E-BRIEF - Jan-Feb 2004 - The Advocates' Society

The Advocates’ 

E-Brief 

Don’t miss our 

Spring Symposium 

on April 2 

Volume 15, No. 5, January/February 2004 

Rethinking How We Litigate to Ensure 

We Continue to Litigate 

Jeffrey S. Leon 

Since first raising the issue in late June 2003, I 

have had numerous opportunities to participate 

in discussions of the impact of decreasing opportunities 

for courtroom and hearing room advocacy 

on our litigation profession and, in particular, 

on younger members of the bar. The Advocates' 

Society is not alone in its concern: the American 

Bar Association has a project underway on "The 

Vanishing Trial" and the American College of 

Trial Lawyers has created an Ad Hoc Committee 

on the Future of the Civil Trial. 

It is apparent that there are no easy answers in 

our quest to give litigation lawyers their days in 

court. It is important to continue to focus on this 

issue in order to raise the consciousness of the 

profession and, one can hope, to generate ideas 

that will promote increased advocacy opportunities. 

This is not a matter of lawyers attempting to feather their own nest by increasing business 

opportunities, whether for money or for self-gratification. If one believes in the 

symbolic and very real importance of a vibrant trial system as being the cornerstone of 

our civil and criminal justice systems, then this goes to the heart of our concerns to 

foster access to justice and to ensure that users of the system receive professional, 

competent and effective service. 

This is all "highfalutin" talk, but it is at the centre of who we are, what we do and how 

we do it. There are some very important and difficult issues that we need to come to 

grips with if we are serious about creating advocacy opportunities. I will comment on 

four of the issues. 

First, for many years, we have been content with the notion that if we offer advocacy 

skills training programs then we are doing enough. Indeed, The Advocates' Society 

takes justifiable pride in the quality and scope of the skills training programs it offers. 

Such programs are an essential component of teaching young advocates -- but they 

are not enough. Lawyers have to understand the pressures and responsibilities that 

arise in trials or hearings, where the result can have great importance and where the 

result often depends on one's own decisions made in real time in the course of a trial 

or hearing. 

Second, it is understanding the trial or hearing process that is the unique skill of the litigator. 

Our justice system is premised on a process ultimately leading to a trial in order 

to resolve disputes. As we all know, few cases ever get to trial. Yet it is the experi- 

The Advocates' Brief 

A publication of The Advocates' Society 

“The Advocates’ 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: 

Sonia Holiad 

Director of Marketing & Communications 

The Advocates’ Society 

2020 - 438 University Avenue 

Toronto, ON M5G 2K8 

Tel: 416-597-0243 x.112 

Fax: 416-597-1588 

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“The Advocates’ Brief” is published eight times 

per year, in either printed or electronic format, 

and is distributed to members of The 

Advocates’ Society. Opinions expressed within 

are not necessarily those of the Society, and the 

publication of advertisements does not imply 

endorsement. Contents may not be reprinted 

without written permission. Publications Mail 

Agreement No. 40019079. 

In This Issue 

New Members . . . . . . . . . . . . . . . .2 

Litigation Tips and Traps . . . . . . . .5 

Remarkable Advocates . . . . . . . . .7 

Calendar of Events . . . . . . . . . . . .8 

The Expert Column . . . . . . . . . . . 10 

Judicial Appointments . . . . . . . . . 11 

President’s Festive Receptions . . 13 

Managing Law Office Chaos . . . . 14 

(Continued on page 2) 

VOLUME 15, NO. 5, JANUARY/FEBRUARY 2004 

1

Welcome to Our 

New Members 

Government 

Brian Saunders, 

Department of Justice (Canada) 

Intermediate 

Sarah Armstrong, 

Fasken Martineau DuMoulin LLP 

Lisa F. Barazzutti, 

Carlesso Barazzutti 

Carmen Belcredi, 

Ledrew Laishley Reed LLP 

Dawn Bourque, 

Cassels Brock & Blackwell LLP 

James Meric Brown, 

Nelligan O'Brien Payne LLP 

Antonella Ceddia, 

McCarthy Tétrault LLP 

Cindy Marie Chaves Ebben, 

Giffen Lee LLP 

Jessica Fiore, Bennett Jones LLP 

Sean Hanley, 

Attorney General of Ontario 

Martha L. Harrison, 

Rochon Genova LLP 

Evangelia Litsa Kriaris, 

Bennett Jones LLP 

Bianca La Neve, Bennett Jones LLP 

Damienne Lebrun-Reid, 

Bennett Jones LLP 

Lisa F. Metselaar, Lerners LLP 

Marni D. Munsterman, 

Beach May & Konyer Associates 

Mark Power, Heenan Blaikie LLP 

Kellie R. Seaman, Groia & Company 

Stuart Svonkin, Torys LLP 

Paul Taylor, Bennett Jones LLP 

Melisse L. Willems, 

Fasken Martineau DuMoulin LLP 

Keri Wilson, Shillington & Associates 

P. James Zibarras, 

Borden Ladner Gervais LLP 

Judicial 

The Hon. Justice William P. Bassel, 

Ontario Court of Justice 

The Hon. Justice Jean-Gilles Lebel, 


The Hon. Justice 

Kathryn L. McKerlie, 


The Hon. Justice David A. Stone, 


(Continued from page 1) 

ence derived in the courtroom or hearing 

room that makes a litigator effective 

in giving advice on litigation strategy to 

achieve a particular result. It is the 

same experience that allows a litigator 

to be effective in the mediation or settlement 

contexts, through the ability not 

only to evaluate what a case is worth 

but also to allow for a real alternative -- 

trial -- if mediation cannot produce an 

appropriate settlement. 

Third, we must acknowledge that, from 

an ethical perspective, the issue is one 

that goes to the essence of competence. 

We hold ourselves out as trial 

lawyers. If we are not prepared to go to 

court, because we don't know how, we 

are letting the "fear of trialing" distort our 

judgment. We are not providing competent 

service to clients. We need to 

acknowledge this fear factor and deal 

with it. 

Fourth, a failure to appreciate and 

understand the trial or hearing process 

can have a negative rebound effect, particularly 

in the civil justice context. 

Nowhere is this more apparent than in 

the way we approach and conduct documentary 

and oral discovery. Not having 

had to prove a document at trial or not 

having had to use a discovery transcript 

at trial affects counsel's ability to know 

what to do in the discovery process. 

Regular Out of Toronto 

Roger H. Chown, 

Carroll Heyd Chown 

Richard D. Howell, Aylesworth 

Thompson Phelan O'Brien LLP 

Leigh Ann Sheather, 

Gowling Lafleur Henderson LLP 

Regular 

M. Christine Fotopoulos, 

Borden Ladner Gervais LLP 

Mara Greene, Schreck & Greene 

Douglas Hunt, Q.C., 

Hunt Partners LLP 

Ramani Nadarajah, Canadian 

Environmental Law Association 

Valerie D. Wise, Lerners LLP 

David Young, 

Benson Percival Brown 

The problem is not only, as I previously 

suggested, that discovery becomes the 

ultimate adversarial experience; it goes 

beyond that to not understanding how to 

analyze a case before discovery, not 

understanding the concept of relevance 

and not understanding the importance of 

precise, thoughtful questioning. 

As will be discussed below, one result of 

this phenomenon is massive production 

of documents and prolonged, if not endless, 

questioning on discovery. Indeed, 

it is this process that increases the cost 

of litigation, which we then use as one of 

the primary reasons why clients should 

settle rather than go to trial. 

What then can we do about this situation? 

Can we make changes that will 

create opportunities for advocacy? Here 

are four possibilities: 

(1) We have to commit ourselves in a 

significant way to giving young lawyers 

the opportunity to supplement their skills 

training with real experience in courtrooms 

and hearing rooms. We have to 

invest in this complete training process 

in order to derive future benefits from 

having effective litigators available to 

give advice and resolve disputes 

whether inside or outside of a courtroom 

or hearing room. These opportunities 

exist. For example: 

(a) allow juniors to attend and participate 

in trials at reduced rates or at no 

cost to the client; 

(b) promote opportunities for pro bono 

work by allowing younger lawyers to represent 

the under-represented -- those 

who need and want representation but 

are forced to proceed to trial without representation 

for economic reasons, 

including: civil cases, minor criminal 

cases (especially those that do not 

require the specialized skills of the criminal 

lawyer in Charter and other issues), 

and some types of family cases, particularly 

in areas such as child protection; 

(c) offer the services of younger lawyers 

on a reduced or no-rate basis in order to 

allow clients to use the trial process to 

resolve minor civil disputes on an economic 

basis through small claims or simplified 

rules trials. 

(2) We have to create mechanisms to 


2 

VOLUME 15, NO. 5, JANUARY/FEBRUARY 2004


facilitate the access of lawyers to these 

opportunities. Increased use of the 

Lawyer Referral Service is one possibility. 

An expanded pro bono organization 

that would put lawyers in touch with 

those who need representation is another. 

The Advocates' Society should take 

a lead role in this regard. 

(3) On a more general and long-term 

basis, we have to re-think the way in 

which we provide litigation services to 

our clients. Let me be the first to admit: 

"My name is Jeff and I ask too many 

questions on discovery." We need to 

put an end to our approach to litigation 

that makes it uneconomical for a client 

to litigate. As litigators we have never 

come to grips with the technological 

changes and the information explosion 

that have forever altered the way we 

practise law. Leaving aside the professional 

considerations, if we view the 

matter just from a business perspective, 

we have priced ourselves out of the 

market by making the "trial alternative" 

too expensive. The cost of getting to and 

conducting a trial becomes the reason to 

settle. This distorts the settlement 

process because if settlement is not 

"voluntary" and if the merits of a case 

have little to do with outcome, then the 

results of settlement will not be accurate 

in the sense of approximating the results 

of a trial based on the merits of a case. 

The time has come to change our litigation 

culture -- to teach advocates how to 

litigate on a cost-effective basis. How 

many of us have really stopped to think 

about the cost to a client of a particular 

line of questioning on discovery relating 

to some tangential point? When is the 

last time we actually found that smoking 

gun? We need to identify the ways we 

can attract clients back to using the trial 

alternative by giving value proportionate 

to cost. I would submit that this should 

become the key issue on both a professional 

and a business perspective. We 

can and should develop best practices 

and new ways of doing things that will 

bring our clients back to the courtroom. 

The recent report of the Task Force on 

the Discovery Process in Ontario is a 

first step that provides several ideas in 

this regard. 

(4) We should not overlook what I have 

described as the fear factor. We don't 

really talk about the frustration and 

Attorney General Michael J. Bryant was the special guest at a recent meeting of the 

Society’s Board of Directors. Left to right: Benjamin Zarnett of Goodman LLP; Linda 

Rothstein of Paliare Roland Rosenberg Rothstein LLP; Michael E. Barrack of McCarthy 

Tétrault LLP; Jeffrey S. Leon of Fasken Martineau DuMoulin LLP; The Honourable Michael 

J. Bryant, Attorney General and Minister Responsible for Native Affairs; Sandra A. Forbes 

of Davies Ward Phillips & Vineberg LLP, and Jack Braithwaite of Gatien & Braithwaite. 

demoralization experienced by lawyers 

who want to be trial counsel but can't be 

because of lack of opportunity. We 

should talk more about this. We should 

do something about this. Indeed one 

reason suggested for the reluctance of 

firms to invest in providing litigation 

opportunities for young lawyers is the 

increased mobility in the profession: we 

train them and then they leave. Once 

again the process is circular. If as a profession 

we can provide increased job 

satisfaction perhaps lawyers would not 

be so quick to give up and leave to look 

for better opportunities elsewhere. 

All of these comments must be viewed in 

the context of our common law system. 

We need trials not only to resolve disputes 

but also to develop the law in a 

modern context - - to develop common 

law principles that reflect current social 

economic and business reality. 

Mediation and private arbitration are 

important components of a dispute resolution 

system, but they do not serve this 

additional, very important function. 

I hope that the work of The Advocates' 

Society Task Force on Advocacy will be 

a first step. Our Society has been at the 

forefront of promoting our traditions of 

advocacy. We should re-focus our 

efforts to remain at the forefront of the 

future of advocacy. 

References: 

Janet Alexander Cooper, "Do the Merits 

Matter? A Study of Settlements in 

Securities Class Actions," (1991) 43 

Stanford Law Review 49. 

ABA Section on Litigation, "Report of the 

Task Force on Training the Trial Lawyer," 

(June 2003) 

Keven C. McMunigal, "The Costs of 

Settlement: The Impact of Scarcity of 

Adjudication on Litigating Lawyers,” (1990) 

37 UCLA Law Review 833 

Marc Galanter, "The Vanishing Trial: An 

Examination of Trials and Related Matters 

in Federal and State Courts," Symposium 

on the Vanishing Trial, ABA Section on 

Litigation, San Francisco, California 

(December 2003) 

NICE 

MOVE 

Please notify Carolyn Cook, 

Membership Coordinator, 

if you mailing address or firm 

name will be changing. 

416-597-0243 x.102 

carolyn@advocates.ca 


3

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4 VOLUME 15, NO. 5, JANUARY/FEBRUARY 2004

Litigation Tips & Traps - “Southren” Style 

By Jane Southren 

McDonald & Hayden LLP 

One of the challenges that may face a 

newly-called litigator in a smaller firm is 

that the firm may not offer the breadth of 

knowledge and diversity of experience 

that one may call upon at larger firms 

when one runs across a situation that is 

not clearly dealt with in the Rules of Civil 

Procedure or in the case law. 

Don't be discouraged. There is a storehouse 

of legal information out there that 

will be available to you if you take the 

time and initiative required to develop a 

network of lawyers, at all stages of call, 

to whom you can turn, and who can turn 

to you, for advice and assistance as 

issues arise that are unfamiliar to you. 

This month's column was prepared using 

that approach. I have contacted numerous 

lawyers, at all levels of call, to obtain 

the benefit of their experience, ideas and 

advice on the thorny issue of: 

How and When to Nudge the Judge 

The problem revealed itself to me 

recently when a colleague of mine 

approached me for advice. The issue 

was whether or not she should contact a 

judge to ask that the judge expedite the 

delivery of a costs decision. The judge 

had rendered reasons on the merits of a 

matter, but not yet on costs. The decision 

on the merits had been appealed 

and counsel needed an issued judgment 

to include in an Appeal Book that she 

was required to file within a couple of 

weeks. 

At or around the same time, another colleague 

advised me that he was awaiting 

reasons from a master on a motion 

seeking to have an action dismissed for 

delay. In that case, a case management 

ordered pre-trial date was looming. The 

lawyer was anxious to get the reasons 

prior to the pre-trial date and, accordingly, 

was considering sending a letter to 

the master asking him to expedite the 

reasons. His intentions were laudable; 

he did not want his client to incur the 

expense associated with the pre-trial 

only to find out subsequently that the 

motion had been successful, the matter 

dismissed and the attendance at the pretrial 

unnecessary. 

I had no answers or advice to offer, as I 

had never confronted the issue myself, 

so I started calling for the assistance of 

the lawyers I customarily call for advice. 

The advice was consistent across the 

board: a resounding "Do Not Nudge the 

Judge." 

In one case a very senior lawyer I consulted 

modified the advice slightly to 

"Don't nudge the judge unless the circumstances 

are absolutely dire and 

there is absolutely no alternative." 

Because I was surprised by the advice, I 

enquired into the rationale for it and was 

advised as follows: 

1) You almost always can deal with the 

problem that has arisen as a result of the 

delayed reasons by taking certain steps 

on consent, or by using procedures 

available under the Rules of Civil 

Procedure and, in particular, under the 

case management rules. 

In the first example cited above, the 

lawyer could have obtained consent to 

the extension of the time to perfect the 

appeal from counsel for the respondent. 

If such consent was not forthcoming, she 

could have brought a motion before the 

Court of Appeal seeking an extension of 

the time to perfect the appeal, and 

sought the costs of that motion from the 

respondent who failed to consent. 

Alternatively, the lawyer could have had 

a judgment issued on the merits, included 

that judgment in the appeal book, and 

then issued another judgment pertaining 

to the reasons on costs when they were 

released. If counsel thought it necessary 

to appeal the decision on costs, the 

appeal on the merits could be amended 

to include the costs issue. 

In the second example cited above, the 

lawyer could have initiated a case management 

teleconference, at minimal 

inconvenience to himself and reasonably 

little expense to his client, and asked the 

case management master to adjourn the 

pre-trial date, pending the release of the 

reasons on the motion. 

2) By taking the steps available on consent 

or under the Rules you are more 

likely to obtain effective results for your 

client. Each of the lawyers I spoke with 

Jane Southren 

advised that judges and masters generally 

have a legitimate reason for a delay 

in releasing reasons and that the cause 

of the delay is unlikely to be resolved by 

a letter from counsel asking the judge or 

master to speed it up. Accordingly, 

there is a good chance that the reasons 

would still not be rendered even after 

your letter and you would have to resort 

to the relief available on consent or 

under the Rules in any event. 

I did not canvass the views of any 

judges or masters in the preparation of 

this column and therefore cannot warrant 

the degree to which they would 

agree with this advice. 

I would be interested to hear from anyone 

who might have a view that is different 

from that outlined above and who 

would be willing to share the reasons for 

their view. Please send your comments 

or your ideas for future columns to me at 

jsouthren@mchayden.ca. 

“The Advocates’ Brief” 

welcomes your comments, 

articles and announcements. 

Please forward them to: 

sonia@advocates.ca 

Fax: 416-597-1588. 

Mail: 2020 - 438 University Avenue 

Toronto, ON M5G 2K8 

Tel: 416-597-0243 x.112 


5

HENDERSON STRUCTURED SETTLEMENTS • THE SMART ALTERNATIVE 

THE ADVOCATES' SOCIETY 

2003 - 2004 

Life Has Enough Great Mysteries. 

EXECUTIVE 

Jeffrey S. Leon, President 

Benjamin Zarnett, First Vice-president 

Michael Eizenga, 

Second Vice-president 

Linda R. Rothstein, Treasurer 

Michael E. Barrack, Secretary 

DIRECTORS 

Kevin R. Aalto 

Stephen T. Bale 

Jack Braithwaite 

David Brown 

Paul J.J. Cavalluzzo 

Domenic Crolla 

Peter J.E. Cronyn 

Elizabeth Cummins Seto 

Adriana Doyle 

Neil Finkelstein 

Sandra A. Forbes 

Brian A. Foster 

Paul J. French 

Julie K. Hannaford 

Marie Henein 

Sheila M. Holmes 

Meredith Jackson Donohue 

Peter R. Jervis 

George B. Kilpatrick 

Alfred M. Kwinter 

Mark Lerner 

Shirley Linton 

Wendy Matheson 

Wendy Miller 

J. Patrick Moore 

David Morritt 

Barbara J. Murchie 

Gregory Richards 

Brian J. Saunders 

James Scarfone 

Donald B. Shanks 

Ronald S. Sleightholm 

Allan Sternberg 

Bonnie A. Tough 

Margaret L. Waddell 

Peter C. Wardle 

Timothy P.D. Bates, Ex Officio 

Paul H. Le Vay, Ex Officio 

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Instructors and mediators at the recent “Advocacy in Mediation” program, left to right: 

Stephen C. Raymond of Raymond Dispute Resolution; Harvin Pitch of Teplitsky Colson; 

Charleen H. Brenzall of the Department of Justice (Canada); program chair Ian J. Roland 

of Paliare Roland Rosenberg Rothstein LLP, and Gary M. Caplan of McCague Peacock 

Borlack McInnis & Lloyd LLP. 

EXECUTIVE DIRECTOR 

Alexandra M. Chyczij 

DIRECTOR of EDUCATION 

Jessica Grant 

DIRECTOR of MARKETING and 

COMMUNICATIONS 

Sonia Holiad 

Instructors and mediators at the recent “Advocacy in Mediation” program, left to right: 

John C. Murray of Heenan Blaikie LLP; William C. McDowell of McCarthy Tétrault LLP; 

Stephen M. Malach, Q.C. of Malach & Fidler, and Carolyn J. Horkins of Gowling Lafleur 

Henderson LLP. 

6 


Paying Tribute to Our Remarkable “Learned Friends” 

At the outset of the presidency of Jeff 

Leon in June 2003, our Society undertook 

a number of projects in celebration 

of its 40th Anniversary, but none so 

ambitious as the publication of a hardcover, 

coffee-table book titled Learned 

Friends: A Tribute to 50 Remarkable 

Ontario Advocates, 1950-2000. 

Conceived as a lasting tribute to a crosssection 

of individuals who have shaped 

our profession and contributed to the 

success of our firms, this project quickly 

generated a buzz throughout the legal 

community. We were especially heartened 

when the Honourable Chief Justice 

R. Roy McMurtry agreed to write the 

Foreword. 

In July 2003, an Editorial Board was convened, 

chaired by Kevin Aalto of Gowling 

Lafleur Henderson LLP, and including 

the Honourable Justice Stephen 

Goudge, the Honourable Justice Jean- 

Marc Labrosse, Sheila Block, Bruce 

Carr-Harris, Brian Greenspan, Marie 

Henein, George Kilpatrick, Jeffrey Leon, 

Paul Monahan, Chris Paliare, Scott 

Ritchie, Q.C., Charles Scott, James 

Simmons, Q.C., Harvey Strosberg, Q.C. 

and Benjamin Zarnett. 

of the legal community. A core group of 

Editorial Board members is currently 

contacting law firms and individuals to 

raise sponsorship funds and we are 

thrilled that two Toronto firms have 

already committed to donations at the 

$10,000 level. All sponsors will be 

acknowledged in the book. 

Please consider supporting this project 

at one of the official levels: 

Patrons: $10,001 - $20,000 + 

Benefactors: $5,001 - $10,000 

Supporters: $2,501 - $5,000 

Friends:$1,001 - $2,500 

Contributors: $500 - $1,000 

For sponsorship information, please 

contact Kevin Aalto at 416-862-4307. 

The Editorial Board consulted widely and 

chose 50 advocates to showcase from 

all regions of Ontario. The selection criteria 

focused on men and women who 

practised between 1950 and 2000, who 

are no longer practising but still may be 

playing a role within the profession, and 

who -- whether in the spotlight or not - 

demonstrated that certain combination of 

skill, character and accomplishment that 

qualifies them as remarkable. To supplement 

the volunteers, noted history writer 

Christopher Moore was retained to assist 

with the profiles of the advocates. 

Our research not only uncovered one or 

two hidden gems -- including a trailblazing, 

female criminal lawyer who wrapped 

up her practice in the late ‘50s -- but also 

drove home the sad reality that, in at 

least one case, there is virtually no 

recorded history of the “remarkable” 

advocate, only a rapidly dwindling source 

of verbal reminiscences. 

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VOLUME 15, NO. 5, JANUARY/FEBRUARY 2004 7

Spotlight On a 

Board Member 

Margaret L. Waddell is a member of 

Paliare Roland Rosenberg Rothstein 

LLP. She was called to the Ontario 

bar in 1989, and to the Alberta bar in 

1991. Margaret obtained her LL.B. 

degree from Queen’s University and 

her LL.M. from Osgoode Hall. She 

joined Paliare Roland Rosenberg 

Rothstein LLP in September 2003, 

after practising for the preceding ten 

years with Paul J. Pape, Barristers. 

Margaret has a varied advocacy practice 

that encompasses a broad range 

of corporate, commercial, securities 

and shareholder litigation, class 

actions, professional liability cases, 

and appearing as appellate counsel. 

She has appeared in all levels of the 

Ontario Courts, and has made applications 

for leave to appeal to The 

Supreme Court of Canada. 

Additionally, Margaret instructs civil litigation 

at the Bar Admission Course 

and appears as a speaker at various 

continuing education programs. 

Margaret is a member of The 

Advocates’ Society’s Sub-committee 

on Advocacy and Practice, where she 

has interfaced with the Rules 

Secretariat of the Civil Rules 

Committee in responding to proposed 

changes to the cost grid and Rule 49 

offers to settle. 

Wed., March 3 

Thurs., March 4 

Fri., March 5 


Fri., March 12 & 

Sat., March 13 

Wed., March 24 


Fri., March 26 

Sat., March 27 

Mon., March 29 

Wed., March 31 

Thurs., April 1 

Fri., April 2 

Thurs., April 15 

Tues., April 20 

Sat., April 24 - 

Sat., May 1 

Tues., May 4 

Calendar of Events 

Mentoring Dinner Series: “What I know now that I wish 

I had known in my early years of practice” 

(Jointly with Toronto Lawyers Association) 

Toronto: Campbell House 

Administrative Tribunal Skills Certificate Program: 

Opening Statement and Closing Argument 

Toronto: Federal Court of Canada 

Chief Justice of Ontario’s Advisory Committee on 

Professionalism: Second Colloquia 

Toronto: Osgoode Hall Law School‘s Professional 

Development Centre 

2004 Ottawa Advocate Honoree Dinner: A Tribute to 

Wayne B. Spooner, Q.C., & the late David Sgayias, Q.C. 

Ottawa: National Arts Centre 

Sopinka Cup 

Ottawa: Ottawa Court House 

New Members’ Breakfast 


Mezzaluna Mentoring Dinner Series: Risk Management 

Ottawa: Café Mezzaluna 

Women's Luncheon Series: I Want to be a Judge 

(Jointly with Women's Law Association of Ontario) 


Criminal Litigation Skills Certificate Program: 

a.m. - The Bail Hearing; p.m. - Speaking to Sentence 


Dinner in Honour of The Honourable John W. Morden 

Toronto: Sheraton Centre Toronto Hotel 

Young Advocates’ Wine and Cheese with the Bench 


Civil Litigation Skills Certificate Program: 

Dynamic Discoveries 

Toronto: St. Andrew’s Club and Conference Centre 

40th Anniversary Spring Symposium 

Advocacy: The Art of Persuasion 

Toronto: Sheraton Centre Toronto Hotel 


Opening Statement & Closing Argument 


Expert Evidence 

Toronto: St. Andrew’s Club and Conference Centre 

International Conference 

The Hague and Amsterdam 

Civil Litigation Skills Certificate Program: 



Continued... 

8 


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Thurs., May 27 

Thurs., May 27 & 

Fri., May 28 

Wed., June 9 

Wed., September 28 

FORENSIC ENGINEERING AND SCIENCE 

Investigate Understand Communicate 

Women’s Luncheon Series: I Want to be a Mediator 

(Jointly with Women's Law Association of Ontario) 


London Court House Series Dinner: A Tribute to the 

Honourable Justice D. Fletcher Dawson 

London: London Hunt and Country Club 

New Members’ Breakfast 


Explained. 

Mentoring Dinner Series: “Presenting your case 

effectively: A dialogue with Judges and Masters” 



Direct and Cross-examination 


Tax Litigation Skills Certificate Program: 



40 University Avenue 

Suite 700 

Toronto ON M5J 1T1 

416 368 1700 

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Annual General Meeting & End of Term Dinner 

Toronto: Fairmont Royal York Hotel 

Mentoring Dinner Series: “Making your practice 

interesting, challenging and successful” 


For further information, please call: 

Education & Events: 416-597-0243 x.110 

Marketing & Communications: 416-597-0243 x.112 

Sir William Campbell Foundation: 416-597-0227 

The J.J. Robinette Dining Room at Campbell House: 416-597-0542 

Campbell House 

Dining Room: 

Lunch is Served and 

Gowns are Permitted 

The Robinette Dining Room 

at Campbell House is open 

Monday through Friday, from 

12:00 p.m. to 2:00 p.m. for Society 

members and their guests. 

Because it is permissible to wear 

gowns to Campbell House, the dining 

room -- located on the Northwest 

corner of Queen and University, 

across the street from Osgoode Hall 

-- is the ideal location for lunch. 

Chef Mark and the staff will be 

happy to accommodate your court 

schedule. When you order, please 

advise them of your time limitations. 

The Robinette Dining Room 

Drop in for fine food 

and a taste of legal history. 

Campbell House: 

An Impressive Choice 

for Your Next Event 

Campbell House is the home of The 

Advocates’ Society and members are 

encouraged to rent this enchanting historic 

venue for their private and professional 

events: 

meetings • weddings • photo sessions • 

luncheons • client entertainment • 

holiday events • cocktail receptions • 

dinner parties • staff incentives • 

surprise parties • showers • family 

gatherings • birthday parties • staff 

promotions • press conferences • 

educational programs • fund raises 

Catering is provided by 

Allison Cumming Gourmet Catering 

For additional information, 

please contact 

Rosalind Monster at 416-516-3324 


The Expert Column 

Global Economic Crime Survey 

2003 - Canadian Results 

By Steven Henderson 

Economic crime 

continues to be a 

menace to businesses 

throughout 

the world despite 

widespread coverage 

in the press 

and government 

and regulators' 

efforts to reduce 

Steven Henderson fraud. Over onethird 

of companies 

were victims of fraud in the last two 

years, suffering an average loss of over 

US $2 million, according to the 

PricewaterhouseCoopers Investigations 

& Forensic Services' Global Economic 

Crime Survey 2003. In Canada, almost 

one half of the companies surveyed 

reported being a victim of an economic 

crime in the past two years. 

The Global Economic Crime Survey 

2003 represents the minimum benchmark 

for economic crime. There are 

frauds that organizations never uncover, 

while others are treated as commercial 

losses. Additionally, there is bound to be 

a reluctance to divulge certain frauds 

that occur. Despite this, there remain 

some valuable lessons to be learned 

from this survey. Most notably, it reveals 

that in Canada approximately one-fifth of 

fraud cases were uncovered by accident 

or chance. Inasmuch as this statistic 

lends credence to the view that controls 

can never eliminate fraud completely, 

about one-half of respondents both globally 

and in Canada reported the fraud 

was uncovered as a result of the work of 

internal and external audit. The survey 

reveals the impact on a company's reputation, 

brand image and staff morale can 

be more important than the direct financial 

loss. Respondents assign primary 

responsibility for managing economic 

crime issues to the board of directors, 

followed closely by senior members of 

management. Overall the survey results 

reinforce the need for companies in 

Canada to develop a proactive anti-fraud 

regime founded on vulnerability assessment, 

communication, training, testing 

10 

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and fraud response planning. 

Types of Economic Crime 

Asset misappropriation, generally the 

easiest to detect as it often involves the 

theft of tangible assets with a defined 

value, is the single most commonly 

reported economic crime. Further insights 

can be gained by comparing the perceived 

prevalence with the actual number 

of incidents. Globally, corruption and 

bribery are perceived to be the most 

prevalent, however asset misappropriation 

has the highest number of incidents 

reported. In Canada approximately 40% 

of companies consider asset misappropriation 

to be the most prevalent with 

almost the same percentage of incidents 

reported. 

Financial misrepresentation is perceived 

to be prevalent both in Canada and on a 

global basis even though the number of 

incidents reported is less than 5%. With 

financial misrepresentation, this gap 

appears to reflect two factors: higher 

awareness following the corporate scandals 

in North America and Europe and 

an understanding that it is likely to have 

a dramatic impact on a business. 

Looking to the future, a majority of companies 

expect fraud to increase in the 

next five years. Over half of Canadian 

companies or one-third of global companies 

expect their greatest fraud risk to 

www.quicklaw.com 

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Quicklaw and QuickFIND are trademarks of LexisNexis Canada Inc. Copyright 2003 LexisNexis Canada Inc. All rights reserved. 

continue to be asset misappropriation, 

followed closely by cybercrime, which 

primarily involves computer hacking, 

virus attacks, denial of service and theft 

of electronic data. 

The Collateral Damage 

Fraud can affect organizations in many 

ways, not solely in terms of direct financial 

losses. The indirect costs associated 

with staff morale, damage to the reputation 

of the organization and the erosion 

of shareholder value must be taken into 

account. Approximately half of companies, 

both globally and in Canada, 

reported that economic crime had the 

greatest impact on staff morale and motivation. 

Less than 5% of Canadian companies 

reported that economic crime 

impacted the share price despite the fact 

that approximately one-fifth indicated it 

affected their reputation and business 

relationships. The markets' lack of knowledge 

about fraud or the avoidance of 

adverse publicity may explain this, but 

many well-publicized cases clearly 

demonstrate the sensitivity of markets to 

management fraud. 

Detecting Economic Crime 

The perpetrators of fraud invariably take 

great pains to conceal or remove evidence 

of their crimes. It is not possible to 

accurately gauge how much fraud goes 




unnoticed, but we can analyse the 

means by which fraud is brought to light. 

Accident or chance continues to play a 

significant role in the detection of fraud. 

In Canada, approximately one-fifth of 

cases were uncovered this way lending 

credence to the view that controls can 

never eliminate fraud completely; however, 

about one-half of respondents both 

globally and in Canada reported that 

fraud was uncovered as a result of the 

work of internal and external audit. 

Clearly, reliance on luck is not a basis for 

an anti-fraud regime. Even where companies 

have controls in place to detect 

economic crime, these often can be rendered 

ineffective by management override 

or collusion. A company's preventative 

anti-fraud regime should consist of 

an ongoing assessment of the real risks 

and vulnerabilities to fraud within an 

organization; senior management actively 

communicating a company's fraud policy; 

the development of policies to 

encourage and protect whistleblowers; 

and the development of a robust fraud 

response plan that is based on worstcase 

scenarios. 

Recovering Stolen Assets 

Even if economic crime is detected and 

prosecuted, it still can prove difficult to 

recover the assets. Of respondents who 

had experienced fraud, only 10% of 

Canadian and global companies succeeded 

in recovering more than 80% of 

their losses. 

There are many reasons for this relative 

failure to recover lost assets, one of 

which is that companies are reluctant to 

embark on long recovery processes with 

no certainty of success; however, a policy 

of always attempting recovery, and 

communicating such an initiative, helps 

to create the right culture of deterrence. 

Preventing Economic Crime 

A majority of businesses are inadequately 

prepared to manage and prevent economic 

crime. For example, less than 

30% of businesses surveyed both globally 

and in Canada have fraud-related 

training for those handling economic 

crime issues. These companies rely on 

more tangible prevention tools such as 

codes of conduct and ethical policies 

that, although a foundation for good 

practice, on their own can be poorly 

The Society’s award-winning “Written Advocacy” program featured an illustrious faculty 

including, left to right: Joyce Harris of Teplitsky Colson LLP; The Honourable Justice 

Thomas A. Cromwell of the Nova Scotia Court of Appeal; Stephen V. Armstrong of 

Wilmer, Cutler & Pickering, and Jane Greisdorf of The Writing Consultants. 

understood and difficult to enforce. 

In contrast, companies that have actually 

suffered an economic crime loss are 

more likely to take practical and effective 

measures to combat it and to mitigate its 

impact. In Canada, 86% of respondent 

companies reported having insurance to 

cover an economic crime loss. This is 

significantly higher than the global 

results, which indicate only half of the 

companies surveyed were insured. 

Similarly, 40% of Canadian companies 

surveyed have implemented whistleblowing 

systems compared to 28% globally. 

As well, two- thirds of Canadian 

respondents have implemented preemployment 

screening and considered 

the impact of fraud in their risk management 

systems compared to approximately 

half of the global respondents. 

Although almost one-half of Canadian 

companies surveyed reported falling victim 

to an economic crime in the last two 

years, approximately 60% of them 

reported they are quite confident that 

their existing control systems are effective 

enough to minimize financial loss. 

This is consistent with the global results. 

Privacy Legislation and International 

Bribery and Corruption Laws 

In Canada, approximately 80% of companies 

surveyed indicated that they were 

familiar with the current privacy legislation, 

although approximately one-fifth 

indicated they had not yet assessed their 

compliance with this legislation. Almost 

two-thirds reported they conducted business 

abroad, however, only about onehalf 

reported they were aware of the 

bribery and corruption legislation in both 

Canada and the countries in which they 

did business. Approximately one-fifth 

reported that they had not assessed 

their compliance with this legislation. 

Further Information 

The survey demographics and definitions 

of economic crimes can be found in 

the Economic Crime Survey 2003 report 

at www.pwc.com/crimesurvey or call 

Steven Henderson at 416-941-8328. 

We welcome your suggestions for future 

columns. Please forward them by e-mail 

to john.seigel@ca.pwc.com. 

Steven Henderson is a Partner in the 

PricewaterhouseCoopers Dispute Analysis 

& Investigations Group in Toronto, focusing 

his practice on forensic accounting. 

Congratulations to 

Kathleen J. Kelly, 

Barrister, Arbitrator, Mediator, 

winner of the LexisNexis 

book contest 

(E-Brief, Nov/Dec 2003) 


Appointments to 

the Federal and 

Ontario Courts 

Michael L. Phelan of Ottawa has been 

appointed a judge of the Federal Court 

of Canada. He fills a newly created 

position. 

Anne L. Mactavish of Ottawa has been 

appointed a judge of the Federal Court 

of Canada. She fills a newly created 

position. 

S. Ford Clements of Toronto has been 

appointed a judge of the Ontario Court 

of Justice, assigned to Brampton. 

Paul Currie of Hillsburgh has been 


of Justice, assigned to Brampton. 

Supreme Court of Canada Counsel 

and Agency Services 

Now in its 21 st year 

Available by e-mail — same day service 

The Gowling Lafleur Henderson LLP Supreme Court of Canada Service 

includes a periodic summary, an Annual Report on all applications for 

leave to appeal, and related services. 

Supreme Court of Canada Group: 

Brian A. Crane, Q.C. 

Henry S. Brown, Q.C. 

Martin W. Mason 

Ritu Gambhir 

Eduard J. Van Bemmel, 

Legal Assistant 

Great legal thinkers since 1887. 

2600—160 Elgin Street Ottawa, ON K1P 1C3 Tel: (613) 233-1781 www.gowlings.com 

Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Moscow 

Howard Chisvin of Newmarket has 

been appointed a judge of the Ontario 

Court of Justice, assigned to 

Newmarket. 

Kofi N. Barnes of Toronto has been 


of Justice, assigned to Oshawa. 

Susan MacLean of Whitby has been 


of Justice, assigned to Oshawa. 

Margaret McSorley of London has 


Court of Justice, assigned to Guelph 

and Kitchener. 

Robert Rogerson of Stratford has 


Court of Justice, assigned to Guelph 

and Kitchener. 

A selection of the speakers at the November Civil Litigation Skills Certificate Program on 

Convincing Cross-examination, from left to right: Peter H. Griffin of Lenczner Slaght Royce 

Smith Griffin; Graham Smith of Goodmans LLP; The Honourable Justice G. Dennis Lane 

of the Superior Court of Justice; Tracy L. Wynne of Lax O’Sullivan Scott LLP; The 

Honourable Edward Saunders of The Osler ADR Centre; Randy A. Pepper of Osler, 

Hoskin & Harcourt LLP; program chair David Morritt of Osler, Hoskin & Harcourt LLP, and 

Robert J. Morris of Lerners LLP. 

Ann Alder of Ottawa has been appointed 

a judge of the Ontario Court of 

Justice, assigned to Ottawa. 

Lise Maisonneuve of Ottawa has been 


of Justice, assigned to Ottawa. 

Beverly Brown of Toronto has been 


of Justice, assigned to Toronto. 

Frederic Campling of Hamilton has 


Court of Justice, assigned to Toronto. 

George Gage of Hamilton has been 



Paul Robertson of Toronto has been 



Brian Scully of Toronto has been 



Simon Armstrong of Brampton has 


Court of Justice, assigned to 

Newmarket. 

Kristine Bignell of Sault Ste. Marie has 


Court of Justice, assigned to Sault Ste. 

Marie. 

Nancy A. Dawson of Toronto has been 


of Justice, assigned to Barrie. 

12 


President’s Festive Receptions in St. Catharines and Toronto 

The Advocates’ Society held a President’s Festive Reception at the Wellington Court Restaurant in St. Catharines on December 

16, hosted by Jeffrey S. Leon and board member Meredith Jackson Donohue. The event attracted 71 registrants. Attending with 

the president were the Society’s Treasurer, Linda R. Rothstein of Paliare Roland Rosenberg Rothstein LLP in Toronto, its 

Executive Director, Alexandra Chyczij, and its Director of Communications and Marketing, Sonia Holiad. The reception featured 

exclusive wines from Thirteenth Street Winery, owned by lawyer Ken Douglas. A similar reception was held at Campbell House in 

Toronto on December 18, also attracting a full house. Both receptions were open to members and non-members of the Society. 

Meredith Jackson Donohue of Daniel Black and Joseph Dallal of 

Sullivan, Mahoney, in St. Catharines. 

Jeffrey Leon and Laura F. Cooper of Fasken Martineau 

DuMoulin LLP, in Toronto. 

Left to right, Nicole Tellier, Barrister & Solicitor, Elisabeth Sachs, 

Barrister & Solicitor, and Sheila M. Holmes of Chappell, Bushell & 

Stewart, in Toronto. 

Left to right, Gordon McNab, Q.C., Barrister & Solicitor, Ken 

Douglas of Douglas, Stewart & Morningstar, owner of Thirteenth 

Street Winery, and Patricia Lucas, Barrister & Solicitor, in St. 

Catharines. 

End of Term Dinner - Wed., June 9, 2004 - Fairmont Royal York Hotel 

Guest Speaker: David W. Scott, Q.C., Borden Ladner Gervais LLP 

The first Canadian President of the American College of Trial Lawyers 

Invitations and reply cards will be mailed to members in the March general mailing. 


Suggestions for Managing Law Office Chaos 

By Leota Embleton, 

Ontario Bar Assistance Program 

"This isn't a law practice, it's hell with 

florescent lighting." 

Nancy B. Jones 

You may not realize how great an 

impact office stress can have on you 

and your practice. It is this kind of stress 

that can cause lawyers to sink into 

depression, anxiety, dissatisfaction and 

even substance abuse. Two personality 

traits that are often identified in the legal 

profession are the “two Ps”: perfectionism 

and procrastination. While these 

may seem to be opposites they often 

exist together and feed into feeling overwhelmed 

and out of control. 

Perfectionism and procrastination can 

contribute to office chaos. 

Are your work habits and office environment 

putting you at risk? Here are a few 

questions to ask: 

- Is your work environment in a state of 

constant chaos, disorganization and 

high stress? 

- Do you find yourself with the same 

stresses and the same problems within 

your office year after year? 

- Are you setting goals for yourself and 

your office that never seem to be 

achieved? 

- Do you dread the start of yet another 

day at the office? 

- Are you in control of your work, or is 

your work in control of you? 

If you answer yes to these questions 

your personal health and quality of life 

are likely to be negatively affected soon, 

not to mention your career satisfaction. 

The impact and the effect of office chaos 

depends on several factors: 

1. How long have these problems existed? 

2. How often are tensions high and 

morale low in the office environment? 

3. What is the frequency and severity of 

client complaints? 

4. How long can you stick your head in 

the sand in an effort to avoid the issues 

and hope they will just go away? 

These types of problems are all too 

common in many offices. The positive 

message is that there is a great deal 

that can be done to help fix these problems 

and to decrease work related 

stress and chaos. There are organizational 

solutions and personal solutions 

to consider. 

Organizational solutions and suggestions 

for a healthy office: 

1. Take a hard, honest look at the 

strengths and weaknesses of your 

entire office (equipment policies, clients 

and marketing). 

2. Develop an action plan and decide 

what steps need to be taken by whom 

and when. 

3. Monitor the plan and hold everyone 

responsible (including yourself) to do 

their part. 

4. Voice criticisms privately. 

5. Praise openly. 

6. Communicate openly, give clear 

instructions and avoid last minute planning 

when possible. 

7. Settle all unresolved conflicts (with 

partners and any others in the office). 

8. Keep a sense of humour. 

Personal solutions for managing 

work/office chaos: 

Consider your personal space and 

reactions in times of stress. When you 

are feeling pressured by the many 

urgent and simultaneous demands from 

clients, staff and colleagues try these 

techniques to deal with your personal 

reactions in a positive way: 

1. Shut the office door and sit down. 

Stop the input for a moment. 

2. Close your eyes and take three deep 

breaths. 

3. Drink a glass of water. Refresh your 

mind and body. 

4. Stretch your neck, arms and legs. 

Get blood flowing, help release body 

tensions. 

5. Put your feet flat on the floor. This is 

grounding and will maximize blood flow 

to help you focus on the issues. 

6. Prioritize and time manage. You can't 

do it all at once. 

7. Accept your limits. There are only so 

many hours in the day. 

8. Turn off the computer, shut off the 

cell phone and leave the palm pilot. 

Are you willing to take the necessary 

steps to look for and create healthier 

and better working environments for 

yourself? Or are you willing to accept 

the work-related stresses in your life 

year after year? The answers may not 

be easy but the ultimate choice is 

indeed yours! There are ways to get 

help -- legal management consultants, 

practice management advisors and 

OBAP can make suggestions to help 

you get started. Put procrastination 

behind you and make perfectionism 

work for you in a realistic, positive way. 

Further reading: 

Spencer Johnson and Kenneth 

Blanchard Who Moved My Cheese: An 

Amazing Way to Deal with Change in 

Your Work and in your Life, The 

Putnam Publishing Group, 1998. 

Nancy Byerly Jones, Easy Self-Audits 

for the Busy Law Office, ABA Law 

Practice Management Section, 1999. 

Nancy Byerly Jones, The Dangerous 

Link between Chronic Office Chaos, 

Stress Depression and Substance 

Abuse, GP Solo Magazine, July/Aug 

2001. 

John Starzynski, How to Focus During 

Stress, OBAP Newsletter, Oct. 2003. 

Confidential help and information 

are available for lawyers 

and their families. 

Ontario Bar Assistance Program 

Lawyers helping lawyers since 1978 

www.obap.ca 

Leota Embleton, Program Manager, 

416-241-7983 

John G. Starzynski, 

Volunteer Executive Director, 

1-877-6227 

LINK Lawyers Assistance Program 

English: 1-866-261-6704 

French: 1-866-261-6718 

14 


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Debit my VISA account #:__________________________________________ in the amount of $__________ 

Expiry date:_______________ Signature:___________________________ 

Enclosed is my cheque in the amount of $__________ payable to: The Advocates’ Society 

Order by fax: 416-597-1588, or mail: The Advocates’ Society, 2020-438 University Ave., Toronto, ON M5G 2K8 


JOHN J. ROBINETTE 

Peerless Mentor: An Appreciation 

By George D. Finlayson 

$30.00 (tax included) 

Personally signed by the author! 

All proceeds go to the Sir William Campbell Foundation 

To order, please call 416-597-0227 (ext.3 or 4) or 

e-mail at museum@campbellhousemuseum.ca 

16 VOLUME 15, NO. 5, JANUARY/FEBRUARY 2004

E-BRIEF - Jan-Feb 2004 - The Advocates' Society

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