Keeping Tabs Spring 2019

KEEPING TABS
The Advocates’ Society
Spring 2019

CONTENTS
Chair Chat
Victoria Creighton, Osler, Hoskin & Harcourt LLP
Young Advocates in the News
YASC Report: Vancouver Fireside Chat
Mila Shah, Peck and Company
Humbolt Broncos: Generosity Meets the Law
Breanna Needham, Borden Ladner Gervais LLP
YASC Report: Toronto Wine & Cheese with the Bench
Brittiny Rabinovitch, Blake, Cassels & Graydon LLP
Tax Litigation Settlement Tips
Kristen Duerhammer, KPMG Law LLP
Book Review: Nino and Me
Jeremy Opolsky, Torys LLP and Jon Silver, Torys LLP
In Memoriam: Eric Hoaken
Ranjan Agarwal, Bennett Jones LLP and Carlo Di Carlo, Stockwoods LLP
Interview With Warren Whiteknight
Compiled by Alexandra Shelley, Torys 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.
TAS Legends Of The Bar
David Campbell, The Law Office of David Campbell
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
Chair Chat
Victoria Creighton, Osler, Hoskin & Harcourt LLP
MAY 2
Pub Night
London
MAY 3
ADR Skills for
Family Lawyers
Toronto
MAY 7
Securities
Advocacy
Toronto
It has been a year of brutal cuts to legal
aid and pro bono programs. I sit
on the board of a legal aid clinic in the
Jane and Finch neighbourhood and
have seen first-hand how dedicated
lawyers and community workers
continue to do more with less. (And
it’s not like these operations were
flush with financial support from the
start.) I’ve witnessed the struggle to
decide who to turn away, due to lack
of personnel and resources to meet
the need, and it is heartbreaking.
Which brings me to a bright spot:
the nominees for the Arleen Goss
Award. This award honours a passionate
young advocate with a commitment
to social justice. The Society
had 35 nominees who share a
commitment to engage in various
areas of social justice - immigration,
criminal, family, civil and poverty law
(such as debt, employment, housing,
and community support). Their
stories are extraordinary and exemplify
the best of our profession. It is
a comfort to know that this group
and many other young advocates
just like them are out there.
In this issue of Keeping Tabs, you
will find a tribute to our friend Eric
Hoaken, an interview with young
advocate Warren Whiteknight, an
overview of Saskatchewan’s Informal
Public Appeals Act, tips for settlement
conferences in tax litigation,
a review of the book Nino and
Me: My Unusual Friendship with Justice
Antonin Scalia, recaps of YASC
events from across Canada, young
advocates in the news, and our TAS
“Legends of Bar” video series featuring
a real gem uncovered from the
2004 End of Term Dinner video, that
features The Honourable Ian Binnie,
the late David W. Scott and the late
John P. Nelligan that we know you
will enjoy. 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.
MAY 9
Lessons in
Leadership
Vancouver
MAY 22
Mentoring
Dinner Series
Toronto
MAY 9
Courthouse: The
Effective Witness
Kitchener
MAY 25
Criminal Appellate
Advocacy
Toronto
MAY 14
The Annual Family
Law Bench and
Bar Reception
Toronto
14 MAI
Maitrisez Les
Objections
Montréal
MAY 14
John P. Nelligan
Award
Ottawa
4

The John P. Nelligan Award
for Excellence in Advocacy 2019
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
Safety First, Cannabis Second – Lexpert, January 31, 2019. Halifax-based Pink Larkin partner Jillian
Houlihan discusses the workplace implications of the legalization of cannabis.
Tuesday, May 14, 2019 | Reception: 6:00 p.m. | Dinner: 7:00 p.m.
Shaw Centre, 55 Colonel By Drive, Ottawa | Dress: Business Attire
Please join us as we honour William J. Sammon, Barnes, Sammon LLP
with The John P. Nelligan Award for Excellence in Advocacy.
The John P. Nelligan Award for Excellence in Advocacy is a tribute to a
member of the bar in the Ottawa region. This dinner is a celebration
of excellence for a leading advocate who has demonstrated their
distinction as counsel, made a significant contribution to the profession
of law and to the well-being of the community at large.
Ticket(s) are $135 per person plus HST
Registration closes Wednesday, May 7, 2019
To learn more or register, click here
Replace Lady Barristers room at Osgoode Hall with unisex space, lawyers say – CBC News, February
12, 2019. Breanna Needham, Associate at BLG, explains the impetus and support for a petition
calling for unisex robing rooms at Osgoode Hall to Metro Morning host Matt Galloway.
Online chatter on pro bono – Law Times, March 11, 2019. TAS Members Chris Horkins (Cassels
Brock), Morgan Sim (Pinto James LLP), and Breanna Needham (BLG) tweet their opinions on Chief
Justice Wagner’s calls for the profession to take on more pro bono work.
Supreme Court bars business customers from class-action suit against Telus – The Globe and Mail,
April 4, 2019. Annie Tayyab of Affleck Greene McMurtry LLP provides insight into the Supreme
Court of Canada’s ruling in TELUS Communications Inc. v. Wellman, 2019 SCC 19.
Generously Sponsored by:
6 7
Premier Dinner Sponsor Supporter Cocktail Reception Sponsor Supporter

YASC REPORT: VANCOUVER
Fireside Chat
Mila Shah, Peck and Company
8
On January 31, 2019, young advocates in Vancouver
gathered at the Vancouver Club for a
fireside chat about mental resilience in litigation
with Allison Wolf, a lawyer coach with Shift
Works Strategic Inc., and Brook Greenberg, a
Law Society Bencher and partner at Fasken
Martineau DuMoulin LLP. The discussion was
moderated by Kaitlyn Meyer, an associate at
Hakemi Ridgedale LLP. The event was generously
sponsored by McEwan Partners.
The panel discussion was an important reminder
that legal professionals are at higher
risk for mental health and substance abuse
issues than other professionals. Not only are
we subject to external stressors, such as billing
expectations, client demands, and competition,
but lawyers also tend to suffer from significant
internal pressures to attain unrealistic standards
of achievement. Both Brook Greenberg
and Allison Wolf provided helpful tips for managing
the stress of litigation. Important takeaways
included: being open to talking to someone
about how we are doing; being willing to
listen to others; raising awareness and reducing
the stigma of mental health issues; and adopting
a growth mindset. It was an inspiring discussion
that reminded us that we are not alone. All
litigators face similar well-being challenges, and
we should be open to accessing resources and
support to help cope with them.
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

London Pub Night
Thursday, May 2, 2019 | 5:30 PM - 8:00 PM
The Squire Pub and Grill
109 Dundas Street, London, ON N6A 1E8
This event is open to TAS members, non-member
lawyers, and law school and articling students.
Your business card is your ticket.
HUMBOLT BRONCOS: GENEROSITY MEETS THE LAW
Rules for Those
Who Hold The Gold
Breanna Needham,
Borden Ladner Gervais LLP
Generously sponsored by:
In 2013, Saskatchewan took the lead in passing modern crowdfunding legislation.
This legislation later proved vital to helping the grieving families after the tragic
Humboldt Broncos bus crash, illustrating why it is critical that other provinces follow
Saskatchewan’s example and modernize their charity legislation. The Humbolt
Broncos case also demonstrates the crucial role that Courts and advocates played in
turning what could have been a disastrous dispute over unexpected riches and grief
into a meaningful consultative process.
11

The Legislation
In late 2013, the Legislative Assembly of
Saskatchewan introduced Bill 105: The
Informal Public Appeals Act (the “IPAA”). 1
The IPAA is based on a conference paper
and model legislation from the Uniform
Law Conference of Canada (“ULCC”).
The model legislation describes its purpose
as establishing “a legal framework
for informal public appeals” including
“rules ensuring that donations are appropriated
to the purpose for which
they are made and that the residue of
the donations is suitably disposed of
As Justice Gabrielson
of the Saskatchewan
Court of Queen’s
Bench noted, “It is a
rare occasion that from
great tragedy comes
great generosity.”
once that purpose has been fulfilled or
has become impossible to fulfill.” 2
The IPAA was enacted on January 1,
2015 and addresses three key considerations:
3
1. The creation of a trust as the result of
a public appeal, including the requirement
that funds be distributed in accordance
with the mandate described in
the appeal, as well as the applicable law
(including enforcement mechanisms
for stakeholders);
2. The manner in which refunds or excess
funds are to be dealt with, including
the use to which surplus funds
may be put, and in what circumstances
refunds of excess funds may be issued;
and,
3. The scope of the duties for trustees.
The IPAA In Application
The IPAA was recently put to the test
for the first time following the crowdfunding
efforts that were initiated after
the Humboldt Broncos bus crash in the
spring of 2018.
To call the GoFundMe campaign, started
by a local resident shortly after the
collision occurred, successful is a massive
understatement. The campaign raised
more than $4 million in the two days following
the crash, and became not only
the largest GoFundMe campaign in Canada,
but the second largest campaign in
the site’s history, raising in excess of $15
million CAD. 4 In fact, it was so successful
that it was closed less than two weeks after
the crash. 5
The funds generated by the campaign
resulted in the creation of a not-forprofit
corporation, the Humboldt Broncos
Memorial Fund Inc. (the “HBMFI”). 6
HBMFI’s purpose was to distribute the
funds. As part of this mandate, it filed
an application pursuant to the IPAA,
and was subsequently appointed as
the trustee of the fund. 7
As Justice Gabrielson of the Saskatchewan
Court of Queen’s Bench noted, “It
is a rare occasion that from great tragedy
comes great generosity.” 8 While
in other provinces there would have
been no specifically applicable legislation
with respect to the distribution of
such a tremendous showing of public
kindness, the IPAA served to provide
a framework within which the Court
could provide directions as to the appointment
of a trustee and an Advisory
Committee, 9 consider proposals as
to funds allocation, and approve the
eventual final distribution of funds.
The HBMFI accepted the recommendation
of its Advisory Committee, and filed
their recommendations in November
of 2018, seeking specific distributions to
both the families of the individuals
who perished in the tragedy
and the survivors, with any
remaining funds to be distributed
equally amongst the surviving
victims of the tragedy. While
there were differences in the
amounts allocated to the families
of the deceased and to the survivors
of the crash, the following
was proffered as the methodology,
which was accepted by Justice
Gabrielson for its “simplicity and
reasonableness”:
Finally, we have considered
the logic and fairness of our
recommendations by asking
two simple questions. First,
would any of the 13 survivors
and their families trade places
with any of the other 16 members
in return for any amount
of money? Of course, they
would not. Second, would any
of the 16 families who have
lost a loved one forego any
amount of money if they could
have their sons, daughters or
partners back? Of course they
would, in a heartbeat. 10
The Value of a Framework
That Works
The IPAA turned what could
have become a protracted legal
battle to distribute funds following
a tragedy into a streamlined
process that took mere
months to implement. In many
circumstances, existing legislation
that governs charities and
not-for-profits is simply insufficient,
does not apply to crowdfunding,
or would be extremely
difficult to implement given
the unique circumstances that
surround crowdfunding campaigns,
particularly with respect
to the issue of excess funds. 11
While crowdfunding may
seem like a simple concept, the
reality is that the fast-paced nature
of these campaigns means
that the appeal for donations
itself and the potential issues
that can arise with respect to
the distribution of funds, excess
funds, and refunds are not
always entirely well thought out
or thoroughly considered by
the campaign initiator. As the
ULCC noted, “all of these seemingly
self-evident alternatives
are rife with legal pitfalls.” 12
#HumboldtStrong
Tragedy can strike anywhere,
at any time. So, too, can success.
The confluence of the
two, however, seem to have
the unique ability to bring out
both the best and the worst in
humanity. When tragedy or notable
incidents meet the fastpaced
world of the internet
and social media, crowdfunding
often becomes the default
way to express both interest
and sympathies. The application
of Saskatchewan’s IPAA in
the context of the fundraising
efforts in the wake of the Humboldt
Broncos crash shows just
how important having applicable
legislation to address widespread
generosity can be.
Notes
1. Legislative Assembly of Saskatchewan, Bill 105, An Act Respecting
Informal Public Appeals.
2. ULCC Model Legislation: https://www.ulcc.ca/en/civil-section/108-civilsection-current-topics/1328-uniform-informal-public-appeals-act-2012.
3. The Informal Public Appeals Act, SS 2014 c I-9.0001: http://www.
publications.gov.sk.ca/freelaw/documents/English/Statutes/
Statutes/I9-0001.pdf.
4. Business Insider: The Most Successful GoFundMe campaigns of all time:
https://www.thisisinsider.com/best-gofundme-campaigns-2018-11#2-
funds-for-humboldt-broncos-cad-15172200-11511299-19; GoFundMe:
Funds for Humboldt Broncos (inactive): https://www.gofundme.com/
funds-for-humboldt-broncos.
5. Fund closed as of April 18, 2018. GoFundMe: Funds for Humboldt
Broncos (inactive): https://www.gofundme.com/funds-for-humboldtbroncos.
6. Humboldt Broncos Memorial Fund Inc. (Re), 2018 SKQB 341 at para 4.
7. Humboldt Broncos Memorial Fund Inc. (Re), 2018 SKQB 341 at paras
4, 5, and 7.
8. Humboldt Broncos Memorial Fund Inc. (Re), 2018 SKQB 341 at para 1.
9. The Advisory Committee was comprised of The Honourable Dennis
Ball of Regina, a retired justice of the Court of Queen’s Bench,
traumatic stress expert Kevin Cameron of Lethbridge, Winnipeg
Jets team governor Mark Chipman, Team Canada hockey superstar
Hayley Wickenheiser of Calgary, and head and neck surgeon Dr.
Peter Spafford of Saskatoon.
10. Humboldt Broncos Memorial Fund Inc. (Re), 2018 SKQB 341 at para 12.
11. Humboldt Broncos Memorial Fund Inc. (Re), 2018 SKQB 341 at para 11.
12. Uniform Law Conference of Canada Civil Section, Report of the Working
Group on a Uniform Informal Public Appeals Act, August 2011: https://www.
ulcc.ca/images/stories/2011_pdf_en/2011ulcc0011.pdf (paras 8-12).
13. Uniform Law Conference of Canada Civil Section, Report of the Working
Group on a Uniform Informal Public Appeals Act, August 2011: https://
www.ulcc.ca/images/stories/2011_pdf_en/2011ulcc0011.pdf (para 7).
12 13

YASC REPORT: TORONTO
Toronto Mentoring Dinner Series
Build it They Will Come
Wednesday, May 22, 2019 | 6:00 pm - 8:30 pm
The Advocates’ Society, 2700 - 250 Yonge Street, Toronto
This casual and intimate dinner series brings you face to face with trusted mentors, so you
can ask tough questions and get objective answers that will help you build your career and
your confidence. Our popular speed mentoring format lets you meet a variety of mentors,
grab top tips and make new and lasting connections along the way. The dinner will be tapas
style. Mentors will rotate at each course, allowing you optimal opportunity to hear different
perspectives and insights throughout the evening. To learn more, click here.
Eligible CPD Hours: 2.0 Professionalism Hours.
The Advocates’ Society has been approved as an Accredited Provider of Professionalism Content by
the Law Society of Upper Canada.
Generously sponsored by:
Wine & Cheese
with the Bench
Brittiny Rabinovitch
Blake, Cassels & Graydon LLP
At YASC’s annual Wine & Cheese with the Bench,
which took place on April 10, 2019, sommelier
Sara d’Amato selected a variety of volcanic
wines for an exclusive tasting. The wines came
from a number of unexpected spots around
the world, including Hungary and the Azores.
My personal favourite was a Beaujolais, whose
grapes are cultivated using astrology—the
more you know! The cheeses were also a hit
and paired nicely with the wine selections.
The highlight of the evening, however, was
the company. Young advocates from all practice
areas mingled and many new connections
were made. The bench was well represented,
with members in attendance from the Superior
Court of Justice, the Ontario Court of Justice,
and the Court of Appeal. Young advocates, myself
included, had the unique opportunity to
speak with members of the bench one-on-one
and in small groups. Hard-hitting topics were
covered, from how to be an effective oral advocate
as a junior lawyer, to the relative merits
of hard versus soft cheeses. In all, YASC put together
a highly enjoyable evening. While it was
my first time attending this annual event, it will
certainly not be my last.
15

TAX LITIGATION SETTLEMENT TIPS
A Panel Discussion on Tax
Litigation: Tips for
Settlement Conferences
Kristen Duerhammer, KPMG Law LLP
The inaugural event for the Tax Litigation Practice Group was an insightful
panel discussion followed by a lively networking reception. Speaking to an
in-person audience in Toronto and participants across Canada by webcast,
the Honourable Justice David Graham (Tax Court of Canada), Monica Biringer
(Osler, Hoskin & Harcourt LLP), Henry Gluch (Department of Justice), and
moderator Ed Kroft, Q.C. (Bennett Jones LLP) shared their experiences with
settlement conferences.
My key takeaways from the discussions were:
· Types of cases: Settlement conferences generally
work best for cases that involve several issues,
more than a pure question of law, where
creative thinking can help the parties come to
a principled settlement. Although they work
well for factual disputes, this is less true where
credibility is at issue.
· Timing: A good time to schedule a settlement
conference is soon after completing discoveries
and undertakings. A settlement conference will
not be scheduled unless one party has made a
written offer of settlement and the other party
has replied to it in writing.
· Settlement briefs: Briefs should distill a case to its
core themes within the ten-page limit. Parties to
complex, multi-issue cases may request dispensation
for a longer brief by writing to the Court.
Summary charts and tables are encouraged and
could be attached to the brief as an appendix.
· Preparation: Counsel should prepare
parties to be conversant with the issues,
anticipate questions and criticism
about their positions from the
Court, and understand what offers
they are willing to accept. The parties
should come prepared to make calculations
during the course of the conference
to assess the merits of the
offers discussed.
· Structure: Each judge has their own
style, varying from conferences that
are entirely plenary to conferences
where the parties are entirely segregated
and the judge shuttles between
the two sides.
· Experts: Where expert evidence is
important, expert reports should
be provided to the settlement
conference judge before the settlement
conference, potentially in
combination with pre-hearing expert
“hot tubbing”.
· Striking a deal: While dollar values
matter to both parties, one approach
to arriving at a settlement
may be finding a number acceptable
to the taxpayer that coincides
with the principles acceptable to
the Crown. While the parties are
expected to attend the settlement
conference with a client who has
the authority to settle the appeal,
there may be circumstances where
the representative of the Crown has
to obtain approval for the deal. The
best practice is to document the
agreement reached before leaving
the conference.
I look forward to using these ideas
in practice and attending the next Tax
Litigation Practice Group event.
16 17

BOOK REVIEW
A Lexicographer’s Hagiography
Nino and Me:
My Unusual Friendship with
Justice Antonin Scalia
by Bryan A. Garner
Jeremy Opolsky, Torys LLP
and Jon Silver, Torys LLP
What do the editor of Black’s Law Dictionary, Bryan Garner; the author
of Infinite Jest, David Foster Wallace; and the pugnacious U.S. Supreme
Court Justice, Antonin Scalia, have in common? They were all self-identified
‘snoots’– syntax nudnik[s] of our time, people that care deeply about
words, usage, and grammar. 1 Through their shared love of language, they
became mutual friends, forming unexpected personal bonds. These three
characters, and the English language itself, take centre stage in Bryan
Garner’s 2018 memoir, Nino and Me: My Unusual
Friendship with Justice Antonin Scalia. 2
Garner recounts his almost decade-long relationship
with the late Justice Scalia. What began
with Garner interviewing Justice Scalia about
writing—on Foster Wallace’s urging—became
a collaboration that produced two books and
countless speaking engagements. Nino and Me’s
narrative provides a glimpse into the life of a U.S.
Supreme Court judge and an intimate portrayal
of Justice Scalia. We Canadian lawyers know Scalia
for his conservative decisions, blistering dissents,
and originalist approach to constitutional
interpretation. But this memoir is replete with
humanizing details about the judge, including
minutia you never thought you’d want to know
(such as Scalia’s workout routine, 3
whether he
sang in the shower, 4 his drink of choice, 5 and his
thoughts on Tom Hanks 6 ).
Despite Garner’s clear adoration for Scalia, the
judge’s darker side comes through in the memoir.
For example, Garner explains that his
collaboration with Scalia nearly ended
before it began. Scalia had agreed
to write a book with Garner about the
art of persuasion. 7
Garner had sent
Scalia a portion of the manuscript by
e-mail, attaching it as a WordPerfect
file (yes, Garner still used WordPerfect
in 2007). But Scalia could not open
the file and he mistakenly thought
that the supporting material Garner
had also attached was itself the manuscript.
Scalia hated it and abruptly
ended their collaboration. When the
miscommunication was resolved, and
the partnership restored, Scalia did
not apologize. He never did. As Garner
explains, “I came to understand
... that I might need to show a heightened
sense of fortitude, tenacity, and
understanding in this particular relationship.
I might occasionally feel
visceral shocks coming my way.” 8 And
the visceral shocks appear throughout
the book as a result of Scalia’s
quick fuse and irritability.
One also gets the sense that Garner
and Scalia’s relationship was, to
put it euphemistically, unbalanced.
Garner catered to Scalia, whether by
apologizing for matters outside of his
control 9 or by doing ill-advised leg extensions
that Scalia had encouraged,
despite Garner’s doctor cautioning
otherwise. 10
Garner’s sycophantic behavior
at times is mirrored in the tone
of his book. This can be seen in the
chapter on Garner’s wedding, a ceremony
that Scalia officiated. Garner
seemingly spent more time during his
big day ensuring Justice Scalia’s comfort
than focusing on the wedding itself.
Indeed, Garner had to convince
Scalia to stay through the toasts at
the rehearsal dinner because Scalia
18 19

did not want to sit through
the speeches. 11
But in their writing projects,
Garner was far less obsequious.
It is here that the real
star of the book emerges: the
English language. In describing
Scalia and Garner’s intellectual
spars, the memoir
shines. Garner is a lexicographer;
he compiles dictionaries
and usage books, such as
his famous treatise, Garner’s
Modern English Usage. Both
he and Scalia are also logophiles:
lovers of words. Garner
recounts his debates with
Scalia about the proper usage
of the word “shall”, 12
the
meaning of the Greek phrase
hapax legomenon, 13
the misuse
of the word thusly, 14 and
Scalia’s preference for the
passive voice in certain circumstances,
despite Garner’s
strident opposition. 15
There were a few topics that
Garner and Scalia could not
agree on. Garner favours contractions,
gender-neutral language,
and footnotes over intext
citations. Scalia dissented
on all three points. Unlike in his
personal relationship with Scalia,
Garner would not bend entirely
to Scalia’s linguistic preferences.
Rather than attempt
to reach consensus, Garner
and Scalia debated these topics
in their books and at public lectures.
16 Garner and Scalia’s passion
for these technical issues
that the Canadian Bar continues
to debate is palpable. 17
To be privy to these debates—to
listen to Garner
and Scalia’s linguistic banter—is
what makes this book
worth reading. Garner and
Scalia’s command of language,
always debating and
selecting the right word for
the circumstance, shows a
diligence and dedication rarely
seen in the difficult field of
legal writing. Garner practices
what he preaches, writing
an almost-fast paced, easily
1. David Foster Wallace coined
this term in his April 2001
article, “Tense Present”,
published in Harper’s Magazine.
2. Bryan A. Garner, Nino and Me:
My Unusual Friendship with
Justice Antonin Scalia (New York:
Threshold Editions, 2018).
3. See p. 287. Scalia’s workout
pales in comparison to RBG’s
routine (see Ben Schreckinger,
“I Did Ruth Bader Ginsburg's
Workout. It Nearly Broke Me.”
(February 27, 2017), Politico:
https://www.politico.com/
magazine/story/2017/02/rbgruth-bader-ginsburg-workoutpersonal-trainer-elena-kaganstephen-breyer-214821).
4. He did. See p. 112.
5. Always a Campari with soda.
See e.g. p. 140.
6. He was a big fan. See p. 336.
7. What became, Antonin Scalia
& Bryan A. Garner, Making
Your Case: The Art of Persuading
digestible memoir, despite its
dry subject matter. He applies
lessons designed for legal
briefs, like using sub-headings
and sub-sections in each
chapter and clean prose, to
move the reader along. We
can all learn from Garner’s
model of clear and thoughtful
writing. And while we may
disagree with Justice Scalia’s
biting and often caustic decisions—and
we certainly do—
his love of language is undeniable.
And inspiring.
Judges (St. Paul: West Group,
2008).
8. p. 53.
9. See e.g. p. 273, where Scalia
had to wait a few extra minutes
for another companion before
departing from a hotel; 305-
306, where Garner played the
role of waiter to ensure Scalia
got a drink.
10. p. 306.
11. p. 142.
12. pp. 18-19.
13. This is defined as a term found
only once in the written record
of a language, although Scalia
and Garner even disagreed on
this definition. See pp. 37-39.
14. ‘Thus’ is already an adverb, so
adding the –ly is unnecessary.
See p. 168.
15. pp. 74-75.
16. pp. 77-80.
17. See e.g. Caroline Mandell,
“The great footnote debate”
(2019) 37 Ad. Soc. J. 21.
Summer Trial
Advocacy
College
June 6 & 7, 2019 | 9:00 am - 4:30 pm
The Advocates’ Society Education Centre, 2700-250 Yonge Street, Toronto
Master the art of trial advocacy at this intensive two-day workshop. This handson program will test
and refine your skills in case analysis, opening statements and closing arguments, examinationin-chief
and cross-examination. To learn more visit www.advocates.ca or click here.
Eligible CPD Hours: 13 CPD Hours
(5.75 Professionalism; 7.25 Substantive)
20 21

IN MEMORIAM
WWED:
What Would Eric Do?
Ranjan Agarwal, Bennett Jones LLP
and Carlo Di Carlo, Stockwoods LLP
In February, our friend and mentor Eric Hoaken passed away. Though
we anticipate much will be said to honour Eric’s life and his contribution
to our bar, we wanted to honour him here, in our own way.
Eric was a mentor to both of us early in our careers and, in that
role, shared many memorable tips and tricks that have stuck with us
years into our respective practices. To pay Eric’s mentoring forward,
and to memorialize his contribution to our personal professional development,
we present WWED: What Would Eric Do?
#1: Read the rules.
Eric wasn’t a “read a rule day” lawyer. But
he understood that, like your vitamins, a
daily dose of the rules was good for you.
For example, did you know that rule 4.06(3)
(b) allows you avoid filing an exhibit by
showing it to the judge at the hearing? Or
on some motions, rule 39.02(4)(b) makes
the examining party liable for the costs of
a cross-examination? The rules have plenty
of gems like these buried in them but
you can’t use them if you don’t read them.
#2: But don’t be governed by the rules.
Ranjan always insisted on the admit/deny/
no knowledge paragraphs in statements
of defence because, well, it’s in the form.
Eric preferred the “deny everything” formulation.
As Eric would remind Ranjan,
rule 1.06 allows you to vary the forms as
circumstances require. Eric understood
that the rules were important but flexible
enough to allow for good advocacy.
#3: Use security for costs motions
strategically.
Eric loved moving for security for costs. We
think he took some pleasure in surprising
an unsuspecting plaintiff (or plaintiff’s
lawyer) with a demand they deposit thousands
of dollars into court for the right to
prosecute their action. But he also knew
that a well-timed security for costs motion
can change the flow of the litigation—the
notion of adverse costs goes from a theoretical
possibility at the end of a distant trial
to a real actuality shortly after pleadings
close. All of a sudden, resolution seemed
much more possible.
#4: Examine other witnesses.
Almost as much as moving for security for
costs, Eric loved combing through a record
to find an unsuspecting individual to target
with a rule 39.03 notice. Strategically forcing
a co-worker, friend, colleague or, better, disgruntled
ex-business partner to testify in the
moving party’s motion or application usually
yielded helpful evidence but, just as often,
led to some sort of resolution.
#5: Good ethics is good advocacy.
Eric was a highly strategic lawyer. But
he also understood (and reminded us
often) that our reputations mattered
more than any one case or client. Our
professional obligations tend to recede
to the back of our minds the further we
get from articles, but Eric often reminded
himself of the Rules of Professional
Conduct that govern our obligations to
the courts and adverse parties, to ensure
that our collective reputations remained
intact in hard-fought litigation.
#6: Don’t forget to lift those around
you up.
Last, but not least, as good a lawyer as Eric
was, he was an even better mentor. Eric
was always sure to lift up those around
him. Many of his juniors have stories of
Eric sending the work they prepared for
him directly to clients, along with a note
that the memo was prepared by “an up
and coming star”. This ability to share
kudos with others spoke volumes of his
self-confidence. It also made his juniors
feel that they were a valuable part of the
team. Eric was an accomplished leader
and mentor in many other ways as well.
Whenever a colleague had a new addition
to the family, there was Eric with
a welcoming gift; when someone had
a hearing, Eric sent a good luck note;
when it was time for a student BBQ, Eric
offered to host.
Eric was a busy lawyer, but he was a
shining example to all of us that we can
never be too busy to be a good colleague,
a mentor and a builder of comradery in
our profession.
22 23

Do you know a young advocate that we
should feature in an upcoming Interview?
Click here to email us with your suggestion.
Q. What is your year of call?
A. 2014
Q. How would your colleagues describe you?
A. As something between strident and difficult, and
persuasive and fair.
Q. What is your favourite case?
A. Tilden Rent-A-Car Co. This is a contracts and waiver case that stands for the proposition that a
signatory will not be held to onerous terms under certain circumstances, particularly if they were
not brought to their attention. I close my eyes when I sign waivers – this case is why.
Q. What is your greatest extravagance in your
everyday life?
A. Nice socks. Total game changer.
Q. Which talent would you
most like to have?
A. Patience
INTERVIEW
In conversation
with Warren Whiteknight
Bergeron Clifford LLP, Kingston, Ontario
Compiled by Alexandra Shelley, Torys LLP
Q. Which word do you prefer: litigator or advocate?
A. Litigator. In my mind to litigate connotes constant motion – it’s very active. Litigation also
spares no room for emotion, unlike an advocate who seems to take a stake in their cases. I have
lots of empathy for my clients, particularly behind closed doors. However in the same breath I tell
all my clients that I’m not a cheerleader, and the law is what it is, not what I would have it be, and
the law certainly has no emotion.
Q. What is the latest non-legal book you’ve read?
A. Hillbilly Elegy by J.D. Vance. What is missing in our modern political and societal discourse is
nuance and texture, and the mingling of disparate realities. J.D. Vance is an Ivy League educated
lawyer from rural poor white Appalachia. His book speaks to the complexity of one infamous and
misunderstood area in North America.
Q. Why did you become a litigator or advocate?
A. I like being on my feet. I like helping people. The legal system is inaccessible to most people,
and when I can help my medical malpractice or personal injury clients feel empowered and
vindicated I feel great.
Q. What would you consider your
greatest achievement?
A. My wife and kids.
Q. Who or what is the greatest love
of your life?
A. Without a question my wife Holly.
Q. What is your most distinctive characteristic?
A. My level of activity and its diversity. I’m a farmer and a lawyer. I’m just as likely to
wear poop-covered boots as Allen Edmonds and a Zegna suit.
Q. If you weren’t a lawyer what would you be?
A. A rock climber or snowboarder if I had the talent to get paid for it. Otherwise I’d be
happy just to camp and hunt and hike.
24 25

Q. Which living lawyer do you most admire?
A. Ted Bergeron. My mentor. A great lawyer and person. Always can be counted on, including
when it’s time to enjoy a good meal.
Q. What unique knowledge have you gleaned in your practice that you can share with
other young advocates?
A. Listen. Try and figure out how other people think. Put things in a universal and simple
language, not just your language. Being clever is good, being clear is better.
Q. What is your favourite Kingston take-out spot?
A. Paradiso Pizza. My father in law still tells stories about how the pie is so large it has to ride in
the trunk.
TAS LEGENDS OF THE BAR
Q.What do you like most about
your practice?
A. My colleagues.
Q. What is your greatest fear
in practice?
A. Spending too much time away from
my kids while they’re little.
End of Term Special:
The Art of Persuasion
David Campbell, The Law Office of David Campbell
26
Q.What should people know about the life of a lawyer in Kingston, Ontario?
A. It’s terrible. Don’t come check it out. Concrete and high rises are much better than
my lazy commute, affordable lifestyle and the collegial bar. I dislike playing soccer on
my lunch break and sneaking down to the Adirondacks on the weekend when I could
be stuck on the DVP.
In this 2004 EOT special, then Supreme
Court Justice, The Hon.
Ian Binnie, CC, Q.C., along Ottawa
legends of the bar, the late
David W. Scott, Q.C. and the late
John P. Nelligan, Q.C., demonstrate
the power of persuasion
techniques in under 2½ minutes.
Special thanks to BLG Ottawa,
Nelligan O’Brien Payne LLP, and
Justice Binnie for giving us their
blessing to share this clip. Also a
big thank you to Tom Curry, Navin
Khanna, and William McDowell
for creating this timeless piece of
TAS history 15 years ago.
27

SKATING THE CANAL SOCIAL
Monday, February 18, 2019 | Rideau Canal & Canal Ritz, Ottawa, ON
DEUXIÈME ÉDITION DU PUB NIGHT WOODS
Wednesday, February 20, 2019 | Le Bier Markt, Montréal, QC
28 29

TIPS FOR SUMMERING, ARTICLING, AND CLERKING
Wednesday, March 6, 2019 | University of British Columbia, Vancouver BC
PEEL PUB NIGHT
Wednesday, March 6, 2019 | The Wilcox Gastropub, Mississauga, ON
CARTOON
30 31

TRIVIA CHALLENGE FOR CHARITY
Thursday, March 21, 2019 | The Hot House Restaurant and Bar, Toronto, ON
WINE & CHEESE WITH THE BENCH
Wednesday, April 10, 2019 | The Advocates’ Society, Toronto, ON
Winners – Last Year’s Champions, Henein Hutchison LLP
Trivia MCs – Chris Kinnear Hunter, Lenczner Slaght
and Claudia Cappuccitti, Dyer Brown LLP
The Adventure Club, Costa Law Firm
32 WEIR BETTER THAN GOOGLE,
Conflict Cheques, Cassels Brock & Blackwell LLP
33
WeirFoulds LLP

www.advocates.ca