Advocacy Matters - Summer 2020

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ADVOCACY MATTERS

The Advocates’ Society

SUMMER 2020


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CONTENTS

04

06

09

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17

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24

Chair Chat

Yola S. Ventresca, Lerners LLP

TAS Report: EOT@Home

Lyla Simon, Senior Enforcement Counsel,

Mutual Fund Dealers Association

The Justice System

William Thompson, Addario Law Group LLP

Quirky Cases

Tamara Ramsey, Dale & Lessmann LLP

Journal Review: Then and Now

Christine Vanderschoot, Vanderschoot Family Law PC

Interview with Owen Rees

Compiled by Andrew Gibbs, Department of Justice

In Conversation with Dominique Hussey

Compiled by Melanie Baird, Blake, Cassels & Graydon LLP

Mastering the art and craft of advocacy is a career-long commitment and we are

here to help. The Advocates’ Society has been the premier provider of advocacy

skills training for over 30 years. We are proud to provide lawyers across Canada

with the training and the confidence they need to execute on their feet when it

counts. The Judge will notice…your clients will too.

Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.

Editor: Tamara Ramsey, Dale & Lessmann LLP (Editor)

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

Advocacy Matters Editorial Team: Andrew Gibbs, Department of Justice, Christine J. Vanderschoot, Vanderschoot Family Law, Megan Keenberg,

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

and Insurance Appeals Tribunal

3


CHAIR CHAT

Chair Chat

Yola S. Ventresca, Lerners LLP

As I sit down to write my first column as Chair

of the 10+ Standing Committee, much is on

my mind, much is weighing me down. World

events of the past six months have changed so

much of life as we knew it in real and substantive

ways; the legal profession has not been

spared. I could go on at lengths about how

this so-called ‘new normal’ has thrown the profession

head first into a technological revolution

or about how the pandemic has seriously

strained working parents. I will save those ruminations

for another day.

Instead, I want to talk about another issue

that is front-of-mind and in the headlines: the

remarkable flourishing of the Black Lives Matter

anti-racism protest movement, sparked by

the brutal murder of George Floyd Jr., a Black

American killed by the police after his arrest

in Minneapolis in May 2020.

While it may be convenient for some to dismiss

what is going on as a uniquely American

“problem”, we in this country should not deceive

ourselves. It is not simply ‘their’ problem.

Canada, too, has an ugly history of anti-Black

racism, one that continues to haunt us to this

day. It is trite to say that systemic racism permeates

all facets of society. The legal profession is

not immune.

It has been almost three years since the

Globe & Mail published Hadiya Rodrique’s autobiographical

essay, Black on Bay Street: Hadiya

Rodrique had it all. But still could not fit in.

In that essay, Rodrique outlines her trajectory;

her childhood, her experiences as a black student

and a top candidate in the ultra-competitive

Toronto recruit. It would seem the closer

Rodrique came to the ‘summit’ of our profession,

as she puts it, the more marginalized she

was made to feel. Rodrique ultimately left Bay

Street for academia.

Rodrique’s essay garnered much attention.

It provoked a myriad of promises from all corners

of the profession to do better; to be better.

Yet for all these promises, it appears from

the limited data available, we are not much further

along, if at all. In a recent essay about Black

lawyers, the Globe & Mail presented the results

of its own study of sixteen of Toronto’s largest

law firms. Of the 4,000 partners identified, just

35 were Black. What this tells us is that of Black

lawyers, a miniscule percentage are partners in

firms. Most, it would seem, have to forge their

own path as sole practitioners.

All of this leads me back to a question that

has been nagging me and many others. What

can I do? In many ways, I have not yet fully answered

my own question. I do know that I want

to use this inaugural post to commit to working

toward greater equity in the legal profession. I

want to use this privileged forum to do my part,

however modest, to move our profession closer

to its stated commitments to do better. The 10+

Standing Committee represents mid-career lawyers

across Canada. We are the future leaders of

the profession and members of the bench. So

I would like to extend an invitation: we want to

hear and to amplify the voice of racialized lawyers.

If you have ideas for an article, for a TAS

event, for professional development, please

let us know. My DMs are open (@YolaVentresca).

For now, please know that this issue is an

urgent priority for us. And we are not going to

stop talking about it.

Finally, I want to say how grateful I am for the

opportunity to Chair this Committee. I have big

shoes to fill, taking over the reins from the formidable

Hilary Book of Book Law. I am grateful

to have two powerhouse co-executive members

in Emily Lawrence and Chloe Snider. And fortunate,

also, to have an incredible team at Advocacy

Matters led by Tamara Ramsey. I also want to

thank all of those who contributed to make this

instalment of Advocacy Matters a success. Inside

you will find a great recap of #EOT2020 by Lyla

Simon, Christine Vanderschoot’s article about

the changes to the rules in regard to summary

judgment in the past twenty years and excellent

conversations with Owen Rees (Department of

Justice) compiled by Andrew Gibbs and of Dominique

Hussey (Bennett Jones LLP) compiled by

Melanie Baird. Tamara Ramsey’s quirky case

column brings some much needed levity. Finally,

in the spirit of the comments in this column,

you will find an important profile of TAS Board

Member Faisal Mirza and the Sentencing & Parole

Project he co-founded: a hopeful and inspiring

read.

I look forward to a productive and meaningful

term ahead. Stay tuned for updates about

our incredible lineup of events. In the meantime,

I wish you and your families a safe and

restorative summer.

4 5


TAS REPORT

TAS Members

Celebrate & Connect

at EOT@Home 2020

Lyla Simon, Senior Enforcement Counsel,

Mutual Fund Dealers Association

On June 11, 2020, The Advocates Society hosted an incredibly successful annual End of Term Dinner.

Due to the ongoing pandemic,“EOT@Home2020” was broadcast online. Leading up to the

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

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

to gowns, pearls, and tuxedos.

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

EOT band, the “Forces Majeures”, followed by “Oh Canada” performed by the National Arts

Centre Orchestra.

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

TAS for keeping the EOT Dinner tradition alive during these challenging times, and observed

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

David Lametti, Minister of Justice and Attorney

General of Canada, applauded TAS’s strong resolve

and collaboration in protecting a fair and

accessible justice system, and he commended

the decision to donate the EOT Dinner proceeds

to Pro Bono Canada.

The highlight of the evening was TAS President

Guy J. Pratte’s conversation with the Hon. Justice

Rosalie S. Abella. In introducing Justice Abella,

President Pratte reminded us of the importance

of collegiality, encouraged members to tackle

and eliminate systemic racial inequality, and

emphasized the tradition of in-person advocacy.

Justice Abella inspired and motivated the guests

with her words and candidly discussed a variety

of topics. She shared that she first decided to become

a lawyer when her father was denied the

right to practise law in Canada when her family

immigrated here from Europe because he was

not a citizen. Justice Abella shared her passion

for the legal profession, the early years of her career,

and how saying “yes” to many varied and

unconventional opportunities allowed her to experience

the profession at its deepest and most

rewarding. Justice Abella offered her views on

the difficulties presented by the pandemic, her

love of reading and music, and her career-long

focus and interest in equity and equality as a

member of the judiciary. “Law changes behavior

and changed behavior changes attitudes”. As a

thank you, Jessica Linnebach and Yosuke Kawasaki

of the NAC Orchestra played Leclair: Sonata

for 2 violins Gavotte (Andante grazioso) dedicated

to Justice Abella, which the Supreme Court

Justice appeared to love.

After the ’chat’, guests were encouraged to

socialize casually in virtual networking rooms

or lounges. The rooms were seamlessly managed

by TAS staff, and there were some great

connections between friends and colleagues.

Among other things, I spotted an adorable dog

in a bowtie, many adventurous cats climbing

on their owners, a fanciful bubble machine,

impressive backyard chickens, a significant collection

of movies on VHS, and some beautifully

plated meals.

EOT@Home2020 was a great triumph. Thanks

again to sponsors MNP LLP, Omni Bridgeway

and RSM Canada for supporting EOT@

Home2020. Cheers to all who were able to attend,

and here’s hoping we can break bread in

person at End of Term Dinner 2021.

6 7


Faisal Mizra, Mirza Kwok

Tom Curry and Martha McCarthy Present:

On Oral Advocacy:

Required Reading,

Viewing & Listening

Wednesday, September 23, 2020

12:00 pm - 1:30 pm ET

Live Online

TAS Members: $25 + HST

Non Members: $50 + HST

Join Tom Curry and Martha McCarthy as they

celebrate their love of the profession while

discussing essential reading, viewing and

listening for advocates. If you are a perennial

student of the law, constantly craving good

content on strong oral advocacy skills, this

live webcast is for you.

The program will conclude with a Q&A session,

during which our speakers will respond to live

questions from the online audience.

To learn more or register visit

www.advocates.ca

THE JUSTICE SYSTEM

Advocacy Matters Profile:

Faisal Mizra and

the Sentencing &

Parole Project

William Thompson, Addario Law Group LLP

In May 2020, the Sentencing and Parole Project (“SPP”) began providing reports describing how

systemic racism has impacted the lives of Black people in Ontario for use in the criminal justice

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

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

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

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

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

Anthony Morgan. Mirza and his co-founders believe educating judges and counsel about systemic

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acism will improve sentencing decisions and

ultimately reduce the over-incarceration of racialized

people in Ontario.

Mirza, a well-respected Toronto-area lawyer,

has almost 20 years of experience as a criminal

trial and appellate lawyer. He opened his own

firm shortly after he finished articling at Greenspan

Humphrey Lavine. Mirza chose to base his

practice in Peel Region after recognizing that

it was an underserviced and rapidly changing

community. He noticed that the people before

the Court were predominantly racialized, but

the bench and Bar were not. He sought to draw

on his own experience to assist a community

that he knew well.

Mirza, Lam and Morgan donate their time spent

running the project. They received a Law Foundation

of Ontario grant to fund the social workers

with specialized anti-racism training who

interview clients, collect information and write

the reports. The Law Foundation also provides

funding for two professors, Dr. Carl James and

Dr. Akwasi Owusu-Bempah, to collect and analyze

data from the project. The academics’ goal is

to use the data generated by the project to identify

ways to improve outcomes and reduce racial

disparities within the criminal justice system.

The project is based on a shared commitment

of its co-founders to educate the justice system

about systemic racism and promote the imposition

of just sentences, and was inspired by a

pair of 2018 cases on which Mirza was co-counsel:

R. v. Jackson and R. v. Morris. Both cases

were decided by Superior Court Justice Shaun

Nakatsuru and both involved young Black men

found guilty of illegally possessing guns. Justice

Nakatsuru sentenced Jackson to 6 years in jail

and Morris to 15 months in jail; both sentences

were substantially lower than what was sought

by the Crown. In explaining his reasons for the

sentences, Justice Nakatsuru made extensive

reference to Impact of Race and Culture Assessment

(“IRCA”) reports describing the history of

anti-Black racism and systemic racism in Canada

and how the defendants’ lives were affected

by racism. IRCA reports are the forerunners to

the SPP’s Enhanced Pre-sentence Reports. They

have been used for several years in courts in

Nova Scotia, primarily to educate judges about

the racism and injustice endured by that province’s

historical Black communities.

In Jackson, Justice Nakatsuru explained the

value he saw in the information contained in

the IRCA reports, “[s]entencing is about judging

a fellow human being. The more a sentencing

judge truly knows about the offender, the more

exact and proportionate the sentence can be.

Sometimes it should include a broad swath of

relevant historical, social, and cultural knowledge.

An IRCA gives the judge an opportunity to

learn about how this relates to the offender. A

sentence imposed based upon a complex and

in-depth knowledge of the person before the

court, as they are situated in the past and present

reality of their lived experience, will look

very different from a sentence imposed upon a

cardboard cut-out of an “offender”.”

The content of the SPP reports varies according

to the nature of the case and the history of

the defendant. The reports often contain evidence

that support a link between the individual

defendant’s personal history and the broader

body of research on how racially biased policies

and historical injustices have harmed Black

people. One example is the disproportionate

impact that Ontario’s academic streaming system

in secondary schools had on the educational

outcomes of racialized children.

While the SPP project is relatively new, Mirza

estimates that they have already worked on

about 20 cases. He points to, as an example of

the project’s work, a recent Brampton Superior

Court sentencing decision in R. v. Kandhai. In

that decision, Justice David Harris noted that

“one’s head would have to be in the sand not

to acknowledge that Mr. Kandhai’s responsibility

is affected in some measure by the racism

and poverty in the community in which

he grew up.” The trial judge said that he gave

significant weight to the effect of that history

on Mr. Kandhai as described in the Enhanced

Pre-sentence Report in determining that 49

months in jail was a fit sentence.

Lam says that the value of these reports is

not only in their direct effect on the length of

the sentence, but also the message they send

to marginalized people that their experience is

being paid attention by judges.

Mirza credits the project’s success so far to

a combination of factors that speak to the justice

system’s increasing embrace of the value of

diversity. Mirza is proud that collaboration between

racialized social workers, academics, and

counsel has produced both quality reports and

advocacy. Likewise, diversity in the judiciary has

contributed to acceptance of the impact of racism.

After working in the areas of sentencing

reform and systemic racism for the past twenty

years with mixed results, Mirza hopes that we

are at a turning point. He believes that mandating

education in this area for current judges together

with increased diversity in the judiciary

will facilitate long-term progress. Ultimately,

advancing these objectives may improve the

perception of the administration of justice for

Black, racialized and Indigenous communities.

10 11


SECTION QUIRKY CASES

TITLE

Toys, Herbs & Goodwill:

Toys “R” Us (Canada) Ltd. v.

Herbs “R” Us Wellness Society

Tamara Ramsey, Dale & Lessmann LLP

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

facts, a novel legal issue, or something else that makes it quirky.

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

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

quirky not just because it features an assessment of the likelihood of confusion between toys and

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

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

this case addresses a preliminary evidentiary

point regarding the admissibility of affidavit evidence

from a lawyer at the firm representing

the applicant.

The firm representing Toys “R” Us (Canada)

Ltd. (“Toys “R” Us”) tendered an affidavit from

an associate lawyer who visited the retail location

for Herbs “R” Us Wellness Society (“Herbs

“R” Us”) that provided the lawyer’s subjective impression

of the interior of the store, describing

it as “an unimpressive, lower-end retail operation.”

Justice McHaffie raised an issue regarding

the applicant’s reliance on the lawyer’s affidavit.

Evidence from employees or lawyers of the law

firm acting for a party should not be given on

matters of substance, particularly matters that

go to the heart of the issues and matters that

are controversial. Fortunately for the applicant,

there were sufficient non-controversial facts in

the lawyer’s affidavit and sufficient facts in the

client’s affidavit to prove the nature and use of

signage containing the HERBS “R” US mark after

much of the lawyer’s affidavit was disregarded

by Justice McHaffie.

Both the TOYS “R” US and HERBS “R” US marks

feature a backwards “R” and similar stylized

fonts. Justice McHaffie held that “the overall impression

of the two marks is very similar,” but

held that there was no trademark infringement.

Having regard to all of the circumstances to be

considered as part of the test for confusion, the

two trademarks were not confusing because

the goods, services and business of Herbs “R”

Us are fundamentally dissimilar to those of Toys

“R” Us. The TOYS “R” US marks are associated

with “product lines that are light years away

from the product being sold by Herbs “R” Us.”

The analysis did not end with the dismissal of the

claim for trademark infringement. Section 22 of the

Trademarks Act provides a cause of action for depreciation

of the goodwill attached to a registered

trademark where (1) the respondent is using a

12 13


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mark that is sufficiently similar to the registered

trademark to evoke a mental association of the

two marks, (2) the registered trademark is sufficiently

well known to have significant goodwill,

(3) the respondent’s mark has been used in a

manner likely to have an effect on that goodwill,

and (4) the likely effect would be to depreciate

its goodwill. Toys “R” Us established each

of those four elements.

The strong resemblance between HERBS “R”

US and TOYS “R” US was held to be sufficient

to evoke a mental association between the

marks. The TOYS “R” US mark was sufficiently

well known in Canada to have significant goodwill

associated with it. The court concluded that

it could infer the existence of a linkage in the

mind of a consumer from the marked similarities

between the marks combined with the evidence

of extensive use, sales, and advertising

associated with the TOYS “R” US mark.

With respect to depreciation, the courts have

recognized that it can come through disparagement,

from the reduction of distinctiveness

resulting from a mark being “bandied about

by different users,” through the blurring of

brand images, or from a “whittling away” of

the brand’s power to distinguish the owner’s

products. Justice McHaffie concluded that the

use of the HERBS “R” US trademark amounted

to “another trader ‘bandying the mark about’

in a fashion that reduces the distinctiveness”

of the TOYS “R” US mark, and “’whittles away’

at the brand’s power to distinguish Toys “R”

Us’ products.” The creation of an association

between a cannabis dispensary and the Toys

“R” Us brand was likely to “tarnish the goodwill

associated” with the TOYS “R” US trademark.

Further, “there was no reason for Herbs “R” Us

to adopt and use the HERBS “R” US trademark

other than to trade off the goodwill and reputation

established by Toys “R” Us, and that this

points to a finding of depreciation.”

The court granted an injunction against the

use of the HERBS “R” US trademark in any form

and delivery up or destruction of goods, packaging

and advertising material that bears the

HERBS “R” US trademark in any form. The court

assessed nominal damages of $15,000.

GAIN THE EDGE! ® Negotiation

Strategies for Lawyers with

Marty Latz

Wednesday, September 30, 2020

1:00 pm - 4:00 pm ET

Live Online

You negotiate every day and yet most negotiate instinctively or

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on negotiating techniques.

To learn more or register visit

www.advocates.ca

A joint presentation with the

Law Society of Ontario.


Fall Forum 2020:

New

Frontiers

Friday, October 23, 2020

2:00 pm - 5:30 pm ET

Live Online

TAS Members: $50 + HST

Non Members: $99 + HST

Our destination may have changed but the

heart of Fall Forum remains the same. The

Advocates’ Society, in conjunction with the

Young Advocates’ Standing Committee, is

pleased to present this one-of-a-kind event

for lawyers in their first ten years of practice.

Join YASC members from across the country

to explore issues that are relevant to you.

To learn more or register visit

www.advocates.ca

JOURNAL REVIEW: THEN AND NOW

TAS Looking Back:

Summary Judgment

in 2000 and 2020

Christine Vanderschoot,

Vanderschoot Family Law PC

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

Hall Law School and Blake, Cassels & Graydon wrote about recent developments in summary

judgment. As readers of Advocacy Matters know, my column is about looking back to older articles

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

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

summary judgment rules and practices.

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

17


Ontario’s family law practitioners look to Rule

16 of the Family Law Rules. Watson cites “recent”

1998 and 1999 cases that brought the utility of

Rule 20 into question for some, as these cases

highlighted the tension inherent in summary

judgment: does the Rule deny parties the full extent

of due process by disposing of some cases

early on in the process, or is the Rule beneficial

in weeding out meritless cases early on, thus

saving court time and saving parties’ resources?

In addition to the historic tension between the

trial as the paradigm of due process and the

move toward a cleaner and faster process, Watson

points out that judges were divided as to

the efficacy of the summary judgment motion

as well. Watson cites Borins J.’s opinion, when

he sat on the Court of Appeal, that motions

judges simply did not have the full evidence

before them to dismiss a case 1 . Borins J. clearly

saw the summary judgment motion as a denial

of procedural fairness. In contrast, O’Brien J.,

sitting as a motions court judge, granted summary

judgment in Guarantee Co. of North America

v. Gordon Capital Corp. (1999) 2 . While O’Brien

J.’s was not the last word on that case, the Supreme

Court ultimately agreed with his ruling

on the motion and found that the case could be

disposed of by way of summary judgment; even

though Guarantee conceded it had breached its

contract with Gordon Capital Corp., Guarantee

successfully hung its hat on the fact of Gordon

Capital missing the limitation period to sue. This

was a perfect example of how a summary judgment

motion could remove matters improperly

before the court, if the facts were right. But in

other matters where there were no clear limitation

period issues, the defence were not being

granted summary judgment and the overall judicial

approach seemed to be that due process

demanded a trial.

Watson could not have known in the autumn

of 2000 that there would be a significant overhaul

of Rule 20 of Ontario’s Rules of Civil Procedure

in 2010 and Rule 16 of Ontario’s Family Law

Rules in 2015. Prior to these changes, judges

were restricted to granting summary judgment

only if they could find that “there was no genuine

issue for trial”. Creative counsel could almost

always find some issue that could be characterized

as a “genuine” issue, and so most summary

judgment motions failed. To add insult to injury,

a failed motion for summary judgment would

almost always be accompanied by a hefty costs

award against the moving party on a substantial

indemnity basis. When Rule 20 was changed, it

represented a broadening of the legal test so

that a judge had to find that “there was no genuine

issue requiring a trial” and broadening the

powers of judges on summary judgment to hear

oral evidence, make determinations of credibility,

and draw inferences from the evidence.

In Hryniak v. Mauldin 3 in 2014, the SCC gave

guidance on the interpretation and application

of the new Rule 20 that had policy implications

beyond the Ontario Rule. The SCC addressed

the tension inherent in summary judgment by

coming down on the side of increasing access to

justice by focusing on proportionality. Interpreting

the court’s power to grant summary judgment

broadly rather than narrowly is intended

to permit greater access to the timely resolution

of claims. The SCC directed courts to focus on

the needs of particular cases rather than applying

the same process to all situations. That trend

continues today as courts funnel cases to procedures

that may lead to resolution in a more timely

manner than a trial. Conferencing, mandatory

settlement appearances and on-site mediation

opportunities in many courts have grown out of

the access to justice imperative as well.

Though Watson does not specifically mention

Rule 16 of the Family Law Rules, it is interesting

to note that in the family law context, where the

same tensions existed, there has also been a

move toward broadening Rule 16 such that appropriate

cases are dealt with earlier and do not

need to wind their way through the family court

process to trial. Access to justice is a major issue

in the family court system, and the recent move

to align Rule 16 with Rule 20 has made summary

judgment motions far more common in family

court. In family courts, summary judgment

motions have become much more user-friendly.

Where appropriate these motions are valuable in

serving access to justice principles by making the

legal process less expensive and much shorter.

Professor Watson’s article highlights the inconsistent

application of summary judgment

motions and their appeals in and around the

late 1990s, with the majority of appeals being

dismissed compared to other civil appeals,

such that it appeared a very risky proposition

for counsel to advise clients to seek that relief.

Today, due to both rule changes in civil and

family law, and due to the application of those

rules by the judiciary, summary judgments are

far more common now and if the facts support

it, far more often successful than when Professor

Watson’s article was written.

Notes

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

2. 178 D.L.R. (4th)

3. [2014] SCC 7

18 19


Q. Describe your role as DADAG?

A. I help with strategic management of

litigation on behalf of the Federal Government

and support the ADAG in her

role as chief legal advisor for litigation.

Q. What drives you up the wall?

A. Bureaucracy [Editor’s note: spot the irony]

INTERVIEW

Interview with Owen Rees:

Great guy, long title

Compiled by Andrew Gibbs,

Department of Justice

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

routine, Advocacy Matters caught up with Owen Rees, in his latest incarnation – Deputy Assistant

Deputy Attorney General, Justice Canada.

Q. How would you describe your career path?

A. A series of fortunate events, with a public law theme.

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

• Private practice – Stockwoods, Toronto. Formative years in litigation. Tremendous mentors

Brian Gover, Paul Le Vay and Scott Hutchison.

• Executive Legal Officer to Chief Justice McLachlin – Dream opportunity. Fascinating files.

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

Judicial Institute) and the discipline arm (Canadian Judicial Council) of the judicial system

in Canada.

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

• Joined the DOJ in 2018 as senior general counsel.

Q. Advocacy achievements/awards?

A.

• Co-founder of Supreme Advocacy Institute, 2006. Fellow former SCC clerk, Grégoire Webber,

retired Justice Frank Iacobucci and I established the Institute to provide free assistance

to counsel appearing before the SCC. All counsel can confidentially moot their arguments

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

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

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

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

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

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

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

Owen and colleagues at Stockwoods the 2012 National Public Health Hero Award for making

a positive difference in public health at a national level).

20 21


Q. Work-life balance – How’s it going?

A. Not very well at the moment. The balance

is a bit out of whack. I try to protect

as much time in my day as possible for

family. Our children are small. My spouse

and I both work full time, so the pandemic

has been a challenge.

Q. Best career development tip?

A. Be open to new opportunities; go beyond

your comfort zone.

Q. Favourite genre of

music/favourite artist?

A. For the moment: Jazz. Miles Davis.

Q. Fiction or non-fiction?

A. If forced to choose: fiction.

3e Gala annuel

de Montréal

(édition virtuelle)

Thursday, September 24, 2020

6:00 pm - 6:45 pm ET

En Ligne, Heure de L’Est Montreal

Membres : 25.00 $ (plus taxes)

Non-membres : 50.00 $ (plus taxes)

Q. Last book you read?

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

Comme il est impossible de nous réunir en personne

pour l’instant, nous espérons que vous vous joindrez

à nous en ligne pour cette édition spéciale en mode

virtuel de notre célébration annuelle des plaideurs

du Barreau de Montréal.

Activités prévues lors de ce gala :

Q. Best time management tip?

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

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

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

difficult client problem.

Q. Pre-game rituals before court?

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

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

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

Une causerie informelle avec l’honorable Manon

Savard, juge en chef de la Cour d’appel du Québec,

et Me Guy J. Pratte, président de la Société des

plaideurs

La remise du prix Excellence en mentorat – Québec

Une réunion festive « After-Party » virtuelle où vous

pourrez échanger par vidéo avec vos collègues dans

la plateforme Zoom

Pour en savoir plus et s’inscrire, visitez notre site

web à www.advocates.ca

Commandité par :

22


Pre-2020, Dominique Hussey was the leader of the Intellectual Property Litigation group at Bennett

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

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

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

other professional organizations. Dominique is highly recognized in virtually every legal directory for

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

Cue 2020, which, never one to shy away from a challenge, Dominique welcomed with the professional

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

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

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

Technology and Branding group. She was selected to join the TAS Executive Committee.

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

spearheaded Bennett Jones signing the BlackNorth Initiative Law Firm Pledge, which commits her

firm to specific actions and targets designed to end anti-Black systemic racism and create opportunities

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

She was also recognized as the Outstanding Practitioner in Patent Law by Managing IP in

their Americas Awards 2020.

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

IN CONVERSATION WITH

Zoom In: A Discussion

with Dominique Hussey

Compiled by Melanie Baird,

Blake, Cassels & Graydon LLP

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

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

Still, it has mostly been extremely positive.

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

result of the exceptional planning by our Chief Administrative Officer and our HR and IT teams, our

1000 members were up and running remotely almost immediately. Our teams were working around

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

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

disconnected, although we have all been apart. We have onboarded and integrated new employees

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

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

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

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

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

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

involved in a position of management during this time has been very rewarding.

The worst parts have been inherent uncertainties, and the pessimistic outlook and thought

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

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

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

A crisis can really bring out the best in an organization and its people.

24 25


Q. Why did Bennett Jones decide to sign the BlackNorth Initiative?

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

and commitment behind it and has the support of a number of prominent companies and firms

that will hold each other accountable. Associating with the initiative will unify and amplify the

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

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

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

individuals. These positions include board positions, leadership positions, associate and student

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

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

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

a need to approach diversity and inclusion holistically, a commitment to increase efforts to make

the workplace a welcoming place to have difficult conversations, a requirement that we share

best practices and unsuccessful practices with other firms, and a commitment to use resources

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

commitment internally and externally to lead by example. Only about two hours elapsed between

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

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

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

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

throughout the firm to increase awareness of the issues and of our efforts and practices. We are

openly and regularly having conversations on the Board, throughout management, with partners,

associates, our professional development team and our administrative team and brainstorming

on ways to work with Black communities. Having open discussions makes having conversations

that could otherwise be uncomfortable become commonplace—and feel safer for all.

Q: When, and why, did you get involved with TAS?

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

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

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

because I was effectively new on the scene in Toronto. I originally became involved because Barb

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

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

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

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

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

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

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

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

the TAS Board of Directors. I joined the Board, and the rest is history!

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

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

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

does, and how exceptionally committed its members, CEO Vicki White, and the TAS staff really

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

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

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

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

emerge as an increasingly diverse, inclusive, dynamic, adaptable, productive and respected society

of advocates.

Q. What is your best tip for parenting kids while working from home?

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

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

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

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

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

them that we love them and understand isolation is especially hard on them; and try to convince

them that screens can never replace real human interaction. Between Zoom calls.

#DidYouKnow that TAS Members can

post their job opportunities on our

Career Board for free? That’s right,

free! Check out our Career Board

page for the easy steps to get your

next job opening posted with us.

Visit the Career Board

26


EOT@HOME

Thursday, June 11, 2020 | Live Online

Sabrina A. Lucenti, Dooley Lucenti LLP

Brian Gover, Stockwoods LLP

Brent J. Arnold, Gowling WLG (Canada) LLP

Yashoda R.’s dinner!

28 29

Lonny J. Rosen, C.S., Rosen Sunshine LLP

Jill R. Presser, Presser Barristers

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


Privilege: A Litigator’s Guide

Tuesday, June 16, 2020 | Live Online

TAS THROWBACK

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

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

made it through that era, we can get through this! #oldschoolTAScle #HowFarWeveCome

Dominique T. Hussey, Bennett Jones LLP

30 31

Megan E. Shortreed, Paliare Roland Rosenberg Rothstein LLP


Introduction to Thomson Reuters - CaseLines

Thursday, August 13, 2020 | Live Online

Hilary Book, Book Law

The Honourable Justice Kristine M. Eidsvik,

Court of Queen’s Bench of Alberta

Mohan D. Sharma, Superior Court of Justice

Alexey Togunov, Ministry of the Attorney General

32 33

The Honourable Chief Justice Geoffrey B. Morawetz,

Superior Court of Justice

Brent J. Arnold, Gowling WLG (Canada) LLP

David Jackson, Thomson Reuters


34

www.advocates.ca

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