Keeping Tabs - Spring 2020

Stay up-to-date on news and events from our Young Advocates' Standing Committee (YASC) with Keeping Tabs.

Stay up-to-date on news and events from our Young Advocates' Standing Committee (YASC) with Keeping Tabs.


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The Advocates’ Society<br />

<strong>Spring</strong> <strong>2020</strong>



EOT@Home<br />

Thursday, June 11, <strong>2020</strong> | 6:00 pm<br />

A members-only event<br />

Price: $25 + HST<br />

Fireside Chat with<br />

The Honourable Justice Rosalie Abella,<br />

Supreme Court of Canada<br />

04<br />

07<br />

10<br />

12<br />

14<br />

16<br />

19<br />

24<br />

27<br />

Chair Chat<br />

Malik Martin, Rueters LLP, Toronto<br />

Making the Most of this Challenging Time<br />

Emilia Coto, Sisu Legal<br />

TAS Report: Business Development Tips<br />

Ivan Merrow, Glaholt Bowles LLP<br />

TAS Report: Litigating From Home<br />

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

TAS Report: Commercial Litigation Practice Group<br />

Alexander Evangelista, Fogler, Rubinoff LLP<br />

TAS Report: Handling Mistakes in Practice<br />

Jeffrey Hernaez, Lawson Lundell LLP<br />

YASC Interview: Joshua Sealy-Harrington<br />

Raphael Eghan, Litigation Counsel and Louis Century, Goldblatt Partners LLP<br />

TAS Report: Calgary Fireside Chat<br />

Sarah Rankin, McKay Ferg LLP<br />

Health and Wellness Report: Managing Burnout<br />

Compiled by: Young Advocates’ Standing Committee<br />

Health and Wellness Working Group<br />

Editor: Denise Cooney, Paliare Roland Rosenberg Rothstein LLP<br />

Denise.Cooney@paliareroland.com<br />

<strong>Keeping</strong> <strong>Tabs</strong> Editorial Team: Alexandra Shelley, Torys LLP, Caroline Youdan, Fasken Martineau LLP, Carlo Di Carlo, Stockwoods<br />

LLP, Emilia Coto, Lisa Jørgensen, Ruby Shiller Enenajor DiGiuseppe, Barristers<br />

The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a<br />

voice for young advocates (advocates who are ten years of call or fewer) within the Society and within the profession. We do this<br />

through networking/mentoring events, by publishing articles by and for young advocates, and by raising issues of concern to<br />

young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual authors are their own<br />

and do not necessarily reflect the policies of The Advocates’ Society.<br />



Facing Uncertainty<br />

Malik Martin, Rueters LLP<br />

@HomeAdvocate<br />

As young advocates still finding our<br />

way in the law, we face uncertainty<br />

every day. That uncertainty is sometimes<br />

borne out of our inexperience<br />

in an unfamiliar area of practice. And<br />

sometimes that uncertainty is thrust<br />

upon us by an unusual request from a<br />

client, an ethical dilemma, or an unexpected<br />

court decision. In those times,<br />

we turn to our training or to trusted<br />

mentors and colleagues to meet that<br />

uncertainty with confidence.<br />

In these challenging times, uncertainty<br />

abounds. As we are faced<br />

with the task of rapidly adjusting our<br />

practices, patterns of living, and attitudes<br />

to this new world, the usual<br />

people we turn to for assurance may<br />

be as uncertain as we are. Some of<br />

us are struggling with the isolation of<br />

living and practising alone. Others of<br />

us are struggling with trying to balance<br />

our practices and the needs of<br />

our clients against the needs of our<br />

families. And many of us are also<br />

grieving the loss of friends, family,<br />

colleagues, and livelihoods.<br />

These next days, weeks, and<br />

months will be defining moments in<br />

our careers. Weathering this crisis<br />

will call on us to draw on all the attributes<br />

of great advocates: compassion,<br />

consideration, patience, introspection,<br />

and deliberate and decisive<br />

action in the face of uncertainty and<br />

opposition. Most importantly – and<br />

even as they are increasingly mediated<br />

by technology – we will need to<br />

recognize and reaffirm our relationships<br />

with each other, both as members<br />

of a community of advocates<br />

and of our communities at large. We<br />

will also need to reconsider not only<br />

how, but why, we practice and who<br />

and how we serve when doing so.<br />

None of this will be easy. There<br />

are no easy answers. But one thing<br />

is certain: no one will be able to do<br />

any of these things alone. Reach out<br />

to your fellow advocates. Encourage<br />

them to reach out to you. Share<br />

what you know. Speak candidly<br />

about your struggles. Laugh. Cry.<br />

Curse. Sing. Together.<br />

If you’d like to contribute to<br />

<strong>Keeping</strong> <strong>Tabs</strong> please contact our<br />

editor, Denise Cooney at<br />

Denise.Cooney@paliareroland.com<br />

@HomeAdvocate is here to provide you - our members - with regular updates<br />

on what is happening at TAS and in our profession while we navigate the<br />

‘new normal’ and work to enhance and promote two noble characteristics of<br />

our profession - communication and collegiality. Stay tuned. Stay safe.<br />

Past Issues:<br />

April 27, <strong>2020</strong> @HomeAdvocate<br />

April 20, <strong>2020</strong> @HomeAdvocate<br />

April 13, <strong>2020</strong> @HomeAdvocate<br />

www.advocates.ca<br />

4 5


10 Things Advocates Can<br />

Do to Make the Most of<br />

This Challenging Time<br />

Emilia Coto, Sisu Legal<br />

Sole practitioners and small firm lawyers may face unique challenges during the Covid-19 pandemic. As<br />

a new solo myself, I can relate. However, in every challenge, there are opportunities. Here are ten things<br />

to try to make the most of this challenging time.<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 />

1. Work on your Process and Procedures.<br />

Process and procedures can provide a roadmap<br />

for daily operations. Your documented<br />

procedures may include both administrative<br />

and client service workflows. Processes can<br />

include client intake, document filing, client<br />

communication, task or practice management<br />

software and other tools.<br />

Having clear systems in place will allow you<br />

to better communicate with staff, clients, and<br />

opposing counsel. It also adds consistency to<br />

your practice.<br />

If your practice has slowed down, optimizing<br />

your processes will help you seize opportunities<br />

when things are up and running once again. If<br />

you are finding yourself extra busy during this<br />

time, working on your processes will help you<br />

get the most out of your limited time.<br />

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

6 7

2. Celebrate all your small wins.<br />

According to Steven J. Kramer, author of the<br />

book. “The Progress Principle: Using Small Wins<br />

to Ignite Joy, Engagement, and Creativity at Work”,<br />

of all the things that can boost emotions,<br />

motivations, and perceptions during a workday,<br />

the single most important is making progress<br />

in meaningful work. The more frequently<br />

people experience the sense of progress, the<br />

more likely they are to be creatively productive<br />

in the long run.<br />

Celebrating everyday progress, can make a<br />

difference in how you feel and perform. During<br />

these challenging times, celebrating small<br />

wins can make a big difference to boost your<br />

motivation and performance.<br />

Celebrating everyday<br />

progress, can make a<br />

difference in how you<br />

feel and perform.<br />

3. Automate as much as possible.<br />

Reducing the time you spend on repetitive<br />

tasks will allow you to spend more time on<br />

meaningful work or extra family time. This can<br />

be particularly helpful for sole practitioners and<br />

small firms that may have less support staff than<br />

larger firms. A couple of free or low-cost tools<br />

that I use include: TextExpander and Zapier.<br />

TextExpander allows you to create and save<br />

“snippets” that are designed to create a shortcut for<br />

repetitive words, phrases, or emails. For example,<br />

you can use it for simple things like, “RCP” to avoid<br />

having to type “Rules of Civil Procedure”. Or, you<br />

can use it for e-mails that you send often, such as<br />

one that explains next steps to a client involved<br />

in litigation. For more customized emails, you can<br />

use “fill-in snippets” that have standard text with<br />

blank fields for things like names and dates. The<br />

program is cloud-based so you can access it on all<br />

your devices.<br />

Zapier is a tool that lets you connect apps<br />

or programs that do not normally integrate<br />

together. For example, I use it so that every<br />

time a new project is created in my intake<br />

management tool, a client folder is automatically<br />

created in my file management system. I also<br />

use it to automatically create a subfolder called<br />

“correspondence” and then I can automatically<br />

save all client e-mails and correspondence in that<br />

subfolder. Zapier has free and paid accounts so<br />

you can try it out to see if it’s for you.<br />

4. Stay connected and find a community to<br />

help you adjust and thrive.<br />

Connecting with others can be so helpful in a<br />

time when we are self-isolated. The Advocates’<br />

Society created a discussion forum for members<br />

to share experiences and tips as we all navigate<br />

this abrupt change in our legal environment.<br />

Join the conversation.<br />

5. Set a routine to increase productivity.<br />

A survey by the Harvard Business Review<br />

found that that, “professionals with the highest<br />

productivity scores tended to do well on the same<br />

clusters of habits. They planned their work based<br />

on their top priorities, and then acted with a definite<br />

objective. They developed effective techniques<br />

for managing a high volume of information and<br />

tasks. And they understood the needs of their<br />

colleagues — for short meetings, responsive<br />

communications, and clear directions.” You can<br />

read more about the survey here.<br />

The survey found that strong habits in areas<br />

such as daily schedules, not constantly checking<br />

messages, focusing early on the final product,<br />

and thinking carefully before reading or writing<br />

increased productivity.<br />

6. Avoid the urge to work all day.<br />

According to Sara Robinson, a business consultant, more<br />

than a hundred years of research shows that, “every<br />

hour you work over 40 hours a week [will make you] less<br />

effective and productive in both the short and the long<br />

haul”. This applies even to knowledge workers, such as<br />

advocates. To read more about why working longer won’t<br />

make you more productive, click here.<br />

7. Find tools to help you cope with increased stress<br />

and uncertainty.<br />

The legal profession can be demanding and maintaining<br />

mental health is important at even the best of times.<br />

Find tools that help you exercise mindfulness so that<br />

you can decrease habitual, negative thought patterns<br />

and improve well-being. This issue of <strong>Keeping</strong> <strong>Tabs</strong><br />

includes a number of pieces of advice for coping and<br />

avoiding burnout.<br />

8. Adopt technologies that make it easier to work<br />

from home.<br />

A positive development during this time has been the<br />

amount of information developed to help lawyers work<br />

virtually. For example, The Advocates’ Society hosted<br />

programs on litigating from home. Some advice from<br />

those are in this issue of <strong>Keeping</strong> <strong>Tabs</strong>.<br />

9. Learn something new.<br />

Maybe now is the perfect time to learn something that<br />

you have always wanted to try but could not find the time.<br />

Some companies have taken this time to give back and<br />

offer free courses that normally charge premium fees.<br />

For example, Nikon is offering free online photography<br />

classes for all of April, and Yale is offering its most<br />

popular class ever, “The Science of Well-Being” for free.<br />

10. Reflect on your vision for your practice and use<br />

this time to plan ahead.<br />

One day, this too shall pass. Use this time to plan<br />

ahead and reflect on your vision for your practice.<br />

This will help you map out a way to achieve those<br />

goals once this challenging time passes, and it will<br />

keep you moving forward.<br />

“Finding opportunity is a matter of believing it’s there”<br />

– Unknown.<br />

8 9


Six Business Development<br />

Tips for Litigators in their<br />

First Six Years<br />

Ivan Merrow, Glaholt Bowles LLP<br />

Business development serves many purposes: greater independence,<br />

more work in a practice or industry niche, richer relationships with clients<br />

and referral sources, as well as financial security. No matter the motivation,<br />

the path to a sustainable practice is paved with hard work. The challenge is<br />

that not all efforts to “bring in business” lead to results.<br />

During The Advocates’ Society’s recent multi-part program “Business Development<br />

for Litigators,” the following six tips were particularly helpful for<br />

litigators in their first six years of practice<br />

1. Be excellent. We’ve all heard that exceptional service, legal work, and results<br />

are the bedrock of our reputation. By doing great work we increase the<br />

likelihood that our clients and other professionals will refer us work.<br />

2. Ask for the work. Others may not refer us<br />

work unless they know what we can do and what<br />

types of files we are seeking. We need to know<br />

what type of work we want and who can refer that<br />

work to us, so we can ask for it.<br />

3. Develop connections. Before a file arrives,<br />

several stars must align. Someone must have<br />

a potential file, know what we do, trust us,<br />

believe we are the right person for the work,<br />

reach out, and get a timely response. Current<br />

clients should meet all six criteria. For that<br />

reason, current clients are the best source of<br />

future work. The trick is get to know clients<br />

and grow our “pipeline” of potential files while<br />

delivering great work.<br />

4. Know yourself. To be sustainable, business<br />

development activities should not<br />

drain us. Pursuing initiatives that bring<br />

us joy and energy make it more likely we<br />

will stay consistent. If we enjoy writing,<br />

we should write. If we enjoy lunching, we<br />

should lunch. Knowing our strengths makes<br />

business development less burdensome.<br />

5. Build a specialty. To become and stay<br />

top-of-mind with potential clients, it helps to<br />

have a specialty or two. Whether our focus is<br />

on an industry, a practice niche, or a type of client,<br />

we all have areas where we excel. By consistently<br />

communicating those strengths and<br />

interests we are more likely to come to mind<br />

when a litigation opportunity arises.<br />

6. Follow up. Whether it’s a business card, an<br />

email, a meeting, or a passing conversation, we<br />

need to follow up to keep relationships moving<br />

forward. After going to the effort of attending<br />

a conference, writing an article, or speaking<br />

on a panel, we should create opportunities to<br />

continue to engage. Think about the next step,<br />

how others may get to know us better, and<br />

how we may make it more likely we will come<br />

to mind as the right person to call.<br />

While these tips do not do justice to all of the<br />

insights shared at “Business Development for<br />

Litigators,” they are a good start to developing<br />

internal firm work sources and external clients.<br />

Consider sending me or a colleague a message<br />

to start a conversation about the type of work<br />

you are looking to grow in the coming months.<br />

It may lead to a great opportunity.<br />

10 11


Litigating from Home:<br />

A Starter Kit<br />

Emily Home,<br />

Paliare Roland Rosenberg Rothstein LLP<br />

On March 27, <strong>2020</strong>, The Advocates’ Society hosted “Litigating from Home:<br />

A Starter Kit.” Fittingly, due to new COVID-19 physical distancing measures,<br />

the program was held online as a live webcast. Yola Ventresca of Lerners<br />

LLP moderated a discussion between Brent J. Arnold of Gowling WLG (Canada)<br />

LLP, Sinead Bovell the founder of WAYE, and Breanna Needham of<br />

Borden Ladner Gervais LLP.<br />

Acknowledging that many lawyers had been thrust into a virtual practice<br />

in the preceding weeks and were now taking video conference calls from<br />

their spare bedroom or kitchen table, Yola focused the discussion on practical<br />

tips for getting up to speed in our new reality. Breanna and Brent discussed<br />

their must-have items for setting up a home office. Some of the essential<br />

hardware they recommended included a laptop, smartphone, and<br />

high speed internet connection. Microphones,<br />

lap desks, and phone headsets were also identified<br />

as nice-to-have items.<br />

On software, this new reality creates opportunity<br />

for lawyers to explore the growing range<br />

of products designed to make litigation more<br />

streamlined, including programs such as TranscriptPad<br />

(for reviewing transcripts and generating<br />

refusals charts electronically), Duet (which<br />

allows you to extend your computer screen to an<br />

iPad), Notability (for taking handwritten or typed<br />

notes along with recording audio), ProView<br />

(Westlaw’s online subscription-based library),<br />

and CiteRight (for generating footnotes and<br />

books of authority, and linking the two electronically<br />

– perhaps even more important now that<br />

we are filing more documents electronically).<br />

Of course, we have all become Zoom experts<br />

recently. However, as Brent pointed out, other<br />

programs can also facilitate staying in touch<br />

remotely. For example, dedicated chat apps<br />

such as Lync and Slack allow teams to have<br />

ongoing text-based discussions.<br />

Sinead made the excellent point that while<br />

some lawyers may have experience working<br />

remotely, it is likely that of their legal assistants<br />

do not. The lawyer-assistant relationship<br />

that is predominately virtual can cause<br />

issues when the assistant has far less visibility<br />

into what their lawyer’s day looks like. It is<br />

much easier to see if someone’s office door<br />

is closed, or if they are away from their desk,<br />

than to know whether their children are in the<br />

middle of a meltdown on the living room floor.<br />

Actively keeping in touch with support staff via<br />

either email, chat, or video calls is crucial for<br />

maintaining an effective working relationship.<br />

Sinead, Brent, and Breanna also touched<br />

on the do’s-and-don’ts of video conferencing.<br />

Breanna noted that the concept of “dressing<br />

appropriately” is fraught at the best of times,<br />

particularly for women. She advocated for<br />

reading the room: there are lawyers who are<br />

going to be dressed in a suit and tie for a video<br />

call. Others will not. There are judicial teleconferences.<br />

Some clients may be particularly<br />

formal. In those circumstances, put on a<br />

shirt you would wear to the office and get to<br />

work. That being said, a one-on-one call with<br />

a partner you work with regularly likely does<br />

not call for the same level of formality.<br />

The seminar concluded with a plug for lawyers<br />

to make use of existing social networking<br />

tools such as Twitter. Sinead noted that there<br />

will not be any in-person networking over<br />

the coming weeks and months, and therefore<br />

online presence will play an increasingly<br />

prominent role in forging connections.<br />

Twitter is also a useful way to stay informed<br />

about the legal world. Many courts have Twitter<br />

accounts and regularly use them to post<br />

updates to the profession. In these unusual<br />

times it is important to stay connected in any<br />

way we can. Seminars such as these are a<br />

great tool to help us do just that.<br />

12 13


Top Takeaways in<br />

Commercial<br />

Litigation, 2019<br />

Alexander Evangelista, Fogler, Rubinoff LLP<br />

On February 25, <strong>2020</strong>, The Advocates’ Society hosted its annual “Top Cases<br />

in Commercial Litigation” program, moderated by Cynthia Spry (Babin<br />

Bessner Spry LLP). Eric Brousseau (Ross Barristers Professional Corporation),<br />

Sinziana Hennig (Stikeman Elliott LLP) and Kyle Kuepfer (Fogler, Rubinoff<br />

LLP) presented on several commercial law cases from the past year<br />

or so. Two of those cases were:<br />

· Alectra Utilities Corporation v. Solar Power Network Inc. 2019 ONCA 254; and<br />

· Wright v. Urbanek 2019 ONCA 823.<br />

In these cases, there were two takeaways for litigators that particularly<br />

stood out.<br />

Forewarned is Forearmed<br />

Your pre-litigation decisions will inform<br />

your client’s future options. In Alectra<br />

Utilities, the Court of Appeal refused to<br />

overturn an arbitrator’s decision where<br />

the arbitrator acted within their jurisdiction<br />

and where the arbitration agreement<br />

excluded a right of appeal. If you do not<br />

intend to include a right of appeal in your<br />

arbitration agreement, you should discuss<br />

that intention with your client so as<br />

to avoid an unpleasant surprise later on.<br />

Make Your Claims as Simple as Possible,<br />

But No Simpler<br />

It is essential to include necessary causes<br />

of action in your pleading, but don’t overplead.<br />

In Wright, the Court of Appeal ruled<br />

that even if an issue is decided without a<br />

related cause of action having been pleaded,<br />

trying to re-litigate that issue later on<br />

may be an abuse of process. To avoid this<br />

issue, your instinct may be to plead every<br />

possible cause of action. However, as Ms.<br />

Hennig said, “one of the issues with pleading<br />

all the claims is, at some point, all of the<br />

‘in the alternative’ arguments will undercut<br />

each other”. It is important to decide what<br />

your case is – and what your case is not –<br />

at an early stage and to ensure that your<br />

client understands what issues may be adjudicated,<br />

even if they are not pleaded.<br />

14 15


Oops! Don’t Do It Again:<br />

Tips for Young Advocates<br />

on Handling Mistakes<br />

in Practice<br />

Jeffrey Hernaez, Lawson Lundell LLP<br />

On February 27, <strong>2020</strong>, YASC invited its West Coast members to The Vancouver<br />

Club for a fireside chat on a topic that makes any lawyer’s heart race:<br />

handling mistakes in practice. A panel of senior practitioners and a representative<br />

of the Law Society of British Columbia’s Lawyers Indemnity Fund<br />

(“LIF”) offered advice on dealing gracefully with blunders and oversights in<br />

practice. These were the top four takeaways from the chat.<br />

1. Mistakes Happen More Often Than You Think<br />

The most humbling part of the discussion was<br />

the recognition and realization that mistakes<br />

happen more often than most lawyers think,<br />

even among seasoned practitioners. Errors<br />

are most likely to occur when a lawyer is overwhelmed<br />

with his or her workload, fails to communicate<br />

effectively with his or her client, or forgets<br />

to diarize a deadline or limitation period.<br />

2. Ask for Help<br />

When you discover or fear that you have made<br />

a mistake, reach out to a mentor or other lawyer<br />

you trust. Often, what initially appears to<br />

be a catastrophic mistake turns out to be easily<br />

fixable, or not a mistake at all. Even if you have<br />

made a serious error, it’s best to resist the urge<br />

to try to fix it on your own, or—even worse—say<br />

nothing at all and miss the opportunity to come<br />

up with an effective solution.<br />

One of the most comforting parts of the<br />

discussion was hearing senior lawyers talk<br />

about the times early on in their careers<br />

when they feared they had made a mistake,<br />

summoned the courage to tell someone<br />

about it, and then realized that their “error”<br />

could easily be fixed.<br />

3. Notify the Relevant Parties<br />

If you do make an error, it is important to notify<br />

the right people. In British Columbia, that<br />

includes LIF. You must notify LIF if you become<br />

aware of an error or other circumstance<br />

which could reasonably be expected to be<br />

the basis of a claim. If LIF does get involved,<br />

lawyers are expected to cooperate with any<br />

investigation and attempt to repair the error.<br />

Lawyers are also expected to cooperate with<br />

any disciplinary proceedings initiated by the<br />

Law Society.<br />

4. Use Resources Available to You<br />

While mistakes in practice are bound to occur,<br />

there are various resources available to help<br />

lawyers avoid common pitfalls. For example,<br />

the Law Society of British Columbia has<br />

created a Limitations and Deadlines Quick<br />

Reference List that summarizes the various<br />

limitations and deadlines that practitioners<br />

often face in general practice. The Law<br />

Society also has practice advisors on call who<br />

are able to provide confidential advice on a<br />

wide array of practice topics.<br />

The bottom line? Mistakes happen; it’s the<br />

way you deal with them that makes all the<br />

difference.<br />

Special thanks to the panel members:<br />

· Samantha Chang (Moderator),<br />

McEwan Partners LLP<br />

· Maryanne Prohl, Indemnity Risk Manager,<br />

Lawyers’ Indemnity Fund<br />

· Tony Paisana, Peck & Company<br />

· Aidan Cameron, McCarthy Tetrault LLP<br />

16 17

<strong>Spring</strong> Symposium <strong>2020</strong><br />

April 29 | May 5 | May 7<br />

1:00 pm - 3:00 pm | Webcast<br />

There is something for everyone at this year’s <strong>Spring</strong> Symposium. Our three virtual<br />

micro-symposia will cover the latest developments, strategies, tools and tips for<br />

success in your practice. We have developed this series of shorter, focused programs<br />

to fit your budget and allow you to watch via live webcast from the comfort of your<br />

home office, or later at your leisure.<br />

Join our all-star faculty at three micro-symposia – attend one, two, or all three to get<br />

the full <strong>Spring</strong> Symposium virtual experience!<br />


MODULE 1: The Civil Advocate<br />

Wednesday, April 29, <strong>2020</strong><br />

1:00 pm - 3:00 pm<br />

Register for Module 1 here<br />

MODULE 2: The Skilled Advocate<br />

Tuesday, May 5, <strong>2020</strong><br />

1:00 pm - 3:00 pm<br />

Register for Module 2 here<br />

MODULE 3: The Well-Informed Advocate<br />

Thursday, May 7, <strong>2020</strong><br />

1:00 pm - 3:00 pm<br />

Register for Module 3 here<br />

Critical Race Theory and<br />

the Legal Profession<br />

Interview with Joshua Sealy-Harrington<br />

Raphael Eghan, Litigation Counsel and<br />

Louis Century, Goldblatt Partners LLP<br />

Register for all 3 sessions<br />

Joshua Sealy-Harrington is perhaps best known in the Canadian legal community by his Twitter handle<br />

@joshuasealy, for which he won a Canadian Law Blog Award in 2019. The awards committee praised<br />

him for “bringing conceptual clarity to everything he touches.” In a few short years, Sealy-Harrington<br />

has quickly established himself as a leader in public discussions about race in the legal profession.<br />

Sealy-Harrington composes “threads” or “Twitter essays” comprised of a series of 280-character<br />

Tweets, unpacking the complex issues around race that have confronted the profession.<br />

To learn more or register, click here.<br />

18 19

CRT is an academic field<br />

that integrates race,<br />

racism, and the law’s<br />

role in their creation<br />

and reification.<br />

Using Twitter essays, Sealy-Harrington systematically<br />

rebuts the arguments of those opposed to diversity<br />

or equity initiatives in the profession, often<br />

uncovering racist or sexist logic behind them. Examples<br />

of his viral threads include a thread on “fit”<br />

in the legal profession and its overlap with race, a<br />

thread on anti-racism advocacy and “civility” in relation<br />

to the Statement of Principles debate in Ontario,<br />

a thread on COVID-19 and systemic racism,<br />

and several threads rebutting op-eds that downplay<br />

Canadian racism by authors such as Jonathan<br />

Kay and Jordan Peterson. His most viral Twitter essay<br />

was an authoritative comment on the Trudeau<br />

#brownface (and later #blackface) scandal, walking<br />

his followers through the complexity that systemic<br />

racism requires, which Sealy-Harrington later published<br />

in Newsweek Magazine.<br />

Sealy-Harrington credits his ability to distill<br />

complex questions of race and identity into<br />

compelling Twitter essays to five formative experiences:<br />

(1) his years of competitive debating,<br />

where he developed his advocacy skills; (2) his<br />

undergraduate studies in mathematics, where<br />

he learned analytical clarity and rigour; (3) his<br />

JD at the University of Calgary, which translated<br />

his mathematical expertise into the vocabulary<br />

of law; (4) his clerkships, for Justice Rennie then<br />

of the Federal Court and Justice Gascon of the<br />

Supreme Court of Canada, and in particular the<br />

thoughtful dialogue with his judges and fellow<br />

clerks; and (5) finally, his current doctoral studies<br />

at Columbia Law School which have exposed<br />

him to critical legal thought.<br />

On behalf of the Young Advocates’ Standing<br />

Committee’s Future of the Profession Working<br />

Group, we sat down (virtually speaking) with<br />

Sealy-Harrington to learn more about his social<br />

media advocacy, Critical Race Theory and its application<br />

to the Canadian legal profession. The<br />

interview has been lightly edited.<br />

In your doctoral studies you work with<br />

leading American scholars of Critical Race<br />

Theory (CRT). Can you describe CRT?<br />

CRT is an academic field that integrates race,<br />

racism, and the law’s role in their creation and<br />

reification. While its name may be unfamiliar to<br />

some, its insights are commonplace in progressive<br />

circles: understanding that a historical lens<br />

is integral to contemporary political projects is<br />

CRT; acknowledging how forms of power operate<br />

behind and through our legal system is CRT;<br />

and knowing that formal equality is inadequate<br />

for achieving meaningful equity is CRT.<br />

CRT radically critiques our legal system. But it<br />

is reflected in parts of that system as well. The<br />

Charter becomes a CRT document when, under<br />

s. 15(2), it anticipates and rejects “reverse racism”<br />

as a meaningful attack on ameliorative schemes.<br />

And the Supreme Court of Canada acts as a CRT<br />

body when, in R v Le, 2019 SCC 34, it holds that<br />

a proper constitutional analysis takes account of<br />

“the larger, historic and social context of race relations<br />

between the police and the various racial<br />

groups and individuals in our society.” Accordingly,<br />

while CRT provides a lens through which to<br />

critique our legal system, it is also, in some ways,<br />

embedded within that system.<br />

What is it about Twitter that helps or hinders<br />

the promulgation of anti-racist ideas in law?<br />

Twitter can help and hinder critical racial thought.<br />

It can help because Twitter—and other social<br />

media platforms—can democratize power.<br />

In particular, Twitter can, for many disenfranchised<br />

communities, offer a unique platform<br />

for those communities to share stories that<br />

would otherwise fall outside the scope of our<br />

collective imagination. In this way, Twitter democratizes<br />

not just power, but the reality in<br />

which that power is assessed, negotiated, and<br />

distributed. In turn, Twitter can mobilize community<br />

building and solidarity.<br />

But Twitter can also hinder critical racial<br />

thought. Twitter’s character limit favours oversimplification,<br />

which fails to engage with the<br />

nuances of race and racism (as well as other<br />

forms of subordination). Further, Twitter’s algorithms<br />

and interface compromise our discourse—they<br />

can subtly conceal our frame of<br />

reference within echo chambers (why I go out<br />

of my way to follow many accounts I politically<br />

disagree with); they can promote incivility,<br />

or worse, harassment and threats (something<br />

which disproportionately affects marginalized<br />

communities);; and they can weaken our mental<br />

health.<br />

It must be emotionally exhausting to constantly<br />

have to engage with racist ideas<br />

and unpack them for less informed readers.<br />

What keeps you going?<br />

Fighting racism can be exhausting. That said, as<br />

an individual blessed with relative privilege (e.g.,<br />

male, lighter-skinned, well-educated) I feel a genuine<br />

moral imperative to exercise that privilege<br />

with a view to disseminating principles of anti-subordination.<br />

And as one of the few racialized<br />

lawyers in the legal circles I have existed in—as<br />

a student at law school, a lawyer in commercial<br />

practice, and a clerk at the Federal and Supreme<br />

Court—that imperative is only amplified.<br />

Equity, Diversity and Inclusion (EDI) in the<br />

legal profession has been a flashpoint in the<br />

past year, accentuated by the election of a<br />

slate of Benchers opposed to the Statement<br />

of Principles. How can CRT contribute to our<br />

understanding of debates around the Statement<br />

of Principles and EDI more generally?<br />

In an article I published earlier this month<br />

with the Ottawa Law Review, I apply a CRT<br />

lens to the Statement of Principles debate.<br />

Specifically, Section II of the paper—“Critical<br />

Analysis: Liberty Veils and Equality Tales”—<br />

explores how liberty claims like “free speech”<br />

are mobilized in conservative rhetoric to<br />

conceal regressive politics. In my view, CRT<br />

does not simply “contribute” to understanding<br />

equality debates; it is indispensable.<br />

20 21

The election of the Stop SOP “slate” as<br />

benchers of the Law Society of Ontario in<br />

2019 was a low point for supporters of EDI,<br />

however this has also coincided with unprecedented<br />

public discourse about systemic<br />

racism in the legal profession. In your view<br />

as a scholar of CRT, has the public discourse<br />

about race been a silver lining in otherwise<br />

difficult times for EDI? Is racial literacy improving<br />

among lawyers?<br />

While the election of the Stop SOP slate was disappointing,<br />

and while their rhetoric is, in particular,<br />

disheartening for the next generation<br />

of racialized lawyers, I think three silver linings<br />

have emerged from the election and the ensuing<br />

debate surrounding the Statement of Principles:<br />

(1) the inconsistency and (unintended)<br />

transparency of the shifting Stop SOP position<br />

unmasked the regressive politics of various<br />

lawyers in the profession; (2) the SOP debates<br />

brought many lawyers who do not typically reflect<br />

on issues of race and racism into the conversation;<br />

and (3) the support for equality initiatives<br />

within the law society has galvanized a<br />

broad coalition of progressive lawyers and built<br />

solidarity along lines of race, gender, class, indigeneity,<br />

sexuality, disability, and more (though<br />

I acknowledge that the SOP discourse has concentrated<br />

on issues of gender and race, such<br />

that other vectors of oppression warrant greater<br />

reflection and discussion).<br />

Many law firms now have diversity committees,<br />

EDI policies and/or provide training on<br />

topics such as unconscious bias. Are these<br />

approaches adequate?<br />

Adequate to what end? Law firms—and the<br />

law more generally—have a complex relationship<br />

with racial justice. And the sufficiency<br />

of particular internal measures depends<br />

on the objectives of those measures. If law<br />

firms want to decrease unconscious bias—<br />

one of myriad forms through which racism is<br />

spread—then unconscious bias training may<br />

be effective. But if law firms want to develop a<br />

truly inclusive culture they will need to reckon<br />

with the various ways in which existing legal<br />

cultures systemically disadvantage marginalized<br />

communities. And if law firms want to<br />

grapple with how they participate in a competitive<br />

and capitalistic enterprise—which itself<br />

perpetuates racial subordination—they<br />

will have to fundamentally rethink the work<br />

they do, how they are compensated for it, and<br />

the prevailing legal order that governs them.<br />

We are interested in the language used to describe<br />

and address racism. Many initiatives<br />

in the profession use language such as “diversity<br />

and inclusion” or “unconscious bias”<br />

while avoiding more direct language such as<br />

“anti-black racism,” “white privilege” or “cultural<br />

whiteness.” Is this a shortcoming of EDI<br />

approaches or a necessary stepping stone?<br />

Can you comment on choice of language and<br />

how it relates to the broader process of racial<br />

justice education?<br />

Language matters. The words we use to describe<br />

our world and experiences limit how we<br />

imagine and interpret them. Further, the more<br />

we use codes and euphemisms, the less we<br />

speak directly and candidly about the forms<br />

of racial subordination that we are seeking to<br />

address. This does not mean that phrases like<br />

“diversity and inclusion” or “unconscious bias”<br />

are unhelpful. Indeed, in certain contexts,<br />

such umbrella terms do productive conceptual<br />

work. But I think it is also critical, when discussing<br />

these concepts in greater detail, to engage<br />

with the more granular aspects of racial hierarchy<br />

they capture.<br />

What are three things every lawyer can do<br />

to incorporate CRT principles into their daily<br />

practices?<br />

(1) Acknowledge the ways in which privilege<br />

grants them unearned advantages; (2) Reflect<br />

on how systemic racism within their practice<br />

disadvantages racialized communities; and (3)<br />

Commit to outcomes, not just process. For example,<br />

if after ten years of diversity initiatives your<br />

firm is not substantially more diverse—at all levels<br />

of seniority—then ask why, and do more.<br />

Do you have any general advice for young<br />

advocates and firms who want to meaningfully<br />

promote EDI in the profession?<br />

Be comprehensive. Racism comes in many<br />

forms, including: systemic racism (i.e., norms<br />

that disparately impact racialized communities);<br />

implicit bias (i.e., unconscious negative<br />

associations with racialized people); and<br />

microaggressions (i.e., common interactions<br />

that, with accumulation, create a sense of<br />

exclusion in racialized people). Any meaningful<br />

EDI program must account for the various<br />

ways in which race is a site for exclusion<br />

within the profession.<br />

You recently drafted the moot problem for<br />

the Julius Alexander Isaac Moot, administered<br />

by the Black Law Students’ Association<br />

of Canada. The problem involved an issue of<br />

racial profiling and mooters were required<br />

to advance not only legal arguments, but<br />

also theoretical arguments rooted in CRT<br />

in support of their arguments. Why was<br />

it important to incorporate CRT into a law<br />

school moot? In what ways would improved<br />

knowledge and understanding of CRT enhance<br />

lawyers’ abilities and client service ?<br />

On question one—the importance of explicitly<br />

incorporating CRT into the moot—I believe<br />

there is an imperative for more CRT in Canadian<br />

legal academia. Last year, I tweeted about<br />

where CRT is located in Canadian universities.<br />

Many scholars in other disciplines—e.g., sociology,<br />

anthropology, education—said that<br />

CRT featured prominently in their education<br />

or pedagogy. In contrast, relatively few legal<br />

scholars and law students taught or learned<br />

CRT. I view the Isaac Moot as a small means<br />

through which I can expose more students to<br />

critical legal thought, and specifically, critical<br />

legal thought about race.<br />

On question two—how CRT enhances lawyer<br />

competence—I think that, while CRT enhances<br />

lawyer competence, it more importantly<br />

enhances social responsibility. Critical reflection<br />

on law and power absolutely enhances<br />

legal skill. Indeed, effective legal advocacy<br />

necessarily grapples with how power and<br />

context influence human experience and legal<br />

reasoning. For example, a defence lawyer<br />

not conversant in racism and colonialism is,<br />

quite frankly, missing a critical lens through<br />

which to interpret the experience of their clients<br />

and advocate against the systems that<br />

oppress those clients. But, more importantly,<br />

CRT pushes lawyers to think deeper about<br />

how the existing legal order itself is a site of<br />

racial subordination. In this way, greater instruction<br />

in CRT will not only promote more<br />

competent lawyers, but a more progressive legal<br />

system. And, in anticipation of this point<br />

being unfairly criticized by some as reflecting<br />

my desire for ideological brainwashing in<br />

the legal academy, let me say this: neutrality<br />

is ideological—a political commitment to the<br />

status quo. If you teach systemic racism in<br />

criminal law, you are teaching criminal law.<br />

If you teach colour blindness in criminal law,<br />

you are teaching white supremacy.<br />

22 23


YASC Fireside Chat,<br />

Calgary<br />

Sarah Rankin, McKay Ferg LLP<br />

On February 27, <strong>2020</strong> a group of young advocates gathered in front of a<br />

roaring fire at the Petroleum Club in Calgary as Justice David Gates and<br />

Shane Parker, Q.C. offered their advice on advocacy, resilience and professional<br />

growth. Both discussed the challenges they see facing young advocates,<br />

and the Bar as a whole, as they described their own approaches to<br />

life in the law. Here are the top takeaways from the evening.<br />

1. Always “Review the Tapes”<br />

Mr. Parker worked as a hockey coach before going into law. To this day,<br />

despite having a reputation as one of Alberta’s most respected and skilled<br />

Crown prosecutors, he still “reviews the tapes” at the end of every matter. He<br />

emphasized the importance of identifying what went well as much as what<br />

went wrong—post-performance review should not just be about self-criticism,<br />

but should be a frank appraisal of all the skills that came into play.<br />

2. Trust Your Gut<br />

Justice Gates addressed one of the most consistent<br />

challenges for developing advocates: making<br />

tough judgment calls. Acknowledging that<br />

much of the practice of law involves exercising<br />

judgment in the face of uncertainty, and that<br />

this can be a source of anxiety for junior counsel,<br />

he reminded attendees that they’ve earned<br />

their positions by being accomplished and talented<br />

people. It can be helpful to reach out for<br />

guidance or to discuss difficult questions, but it<br />

is also important for counsel not to get lost in<br />

the sea of opinions and to trust themselves.<br />

3. Be Collegial<br />

Both speakers described the challenges of navigating<br />

relationships with opposing counsel. Mr.<br />

Parker described his practice of trying to have<br />

coffee or some sort of collegial meeting with<br />

opposing counsel in any significant trial matter,<br />

in an effort to manage conflict down the line.<br />

He encouraged counsel to try to lay the foundation<br />

for a productive relationship with opposing<br />

counsel—one which can be drawn on if and<br />

when litigation becomes contentious or heated.<br />

4. Know Yourself<br />

As the discussion came to a close, both speakers<br />

were asked about their tips for remaining<br />

resilient in practice and building a fulfilling<br />

and sustainable career. In addition to the important<br />

(but often overlooked) basics, like a<br />

strong social support network and plain old<br />

vacations, both speakers talked about the importance<br />

of getting to know oneself and being<br />

honest about one’s aptitudes and capacities.<br />

This can include examining how one defines<br />

victories and losses, and reframing expectations<br />

to better reflect the realities of practice.<br />

We can’t control the facts or the outcomes,<br />

but we can set specific goals about our performance<br />

or approach that apply regardless<br />

of how the matter turns out.<br />

Today, it feels like another lifetime when colleagues<br />

could gather in a cozy space for professional<br />

guidance. This Fireside Chat offered a<br />

uniquely candid set of insights and stories from<br />

two of Calgary’s most respected legal minds,<br />

and it was clear that all in attendance were<br />

grateful for their experience and their time.<br />

24 25

Mentors and<br />

Mentees Connect!<br />

We encourage intermediate and senior members to ‘Opt-in’ on their profile<br />

page and make themselves available to our junior members, to lend an ear<br />

and offer some support and advice. This portal is for TAS members only<br />

and is not intended for members to seek case specific advice. All members<br />

who seek to engage in a mentoring relationship using the Mentoring Portal<br />

are asked to read “The Advocates’ Society Guide to Mentoring” and sign a<br />

Mentoring Agreement.<br />

Members! Make yourself available as a Mentor on your Member Profile.<br />


Access the Member Directory<br />

Managing Burnout When<br />

You Don’t Have The Time<br />

Compiled by: Young Advocates’ Standing<br />

Committee Health and Wellness Working Group<br />

We have all been there before: in the middle of a long arbitration; while<br />

maintaining an uncomfortably high workload when others are not available;<br />

or when trying to balance personal obligations with an extremely<br />

busy period of practice.<br />

When you get “too busy” or “too stressed” it can be hard to apply the typical<br />

advice for managing burnout, which usually involves resting and turning<br />

healthy goals into lasting changes. Given the added stress of adapting<br />

to new professional and personal circumstances during the COVID-19 pandemic,<br />

it is more important than ever to develop tools to stave off burnout<br />

during intense periods. Therefore, we hope the following tips are helpful.<br />

26 27

Find Something to Look Forward<br />

To. “During crunch time, work<br />

can feel all encompassing. To<br />

break up the long periods of<br />

work, try to book a smaller<br />

moment each day (30 minute<br />

walk; bath before bed; phone<br />

call with a friend) and a larger<br />

moment each week ((virtual)<br />

dinner with friends or colleagues;<br />

go on a bike ride) that<br />

you can look forward to. This<br />

may help to keep you motivated<br />

and moving forward.”<br />

- Brendan MacArthur-Stevens,<br />

Blake Cassels & Graydon LLP,<br />

Calgary, AB<br />

Know your limits and ask for help<br />

when necessary. “In the first years<br />

of practice we want to do everything—work<br />

with new people,<br />

take on interesting files, learn<br />

new things, and challenge ourselves—but<br />

you can’t do everything.<br />

Learn to say no. If you find<br />

you have taken on too much, ask<br />

for help from colleagues as early<br />

as possible. And don’t forget to<br />

be a team player when your colleague<br />

needs you to reciprocate<br />

the favour.”<br />

- Claudia Cappuccitti, Dyer Brown<br />

LLP, Toronto, ON<br />

From time to time, take a<br />

deep breath: “Taking even<br />

a few deep breaths will<br />

immediately improve the<br />

state of your body and<br />

your mind. And, you can<br />

take a deep breath anytime,<br />

anywhere, even in<br />

the middle of the most<br />

challenging situations.”<br />

- Ben Grant, Conway<br />

Baxter Wilson LLP/s.r.l.,<br />

Ottawa, ON<br />

It’s OK to be human. “When faced<br />

with immense pressure and<br />

deadlines, remember that you<br />

are human and it is okay to feel<br />

stressed or even have a meltdown.<br />

If you need it, take a moment<br />

to cry or let it out, and then<br />

refocus on the task at hand and<br />

on doing the best you can. When<br />

refocusing, I find it also helps to<br />

break task(s) down to singular,<br />

achievable goals and make a<br />

manageable list.”<br />

- Leona Kung, Koskie Minsky LLP,<br />

Toronto, ON<br />

Take time to socialize with non-lawyers.<br />

“A senior litigator in this area once<br />

told me that ‘the easiest thing to do<br />

is to stay in the office all night’, and<br />

that it’s important to make an effort<br />

to break that cycle. I try to spend a<br />

lot of my social time hanging out<br />

with non-lawyers. When I’m hanging<br />

out with those outside the profession,<br />

I’m prevented from “talking<br />

shop” and it makes it easier to take<br />

a break and enjoy myself without my<br />

thoughts drifting back to work.”<br />

- Zach Flemming-Giannotti,<br />

Templemen LLP, Kingston, ON<br />

Take the time to check in.<br />

“Connect, even if its just briefly,<br />

with people close to you. If<br />

they know what you’re going<br />

through, they may be able<br />

to help or even just lend an<br />

ear for you to release some<br />

stress. Plus, they care about<br />

you, and when you’re going<br />

through a crazy time sometimes<br />

just being reminded<br />

of that can make a world of<br />

difference.”<br />

- Caitlin S. Regan,<br />

Cox & Palmer, Halifax, NS<br />

Try altering your perspective. “Cognitively<br />

reframing your circumstances<br />

can change how you experience<br />

them. Examples of cognitive reframing<br />

include: feeling gratitude for your<br />

opportunities; thinking about how<br />

your experiences are contributing<br />

to your growth or a greater good; or<br />

practising radical acceptance – the<br />

act of accepting reality as it is without<br />

judgment or resistance. This requires<br />

only a few minutes of time and<br />

attention, but can boost the amount<br />

of energy you have to respond to the<br />

concrete challenges you face.”<br />

- Webnesh Haile, Singleton Urquhart<br />

Reynolds Vogel LLP, Toronto, ON<br />

Clear the clutter. “Making<br />

an effort to keep my home<br />

tidy and relaxing has a big<br />

impact on my stress level.<br />

When the space itself is<br />

calm, it is a lot easier to recharge.<br />

This also applies to<br />

my workspace: whether in<br />

the office or at home, I keep<br />

it organized, bright, and<br />

with mood-elevating personal<br />

touches, like plants.”<br />

- Sanam Goudarzi,<br />

Department of Justice,<br />

Ottawa ON<br />

28 29

Fireside Chat on Advocacy<br />

February 27, <strong>2020</strong> | The Calgary Petroleum Club, Calgary, AB<br />

#ICYMI Archives<br />

Available for Litigating from Home<br />

TAS has been working to keep members connected and informed during the<br />

COVID-19 pandemic and these programs are available on-demand.<br />

Litigating from Home: A Starter Kit<br />

Litigating from Home: Staying Healthy, Connected, and Productive<br />

Virtual Fireside Chat with The Honourable Chief Justice Morawetz<br />

Virtual Fireside Chat with Dr. David S. Goldbloom<br />

Speakers:<br />

The Honourable Justice M. David Gates, Court of Queen’s Bench of Alberta, Sarah Rankin, McKay Ferg LLP,<br />

Shane Parker, Alberta Prosecution Service<br />

For an up-to-date list of what is happening at TAS,<br />

go to www.advocates.ca<br />

30 31

Oops! Don’t Do It Again: Handling Mistakes in Practice<br />

February 27, <strong>2020</strong> | The Vancouver Club, Vancouver, BC<br />

Kingston Trivia Challenge<br />

March 4, <strong>2020</strong> | The Kingston Brewing Company, Kingston, ON<br />

Samantha Chang, McEwan Partners LLP, Aidan Cameron, McCarthy Tétrault LLP, Tony C. Paisana, Peck & Company,<br />

Maryanne Prohl, Lawyers Indemnity Fund<br />

<strong>2020</strong> Trivia Champions MDD<br />

Trivia Host Zach Flemming-Giannotti with the 2019 Trivia Champs Rorabeck Sowerby Theriault LLP<br />

32 33

Litigating From Home: A Starter Kit<br />

March 27, <strong>2020</strong> | Webcast<br />

Virtual Fireside Chat with Dr. David Goldbloom<br />

April 15, <strong>2020</strong> | Webcast<br />

Dr. David S. Goldbloom, Senior Medical Advisor, CAMH<br />

Guy J. Pratte, Ad. E., LSM, Borden Ladner Gervais LLP<br />

Sinead Bovell, Founder, WAYE<br />

Top Cases in Commercial Litigation<br />

February 25, <strong>2020</strong> | The Advocates’ Society, Toronto, ON<br />

Eric Brousseau, Ross Barristers P.C., Kyle Kuepfer, Fogler, Rubinoff LLP, Sînziana Hennig, Stikeman Elliott LLP,<br />

34 Brent J. Arnold, Gowling WLG (Canada) LLP<br />

Yola S. Ventresca, Lerners LLP<br />

Cynthia Spry, Babin Bessner Spry LLP<br />



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