has begun to elect It is has been fascinating to rep- Your term as bâtonnier will end in the new Board of Directors of resent the Montreal Bar outside May. What lies ahead for you? the Quebec Bar. Montreal law- of Quebec. We have no idea how yers will elect 4 members to the avant-garde the Quebec legal cul- I look forward to devoting my pro- Board. The Montreal Bar Council ture is and how we are looked to fessional time to my intellectual passed a resolution to promote and envied by our colleagues in property practice at Joli-Coeur the candidacy and election of one other jurisdictions. We have close Lacasse. English-speaking member and one relationships with Bars around the member who has been practicing world who see us as leaders in al- I will take a few months off from for 10 years or less. These two ternative dispute resolution, legal the Bar and then pick one or two groups represent a significant ethics, and openness to multicul- projects to focus on. Improving part of our membership and of the tural legal practice. There is a rich- access to justice is a fundamental Quebec Bar. By their numbers and ness to legal life in Montreal, which challenge that every lawyer has to history of contribution to the Bar, reflects our great city, and that we consider in their daily practice. The it is important that they be repre- take for granted even though it is Montreal legal community has to sented and heard. actually quite rare. remain a leader in developing solu- tions and I would like to contribute I urge every lawyer in Montreal to At the Opening of the Courts in to that effort. vote for our representatives on the Board of Directors and for the new bâtonnier of Quebec. The vote will take place on-line at the beginning of May. Thanks Have you enjoyed being the bâ- tonnier of Montreal? Greg It has been an incredible experi- ence! It has been very rewarding to For your continued commitment to the see how many lawyers devote their legal profession, our colleagues and time to our 40 committees and our clients. various other activities. Lawyers in different fields of practice work for the benefit of the greater commu- nity, despite their demanding work schedules and personal or family commitments and pursuits. The theme at the Montreal Bar this year is "C'est MON Barreau!" We are proud of the diversity of the Montreal Bar; our members Québec Trois-Rivières represent rich cultural heritages Montréal and practice in almost every field ••• 5 Cross-examination of plaintiff’s lost-profits damages expert: Part 2 by Richard M. Wise ving an established track record of operations or pattern of activity. It compares actual (adversely­affected) operating results during the damage period to normalized, but­for results. Adopting this approach, the expert estimates, or extrapolates, plaintiff’s but­for results during the damage period based on (a) normalized actual results experienced by plaintiff prior to defendant’s alleged damaging acts and (b) normalized actual results after the injurious effects of the event have subsided. The plaintiff’s adversely­affected, actual results during the damage period are compared to the pre­ and post­damage periods’ actual results, which serve as “benchmarks”, considering seasonality, cyclical­ ity, and any non­recurring or unusual items, as applicable. Often, in practice, only the “before period” is available for purposes of projecting plaintiff’s but­for results in the damage period. When plaintiff’s past operating activity is used in project­ ing the but­for results in the damage period, the assump­ tions underlying the but­for projections must be reason­ able and supportable. Courts typically reject speculation, conjecture, double­counting, and “leaps of faith”. Some Matters for the Cross-Examiner to Address • The “Before” (pre­damage) period that was used to de­ art 1 discussed the Sales Projections (But-For) Ap- termine plaintiff’s actual results prior to defendant’s proach to the quantification of economic damages alleged damaging act(s). Pand provided areas where the cross-examiner can discredit plaintiff’s lost-profits damages expert. Part 2 • Any adjustments made to “normalize” the pre­damage, discusses two other generally-accepted methodologies “Before”, results, and the related, material underlying and identifies the various areas for cross-examination of assumptions. plaintiff’s expert. • The “After”, or “back­to­normal”, period used subse­ As noted in Part 1, plaintiff’s expert must support a reason­ quent to the damage period. able approach to the quantification of economic damages so that proof can be made to demonstrate to the court that • Any adjustments made to the post­damage, “After”, the losses have been quantified with reasonable certainty results. or reasonable probability. Exactitude is not required. • Whether any interpolation by the expert (averaging Before-and-After Approach “Before” and “After” revenues) is meaningful or rep­ This approach is generally best suited to a business ha­ resentative.
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