E-Brief Sept - Oct - The Advocates' Society

The Advocates’ 

E-Brief 

Vol. 18, No. 3, Spring 2007 

ol. 18, No. 3, Spring 2007 

 

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The best of our traditions 

By Michael Barrack, McCarthy Tétrault LLP 

Over the course of this year, The Advocates' 

Society has had the opportunity to recognize 

some of the people and events that have 

shaped our legal community. In addition to celebrating 

the remarkable career of Chief Justice 

Roy McMurtry and the 25th anniversary of the 

Charter, we hosted events honouring the 170th 

anniversary of masters in Ontario and the 25th 

anniversary of The Advocates' Society Journal. 

Each of these events demonstrated, in its own 

way, how privileged we are to be part of a profession 

that is filled with such interesting and 

talented people. Each served as a reminder 

that many of our colleagues have dedicated 

themselves, in whole or in part, to activities that 

extend beyond their own personal interest. 

On each occasion we were fortunate to have in 

Michael Barrack 

attendance people who contributed to, or were 

associated with, the person or event being celebrated. 

Former prime ministers, "kitchen cabinets," 

cabinet ministers, judges, colleagues, family and friends came forward and 

shared memories and observations. While the speeches, the videos, the songs and 

the reminiscences created many memorable moments, the cumulative effect created 

something more -- a sense amongst our members that the best traditions of our 

profession were being reinforced. 

Looking back on the 25 years of the Charter, we were reminded of the struggles to 

reform the law to make it conform to our Canadian values. That reform came, not 

only in the political struggles to create our modern constitution, but also through the 

considerable efforts of advocates and judges who guided the nascent document. 

We are challenged to maintain the intellectual fervour that imbued those early years. 

Celebrating the professional and personal accomplishments of Chief Justice Roy 

McMurtry was a labour of love for every person involved. The outpouring of genuine 

affection for a truly remarkable leader reminded us of the debt we owe to one of the 

great Canadians of our time. We again were challenged to maintain the civility, the 

passion and the commitment to social progress that have been the hallmarks of the 

Chief's career. 

When the Chief Justices of each of our courts, the Attorney General and our young 

advocates came together to celebrate the 170th anniversary of the masters, the 

result was one of those dinners that no one wanted to leave. The Attorney General 

and the Chief Justices, with wit and wisdom, reminded us of the important role that 

(Continued on page 2) 

The Advocates' E-Brief 

A publication of The Advocates' Society 

“The Advocates’ E-Brief” is intended to 

be a forum in which members of The 

Advocates' Society can communicate 

with the board of directors and with each 

other. Submissions on subjects that are 

of widespread interest to the membership 

are welcome. Please contact the Editor: 

Sonia Holiad 

Director of Communications & Events 

The Advocates’ Society 

1700 - 480 University Avenue 

Toronto, ON M5G 1V2 

Tel: 416-597-0243 x.112 

Fax: 416-597-1588 

E-mail: sonia@advocates.ca 

Web site: www.advocates.ca 

For advertising information, please contact 

Middleton & Associates, 1-800-710- 

9396 or middletn@interlog.com 

Change of address notices may be forwarded 

to The Advocates’ Society at the 

address above. 

“The Advocates’ E-Brief” is published periodically 

in electronic format, distributed to members of 

The Advocates’ Society, and posted to our web 

site. Opinions expressed within are not necessarily 

those of the Society, and the publication 

of advertisements does not imply endorsement. 

Contents may not be reproduced without written 

permission. 

In This Issue 

My client, my case . . . . . . . . . . . . .3 

New members . . . . . . . . . . . . . . . .4 

Multi-party settlement agreements .7 

McMurtry gala photos. . . . . . . . . . .10 

“Deleted” or “discoverable”? . . . . 11 

Who’s doing what . . . . . . . . . . . . .15 

170 years of masters in Ontario. . 16 

25 years of the Journal . . . . . . . . 18 

Managing reputation risk. . . . . . . .19 

Redefining retirement. . . . . . . . . . 21 

VOLUME 18, NO. 3, SPRING 2007 

1

(Continued from page 1) 

our masters play in our justice system. Master Polika and his colleagues returned 

the volleys with equal force. In an evening of good humour and collegiality, we were 

challenged to rededicate ourselves to delivering the highest quality of justice in an 

efficient and timely manner to the people who come to our courts. 

During the Society's 1981-82 term, then-president Theodore Rachlin, Q.C. convinced 

Brian Brock, Q.C., to join forces with Moishe Reiter, Q.C. to research and lay 

the groundwork for The Advocates' Society Journal. Soon joined by Anthony Keith, 

Q.C., and assisted by Mark Appel, Q.C., they continued the intensive work involved 

in steering the Journal until their final issue was published in the Trinity Term, June 

1990. February 1991, the Hilary Term, saw the return of the Journal under new editor 

David Stockwood, Q.C. Recently we gathered at Campbell House to honour 

these men and other members who volunteered with them. Ted Rachlin, Brian 

Brock and Moishe Reiter were in attendance. Tony Keith sent a letter of his reminiscences. 

Paul Le Vay brought good wishes from David Stockwood, who could not 

attend. 

In his remarks, Brian Brock paid tribute to the contribution David Stockwood has 

made in bringing the Journal to its current level of excellence. Under David's careful, 

thoughtful and, from time to time, irreverent guidance, the Journal is the place where 

many of the ideas, sentiments and beliefs expressed in our recent celebrations find 

a comfortable home. 

Reminding ourselves of our past should not diminish the accomplishments of the present. 

Advocates and judges today are carrying on the traditions of our profession. We 

should not take for granted the fact that we live in a country in which the rule of law is 

respected. That respect will be maintained by the continuing commitment of an independent 

bench and the bar to the ideals we have collectively celebrated. 

Mark your calendar 

CLE & Networking 

Conference for Women 

in Litigation 

September 25, 2007 

Toronto Hilton 

Fall Convention 

November 15 - 18, 2007 

The Cove at Atlantis, 

Paradise Island, Bahamas 

International Conference 

April 6 - 13, 2008 

Prague and Vienna 

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VOLUME 18, NO. 3, SPRING 2007

The Advocates' Society 

2006 - 2007 

EXECUTIVE 

Michael E. Barrack, President 

Michael Eizenga, First Vice-president 

Peter J.E. Cronyn, 

Second Vice-president 

Sandra A. Forbes, Treasurer 

Marie T. Henein, Secretary 

DIRECTORS 

Raj Anand, LSM 

Stephen T. Bale 

Robert B. Bell 

Fay K. Brunning 

Clare E. Burns 

John E. Callaghan 

Alan D'Silva 

Peter A. Daley 

Hugh M. DesBrisay 

William D. Dunlop 

Stephen E. Firestone 

Peter H. Griffin 

Barbara L. Grossman 

Peter G. Hagen 

James R. Howie 

David M. Humphrey 

Jessica A. Kimmel 

Mark D. Lerner 

Alan H. Mark 

William C. McDowell 

Barbara A. McIsaac, Q.C. 

Paul F. Monahan 

Kimberly T. Morris 

David Morritt 

Patrick J. Murphy 

Michael P. O'Hara 

Michael A. Penny 

E. Jean Polak 

Brian J. Saunders 

Paul B. Schabas 

Jonathan P. Stainsby 

Myron W. Shulgan, Q.C. 

Paul R. Sweeny 

Nicole J. Tellier 

Karen A. Thompson 

Stephen J. Wojciechowski 

Johanna Braden, Ex Officio 

My client, my case: You can't have 

one without the other 

By Michael Crystal, 

Crystal Criminal Law Office 

Years ago as a theology student, I approached a 

friend who was on the verge of entering the priesthood, 

with the question of how he would handle 

getting so closely entwined in his parishioner's 

lives without becoming emotionally invested. 

His response was one that I remember to this day: 

the answer lies in being compassionate without 

being passionate -- you have to strike a balance 

between our human desire to reach out to those 

suffering, and performing our professional duties. 

Similar sentiments were echoed by the prophet 

Micah in the Old Testament when he stated, 

Michael Crystal 

"What is required of man is to do justice, love 

mercy and walk humbly with his God." The question I have always had is how this 

wisdom can be applied to the practice of trial law where client demands ride high and 

professional expectations even higher. 

As a young lawyer my practice ran the gamut between those clients I came to be too 

close to and those from whom I hid. I was not aware at the time that a solution lay in 

striking the right balance. Here is what I have since learned. 

1. Getting too close to a client shakes their confidence in counsel. I remember hearing 

a tale of woe told to our defence team. At the end of it, there was not a dry eye in 

the house. As our professional defences were lowered, one of us decided in an 

attempt to build a bridge to the client, to share her own personal experience. The idea 

backfired: the client found this personal non-legal exchange disconcerting. What the 

client really wanted was the strength of our counsel: a champion not a cheerleader. 

2. Getting too close to our clients obscures our judgment. I once had a young man 

whom I was representing tell me that until his trial was dealt with he and his wife were 

putting off having children. Their promising future was frozen in time. Each was in 

agony. As I had come to befriend the whole family, I too was suffering. This did anything 

but make me a better advocate. Instead, I found myself constantly losing my 

temper with the crown and making rash "strategy" decisions on the suggestion of my 

client. I JUST WANTED TO WIN SO BADLY! It was only when I distanced myself 

from the client that I managed to regain my senses and my control of the litigation. 

3. Conversely, distancing yourself from your clients so as to work on their case may 

alienate your client and leave them with a feeling that you no longer believe in their 

case. Prolonged non-communication may result in a loss of the trust relationship and 

may ultimately manifest itself in a failure to honour accounts, or worse yet, a complaint 

to the law society. 

EXECUTIVE DIRECTOR 

Alexandra M. Chyczij 

DIRECTOR of EDUCATION 

Jessica Grant 

DIRECTOR of COMMUNICATIONS 

and EVENTS 

Sonia Holiad 

I truly cherish my client interactions, 

especially after a prolonged hiatus. 

Whether it be a call to rouse me to 

action or to replenish my inspiration, it is 

the best part of practice. As I stated at 

the beginning, you should never have to 

choose between the client and his/her 

case. The only choice would seem to be 

choosing compassion over passion. 

We welcome your articles, 

announcements & letters. 

Please forward them to: 

sonia@advocates.ca 

1700 - 480 University Avenue, 

Toronto, ON M5G 1V2. 


3

Welcome to our 

new members 

Osgoode team wins both Arnup Cup 

and Sopinka Cup competitions 

Affiliate 

Daniel Brunet, Office of the 

Information Commissioner 

Philip Cam-Minh Huynh, 

Davies Ward Phillips & Vineberg LLP 

Daniel J. McDonald, Q.C., 

Burnet, Duckworth & Palmer LLP 

Counsel 

André Marin, Ombudsman of Ontario 

Government 

Laura Dalloo, 

Department of Justice Canada 

Denise Dwyer 

Ministry of the Attorney General, 

Crown Law Office - Civil 

Sean P. Horgan, 

Ontario Securities Commission 

Darrell Kloeze. 

Ministry of the Attorney General 


Lucy McSweeney 



Linda Waxman 


Office of the Children's Lawyer 

Intermediate 

Maria L. Abate, Mutual Fund Dealers 

Association of Canada 

Colleen Arsenault, Flaherty Dow 

Elliott & McCarthy 

Shelby Austin, Davies Ward Phillips 

& Vineberg LLP 

Jonathan J. Barr, 

Reisler Franklin LLP 

John Bartolomeo, Law Office of 

Robert C. Cronish, Q.C. 

Gosia Bawolska, McCague, Peacock, 

Borlack, McInnis & Lloyd LLP 

Kara Beitel, 

Borden Ladner Gervais LLP 

Jason D. Bennett, Mutual Fund 

Dealers Association of Canada 

Todd Richard Branch, 

Kirwin Partners LLP 

Daniel Cappe, Goodmans LLP 

Robyn Carlson, 

Graham, Wilson & Green 

Lisa Carr, Samis & Company 

Continued on page 5... 

The Osgoode Hall Law School team defeated five other teams to win the February 

2007 Arnup Cup annual trial advocacy competition in Toronto for Ontario law 

schools, sponsored by WeirFoulds LLP and chaired by John Buhlman. The team 

then advanced and defeated seven other teams in the Sopinka Cup national competition 

in Ottawa, sponsored by the American College of Trial Lawyers, administered 

by The Advocates’ Society, and chaired by John Judge of Stikeman Elliott 

LLP. The Sopinka Cup win entitles the Osgoode team to attend the ACTL annual 

meeting in Denver, Colorado in October. 

Pictured, left to right, at the Sopinka Cup competition, are the Honourable Louise 

Charron of the Supreme Court of Canada; Sopinka Group and organizing committee 

member Melanie Sopinka of the Crown Attorney’s Office in Kitchener; Osgoode 

team coach Moiz Rahman of Justice Canada; Osgoode team members Karin 

McCaig and Donna Polgar, and Osgoode team coach Jonathan Rosenthal, a 

barrister and solicitor in Toronto. Absent is coach Sandra Barton of Heenan Blaikie 

LLP. 

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4 VOLUME 18, NO. 3, SPRING 2007

Joshua Chambers, 

Gowling Lafleur Henderson LLP 

Joel Cormier, Trebuss, Rapley LLP 

Jasmine Daya, Fireman Wolfe LLP 

Alex Dirlis, Tough & Podrebarac LLP 

Matthew T. Duffy, Dutton Brock LLP 

Khalid Elgazzar, 

Soloway, Wright LLP 

Meighan Ferris-Miles, 

McLeish Orlando LLP 

George Filipovic, 

Barrister and Solicitor 

James Fireman, Fireman Wolfe LLP 

Robert L. Gain, Bates Barristers 

S. Jodi Gallagher, 

Heenan Blaikie LLP 

Natasha Gidaro, 

Gardiner, Roberts LLP 

Carolyn Goldberg- Hackett, 

Cassels Brock & Blackwell LLP 

Benjamin Hackett, Goodmans LLP 

Emily Head, Torys LLP 

Cecilia Hoover, 

McCarthy Tétrault LLP 

Sarah Huggins, Torys LLP 

Alison Keagan, McLeish Orlando LLP 


The fifth of the Honourable Charles L. Dubin Lectures in Advocacy was presented in 

April by John W. Reed, Professor Emeritus of Law at the University of Michigan Law 

School, on the topic of “Advocacy as Vocation.” 

Pictured at Convocation Hall, Osgoode Hall, from left to right, are Michael Barrack, 

president of The Advocates’ Society; lecture trustees Joyce Harris, Barrister, and 

the Honourable Horace Krever; Professor John Reed; the Honourable Roy 

McMurtry, Chief Justice of Ontario; Dorothy Reed, and lecture trustees the 

Honourable John Laskin of the Court of Appeal for Ontario, Sheila Block of Torys 

LLP, and the Honourable Robert Armstrong of the Court of Appeal for Ontario. 

Professor Reed’s lecture will be published in an upcoming issue of The Advocates’ 

Society Journal. 

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5

Parvez Khan, 

Blake, Cassels & Graydon LLP 

Zoë King, 


Catherine Koch, 

Evangelista Barristers & Solicitors 

Russell K. Laing, Fireman Wolfe LLP 

Emily Lawrence, Paliare Roland 

Rosenberg Rothstein LLP 

Alison Jane Lester, Gilbert's LLP 

Erin MacKenzie, McCague, Peacock, 


Pinta J. Maguire, Lenczner Slaght 

Royce Smith Griffin LLP 

Farah Malik, Lenczner Slaght Royce 

Smith Griffin LLP 

Janet Mason, Theall Group LLP 

Isabella Massimi, 


Taryn McCormick, 


Robert McGlashan, 

Blaney McMurtry LLP 

Derek McKay, 

Roy Elliott Kim O'Connor LLP 

Lisa Millman, Bennett Jones LLP 

Susan Mitchell, Tierney Stauffer LLP 

Eli D. Mogil, McCarthy Tétrault LLP 

Karen Murdock, Goodmans LLP 

Kevin O'Brien, 

Osler, Hoskin & Harcourt LLP 

Andrew J. O'Brien, 

Brauti Thorning LLP 

Sachin Persaud, Boghosian & 

Associates Litigation Counsel 

R. Graham Phoenix, 

Fasken Martineau DuMoulin LLP 

David Raposo, Dutton Brock LLP 

Christopher Robertson, 

Bennett Jones LLP 

Bryce Rudyk, Lerners LLP 

Denise Sayer, 

Osler, Hoskin & Harcourt LLP 

Hariklia H. Simos, Levinter & Levinter 

Professional Corporation 

Mark Skuce, 


Marcella Smit, 

Shillington & Associates 

Martin Smith, McCague, Peacock, 


Gary Srebrolow, 

Gardiner, Roberts LLP 

Paul Taylor, The Neighbouring Rights 

Collective of Canada 

Alex Tzaferis, 

Lofranco Chagpar Barristers 

Linda Visser, Bennett Jones LLP 

Grant Walsh, Brown & Burnes 


Wine & Cheese with the Bench 

The Society’s Young Advocates’ Committee hosted another of its Wine and Cheese 

with the Bench receptions in March, attracting 49 judges and masters and 129 young 

advocates. The annual event, chaired this year by Alexa Abiscott of Goodmans 

LLP and Adrienne Woodyard of Lerners LLP, has become a highly-anticipated 

opportunity for newer advocates to get to know members of the bench in the relaxed 

setting of Campbell House. 

Pictured above, from left to right, are the Honourable Judith Snider of the Federal 

Court, Maxine Mongeon of Thomson, Rogers, and the Honourable Bonnie Croll of 

the Superior Court of Justice. Pictured below, from left to right, are the Honourable 

Paul Rouleau of the Court of Appeal for Ontario, Anna-Marie Musson of Miller 

Thomson LLP, and Shirline Apiou of Dutton Brock LLP. 

Thank You to Our Wine & Cheese Sponsors: 

Berkow, Cohen LLP • Blake, Cassels & Graydon LLP 

Goodmans LLP • Lax O'Sullivan Scott LLP • Lerners LLP 

Ogilvy Renault LLP • Stikeman Elliott LLP • Teplitsky, Colson LLP 

6 


LITIGATION TIPS & TRAPS: “Southren” style 

By Jane Southren, Lerners LLP 

The reason I love doing this column so much is because I learn something new every time. I 

must confess that while I had heard the terms Mary Carter Agreement and Pierringer 

Agreement, I hadn't a clue, until now, of what they were. Now I do, and my clients will benefit 

from that. Yours will too. Our authors this month are Reena Goyal and Daniel Schwartz. 

MULTI-PARTY SETTLEMENT AGREEMENTS: MARY CARTER AGREEMENTS AND 

PIERRINGER AGREEMENTS 

By Reena Goyal, Fraser Milner Casgrain LLP & Daniel Schwartz, Lax O'Sullivan Scott LLP 

With the increasing costs and delays associated with civil litigation, the early settlement of 

disputes has become a desirable result for some parties; however, settlement is not always 

easily achieved, especially in the context of a multi-party dispute. The age-old saying "two's a 

party, three's a crowd" embodies the difficulty in achieving a settlement in a multi-party dispute. 

Reena Goyal 

An often overlooked tool that can be used to simplify multi-party disputes is the partial settlement 

agreement. This type of agreement allows a plaintiff to settle its claims against one 

defendant, while the claims against another defendant are continued. The plaintiff receives 

the benefit of a guaranteed minimum recovery, while at the same time exerting pressure on 

the non-settling defendant to also consider settlement. The following is a synopsis of two 

types of such partial settlement agreements: Mary Carter Agreements and Pierringer 

Agreements. 

Mary Carter Agreements 

The Mary Carter Agreement originated from the 1967 Florida Court of Appeals decision of 

Booth v. Mary Carter Paint Co., 202 So. 2d 8 (1967, Fla. App.). It causes a defendant to settle 

a claim, but to remain a named party in the action and to help the plaintiff recover a maximum 

amount of damages from the non-settling defendant in exchange for a proportionate 

reduction of the settlement payment made by the settling defendant. The plaintiff receives the 

benefit of a guaranteed minimum 

recovery, and the settling defendant 

receives the benefit of having its damages 

capped with the possibility of a 

further reduction in liability. 

Daniel Schwartz 

Mary Carter Agreements have the effect 

of modifying the positions of the plaintiff 

and the settling defendant. For example, 

the settling defendant no longer 

challenges the proposition that the 

plaintiff has suffered damages or 

asserts that the plaintiff was contributorily 

negligent in that regard. Indeed, 

Mary Carter Agreements have the effect 

of creating an interest in the settling 

defendant to help the plaintiff obtain 

maximum damages against the non-settling 

defendant. Hence, Ontario courts 

have held that the existence and terms 

(excluding dollar amounts) of any Mary 

Carter Agreement between the parties 

must be immediately disclosed, and will 

modify any terms therein so as to 

ensure a fair and equitable process for 

all the parties. 


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VOLUME 18, NO. 3, SPRING 2007 7


Waikwa Wanydike, 

Barrister & Solicitor 

Nicole Whiteson, Dutton Brock LLP 

Cheryl Wiles-Pooran, 

Stikeman Elliott LLP 

Heather Wood, 

Teplitsky, Colson Barristers 

Judicial 

Master Andrew Graham 

Superior Court of Justice 

Master Lou Ann M. Pope 

Superior Court of Justice 

Regular - Outside of Toronto 

Peter Archambault 

Weaver, Simmons 

Richard Campbell, 

Dunlop & Associates 

Brian Gualazzi, 

Feifel Broadbent Gareau Gualazzi 

Michael David Lannan 

Onorato, Lannan, Wilhelm & Beckley 

K. Scott McLean, 

Fraser Milner Casgrain LLP 

Robert Monti 

Nelligan O'Brien Payne LLP 

Joseph Y. Obagi, Cooligan, Ryan 

Camille E. Riggs 

Szemenyei Kirwin MacKenzie LLP 

Laurie Tucker, Doucet McBride LLP 

John R. Varley, Pallett Valo LLP 

Regular - Toronto 

Jason Randall Barrs, 

J. Randall Barrs 

Robby Bernstein, 

Goodman and Carr LLP 

Matthew F.J. Boswell, 

Ormston List Frawley LLP 

David Crocker, Davis LLP 

Francesco N. Del Giudice, 

AXA Insurance 

Joan M. Irwin, Barrister & Solicitor 

Shelley Johnson, 

McCague, Peacock, Borlack, McInnis 

& Lloyd LLP 

Sloane Litchen, McCague, Peacock, 


Joseph Maggisano, 

Barrister and Solicitor 

Cheryl Milne, 

Justice for Children & Youth 

M. Lynne O'Brien, 

Ogilvy Renault LLP 

Diane Oleskiw, Scott & Oleskiw 

Laura E. Oliver, Barrister 


Example: P commences an action against D1 and D2 for $400,000. D1 is willing to 

settle with P, but D2 is not. P and D1 enter into a Mary Carter Agreement whereby 

D1 agrees to pay a maximum of $200,000 to settle P's claim against D1. The trial 

proceeds with D1 assisting P to obtain a maximum recovery out of D2. P succeeds 

at trial, and is awarded a $400,000 judgment with liability apportioned equally 

between D1 and D2. P obtains a net settlement of $300,000 -- $200,000 from D2 

and $100,000 from D1 -- because the $200,000 that D1 agreed to pay P is reduced 

by 50%. 

Pierringer Agreements 

Pierringer Agreements (or what are sometimes referred to as Pierringer Releases) 

are named after the 1963 Supreme Court of Wisconsin decision of Pierringer v. 

Hoger, 21 Wis. 2d 182 (1963 Sup. Ct.). In such agreements, a plaintiff agrees to 

settle a claim in consideration for the payment of a specified amount of money by 

the settling defendant. The plaintiff also agrees to indemnify the settling defendant 

for any claims of contribution awarded to the non-settling defendant. The chief distinctions 

between a Mary Carter Agreement and a Pierringer Agreement are that 

the latter results in a specified minimum amount of monetary recovery to the plaintiff 

and the removal of the settling defendant as a named party in the action. 

Example: P commences an action against D1 and D2 for $400,000. D1 is willing to 

settle with P, but D2 is not. P and D1 enter into a Pierringer Agreement whereby D1 

agrees to pay $100,000 to settle P's claim against D1. P and D2 proceed to trial. P 

succeeds at trial, and is awarded a $300,000 judgment with liability apportioned 

equally between D1 and D2. P only seeks to collect $150,000 from D2 instead of the 

full $300,000, because D2's payment of any amount over $150,000 may be claimed 

as contribution from D1. 

Whether the parties choose to enter into a Mary Carter Agreement or a Pierringer 

Agreement may depend on the nature and strength of the evidence of the non-settling 

defendant. That is, the more the plaintiff requires the evidence of the settling 

defendant to successfully litigate its claims against the non-settling defendant, then 

the stronger a bargaining position the settling defendant has. The settling defendant 

will thus likely opt for a Pierringer agreement whereby its exact monetary exposure 

is specified prior to trial, it is formally removed as a named party to the litigation and 

any claims for contribution made by the non-settling defendant are indemnified by 

the plaintiff. The evidence of the settling defendant may then be introduced at trial 

by way of witness testimony. 

If, however, the plaintiff does not require the evidence of the settling defendant in 

order to successfully litigate its claims 

against the non-settling defendant, 

then it may have a stronger bargaining 

position over the settling defendant. 

The plaintiff will thus likely opt for a 

Mary Carter Agreement, causing the 

settling defendant to remain a named 

party in the action and to actively assist 

the plaintiff in obtaining increased damages 

from the non-settling defendant, 

e.g. cross-examination in court by the 

settling defendant against the non-settling 

defendant. 

In any event, the maximum monetary 

exposure of the settling defendant to 

the plaintiff will tend to be the overriding 

concern of that defendant in most 

cases, and will likely dictate the 

remaining terms of any partial settlement 

agreement. 

CHANGE 

is good... 

but tell us 

about it. 

Please notify us of changes to 

your name, firm, address, 

e-mail, telephone or fax. 

416-597-0243 x.102 or 

carolyn@advocates.ca 

8 


Mitchell Rose, 

Stancer, Gossin, Rose LLP 

Audrey Shecter, Basman Smith LLP 

Gregory S.J. Temelini, 

Rueter Scargall Bennett LLP 

Stephen M. Werbowyj, Stephen M. 

Werbowyj Professional Corporation 

Laura C. Young, 

Bell Phillips Young LLP 

Appointments to the bench 

The Honourable Annemarie Bonkalo has been appointed as Chief Justice of the 

Ontario Court of Justice. She replaces the Honourable Chief Justice Brian W. 

Lennox, who completed his eight-year term effective May 3. 

The Honourable Michael Brown, of the Superior Court of Justice, has been 

appointed Regional Senior Judge in the Central East Region, replacing the 

Honourable J.B. Shaughnessy. who has been appointed a judge of the Superior 

Court in Newmarket. 

The Honourable Leonard Mandamin, of the Provincial Court of Alberta, has been 

appointed a judge of the Federal Court. He replaces the Honourable K. W. von Finckenstein who has retired. 

The Honourable Johanne Trudel, a puisne judge of the Superior Court in the Province of Quebec, has been appointed a judge 

of the Federal Court of Appeal, replacing the Honourable R. Décary, who has elected to become a supernumerary judge. 

Kevin Aalto, of Gowling Lafleur Henderson LLP in Toronto, has been appointed to the position of prothonotary of the Federal 

Court, Toronto Regional Office. 

Beth Allen, of the Financial Services Commission of Ontario, has been appointed a judge of the Superior Court of Justice in 

Toronto, replacing the Honourable G.R. Klowak, who has elected to become a supernumerary judge. 

Patrick Boyle, of Fraser Milner Casgrain LLP in Ottawa and Toronto, has been appointed a judge of the Tax Court of Canada. 

Drew Gunsolus, of Staples, Swain & Gunsolus in Lindsay, has been appointed a judge of the Superior Court of Justice, replacing 

the Honourable R.F. Scott of Lindsay. Justice Scott has transferred to Belleville to replace the Honourable R.G. Byers who has 

elected to become a supernumerary judge. 

Paul Kane, of Perley-Robertson, Hill & McDougall LLP in Ottawa, has been appointed a judge of the Superior Court of Justice, 

replacing the Honourable R.P. Boissonneault of Sudbury, who has elected to become a supernumerary judge. 

Stanley Kershman, of Perley-Robertson, Hill and McDougall LLP in Ottawa has been appointed a judge of the Superior Court of 

Justice, replacing the Honourable D.J.A. Rutherford who has elected to become a supernumerary judge. 

Theresa Maddalena, of Martens Lingard LLP in St. Catharines, has been appointed a judge of the Superior Court of Justice, 

replacing the Honourable H. McLean of Newmarket, who has elected to become a supernumerary judge. 

Valerie Miller, Q.C., General Counsel and Director, Tax Law Services Section, Atlantic Regional Office of the Department of 

Justice Canada, has been appointed a judge of the Tax Court of Canada, replacing the Honourable C.H. McArthur of Ottawa, 

who has elected to become a supernumerary judge. 

Katrina Mulligan, a sole practitioner in Downsview, has been appointed a judge of the Ontario Court of Justice in Oshawa. 

Timothy Ray, of Beament Green in Ottawa and Ross, Cliffen & Morrison in Smiths Falls, has been appointed a judge of the 

Superior Court of Justice, replacing the 

Honourable B.J. Manton, who has 

elected to become a supernumerary 

judge. 

Gary Tranmer, of Nelson Tranmer LLP 

in Kingston, has been appointed a 

judge of the Superior Court of Justice, 

replacing the Honourable F. Caputo of 

Sault Ste. Marie, who has elected to 

become a supernumerary judge. 

Roselyn Zisman, a barrister and solicitor 

in Toronto, has been appointed a 

judge of the Ontario Court of Justice in 

Milton. 

The Advocates’ Society Mission Statement 

The Advocates’ Society is the professional organization for advocates 

in Ontario. As such, our mission is to: 

• be the voice of advocates in Ontario; 

• promote ethical and professional practice standards for advocates; 

• expand our leadership role in teaching the skills of advocacy; 

• protect the independence of the bar and the judiciary, and 

• foster collegiality among members 


Celebrating the Extraordinary Chief Justice Roy McMurtry 

10 


TECHNO-TALK: When "deleted" will mean “discoverable” 

By Gail Henderson, Osler, Hoskin & Harcourt LLP 

Police officers, even former ones, seem to have a knack for saying frightening things in a matter-of-fact way. During a presentation 

on computer forensics to a group of young litigators, a former OPP officer noted that a "deleted" electronic file is almost 

never truly "deleted." 1 This is because when you "delete" a file, you are deleting only the pathway to the file, not the data itself. 

Deleting simply changes the data's entry in the disk directory to "not used," which allows the computer hard drive to "write over" 

the deleted data -- that is, to use that space for something else. As the storage capacity of hard drives continues to expand, the 

longer it takes for this to occur -- at least weeks, if not months, or even years. Until it does, the data is still recoverable by someone 

with the applicable expertise. Of course, in dealing with a corporate party that saves its documents on a server, files that 

have been deleted from the network or an employee's local drive likely can be found on back-up tapes. 

Although comparisons are often made between electronic storage devices and filing cabinets, the recoverability of deleted, or 

"residual," data represents a profound difference between the two. Once I remove a document from the filing cabinet, it is no 

longer accessible from this source, and if I were simply to drop it into the recycling bin under my desk, let alone run it through a 

shredding machine, then an opposing party in litigation has a better shot at winning an Oscar than retrieving that document (and 

ask Martin Scorsese how easy that is). 

This persistence of electronic documents does not mean, however, that parties are necessarily required to search and review 

residual data in order to fulfill their discovery obligations. The Guidelines for the Discovery of Electronic Documents in Ontario 2 

state that, in most cases, the primary source of electronic documents should be the parties' "active" data that "still permits efficient 

searching and retrieval." In addition to the Guidelines, a draft Canadian version of the Sedona Principles for Electronic 

Document Production was made available for public comment in February 2007. 3 The draft Canadian Sedona Principles are 

very similar to the Guidelines, but they import language now enshrined in the new U.S. Federal Rules of Civil Procedure, 4 that 

parties are obliged to produce only electronic information that is "reasonably accessible in terms of cost and burden." Both the 

Guidelines and the draft Canadian Sedona Principles define the ordinary scope of discoverable electronic information as that 

which can be accessed and identified through the application used in the ordinary course of business. Reasonably accessible e- 

mails, for example, would be those that can be identified as relevant using the company's e-mail software, such as Microsoft 

Outlook. So it would seem that e-mails still in the "Deleted Items" folder are reasonably accessible; those that have been "emptied" 

from this folder but which still reside somewhere on the hard drive are not. 5 

With respect to deleted data specifically, 

the Guidelines and the draft 

Canadian Sedona Principles agree that 

a responding party should not be 

required to search for, review or produce 

documents that are deleted or hidden, 

absent agreement or a court order 

based on demonstrated need and relevance. 

The Guidelines commentary 

adds that a party need not preserve or 

produce residual data unless the party 

knows, or should reasonably know, that 

it is available and relevant. 

Deleted documents, therefore, are generally 

not discoverable unless the 

requesting party has evidence that relevant 

documents are missing. Where the 

responding party insists the documents 

cannot be found, the requesting party 

may be able to obtain access to the 

responding party's computer hard drive 

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in order to search for the relevant documents among the deleted data. 

This was the situation in Nicolardi v. Daley, [2002] O.J. No. 595 (Master), a suit by a former client against his solicitor and the law 

firm for negligence in the handling of a personal injury case. Upon retrieving his file from the solicitor, the client almost immediately 

notified the firm that documents were missing. At some point, the client specifically requested disclosure of documents stored on 

the firm's computers. He was informed that all documents from the relevant time period had been "purged." The client then 

brought a motion for production of his former solicitor's computer in order to attempt to retrieve the relevant deleted documents. 

This motion was rejected because the client had not presented expert evidence that retrieval was possible. A second motion was 

withdrawn when the defendants belatedly revealed that the computer had been discarded years ago. 

In determining whether the moving 

party could get its throw-away costs on 

the motion, Master Dash addressed 

whether the motion would have succeeded. 

He began by noting that a hard 

drive would fall under the definition of 

"document" in Rule 30.01(1)(a) of the 

Ontario Rules of Civil Procedure as 

"data and information recorded or 

stored by means of any device," and 

that Rule 30.06 provides that where a 

party satisfies a court that the opposing 

party possesses a relevant document it 

has not disclosed, the court may order 

"the disclosure or production for inspection" 

of that document. Since the claim 

involved an allegation of solicitor negligence, 

the entire personal injury file had 

a "semblance of relevance," and was 

therefore discoverable. Master Dash 

noted that in the face of a sworn affidavit 

that all relevant documents have 

been disclosed and produced, where a 

party demonstrates the existence of relevant 

documents that have not been 

produced, and that these documents 

are likely stored on the opposing party's 

hard drive, the "only solution" is to allow 

inspection of the hard drive. Given the 

intrusiveness of the remedy, however, 

going behind a party's affidavit and 

ordering inspection of its computer hard 

drive will "take convincing evidence," 

and such orders "are likely to be rare." 

The test articulated in Nicolardi to 

search an opposing party's hard drive 

for missing documents is that there is a 

"real likelihood" that such documents 

exist or have existed. The requesting 

party must bring "specific evidence" of 

non-disclosure by the other side. In 

Nicolardi, the client provided a list of 

specific documents, such as correspon- 

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12 



dence between the solicitor and third parties requesting information, which likely would have resided on the solicitor's computer. 

Thus the "real likelihood" test would have been met in this case, had the computer still been in the defendants' possession. 

The fact that the analysis was hypothetical is probably the reason that obvious issues around privilege were not dealt with more 

thoroughly, although Master Dash did hold that it would be necessary to present evidence that the moving party's expert could 

conduct a search sensitive enough to recover only the plaintiff's documents and that the expert, the plaintiff and his lawyer would 

be required to provide an undertaking not to review, retain or disclose unrelated documents. 6 

Justice Humphries of the British Columbia Supreme Court applied a similar approach in Baldwin Janzen Insurance Services 

(2004) Ltd. v. Janzen, 2006 BCSC 554. In that case, mirror image copies were made of the defendant's hard drive in the execution 

of an Anton Piller order, which was subsequently set aside on the grounds that it was improperly obtained. The action 

involved an allegation that the defendant Janzen had wrongfully solicited the insurance company's clients. Janzen claimed that, 

after his employment with the plaintiff ended, he deleted all insurance company documents stored on his home computer. In an 

application to set aside the Anton Piller order, Janzen swore an affidavit that he had not sent any communications to customers 

about his change in employment. The insurance company later discovered an e-mail sent to 270 recipients, some of whom were 

clients, advising them of his departure. Janzen claimed it was an "announcement" e-mail sent to "a wide variety of family, friends, 

and professional contacts" and that he had simply forgotten about it. The plaintiff sought production of the mirror image copies of 

the hard drives on the basis of the forgotten announcement e-mail and the disclosure of 16 insurance company documents found 

on Janzen's computer after he had claimed that they had all been deleted. Notwithstanding these discrepancies, Justice 

Humphries held that there was no evidence that any more relevant documents remained unproduced, necessitating a search of 

the mirror image copy of the hard drive: "Without some indication that [a search of the mirror image] might result in relevant and 

previously undisclosed documents, the privacy interests of the third parties and the avoidance of unnecessary and onerous 

expense militate against allowing such a search merely because it can be done." 

It is significant that the plaintiff in Baldwin Janzen volunteered to foot the bill for production up front and that it suggested that the 

mirror image be produced to its expert on a strict undertaking to produce a list of relevant documents using specified search terms, 

which the defendant and his counsel could then review for privilege and relevance. 

Even when an examination of another party's computer hard drive is likely to produce relevant documents, such a request is likely to 

be turned down where the evidence sought is not the only evidence available. In Ireland v. Low, 2006 BCSC 393, the defendants 

sought discovery of deleted files on the plaintiff's hard drive for the purpose of determining the plaintiff's physical and mental abilities 

following an accident. There was no suggestion that the plaintiff had failed to produce specific documents; rather, the defendants 

argued that the computer hard drive might contain files, including deleted documents, that would speak to the issue of the plaintiff's 

future income earning capacity. Justice Joyce found that the electronic documents sought may have fallen within the broad test for 

relevance, but that "their probative value [was] so outweighed by competing considerations," because there was going to be other, 

more probative, evidence led at trial concerning the plaintiff's physical and mental abilities, namely that of medical and vocational 

experts, and the plaintiff's supervisors and co-workers. 7 Justice Joyce also expressed concern for the privacy interests of the plaintiff's 

wife and stepson, who also used the computer, and for the significant cost involved in retrieving the deleted files. 

Interestingly, Justice Joyce did order the plaintiff to check for relevant documents in the "recycle bin" on his computer, which would 

not require the assistance, and hence the expense and invasion of privacy, of an expert. As discussed above, since these documents 

were "reasonably accessible," they fell within the scope of the plaintiff's discovery obligations. 

While the case law in this area is still clearly in its infancy, it would appear that a party seeking access to the computer hard drive 

of an opposing party for the purpose of retrieving deleted documents will need to convince the court that there is a "real likelihood" 

that relevant documents not produced will be found. In the meantime, it is important to remember that "deleted" in the electronic 

world does not mean "irretrievable," and that it can, in fact, mean "discoverable." 

Notes: 

1. Although I would not recommend testing this out on your home computer, apparently, you could set the thing on fire and it would still be possible 

for a party with access to the right tools and expertise to retrieve the data. 

2. The Guidelines were created by the Task Force on the Discovery Process in Ontario and were finalized in October 2005. 

http://www.oba.org/en/main/ediscovery_en/default.aspx. 

3. The Sedona Conference Working Group 7, http://www.thesedonaconference.org/dltForm?did=2_13WG7Draft.pdf. 

4. See Rule 26(b)(2)(B): "A party need not provide discovery of electronically stored information from sources that the party identifies as not rea- 




sonably accessible because of undue burden 

or cost." The burden is on the party from 

whom discovery is sought to show undue burden 

or cost. The court may nonetheless order 

discovery, on a showing of "good cause," subject 

to the limits in Rule 26(b)(2)(C); namely, 

the information sought is duplicative or available 

from other sources, the party had other 

opportunities in discovery to obtain the information, 

or the burden of discovery outweighs 

the benefit. 

5. See, for example, Ireland v. Low, discussed 

below. For this reason, in implementing 

a "litigation hold," employees should probably 

be instructed to not empty their "Deleted 

Items" folders or desktop "Recycle Bins" in 

order to avoid the possible cost of having to 

retrieve the contents later on. 

6. Given the recent decision of the Supreme 

Court of Canada in Celanese Canada Inc. v. 

Murray Demolition Corp., [2006] 2 S.C.R. 189, 

involving the review of privileged material in 

the execution of an Anton Piller order, it would 

be advisable for counsel to take great care in 

ensuring that the other party's privileged information 

is not reviewed, even accidentally. 

7. A similar conclusion was reached in 

Roeske v. Grady, 2006 BCSC 1975. 

20 Society members elected as benchers 

Blue denotes Regional Bencher 

CENTRAL SOUTH 

Gerald A. Swaye, Q.C. 

Gerald A. Swaye and Associates Corp. 

Kim Carpenter-Gunn 

Kim A. Carpenter-Gunn Law Offices 

EAST 

Thomas Conway 


Melanie Aitken 

Competition Bureau of Canada 

SOUTHWEST 

James R. Caskey, Q.C. 

Siskinds LLP 

TORONTO 

Gavin MacKenzie (Treasurer) 

Heenan Blaikie LLP 

Linda Rothstein, LSM 

Paliare Roland Rosenberg Rothstein LLP 

Raj Anand, LSM 

WeirFoulds LLP 

Larry Banack 

Koskie Minsky LLP 

John Campion 

Fasken Martineau DuMoulin LLP 

Carole Curtis 

Barrister & Solicitor 

Alan Gold 

Gold & Associate 

Thomas G. Heintzman, O.C., Q.C, 


Derry Millar 

WeirFoulds LLP 

Janet Minor 


Laurie Pawlitza 

Torkin Manes Cohen Arbus LLP 

Julian Porter, Q.C. 

Julian Porter, Q.C. Professional Corp. 

Mark Sandler 

Cooper, Sandler & West 

Paul Schabas 

Blake, Cassels & Graydon LLP 

Bonnie Tough 

Tough & Podrebarac LLP 


MEMBER NEWS: Who’s doing what 

The Honourable Rosalie Abella of the Supreme Court of Canada received an Honorary Fellowship from the American College of 

Trial Lawyers at its spring meeting in California. 

The Honourable Roy McMurtry, Chief Justice of Ontario, has been appointed to create a new framework for victim support and 

compensation following broad-based consultation, in response to the Ombudsman's report on the Criminal Injuries Compensation 

Board (CICB). The Chief Justice will assume this role immediately upon his retirement from the bench in May. 

The Honourable Brian Lennox will receive the degree of Doctor of Laws, honoris causa at the Call to the Bar ceremony in Ottawa 

on June 12. On June 11, the Law Society of Upper Canada, in partnership with The Advocates' Society and the County of Carleton 

Law Association, will host a celebration at the Chateau Laurier of Chief Justice Lennox's many accomplishments. 

The Honourable Stephen Goudge of the Court of Appeal for Ontario has been appointed to lead a public inquiry into the oversight 

of Ontario’s pediatric forensic pathology system in the wake of the Chief Coroner’s review into the work of Dr. Charles Smith. 

The Honourable Sandra Chapnik of the Superior Court of Justice has been named the recipient of the Women’s Law Association 

of Ontario 2007 President’s Award to be presented on June 21 in Toronto. 

The Honourable James Spence of the Superior Court of Justice, Diana Juricevic of Stikeman Elliott LLP in Toronto, and 

Simon Schneiderman, a Barrister & Solicitor in Toronto, joined The Honourable Roy McMurtry and other artists who donated 

their works to the “Legal Easel” art auction that recently raised some $15,000 for the Lawyers Feed the Hungry program. 

Board member Raj Anand, LSM of WeirFoulds LLP in Toronto will be named Professional Man of the Year by the Indo-Canadian 

Chamber of Commerce in June. 

Brian Duxbury, a Barrister & Solicitor in Hamilton, and Joseph Obagi of Cooligan, Ryan in Ottawa have been certified as 

Specialists in Civil Litigation by the Law Society of Upper Canada. Donald Short of Fasken Martineau DuMoulin LLP in Toronto 

has been certified as a Specialist in Construction Law by the Law Society. John Morris of Borden Ladner Gervais LLP in Toronto 

has been certified as a Specialist in Health Law by the Law Society. Michal Minkowski of The Corporation of the City of 

Mississauga has been certified as a Specialist in Municipal Law by the Law Society. 

Jesse Glass, Q.C. of Laxton Glass LLP in Toronto, and Eric Williams of Williams McEnery LLP in Ottawa were recently honoured 

with the OBA Award for Excellence in Insurance Law. 

Past president Michael Head of Walker, Head in Pickering recently presented a cheque for $19,500 to Pro Bono Law Ontario to be 

used to fund access to justice programming in Ontario. The cheque represents a cy pres distribution from settlement awards that 

could not be distributed to class members named in Davies v. VIA Rail et al., a class action lawsuit completed by his firm. 

Rodney Hull, Q.C. of Hull and Hull LLP in Toronto, Angus McKenzie, Q.C. of McKenzie Lake Lawyers, LLP in London, and 

Claude Pensa, Q.C. of Harrison Pensa LLP in London were recently presented with the Law Society Medal. 

Alan Lenczner, Q.C. of Lenczner Slaght Royce Smith Griffin LLP in Toronto, Paul Schabas of Blake, Cassels & Graydon LLP in 

Toronto, and Eric Williams of Williams McEnery LLP in Ottawa have recently been named Fellows of the American College of 

Trial Lawyers 

David Scott, Q.C. of Borden Ladner Gervais in Ottawa was elected chair of Pro Bono Law Ontario at the organization’s April 

Annual General Meeting. 

Martin Teplitsky, Q.C., LSM of 

Teplitsky, Colson was recently honoured 

with the Law Foundation of 

Ontario’s Guthrie Award for his commitment 

to legal education and social justice 

causes, including the Lawyers Feed 

the Hungry program, which he founded. 

Frank Walwyn of WeirFoulds LLP in 

Toronto has been re-elected as 

President of the Canadian Association 

of Black Lawyers. 

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15

170 years of masters in Ontario 

By Master Calum MacLeod, Superior Court of Justice 

On March 4th, 1837 An Act to Establish a Court of Chancery in this Province was passed by 

the Assembly of what was then the Province of Upper Canada. 1 Apparently there had been 

efforts to establish the court earlier but they had been derailed by events such as the resignation 

of Chief Justice Osgoode in 1794, the War of 1812 and popular distrust of the idea in the 

period leading up to the Mackenzie rebellion. 2 The statute created a court of equity for Ontario 

and brought with it the office of master. In one form or another masters have been part of the 

machinery of civil justice in our courts ever since. This 170 year anniversary was noted by the 

Chief Justice of the Superior Court of Justice at the opening of courts in January 3 and it will be 

marked by various legal organizations later this year. 

Masters had been a feature of the High Court of Chancery in England since at least the 15th 

Master Calum MacLeod 

century, so it was only natural that it would be thought necessary that the new Court of 

Chancery for the Province of Upper Canada be supported by such an officer. 4 John Godfrey Spragge was the first master. The 

master-in-ordinary continued as a chancery official until the courts of law and equity were merged in 1881 and thereafter continued 

as an official of the Supreme Court of Judicature until 1923. A parallel office, that of the master-in-chambers, was created in 1881 

and that office also persisted until 1923. At that time the masters became masters of the Supreme Court of Ontario. 5 

The fusion of law and equity that took place gradually in the latter half of the 19th century culminated in union of the courts of law 

and equity. This took place in England in 1873 and in Ontario in 1881. 6 One of the consequences was the need to harmonize terminology. 

It was at this time that the titles of solicitor of the Supreme Court and barrister-at-law were adopted. Prior to that date, solicitor 

was the term for equity practitioners while their counterparts at law were known as attorneys. Remnants of this distinction may 

still be found. Although in the United States lawyers are generally referred to as attorneys or counsellors-at-law, the Uniform 

Chancery Rules of the State of Missouri continue to refer to solicitors. 7 

It is in this context that the office of master-in-chambers must be understood. The duties of the master-in-chambers were previously 

carried out in the law courts by the official referee or the clerk of the Crown and Pleas. These officials carried out judicial duties 

under the rules of those courts that were subsequently assigned to the master-in-chambers. 8 Prior to 1881 the officials in the courts 

of Queen’s Bench and Common Pleas were not known as masters but the functions existed and when common terminology was 

adopted it was the title of master that was borrowed from the Court of Chancery. 

Masters in chancery or their counterparts in the law courts conducted references and dealt with interlocutory and procedural matters 

that would otherwise have required the attention of the judges. These continue to be core functions of masters in 2007. 

The adoption of the chancery terminology in 1881 was probably reflective of the increasing importance of equity during the 19th 

century, but it is also appropriate given the debt that modern civil procedure owes to chancery practice. At law, orders for production 

and oral discovery were not available whereas these were features of the chancery rules. It was possible, however, to begin a 

proceeding in chancery for a bill of discovery in aid of a proceeding in Queen’s Bench or Common Pleas. 9 Masters played a significant 

role then as now in supervising discovery practice. 

The judicial role of the master was the subject of comment and legal reform at various times. In 1875 the then attorney general 

wrote to the minister of justice to question whether or not the referee-in-chambers ought to be federally appointed pursuant to s.96 

of the Constitution Act, 1867 and the same issue was raised in 1881 when the office was changed to master-in-chambers. 10 In 

1922 the staff at Osgoode Hall was divided into a judicial branch and an administrative branch with the master having supervision of 

the judicial branch. The titles ‘master-in-ordinary’ and ‘master-in-chambers’ were merged into the master of the Supreme Court of 

Ontario at that time. 

In 1923 following the reorganization there was one master, five assistant masters and a chief clerk. Until the 1970s, masters, in 

common with other provincially appointed judicial officials, were appointed on an ad hoc basis and their terms of office varied considerably. 

Following the work of the McRuer Commission, the terms of appointment of provincial judges (at that time magistrates) 

were placed on a footing more consistent with the need for judicial independence. In 1973 the Ontario Law Reform Commission (of 

which McRuer J. was a member) recognized the need for the terms of appointment of masters to reflect their role as judicial 

officers. 11 Legislation to accomplish this was enacted in 1975. 12 

Two Ontario premiers were masters. Gordon Conant was attorney general from October 12, 1937 until May 18, 1943 and he succeeded 

Mitchell Hepburn as premier in October 1942. He retired from politics and became senior master after he was defeated by 

Harry Nixon in the leadership convention held that year. Ironically it was a former master, George Drew, who defeated Nixon and 




became premier of Ontario in August 1943. Drew had been a master from 1925 – 1931. Conant held the position of senior master 

until 1951 when he was replaced by Alfred Marriott. 

In 1990 when the courts were restructured and the High Court of Justice merged with the County and District Courts, the office of 

master was continued but the legislation did not provide any power of appointing further masters. 13 The office would have eventually 

been phased out through attrition. As of April 2007 there remain in office only one full-time and three part-time masters who were 

masters of the Supreme Court of Ontario before 1990. 14 

As a result of the Civil Justice Review, the Courts of Justice Act was amended in 1996 to provide for the appointment of case management 

masters. Master Robert Beaudoin was the first case management master, appointed in 1997. There are now 16 case 

management masters. One is assigned to Windsor, two to Ottawa and the balance to Toronto. 

Case management masters exercise all of the jurisdiction historically exercised under the Rules by the masters of the Supreme 

Court and in addition have expanded 

jurisdiction in case management and 

dispute resolution. While, unlike the traditional 

masters, a case management 

master is theoretically appointed for a 

When Real Estate Matters 

fixed term of seven years, this is a legal 

fiction. The Act requires that the term of 

a case management master be renewed 

unless he or she has been removed for 

cause. In reality it is an appointment to 

age 65. 15 

There have been various offices of master 

under different names in the past 

170 years. Whether known as masterin-ordinary, 

master-in-chambers, master, 

assistant master, local master, 

senior master or case management 

master, the office has been found 

essential to the working of civil justice in 

Ontario for almost two centuries. 

There are masters or similar officials in 

courts throughout the common law 

world. In Canada there are masters in 

B.C, Alberta and Manitoba. There are 

prothonotaries playing a similar role in 

the Federal Court and in the Supreme 

Court of Prince Edward Island. In 

Newfoundland and Labrador there are 

lawyers appointed as part-time masters 

although their role is generally limited to 

taxation of accounts. 

Of course there continue to be masters 

in England in both the Queen’s Bench 

Division and the Chancery Division of 

the High Court and there are masters in 

the courts of various Commonwealth 

countries. Examples are New Zealand, 

Australia, Trinidad & Tobago, Jamaica, 

the Eastern Caribbean and South Africa. 

Many state courts in the United States 

have full-time masters and in the U.S. 

federal courts, magistrate judges discharge 

similar functions. In addition, 

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17

The Journal: savoured by fine minds since 1982 

As early as 1968, the records of The 

Advocates’ Society reflect the wish of its 

directors for a publication through which 

to communicate regularly with fellow 

members. 

In 1982, then president Ted Rachlin, 

Q.C., Brian Brock, Q.C., and editor 

Moishe Reiter, Q.C., made that wish a 

reality when they produced the first 

issue of The Advocates’ Society 

Journal. Tony Keith, Q.C., and Mark 

Appel, Q.C., soon joined them as they 

worked tirelessly to define the publication’s 

nature, encourage the contribution 

of articles, and nurture one of the 

Society’s most visible and enduring traditions. 

In 1991, the Journal passed into the 

hands of new editor David Stockwood, 

Q.C., assisted initially by Stu Forbes, 

Q.C., and then by Paul Le Vay. 

Pictured, from left to right, at the reception to mark the 25th anniversary of the Journal, are 

Paul Le Vay, who represented David Stockwood, Q.C. of Stockwoods LLP; Society president 

Michael Barrack of McCarthy Tétrault LLP; Theodore Rachlin, Q.C. of Rachlin & 

Wolfson; Brian Brock, Q.C. of Dutton Brock LLP, and Moishe Reiter, Q.C. of Reiter 

Barristers LLP. 

Through early struggles to the advent of desktop publishing; from hand-painted illustrations to digital photography and full-colour 

covers, the Journal editors have been supported by many talented and devoted members, including some 330 authors too numerous 

to acknowledge individually. Their wisdom, experience, insight and humour have inspired us and educated us and entertained 

us for a quarter of a century, and we are grateful. 


American jurisdictions make widespread use of pro tem appointments as special masters. Indeed the Supreme Court of the United 

States in exercising its original jurisdiction normally tries cases by reference to a special master. 16 In the aftermath of the 

September 11 attack on the World Trade Centre, the United States government appointed a special master to administer the fund. 17 

The history of the office of master in Ontario is very much the history of civil justice reform. It is interesting to mark milestones such 

as 170 years of service and to consider the traditions those of us presently in office share with our predecessors and with those in 

other jurisdictions who carry on similar work. The role of the master in the 21st century has evolved considerably but the central ethic 

of the office is the desire to make civil justice effective. I have no doubt this was true in 1837 when Master Spragge took the oath of 

office. Indeed his subsequent appointment as Chancellor and eventually as Chief Justice of Upper Canada confirms that this was so. 

Notes: 

1. Statutes of Upper Canada, 1837, 7 

William IV, c. II 

2. Blackwell, John, “William Hume Blake 

and the Judicature Acts of 1849” in Essays 

in the History of Canadian Law, Volume 1, 

1981, The Osgoode Society, Toronto 

3. http://www.ontariocourts.on.ca/superior_court_justice/opening_speeches/2007s 

cjrep.htm 

4. See Ferron, J.M., “The Masters,” (1988) 

XXII The Law Society Gazette 4 at p. 326 

5. See Ferron, supra 

6. Banks, Margaret A., “Evolution of the 

Ontario Courts 1788 – 1981,” in Essays in 

the History of Canadian Law, Volume II, 

1983, The Osgoode Society, Toronto @ p. 

523 

7. http://www.mssc.state.ms.us/rules/ 

RuleContents.asp Missouri, Tennessee 

and Delaware are the last American 

states maintaining separate courts of 

Chancery. Arkansas unified its court system 

in 2002 

8. See. for example s. 29 (a) 

Administration of Justice Act, R.S.O. 

1870, c. 39 and s. 132 (d) of The 

Judicature Act, 1895, S.O. 1895, c. 12. 

See also Ontario Civil Justice Review, 

First Report, 1995, p. 43 

9. See Cudmore, Gordon, Choate on 

Discovery, Carswell para 1.1- pp. 1-1 - 1-6 

10. Ferron, supra @ p. 341 & 343 

11. Report on Administration of Ontario 

Courts, Part III, 1973, Ontario Law Reform 

Commission, pp. 1- 5 

12. S.O. 1975, c. 30, s. 4 

13. See s. 87, Courts of Justice Act 

14. Master Peterson, Master Linton, 

Master Sandler & Master Clark 

15. See s. 86.1 of the Courts of Justice 

Act 

16. See for example Alaska v. United 

States of America - http://www.supremecourtus.gov/opinions/05pdf/128orig.pdf 

17. Details are available on the fund website 

at : http://www.usdoj.gov/archive/victimcompensation. 

18 


Are your clients concerned with managing reputation risk? 

By Brenda Eprile and Dorothy Sanford, 

PricewaterhouseCoopers LLP 

Reputation risk is a hot topic. There are many sources of reputation 

risk and they are varying all the time as a reflection of changes in 

societal interests, political agendas and the global economy. These 

reputation risks can be swift -- literally appearing overnight -- very 

powerful, and have long-lasting effects on a company or a brand. 

But what exactly is reputation risk? When organizations do something 

that is perceived in a negative light by their stakeholders, their reputation 

is going to suffer -- and it doesn't have to be committing an illegal 

act. It could be a business practice that was acceptable in the past 

but, given changes in society's views, is no longer acceptable. As a 

result, the issues are moving targets, making reputation risk much 

more of a challenge to successfully tackle. 

We sometimes hear companies say that reputation risk is included in 

Dorothy Sanford and Brenda Eprile 

one or more of the specific risk areas they already manage under an 

enterprise-wide risk management framework. Some others describe it 

as an umbrella issue covering all aspects of risk the company may be exposed to. While it is true that reputation risk can spring 

from a variety of areas, sometimes when you stand back and look at an issue from a few different perspectives, it takes on a whole 

new light. By the same token, fearing reputation risk in too many places can bog down the risk management process and hinder 

business development and efficiency. 

Tackling reputation risk 

So how do companies tackle reputation risk? Most likely they already have identified many of the issues that could cause reputation 

risk and are doing something about them. Often, however, this process tends to be relatively informal and not well documented. 

Performing a gap analysis at the outset is a good place to start in order to determine where the obvious opportunities for improvement 

lie. Beginning the analysis at the corporate level will shed light on how explicit the organization has been about the importance 

of preserving reputation. It also may reveal how recently senior management and the board have addressed the issue. Often companies 

articulate the areas that could cause serious reputation risk in a code of conduct or ethics policy. Some of these materials are 

more general than others; however, the more explicit it is, the stronger will be the message that will protect your client from the risks. 

In some industries, such as the financial services sector, it is common for a company to have a specific policy on reputation risk. 

Usually it articulates what should be avoided, indicates the business or transactions that are considered higher risk and explains 

that greater scrutiny for reputation risk is given to these situations. A financial institution might indicate that transactions with clients 

involving complex structured products have greater potential for reputation risk and, as a result, more legal and accounting consultation 

is required or recommended. Often other policies may directly touch on specific reputation issues as well, such as “know 

your client” or “anti-money laundering.” In all cases it makes sense to specify procedures for certain areas of the business to follow. 

By flagging those instances of heightened reputation risk, you can help your client guide the due diligence and approval 

process to ensure greater rigor is applied. 

Proactive screening required 

Could your client be vulnerable? Companies often think nothing serious can go wrong in their world. yet an overly confident outlook 

is not limited to companies with a high degree of self-confidence. In fact, a "not in my backyard" approach to reputation risk 

may simply be due to corporate blinders, or the inability to consider issues from an external perspective. This attitude creates a 

cultural weakness that can contribute to an environment that does not effectively assess normal operating procedures and also 

fails to monitor the outside environment for changes in public perception. Even the most conservative and ethical organization has 

to realize that it could have issues that can taint its reputation. You can remind your client that every company needs to be proactive 

in screening-out the wrong kind of employees, putting limits on conduct/business that could cause reputation risk and maintaining 

a watching brief on external views about corporate conduct. A classic stumbling block to the effective management of reputation 

risk is to copy the actions of other organizations, particularly those in the same industry, without carefully considering a company-specific 

approach and potential pitfalls. 

Other things to consider 

Other things your clients should consider include the control functions such as internal audit, risk management, and compliance. 

Are they strong and run by senior people? Do they provide protection when senior management is pushing for growth in profitabili- 


VOLUME 18, NO.3, SPRING 2007 19

Please join us in support of our 

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ty or greater cost cutting? Do they have a reasonable level of resources to do the job? If control functions have no powerbase to 

provide effective checks and balances in your system, then things can get out of hand pretty quickly. 

It is also critical for your clients to consider if there is an effective umbrella group at the top of the organization that can see the 

company from a broader perspective; otherwise, even senior executives may suffer from a siloed view of the world. Effective linkages 

across the organization by both line management and control functions are necessary in order to develop a holistic view of 

reputation risk. This means going beyond sporadic information sharing to holding regular meetings to discuss and debate the 

potential issues that may have a reputation risk aspect. There is nothing like the CEO's direct involvement in whatever forum is 

used to address reputation risk and to drive home the message that preserving the company's reputation is essential. 

The practical application of reputation risk management techniques will vary from business to business. Some thoughts for your 

clients to consider include: 

- prohibiting certain types of business or transactions outright, sometimes simpler than administering a complex evaluation process; 

- capping fees in an area where it looks like the industry has gotten too greedy as a means of lowering perceived risk; 

- limiting the types of transactions subject to reputation risk scrutiny is advisable as whole classes of business may be low-risk and 

therefore not necessary to evaluate from a reputation risk perspective; 

- considering reputation risk at the client acceptance stage also can save a lot of process and grief down the line; 

- avoiding mechanical processes including box-ticking exercises will assist in creating a meaningful and dynamic risk assessment; 

- having more senior level committees meet to discuss the business regularly from an integrated perspective including reputation 

risk can be extremely beneficial in managing risk today and, perhaps more importantly, perceiving where it is headed, and 

- having an effective escalation mechanism, perhaps to a control function, in the event that your normal reputation risk management 

processes are not functioning properly somewhere in the organization. 

We at PricewaterhouseCoopers have found that people are often too close to the activity in question to see a different perspective. 

The longer your clients work for an entity in the same area the more difficult it is to have a fresh perspective. Periodically having an 

independent party take a look at your clients' practices will ensure their approach to reputation risk management is refreshed and 

any mid-course corrections required are taken. As the external environment and perceptions evolve, they need to keep pace and 

adjust their business practices and risk management approach accordingly. The biggest challenge in reputation risk management 

is determining where regulators, law enforcement, class action lawyers or public perception is headed next. 

Brenda Eprile, FCA and Dorothy Sanford, FCA are PwC partners and former senior securities regulators who specialize in assisting 

companies and boards of directors with regulatory and risk management issues. Dorothy Sanford, FCA: tel.: 416-869-2353, 

e-mail: dorothy.a.sanford@ca.pwc.com. Brenda Eprile, FCA: tel.: 416-869-2349, e-mail: brenda.j.eprile@ca.pwc.com 

20 

VOLUME 18, NO.3, SPRING 2007

Retirement: How one litigator has redefined the concept 

By Fay Brunning, Barrister & Solicitor 

Retirement is a serious topic in our society, particularly for baby boomers who are looking 

ahead at the next stage of life. Advice about retirement, paid or otherwise, is available to 

us around every corner. If you are a boomer hitting age 60 or thereabouts, or a person 

hanging around one of those 60-year-olds, conversation tends to drift towards pending 

retirement. "How long should I work? Can I afford to retire? Where are the best places to 

buy to maximize golf and travel?" 

Litigators are a different breed (or at least we think we are). We generally take the attitude 

that we do not want or need to retire. There is a familiar fighting spirit exhibited by many to 

accepting "retirement," or, more accurately, society's pre-conceived notion of retirement. 

“Judges can sit until age 75, so why can't I practice until at least that age? I like what I do, 

so why should I quit?" Retirement, however, will come eventually. Aside from health issues 

that all mortals may experience, many large firms are enforcing mandatory retirement 

clauses in partnership agreements with the sweetener of pension income for a period of 

time; the bitter part of the pill comes from the non-compete requirement. 

Fay Brunning 

What needs to be examined is why we believe that, due solely to physical age, highly productive 

litigators should simply set aside decades of experience and wisdom. Maybe we need to convince litigators and the rest of 

society to re-examine the whole concept of what retirement for litigators can entail. 

Andrejs Berzins is one retired litigator who can help us re-examine what "retirement" means. Andrejs opted for an early retirement 

package in 2000, after 28 years of litigating as a criminal prosecutor, the last 16 of which were as Chief Crown Attorney of Ottawa. 

His neighbours certainly think he is relaxing and fully enjoying the freedom of retirement. When we see him, he is either carrying 

his canoe to the Rideau River at the end of his street for a mid-day paddle, pretending to garden, or loading his Westphalia camper 

for yet another destination in North America with his wife, Lorraine. Those activities, given that Andrejs is an avid and able outdoor 

enthusiast, fit within the pre-conceived notions of what one might expect him to do in retirement. 

But those activities are just the tip of his retirement iceberg. Andrejs has been taking life-long litigation experience, his criminal 

law/procedure expertise and himself to various legal projects inside and outside Canada, helping to build better legal systems for 

the democratic public, wherever that public may be. Since 2000, he has been contributing to criminal justice reform in Latvia, 

Bosnia, Serbia, Bangladesh and Jamaica. He was instrumental in the establishment of a law school for Nunavut residents in 

Iqaluit, resulting in 12 law graduates in 2005 all of whom have stayed in Nunavut to serve the various legal needs of their Northern 

communities. When he has "capacity," Andrejs also gets back into the courtrooms in the Eastern Ontario region by handling special 

prosecutions, inquiries and criminal prosecution relief. 

Who is this retired litigator and why is he doing all this? When you meet him, you will find him to be a modest, youthful 62-year-old 

with an easy smile and a comfortable manner. If you manage to land a probe or two, over time you will uncover a remarkable lifetime 

of events and people, representing either hardship or opportunity, which have shaped and kindled his spirit. That spirit, even 

in retirement, is dedicated to improving humanity as best he can, where he can, while he can. 

Andrejs was born in Latvia in 1944, but when he was two weeks of age, his mother, grandmother and sister left Latvia with him, to 

escape the advancing Russian Army. His family spent the first five years of his life in refugee camps in Europe, joined by his 

father. Determined to find a stable, peaceful place to raise their children, his parents brought the family to Montreal in 1949, 

unable to speak either English or French. 

As a teenager, Andrejs worked hard as a new immigrant and started to exhibit his interest in social justice, working with persons 

with mental illness and with underprivileged families in Montreal. He met his future bride, Lorraine Barry, when they were both 

councillors at a camp for mentally disabled children, and he witnessed the interface of the mentally ill with the justice system. He 

claims that school did not come easily to him, however, he received a BA from McGill and went immediately to Queen’s to study 

law. He wanted to help others and felt the law was a logical step in his skill development to that end. 

Queen’s University loved Andrejs. The most obvious reason was that he had been on the football and wrestling teams at McGill 

and he kept up those activities while at Queen’s. More importantly for Andrejs, he was also able to be part of this developing new 

law school. He was the leader of the group of students that launched Queen’s Legal Aid, the community-based program offered 

by students to this date. Enthusiastic young professors such as Ron Price, Ron Delisle, Stuart Ryan and Lyle Robinson were 

developing new criminal courses and programs such as "Psychiatry and the Law," working in conjunction with the penitentiaries in 


VOLUME 18, NO.3, SPRING 2007 21


the region. Andrejs was keen and he signed up for every criminal law related course 

and participated in the penitentiaries in varying capacities. He married Lorraine (MSW 

from McGill) and she joined him in Kingston to launch her own life-long social work 

career, devoted to restorative justice. He graduated in 1971. 

Andrejs credits his decision to remain a litigator in criminal law with the fact that he was 

"fortunate" to win the Gold Medal in Criminal Procedure at the Bar Admission course in 

Toronto. 

In 1973, he was again "fortunate" to be offered a job as assistant Crown attorney in 

Ottawa. He and Lorraine were excited about Ottawa, with its outdoor activities and its 

proximity to Montreal, where their families still resided. Aside from the regular, onerous 

demands of being a criminal prosecutor, Andrejs devoted significant personal time to 

work with community groups, the judiciary and professional organizations to develop 

special programs and legal/procedural reforms in the areas of mentally-ill accused persons 

in the criminal justice system, domestic violence, child abuse and juvenile justice. 

During his 27-year career as a criminal prosecutor, he took two one-year sabbaticals, 

one to Bermuda as a crown prosecutor and one to the University of Ottawa to teach 

“Evidence and Forensic Science and the Law.” 

He retired on April 30, 2000 after 28 years of service to the Province of Ontario. And 

was that it? Has it been one long canoe trip since then? 

Andrejs Berzins 

Photo: Julie Oliver of the Ottawa Citizen 

On May 1, 2000, on his first day of retirement, Andrejs and Lorraine were on a plane to Latvia to continue the work he began in 

1990 in his spare time, after the country regained its sovereignty. He spoke the language and was a joint citizen of Canada and 

Latvia. He lived in a farmhouse and travelled the country to observe its criminal justice system for an extended number of months. 

He taught, he spoke and he listened. He provided input and reviewed drafts of new legislation for the emerging democracy, 

including the Criminal Code, the Criminal Procedure Code, the Probation Act and the Juvenile Offender's Act. He was instrumental 

in introducing a juvenile probation pilot project into the criminal justice system in that new democracy. That project is now an 

established program and has been further expanded to probation for adults in the new Latvian criminal justice system. 

While in Latvia, Andrejs received an e-mail from the Deputy Minister of Justice of Nunavut, asking if he would consider becoming 

the Northern Director of a law school to be established in Iqaluit to enable local persons to become lawyers who would thereafter 

agree to practise in Nunavut. In conjunction with Professor Donald Galloway of the University of Victoria Law School, Andrejs 

used the skills learned when he was chief Crown attorney to secure funding, establish criteria for the program, and ensure support 

for the students he helped recruit from all over the new Territory. He was living in Iqaluit when classes started in September 2001. 

He taught some of the courses himself, along with other lawyers recruited to do the same. Twelve students completed the program 

in May 2005, were subsequently called to the bar, and are now serving their communities in the North. 

And that is not all. Andrejs has been working on criminal justice reform projects in Bangladesh, Bosnia, Serbia and, most recently, 

Jamaica, with particular emphasis on juvenile offenders. He has applied an approach similar to his work in Latvia, taking time to 

observe those systems already in place before providing input and suggestions for improvement. For these various projects, CIDA 

is the funding source while various organizations or institutions such as the University of Ottawa, the Canadian Bar Association, 

IBM and others administer the projects and look for team members to fulfill their objectives. 

Since 2002, Andrejs has been a part-time prosecutor again, but this time he has added federal prosecution work to the mix. As a 

special assignment, he chaired an inquiry for the National Parole Board into the tragic and violent death of a female parole officer 

in Yellowknife, murdered by a recently released convict. Andrejs' experience with persons with mental illness and his knowledge of 

the criminal justice system enhanced the work of the inquiry. 

Aside from all those endeavors and the related travel, he and Lorraine find time to canoe, camp, travel, volunteer, and garden. 

Their son is working for Canada in international relations from England and their daughter works for a charitable organization in 

eastern Ontario. Their lives are full in all dimensions. He believes he has been very "fortunate." 

What advice would Andrejs give to those who think that the only things ahead in "retirement" are to be endured or feared? "Be 

creative. Be ready to take a risk!" Andrejs sees tremendous opportunity and need for experienced litigators, judges and masters , 

whether elsewhere in the world or at home. "Retirement" can be what you want it to be, either taking the risk to do something 

familiar in unfamiliar territory or to do something less familiar in familiar territory. If you look, there is choice and there is need for 

litigation experience combined with continuing dedication to the legal principles of a democratic society. 

So, does that help expand your definition of retirement? Let’s hope. 

22 

VOLUME 18, NO.3, SPRING 2007

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