Advocacy Matters - May 2019

ADVOCACY MATTERS
The Advocates’ Society
MAY 2019

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When you see this icon, throughout the publication,
click on it to see what members are tweeting about.
CONTENTS
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.
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From the Editor
Lauren Tomasich, Osler, Hoskin & Harcourt LLP
TAS Report - Vancouver
Samantha Chang, McEwan Partners LLP
10+ Committee
Emily Lawrence, Paliare Roland Rosenberg Rothstein LLP
The Future Of Advocacy
Brent J. Arnold, Gowling WLG
Examining Liability
Ibrahim Jamie Arabi (JD, 2019) and Alysia M. Christiaen, Lerners LLP
Signature Conference
Kevin Westell, Pender Litigation
TAS Report - Calgary
Laurie Livingstone, Cassels Brock
Nova Scotia Judicial Retirement Gala
Sheree L. Conlon, Q.C., Stewart McKelvey
In Memoriam - David W. Scott, O.C., Q.C
Erin Durant, Borden Ladner Gervais LLP
Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.
Editor: Lauren Tomasich, Osler, Hoskin & Harcourt LLP, Ltomasich@osler.com
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
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COMING UP
(Click on the program to learn more)
FROM THE EDITOR
End of Term
Lauren Tomasich, Osler, Hoskin & Harcourt LLP
JUNE 6
Summer Trial
Advocacy College
(Toronto)
JUNE 6
Wine & Cheese
Social with
the Bench
(Calgary)
JUNE 7
Writing to
Win With
Steven Stark
(Halifax)
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Our end of term edition of Advocacy Matters
celebrates the amazing presence of The
Advocates’ Society across the country. In the
past few months, TAS has hosted events from
coast to coast, and the broad consensus from
those that report on the events in this edition
is that TAS consistently brings collegiality,
positivity and inspiration to our advocacy
community. It is impressive to see how TAS
has grown, and how TAS members of all vintages
have contributed to its development. In
short, this edition reflects that TAS is truly a
preeminent national organization.
For another dose of inspiration, check out
Erin Durant’s tribute to David W. Scott, O.C.,
Q.C, one of the great advocates and leaders
of our profession. Erin gathered a number
of “lessons” that many members of the legal
community learned from David over the
years, all of which are not only important
reminders but will make you smile.
Finally, after two years as editor of Advocacy
Matters, I’m passing the reigns
over to Brent Arnold of Gowling WLG
(Canada), who has been a regular contributor,
and will no doubt continue to
put his knowledge and wit to good use
as editor. This has been an amazing way
to engage with the advocacy community,
and I’ve loved working with and hearing
from many of you over the years. Every
editor’s note has given me an opportunity
to see the amazing things that our
colleagues are doing, and reflect on why
this is truly a wonderful profession. I look
forward to continuing to be an avid Advocacy
Matters reader and to being in
touch with everyone through TAS!
JUNE 11
Class Actions
Advocacy
(Toronto)
JULY 17
Unflappable:
Presentations To
Help You Think on
Your Feet
(Toronto)
JUNE 11
The Inside Story
(Toronto)
AUG 13
Cross-Examinations
Skills Workshop
(Toronto)
JUNE 20
End of Term
Dinner 2019
(Toronto)
JUNE 18
Summer Solstice
Celebration of
Women Advocates
(Calgary)
JUNE 27
Estates Litigation
Summer Kick-Off
Reception
(Toronto)

WOMEN IN LITIGATION VANCOUVER
Monday, April 8, 2019 | UBC Robson Hall, British Columbia
TAS REPORT - VANCOUVER
Speaker: The Hon. Justice Suzanne Côté, Supreme Court of Canada
Women in Litigation
Symposium Vancouver
Samantha Chang, McEwan Partners LLP
On April 8, 2019, The Advocates’ Society hosted Women in Litigation Symposium in Vancouver.
The sold-out event, generously sponsored by Bentham IMF and McEwan Partners,
was chaired by Miranda Lam and Claire Hunter, Q.C. The day featured a series of speakers,
panels, and discussions on the issues faced by female litigators and strategies to overcome
them, along with a keynote speech from the brilliant and charming Justice Suzanne Côté of
the Supreme Court of Canada.
A number of panels featured practical tips for dealing with challenges unique to female litigators.
Other panels, including the panel featuring Justices Griffin, Saunders, and Sharma,
focused on practical advocacy tips for developing your own style and making your mark in
the courtroom. Tracey Cohen, Q.C., Heather Jones, and Margaret Mereigh emphasized that
the concept of “success” is a highly individualized concept and made the important point
that we each need to regularly take the time to assess (and re-assess) what success means
to us and to make the necessary decisions to achieve our own versions of success.
The highlight of the Symposium was the dynamic keynote speech from Justice Côté, which
featured not only the history of female litigators and judges generally, but also the inspiring
story of her own journey from buying half of her employer’s practice as an articled student
in Gaspe, to being elected the head of Osler’s litigation group in their Montreal office, and
finally being appointed directly from private practice to the Supreme Court of Canada. All
in all, the Symposium featured both great advice and inspiration for female litigators, was a
wonderful way to spend a day investing in my practice and my advocates, community.
6 Speakers: Matt Maurer, Torkin Manes LLP, Sony Gokhale, General Counsel, The Supreme Cannabis Company
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THE MID-CAREER WOMEN’S SOCIAL:
A NETWORKING EVENT FOR WOMEN ADVOCATES
Wednesday, March 27, 2019 | Leña Restaurante, Ontario
10+ COMMITTEE
Mid-Career Women’s Social
Emily Lawrence,
Paliare Roland Rosenberg Rothstein LLP
The 10+ Committee hosted the first annual Mid-Career Women’s Social on March 27, 2019
at the upstairs event space at Leña Restaurante. This complimentary event targeted women
lawyers 8-18 years of call. The 10+ Committee conceived this event to address a gap in
socializing and networking opportunities among women lawyers in mid-career. As women
continue to leave the profession in startling amounts in their early years of practice, the 10+
Committee wanted a place for mid-career women to discuss the highlights and challenges
women face as senior associates and new partners.
Leña Restaurante provided a beautiful back-drop for mingling, over sparking wine and
appetizers, thanks to our sponsors, PwC and Neesons. The space hummed with conversation,
and the food was plentiful and delicious. The attendees represented not only senior
associates and junior partners from large firms, but also many mid-career lawyers from
the criminal bar, solo practices and small firms, in-house, and government. It was fascinating
to hear different perspectives on how to build and sustain a successful practice from
mid-career women with such a diversity of practice areas and workplaces. Many challenges
of mid-career practice – business development, taking first chair, and mentoring juniors –
exist regardless of practice area or workplace. It was inspiring and comforting to share experiences
and tips, and even to vent a little too. As one of the organizers, I was delighted to
hear from several attendees this event filled a need for mid-career women to expand their
professional networks. Looking forward to this event next year!
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Save Paper.
Save Trees.
Go Digital.
THE FUTURE OF ADVOCACY
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the digital version of
The Advocates’ Journal
Privilege at the Border—
Should Lawyers be Resorting
to “Burner” Phones?
Brent J. Arnold, Gowling WLG
It used to be only criminals resorted to “burner” phones—i.e. phones with no email, no
texts, no contacts saved to them, to stymie law enforcement in the event of search and seizure.
Lawyers crossing the border may now have to resort to these or more complicated
workarounds to protect solicitor–client privilege.
The Office of the Privacy Commissioner of Canada recently noted that “Canadian courts
have not yet ruled on whether a border officer can compel a person to turn over their password
and on what grounds, so that their electronic device may be searched at a border
crossing” but that CBSA policy requires such searches not be treated as routine; rather, they
should only be conducted where “evidence of contraventions may be found on the digital
device or media.” CBSA officers are empowered to examine data stored on a device but are
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not supposed to use a device’s
Wi-Fi or cellular capability to
access data online or in the
cloud. The OPC recommends
travellers leave unnecessary
devices at home or limit what
is actually stored on the device
as much as possible when
crossing the border.
Moreover, U.S. border agents
have broad powers of inspection
and can ask travellers for
their passwords in the course
of routine random inspections
and without any evidence of
contraventions.
This issue, while ranging from
nuisance to grave intrusion for
ordinary Canadians, presents
special complications for lawyers
crossing the border with
laptops and tablets containing
client documents and correspondence
and phones with
work emails and client contact
information. The recent seizure
of a Canadian lawyer’s
cellphone and laptop provides
a worst-case scenario for conscientious
lawyers crossing into
the U.S. A CBSA agent demanded
passwords from the lawyer
in order to search his phone and
laptop. The lawyer did as some
of us have advised lawyers to
do in this circumstance (generally
envisioning encounters with
Homeland Security, not Canada’s
own border agents): he
explained that that the devices
contained solicitor-client privileged
material and that providing
them access would breach
his professional obligations.
The agent confiscated the devices
to send them to be hacked in
a government laboratory. The
lawyer was forced to surrender
the devices with the near certainty
that clients’ confidentiality
would be compromised, rather
than becoming the instrument
of the compromise himself.
Ontario’s Rules of Professional
Conduct set out a clear duty of
confidentiality that binds the
lawyer confronted by such demands
at the border:
3.3-1 A lawyer at all times
shall hold in strict confidence
all information concerning
the business and
affairs of the client acquired
in the course of the professional
relationship and shall
not divulge any such information
unless
(a) expressly or impliedly
authorized by the client;
(b) required by law or by order
of a tribunal of competent
jurisdiction to do so;
(c) required to provide the
information to the Law
Society; or
(d) otherwise permitted by
rules 3.3-2 to 3.3-6.
None of rules 3.3-2 to 3.3-6
provide a lawyer in this predicament
any protection in this scenario.
It is not at all clear that a
demand by CBSA agent—who is
not an officer of the court, not
conducting a police investigation
and holding a warrant, and
need not have any grounds beyond
mere suspicion to search
a lawyer’s devices—fits within
the rule 3.3-1(b) circumstance
of disclosure “required by law.”
Moreover, rule 3.3-1.1 makes
clear that a lawyer making disclosure
because it is “required
by law…shall not disclose more
information than is required.”
This implies an exercise of judgment
and control by the lawyer
that the all-or-nothing demand
for passwords makes impossible.
The ROPC commentary on
these rules offers no guidance
in these unique and extreme
circumstances.
For now, the best lawyers
can do for their clients is to
choose clients’ safety over the
ability to serve them with ease
and convenience: stop crossing
borders with devices containing
client information and
documents, and ensure they
don’t have the ability to comply
with a demand to access privileged
information on demand.
Passengers who don’t wish to
share their social media data
with Homeland Security are
often given this advice: change
your passwords to ones too
random to remember, leave
them with friends in Canada,
set your apps to forget and not
retain passwords, and then delete
them from your devices.
Once across the border, download
your apps and call home
for your passwords. Reverse
and repeat on your way out
of the country. Lawyers might
take this a step farther: ensure
you can only access client files
via VPN and that you can only
access your VPN with a token
code that you can only obtain
by calling your office. Every
time you need to log on. Day
or night. Delete client contacts
from your phone and look
them up via VPN when you
need to call or email.
Obviously none of this fits
the prevailing narrative of
technology improving the
speed and efficiency of the
practice of law.
It is likely that recent and
higher-profile cases involving
non-lawyers will test CB-
SA’s authority to demand
passwords and access to
devices, but these cases will
be premised on violations of
the rights of the passengers
who own the devices, not the
rights of clients relying on
the discretion of their lawyers
to protect clients’ identities
and information when
travelling. Perhaps it is time
for lawyers to take this issue
to the courts themselves.
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The Inside Story
Advocacy at the Intersection of Law and Psychology
Tuesday, June 11, 2019
5:30 PM - 8:00 PM
Arbitration Place, 333 Bay Street, Suite 900, Toronto, ON
Join us for the 2nd installment of our new series created by mid-career advocates for
mid-career advocates. Each session features knowledgeable speakers who will engage in
thought-provoking discussions on law and society, followed by a casual reception. On June
11th our guest speakers will explore the intersection of psychology and advocacy.
Speakers:
Ronald D. Manes, Torkin Manes LLP
Dr. Ken Shulman, Sunnybrook Health Sciences Centre
The Advocates’ Society Members: Complimentary
Non-member lawyers: $20.00 (including HST)
Register
EXAMINING LIABILITY
Waivers of Liability in
Ontario: A Legal Primer
Ibrahim Jamie Arabi (JD, 2019) and
Alysia M. Christiaen, Lerners LLP
From skydiving to car rental services, companies have several resources
to mitigate their exposure to liability. A common method is the waiver of
liability. Also known as “exclusion clauses,” waivers of liability transfer risk
from the company to the consumer by eliminating the consumer’s right to
sue the company.
Waivers of liability are relevant because more Canadians are participating in
traditionally “risky” activities. For instance, indoor amusement and trampoline
parks have become popular in Ontario. Additionally, the immersion of technology
in contract formation deserves attention.
This article examines recent changes regarding the formation and execution
of these waivers. We begin by assessing the electronic nature of these
contracts, finding that they are as enforceable as traditional, paper contracts.
We then determine what constitutes an enforceable waiver of liability, pursuant
the Supreme Court of Canada’s (“SCC”) decision in Tercon Contractors Ltd v
Generously Sponsored By:
An all-encompassing approach 15

British Columbia. 1 While little has
changed since that decision, the
public policy criterion concerning
a parent’s ability to waive
the rights of their children is far
from settled law in Ontario.
Abandoning the Pen for a
Mouse: Electronic Signatures
Although there are logistical
differences between signing
and clicking a mouse, courts
view both methods as acceptable.
Ontario’s Electronic Commerce
Act respects the validity
of electronically-formed contracts
and electronic signatures. 2
The Act states that contract formation
and operation can be
expressed using electronic information,
documents, or acts,
such as touching a computer
screen. 3 Additionally, section
19(3) of the Act provides that a
contract is not prima facie invalid
because of its electronic form. 4
Currently, there are no decisions
that contemplate the validity
of electronic signatures in
Ontario. However, the Queen’s
Bench of Saskatchewan in
Quilichini v Wilson’s Greenhouse
affirmed the province’s legislation,
which is substantially
similar to Ontario’s Electronic
Commerce Act. 5 In that decision,
the Court stated that “[a]
greement to contractual terms
can be expressed by touching
or clicking on an appropriately
designated icon or place on
a computer screen.” 6 As such,
Ontario courts are likely to respect
electronic waivers of liability
as valid contracts.
The following sections discuss
the Tercon test for whether
waivers are enforceable. We
also draw from recent case law
to highlight effective and ineffective
qualities of waivers.
Does the Waiver Apply?
Tercon is Canada’s leading case
on exclusion of liability clauses
and waivers of liability. In that
decision, The SCC majority set
out a three-part test for determining
whether waivers of
liability are enforceable. The
elements are: (i) whether the
exclusion clause applies to the
circumstances in question; (ii)
whether the exclusion clause
was unconscionable at the
time the contract was formed;
and (iii) whether the court
should refuse to enforce the
waiver because of an overriding
public policy. 7 Courts typically
render waivers of liability
unenforceable if they do not
fulfill any of these criteria.
The test from Tercon first inquires
whether a waiver applies
to the factual matrix. 8
In Anderson v Confederation
College, the Ontario Superior
Court of Justice (“ONSC”) stated
that courts “must look not only
at the meaning of the words,
but also at the context.” 9 The
meaning of a waiver clause relies
on the parties’ intention, in
light of the context surrounding
each case. 10
In Anderson, the waiver’s
language was problematic
because it did not cover the
plaintiff’s injury. The waiver
excluded liability for “[i]njuries
or other complications asso-
ciated with exercise or other
physical activities.” 11 In that
case, a basketball hoop struck
the plaintiff’s head while he
was running on a track. The
waiver did not contemplate
injuries resulting from faulty
premises or negligently-placed
equipment. 12 Thus, the waiver
did not insulate the defendant
from negligence.
The Court of Appeal for Ontario
found the inclusion of the
word “negligence” to be an important
element in waivers of
liability. 13 The British Columba
Supreme Court (“BCSC”) went
further, stating that an enforceable
waiver requires more
than the mere presence of the
word. 14 The waiver cannot be
deceptive and the non-drafting
party should be able to understand
its meaning. 15 In Ochoa
v Canadian Mountain Holidays
Inc, the BCSC was satisfied
by the waiver’s bolded words
which explained the legal rights
being waived. Additionally, the
defendant corporation notified
the plaintiff of the waiver’s importance
well in advance of his
participation in the injurious
activities. The BCSC also stated
that having witnesses to the
non-drafting party’s signature
supports the enforcement of
these contracts. 16
Is the Waiver Unconscionable?
The next stage of the Tercon
inquiry assesses whether a
waiver is unconscionable. The
BCSC provided that “there is a
well-established line of authority
in Canada that exclusions
for liability are not, prima facie, unconscionable.”
17 The British Columbia Court of Appeal
(“BCCA”) in Deanna Loychuk v Cougar Mountain
Adventures Ltd supports this statement. The
BCCA found that there is no power imbalance
when a person wishes to engage in inherently
risky recreational behaviour controlled by another.
The BCCA also stated that operators of
risky activities are entitled to require participants
to sign a waiver of their rights. 18
In Dyck v Manitoba Snowmobile Association, the
plaintiff signed a waiver of liability prior to participating
in a snowmobile race. The SCC found
that there was no power imbalance between the
participant and the Manitoba Snowmobile Association
because he freely joined the race, was
not socially or economically pressured to participate,
and was aware of the activities’ dangers. 19
Waivers of liability have been upheld even in the
case of negligence causing death, when the participant
is aware of the inherent risks of the involved
activities. 20
How do you nail down
a judgment?
An appeal takes a refined skill set. Deeper research.
Identifying the right issues. Persuasive factums. And a team
of consummate advocates devoted to knowing the law
and convincing the court. In the right hands, victory is secure.
Lerners Appellate Advocacy Group. Who wins last, wins.
Does Public Policy Override the Viability of
the Waiver?
This section analyzes the final part of the Tercon
test: overriding public policy reasons for disposing
a waiver of liability. We focus on the rights
of minors in Ontario. The law in Ontario is not
settled on this issue, making it difficult to determine
the likelihood that a court would dispose
a waiver on such grounds.
In Wong v Lok’s Martial Arts Centre, the BCSC
decided that contracts binding infants to waive
their rights are unenforceable. 21 However, this
decision was based on the Infants Act of British
Columbia, which states that contracts made
on behalf of minors are invalid. Ontario has no
analogous legislation, making Wong of little assistance
for companies in Ontario.
However, Stevens v Howitt suggests that Ontario
courts have set out procedures to protect
infants. 22 In that case, a parent bound their infant
child in an insurer’s waiver of liability. Later,
the infant was involved in a minor automobile
London contact: Peter Kryworuk, pkryworuk@lerners.ca Toronto contact: Cynthia B. Kuehl, ckuehl@lerners.ca
Sign up for our Netletter at lerners.ca/appeals/netletters/
Lerners LLP | Lerners.ca
16 17

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accident and claimed under her guardians’ policy
of insurance. The ONSC decided that the waiver
was unenforceable, citing “general principles”
regarding the protection of infants. 23
While Howitt supports the public policy argument
for minors in Ontario, no court has followed
the decision. 24 Furthermore, an Ontario court
might find that Howitt applies only to the context
of insurance contracts. The relationship between
an infant and an indoor trampoline park company
is different because the infant, and his or her
guardian, typically understand that the activity is
inherently risky. As such, courts are unlikely to
protect infants under those circumstances.
Whether infants can waive their rights in
Ontario remains a contentious issue. The
dearth of case law and legislation setting out
specific rights for infants, such as British Columbia’s
Infants Act, indicates a current gap
in the law.
Conclusions
Based on the above review of the relevant
jurisprudence, a sound waiver of liability
will include clear, unambiguous language
which, at the same time, is broad enough
to capture the types of negligence which a
party seeks to shelter itself from. Expressly
indicating that the waiver insulates the corporation
from liability related to negligence
is also important. The consumer/participant
should be able to understand the language
in the waiver. A marked difference in bargaining
power could render a waiver of liability
unenforceable. However, in the context of
a participant engaging in a risky activity, such
as skydiving, the waiver will likely be enforceable
so long as the consumer understands
the risks involved in the activity. Generally,
public policy considerations must be shown
to outweigh the “very strong public interest
in the enforcement of contracts.” 25 Very few
of these contracts have been rendered unenforceable
on this ground. As demonstrated
above, the protection of minors in contract
law remains unsettled.
Notes
1 . Tercon Contractors Ltd v British Columbia
(Transportation and Highways), 2010 SCC 4
[2010] 1 SCR 69 [Tercon].
2. Angela Swan & Adamski Jakub, Canadian
Contract Law, 3rd ed (Markham: LexisNexis,
2012) at 263; Electronic Commerce Act, SO
2000, c 17 [Electronic Commerce Act].
3. Electronic Commerce Act, supra note 2, s 19(1).
4. Ibid, s 19(3).
5. Quilichini v Wilson’s Greenhouse, 2017 SKQB
10 (CanLII).
6. Ibid at para 10.
7. Tercon, supra note 1 at paras 122–123.
8. Anderson v Confederation College, 2017 ONSC
5791 (CanLII) [Anderson].
9. Ibid at para 10.
10. Sattva Capital Corp v Creston Moly Corp, 2014
SCC 53 at para 48, [2014] 2 SCR 633; See also
Investors Compensation Scheme Ltd v West
Bromwich Building Society, [1998] 1 All ER 98.
11. Anderson, supra note 9 at para 14.
12. The SCC in Queen v Cognos, [1993] 1 SCR 87,
99 DLR (4th) 626 came to the same conclusion
regarding the applicability of the waiver in
question to the plaintiff’s circumstances.
13 . Creasy et al v Sudbury (Municipality), 1999
CanLII 3820 at paras 28–30, [1999] OJ No
4838 (QL).
14. Ochoa v Canadian Mountain Holidays Inc,
1996 CanLII 378 (BCSC) at para 136.
15. Ibid.
16. Ibid.
17. Ibid.
18 . Deanna Loychuk et al v Cougar Mountain
Adventures Ltd (2012), 31 BCLR (5th) 23 at
para 33, 2012 BCCA 122 (CanLII)
19. Ibid at para 34; Dyck v Manitoba Snowmobile
Association, [1985] 1 SCR 589 at 539, 1985
CanLII 27 (SCC).
20. See Delaney v Cascade River Holidays Ltd, 44
BCLR 24, 1983 CanLII 387.
21. Wong v Lok’s Martial Arts Centre Inc, 2009
BCSC 1385 (CanLII) at para 61.
22 . Stevens v Howitt, 4 DLR (3d) at 52, 1968
CanLII 890 (ONSC).
23 . Ibid.
24 . Bajenaru v Marchie, 2017 ONSC 2864 at para
30, 2017 CanLII 2864 (ONSC).
25 . Tercon, supra note 1 at para 123.
UNFLAPPABLE:
Presentations to Help You Think on Your Feet &
Win Over Today’s Audiences with Steve Hughes
Wednesday, July 17, 2019
Morning: 9:00 am - 12:00 pm | Afternoon: 1:00 pm - 4:00 pm
The Advocates’ Society Education Centre
Develop the skills you need to deliver dynamic presentations and answer questions on
the spot with ease under the guidance of communications expert Steve Hughes.
Join us for the morning session only or stay for the full day.
Steve Hughes
Communications Expert
Hitting Your Stride LLC
Registration from $350 + HST.
Morning-only session where you will learn how to:
• Grab your audience’s attention and keep them engaged
• Prepare an effective roadmap for your presentation
• Establish credibility and appear more dynamic
• Deliver influential and memorable presentations
Full-day session where you will learn how to:
• Take steps to build confidence before the need arises
• Be more agile when speaking off-the-cuff
• Handle questions with ease and flair
• Take more calculated risks in your day-to-day role
This program contains CPD Hours. For
detailed CPD information, please visit our
website at: www.advocates.ca.
The Advocates’ Society has been approved as an Accredited Provider of Professionalism Content
by the Law Society of Ontario, and pre-approved as a CPD Provider by the Law Society of British
Columbia. For accreditation information outside of Ontario, please visit www.advocates.ca

THE 18TH ANNUAL SPRING SYMPOSIUM
Wednesday, April 24, 2019 | The Carlu, Ontario
SIGNATURE CONFERENCE
Presentation of the Emil Gumpert Award to Pro Bono Students Canada for their
Indigenous Human Rights Program
Spring Symposium
Kevin Westell, Pender Litigation
Andrew J. Savage, Savage Law Firm
As a busy Vancouver trial lawyer, it’s not often that I find myself ‘out east’. I count myself as
fortunate that my schedule opened up and afforded me the opportunity to head to Toronto
for this year’s Spring Symposium.
Jointly presented by The American College of Trial Lawyers and the Advocates’ Society, the
theme of this year’s program was “The Advocate Matters”. And it’s no surprise that Conference
Chair Sandra Forbes, along with Vice-Chairs Sandra Barton and Guy Pratte, put together
a truly exceptional roster of speakers and presentations.
As an out-of-towner, it was a treat to watch some of Toronto’s truly great advocates get on
their feet to show how it’s done. The “Electronic Trial Advocacy” panel, moderated by Justice
Goldstein featured dynamic demonstrations from both Danielle Robitaille and Mathew Gottlieb.
Equally compelling were Anne Spafford and Kent Thomson’s demonstrations during
Justice Darla Wilson’s “Expert Evidence” panel.
We were treated to wise words and important lessons from a number of legal legends throughout
the day as well. Valuable insight was shared by Retired Justices Cronk and Binnie. Inspiration
was supplied by eminent counsel Linda Rothstein who spoke about her unique experiences with
high-profile Public Inquires. And perhaps most memorable of all, American criminal lawyer Andrew
Savage left not a dry eye in the house with his powerful keynote address.
While I’ve been a proud member for more than a decade, this was my first opportunity to
attend one of our ‘flagship’ events. It won’t be my last. Congratulations to all who played a
part in making this event such an outstanding success.
20
Sylvia H. Walbolt, Carlton Fields,
Guy J. Pratte, Borden Ladner
Gervais LLP, and The Honourable
W. Ian C. Binnie, Q.C., C.C.,
Lenczner Slaght
Brian J. Gover, Stockwoods LLP
Andrew J. Savage, Savage Law Firm
21

WOMEN IN LITIGATION CALGARY
Tuesday, April 9, 2019 | Hotel Le Germain, Alberta
TAS REPORT - CALGARY
Engagement and Inspiration
at the Calgary Women in
Litigation Symposium
Laurie Livingstone, Cassels Brock
• The Hon. Madam Justice
Marina S. Paperny, Court
of Appeal of Alberta
The second annual Women in Litigation Symposium was held in Calgary on April 9 th . The
gathering brought together a diverse group of participants and presenters from the bench
and bar. Panelists included judges from the Court of Appeal of Alberta and the Provincial
Court as well as litigators from government, regulatory bodies, and private practice. This
year’s event also attracted a diverse cross-section of participants from the family, criminal,
and civil bar as well as those practicing in-house with regulatory bodies. That diversity resulted
in lively round table discussions on mentoring and improving hiring and retention of
women in the profession, as well as engaging Q&A sessions following panel discussions on
taking chances, overcoming implicit bias, and finding confidence in the courtroom.
The highlight of the day was an inspiring keynote address from Madam Justice Marina
Paperny of the Court of Appeal of Alberta. Madam Justice Paperny shared her journey from
being one of a small group of women in her law school class at Osgoode Hall, to being the
first person to ever take a maternity leave at her firm in Calgary, all the way to being one of
the most senior jurists on the Court of Appeal of Alberta. With humour, humility, and some
anecdotes about mountain cycling trips, Justice Paperny shared some of the lessons she has
learned along the way and offered words of encouragement to those still finding their way
in a profession that can present unique challenges for women.
Sincere thanks to Tamara Prince and Cynthia Amsterdam who chaired this year’s symposium
and to Bentham IMF and Heuristica Discovery Counsel for their sponsorship of the event.
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
Celebrating The Hon.
J. Michael MacDonald and
The Hon. Joseph P. Kennedy
Sheree L. Conlon, Q.C., Stewart McKelvey
2019 End of Term Dinner
Thursday, June 20, 2019 | Cocktail Reception: 5:30 pm | Dinner: 7:00 pm
Metro Toronto Convention Centre, North Building, 255 Front Street West, Toronto
Black Tie | A member-only event
VICTORY VERBATIM
REPORTING SERVICES, INC.
Generously sponsored by:
On April 6, 2019, the Advocates’ Society, in conjunction with the Nova Scotia Court of Appeal
and Nova Scotia Supreme Court, hosted a gala in Halifax, NS, celebrating the careers
and contributions of two pillars of the Nova Scotia judicial community – The Honourable J.
Michael MacDonald, Chief Justice of Nova Scotia and Chief Justice of the Nova Scotia Court
of Appeal, who retired on February 1, 2019, and The Honourable Joseph P. Kennedy, Chief
Justice of the Nova Scotia Supreme Court, who retired on May 1, 2019.
The respect they hold among their judicial colleagues, the members of the bar and their
broader communities, was evident throughout the evening, attracting over 500 guests, including
the majority of the Canadian Judicial Counsel, most of the Nova Scotia judiciary
from all levels of courts and members of the bar throughout the entire province.
The Master of Ceremonies for the evening was The Honourable Justice Jamie Campbell,
Supreme Court of Nova Scotia. The Right Honourable Richard Wagner, P.C., Chief Justice of
Canada, who attended with his spouse the Honourable Justice Catherine Mandeville, gave
brief remarks at the start of the program, as did Society President Brian Gover.
Other honoured guests in in attendance were His Honour The Honourable Arthur J. LeBlanc,
ONS, QC, Lieutenant Governor of Nova Scotia, Her Honour Mrs. Patsy LeBlanc and the
Honourable Justice Michael J. Moldaver of the Supreme Court of Canada.
Premier Dinner Sponsor
Cocktail Reception Sponsor
After-Party
Photo Booth Sponsor
After-Party
Patio Sponsor
After-Party
Zone Sponsor
25

A GALA DINNER IN HONOUR OF
THE HON. CHIEF JUSTICE J. MICHAEL MACDONALD AND
THE HON. CHIEF JUSTICE JOSEPH P. KENNEDY
Saturday, April 6, 2019, | Halifax Convention Centre, Nova Scotia
The Hon. Joseph P. Kennedy, Chief Justice of the Nova Scotia Supreme Court, and The Hon.
J. Michael MacDonald, Chief Justice of Nova Scotia and Chief Justice of
the Nova Scotia Court of Appeal
Rounding out a stellar attendance
from the legal and judicial
communities, we were
joined by members of the
Board of Directors of The Advocates’
Society (who for their
first time, and presumably
not their last, held their board
meetings outside of Ontario –
and lived to tell the tale!).
During the evening, guests
were treated to some powerful
performances by accomplished
musicians - Marko
Simmonds, a second year law
student at the Schulich School
of Law and graduate of the
Berkeley School of Music, and
Reeny Smith, a widely celebrated
African Nova Scotian artist.
The Honourable Justice James
C. MacPherson, Court of Appeal
of Ontario, gave a heartfelt and
amusing tribute to Chief Justice
Kennedy, with shared stories
bringing them back to their
younger years growing up in
Bridgewater, Nova Scotia.
Michelle Williams, Director
of the Indigenous Blacks
& Mi’kmaq Initiative at the
Schulich School of Law, spoke
of the positive impact that the
work of Chief Justice MacDonald
has made on the African Nova
Scotian and Mi’kmaq communities
in Nova Scotia, and in Nova
Scotia’s justice system.
What became clear over the
course of the evening was the
close friendship between the
two Chiefs, and the deep respect
they have developed for
each other. So it was particularly
poignant to present them
with an original joint piece commissioned
by award winning
cartoonist Bruce MacKinnon.
But despite that friendship,
and as is often the case at any
east coast social gathering,
some competition emerged
over who “stole the show” with
their humour, and while the
jury is still out on the winner,
one thing was clear to everyone:
the evening gave us all an
opportunity to celebrate – and
acknowledge – the tremendous
accomplishments both
honourees have made to the
administration of justice and
our communities. They will
be missed by many, but their
contributions will have lasting
effects and we are better for
them having been here.
A special thanks to the entire
organizing committee:
The Honourable Justice Elizabeth
Van den Eynden, Nova
Scotia Court of Appeal, The
Honourable Associate Chief
Justice Deborah Smith, Nova
Scotia Supreme Court, The
Honourable John Keith (as he
now is), Faith Gallant, Executive
Assistant to Chief Justice
Kennedy, and last but most
definitely not least, Robin
Black and Rachel Stewart of
The Advocates’ Society.
And to the extent there was
ever any debate, it is now settled
that Atlantic Canada sets
the standard on how to throw
a party!
The Hon. Joseph P. Kennedy, Chief
Justice of the Nova Scotia
Supreme Court
The Hon. J. Michael MacDonald,
Chief Justice of Nova Scotia and
Chief Justice of the Nova Scotia
Court of Appeal
26 27

Allan O’Brien, Nelligan O’Brien Payne LLP –
“As an experienced barrister, reach out
to younger advocates both as a mentor
and as a colleague to welcome them to
our noble and collegial profession. »
David Campbell, Barrister & Solicitor
“When I was an articling student, he invited
me for coffee and gave me the most
valuable advice of my career: Write. Get
involved. Do pro bono.”
IN MEMORIAM
Peter Cronyn, Nelligan O’Brien Payne LLP -
“His remarkable ability to distill a case down to
its uncomplicated essence and then to tell the
story in a simple and compelling way. It would
all appear effortless, which made it even more
persuasive. But we all know how much work he
did to render it that way. “
Ryan Steeves, Gowling WLG-
“Always walk fast- it shows people
that you’re busy.”
Lessons Learned from
David W. Scott, O.C., Q.C
Erin Durant , Borden Ladner Gervais LLP
Justice Peter K. Doody,
Ontario Court of Justice
1.“The three most important
attributes of a great lawyer
are energy, energy, and
energy” and;
2. “Leave me the facts. You
deal with the law. It’s boring.”
Colin Dubeau, Nelligan O’Brien Payne LLP - “The
lesson that still stands out to me was when David, Carol
Brown (now Justice Carol Brown) and I were walking
down Elgin Street to the Courthouse for an application
that David was about to argue. Not surprisingly, he
knew the facts and law inside out and he told me “Never
forget the 5 P’s of advocacy: Prior Preparation Prevents
Poor Performance”. This is a lesson that has stuck with
me and is one I try to live in my practice and teach to
younger lawyers with whom I work.”
Long-time TAS member and leader in the legal community David W. Scott passed away on
March 21, 2019. He was the ultimate leader and mentor at Borden Ladner Gervais LLP and
throughout the legal community. Those who knew him considered themselves incredibly
fortunate to learn from him.
As a way to honour his legacy, we asked a number of people within the legal community:
“What is the most important lesson that you learned from David W. Scott?” These
are their responses:
Nadia Effendi, Borden Ladner Gervais LLP
“As lawyers, all we have is our reputation
and integrity. We must ensure that we never
compromise them and protect both from being
tarnished.”
Bryan Carroll, Carroll
Mediations –
“The client’s interests are
private and paramount.”
28 29

George Hunter, Retired - “The most important
lesson I learned from David Scott was the
obligation each lawyer has to see that every
citizen, regardless of their circumstances, has
meaningful access to justice for without it, the
rule of law is mortally wounded.”
Karen Perron, Borden Ladner Gervais LLP
“David Scott taught me that we are extremely
fortunate as lawyers to be part
of a profession where our knowledge and
abilities enable us to make significant contributions.
We owe it to ourselves and the
profession to be engaged and committed
to making a difference, whether that is by
volunteering on local community boards,
reaching out to those in need or using our
voices to advocate for those who cannot
do so themselves.”
The Rt. Hon. Beverley McLachlin - “The most
important lesson I learned from David Scott is
that every member of the legal community -
lawyers, judges and teachers - are responsible
for maintaining the health of the community
so that it can provide justice to every Canadian
woman, man and child.”
Stephen Victor, Victor Vallance Blais
LLP“ Working with David as cocounsel
during several lengthy trials,
I learned about David W. Scott, the
counsel, the trial lawyer, the advocate.
David waswitty, humorous, eloquent,
articulate, intelligent, concisewho was
always prepared, was tough, had street
smarts, and was a superb strategist.
But most importantly, David Scott cared
and demonstrated a deep humanity for
his clients.”
The Catzman Award
for Professionalism & Civility
Throughout his distinguished career both as an advocate
and a judge, Justice Marvin Catzman earned an exemplary
reputation for his knowledge of the law, his integrity, his
fairness, his civility and his dedication to the highest ideals of
the legal profession. He inspired younger lawyers by example
and contributed to legal education by writing and lecturing
with great insight and humour. He was unfailingly generous to
colleagues with his time and expertise. Justice Catzman’s
career was characterized by all of the qualities that are
encompassed by the terms professionalism and civility.
The successful candidate for the Catzman Award will be
a person who exemplifies these qualities.
Lawrence Greenspon, Greenspon Granger Hill Lawyers “He shared and moulded the lives
of those closest to him with love and caring. He stood up with uncommon and equal strength
for the underprivileged and the powerful. He impacted generations of lawyers throughout
North America., David had that unique combination of huge and generous heart, brilliant
mind, sense of humour and common sense., He challenged those who were privileged to be
close to him to do more and be better and to never give up...He did that by living that way.,
Our nation has lost a leader,we have lost a giant of a human being, and I’ve lost my hero...”
As for me, the most important lesson that I learned from Mr. Scott was to give back to
the community. Lawyers have a very privileged role in society and it is our obligation
to ensure that everyone in our community has access to legal services.
Thanks for the memories, and the lessons, David. We will all miss you.
Call For Nominations
The Catzman family, The Advocates’ Society and the Chief Justice of Ontario’s Advisory
Committee on Professionalism are pleased to call for nominations for an award in memory
of the late Justice Marvin A. Catzman, recognizing individuals who have demonstrated
a high degree of professionalism and civility in the practice of law. The Award will be
presented by the Chief Justice at the Opening of the Courts in September 2019 and
acknowledged at The Advocates’ Society End of Term Dinner in June 2020.
Deadline Friday, May 31, 2019
Please fill out the following nomination form and attach the nominee’s C.V. and two
(2) letters of support (to a maximum of two (2) pages).
For questions, please contact Rachel Stewart, Events and Awards Manager,
at rachel@advocates.ca
SUBMIT NOMINATION
30 31

#TASProud
Congratulations to our Past Presidents,
Directors and Committee leaders from across
Canada who were appointed to the Bench in
the 2018-2019 term.
The Hon. Justice Jennifer Breithaupt
Superior Court of Justice of Ontario
The Hon. Justice Michael Doi
Superior Court of Justice of Ontario
The Hon. Justice John A. Keith
Supreme Court of Nova Scotia
The Hon. Justice Charles LeBlond
Court of Appeal of New Brunswick
The Hon. Justice Sylvain Lussier
Superior Court of Québec
The Hon. Justice Scott Norton
Supreme Court of Nova Scotia
The Hon. Justice Martin F. Sheehan
Superior Court of Québec
The Hon. Justice Benjamin Zarnett
Court of Appeal for Ontario
WOMEN IN LITIGATION EDMONTON
Wednesday, April 10, 2019 | The Sutton Place Hotel, Alberta
Karen Platten, Q.C., McLennan Ross LLP, Lorraine Champion, Executive Director, Lawyer’s Assistance Program, Dr. Roger Brown, Psychiatrist,
and Rose M. Carter, Q.C., Bennett Jones LLP
• Karmen Speakers: Masson, Matt Maurer, Professional Torkin Coach, Manes Lawyer LLP, Sony + Facilitator Gokhale, General Counsel, The Supreme Cannabis Company
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ADR SKILLS FOR FAMILY LAWYERS
Friday, May 3, 2019 | TAS Education Centre, Ontario
LESSONS IN LEADERSHIP
Thursday, May 9, 2019 | The Vancouver Club, British Columbia
“ADR – panel” – Cheryl Goldhart, Goldhart & Associates, Daniel Melamed, Torkin Manes LLP,
Dr. Irwin S. Butkowsky, Psychologist, & Alfred A. Mamo, McKenzie Lake Lawyers LLP
Summer Solstice Celebration
of Women Advocates
Tuesday, June 18, 2019 | 5:00 pm - 7:30 pm
Rodney’s Oyster House, 355 10 Ave SW, Calgary, AB
Celebrate the summer solstice and mingle in a casual setting at this collegial event for the
Calgary bar. We invite advocates from all practice areas to join us to connect and celebrate
women in advocacy.
This year’s Summer Solstice is proud to support the Walk-in Closet program from the
Making Changes Association. We ask all attendees to bring a donation of gently used or
new seasonal workplace clothing, shoes, accessories or outerwear to support this very
important, local program. For a full list of needed items, visit
makingchangesassociation.ca.
Society members and non-member justices, judges, lawyers and law students of all
genders are welcome to register.
REGISTER
SUBMIT
TODAY
NOMINATION
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
35
Speakers: Matt Maurer, Torkin Manes LLP, Sony Gokhale, General Counsel, The Supreme Cannabis Company

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