Advocacy Matters - May 2019

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The Advocates’ Society<br />

MAY <strong>2019</strong>

What the TWEET is this?<br />

When you see this icon, throughout the publication,<br />

click on it to see what members are tweeting about.<br />


Mastering the art and craft of advocacy is a career-long commitment and we are<br />

here to help. The Advocates’ Society has been the premier provider of advocacy<br />

skills training for over 30 years. We are proud to provide lawyers across Canada<br />

with the training and the confidence they need to execute on their feet when it<br />

counts. The Judge will notice…your clients will too.<br />

04<br />

07<br />

08<br />

11<br />

15<br />

21<br />

22<br />

25<br />

28<br />

From the Editor<br />

Lauren Tomasich, Osler, Hoskin & Harcourt LLP<br />

TAS Report - Vancouver<br />

Samantha Chang, McEwan Partners LLP<br />

10+ Committee<br />

Emily Lawrence, Paliare Roland Rosenberg Rothstein LLP<br />

The Future Of <strong>Advocacy</strong><br />

Brent J. Arnold, Gowling WLG<br />

Examining Liability<br />

Ibrahim Jamie Arabi (JD, <strong>2019</strong>) and Alysia M. Christiaen, Lerners LLP<br />

Signature Conference<br />

Kevin Westell, Pender Litigation<br />

TAS Report - Calgary<br />

Laurie Livingstone, Cassels Brock<br />

Nova Scotia Judicial Retirement Gala<br />

Sheree L. Conlon, Q.C., Stewart McKelvey<br />

In Memoriam - David W. Scott, O.C., Q.C<br />

Erin Durant, Borden Ladner Gervais LLP<br />

Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.<br />

Editor: Lauren Tomasich, Osler, Hoskin & Harcourt LLP, Ltomasich@osler.com<br />

The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.<br />



(Click on the program to learn more)<br />


End of Term<br />

Lauren Tomasich, Osler, Hoskin & Harcourt LLP<br />

JUNE 6<br />

Summer Trial<br />

<strong>Advocacy</strong> College<br />

(Toronto)<br />

JUNE 6<br />

Wine & Cheese<br />

Social with<br />

the Bench<br />

(Calgary)<br />

JUNE 7<br />

Writing to<br />

Win With<br />

Steven Stark<br />

(Halifax)<br />

4<br />

Our end of term edition of <strong>Advocacy</strong> <strong>Matters</strong><br />

celebrates the amazing presence of The<br />

Advocates’ Society across the country. In the<br />

past few months, TAS has hosted events from<br />

coast to coast, and the broad consensus from<br />

those that report on the events in this edition<br />

is that TAS consistently brings collegiality,<br />

positivity and inspiration to our advocacy<br />

community. It is impressive to see how TAS<br />

has grown, and how TAS members of all vintages<br />

have contributed to its development. In<br />

short, this edition reflects that TAS is truly a<br />

preeminent national organization.<br />

For another dose of inspiration, check out<br />

Erin Durant’s tribute to David W. Scott, O.C.,<br />

Q.C, one of the great advocates and leaders<br />

of our profession. Erin gathered a number<br />

of “lessons” that many members of the legal<br />

community learned from David over the<br />

years, all of which are not only important<br />

reminders but will make you smile.<br />

Finally, after two years as editor of <strong>Advocacy</strong><br />

<strong>Matters</strong>, I’m passing the reigns<br />

over to Brent Arnold of Gowling WLG<br />

(Canada), who has been a regular contributor,<br />

and will no doubt continue to<br />

put his knowledge and wit to good use<br />

as editor. This has been an amazing way<br />

to engage with the advocacy community,<br />

and I’ve loved working with and hearing<br />

from many of you over the years. Every<br />

editor’s note has given me an opportunity<br />

to see the amazing things that our<br />

colleagues are doing, and reflect on why<br />

this is truly a wonderful profession. I look<br />

forward to continuing to be an avid <strong>Advocacy</strong><br />

<strong>Matters</strong> reader and to being in<br />

touch with everyone through TAS!<br />

JUNE 11<br />

Class Actions<br />

<strong>Advocacy</strong><br />

(Toronto)<br />

JULY 17<br />

Unflappable:<br />

Presentations To<br />

Help You Think on<br />

Your Feet<br />

(Toronto)<br />

JUNE 11<br />

The Inside Story<br />

(Toronto)<br />

AUG 13<br />

Cross-Examinations<br />

Skills Workshop<br />

(Toronto)<br />

JUNE 20<br />

End of Term<br />

Dinner <strong>2019</strong><br />

(Toronto)<br />

JUNE 18<br />

Summer Solstice<br />

Celebration of<br />

Women Advocates<br />

(Calgary)<br />

JUNE 27<br />

Estates Litigation<br />

Summer Kick-Off<br />

Reception<br />



Monday, April 8, <strong>2019</strong> | UBC Robson Hall, British Columbia<br />


Speaker: The Hon. Justice Suzanne Côté, Supreme Court of Canada<br />

Women in Litigation<br />

Symposium Vancouver<br />

Samantha Chang, McEwan Partners LLP<br />

On April 8, <strong>2019</strong>, The Advocates’ Society hosted Women in Litigation Symposium in Vancouver.<br />

The sold-out event, generously sponsored by Bentham IMF and McEwan Partners,<br />

was chaired by Miranda Lam and Claire Hunter, Q.C. The day featured a series of speakers,<br />

panels, and discussions on the issues faced by female litigators and strategies to overcome<br />

them, along with a keynote speech from the brilliant and charming Justice Suzanne Côté of<br />

the Supreme Court of Canada.<br />

A number of panels featured practical tips for dealing with challenges unique to female litigators.<br />

Other panels, including the panel featuring Justices Griffin, Saunders, and Sharma,<br />

focused on practical advocacy tips for developing your own style and making your mark in<br />

the courtroom. Tracey Cohen, Q.C., Heather Jones, and Margaret Mereigh emphasized that<br />

the concept of “success” is a highly individualized concept and made the important point<br />

that we each need to regularly take the time to assess (and re-assess) what success means<br />

to us and to make the necessary decisions to achieve our own versions of success.<br />

The highlight of the Symposium was the dynamic keynote speech from Justice Côté, which<br />

featured not only the history of female litigators and judges generally, but also the inspiring<br />

story of her own journey from buying half of her employer’s practice as an articled student<br />

in Gaspe, to being elected the head of Osler’s litigation group in their Montreal office, and<br />

finally being appointed directly from private practice to the Supreme Court of Canada. All<br />

in all, the Symposium featured both great advice and inspiration for female litigators, was a<br />

wonderful way to spend a day investing in my practice and my advocates, community.<br />

6 Speakers: Matt Maurer, Torkin Manes LLP, Sony Gokhale, General Counsel, The Supreme Cannabis Company<br />




Wednesday, March 27, <strong>2019</strong> | Leña Restaurante, Ontario<br />

10+ COMMITTEE<br />

Mid-Career Women’s Social<br />

Emily Lawrence,<br />

Paliare Roland Rosenberg Rothstein LLP<br />

The 10+ Committee hosted the first annual Mid-Career Women’s Social on March 27, <strong>2019</strong><br />

at the upstairs event space at Leña Restaurante. This complimentary event targeted women<br />

lawyers 8-18 years of call. The 10+ Committee conceived this event to address a gap in<br />

socializing and networking opportunities among women lawyers in mid-career. As women<br />

continue to leave the profession in startling amounts in their early years of practice, the 10+<br />

Committee wanted a place for mid-career women to discuss the highlights and challenges<br />

women face as senior associates and new partners.<br />

Leña Restaurante provided a beautiful back-drop for mingling, over sparking wine and<br />

appetizers, thanks to our sponsors, PwC and Neesons. The space hummed with conversation,<br />

and the food was plentiful and delicious. The attendees represented not only senior<br />

associates and junior partners from large firms, but also many mid-career lawyers from<br />

the criminal bar, solo practices and small firms, in-house, and government. It was fascinating<br />

to hear different perspectives on how to build and sustain a successful practice from<br />

mid-career women with such a diversity of practice areas and workplaces. Many challenges<br />

of mid-career practice – business development, taking first chair, and mentoring juniors –<br />

exist regardless of practice area or workplace. It was inspiring and comforting to share experiences<br />

and tips, and even to vent a little too. As one of the organizers, I was delighted to<br />

hear from several attendees this event filled a need for mid-career women to expand their<br />

professional networks. Looking forward to this event next year!<br />

8 9

Save Paper.<br />

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Go Digital.<br />


Click here to<br />

opt-in to receive<br />

the digital version of<br />

The Advocates’ Journal<br />

Privilege at the Border—<br />

Should Lawyers be Resorting<br />

to “Burner” Phones?<br />

Brent J. Arnold, Gowling WLG<br />

It used to be only criminals resorted to “burner” phones—i.e. phones with no email, no<br />

texts, no contacts saved to them, to stymie law enforcement in the event of search and seizure.<br />

Lawyers crossing the border may now have to resort to these or more complicated<br />

workarounds to protect solicitor–client privilege.<br />

The Office of the Privacy Commissioner of Canada recently noted that “Canadian courts<br />

have not yet ruled on whether a border officer can compel a person to turn over their password<br />

and on what grounds, so that their electronic device may be searched at a border<br />

crossing” but that CBSA policy requires such searches not be treated as routine; rather, they<br />

should only be conducted where “evidence of contraventions may be found on the digital<br />

device or media.” CBSA officers are empowered to examine data stored on a device but are<br />

10 11

not supposed to use a device’s<br />

Wi-Fi or cellular capability to<br />

access data online or in the<br />

cloud. The OPC recommends<br />

travellers leave unnecessary<br />

devices at home or limit what<br />

is actually stored on the device<br />

as much as possible when<br />

crossing the border.<br />

Moreover, U.S. border agents<br />

have broad powers of inspection<br />

and can ask travellers for<br />

their passwords in the course<br />

of routine random inspections<br />

and without any evidence of<br />

contraventions.<br />

This issue, while ranging from<br />

nuisance to grave intrusion for<br />

ordinary Canadians, presents<br />

special complications for lawyers<br />

crossing the border with<br />

laptops and tablets containing<br />

client documents and correspondence<br />

and phones with<br />

work emails and client contact<br />

information. The recent seizure<br />

of a Canadian lawyer’s<br />

cellphone and laptop provides<br />

a worst-case scenario for conscientious<br />

lawyers crossing into<br />

the U.S. A CBSA agent demanded<br />

passwords from the lawyer<br />

in order to search his phone and<br />

laptop. The lawyer did as some<br />

of us have advised lawyers to<br />

do in this circumstance (generally<br />

envisioning encounters with<br />

Homeland Security, not Canada’s<br />

own border agents): he<br />

explained that that the devices<br />

contained solicitor-client privileged<br />

material and that providing<br />

them access would breach<br />

his professional obligations.<br />

The agent confiscated the devices<br />

to send them to be hacked in<br />

a government laboratory. The<br />

lawyer was forced to surrender<br />

the devices with the near certainty<br />

that clients’ confidentiality<br />

would be compromised, rather<br />

than becoming the instrument<br />

of the compromise himself.<br />

Ontario’s Rules of Professional<br />

Conduct set out a clear duty of<br />

confidentiality that binds the<br />

lawyer confronted by such demands<br />

at the border:<br />

3.3-1 A lawyer at all times<br />

shall hold in strict confidence<br />

all information concerning<br />

the business and<br />

affairs of the client acquired<br />

in the course of the professional<br />

relationship and shall<br />

not divulge any such information<br />

unless<br />

(a) expressly or impliedly<br />

authorized by the client;<br />

(b) required by law or by order<br />

of a tribunal of competent<br />

jurisdiction to do so;<br />

(c) required to provide the<br />

information to the Law<br />

Society; or<br />

(d) otherwise permitted by<br />

rules 3.3-2 to 3.3-6.<br />

None of rules 3.3-2 to 3.3-6<br />

provide a lawyer in this predicament<br />

any protection in this scenario.<br />

It is not at all clear that a<br />

demand by CBSA agent—who is<br />

not an officer of the court, not<br />

conducting a police investigation<br />

and holding a warrant, and<br />

need not have any grounds beyond<br />

mere suspicion to search<br />

a lawyer’s devices—fits within<br />

the rule 3.3-1(b) circumstance<br />

of disclosure “required by law.”<br />

Moreover, rule 3.3-1.1 makes<br />

clear that a lawyer making disclosure<br />

because it is “required<br />

by law…shall not disclose more<br />

information than is required.”<br />

This implies an exercise of judgment<br />

and control by the lawyer<br />

that the all-or-nothing demand<br />

for passwords makes impossible.<br />

The ROPC commentary on<br />

these rules offers no guidance<br />

in these unique and extreme<br />

circumstances.<br />

For now, the best lawyers<br />

can do for their clients is to<br />

choose clients’ safety over the<br />

ability to serve them with ease<br />

and convenience: stop crossing<br />

borders with devices containing<br />

client information and<br />

documents, and ensure they<br />

don’t have the ability to comply<br />

with a demand to access privileged<br />

information on demand.<br />

Passengers who don’t wish to<br />

share their social media data<br />

with Homeland Security are<br />

often given this advice: change<br />

your passwords to ones too<br />

random to remember, leave<br />

them with friends in Canada,<br />

set your apps to forget and not<br />

retain passwords, and then delete<br />

them from your devices.<br />

Once across the border, download<br />

your apps and call home<br />

for your passwords. Reverse<br />

and repeat on your way out<br />

of the country. Lawyers might<br />

take this a step farther: ensure<br />

you can only access client files<br />

via VPN and that you can only<br />

access your VPN with a token<br />

code that you can only obtain<br />

by calling your office. Every<br />

time you need to log on. Day<br />

or night. Delete client contacts<br />

from your phone and look<br />

them up via VPN when you<br />

need to call or email.<br />

Obviously none of this fits<br />

the prevailing narrative of<br />

technology improving the<br />

speed and efficiency of the<br />

practice of law.<br />

It is likely that recent and<br />

higher-profile cases involving<br />

non-lawyers will test CB-<br />

SA’s authority to demand<br />

passwords and access to<br />

devices, but these cases will<br />

be premised on violations of<br />

the rights of the passengers<br />

who own the devices, not the<br />

rights of clients relying on<br />

the discretion of their lawyers<br />

to protect clients’ identities<br />

and information when<br />

travelling. Perhaps it is time<br />

for lawyers to take this issue<br />

to the courts themselves.<br />

12 13

The Inside Story<br />

<strong>Advocacy</strong> at the Intersection of Law and Psychology<br />

Tuesday, June 11, <strong>2019</strong><br />

5:30 PM - 8:00 PM<br />

Arbitration Place, 333 Bay Street, Suite 900, Toronto, ON<br />

Join us for the 2nd installment of our new series created by mid-career advocates for<br />

mid-career advocates. Each session features knowledgeable speakers who will engage in<br />

thought-provoking discussions on law and society, followed by a casual reception. On June<br />

11th our guest speakers will explore the intersection of psychology and advocacy.<br />

Speakers:<br />

Ronald D. Manes, Torkin Manes LLP<br />

Dr. Ken Shulman, Sunnybrook Health Sciences Centre<br />

The Advocates’ Society Members: Complimentary<br />

Non-member lawyers: $20.00 (including HST)<br />

Register<br />


Waivers of Liability in<br />

Ontario: A Legal Primer<br />

Ibrahim Jamie Arabi (JD, <strong>2019</strong>) and<br />

Alysia M. Christiaen, Lerners LLP<br />

From skydiving to car rental services, companies have several resources<br />

to mitigate their exposure to liability. A common method is the waiver of<br />

liability. Also known as “exclusion clauses,” waivers of liability transfer risk<br />

from the company to the consumer by eliminating the consumer’s right to<br />

sue the company.<br />

Waivers of liability are relevant because more Canadians are participating in<br />

traditionally “risky” activities. For instance, indoor amusement and trampoline<br />

parks have become popular in Ontario. Additionally, the immersion of technology<br />

in contract formation deserves attention.<br />

This article examines recent changes regarding the formation and execution<br />

of these waivers. We begin by assessing the electronic nature of these<br />

contracts, finding that they are as enforceable as traditional, paper contracts.<br />

We then determine what constitutes an enforceable waiver of liability, pursuant<br />

the Supreme Court of Canada’s (“SCC”) decision in Tercon Contractors Ltd v<br />

Generously Sponsored By:<br />

An all-encompassing approach 15

British Columbia. 1 While little has<br />

changed since that decision, the<br />

public policy criterion concerning<br />

a parent’s ability to waive<br />

the rights of their children is far<br />

from settled law in Ontario.<br />

Abandoning the Pen for a<br />

Mouse: Electronic Signatures<br />

Although there are logistical<br />

differences between signing<br />

and clicking a mouse, courts<br />

view both methods as acceptable.<br />

Ontario’s Electronic Commerce<br />

Act respects the validity<br />

of electronically-formed contracts<br />

and electronic signatures. 2<br />

The Act states that contract formation<br />

and operation can be<br />

expressed using electronic information,<br />

documents, or acts,<br />

such as touching a computer<br />

screen. 3 Additionally, section<br />

19(3) of the Act provides that a<br />

contract is not prima facie invalid<br />

because of its electronic form. 4<br />

Currently, there are no decisions<br />

that contemplate the validity<br />

of electronic signatures in<br />

Ontario. However, the Queen’s<br />

Bench of Saskatchewan in<br />

Quilichini v Wilson’s Greenhouse<br />

affirmed the province’s legislation,<br />

which is substantially<br />

similar to Ontario’s Electronic<br />

Commerce Act. 5 In that decision,<br />

the Court stated that “[a]<br />

greement to contractual terms<br />

can be expressed by touching<br />

or clicking on an appropriately<br />

designated icon or place on<br />

a computer screen.” 6 As such,<br />

Ontario courts are likely to respect<br />

electronic waivers of liability<br />

as valid contracts.<br />

The following sections discuss<br />

the Tercon test for whether<br />

waivers are enforceable. We<br />

also draw from recent case law<br />

to highlight effective and ineffective<br />

qualities of waivers.<br />

Does the Waiver Apply?<br />

Tercon is Canada’s leading case<br />

on exclusion of liability clauses<br />

and waivers of liability. In that<br />

decision, The SCC majority set<br />

out a three-part test for determining<br />

whether waivers of<br />

liability are enforceable. The<br />

elements are: (i) whether the<br />

exclusion clause applies to the<br />

circumstances in question; (ii)<br />

whether the exclusion clause<br />

was unconscionable at the<br />

time the contract was formed;<br />

and (iii) whether the court<br />

should refuse to enforce the<br />

waiver because of an overriding<br />

public policy. 7 Courts typically<br />

render waivers of liability<br />

unenforceable if they do not<br />

fulfill any of these criteria.<br />

The test from Tercon first inquires<br />

whether a waiver applies<br />

to the factual matrix. 8<br />

In Anderson v Confederation<br />

College, the Ontario Superior<br />

Court of Justice (“ONSC”) stated<br />

that courts “must look not only<br />

at the meaning of the words,<br />

but also at the context.” 9 The<br />

meaning of a waiver clause relies<br />

on the parties’ intention, in<br />

light of the context surrounding<br />

each case. 10<br />

In Anderson, the waiver’s<br />

language was problematic<br />

because it did not cover the<br />

plaintiff’s injury. The waiver<br />

excluded liability for “[i]njuries<br />

or other complications asso-<br />

ciated with exercise or other<br />

physical activities.” 11 In that<br />

case, a basketball hoop struck<br />

the plaintiff’s head while he<br />

was running on a track. The<br />

waiver did not contemplate<br />

injuries resulting from faulty<br />

premises or negligently-placed<br />

equipment. 12 Thus, the waiver<br />

did not insulate the defendant<br />

from negligence.<br />

The Court of Appeal for Ontario<br />

found the inclusion of the<br />

word “negligence” to be an important<br />

element in waivers of<br />

liability. 13 The British Columba<br />

Supreme Court (“BCSC”) went<br />

further, stating that an enforceable<br />

waiver requires more<br />

than the mere presence of the<br />

word. 14 The waiver cannot be<br />

deceptive and the non-drafting<br />

party should be able to understand<br />

its meaning. 15 In Ochoa<br />

v Canadian Mountain Holidays<br />

Inc, the BCSC was satisfied<br />

by the waiver’s bolded words<br />

which explained the legal rights<br />

being waived. Additionally, the<br />

defendant corporation notified<br />

the plaintiff of the waiver’s importance<br />

well in advance of his<br />

participation in the injurious<br />

activities. The BCSC also stated<br />

that having witnesses to the<br />

non-drafting party’s signature<br />

supports the enforcement of<br />

these contracts. 16<br />

Is the Waiver Unconscionable?<br />

The next stage of the Tercon<br />

inquiry assesses whether a<br />

waiver is unconscionable. The<br />

BCSC provided that “there is a<br />

well-established line of authority<br />

in Canada that exclusions<br />

for liability are not, prima facie, unconscionable.”<br />

17 The British Columbia Court of Appeal<br />

(“BCCA”) in Deanna Loychuk v Cougar Mountain<br />

Adventures Ltd supports this statement. The<br />

BCCA found that there is no power imbalance<br />

when a person wishes to engage in inherently<br />

risky recreational behaviour controlled by another.<br />

The BCCA also stated that operators of<br />

risky activities are entitled to require participants<br />

to sign a waiver of their rights. 18<br />

In Dyck v Manitoba Snowmobile Association, the<br />

plaintiff signed a waiver of liability prior to participating<br />

in a snowmobile race. The SCC found<br />

that there was no power imbalance between the<br />

participant and the Manitoba Snowmobile Association<br />

because he freely joined the race, was<br />

not socially or economically pressured to participate,<br />

and was aware of the activities’ dangers. 19<br />

Waivers of liability have been upheld even in the<br />

case of negligence causing death, when the participant<br />

is aware of the inherent risks of the involved<br />

activities. 20<br />

How do you nail down<br />

a judgment?<br />

An appeal takes a refined skill set. Deeper research.<br />

Identifying the right issues. Persuasive factums. And a team<br />

of consummate advocates devoted to knowing the law<br />

and convincing the court. In the right hands, victory is secure.<br />

Lerners Appellate <strong>Advocacy</strong> Group. Who wins last, wins.<br />

Does Public Policy Override the Viability of<br />

the Waiver?<br />

This section analyzes the final part of the Tercon<br />

test: overriding public policy reasons for disposing<br />

a waiver of liability. We focus on the rights<br />

of minors in Ontario. The law in Ontario is not<br />

settled on this issue, making it difficult to determine<br />

the likelihood that a court would dispose<br />

a waiver on such grounds.<br />

In Wong v Lok’s Martial Arts Centre, the BCSC<br />

decided that contracts binding infants to waive<br />

their rights are unenforceable. 21 However, this<br />

decision was based on the Infants Act of British<br />

Columbia, which states that contracts made<br />

on behalf of minors are invalid. Ontario has no<br />

analogous legislation, making Wong of little assistance<br />

for companies in Ontario.<br />

However, Stevens v Howitt suggests that Ontario<br />

courts have set out procedures to protect<br />

infants. 22 In that case, a parent bound their infant<br />

child in an insurer’s waiver of liability. Later,<br />

the infant was involved in a minor automobile<br />

London contact: Peter Kryworuk, pkryworuk@lerners.ca Toronto contact: Cynthia B. Kuehl, ckuehl@lerners.ca<br />

Sign up for our Netletter at lerners.ca/appeals/netletters/<br />

Lerners LLP | Lerners.ca<br />

16 17

18<br />

accident and claimed under her guardians’ policy<br />

of insurance. The ONSC decided that the waiver<br />

was unenforceable, citing “general principles”<br />

regarding the protection of infants. 23<br />

While Howitt supports the public policy argument<br />

for minors in Ontario, no court has followed<br />

the decision. 24 Furthermore, an Ontario court<br />

might find that Howitt applies only to the context<br />

of insurance contracts. The relationship between<br />

an infant and an indoor trampoline park company<br />

is different because the infant, and his or her<br />

guardian, typically understand that the activity is<br />

inherently risky. As such, courts are unlikely to<br />

protect infants under those circumstances.<br />

Whether infants can waive their rights in<br />

Ontario remains a contentious issue. The<br />

dearth of case law and legislation setting out<br />

specific rights for infants, such as British Columbia’s<br />

Infants Act, indicates a current gap<br />

in the law.<br />

Conclusions<br />

Based on the above review of the relevant<br />

jurisprudence, a sound waiver of liability<br />

will include clear, unambiguous language<br />

which, at the same time, is broad enough<br />

to capture the types of negligence which a<br />

party seeks to shelter itself from. Expressly<br />

indicating that the waiver insulates the corporation<br />

from liability related to negligence<br />

is also important. The consumer/participant<br />

should be able to understand the language<br />

in the waiver. A marked difference in bargaining<br />

power could render a waiver of liability<br />

unenforceable. However, in the context of<br />

a participant engaging in a risky activity, such<br />

as skydiving, the waiver will likely be enforceable<br />

so long as the consumer understands<br />

the risks involved in the activity. Generally,<br />

public policy considerations must be shown<br />

to outweigh the “very strong public interest<br />

in the enforcement of contracts.” 25 Very few<br />

of these contracts have been rendered unenforceable<br />

on this ground. As demonstrated<br />

above, the protection of minors in contract<br />

law remains unsettled.<br />

Notes<br />

1 . Tercon Contractors Ltd v British Columbia<br />

(Transportation and Highways), 2010 SCC 4<br />

[2010] 1 SCR 69 [Tercon].<br />

2. Angela Swan & Adamski Jakub, Canadian<br />

Contract Law, 3rd ed (Markham: LexisNexis,<br />

2012) at 263; Electronic Commerce Act, SO<br />

2000, c 17 [Electronic Commerce Act].<br />

3. Electronic Commerce Act, supra note 2, s 19(1).<br />

4. Ibid, s 19(3).<br />

5. Quilichini v Wilson’s Greenhouse, 2017 SKQB<br />

10 (CanLII).<br />

6. Ibid at para 10.<br />

7. Tercon, supra note 1 at paras 122–123.<br />

8. Anderson v Confederation College, 2017 ONSC<br />

5791 (CanLII) [Anderson].<br />

9. Ibid at para 10.<br />

10. Sattva Capital Corp v Creston Moly Corp, 2014<br />

SCC 53 at para 48, [2014] 2 SCR 633; See also<br />

Investors Compensation Scheme Ltd v West<br />

Bromwich Building Society, [1998] 1 All ER 98.<br />

11. Anderson, supra note 9 at para 14.<br />

12. The SCC in Queen v Cognos, [1993] 1 SCR 87,<br />

99 DLR (4th) 626 came to the same conclusion<br />

regarding the applicability of the waiver in<br />

question to the plaintiff’s circumstances.<br />

13 . Creasy et al v Sudbury (Municipality), 1999<br />

CanLII 3820 at paras 28–30, [1999] OJ No<br />

4838 (QL).<br />

14. Ochoa v Canadian Mountain Holidays Inc,<br />

1996 CanLII 378 (BCSC) at para 136.<br />

15. Ibid.<br />

16. Ibid.<br />

17. Ibid.<br />

18 . Deanna Loychuk et al v Cougar Mountain<br />

Adventures Ltd (2012), 31 BCLR (5th) 23 at<br />

para 33, 2012 BCCA 122 (CanLII)<br />

19. Ibid at para 34; Dyck v Manitoba Snowmobile<br />

Association, [1985] 1 SCR 589 at 539, 1985<br />

CanLII 27 (SCC).<br />

20. See Delaney v Cascade River Holidays Ltd, 44<br />

BCLR 24, 1983 CanLII 387.<br />

21. Wong v Lok’s Martial Arts Centre Inc, 2009<br />

BCSC 1385 (CanLII) at para 61.<br />

22 . Stevens v Howitt, 4 DLR (3d) at 52, 1968<br />

CanLII 890 (ONSC).<br />

23 . Ibid.<br />

24 . Bajenaru v Marchie, 2017 ONSC 2864 at para<br />

30, 2017 CanLII 2864 (ONSC).<br />

25 . Tercon, supra note 1 at para 123.<br />


Presentations to Help You Think on Your Feet &<br />

Win Over Today’s Audiences with Steve Hughes<br />

Wednesday, July 17, <strong>2019</strong><br />

Morning: 9:00 am - 12:00 pm | Afternoon: 1:00 pm - 4:00 pm<br />

The Advocates’ Society Education Centre<br />

Develop the skills you need to deliver dynamic presentations and answer questions on<br />

the spot with ease under the guidance of communications expert Steve Hughes.<br />

Join us for the morning session only or stay for the full day.<br />

Steve Hughes<br />

Communications Expert<br />

Hitting Your Stride LLC<br />

Registration from $350 + HST.<br />

Morning-only session where you will learn how to:<br />

• Grab your audience’s attention and keep them engaged<br />

• Prepare an effective roadmap for your presentation<br />

• Establish credibility and appear more dynamic<br />

• Deliver influential and memorable presentations<br />

Full-day session where you will learn how to:<br />

• Take steps to build confidence before the need arises<br />

• Be more agile when speaking off-the-cuff<br />

• Handle questions with ease and flair<br />

• Take more calculated risks in your day-to-day role<br />

This program contains CPD Hours. For<br />

detailed CPD information, please visit our<br />

website at: www.advocates.ca.<br />

The Advocates’ Society has been approved as an Accredited Provider of Professionalism Content<br />

by the Law Society of Ontario, and pre-approved as a CPD Provider by the Law Society of British<br />

Columbia. For accreditation information outside of Ontario, please visit www.advocates.ca


Wednesday, April 24, <strong>2019</strong> | The Carlu, Ontario<br />


Presentation of the Emil Gumpert Award to Pro Bono Students Canada for their<br />

Indigenous Human Rights Program<br />

Spring Symposium<br />

Kevin Westell, Pender Litigation<br />

Andrew J. Savage, Savage Law Firm<br />

As a busy Vancouver trial lawyer, it’s not often that I find myself ‘out east’. I count myself as<br />

fortunate that my schedule opened up and afforded me the opportunity to head to Toronto<br />

for this year’s Spring Symposium.<br />

Jointly presented by The American College of Trial Lawyers and the Advocates’ Society, the<br />

theme of this year’s program was “The Advocate <strong>Matters</strong>”. And it’s no surprise that Conference<br />

Chair Sandra Forbes, along with Vice-Chairs Sandra Barton and Guy Pratte, put together<br />

a truly exceptional roster of speakers and presentations.<br />

As an out-of-towner, it was a treat to watch some of Toronto’s truly great advocates get on<br />

their feet to show how it’s done. The “Electronic Trial <strong>Advocacy</strong>” panel, moderated by Justice<br />

Goldstein featured dynamic demonstrations from both Danielle Robitaille and Mathew Gottlieb.<br />

Equally compelling were Anne Spafford and Kent Thomson’s demonstrations during<br />

Justice Darla Wilson’s “Expert Evidence” panel.<br />

We were treated to wise words and important lessons from a number of legal legends throughout<br />

the day as well. Valuable insight was shared by Retired Justices Cronk and Binnie. Inspiration<br />

was supplied by eminent counsel Linda Rothstein who spoke about her unique experiences with<br />

high-profile Public Inquires. And perhaps most memorable of all, American criminal lawyer Andrew<br />

Savage left not a dry eye in the house with his powerful keynote address.<br />

While I’ve been a proud member for more than a decade, this was my first opportunity to<br />

attend one of our ‘flagship’ events. It won’t be my last. Congratulations to all who played a<br />

part in making this event such an outstanding success.<br />

20<br />

Sylvia H. Walbolt, Carlton Fields,<br />

Guy J. Pratte, Borden Ladner<br />

Gervais LLP, and The Honourable<br />

W. Ian C. Binnie, Q.C., C.C.,<br />

Lenczner Slaght<br />

Brian J. Gover, Stockwoods LLP<br />

Andrew J. Savage, Savage Law Firm<br />



Tuesday, April 9, <strong>2019</strong> | Hotel Le Germain, Alberta<br />


Engagement and Inspiration<br />

at the Calgary Women in<br />

Litigation Symposium<br />

Laurie Livingstone, Cassels Brock<br />

• The Hon. Madam Justice<br />

Marina S. Paperny, Court<br />

of Appeal of Alberta<br />

The second annual Women in Litigation Symposium was held in Calgary on April 9 th . The<br />

gathering brought together a diverse group of participants and presenters from the bench<br />

and bar. Panelists included judges from the Court of Appeal of Alberta and the Provincial<br />

Court as well as litigators from government, regulatory bodies, and private practice. This<br />

year’s event also attracted a diverse cross-section of participants from the family, criminal,<br />

and civil bar as well as those practicing in-house with regulatory bodies. That diversity resulted<br />

in lively round table discussions on mentoring and improving hiring and retention of<br />

women in the profession, as well as engaging Q&A sessions following panel discussions on<br />

taking chances, overcoming implicit bias, and finding confidence in the courtroom.<br />

The highlight of the day was an inspiring keynote address from Madam Justice Marina<br />

Paperny of the Court of Appeal of Alberta. Madam Justice Paperny shared her journey from<br />

being one of a small group of women in her law school class at Osgoode Hall, to being the<br />

first person to ever take a maternity leave at her firm in Calgary, all the way to being one of<br />

the most senior jurists on the Court of Appeal of Alberta. With humour, humility, and some<br />

anecdotes about mountain cycling trips, Justice Paperny shared some of the lessons she has<br />

learned along the way and offered words of encouragement to those still finding their way<br />

in a profession that can present unique challenges for women.<br />

Sincere thanks to Tamara Prince and Cynthia Amsterdam who chaired this year’s symposium<br />

and to Bentham IMF and Heuristica Discovery Counsel for their sponsorship of the event.<br />

22 The Hon. Madam Speakers: Justice Matt Marina Maurer, S. Paperny, Torkin Court Manes of LLP, Appeal Sony of Gokhale, Alberta General Counsel, The Supreme Cannabis Company 23

Nova Scotia Judicial Retirement Gala<br />

Celebrating The Hon.<br />

J. Michael MacDonald and<br />

The Hon. Joseph P. Kennedy<br />

Sheree L. Conlon, Q.C., Stewart McKelvey<br />

<strong>2019</strong> End of Term Dinner <br />

Thursday, June 20, <strong>2019</strong> | Cocktail Reception: 5:30 pm | Dinner: 7:00 pm<br />

Metro Toronto Convention Centre, North Building, 255 Front Street West, Toronto<br />

Black Tie | A member-only event<br />



Generously sponsored by:<br />

On April 6, <strong>2019</strong>, the Advocates’ Society, in conjunction with the Nova Scotia Court of Appeal<br />

and Nova Scotia Supreme Court, hosted a gala in Halifax, NS, celebrating the careers<br />

and contributions of two pillars of the Nova Scotia judicial community – The Honourable J.<br />

Michael MacDonald, Chief Justice of Nova Scotia and Chief Justice of the Nova Scotia Court<br />

of Appeal, who retired on February 1, <strong>2019</strong>, and The Honourable Joseph P. Kennedy, Chief<br />

Justice of the Nova Scotia Supreme Court, who retired on <strong>May</strong> 1, <strong>2019</strong>.<br />

The respect they hold among their judicial colleagues, the members of the bar and their<br />

broader communities, was evident throughout the evening, attracting over 500 guests, including<br />

the majority of the Canadian Judicial Counsel, most of the Nova Scotia judiciary<br />

from all levels of courts and members of the bar throughout the entire province.<br />

The Master of Ceremonies for the evening was The Honourable Justice Jamie Campbell,<br />

Supreme Court of Nova Scotia. The Right Honourable Richard Wagner, P.C., Chief Justice of<br />

Canada, who attended with his spouse the Honourable Justice Catherine Mandeville, gave<br />

brief remarks at the start of the program, as did Society President Brian Gover.<br />

Other honoured guests in in attendance were His Honour The Honourable Arthur J. LeBlanc,<br />

ONS, QC, Lieutenant Governor of Nova Scotia, Her Honour Mrs. Patsy LeBlanc and the<br />

Honourable Justice Michael J. Moldaver of the Supreme Court of Canada.<br />

Premier Dinner Sponsor<br />

Cocktail Reception Sponsor<br />

After-Party<br />

Photo Booth Sponsor<br />

After-Party<br />

Patio Sponsor<br />

After-Party<br />

Zone Sponsor<br />





Saturday, April 6, <strong>2019</strong>, | Halifax Convention Centre, Nova Scotia<br />

The Hon. Joseph P. Kennedy, Chief Justice of the Nova Scotia Supreme Court, and The Hon.<br />

J. Michael MacDonald, Chief Justice of Nova Scotia and Chief Justice of<br />

the Nova Scotia Court of Appeal<br />

Rounding out a stellar attendance<br />

from the legal and judicial<br />

communities, we were<br />

joined by members of the<br />

Board of Directors of The Advocates’<br />

Society (who for their<br />

first time, and presumably<br />

not their last, held their board<br />

meetings outside of Ontario –<br />

and lived to tell the tale!).<br />

During the evening, guests<br />

were treated to some powerful<br />

performances by accomplished<br />

musicians - Marko<br />

Simmonds, a second year law<br />

student at the Schulich School<br />

of Law and graduate of the<br />

Berkeley School of Music, and<br />

Reeny Smith, a widely celebrated<br />

African Nova Scotian artist.<br />

The Honourable Justice James<br />

C. MacPherson, Court of Appeal<br />

of Ontario, gave a heartfelt and<br />

amusing tribute to Chief Justice<br />

Kennedy, with shared stories<br />

bringing them back to their<br />

younger years growing up in<br />

Bridgewater, Nova Scotia.<br />

Michelle Williams, Director<br />

of the Indigenous Blacks<br />

& Mi’kmaq Initiative at the<br />

Schulich School of Law, spoke<br />

of the positive impact that the<br />

work of Chief Justice MacDonald<br />

has made on the African Nova<br />

Scotian and Mi’kmaq communities<br />

in Nova Scotia, and in Nova<br />

Scotia’s justice system.<br />

What became clear over the<br />

course of the evening was the<br />

close friendship between the<br />

two Chiefs, and the deep respect<br />

they have developed for<br />

each other. So it was particularly<br />

poignant to present them<br />

with an original joint piece commissioned<br />

by award winning<br />

cartoonist Bruce MacKinnon.<br />

But despite that friendship,<br />

and as is often the case at any<br />

east coast social gathering,<br />

some competition emerged<br />

over who “stole the show” with<br />

their humour, and while the<br />

jury is still out on the winner,<br />

one thing was clear to everyone:<br />

the evening gave us all an<br />

opportunity to celebrate – and<br />

acknowledge – the tremendous<br />

accomplishments both<br />

honourees have made to the<br />

administration of justice and<br />

our communities. They will<br />

be missed by many, but their<br />

contributions will have lasting<br />

effects and we are better for<br />

them having been here.<br />

A special thanks to the entire<br />

organizing committee:<br />

The Honourable Justice Elizabeth<br />

Van den Eynden, Nova<br />

Scotia Court of Appeal, The<br />

Honourable Associate Chief<br />

Justice Deborah Smith, Nova<br />

Scotia Supreme Court, The<br />

Honourable John Keith (as he<br />

now is), Faith Gallant, Executive<br />

Assistant to Chief Justice<br />

Kennedy, and last but most<br />

definitely not least, Robin<br />

Black and Rachel Stewart of<br />

The Advocates’ Society.<br />

And to the extent there was<br />

ever any debate, it is now settled<br />

that Atlantic Canada sets<br />

the standard on how to throw<br />

a party!<br />

The Hon. Joseph P. Kennedy, Chief<br />

Justice of the Nova Scotia<br />

Supreme Court<br />

The Hon. J. Michael MacDonald,<br />

Chief Justice of Nova Scotia and<br />

Chief Justice of the Nova Scotia<br />

Court of Appeal<br />

26 27

Allan O’Brien, Nelligan O’Brien Payne LLP –<br />

“As an experienced barrister, reach out<br />

to younger advocates both as a mentor<br />

and as a colleague to welcome them to<br />

our noble and collegial profession. »<br />

David Campbell, Barrister & Solicitor<br />

“When I was an articling student, he invited<br />

me for coffee and gave me the most<br />

valuable advice of my career: Write. Get<br />

involved. Do pro bono.”<br />


Peter Cronyn, Nelligan O’Brien Payne LLP -<br />

“His remarkable ability to distill a case down to<br />

its uncomplicated essence and then to tell the<br />

story in a simple and compelling way. It would<br />

all appear effortless, which made it even more<br />

persuasive. But we all know how much work he<br />

did to render it that way. “<br />

Ryan Steeves, Gowling WLG-<br />

“Always walk fast- it shows people<br />

that you’re busy.”<br />

Lessons Learned from<br />

David W. Scott, O.C., Q.C<br />

Erin Durant , Borden Ladner Gervais LLP<br />

Justice Peter K. Doody,<br />

Ontario Court of Justice<br />

1.“The three most important<br />

attributes of a great lawyer<br />

are energy, energy, and<br />

energy” and;<br />

2. “Leave me the facts. You<br />

deal with the law. It’s boring.”<br />

Colin Dubeau, Nelligan O’Brien Payne LLP - “The<br />

lesson that still stands out to me was when David, Carol<br />

Brown (now Justice Carol Brown) and I were walking<br />

down Elgin Street to the Courthouse for an application<br />

that David was about to argue. Not surprisingly, he<br />

knew the facts and law inside out and he told me “Never<br />

forget the 5 P’s of advocacy: Prior Preparation Prevents<br />

Poor Performance”. This is a lesson that has stuck with<br />

me and is one I try to live in my practice and teach to<br />

younger lawyers with whom I work.”<br />

Long-time TAS member and leader in the legal community David W. Scott passed away on<br />

March 21, <strong>2019</strong>. He was the ultimate leader and mentor at Borden Ladner Gervais LLP and<br />

throughout the legal community. Those who knew him considered themselves incredibly<br />

fortunate to learn from him.<br />

As a way to honour his legacy, we asked a number of people within the legal community:<br />

“What is the most important lesson that you learned from David W. Scott?” These<br />

are their responses:<br />

Nadia Effendi, Borden Ladner Gervais LLP<br />

“As lawyers, all we have is our reputation<br />

and integrity. We must ensure that we never<br />

compromise them and protect both from being<br />

tarnished.”<br />

Bryan Carroll, Carroll<br />

Mediations –<br />

“The client’s interests are<br />

private and paramount.”<br />

28 29

George Hunter, Retired - “The most important<br />

lesson I learned from David Scott was the<br />

obligation each lawyer has to see that every<br />

citizen, regardless of their circumstances, has<br />

meaningful access to justice for without it, the<br />

rule of law is mortally wounded.”<br />

Karen Perron, Borden Ladner Gervais LLP<br />

“David Scott taught me that we are extremely<br />

fortunate as lawyers to be part<br />

of a profession where our knowledge and<br />

abilities enable us to make significant contributions.<br />

We owe it to ourselves and the<br />

profession to be engaged and committed<br />

to making a difference, whether that is by<br />

volunteering on local community boards,<br />

reaching out to those in need or using our<br />

voices to advocate for those who cannot<br />

do so themselves.”<br />

The Rt. Hon. Beverley McLachlin - “The most<br />

important lesson I learned from David Scott is<br />

that every member of the legal community -<br />

lawyers, judges and teachers - are responsible<br />

for maintaining the health of the community<br />

so that it can provide justice to every Canadian<br />

woman, man and child.”<br />

Stephen Victor, Victor Vallance Blais<br />

LLP“ Working with David as cocounsel<br />

during several lengthy trials,<br />

I learned about David W. Scott, the<br />

counsel, the trial lawyer, the advocate.<br />

David waswitty, humorous, eloquent,<br />

articulate, intelligent, concisewho was<br />

always prepared, was tough, had street<br />

smarts, and was a superb strategist.<br />

But most importantly, David Scott cared<br />

and demonstrated a deep humanity for<br />

his clients.”<br />

The Catzman Award<br />

for Professionalism & Civility<br />

Throughout his distinguished career both as an advocate<br />

and a judge, Justice Marvin Catzman earned an exemplary<br />

reputation for his knowledge of the law, his integrity, his<br />

fairness, his civility and his dedication to the highest ideals of<br />

the legal profession. He inspired younger lawyers by example<br />

and contributed to legal education by writing and lecturing<br />

with great insight and humour. He was unfailingly generous to<br />

colleagues with his time and expertise. Justice Catzman’s<br />

career was characterized by all of the qualities that are<br />

encompassed by the terms professionalism and civility.<br />

The successful candidate for the Catzman Award will be<br />

a person who exemplifies these qualities.<br />

Lawrence Greenspon, Greenspon Granger Hill Lawyers “He shared and moulded the lives<br />

of those closest to him with love and caring. He stood up with uncommon and equal strength<br />

for the underprivileged and the powerful. He impacted generations of lawyers throughout<br />

North America., David had that unique combination of huge and generous heart, brilliant<br />

mind, sense of humour and common sense., He challenged those who were privileged to be<br />

close to him to do more and be better and to never give up...He did that by living that way.,<br />

Our nation has lost a leader,we have lost a giant of a human being, and I’ve lost my hero...”<br />

As for me, the most important lesson that I learned from Mr. Scott was to give back to<br />

the community. Lawyers have a very privileged role in society and it is our obligation<br />

to ensure that everyone in our community has access to legal services.<br />

Thanks for the memories, and the lessons, David. We will all miss you.<br />

Call For Nominations<br />

The Catzman family, The Advocates’ Society and the Chief Justice of Ontario’s Advisory<br />

Committee on Professionalism are pleased to call for nominations for an award in memory<br />

of the late Justice Marvin A. Catzman, recognizing individuals who have demonstrated<br />

a high degree of professionalism and civility in the practice of law. The Award will be<br />

presented by the Chief Justice at the Opening of the Courts in September <strong>2019</strong> and<br />

acknowledged at The Advocates’ Society End of Term Dinner in June 2020.<br />

Deadline Friday, <strong>May</strong> 31, <strong>2019</strong><br />

Please fill out the following nomination form and attach the nominee’s C.V. and two<br />

(2) letters of support (to a maximum of two (2) pages).<br />

For questions, please contact Rachel Stewart, Events and Awards Manager,<br />

at rachel@advocates.ca<br />


30 31

#TASProud<br />

Congratulations to our Past Presidents,<br />

Directors and Committee leaders from across<br />

Canada who were appointed to the Bench in<br />

the 2018-<strong>2019</strong> term.<br />

The Hon. Justice Jennifer Breithaupt<br />

Superior Court of Justice of Ontario<br />

The Hon. Justice Michael Doi<br />

Superior Court of Justice of Ontario<br />

The Hon. Justice John A. Keith<br />

Supreme Court of Nova Scotia<br />

The Hon. Justice Charles LeBlond<br />

Court of Appeal of New Brunswick<br />

The Hon. Justice Sylvain Lussier<br />

Superior Court of Québec<br />

The Hon. Justice Scott Norton<br />

Supreme Court of Nova Scotia<br />

The Hon. Justice Martin F. Sheehan<br />

Superior Court of Québec<br />

The Hon. Justice Benjamin Zarnett<br />

Court of Appeal for Ontario<br />


Wednesday, April 10, <strong>2019</strong> | The Sutton Place Hotel, Alberta<br />

Karen Platten, Q.C., McLennan Ross LLP, Lorraine Champion, Executive Director, Lawyer’s Assistance Program, Dr. Roger Brown, Psychiatrist,<br />

and Rose M. Carter, Q.C., Bennett Jones LLP<br />

• Karmen Speakers: Masson, Matt Maurer, Professional Torkin Coach, Manes Lawyer LLP, Sony + Facilitator Gokhale, General Counsel, The Supreme Cannabis Company<br />



Friday, <strong>May</strong> 3, <strong>2019</strong> | TAS Education Centre, Ontario<br />


Thursday, <strong>May</strong> 9, <strong>2019</strong> | The Vancouver Club, British Columbia<br />

“ADR – panel” – Cheryl Goldhart, Goldhart & Associates, Daniel Melamed, Torkin Manes LLP,<br />

Dr. Irwin S. Butkowsky, Psychologist, & Alfred A. Mamo, McKenzie Lake Lawyers LLP<br />

Summer Solstice Celebration<br />

of Women Advocates<br />

Tuesday, June 18, <strong>2019</strong> | 5:00 pm - 7:30 pm<br />

Rodney’s Oyster House, 355 10 Ave SW, Calgary, AB<br />

Celebrate the summer solstice and mingle in a casual setting at this collegial event for the<br />

Calgary bar. We invite advocates from all practice areas to join us to connect and celebrate<br />

women in advocacy.<br />

This year’s Summer Solstice is proud to support the Walk-in Closet program from the<br />

Making Changes Association. We ask all attendees to bring a donation of gently used or<br />

new seasonal workplace clothing, shoes, accessories or outerwear to support this very<br />

important, local program. For a full list of needed items, visit<br />

makingchangesassociation.ca.<br />

Society members and non-member justices, judges, lawyers and law students of all<br />

genders are welcome to register.<br />


SUBMIT<br />

TODAY<br />


34 Speakers: “ADR - Hon Matt Mary Maurer, Jo Nolan” Torkin – The Manes Honourable LLP, Sony Mary Gokhale, Jo Nolan, General Nolan Counsel, MediationThe Supreme Cannabis Company<br />

35<br />

Speakers: Matt Maurer, Torkin Manes LLP, Sony Gokhale, General Counsel, The Supreme Cannabis Company


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