All's Fair in Love and Court
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Vol. 35, No. 2. | FALL 2016 The largest Swiss Army knife has 85 tools that can perform 141 tasks. The Advocates’ Journal Vol. 35, No. 2; Fall 2016 18 Redactions to relevant documents: From the Editor 3 29 A revised approach Alexander M. Gay Judicial impartiality: A paperless courtroom: Appearance and reality Embracing the use of electronic trials 7 32 working in harmony James Bunting, Chantelle Spagnola and Anisah Hassan William Poulos Almost as helpful as McKellar. All’s fair in love and court: The reason why we are Canada’s largest and most comprehensive structured settlement firm has everything The use of wrongfully obtained The Journal conversation: to do with our passion for service and performance— without exaggeration, we make life easier for you. evidence in civil proceedings 10 36 Sheila R. Block, LSM, ASM Erin Pleet Stephen Grant, LSM and Chantelle Spagnola BMO v. Spence: Good faith as an Racial discrimination and “private wills” 18 42 “organizing principle” Ian M. Hull and Suzana Popovic-Montag Doug Mitchell CANADA & USA 1.800.265.8381 | EMAIL [email protected] | www.mckellar.com THE ADVOCATES’ JOURNAL | FALL 2016 | 1 FROM THE EDITOR Eschewing Obfuscation THE ADVOCATES’ SOCIETY The intellect of man is forced to choose PAST PRESIDENTS Perfection of the life, or of the work, And if it take the second must refuse 1965-66 J. J. Robinette, Q.C. 1992-93 The Hon. Justice Eleanore A. Cronk A heavenly mansion, raging in the dark. 1966-67 The Hon. R. F. Reid 1993-94 Roger Oatley 1967-68 The Hon. Justice R. S. Montgomery 1994-95 The Hon. Justice Mary Anne Sanderson ~ W.B. Yeats, The Choice 1968-69 The Hon. Justice P. Cory 1995-96 C. Clifford Lax, Q.C., LSM 1969-71 W. B. Williston, Q.C. 1996-97 Margaret A. Ross, LSM 1971-72 The Hon. Justice W. D. Griffiths 1997-98 The Hon. Justice Harriet Sachs Vol. 35, No. 2. | FALL 2016 35,No. 2. | FALL Vol. 1972-73 C. F. McKeon, Q.C. 1998-99 Michael F. Head ay I speak frankly with you? allegations are true!” 1973-74 A. E. M. Maloney, Q.C. 1999-00 James A. Hodgson Do you trust that statement? Is it just a We use phrases like “off the record” to impart some 1974-76 P. B. C. Pepper, Q.C. , LSM 2000-01 Ronald G. Slaght, Q.C., LSM byword for dissembling or a fair representa- meaningful, but possibly unreliable, nugget of data. 1976-77 H. G. Chappell, Q.C. 2001-02 J. Bruce Carr-Harris, LSM 1977-78 W. S. Wigle, Q.C. 2002-03 Philippa G. Samworth Mtion of a true state of being? Does it matter that I said In today’s hipster parlance, it’s “just sayin’.” “Without Fall 2016; Vol. 35, No. 2. 1978-79 The Hon. Justice J. J. Fitzpatrick 2003-04 Jeffrey S. Leon, LSM Stephen Grant, “with you” (implying conspiratorial activity) or “to prejudice” has its own jurisprudential history. 1979-80 E. A. Cherniak, Q.C., LSM 2004-05 Benjamin Zarnett, LSM you” (a directive instead)? Does it mean that I wasn’t To analyze this tendency, we could hold a semin- Editor 1980-81 The Hon. Justice J. W. O’Brien 2005-06 Linda Rothstein, LSM LSM Stephen Grant, LSM | [email protected] 1981-82 T. H. Rachlin, Q.C. 2006-07 Michael E. Barrack speaking frankly before? It’s akin to the phrase, “To ar on legal semiotics, invoking the deconstructionist 1982-83 K. E. Howie, Q.C. 2007-08 Michael Eizenga be honest with you …”; or to a witness saying, “In all tools of Jacques Derrida and his ilk. If this isn’t too Managing Editor 1983-84 J. P. Nelligan, Q.C., LSM 2008-09 Peter J. E. Cronyn honesty, I can’t recall …” far-fetched, one could write an Umberto Eco–like book, Aaron Dantowitz | [email protected] 1984-85 Peter Webb, Q.C., LSM 2009-10 Sandra A. Forbes 1985-86 Bert Raphael, Q.C., LSM 2010-11 Marie T. Henein I’ve been thinking about the way we communicate say, The Name of the Writ. Production Editor 1986-87 A. D. Houston, Q.C. 2011-12 Mark D. Lerner as lawyers, our subtleties and special language, our Canadian poet John Robert Colombo once suggested Sonia Holiad | [email protected] 1987-88 The Hon. Justice J. R. R. Jennings 2012-13 Peter H. Griffin lingua franca. In court and daily exchanges, we use to me that poetry was the exact opposite of law. As law- 1988-89 R. A. Stradiotto, Q.C., LSM 2013-14 Alan H. Mark 1989-90 The Hon. Justice Peter G. Jarvis 2014-15 Peter J. Lukasiewicz text and subtext. We are legal interpreters and techni- yers, we want words to be as precise as possible (unless, 1990-91 John F. Evans, Q.C., LSM 2015-16 Martha A. McCarthy, LSM cians. Our language is nuanced. The public has com- of course, ambiguity suits a drafter’s purposes), while The Advocates’ Journal: cite as Adv J 1991-92 Terrence J. O’Sullivan, LSM plained about the scourge of legalese at least since the poets expect words to impart as much meaning as pos- days of the scriveners, well-known by Dickens’ time. sible, creating verbal elasticity, if you will, leaving the Editorial Correspondence Stephen Grant, LSM, Grant & Sadvari Legal obscurantism has long ago fallen out of favour. reader to forge his or her own meaning. OFFICERS 165 Avenue Road, Suite 201 Plain language has been in vogue for at least the past Speaking of “reader,” we recently received a letter Toronto, ON, M5R 3S4 [email protected] | 416 238-7776 quarter-century. from a lawyer who described himself as “the writ- President: Bradley E. Berg To the extent legalese hangs on like a bad cold, Amer- er.” The letter had phrases such as “the writer objects Advertising and Subscription Correspondence Vice-president: Sonia L. Bjorkquist ican attorney Stefan Savic says that, while no one likes to this,” “the writer takes issue with respect to the Robin Black Treasurer: Brian J. Gover [email protected] | 1-888-597-0243 x.108 Secretary: J. Scott Maidment it, we still use it because it’s safe and it works, truly within proposal” and so on. In response to a letter I Executive Director: Alexandra M. Chyczij a sad commentary (“Legalese: Won’t Do with It, Can’t received like this one some years ago, I replied: “The Creative Director Jessica Lim Do without It” – Above the Law, July 1, 2016). Local legal reader acknowledges yours of the 28th instant, etc.” [email protected] observer Jeffrey Miller laments in his blog the loss of I’m not sure if the writer got the point. Even worse, of DIRECTORS Cover “Afternoon Break” legal Latin (“Donald Trump as compost mentis: A de- course, is the “undersigned.” Does anyone really talk Illustrated by Natalie Nehlawi fence of legal Latin,” June 25, 2016). All I can say to that or write this way anymore? In this century? Frank Addario D. Brian Foster, Q.C. Ann L. Morgan Steve J. Tenai is ex nihilo nihil fit. We all have our pet peeves, although I become peev- Paintings, Illustrations and Photography: Sarah J. Armstrong Rosemary A. Fisher J. Kenneth Helder M. Travassos As a lot, we are commitment-phobic. The passive ish hearing that expression. Ditto for “that said.” Or, Karam Bajwa: p. 18-19, 33, 42 Michelle Awad, Q.C. Aaron M. Franks McEwan, Q.C. Anne M. Turley Laurna Germscheid: Spot Illustrations: p. 3, 15, 34, 40 Brian A. Babcock P.A. Neena Gupta David C. Marie-Andrée voice alone – never saying who did what to whom – “not to put too fine a point on it.” And do we really Anja Javelona: p. 7, 37 Sandra L. Barton J. Sheldon Hamilton Nahwegahbow Vermette Natalie Nehlawi: Cover | p. 10-11, 29 is a prime example of commitment-phobia. Judicial need “in order” to do something? Usually not. I recent- Colin S. Baxter Eric R. Hoaken Deborah E. Palter Janice L. Wright discretion is advised? Then there’s “on the one hand ly heard a lawyer say, “In our legal world, words have Edward V.B. Bergeron Dominique T. Hussey Dana M. Peebles Paul B. Vickery The opinions expressed by individual authors are their this, on the other, that,” forgetting that clients sure- own and do not necessarily reflect the policies of Wendy R. Berman Stephen D. Jovanovic Guy J. Pratte Aaron Dantowitz, The Advocates’ Society. Andrew E. Bernstein Eliot N. Kolers Lonny J. Rosen ex officio ly have the right to our best assessment and likely Blair W.M. Bowen Peter W. Kryworuk M.J. Lucille Shaw outcome of a set of facts. And “I would have thought Emily C. Cole R. Reena Lalji Megan E. Shortreed Publications Mail Commercial Sales Agreement No. 40019079 J. Thomas Curry Joseph J. Markson Tara M. Sweeney that …” – to which I ask, but for what? The Advocates’ Journal is printed in Canada and is published four times a year by The Advocates’ Society, 250 Yonge Street, Suite We say “allegedly,” sometimes half in irony, the 2700, Toronto, Ontario, M5B 2L7. Distributed free to all members of other half in steadfast refusal to propound statements the Society. Contents copyright © 2016 by The Advocates’ Society. PAST EDITORS OF THE ADVOCATES’ SOCIETY JOURNAL Second class registration number 5941, paid at Scarborough. from which defamation might ensue. The media has Contents may be reproduced only with written authorization adopted this verbiage: “These allegations have not of the authors and acknowledgment of The Advocates’ Journal.