Keeping Tabs February 2019

KEEPING TABS
The Advocates’ Society
February 2019

CONTENTS
04
06
08
12
15
16
20
22
Chair Chat
Victoria Creighton, Osler, Hoskin & Harcourt LLP
Young Advocates In The News
Compiled by Andrew Eckart, Eckart Mediation and Thomas Milne,
Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors
Diversity In The Profession:
On The Basis Of Sex
Erin Durant, Borden Ladner Gervais LLP
Access To Justice: YASC At The Pro Bono Hotline
Alexandra Shelley, Torys LLP
YASC Report: Simcoe Fireside Chat
Thomas Milne, Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors
Diversity of Counsel at the SCC: R. v. Le
Louis Century and Geetha Philipupillai, Goldblatt Partners LLP
Case Comment: Heller v. Uber
David Campbell, The Law Office of David Campbell
Interview: Kyle Ferguson
Compiled by Carlo di Carlo, Stockwoods LLP
Mastering the art and craft of advocacy is a career-long commitment and we are
here to help. The Advocates’ Society has been the premier provider of advocacy
skills training for over 30 years. We are proud to provide lawyers across Canada
with the training and the confidence they need to execute on their feet when it
counts. The Judge will notice…your clients will too.
Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.
25
YouTube Series: Laurie Pawlitza
Erin Durant, Borden Ladner Gervais LLP
Editor: Erin Pleet, Thornton Grout Finnigan LLP | EPleet@tgf.ca
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a
voice for young advocates (advocates who are ten years of call or fewer) within the Society and within the profession. We do this
through networking/mentoring events, by publishing articles by and for young advocates, and by raising issues of concern to
young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual authors are their own
and do not necessarily reflect the policies of The Advocates’ Society.
3

COMING UP
(Click on the program to learn more)
CHAIR CHAT
4
Chair Chat
Victoria Creighton, Osler, Hoskin & Harcourt LLP
Last month, I travelled to Ottawa for the President’s Reception and
met with many great Ottawa-based advocates. For the very young advocates
out there, I offer this story for you. This is my seventh year on
YASC and I’m practically a professional event attendee, averaging one or
two events a week. At most events, I spend my time making sure everyone
is chatting in groups. If someone is standing alone, I try my best to
chat with them and find them a group they might find interesting.
At the President’s Reception, I saw a man standing alone, so I walked up and introduced myself.
We chatted for a bit, I told him some silly story about myself, and I then walked with him to a group
of other lawyers, introduced my new friend to the group, then walked on. Walking away, I thought
to myself, “I hope he finds a good conversation. He seems really nice.” I perhaps took another two
steps, only to think, man, that person seems familiar. And then realized it was our new Minister of
Justice. In a room full of lawyers, I was worried that no one was talking to the Attorney General of
Canada. For the record, he was a delight to talk to and, obviously, a kind, patient man.
I offer this story to young advocates everywhere, because, some nights you’re on, you remember
everyone’s name, and all your interactions are smooth. And other nights, well, not so much.
But keep coming out. The profession is largely kind and welcoming. The more you come out, the
easier it gets. My favourite part of being part of TAS is meeting new people, then getting to know
them better event after event. Case in point, I had friends in the room who I could immediately
laugh with about the clumsiness of my own interaction with my new friend David.
In this issue of Keeping Tabs, you will find an interview with young advocate Kyle Ferguson, a recap
of the Heller decision at the Ontario Court of Appeal, a piece on what lawyers can learn from On The
Basis of Sex to improve diversity in law firms, a feature on our talented young advocate colleagues
already appearing before the Supreme Court of Canada, recaps of YASC events from across Canada,
young advocates in the news, and our continuing TAS “Legends of Bar” video series featuring
former Law Society of Ontario Treasurer Laurie Pawlitza discussing strategies to deal with “imposter
syndrome” in your practice. YASC is always looking for contributions to Keeping Tabs. If you have
something to say about a case, your life as an advocate, or a great experience at a TAS event, please
tell our acting editor, Erin Pleet at epleet@tgf.ca. If you’re looking to get involved with YASC more
generally, join our Volunteer Roster by emailing Alexandra Shelley at ashelley@torys.com.
MAR 26
Motions Advocacy
Toronto
APR 9
Women in
Litigation
Symposium
Calgary
MAR 6
Peel Pub Night
Mississauga
MAR 29
Leadership Skills
for Litigators
Toronto
APR 10
Women in
Litigation
Symposium
Edmonton
MAR 7
Women in Litigation
Symposium
Ottawa
APR 8
Women in
Litigation
Symposium
Vancouver
MAR 21
Trivia Challenge
for Charity
Toronto
APR 4
Find your Hook:
How To Develop a
Winning Case
Toronto
APR 9
License Appeal
Tribunal (LAT)
Advocacy

IN THE NEWS
Young Advocates in the News
In this feature, we highlight TAS young advocate members in the news. All of the lawyers profiled
have been called to the bar in the last ten years.
If you or a fellow young advocate has had a recent brush with the media about your/their work on
a case, please forward the news story link to:
Andrew Eckart, andrew@eckartmediation.com; or
Thomas Milne, tmilne@nncfirm.ca
• ‘He’s capable of killing me’: PhD student alleges sexual assault by Dominican Republican
official - CBC, October 1, 2018. Megan Savard of Addario Law Group LLP comments on her
client’s sexual assault allegations and ‘powerful’ case against a former member of the Dominican
Republican government.
• Rules on Weed in the Workplace – CBC News Network, October 10, 2018. Jacqueline Luksha,
associate at Hicks Morley Hamilton Stewart Storie LLP, speaks to CBC News Network host John
Northcott about the workplace implications of cannabis legalization.
• City of Regina wants court to quash ruling that allowed Westgate Properties more time to
build – CBC News, October 23, 2018. TAS member and associate at Gowling WLG, Sahil Shoor,
represents Westgate Properties in response to a judicial review launched by the City of Regina.
• POC’s in underrepresented workplaces pressured to speak for entire communities: Global
News, December 26, 2018. TAS member and associate at Nahwegahbow, Corbiere Genoodmagejig
Barristers & Solicitors, Thomas Milne, participates in a panel discussion regarding employment
on Living in Colour.
• Court upholds NPCA board appointments – St. Catharines Standard, December 21, 2018.
Erin Pleet of Thornton Grout Finnigan LLP successfully represented her clients in a dispute
over the governance of the Niagara Peninsula Conservation Authority.
We are #TASProud of our Young Advocates who worked so diligently in raising awareness of
the impending closure of Pro Bono Ontario’s Law Help Centre. The collective effort of many
of our members has helped to ensure that the Law Help Centres will remain in operation
throughout 2019. The following are some of the news stories that highlight our members’
advocacy efforts:
• Lawyers says loss of Pro Bono Ontario help centres will make justice more difficult and
expensive – The Star, November 6, 2018. TAS member Lindsay Scott, Paliare Roland Rosenberg
Rothstein LLP, discusses the impact of closures of the Law Help Centres.
• Funding pro bono legal services a no-brainer for Ford government – The Star, November
13, 2018. TAS member and associate at Stockwoods LLP, Pam Hrick, provided an opinion
piece encouraging the Ontario government to fund Pro Bono Ontario to prevent the closure
of the Law Help Centres.
• Free civil legal service to close, despite study showing it saves Ontario $5M a year –
CBC News, November 7, 2018. Paliare Roland Rosenberg Rothstein LLP associate Alysha Shore
shares her experiences of volunteering with Pro Bono Ontario over the past 10 years.
TAS Member Erin Durant, associate at Borden Ladner Gervais LLP, was interviewed for several
publications:
• Group trying to keep free legal help centre afloat in Ottawa – CBC Radio (Ottawa Morning),
November 8, 2018.
• ‘You don’t have justice if you don’t have access to a lawyer’: Legal Help Centre to close
– Ottawa Citizen, November 8, 2018.
• Bencher hopefuls push LSO on pro bono funds – Law Times, November 12, 2018.
6 7

DIVERSITY IN THE PROFESSION
A Little Less Conversation,
a Little More Action:
What Lawyers in 2019
Can Learn From On
The Basis of Sex to Improve
Diversity in Law Firms
Erin H. Durant, Borden Ladner Gervais LLP
**Warning: Some Spoilers for the film and some unfiltered thoughts to follow**
On the Basis of Sex is worth the price of admission
both as an entertaining movie and for the lessons
that it teaches the next generation of lawyers
about diversity, advocacy and change.
The film hits its stride when a young Justice Ruth
Bader Ginsburg hears about a case of gender discrimination
against a man. The client was a never
married man whose status and gender made him
ineligible to deduct caregiving expenses for the
care of his ailing mother from his income taxes.
Ruth (as she then was) knew a male litigant would
garner more support from the judiciary than in
prior gender discrimination cases unsuccessfully
advanced by women. The movie covers the
preparation and argument of the case and concludes
with a touching moment which I will not
disclose here (bring tissues).
Other than being an inspiring story, there are
three lessons from the film which I hope will inspire
lawyers to make our workplaces better for
everyone. Here are the lessons.
1. Do Not Make Assumptions Based
On Gender
Ruth is interviewed for many jobs in New
York City. She was top of her class and
a law review leader at Harvard and Columbia.
Yet she was not offered a job at
a private firm. In the film she reflects on
her interview experience, including one
lawyer’s concern that the partners’ wives
might be jealous of a female lawyer.
Unfortunately, these types of gender
related comments are still made
today. During an OCI interview I was
asked about my intentions about having
children. One firm told me “women
had children and did not come back.”
I lost interest in that firm and I expect
they never had interest in me. There
are stories of women lawyers with busy
starts to their career who return from
maternity leave to find they have no
files. Some people assume women with
children do not want to attend certain
client networking opportunities outside
of office hours – yet are quick to invite
men with children to the same events.
All of these experiences have an impact
on women lawyers and their ability to
succeed in the profession.
The “traditional” gender roles that
were changing when RBG started her
career have largely changed now. We
cannot let preconceived notions about
an individual’s responsibilities outside
of the office impact how we treat those
people in the office and what opportunities
we give them. Those notions
should have ended decades ago.
2. Don’t Just be Part of a Support Group
Ruth’s inspiring daughter Jane had a
number of memorable moments in the
film. The highlight for me was when
Jane says: “It’s not a movement if every-
8 9

one’s sitting down. It’s a support
group.”
In 2016 in Ontario women
made up 54.3% of lawyers under
the age of 35 and 52% of
lawyers between the ages of
35 and 44. The increase in the
number of women in the profession
is not resulting in a
corresponding increase in the
number of women admitted to
partnership. While it is difficult
to secure accurate data on the
number of women partners
in Canadian law firms, in the
United States the latest NALP
diversity report indicates that
women accounted for 23.36%
of partners in law firms they
surveyed in 2018 (slightly up
from 22.7% in 2017) even
though women have made
up approximately half of law
school graduates over the past
20 years and made up approximately
45.5% of associates as
of 2017. The percentage of visible
minority partners is even
lower – at less than 10%. These
figures suggest that law firms
are not promoting diverse candidates
in equal proportion to
the number of diverse candidates
in the profession. Some
law firms are recognizing that
this is a problem and are taking
steps to address the diversity
in their partnership.
Women and minorities talk
privately when there is a perceived
lack of diversity in promotions.
It bothers them. These
concerns are often raised at
events and conferences designed
for and attended by
them. But law firm leaders and
decision makers are not always
there. I worry that these
events are support groups, not
movements. Until key decision
makers are brought into the
discussion, little will change.
The statistics show that we
need a movement, not a support
group.
3. Be Strategic
Ruth Bader Ginsberg created
the Women’s Rights Project to
increase the pace on improving
equality in America for
women. The Project systematically
targeted laws which
discriminated on the basis
of sex and approached their
work one case at a time. It was
a tremendous success as the
project pushed forward 300
sex discrimination cases in the
1970s and had numerous victories
in the Supreme Court.
The Women’s Rights Project
continues to this day with focuses
on women in education,
violence against women,
women in criminal justice and
women’s rights in the workplace.
Law firm culture will not
change overnight. Concrete
strategies are required to improve
diversity and inclusion.
Many steps that are required
are outside of the control of
the young lawyers who read
Keeping Tabs. Research shows
that leadership on diversity
and inclusion must come from
the top. I agree.
However, Ruth Bader Ginsberg
did not wait for change
to come. She strategically
forced the issue. Here are
some of my strategies which
young lawyers can use to help
improve diversity and inclusion
in their firms:
1. Speak Up: Voice concerns
about diversity and inclusion
in your workplace. Ask what
is being done. Ask for the
deadlines. Follow up. Volunteer
to help.
2. Create Diverse Teams
Around You: When you are
in a position to delegate work –
create your own diverse teams.
Give diverse students opportunities.
Be mindful of your own
unconscious biases. Make an
effort to work with people who
are not like yourself.
3. Insert Yourself and be an
Advocate for Others: Be vocal
about wanting to be included
in client and networking opportunities.
Do not wait to be
approached. Voice interest in
being involved in the next big
file that matches your skill set.
Be an advocate for others if
you notice diverse lawyers are
not considered for opportunities
and if client teams are not diverse.
Not everyone notices a
lack of diversity (yet). Constant
reminders help.
4. Push the Marketing Department:
Advise your marketing
department of your
interest in being included in
RFPs, marketing materials and
lawyer rankings. When reviewing
marketing materials, advise
when there is a lack of diversity
in the materials.
5. Do Not Tolerate Discrimination:
Law firms are required
to have non-discrimination policies.
If you notice discrimination,
report it. If you do not feel
comfortable reporting it, have
your mentor do it.
After watching On the Basis of
Sex I was motivated to do more
to promote diversity within the
legal profession. I hope that
you watch the film and it inspires
you to do the same.
Disclaimer: The above thoughts
are my personal suggestions
on how to help create change.
They are not a solution; there
is no one single, right way that
any of us can make the profession
and law firms more inclusive
alone. It will take time
for firms, the legal profession,
and biases of society-at-large
to catch up. What we can do,
in the interim, is keep these
issues in the forefront and do
what we can as individuals
along the way.
10 11

ACCESS TO JUSTICE
YASC Answers the
Call at the Pro Bono
Ontario Hotline
Alexandra Shelley, Torys LLP
Courthouse Series 2019
The Effective Witness
Cases stand and fall on witness credibility. Attend this year's Courthouse Series and learn
how to get the most out of all witnesses. This year's series will feature an outstanding
cast of experienced advocates sharing practical strategies for preparing, controlling and
examining different types of witnesses.
Kingston
February 28, 2019
Barrie
March 7, 2019
Sudbury
March 21, 2019
Hamilton
May 8, 2019
In furtherance of YASC’s mandate to increase access to justice, during the week of
December 3, 2018, members of YASC, their colleagues, and members of the YASC
Volunteer Roster volunteered with the Pro Bono Ontario Hotline. The volunteers each
spent a day at the PBO Hotline answering calls from Ontarians and providing summary
legal advice on a range of topics from landlord tenant issues to intellectual property
infringements.
The Hotline currently receives over 350 calls a day and each YASC volunteer was able
to help as many as 10 clients per day. Since its launch in September 2018, the Hotline
has provided access to legal advice for thousands of Ontarians with everyday civil legal
problems. PBO volunteers filled 864 shifts at the Hotline in 2018 and helped nearly
15,000 callers.
If you’re interested in getting involved with the Hotline, please contact Nicole
Kellow at hotlineschedules@probonoontario.org or 416-977-4448 ext. 926.
Windsor
February 28, 2019
Owen Sound
March 5, 2019
London
March 7, 2019
Thunder Bay
March 7, 2019
Milton
April 29, 2019
Ottawa
April 29, 2019
LEARN MORE OR REGISTER
Kitchener
May 9, 2019
Kitchener
May 16, 2019
12 13

YASC REPORT
YASC’s First Simcoe
County Fireside Chat
Thomas Milne,
Nahwegahbow Corbiere Genoodmagejig
Barristers & Solicitors
Your Next
Challenge Is Here
The Advocates’ Society Career Board is the only legal
job board created just for the litigation bar. Access
notices for litigation, ADR and judicial vacancies that
are exclusively listed for advocates across Canada.
To find your next position visit www.advocates.ca
On December 12, 2018, a Fireside Chat on Advocacy
was held in Simcoe County featuring Mr.
David C. Nahwegahbow. The event took place
at Casino Rama and was generously sponsored
by Nahwegahbow, Corbiere Genoodmagejig,
Barristers & Solicitors, Oatley Vigmond Personal
Injury Lawyers LLP, and Carroll Heyd Chown
LLP. Mr. Nahwegahbow was interviewed by
Professor Jeffery Hewitt from the University of
Windsor, Faculty of Law.
It was a very special evening. Mr. Nahwegahbow
is widely recognized as an expert in
Indigenous law and has long been an outstanding
role model for Indigenous lawyers
throughout Canada. He spoke about his
background, his early beginnings as a legal
advocate, his work on a Child Welfare case
currently before the Canadian Human Rights
Tribunal, and his work on a treaty interpretation
case involving the Robinson-Huron
Treaty of 1850 currently before the Ontario
Superior Court of Justice.
YASC looks forward to hosting more events
in Simcoe County.
15

DIVERSITY OF COUNSEL AT THE SCC: R. v. Le
Disrupting unspoken
notions about who ‘belongs’
at the Supreme Court
Louis Century and Geetha Philipupillai,
Goldblatt Partners LLP
At the hearing of R. v. Le in October 2018, the Supreme Court of
Canada considered the question of whether a reasonable expectation
of privacy extends to social visits in a friend’s backyard. The
backyard in question was at a downtown Toronto Housing Co-operative
where the appellant Tom Le and his friends, all young men
of colour, had grown up and where the police have an active presence.
On the night of Mr. Le’s arrest, he was socializing in his friend’s
backyard when three police officers entered the backyard, uninvited,
and questioned Mr. Le and the group, leading to Mr. Le’s arrest
and the seizure of a firearm, currency and drugs.
Mr. Le was represented by Emily Lam (Kastner
Law, 2008) and Samara Secter (Addario
Law, 2014), who urged the Court to account
for the lived experience of racialized youth
when approaching the question of an expectation
of privacy in this context. The judgment,
which is under reserve, could change
the law of search and seizure in Canada. Yet
regardless of the outcome, the case already
stands out for another reason.
The hearing itself was both younger and
more diverse than any Supreme Court hearing
in the recollection of these authors. Thirteen
out of the 23 listed counsel were ‘young
advocates’ (within their first ten years of practice),
including five out of 11 speaking lawyers.
Fifteen out of 23 counsel were women.
And for a case that concerned the experience
of young racialized people with law enforcement,
many of the lawyers before the Court
were themselves racialized. Some, like
Mr. Le’s lawyer Emily Lam, grew up in
the same neighbourhood where Mr. Le
and his friends were socializing when
this case began.
Counsel at Supreme Court hearings
are disproportionately senior, white and
male, but not this time. We decided to
speak with some of the all-star young
advocates in this case about why a representative
courtroom matters to them.
#Womeninlaw at the Supreme Court
Danielle Glatt (Lenczner Slaght Royce
Smith Griffin LLP, 2014), co-counsel for
the Canadian Civil Liberties Association,
recalled that the robing room was full
of women in the morning before the
case. “In appellate litigation, that was a
first for me, for it to be majority women,”
she said. Lindsay Board (Stockwoods
LLP, 2016), co-counsel for the
Federation of Asian Canadian Lawyers
and the Chinese and Southeast Asian
Legal Clinic, concurred: “As someone
relatively early in her career, it definitely
made a difference for me to see so
many women doing an incredible job.”
Dayna Steinfeld (Fillmore Riley LLP,
2013), co-counsel for Canada Without
Poverty et al, said, “Participating in the
Le case as an advocate made me feel
hopeful that there is space for lawyers
who are different. Watching two young
female advocates [Emily Lam and Samara
Secter] argue the entire case for
the Appellant was incredibly meaningful
for me as a young female advocate
myself.” Similarly, Tina Lie (Paliare Roland
Rosenberg Rothstein LLP, 2007),
co-counsel for Scadding Court Community
Centre, said the case was a “reminder
to young, female and racialized
litigators that we are not imposters or
intruders; we can and do belong in a
16 17

space like the Supreme Court
of Canada.”
Racial representation of
counsel
For Anthony Morgan (then at
Falconers LLP and now with the
City of Toronto, 2013), who represented
the Urban Alliance on
Race Relations, “The roster of
counsel in this case positively
disrupts the unspoken notion
that young and/or racialized
people and perspectives don’t
belong among the highest
rungs of our profession.”
Mr. Morgan contrasted this
case to his previous experience
at the Supreme Court in
R. v. Nur, which concerned a
mandatory minimum sentence
involving a Black accused. Besides
the accused, Mr. Morgan
was the “the only Black person”
there and, besides his co-counsel
Faisal Mirza, counsel did not
even “[use] the word ‘Black’ or
‘African-Canadian’ in their oral
submissions.” Mr. Morgan felt
“an unsettling mix of great joy
and emotional pain at reaching
a professional pinnacle” and
said, “I can’t think of a time that
I felt more simultaneously visible
and invisible as a lawyer.”
In contrast, Mr. Morgan said
about R. v. Le, “I am heartened
and hopeful about how different
the composition and
character of the submissions
were in R. v. Le than in R. v. Nur.
While there’s still a long way to
go, the change gives me some
hope that we, as a legal profession
are steadily headed in the
right direction.”
The courtroom is for
the people
Tina Lie similarly said, “In this
case, the appellant and many
of the interveners were able
to advance their diverse perspectives
through counsel who
looked and sounded like them,
in some cases grew up in neighbourhoods
close to or similar to
the one in which the appellant
was arrested and, importantly,
understand what it is like to
navigate our society as a member
of a minority group.”
Ms. Lie’s co-counsel Lauren
Pearce (2016) continued, “This
not only gives important context
to counsel’s legal arguments,
it also helps to provide
a perspective that might otherwise
not be voiced, and hopefully
leaves litigants feeling like
they were meaningfully heard
(regardless of the outcome).”
Emily Lam said, “The courtroom
is for the people, and
should represent those who
come before the law. If judges
and courtrooms don’t reflect
the people they serve, trust
and faith in the system is diminished.
A diversity of experience
makes the system better
and opens the door to different
perspectives and ways of
considering issues that we
might not otherwise think of if
the courtroom and bench were
more homogenous.”
Diversity on the bench
In contrast to the diverse composition
of counsel in this case,
the judges who will decide the
case are all white, as has been
the case since 1875 when the
Supreme Court was founded.
When asked why a representative
bench matters, Ms. Secter
said, “it is difficult to understand
the humiliation of being
‘othered’ by the police, or
asked if you belong in a certain
place, unless you have lived it.
If you are always in the majority,
being on the outside is a
completely unknowable experience.”
Several counsel recalled an
exchange in which Faisal Mirza
asked the Court to imagine the
police walking into the backyard
of “some of the icons of
criminal law…Greenspan, Moldaver,
Rosenberg and Gold.”
Justice Moldaver interjected,
“I’d invite them to have a
drink.” Mr. Mirza later said this
exchange “crystallized the difference”
between how different
members of society experience
police interactions.
Gerald Chan (Stockwoods
LLP, 2008) also reflected on the
importance of a diverse bench:
“Judges approach cases with an
open mind, but not an empty
mind. They are all informed, and
to some extent limited, by their
own experiences. The more
diverse the judiciary – and, on
appeals, the hearing panel –
the better their judgments will
be. That’s over and above the
benefits to public confidence of
having a judiciary that reflects
the population it serves.”
All-star appellate duo
For Ms. Lam and Ms. Secter,
this was a ‘dream opportunity’
to work together on such an
important case. Ms. Lam called
Ms. Secter “one of the funniest
and brightest lawyers I
know” and said, “I believe I had
an opportunity many lawyers
dream about: I got to work on
a case involving issues that I
deeply care about with people
who share the same personal
and professional principles
I do.” Ms. Secter agreed that
working with Ms. Lam made
the case special and unforgettable:
“She is a smart and dedicated
advocate. She knows
how to connect with people
from all walks of life.”
For Ms. Lam, who represented
Mr. Le at the lower courts
as well, a favourable decision
would have personal resonance.
She said, “I grew up in the same
neighbourhood as Mr. Le many,
many years ago. It’s a pretty
unique experience to be able
to personally understand some
of the challenges people in the
community face, and to be able
to advocate for changes to the
way the constitutional rights
of marginalized and racialized
groups are understood. If we’re
successful in this case, the law
as it would have applied to me
when I was growing up in the
community…will have changed
for the better!”
Judgment was reserved at
the Supreme Court and a decision
is pending.
18 19

CASE COMMENT
One Heller of an
Arbitration Agreement
David Campbell,
The Law Office of David Campbell
Arbitration is becoming ever-more important for those who practise civil litigation,
since an ever-increasing number of contracts contain arbitration agreements.
For those interested in arbitration, the Ontario Court of Appeal started 2019 with a
bang. Heller v. Uber Technologies Inc. is one of those rare cases where the arbitration
agreement was held to be unconscionable. The case also held that the arbitration
agreement was invalid because it violates s. 5(1) of the Employment Standards Act,
2000 (ESA). The Court’s unconscionability findings should bolster public confidence in
arbitration by refusing to enforce an ADR clause that would effectively prevent the
dispute from being decided independently and beyond judicial overview.
Heller is a 35-year-old, high-school-educated UberEATS driver who earns $400–$600
a week—or $20,800–$31,200 a year—working
40–50 hours a week. This income is before
taxes and expenses, like his vehicle.
He commenced a proposed class action on
behalf of all Uber drivers seeking a declaration
that they are employees under the ESA,
and $400 million in damages.
Uber’s contracts with their drivers have
arbitration agreements. Uber moved under
s. 7(1) of the Arbitration Act, 1991 and
Article 8(1) of the International Arbitration
Act, 2017 (ICAA) to stay Heller’s action.
Both provisions mandate a stay, absent
certain exceptions. The Court of Appeal’s
analysis focuses on s. 7(2)(2.): “The arbitration
agreement is invalid.”
At the heart of this case is Uber’s ADR
system. If a driver has dispute with Uber,
then there are several steps:
• The driver starts by calling an Uber
CSR in the Philippines;
• The dispute may then be referred to
an Uber CSR in Chicago;
• Uber’s legal team may then take over
the dispute from the Chicago CSR;
• The driver may also go to an Uber
Greenlight Hub in Ontario to ask Uber
staff for help;
• If still dissatisfied, the driver may commence
a mediation with the International
Chamber of Commerce (ICC) in
the Netherlands under Dutch law; and
• If the mediation fails, the driver may then
commence an ICC arbitration, again in
the Netherlands under Dutch law.
Aside from travel and counsel fees, the
driver would have to pay $14,500 (USD) in
ICC filing fees to reach arbitration, along
with his or her share of the mediator’s
and arbitrator’s fees.
The Court found that this arbitration
agreement was unconscionable, because
“it operates to defeat the very claims it purports
to resolve.” The Court held that the
facts were sufficient to meet both the twopart
test for unconscionability and the fourpart
test. A driver with a claim of a few hundred
dollars must fly to the Netherlands to
have his or her claim decided independently,
rather than by Uber employees.
In a separate holding, the Court also held
that the arbitration agreement violates s.
5(1) of the ESA and is thus unenforceable.
Section 5(1) of the ESA voids provisions that
force an employee to contract out or waive
an employment standard. Not only does
Uber’s arbitration agreement extinguish
an employee’s right under s. 96 to report a
dispute to the Ministry of Labour and have
an Employment Services Office investigate,
but it also eliminates an employee’s s. 98
right to commence a civil action. According
to the Court, arbitration does not fall within
the definition of a civil action.
However, the ESA analysis has a tricky
component. It presumes that Heller’s allegation
that he is an employee is capable
of proof. This presumption is based
on the Supreme Court of Canada’s decision
in Seidel v. TELUS Communications Inc.
Although Seidel certainly makes the same
presumption, this is the first case following
Seidel that uses the presumption in
the context of a stay motion. It does seem
to leave open the possibility that future
plaintiffs could make questionable allegations
to defeat s. 7(1).
Generally, arbitration agreements
must be enforced, even in contracts of
adhesion, unless one of the exceptions
in s. 7(2) or Article 8(1) is met, the dispute
is outside the scope of the arbitration
agreement, or there is a legislative
override to the arbitration. In promoting
arbitration as an alternative, we must
not allow ourselves to enforce unconscionable
arbitration agreements that
may undermine public confidence in arbitration
as a fair and legitimate form of
dispute resolution.
20 21

Do you know a young advocate who we
should feature in an upcoming Interview?
Click here to email us with your suggestion.
Q. What is your year of call?
A. 2012 in Ontario and
2014 in B.C.
Q. What is your greatest fear in practice?
A. The spectre of missing a deadline or limitation
period is something that I think we all fear.
Q. Which word do you prefer: litigator or advocate?
A. The term litigator is certainly used more often, but I think advocate best captures the work that
we do inside and outside the courtroom to organize, refine and present our clients’ cases.
Q. What is your favourite take out cuisine?
A. Pizza and beer.
Q. If you weren’t a lawyer
what would you be?
A. I think I would have wanted to
be a professor or teacher.
INTERVIEW
In conversation
with Kyle Ferguson,
Gudmundseth Mickelson LLP, Vancouver
Compiled by Carlo di Carlo, Stockwoods LLP
Q. Which living lawyer do you most admire?
A. There are so many lawyers that I work alongside or against that I admire, so rather than singling
out one of them, I will go a different route and pick Beverley McLachlin. She was the face of the
Supreme Court for a generation, and the clarity of her jurisprudence from all levels of court on
which she served continues to resonate here in B.C.
Q. What is your favourite case?
A. Whenever I revisit Roncarelli v. Duplessis, I am struck by Justice Rand’s eloquent articulation of
the limits on government action and the exercise of discretion. His cogent explanation of the rule
of law continues to apply to situations faced by our clients.
Q. Why did you become a litigator or advocate?
A. I didn’t go into law school with a fixed idea of my intended area of practice, but after being
exposed to litigation while summering at a law firm after my first year of law school, I was hooked.
Q. What is the latest non-legal book
you’ve read?
A. Tommy Orange’s There There.
Q. Which talent would you most like to
have?
A. I wish I could sleep on planes!
Q. What do you like most about your practice?
A. I enjoy the process of learning the ins and outs of our clients’ businesses or circumstances,
organizing their sometimes complicated facts in a way that can be presented to
the court, and figuring out how the law responds to their legal issues.
Q. From whom have you learned the most about the practice of law?
A. The senior lawyers that I work with, Stein Gudmundseth, Q.C., Howard Mickelson,
Q.C., Andrew Gay, Q.C. and Lisa Martz. They are incredibly generous with their time
and are a daily source of wisdom, advice and opportunities.
22 23

Q. What unique knowledge have you gleaned in your practice that you can share with
other young advocates?
A. There is a famous quote from Robert Jackson about the three arguments he made in every
case as Solicitor General of the United States: the one he planned for, the one he actually presented,
and the “utterly devastating” argument that he thought of after going to bed that night.
Whether it’s an examination of a witness or an oral submission, in the hours, days or weeks that
follow you might think of an answer that you wish you had given, or a further question that you
wish you had asked a witness. This doesn’t happen only to young advocates so you shouldn’t be
too hard on yourself. Instead, use these as opportunities to learn.
Q. What is your greatest extravagance
in your everyday life?
A. I like to pick up a decent bottle of wine
every now and then. Another “extravagance”,
though certainly not an everyday
one, is collecting works by emerging artists.
Our artists tend to be underappreciated
in this country, and I encourage
everyone to support these folks in their
regions and beyond. They promote curiosity,
inspire debate, and encourage dialogue
in ways concrete and abstract, and
they certainly deserve our support.
Q. You practised in both Toronto and
Vancouver. What is the difference in
the practice between the two cities?
A. For me, the biggest difference was the
change in subject matter. In Toronto, my
practice involved primarily patent and
trademark disputes, whereas my practice
now is much more general. Aside from
that, there is certainly a difference in the
size of the bar, but both are collegial and
filled with talent.
YOUTUBE SERIES
TAS Legends of the Bar
Erin H. Durant, Borden Ladner Gervais LLP
Pawlitza Discusses Imposter Syndrome in the Practice of Law
and How to Believe in Yourself
Q. What should advocates in the rest of Canada know about the life of a litigator in Vancouver?
A. There are a lot of great opportunities for young lawyers in Vancouver. The breadth of files, big
and small, allow young lawyers here to gain courtroom experience and develop their skills early
on in their careers. The bar is small enough that you will regularly run into the same lawyers, and
so your reputation is especially important.
The TAS archives contain footage
from a number of CPD conferences,
including the 2011
Women in Litigation Conference.
Laurie Pawlitza gave a significant
speech at this event - a portion
of which focused on imposter
syndrome and strategies to get
over the feeling that you do not
belong or are not good enough
to accomplish your goals. Imposter
syndrome impacts many
in the practice of law including
women, minorities and first
generation lawyers. Watch Ms.
Pawlitza discuss her own battle
with imposture syndrome and
her suggestions on how to silence
the negative voice that can
hold you back.
24
25

Toronto Pub Night
Wednesday, January 16, 2019 | Irish Embassy Pub & Grill, Toronto
OTTAWA PRESIDENT’S RECEPTION
Thursday, January 31, 2019 | The Rideau Club, Ottawa
The Honourable David Lametti, Minister of Justice and Attorney General of Canada
Anne M. Turley, Department of Justice
The Honourable David Lametti,
Minister of Justice and Attorney General of Canada
26 27

FIRESIDE CHAT: MENTAL RESILIENCE IN LITIGATION
Thursday, January 31, 2019 | The Vancouver Club, Vancouver
The 5th Annual Kingston Trivia Challenge
Thursday, February 7, 2019 | The Kingston Brewing Company, Kingston
Allison Wolf, Lawyer Coach, Shift Works Strategic Inc, Kaitlyn Meyer, Hakemi Ridgedale LLP, and Brook Greenberg,
Bencher of the Law Society of British Columbia, Partner at Fasken Martineau DuMoulin LLP
28 29

ARNUP CUP
February 8-9, 2019 | TAS Education Centre, Toronto
CARTOON
OH NO!
What’s
happening?
Oh man! I have no
idea what’s going on.
LEGENDARY
GENIUS!!!
Um …Ob-objection?
Sustained.
Arnup Cup Winner: Lakehead University - (From left to right) Witness Eric Blay, Austin Nix, Phaedra Olinyk,
Oralist Nathan Wainwright, Oralist Amanda Gallo.
Are you a TAS member

www.advocates.ca