Advocacy Matters - Summer 2020

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The Advocates’ Society<br />

SUMMER <strong>2020</strong>

What the TWEET is this?<br />

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

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


04<br />

06<br />

09<br />

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24<br />

Chair Chat<br />

Yola S. Ventresca, Lerners LLP<br />

TAS Report: EOT@Home<br />

Lyla Simon, Senior Enforcement Counsel,<br />

Mutual Fund Dealers Association<br />

The Justice System<br />

William Thompson, Addario Law Group LLP<br />

Quirky Cases<br />

Tamara Ramsey, Dale & Lessmann LLP<br />

Journal Review: Then and Now<br />

Christine Vanderschoot, Vanderschoot Family Law PC<br />

Interview with Owen Rees<br />

Compiled by Andrew Gibbs, Department of Justice<br />

In Conversation with Dominique Hussey<br />

Compiled by Melanie Baird, Blake, Cassels & Graydon LLP<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 />

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

Editor: Tamara Ramsey, Dale & Lessmann LLP (Editor)<br />

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

<strong>Advocacy</strong> <strong>Matters</strong> Editorial Team: Andrew Gibbs, Department of Justice, Christine J. Vanderschoot, Vanderschoot Family Law, Megan Keenberg,<br />

Van Kralingen & Keenberg LLP, Daniel Baum, Langlois Avocats, S.E.N.C.R.L., Ayesha Laldin, Department of Justice, Michelle Alton, Workplace Safety<br />

and Insurance Appeals Tribunal<br />



Chair Chat<br />

Yola S. Ventresca, Lerners LLP<br />

As I sit down to write my first column as Chair<br />

of the 10+ Standing Committee, much is on<br />

my mind, much is weighing me down. World<br />

events of the past six months have changed so<br />

much of life as we knew it in real and substantive<br />

ways; the legal profession has not been<br />

spared. I could go on at lengths about how<br />

this so-called ‘new normal’ has thrown the profession<br />

head first into a technological revolution<br />

or about how the pandemic has seriously<br />

strained working parents. I will save those ruminations<br />

for another day.<br />

Instead, I want to talk about another issue<br />

that is front-of-mind and in the headlines: the<br />

remarkable flourishing of the Black Lives Matter<br />

anti-racism protest movement, sparked by<br />

the brutal murder of George Floyd Jr., a Black<br />

American killed by the police after his arrest<br />

in Minneapolis in May <strong>2020</strong>.<br />

While it may be convenient for some to dismiss<br />

what is going on as a uniquely American<br />

“problem”, we in this country should not deceive<br />

ourselves. It is not simply ‘their’ problem.<br />

Canada, too, has an ugly history of anti-Black<br />

racism, one that continues to haunt us to this<br />

day. It is trite to say that systemic racism permeates<br />

all facets of society. The legal profession is<br />

not immune.<br />

It has been almost three years since the<br />

Globe & Mail published Hadiya Rodrique’s autobiographical<br />

essay, Black on Bay Street: Hadiya<br />

Rodrique had it all. But still could not fit in.<br />

In that essay, Rodrique outlines her trajectory;<br />

her childhood, her experiences as a black student<br />

and a top candidate in the ultra-competitive<br />

Toronto recruit. It would seem the closer<br />

Rodrique came to the ‘summit’ of our profession,<br />

as she puts it, the more marginalized she<br />

was made to feel. Rodrique ultimately left Bay<br />

Street for academia.<br />

Rodrique’s essay garnered much attention.<br />

It provoked a myriad of promises from all corners<br />

of the profession to do better; to be better.<br />

Yet for all these promises, it appears from<br />

the limited data available, we are not much further<br />

along, if at all. In a recent essay about Black<br />

lawyers, the Globe & Mail presented the results<br />

of its own study of sixteen of Toronto’s largest<br />

law firms. Of the 4,000 partners identified, just<br />

35 were Black. What this tells us is that of Black<br />

lawyers, a miniscule percentage are partners in<br />

firms. Most, it would seem, have to forge their<br />

own path as sole practitioners.<br />

All of this leads me back to a question that<br />

has been nagging me and many others. What<br />

can I do? In many ways, I have not yet fully answered<br />

my own question. I do know that I want<br />

to use this inaugural post to commit to working<br />

toward greater equity in the legal profession. I<br />

want to use this privileged forum to do my part,<br />

however modest, to move our profession closer<br />

to its stated commitments to do better. The 10+<br />

Standing Committee represents mid-career lawyers<br />

across Canada. We are the future leaders of<br />

the profession and members of the bench. So<br />

I would like to extend an invitation: we want to<br />

hear and to amplify the voice of racialized lawyers.<br />

If you have ideas for an article, for a TAS<br />

event, for professional development, please<br />

let us know. My DMs are open (@YolaVentresca).<br />

For now, please know that this issue is an<br />

urgent priority for us. And we are not going to<br />

stop talking about it.<br />

Finally, I want to say how grateful I am for the<br />

opportunity to Chair this Committee. I have big<br />

shoes to fill, taking over the reins from the formidable<br />

Hilary Book of Book Law. I am grateful<br />

to have two powerhouse co-executive members<br />

in Emily Lawrence and Chloe Snider. And fortunate,<br />

also, to have an incredible team at <strong>Advocacy</strong><br />

<strong>Matters</strong> led by Tamara Ramsey. I also want to<br />

thank all of those who contributed to make this<br />

instalment of <strong>Advocacy</strong> <strong>Matters</strong> a success. Inside<br />

you will find a great recap of #EOT<strong>2020</strong> by Lyla<br />

Simon, Christine Vanderschoot’s article about<br />

the changes to the rules in regard to summary<br />

judgment in the past twenty years and excellent<br />

conversations with Owen Rees (Department of<br />

Justice) compiled by Andrew Gibbs and of Dominique<br />

Hussey (Bennett Jones LLP) compiled by<br />

Melanie Baird. Tamara Ramsey’s quirky case<br />

column brings some much needed levity. Finally,<br />

in the spirit of the comments in this column,<br />

you will find an important profile of TAS Board<br />

Member Faisal Mirza and the Sentencing & Parole<br />

Project he co-founded: a hopeful and inspiring<br />

read.<br />

I look forward to a productive and meaningful<br />

term ahead. Stay tuned for updates about<br />

our incredible lineup of events. In the meantime,<br />

I wish you and your families a safe and<br />

restorative summer.<br />

4 5


TAS Members<br />

Celebrate & Connect<br />

at EOT@Home <strong>2020</strong><br />

Lyla Simon, Senior Enforcement Counsel,<br />

Mutual Fund Dealers Association<br />

On June 11, <strong>2020</strong>, The Advocates Society hosted an incredibly successful annual End of Term Dinner.<br />

Due to the ongoing pandemic,“EOT@Home<strong>2020</strong>” was broadcast online. Leading up to the<br />

“Dinner”, TAS members were encouraged to get creative with their party attire and menu options.<br />

Many took this to heart, and there was everything on display – from jeans, loungewear, and athleisure,<br />

to gowns, pearls, and tuxedos.<br />

The evening began with an uplifting performance from TAS’s very own six member coast-tocoast<br />

EOT band, the “Forces Majeures”, followed by “Oh Canada” performed by the National Arts<br />

Centre Orchestra.<br />

The Rt. Hon. Richard Wagner, Chief Justice of Canada offered greetings wherein he applauded<br />

TAS for keeping the EOT Dinner tradition alive during these challenging times, and observed<br />

that these types of connections and celebrations are more important now than ever. The Hon.<br />

David Lametti, Minister of Justice and Attorney<br />

General of Canada, applauded TAS’s strong resolve<br />

and collaboration in protecting a fair and<br />

accessible justice system, and he commended<br />

the decision to donate the EOT Dinner proceeds<br />

to Pro Bono Canada.<br />

The highlight of the evening was TAS President<br />

Guy J. Pratte’s conversation with the Hon. Justice<br />

Rosalie S. Abella. In introducing Justice Abella,<br />

President Pratte reminded us of the importance<br />

of collegiality, encouraged members to tackle<br />

and eliminate systemic racial inequality, and<br />

emphasized the tradition of in-person advocacy.<br />

Justice Abella inspired and motivated the guests<br />

with her words and candidly discussed a variety<br />

of topics. She shared that she first decided to become<br />

a lawyer when her father was denied the<br />

right to practise law in Canada when her family<br />

immigrated here from Europe because he was<br />

not a citizen. Justice Abella shared her passion<br />

for the legal profession, the early years of her career,<br />

and how saying “yes” to many varied and<br />

unconventional opportunities allowed her to experience<br />

the profession at its deepest and most<br />

rewarding. Justice Abella offered her views on<br />

the difficulties presented by the pandemic, her<br />

love of reading and music, and her career-long<br />

focus and interest in equity and equality as a<br />

member of the judiciary. “Law changes behavior<br />

and changed behavior changes attitudes”. As a<br />

thank you, Jessica Linnebach and Yosuke Kawasaki<br />

of the NAC Orchestra played Leclair: Sonata<br />

for 2 violins Gavotte (Andante grazioso) dedicated<br />

to Justice Abella, which the Supreme Court<br />

Justice appeared to love.<br />

After the ’chat’, guests were encouraged to<br />

socialize casually in virtual networking rooms<br />

or lounges. The rooms were seamlessly managed<br />

by TAS staff, and there were some great<br />

connections between friends and colleagues.<br />

Among other things, I spotted an adorable dog<br />

in a bowtie, many adventurous cats climbing<br />

on their owners, a fanciful bubble machine,<br />

impressive backyard chickens, a significant collection<br />

of movies on VHS, and some beautifully<br />

plated meals.<br />

EOT@Home<strong>2020</strong> was a great triumph. Thanks<br />

again to sponsors MNP LLP, Omni Bridgeway<br />

and RSM Canada for supporting EOT@<br />

Home<strong>2020</strong>. Cheers to all who were able to attend,<br />

and here’s hoping we can break bread in<br />

person at End of Term Dinner 2021.<br />

6 7

Faisal Mizra, Mirza Kwok<br />

Tom Curry and Martha McCarthy Present:<br />

On Oral <strong>Advocacy</strong>:<br />

Required Reading,<br />

Viewing & Listening<br />

Wednesday, September 23, <strong>2020</strong><br />

12:00 pm - 1:30 pm ET<br />

Live Online<br />

TAS Members: $25 + HST<br />

Non Members: $50 + HST<br />

Join Tom Curry and Martha McCarthy as they<br />

celebrate their love of the profession while<br />

discussing essential reading, viewing and<br />

listening for advocates. If you are a perennial<br />

student of the law, constantly craving good<br />

content on strong oral advocacy skills, this<br />

live webcast is for you.<br />

The program will conclude with a Q&A session,<br />

during which our speakers will respond to live<br />

questions from the online audience.<br />

To learn more or register visit<br />

www.advocates.ca<br />


<strong>Advocacy</strong> <strong>Matters</strong> Profile:<br />

Faisal Mizra and<br />

the Sentencing &<br />

Parole Project<br />

William Thompson, Addario Law Group LLP<br />

In May <strong>2020</strong>, the Sentencing and Parole Project (“SPP”) began providing reports describing how<br />

systemic racism has impacted the lives of Black people in Ontario for use in the criminal justice<br />

system. These Enhanced Pre-sentence Reports are meant to provide sentencing judges and other<br />

decision-makers with in-depth background information about the defendant’s life that is connected<br />

to a broader understanding of systemic racism’s hand in bringing the person before the Court.<br />

Faisal Mizra, a criminal lawyer and Advocates’ Society board member is one of three co-founders<br />

of the project. The other two founders are criminal lawyer Emily Lam and human rights lawyer<br />

Anthony Morgan. Mirza and his co-founders believe educating judges and counsel about systemic<br />


acism will improve sentencing decisions and<br />

ultimately reduce the over-incarceration of racialized<br />

people in Ontario.<br />

Mirza, a well-respected Toronto-area lawyer,<br />

has almost 20 years of experience as a criminal<br />

trial and appellate lawyer. He opened his own<br />

firm shortly after he finished articling at Greenspan<br />

Humphrey Lavine. Mirza chose to base his<br />

practice in Peel Region after recognizing that<br />

it was an underserviced and rapidly changing<br />

community. He noticed that the people before<br />

the Court were predominantly racialized, but<br />

the bench and Bar were not. He sought to draw<br />

on his own experience to assist a community<br />

that he knew well.<br />

Mirza, Lam and Morgan donate their time spent<br />

running the project. They received a Law Foundation<br />

of Ontario grant to fund the social workers<br />

with specialized anti-racism training who<br />

interview clients, collect information and write<br />

the reports. The Law Foundation also provides<br />

funding for two professors, Dr. Carl James and<br />

Dr. Akwasi Owusu-Bempah, to collect and analyze<br />

data from the project. The academics’ goal is<br />

to use the data generated by the project to identify<br />

ways to improve outcomes and reduce racial<br />

disparities within the criminal justice system.<br />

The project is based on a shared commitment<br />

of its co-founders to educate the justice system<br />

about systemic racism and promote the imposition<br />

of just sentences, and was inspired by a<br />

pair of 2018 cases on which Mirza was co-counsel:<br />

R. v. Jackson and R. v. Morris. Both cases<br />

were decided by Superior Court Justice Shaun<br />

Nakatsuru and both involved young Black men<br />

found guilty of illegally possessing guns. Justice<br />

Nakatsuru sentenced Jackson to 6 years in jail<br />

and Morris to 15 months in jail; both sentences<br />

were substantially lower than what was sought<br />

by the Crown. In explaining his reasons for the<br />

sentences, Justice Nakatsuru made extensive<br />

reference to Impact of Race and Culture Assessment<br />

(“IRCA”) reports describing the history of<br />

anti-Black racism and systemic racism in Canada<br />

and how the defendants’ lives were affected<br />

by racism. IRCA reports are the forerunners to<br />

the SPP’s Enhanced Pre-sentence Reports. They<br />

have been used for several years in courts in<br />

Nova Scotia, primarily to educate judges about<br />

the racism and injustice endured by that province’s<br />

historical Black communities.<br />

In Jackson, Justice Nakatsuru explained the<br />

value he saw in the information contained in<br />

the IRCA reports, “[s]entencing is about judging<br />

a fellow human being. The more a sentencing<br />

judge truly knows about the offender, the more<br />

exact and proportionate the sentence can be.<br />

Sometimes it should include a broad swath of<br />

relevant historical, social, and cultural knowledge.<br />

An IRCA gives the judge an opportunity to<br />

learn about how this relates to the offender. A<br />

sentence imposed based upon a complex and<br />

in-depth knowledge of the person before the<br />

court, as they are situated in the past and present<br />

reality of their lived experience, will look<br />

very different from a sentence imposed upon a<br />

cardboard cut-out of an “offender”.”<br />

The content of the SPP reports varies according<br />

to the nature of the case and the history of<br />

the defendant. The reports often contain evidence<br />

that support a link between the individual<br />

defendant’s personal history and the broader<br />

body of research on how racially biased policies<br />

and historical injustices have harmed Black<br />

people. One example is the disproportionate<br />

impact that Ontario’s academic streaming system<br />

in secondary schools had on the educational<br />

outcomes of racialized children.<br />

While the SPP project is relatively new, Mirza<br />

estimates that they have already worked on<br />

about 20 cases. He points to, as an example of<br />

the project’s work, a recent Brampton Superior<br />

Court sentencing decision in R. v. Kandhai. In<br />

that decision, Justice David Harris noted that<br />

“one’s head would have to be in the sand not<br />

to acknowledge that Mr. Kandhai’s responsibility<br />

is affected in some measure by the racism<br />

and poverty in the community in which<br />

he grew up.” The trial judge said that he gave<br />

significant weight to the effect of that history<br />

on Mr. Kandhai as described in the Enhanced<br />

Pre-sentence Report in determining that 49<br />

months in jail was a fit sentence.<br />

Lam says that the value of these reports is<br />

not only in their direct effect on the length of<br />

the sentence, but also the message they send<br />

to marginalized people that their experience is<br />

being paid attention by judges.<br />

Mirza credits the project’s success so far to<br />

a combination of factors that speak to the justice<br />

system’s increasing embrace of the value of<br />

diversity. Mirza is proud that collaboration between<br />

racialized social workers, academics, and<br />

counsel has produced both quality reports and<br />

advocacy. Likewise, diversity in the judiciary has<br />

contributed to acceptance of the impact of racism.<br />

After working in the areas of sentencing<br />

reform and systemic racism for the past twenty<br />

years with mixed results, Mirza hopes that we<br />

are at a turning point. He believes that mandating<br />

education in this area for current judges together<br />

with increased diversity in the judiciary<br />

will facilitate long-term progress. Ultimately,<br />

advancing these objectives may improve the<br />

perception of the administration of justice for<br />

Black, racialized and Indigenous communities.<br />

10 11


TITLE<br />

Toys, Herbs & Goodwill:<br />

Toys “R” Us (Canada) Ltd. v.<br />

Herbs “R” Us Wellness Society<br />

Tamara Ramsey, Dale & Lessmann LLP<br />

This column features a case that is interesting because of its quirkiness. This can include unusual<br />

facts, a novel legal issue, or something else that makes it quirky.<br />

Toys “R” Us (Canada) Ltd. v. Herbs “R” Us Wellness Society, <strong>2020</strong> FC 682 involved a HERBS “R” US design<br />

mark that shared many of the striking and unique elements the TOYS “R” US design mark. It is<br />

quirky not just because it features an assessment of the likelihood of confusion between toys and<br />

herbs (cannabis), but also because it grants injunctive relief for depreciation of goodwill despite<br />

finding there was no likelihood of confusion between the marks at issue. To add to the quirkiness,<br />

this case addresses a preliminary evidentiary<br />

point regarding the admissibility of affidavit evidence<br />

from a lawyer at the firm representing<br />

the applicant.<br />

The firm representing Toys “R” Us (Canada)<br />

Ltd. (“Toys “R” Us”) tendered an affidavit from<br />

an associate lawyer who visited the retail location<br />

for Herbs “R” Us Wellness Society (“Herbs<br />

“R” Us”) that provided the lawyer’s subjective impression<br />

of the interior of the store, describing<br />

it as “an unimpressive, lower-end retail operation.”<br />

Justice McHaffie raised an issue regarding<br />

the applicant’s reliance on the lawyer’s affidavit.<br />

Evidence from employees or lawyers of the law<br />

firm acting for a party should not be given on<br />

matters of substance, particularly matters that<br />

go to the heart of the issues and matters that<br />

are controversial. Fortunately for the applicant,<br />

there were sufficient non-controversial facts in<br />

the lawyer’s affidavit and sufficient facts in the<br />

client’s affidavit to prove the nature and use of<br />

signage containing the HERBS “R” US mark after<br />

much of the lawyer’s affidavit was disregarded<br />

by Justice McHaffie.<br />

Both the TOYS “R” US and HERBS “R” US marks<br />

feature a backwards “R” and similar stylized<br />

fonts. Justice McHaffie held that “the overall impression<br />

of the two marks is very similar,” but<br />

held that there was no trademark infringement.<br />

Having regard to all of the circumstances to be<br />

considered as part of the test for confusion, the<br />

two trademarks were not confusing because<br />

the goods, services and business of Herbs “R”<br />

Us are fundamentally dissimilar to those of Toys<br />

“R” Us. The TOYS “R” US marks are associated<br />

with “product lines that are light years away<br />

from the product being sold by Herbs “R” Us.”<br />

The analysis did not end with the dismissal of the<br />

claim for trademark infringement. Section 22 of the<br />

Trademarks Act provides a cause of action for depreciation<br />

of the goodwill attached to a registered<br />

trademark where (1) the respondent is using a<br />

12 13

14<br />

mark that is sufficiently similar to the registered<br />

trademark to evoke a mental association of the<br />

two marks, (2) the registered trademark is sufficiently<br />

well known to have significant goodwill,<br />

(3) the respondent’s mark has been used in a<br />

manner likely to have an effect on that goodwill,<br />

and (4) the likely effect would be to depreciate<br />

its goodwill. Toys “R” Us established each<br />

of those four elements.<br />

The strong resemblance between HERBS “R”<br />

US and TOYS “R” US was held to be sufficient<br />

to evoke a mental association between the<br />

marks. The TOYS “R” US mark was sufficiently<br />

well known in Canada to have significant goodwill<br />

associated with it. The court concluded that<br />

it could infer the existence of a linkage in the<br />

mind of a consumer from the marked similarities<br />

between the marks combined with the evidence<br />

of extensive use, sales, and advertising<br />

associated with the TOYS “R” US mark.<br />

With respect to depreciation, the courts have<br />

recognized that it can come through disparagement,<br />

from the reduction of distinctiveness<br />

resulting from a mark being “bandied about<br />

by different users,” through the blurring of<br />

brand images, or from a “whittling away” of<br />

the brand’s power to distinguish the owner’s<br />

products. Justice McHaffie concluded that the<br />

use of the HERBS “R” US trademark amounted<br />

to “another trader ‘bandying the mark about’<br />

in a fashion that reduces the distinctiveness”<br />

of the TOYS “R” US mark, and “’whittles away’<br />

at the brand’s power to distinguish Toys “R”<br />

Us’ products.” The creation of an association<br />

between a cannabis dispensary and the Toys<br />

“R” Us brand was likely to “tarnish the goodwill<br />

associated” with the TOYS “R” US trademark.<br />

Further, “there was no reason for Herbs “R” Us<br />

to adopt and use the HERBS “R” US trademark<br />

other than to trade off the goodwill and reputation<br />

established by Toys “R” Us, and that this<br />

points to a finding of depreciation.”<br />

The court granted an injunction against the<br />

use of the HERBS “R” US trademark in any form<br />

and delivery up or destruction of goods, packaging<br />

and advertising material that bears the<br />

HERBS “R” US trademark in any form. The court<br />

assessed nominal damages of $15,000.<br />

GAIN THE EDGE! ® Negotiation<br />

Strategies for Lawyers with<br />

Marty Latz<br />

Wednesday, September 30, <strong>2020</strong><br />

1:00 pm - 4:00 pm ET<br />

Live Online<br />

You negotiate every day and yet most negotiate instinctively or<br />

intuitively. This seminar will help you approach negotiations with a<br />

strategic mindset. And no matter how much you’ve negotiated, you can<br />

still learn. Adding one new tactic may make all the difference. Join<br />

Martin Latz, one of North America’s leading experts and instructors<br />

on negotiating techniques.<br />

To learn more or register visit<br />

www.advocates.ca<br />

A joint presentation with the<br />

Law Society of Ontario.

Fall Forum <strong>2020</strong>:<br />

New<br />

Frontiers<br />

Friday, October 23, <strong>2020</strong><br />

2:00 pm - 5:30 pm ET<br />

Live Online<br />

TAS Members: $50 + HST<br />

Non Members: $99 + HST<br />

Our destination may have changed but the<br />

heart of Fall Forum remains the same. The<br />

Advocates’ Society, in conjunction with the<br />

Young Advocates’ Standing Committee, is<br />

pleased to present this one-of-a-kind event<br />

for lawyers in their first ten years of practice.<br />

Join YASC members from across the country<br />

to explore issues that are relevant to you.<br />

To learn more or register visit<br />

www.advocates.ca<br />


TAS Looking Back:<br />

Summary Judgment<br />

in 2000 and <strong>2020</strong><br />

Christine Vanderschoot,<br />

Vanderschoot Family Law PC<br />

In the 2000 Autumn Issue of The Advocates’ Journal, Professor Gary D. Watson, Q.C. of Osgoode<br />

Hall Law School and Blake, Cassels & Graydon wrote about recent developments in summary<br />

judgment. As readers of <strong>Advocacy</strong> <strong>Matters</strong> know, my column is about looking back to older articles<br />

from the Journal and providing commentary as to how the topics may have changed over time. In<br />

this situation, there is much to say given the significant developments in both civil and family law<br />

summary judgment rules and practices.<br />

Civil litigators in Ontario will be familiar with Rule 20 from the Rules of Civil Procedure, just as<br />


Ontario’s family law practitioners look to Rule<br />

16 of the Family Law Rules. Watson cites “recent”<br />

1998 and 1999 cases that brought the utility of<br />

Rule 20 into question for some, as these cases<br />

highlighted the tension inherent in summary<br />

judgment: does the Rule deny parties the full extent<br />

of due process by disposing of some cases<br />

early on in the process, or is the Rule beneficial<br />

in weeding out meritless cases early on, thus<br />

saving court time and saving parties’ resources?<br />

In addition to the historic tension between the<br />

trial as the paradigm of due process and the<br />

move toward a cleaner and faster process, Watson<br />

points out that judges were divided as to<br />

the efficacy of the summary judgment motion<br />

as well. Watson cites Borins J.’s opinion, when<br />

he sat on the Court of Appeal, that motions<br />

judges simply did not have the full evidence<br />

before them to dismiss a case 1 . Borins J. clearly<br />

saw the summary judgment motion as a denial<br />

of procedural fairness. In contrast, O’Brien J.,<br />

sitting as a motions court judge, granted summary<br />

judgment in Guarantee Co. of North America<br />

v. Gordon Capital Corp. (1999) 2 . While O’Brien<br />

J.’s was not the last word on that case, the Supreme<br />

Court ultimately agreed with his ruling<br />

on the motion and found that the case could be<br />

disposed of by way of summary judgment; even<br />

though Guarantee conceded it had breached its<br />

contract with Gordon Capital Corp., Guarantee<br />

successfully hung its hat on the fact of Gordon<br />

Capital missing the limitation period to sue. This<br />

was a perfect example of how a summary judgment<br />

motion could remove matters improperly<br />

before the court, if the facts were right. But in<br />

other matters where there were no clear limitation<br />

period issues, the defence were not being<br />

granted summary judgment and the overall judicial<br />

approach seemed to be that due process<br />

demanded a trial.<br />

Watson could not have known in the autumn<br />

of 2000 that there would be a significant overhaul<br />

of Rule 20 of Ontario’s Rules of Civil Procedure<br />

in 2010 and Rule 16 of Ontario’s Family Law<br />

Rules in 2015. Prior to these changes, judges<br />

were restricted to granting summary judgment<br />

only if they could find that “there was no genuine<br />

issue for trial”. Creative counsel could almost<br />

always find some issue that could be characterized<br />

as a “genuine” issue, and so most summary<br />

judgment motions failed. To add insult to injury,<br />

a failed motion for summary judgment would<br />

almost always be accompanied by a hefty costs<br />

award against the moving party on a substantial<br />

indemnity basis. When Rule 20 was changed, it<br />

represented a broadening of the legal test so<br />

that a judge had to find that “there was no genuine<br />

issue requiring a trial” and broadening the<br />

powers of judges on summary judgment to hear<br />

oral evidence, make determinations of credibility,<br />

and draw inferences from the evidence.<br />

In Hryniak v. Mauldin 3 in 2014, the SCC gave<br />

guidance on the interpretation and application<br />

of the new Rule 20 that had policy implications<br />

beyond the Ontario Rule. The SCC addressed<br />

the tension inherent in summary judgment by<br />

coming down on the side of increasing access to<br />

justice by focusing on proportionality. Interpreting<br />

the court’s power to grant summary judgment<br />

broadly rather than narrowly is intended<br />

to permit greater access to the timely resolution<br />

of claims. The SCC directed courts to focus on<br />

the needs of particular cases rather than applying<br />

the same process to all situations. That trend<br />

continues today as courts funnel cases to procedures<br />

that may lead to resolution in a more timely<br />

manner than a trial. Conferencing, mandatory<br />

settlement appearances and on-site mediation<br />

opportunities in many courts have grown out of<br />

the access to justice imperative as well.<br />

Though Watson does not specifically mention<br />

Rule 16 of the Family Law Rules, it is interesting<br />

to note that in the family law context, where the<br />

same tensions existed, there has also been a<br />

move toward broadening Rule 16 such that appropriate<br />

cases are dealt with earlier and do not<br />

need to wind their way through the family court<br />

process to trial. Access to justice is a major issue<br />

in the family court system, and the recent move<br />

to align Rule 16 with Rule 20 has made summary<br />

judgment motions far more common in family<br />

court. In family courts, summary judgment<br />

motions have become much more user-friendly.<br />

Where appropriate these motions are valuable in<br />

serving access to justice principles by making the<br />

legal process less expensive and much shorter.<br />

Professor Watson’s article highlights the inconsistent<br />

application of summary judgment<br />

motions and their appeals in and around the<br />

late 1990s, with the majority of appeals being<br />

dismissed compared to other civil appeals,<br />

such that it appeared a very risky proposition<br />

for counsel to advise clients to seek that relief.<br />

Today, due to both rule changes in civil and<br />

family law, and due to the application of those<br />

rules by the judiciary, summary judgments are<br />

far more common now and if the facts support<br />

it, far more often successful than when Professor<br />

Watson’s article was written.<br />

Notes<br />

1. Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O..R. (3d) 161 (C.A.)<br />

2. 178 D.L.R. (4th)<br />

3. [2014] SCC 7<br />

18 19

Q. Describe your role as DADAG?<br />

A. I help with strategic management of<br />

litigation on behalf of the Federal Government<br />

and support the ADAG in her<br />

role as chief legal advisor for litigation.<br />

Q. What drives you up the wall?<br />

A. Bureaucracy [Editor’s note: spot the irony]<br />


Interview with Owen Rees:<br />

Great guy, long title<br />

Compiled by Andrew Gibbs,<br />

Department of Justice<br />

In the middle of a pandemic, somewhere between the end of the workday and his kids’ bedtime<br />

routine, <strong>Advocacy</strong> <strong>Matters</strong> caught up with Owen Rees, in his latest incarnation – Deputy Assistant<br />

Deputy Attorney General, Justice Canada.<br />

Q. How would you describe your career path?<br />

A. A series of fortunate events, with a public law theme.<br />

• Academic phase – grad school, University of Oxford; teaching part-time for 6-7 years<br />

• Private practice – Stockwoods, Toronto. Formative years in litigation. Tremendous mentors<br />

Brian Gover, Paul Le Vay and Scott Hutchison.<br />

• Executive Legal Officer to Chief Justice McLachlin – Dream opportunity. Fascinating files.<br />

Worked with all the judges on some amazing appeals. Involved in the education arm (National<br />

Judicial Institute) and the discipline arm (Canadian Judicial Council) of the judicial system<br />

in Canada.<br />

• Private practice – Ottawa 2016-2018, including amicus curiae on national security files.<br />

• Joined the DOJ in 2018 as senior general counsel.<br />

Q. <strong>Advocacy</strong> achievements/awards?<br />

A.<br />

• Co-founder of Supreme <strong>Advocacy</strong> Institute, 2006. Fellow former SCC clerk, Grégoire Webber,<br />

retired Justice Frank Iacobucci and I established the Institute to provide free assistance<br />

to counsel appearing before the SCC. All counsel can confidentially moot their arguments<br />

before a high-caliber panel of advocates, to prepare for the big day. It was our way of giving<br />

back to the Court and the broader legal community. (Editor’s note: Owen and Grégoire were<br />

awarded the Governor General’s Meritorious Service Medal for improving access to justice).<br />

• Counsel for the Canadian Public Health Association, Canada’s oldest NGO for public health,<br />

as Intervener in Canada (Attorney General) v PHS Community Services Society (“Insite”). The Insite<br />

case dealt with safe injection sites in Vancouver’s Downtown East Side and continues to<br />

have a practical impact in the area of public health today. (Editor’s note: the CHPA awarded<br />

Owen and colleagues at Stockwoods the 2012 National Public Health Hero Award for making<br />

a positive difference in public health at a national level).<br />

20 21

Q. Work-life balance – How’s it going?<br />

A. Not very well at the moment. The balance<br />

is a bit out of whack. I try to protect<br />

as much time in my day as possible for<br />

family. Our children are small. My spouse<br />

and I both work full time, so the pandemic<br />

has been a challenge.<br />

Q. Best career development tip?<br />

A. Be open to new opportunities; go beyond<br />

your comfort zone.<br />

Q. Favourite genre of<br />

music/favourite artist?<br />

A. For the moment: Jazz. Miles Davis.<br />

Q. Fiction or non-fiction?<br />

A. If forced to choose: fiction.<br />

3e Gala annuel<br />

de Montréal<br />

(édition virtuelle)<br />

Thursday, September 24, <strong>2020</strong><br />

6:00 pm - 6:45 pm ET<br />

En Ligne, Heure de L’Est Montreal<br />

Membres : 25.00 $ (plus taxes)<br />

Non-membres : 50.00 $ (plus taxes)<br />

Q. Last book you read?<br />

A. The third book in the Hilary Mantel trilogy about Thomas Cromwell—The Mirror & the Light.<br />

Comme il est impossible de nous réunir en personne<br />

pour l’instant, nous espérons que vous vous joindrez<br />

à nous en ligne pour cette édition spéciale en mode<br />

virtuel de notre célébration annuelle des plaideurs<br />

du Barreau de Montréal.<br />

Activités prévues lors de ce gala :<br />

Q. Best time management tip?<br />

A. Block time for thinking. Don’t just go from meeting to meeting. Multi-tasking is a MYTH. Cognitive<br />

science has proved humans are not able to do it. Focused work means turning off e-mail and<br />

forwarding calls. Whether writing legal submissions, prepping cross-exams or thinking through a<br />

difficult client problem.<br />

Q. Pre-game rituals before court?<br />

A. I sketch out my argument on green barrister paper with my favourite pen. A one-page roadmap<br />

of key points I want to advance to the Court. Often I just have my road map and my factum as a<br />

backup (but not for reading). Key is to boil it down and engage the court in a conversation.<br />

Une causerie informelle avec l’honorable Manon<br />

Savard, juge en chef de la Cour d’appel du Québec,<br />

et Me Guy J. Pratte, président de la Société des<br />

plaideurs<br />

La remise du prix Excellence en mentorat – Québec<br />

Une réunion festive « After-Party » virtuelle où vous<br />

pourrez échanger par vidéo avec vos collègues dans<br />

la plateforme Zoom<br />

Pour en savoir plus et s’inscrire, visitez notre site<br />

web à www.advocates.ca<br />

Commandité par :<br />


Pre-<strong>2020</strong>, Dominique Hussey was the leader of the Intellectual Property Litigation group at Bennett<br />

Jones LLP, the co-head of the firm’s Innovation, Technology and Branding group, and was finishing a<br />

four year stint as lead director of the Bennett Jones partnership board. She was an active member<br />

of TAS, co-chair of the Canadian Bar Association (IP Section), and an active participant in numerous<br />

other professional organizations. Dominique is highly recognized in virtually every legal directory for<br />

her litigation prowess. Oh, and she is the proud mom of two phenomenal young humans.<br />

Cue <strong>2020</strong>, which, never one to shy away from a challenge, Dominique welcomed with the professional<br />

equivalent of “hold my beer”. Amidst a global pandemic, Dominique is now Vice Chair and<br />

Toronto Managing Partner at Bennett Jones (the first woman and first Black person to ever hold<br />

that role). She continues to act as the leader of the IP Litigation Group and the co-head of Innovation,<br />

Technology and Branding group. She was selected to join the TAS Executive Committee.<br />

In one of her first external facing acts as Vice Chair and Toronto Managing Partner, Dominique<br />

spearheaded Bennett Jones signing the BlackNorth Initiative Law Firm Pledge, which commits her<br />

firm to specific actions and targets designed to end anti-Black systemic racism and create opportunities<br />

for those in underrepresented Black, Indigenous, and People of Colour (BIPOC) communities.<br />

She was also recognized as the Outstanding Practitioner in Patent Law by Managing IP in<br />

their Americas Awards <strong>2020</strong>.<br />

This interview explores the delightful and totally inspiring chaos that is Dominique’s current reality.<br />


Zoom In: A Discussion<br />

with Dominique Hussey<br />

Compiled by Melanie Baird,<br />

Blake, Cassels & Graydon LLP<br />

Q. What have been the best and worst parts of taking on the role of Managing Partner?<br />

A. I officially became Managing Partner on March 31, so I have only held the role during COVID-19.<br />

Still, it has mostly been extremely positive.<br />

The best part has been seeing how quickly and effectively our teams have pulled together. As a<br />

result of the exceptional planning by our Chief Administrative Officer and our HR and IT teams, our<br />

1000 members were up and running remotely almost immediately. Our teams were working around<br />

the clock to keep things running smoothly and it has been absolutely, spectacularly successful.<br />

Regular check-ins have been organized at every level of the business to make sure no one has felt<br />

disconnected, although we have all been apart. We have onboarded and integrated new employees<br />

including a class of summer students. Our HR and PD teams have found ways to do that effectively<br />

and with a personal touch. It has been great to watch how people step up to help each other in<br />

tough situations. Many of us feel even closer to each other than we did pre-COVID-19.<br />

During this time, of course, difficult social issues involving race have come to the fore. They<br />

obviously surfaced from a very negative place but there has been so much positive change and<br />

discussion as a result—among clients, at law firms, at TAS, at home, on social media—that being<br />

involved in a position of management during this time has been very rewarding.<br />

The worst parts have been inherent uncertainties, and the pessimistic outlook and thought<br />

processes that need to accompany planning for worst-case scenarios. And extreme Zoom fatigue,<br />

brought on by trying to stay in touch with members of the firm, colleagues at other firms, clients,<br />

family and friends. But a lot of the best parts have arisen from what could have been the worst.<br />

A crisis can really bring out the best in an organization and its people.<br />

24 25

Q. Why did Bennett Jones decide to sign the BlackNorth Initiative?<br />

A. There has never been an initiative of its kind. The BlackNorth Initiative has real momentum<br />

and commitment behind it and has the support of a number of prominent companies and firms<br />

that will hold each other accountable. Associating with the initiative will unify and amplify the<br />

ongoing efforts of individual organizations. It will take a lot of work, coordination and advocacy,<br />

but I believe BNI is set up for success. The pledge Bennett Jones signed requires that we commit<br />

to meeting, on a 5 and 10 year trajectory, certain targets to be filled by Black and other BIPOC<br />

individuals. These positions include board positions, leadership positions, associate and student<br />

positions, etc. The targets were not what interested me. The numbers will fluctuate, but without<br />

having a target in mind, we have been meeting and beating those numbers for years. I was more<br />

interested in other aspects of the pledge, which included an acknowledgement of anti-Black racism,<br />

a need to approach diversity and inclusion holistically, a commitment to increase efforts to make<br />

the workplace a welcoming place to have difficult conversations, a requirement that we share<br />

best practices and unsuccessful practices with other firms, and a commitment to use resources<br />

to work with members of the Black community. As Wes Hall put it, signing the pledge signalled<br />

commitment internally and externally to lead by example. Only about two hours elapsed between<br />

the time I brought the pledge to our CEO’s attention and the firm’s national commitment.<br />

Q. It is early, but any plans you can share yet as to how Bennett Jones plans to tackle the issue?<br />

A. Plans are in progress. We are reviewing what efforts have been most effective for us to date and<br />

areas in which we could and should improve. We are communicating our efforts more regularly<br />

throughout the firm to increase awareness of the issues and of our efforts and practices. We are<br />

openly and regularly having conversations on the Board, throughout management, with partners,<br />

associates, our professional development team and our administrative team and brainstorming<br />

on ways to work with Black communities. Having open discussions makes having conversations<br />

that could otherwise be uncomfortable become commonplace—and feel safer for all.<br />

Q: When, and why, did you get involved with TAS?<br />

I have been a member of The Advocates’ Society since 2006. My litigation career started in Ottawa<br />

and continued in New York until I returned to Canada in 2005. The Advocates’ Society was very<br />

important to my development as an effective litigator and for me to develop a network of litigators<br />

because I was effectively new on the scene in Toronto. I originally became involved because Barb<br />

Murchie, a partner at the firm and a past recipient of The Advocates’ Society Award for Excellence<br />

in Teaching, encouraged me to get involved at a level beyond simply holding a membership. She<br />

cast me in the role of the judge in the Court House Series videos she directed, insisting that having<br />

a Black judge was a good image for people to get used to. I played the role for 13 years and have<br />

avoided seeing the result for fear that I would never do it again. [Editor’s note: she is fantastic!]<br />

Barb also encouraged me to take the Train the Trainer course and teach regularly at TAS educational<br />

programs. I enjoyed teaching, and found I learned a lot from the experience. Eventually, two<br />

TAS past presidents—Jeff Leon and Mike Eizenga—put me forward as a candidate for<br />

the TAS Board of Directors. I joined the Board, and the rest is history!<br />

Q. What are you most looking forward to in joining the TAS Executive Committee?<br />

A. I have officially been on the Executive Committee since June, but participated in the weekly<br />

meetings for several months before then. I now have a true sense of the amount of work the EC<br />

does, and how exceptionally committed its members, CEO Vicki White, and the TAS staff really<br />

are. It is mind blowing. I look forward to contributing sweat equity, and hope that I can provide a<br />

different and useful perspective to the immense body of important work this Society does. I am<br />

looking forward to working with TAS staff, the board, its standing committees, task forces and its<br />

members, to help to steer TAS through our rapidly changing environment. I would like for TAS to<br />

emerge as an increasingly diverse, inclusive, dynamic, adaptable, productive and respected society<br />

of advocates.<br />

Q. What is your best tip for parenting kids while working from home?<br />

A. I mean, it’s not like they are clients, right? Tell them you don’t want to hear from them during<br />

working hours, they can get by on their own, and you don’t have time to argue! I really have no<br />

good advice. Every day is different and everyone’s situation is different. None of it is easy. We all<br />

just have to do our best to carve out space and time to work effectively while maximizing the quality<br />

time we have with our children. In our case, we always try to remember to feed them. We tell<br />

them that we love them and understand isolation is especially hard on them; and try to convince<br />

them that screens can never replace real human interaction. Between Zoom calls.<br />

#DidYouKnow that TAS Members can<br />

post their job opportunities on our<br />

Career Board for free? That’s right,<br />

free! Check out our Career Board<br />

page for the easy steps to get your<br />

next job opening posted with us.<br />

Visit the Career Board<br />


EOT@HOME<br />

Thursday, June 11, <strong>2020</strong> | Live Online<br />

Sabrina A. Lucenti, Dooley Lucenti LLP<br />

Brian Gover, Stockwoods LLP<br />

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

Yashoda R.’s dinner!<br />

28 29<br />

Lonny J. Rosen, C.S., Rosen Sunshine LLP<br />

Jill R. Presser, Presser Barristers<br />

The Hon. Justice Rosalie S. Abella, Supreme Court of Canada

Privilege: A Litigator’s Guide<br />

Tuesday, June 16, <strong>2020</strong> | Live Online<br />


What were the Lawyer Tech Challenges in 2002? The Internet! #TBT to a flier from 2002 for some<br />

trend-setting TAS CLE developed to help lawyers move from paper and snail mail to ‘the net’. If we<br />

made it through that era, we can get through this! #oldschoolTAScle #HowFarWeveCome<br />

Dominique T. Hussey, Bennett Jones LLP<br />

30 31<br />

Megan E. Shortreed, Paliare Roland Rosenberg Rothstein LLP

Introduction to Thomson Reuters - CaseLines<br />

Thursday, August 13, <strong>2020</strong> | Live Online<br />

Hilary Book, Book Law<br />

The Honourable Justice Kristine M. Eidsvik,<br />

Court of Queen’s Bench of Alberta<br />

Mohan D. Sharma, Superior Court of Justice<br />

Alexey Togunov, Ministry of the Attorney General<br />

32 33<br />

The Honourable Chief Justice Geoffrey B. Morawetz,<br />

Superior Court of Justice<br />

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

David Jackson, Thomson Reuters

34<br />


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