The Advocates' Journal

Vol. 40, No. 3. | WINTER 2021

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The Advocates’ Journal 

Vol. 40, No. 3; Winter 2021 

34 

From the Editor 

3 23 

A plea for interrogatories 

Jennifer Brevorka and David Postel 

An advocate’s view from 

the public gallery 

Deborah E. Palter 

6 29 

The ethics of advocacy: 

Can lawyers handle the truth? 

Andrew Bernstein 

Case management arbitration: 

A resource for alleviating the backlog 

Megan Keenberg and Daniel Baum 

10 34 

Climate change litigation in Canada: 

A primer 

Tamara Prince, Jason Holowachuk, and Thomas Neville 

Annals of Law: 

Halpern v Canada (Attorney General) 

Charlotté Calon and Douglas Montgomery 

14 38 

An AI forensic friend and guide for 

litigators and judges 

The Honourable Justice David Brown 

THE ADVOCATES’ JOURNAL | WINTER 2021 | 1

THE ADVOCATES’ SOCIETY 

PAST PRESIDENTS 

Winter 2021; Vol. 40, No. 3. 

Editor 

Linda Rothstein, LSM | Linda.Rothstein@paliareroland.com 

Managing Editor 

Andrea Gonsalves | andreag@stockwoods.ca 

The Advocates’ Journal: cite as Adv J 

Production Editor 

Sonia Holiad | sholiad@rogers.com 

Editorial Correspondence 

Linda Rothstein, LSM, Paliare Roland Barristers 

155 Wellington St West 35th Floor 

Toronto, ON, M5V 3H1 

Linda.Rothstein@paliareroland.com | 416-646-4327 

Advertising and Subscription Correspondence 

Robin Black 

robin@advocates.ca | 1-888-597-0243 x.108 

Creative Director 

Jessica Lim 

jessical@advocates.ca 

1965-66 J. J. Robinette, QC, ASM 

1966-67 The Hon. R. F. Reid 

1967-68 The Hon. Justice R. S. Montgomery 

1968-69 The Hon. Justice P. Cory 

1969-71 W. B. Williston, QC, ASM 

1971-72 The Hon. Justice W. D. Griffiths 

1972-73 C. F. McKeon, QC, ASM 

1973-74 A. E. M. Maloney, QC, ASM 

1974-76 P. B. C. Pepper, QC, LSM 

1976-77 H. G. Chappell, QC 

1977-78 W. S. Wigle, QC 

1978-79 The Hon. Justice J. J. Fitzpatrick 

1979-80 E. A. Cherniak, QC, LSM, ASM 

1980-81 The Hon. Justice J. W. O’Brien 

1981-82 T. H. Rachlin, QC 

1982-83 K. E. Howie, QC, ASM 

1983-84 J. P. Nelligan, QC, LSM, ASM 

1984-85 Peter Webb, QC, LSM 

1985-86 Bert Raphael, QC, LSM 

1986-87 A. D. Houston, QC 

1987-88 The Hon. Justice J. R. R. Jennings 

1988-89 R. A. Stradiotto, QC, LSM 

1989-90 The Hon. Justice Peter G. Jarvis 

1990-91 John F. Evans, QC, LSM 

1991-92 Terrence J. O’Sullivan, LSM 

1992-93 The Hon. Justice Eleanore A. Cronk 

1993-94 Roger Oatley 

OFFICERS 

President: Deborah E. Palter 

Vice-president: Peter W. Kryworuk 

Treasurer: Dominique T. Hussey 

Secretary: Darryl A. Cruz 

Executive Director: Vicki White 

1994-95 The Hon. Justice Mary Anne Sanderson 

1995-96 C. Clifford Lax, QC, LSM 

1996-97 Margaret A. Ross, LSM 

1997-98 The Hon. Justice Harriet Sachs 

1998-99 Michael F. Head 

1999-00 James A. Hodgson 

2000-01 Ronald G. Slaght, QC, LSM, ASM 

2001-02 J. Bruce Carr-Harris, LSM 

2002-03 Philippa G. Samworth, ASM 

2003-04 Jeffrey S. Leon, LSM 

2004-05 The Hon. Justice Benjamin Zarnett 

2005-06 Linda Rothstein, LSM 

2006-07 Michael E. Barrack 

2007-08 Michael Eizenga 

2008-09 Peter J. E. Cronyn 

2009-10 Sandra A. Forbes 

2010-11 Marie T. Henein 

2011-12 Mark D. Lerner 

2012-13 Peter H. Griffin 

2013-14 Alan H. Mark 

2014-15 Peter J. Lukasiewicz 

2015-16 Martha A. McCarthy, LSM 

2016-17 Bradley E. Berg 

2017-18 Sonia Bjorkquist 

2018-19 Brian J. Gover 

2019-20 Scott Maidment 

2020-21 Guy J. Pratte, AdE, LSM 

Cover 

Delaney Cox 

Paintings, Illustrations and Photography 

Delaney Cox: Cover | pp. 23, 38 

Ryan Little: pp. 7, 10 

Natalie Nehlawi: pp. 14, 35 

The opinions expressed by individual authors are their 

own and do not necessarily reflect the policies of 

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Caroline Abela 

Bernard Amyot 

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Andrea L. Burke 

Frank Cesario 

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David D. Conklin 

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DIRECTORS 

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Craig Lockwood 

Doug Mitchell 

Faisal Mirza 

Christine Mohr 

Anthony Moustacalis 

Peter J. Osborne 

Lillian Y. Pan 

PAST EDITORS OF THE JOURNAL 

1982-90 Moishe Reiter, QC 

1991-08 David Stockwood, QC, LSM 

2008-20 Stephen Grant, LSM, ASM 

Michael G. Robb 

Sylvie Rodrigue 

Stephen G. Ross 

Jeff Saikaley 

Ann L. Stoner 

David V. Tupper 

Jane M. Waechter 

Maureen L. Whelton 

Adrienne Woodyard 

2 | WINTER 2021 | THE ADVOCATES’ JOURNAL

FROM THE EDITOR 

Our oral traditions 

“Oral communication unites people in groups. 

Writing and reading are solitary activities that throw the psyche back on itself.” 

~ Walter J. Ong, Orality and Literacy 

Linda Rothstein, LSM 

I 

an Gilmour Scott always had an entourage. 

When he was appearing in court, especially 

in the Court of Appeal, students 

and associates from our firm or other firms who 

knew next to nothing about the case tagged along 

to watch Ian – well, really, to listen to him. When 

he was in his office, chain smoking, as he cheerily 

dissected that day’s case or opposing counsel or 

the judge, everyone in the office gathered around 

to take it in. And when he was at lunch or dinner 

– a vodka martini at his side – we jockeyed 

for the seats nearest to him, lest we miss a joke, 

an insight, a new idea. Ian Scott was that compelling 

and bold, and hilarious. Until his devastating 

stroke in 1994, he was one of the profession’s 

greatest masters of oral advocacy and conversation. 

I think these two talents were virtually indistinguishable 

to him. 

Ian practised in a legal culture that prized the 

oral traditions – oral advocacy, of course, but also 

addresses to Convocation, after-dinner speeches 

and war stories, joke telling, and even sophisticated 

heckling. It was a culture where senior 

counsel were expected to be well read enough 

to make artful allusions, entertaining enough 

to offer a great anecdote in a dull conversation, 

and above all, persuasive enough to make the 

case for their opinions on law or politics or the 

profession sound utterly convincing. It was a 

way of life. 

All this came to mind, as I read through The 

Advocates’ Society’s seminal June 2021 final 

report – The Right To Be Heard: The Future of 

Advocacy in Canada – and reflected on almost two 

years without in-person advocacy. I was moved 

by the report’s central premise that in-person 

oral advocacy really matters – to advocates, yes, 

but even more to clients and the public. As court 

backlogs climb and the pressure mounts on the 

courts and the profession to clear them, how do 

advocates avoid the pressure to do even more of 

what we do virtually or simply in writing? 

President Deborah Palter’s lead article describes 

this moment as a critical inflection point for the 

profession and the justice system. Her poignant 

personal essay will resonate with every advocate 

struggling to find the words to articulate the importance 

of an in-person hearing in a courtroom. 

My question is this: When all our courtrooms 

reopen, will we be ready to meet the moment? 

Has the pandemic cost us not just in-person 

courtroom experience, but also regular participation 

in a bigger oral culture – one in which the 

way we speak to each other is critical and embedded 

in our daily routine? 

For almost two years, our in-person interactions 

have been largely confined to the closest of family 

and friends. Some clients engage with us in regular 

Zoom meetings, but most are now happier to receive 

our memos or emails. CPD and speaking 

engagements are plentiful, but the audience is 

mostly a blank screen. Conversations with colleagues 

and others on a file are increasingly by 

email. When was the last time you had lunch with 

someone you didn’t know well, sat with a bereft 

client and talked them off the ledge, or tried to 

command a room of colleagues with a thumbnail 

sketch of a newly decided case? Our oral communication 

skills are rusty – a COVID-19 casualty. 

The great advocates of the past 30 years celebrated 

a culture rich in oral traditions. They relished 

opportunities to make an impromptu speech 

of welcome or thanks; they loved to recount a good 

day and bad day in court in a manner that was 

both entertaining and instructive. To be blunt, 

they loved an audience. Resplendent egos aside, 

the best of these advocates paid close attention to 

their language, to their listeners. If they made it 

look easy, that was largely because they got lots 

of practice speaking to others. 

When our offices and our courtrooms reopen, 

we’ll be together in person again more often than 

not. Let’s actively reinvent a culture in which oral 

communication skills are practised, promoted, 

and prized by recognizing they can be honed 

both inside and outside the courtroom. A culture 


that encourages junior advocates to call the witness 

and prep the witness, but also moderate the panel and 

run the meeting. A culture that encourages advocates, 

young and old, to open their mouths and persuade us. 

*** 

The articles in this issue travel widely from advocacy 

ethics, to case management arbitration, to climate 

change litigation. You’ll also find the second feature 

in our Annals of Law series. The series tells the inside 

story of how some of Canada’s landmark cases were 

won. Charlotté Calon and Douglas Montgomery interviewed 

many of the lawyers and judges who had a 

stake in Halpern v Canada (Attorney General), the 2003 

case from the Court of Appeal for Ontario that ruled in 

favour of marriage equality. Enjoy. 

THE ADVOCATES’ JOURNAL 

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www.advocates.ca 

Linda Rothstein, Editor 

Andrea Gonsalves, Managing Editor 

Sonia Holiad, Production Editor 


CONTRIBUTORS 

Daniel Baum 

Daniel Baum is a partner at Langlois in Montreal, 

practising commercial litigation and arbitration, 

public law, and appellate advocacy. 

Megan Keenberg 

Megan Keenberg is a partner at Van Kralingen 

& Keenberg LLP, in Toronto, where she practises 

commercial litigation. She is also a skilled mediator 

and arbitrator on the inaugural NextGen Roster 

with Arbitration Place. 


Andrew Bernstein is a partner at Torys, in 

Toronto. His practice is focused on trial and 

appellate advocacy in commercial, public, and 

intellectual property law. A Few Good Men is only 

his second-favourite lawyer movie, but it’s quite 

hard to structure an article around My Cousin Vinny. 

Douglas Montgomery 

Douglas is an associate at Paliare Roland Rosenberg 

Rothstein LLP, where he practises civil litigation. 

Douglas is dedicated to building a justice system 

that is more responsive, more representative, 

and more responsible. 

Jennifer Brevorka 

Jennifer Brevorka, counsel at Henein Hutchison 

LLP, maintains a practice involving cross-border 

litigation and complex commercial disputes. Before 

arriving in Toronto, Jennifer tried cases across 

America as a partner in a Texas firm. She 

misses seeing cowboy boots in court; her dogwalking 

game is fierce. 


Justice Brown sits on the Court of Appeal for 

Ontario. When not jigging for cod in Placentia Bay, 

he enjoys riding around on his classic McCormick 

tractor on his farm in Eastern Ontario. 

Thomas Neville 

Thomas Neville is an associate in the Banking 

and Specialty Finance Group at Cassels. His 

practice focuses primarily on assisting clients 

with commercial real estate matters. Prior to 

his career in law, Thomas ran a successful 

construction company. 


Deborah E. Palter is the president of The Advocates’ 

Society and a partner at Thornton Grout Finnigan 

LLP, in Toronto. Her practice focuses on the 

litigation of complex commercial disputes. 

Charlotté Calon 

Charlotté is an associate at Paliare Roland 

Rosenberg Rothstein LLP, where she has a broad 

civil litigation practice. Charlotté is dedicated to 

advocating for a more accessible legal system as well 

as a more diverse and equitable profession. 

David Postel 

David is an associate at Henein Hutchison, where 

he has a wide-ranging civil litigation practice. 

David enjoys running, drafting factums, and 

watching Michigan football, even if they can all 

be a little painful at times. 

Jason Holowachuk 

Jason Holowachuk is a litigation partner at 

Cassels (Calgary), representing institutional, 

transactional, and entrepreneurial clients in energy, 

manufacturing, construction, securities, real estate, 

and franchising matters. Jason has chaired Cassels’ 

Corporate Responsibility Committee and served 

on the national board of directors of the Canadian 

Cancer Society. 

Tamara Prince 

Tamara (Tami) Prince is a litigation partner at 

Cassels. Her practice focuses on complex corporate/ 

commercial litigation. Tami has represented 

a wide range of corporate clients, including 

those involved in the global energy sector, 

petrochemicals, commercial property, mining, 

manufacturing, franchising, and construction. 


REFLECTIONS OF AN ADVOCATE 

An advocate’s view from 

the public gallery 


“ 

W 

elcome 

to the criminal justice system,” she said. 

It was the first day of trial, and we had gathered 

together at 361 University Avenue in Toronto waiting 

for court to begin. 

“I’m familiar,” I thought to myself. I work in the justice system. A 

“welcome” is not required. As those and other reflexive responses 

flew through my mind, they were replaced by an uncomfortable 

awareness that I was about to get an education. 

The charge was first-degree murder in the violent death of a beloved 

friend, and I was being welcomed to the criminal justice system 

as a member of the public. No client. No standing. Just deeply 

invested in witnessing the process and, as the trial concluded, the 

verdict. I was about to experience the importance of oral advocacy 

and open courts from the vantage point of the public gallery. 

I said nothing. 

The right to be heard 

The Advocates’ Society’s Modern Advocacy Task Force delivered its 

final report, The Right To Be Heard: The Future of Advocacy in Canada, 

in June 2021, 15 months into the COVID-19 pandemic. Its release coincided 

with a critical inflection point in the evolution of courtroom 

advocacy arising from the circumstances of the pandemic. 

The report examines and considers the future of oral advocacy 

in the Canadian justice system. It is the product of a rigorous review 

of legal history, literature, and jurisprudence on the origins 

and development of the oral hearing. 1 While the work of the task 

force included months of painstaking research, the report itself is 

not a dry academic thought piece divorced from the reality of our 

current system and those affected by it. 

The fundamental strength of the report is the depth and breadth 

of the consultation process that supports its conclusions and recommendations. 

That consultation process included input from 

judges, lawyers, litigants, victims’ rights advocates, experts, and 

other participants and observers of the justice system. 2 

The report was informed by more than a hundred telephone and 

videoconference interviews, and input from seven virtual town 

hall meetings attended by more than 600 justice system stakeholders 

from across Canada. Through consultation, experts from a diversity 

of fields, communities, and backgrounds shared insights 

and experiences on topics as broad as psychology, education, Indigenous 

oral traditions, Black and other racialized communities, 

journalism, social justice activism, and the impact of oral submissions 

on judicial decision-making. 3 

The stakeholder consultation happened during the height of the 

pandemic in a period of rapid and extreme change in the way in 

which justice is administered in this country. 4 Electronic hearings 

and trials became the rule and not the exception. Supreme Court 

Chief Justice Richard Wagner, in his remarks at The Advocates’ 

Society’s 2021 End of Term event, aptly described this period as 

“innovation in action.” 5 

Our profession’s desire for technological advances in the administration 

of justice is nothing new, and the questions investigated 

in the report precede the pandemic. 6 We have long recognized 

the need for a modern, electronic-based document management 

system for our courts. 7 The Commercial List had been promoting 

telephonic and video court appearances through the CourtCall 

platform as an alternative to in-person chambers appointments for 

months before the total shift to online practice. 

With the onset of the pandemic and no other options available, 

we quickly adapted to conducting cross-examinations, discoveries, 

hearings, and trials by videoconference. Notwithstanding the growing 

pains associated with the sudden dramatic change, the benefits 

of virtual practice became obvious. Our commute to the office evaporated 

and with it the march up to court and back again. We saw how 

virtual hearings provided access to litigants and the public free of 

travel and mobility concerns. High-profile cases and decisions could 

be delivered by webcast, providing easier access to those affected by 

the proceedings. More than a year and a half into the pandemic, we 

know that complex document-intensive trials can be conducted by 

videoconference with the right supports in place. 

The very real and material benefits of technological advances 

should not, however, obscure the importance of courtroom advocacy 

to the transparency, understanding, and human connection 

necessary for public confidence in our justice system. Virtual platforms 

are a critical tool for enhancing access to our courts and will 

remain so long after the physical-distancing measures of the pandemic 

have been lifted. They are not, however, a substitute for the 

courtrooms themselves. 

Courtroom advocacy 

Public confidence in our justice system is essential to the survival 

of the system itself. 8 The preservation of that confidence requires 


an inviolate shared belief that the rules are fair, the judges are impartial, 

and the results are just. Oral courtroom advocacy shores 

up public confidence in our justice system in three material ways: 

transparency, understanding, and human connection. 

Transparency 

Courtroom advocacy makes the court process more transparent. 

Litigants and those affected by the proceedings experience the solemnity 

and decorum of the process first-hand. The atmosphere of 

respect and trust affects not only the parties, but also the witnesses 

giving evidence and the public watching the case. 9 

For those affected by the outcome of the proceeding, a trial is not 

a transcript. It is not just observed; it is experienced. There is a palpable 

energy in a courtroom that does not translate on a video screen, 

and the experience starts before the registrar’s “All rise.” Being able 

to observe the seriousness with which counsel and court staff prepare 

and interact with each other when the judge is not in the room 

provides context for the proceedings that instills confidence. 

One day during the trial I attended, a class of students filed in 

to observe the testimony. The presence of these students felt especially 

significant as I sat among them. There is inherent value in a 

system where any person, any time, can enter a courtroom without 

introduction and, as part of a community, witness how our courts 

dispense justice. There is value in experiencing justice first-hand 

without distraction, unrestricted by the borders of each participant’s 

video screen and unfiltered by mainstream and social media. 

The need for transparency is mutual. In the course of conducting 

interviews for the purposes of the task force’s report, one stakeholder 

remarked that families present in murder cases or for other serious 

cases of victimization may feel that it is very important to be 

seen by the judge and the jury. Families and friends may want to see 

and be seen by the accused. For me, the compulsion to bear witness 

to the proceedings could not have been satisfied by videoconference. 

The importance of transparency extends beyond criminal proceedings. 

Personal injury lawyers commented on the importance 

of having an injured litigant present at trial so the trier of fact does 

not lose sight of the impact of the conduct at issue. 10 Stakeholders 

expressed concern for clients in ordinary civil proceedings who imagined 

they would literally have their “day in court.” After often 

many months or years of anticipation, preparation, and expense, 

many clients justifiably expected an opportunity to be seen and 

heard in court by the decision maker. 11 

Understanding 

In-person courtroom advocacy makes it easier for observers to 

understand the proceedings. Better understanding leads to greater 

confidence in the process and greater acceptance of the result. 

A physical courthouse has resources available that a virtual one 

does not have or has radically less accessibility to, including administrative 

staff, victim/witness support staff, courtroom staff, 

and even the informal assistance of lawyers. 12 I note that lawyers 

waiting for their matters to be called often act as guides to others 

in the courtroom. All these supports make it easier to ask questions 

and to understand the context for what happens at trial. 

When it comes to understanding the process, my advocacy 

experience gives me a significant advantage over any layperson. 

I understand the rules of evidence and principles of due process. 

When lawyers or judges communicate using legal shorthand, I 

know what they’re talking about and why it matters for the next 

stage in a trial. Yet those courthouse resources were invaluable 


even to me. It was easier to get context for what happened at the 

trial and the nature of what would happen next. 

Oral hearings can facilitate a deeper understanding and engagement 

of those involved in and affected by legal proceedings. 13 

In response to the consultation process informing the task force’s 

report, stakeholders raised repeated concerns about the impact of 

remote hearings on justice system participants generally, especially 

those who are under-resourced or vulnerable. In certain instances, 

a remote hearing may be better for some participants by saving on 

transportation costs, time, and inconvenience. At the same time, 

participants in a courtroom benefit from informal communication, 

including comforting body language, eye contact, and the ability to 

do something as simple as pass a note. Participants with language 

barriers may benefit from attending in person with a translator in 

the same physical space. 14 

The ability of litigants to understand and participate in legal 

proceedings is crucial, and the barriers to unrepresented parties 

involved in remote hearings are especially significant. Legal aid is 

consistently available across the country only for serious criminal 

matters, and the rates are so low that it is not economically feasible 

for many lawyers to take on legal aid mandates. 15 Litigants should 

not have to navigate the complexities of the justice system without 

legal representation, and the pandemic has only exacerbated those 

complexities. During the pandemic, self-represented litigants have 

faced particular challenges with remote hearings: adjusting to 

court procedures and understanding the myriad rules and practice 

directions associated with the pandemic. Stakeholders noted that 

self-represented litigants tended to be in a vacuum of support and 

may be unable to access the technology and help required to participate 

in remote hearings. 16 

Human connection 

While videoconferencing provides a viable platform for oral argument, 

there are human aspects to oral advocacy that are lost when 

delivered through a screen. 

Human beings are extremely sensitive to body language, facial 

expressions, and non-verbal cues that inform our communication 

with one another. We miss that level of connection on videoconferencing 

platforms. Depending on camera angles, we look slightly 

off into the distance and can appear uninterested and unengaged. 

Pixelated or frozen video images mess with our perception. 17 

A sense of human connection is important from a professionalism 

standpoint. Advocates have observed that the shift to a virtual 

platform has hampered opportunities for mentorship and collegiality. 

The ability to meet and connect with opposing counsel 

and parties is diminished. 18 As an advocate, I miss the eye contact 

and handshake with opposing counsel before the judge enters the 

courtroom. While we may regard each other with a steely eye and 

bring an unusual degree of strength to the handshake, it remains 

for me a gesture of civility and respect for our shared role in the 

administration of justice. I feel the absence of these and other customs 

more and more in the context of many months of practising 

law at home. 

A sense of human connection is also important from a public 

perspective. No verdict could bring back my friend or rectify the 

profound injustice of his death. Yet as a bystander to a significant 

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criminal trial, I felt a human connection to the process that was 

important and made a difference to me. 

The accused attempted to plead guilty to manslaughter on the 

opening day of trial. The Crown rejected the plea and proceeded 

on the charge of first-degree murder. The issue to be determined 

was intent. 

To watch by webcast would have made an already unreal event 

feel even more unreal. Being at the trial in person meant I could 

observe the judge, the jury, the counsel, and witnesses without the 

restraints of a webcam dictating where to look. I was able to offer 

and receive meaningful support. I could better appreciate the finer 

points and direction of the case by hearing where counsel placed 

the emphasis in their delivery, reading the expression and reaction 

of the judge and others, and experiencing the various reverberations 

in the courtroom, all as part of a community. 

Being at the trial in person enabled the judge to address us with 

eye contact as he declared a mistrial. False information had been 

introduced to the jury through legal research conducted outside 

the trial process, contrary to the direction of the judge. In the moment, 

I was grateful to hear not just the reasons for the mistrial, 

but an acknowledgement of the consequences of the mistrial – consequences 

that included lay witnesses being required to testify a 

second time about traumatic events before a new jury. I was grateful 

for the shared understanding of the consequences of the decision 

for all involved. 

The court immediately empanelled a new jury. That jury ultimately 

rendered a guilty verdict on the first-degree murder charge, 

carrying with it a mandatory sentence. I was invited to deliver 

a victim impact statement. My immediate answer was a firm no. 

The decision gnawed at me for two days and two sleepless 

nights. I wrote something down. I consulted. And I changed my 

mind. I was grateful for the chance to address the judge, to share 

space in a courtroom with family and friends who were also deeply 

affected by the crime, and to have a moment of connection with the 

community that dispensed justice in the case. 

The importance of human connection has relevance beyond the 

criminal justice context. For many people involved in both criminal 

and civil proceedings, a trial is one of the most stressful and 

significant events in their lives. A judge may be assessing their 

credibility. The events in issue may have been life altering physically, 

emotionally, and financially. The consequences of a decision 

may be profound. 

As the Honourable David Stratas wrote so eloquently on these 

pages in the Spring 2021 issue, “Humans need to speak truth to 

power, face to face, seeing the whites of the decision makers’ eyes, 

gauging their reactions, assessing their emotions, hearing their real 

voices, and telling them to their faces what they must do. As well, 

we accept that some must wield public power over us in a democracy, 

but we insist on dealing personally and directly with them, 

especially when they will deeply affect us.” 19 

The future 

The views and perspectives of justice system stakeholders are nuanced 

and diverse. 20 My experience is only one among the many 

individual experiences of countless others. I recognize the great 

advantage that my education and professional experience afforded 

me in navigating the system from a position and vantage point different 

from the one I assume as an advocate. 

I commend the Modern Advocacy Task Force’s report, The Right 

To Be Heard: The Future of Advocacy in Canada, to those who have 

not had a chance to read it. It speaks to the myriad views of those 

involved in and affected by our justice system, and the common 

themes that link those perspectives. The open court principle, the 

need to promote access to justice, the importance of the integrity 

of the court process, and the principle of proportionality were key 

imperatives that emerged across all categories of stakeholders. 21 In 

a coming world where optimal use of both remote and in-person 

advocacy is possible, these imperatives and the task force recommendations 

that flow from them provide a vital guide as we chart 

the way forward together. 

Notes 

1. The Advocates’ Society, The Right To Be Heard: The Future 

of Advocacy in Canada (Final Report of the Modern Advocacy 

Task Force) (Toronto: the Society, June 2021) 

(MATF Report) at 13; online: https://www.advocates. 

ca/Upload/Files/PDF/Advocacy/ModernAdvoca- 

cy/The_Right_to_be_Heard_The_Future_of_Advoca- 

cy_in_Canada_PRINT.PDF. 

2. Ibid at 59. 

3. Ibid at 61–63. 

4. Ibid at 64. 

5. TAS End of Term Event video (TAS website, for members 

only). 

6. MATF Report, supra note 1 at 64. 

7. See Romspen Investment Corp v 6176666 Canada Ltée, 

2012 ONSC 1727; and the Remarks of Associate Chief 

Justice Frank Marrocco at the Opening of the Courts (Toronto, 

September 10, 2019); online: https://www.ontariocourts.ca/scj/news/speeches/oc/2019ocs/. 

8. R v Jordan, 2016 SCC27 [2016] 1 SCR 631 at para 26. 


10. Ibid at 84. 

11. Ibid at 87. 

12. Ibid at 76. 

13. Ibid at 91–92. 

14. Ibid at 76–77. 

15. Ibid at 99. 

16. Ibid at 77. 

17. Kate Murphy, “Why Zoom Is Terrible,” New York Times, 

April 29, 2020. 


19. The Honourable David Stratas, “In-Person Appellate 

Hearings: Are Their Days Numbered?” (Spring 2021). 

39:4 The Advocates’ Journal, 22 at 24. 


21. Ibid at 64 and 91. 


ARBITRATION ADVOCACY 

Case management arbitration: 

A resource for alleviating the backlog 

Megan Keenberg and Daniel Baum 

The authors wish to thank the Honourable Colin Campbell, 

the Honourable Regional Senior Justice Mark L. Edwards, and the 

Honourable François Rolland, whose thoughts on case management 

arbitration are cited below. 

The COVID-19 backlog has wrought havoc on our litigation 

timetables. Procedural civil motions are often booking several 

months out. Litigators are stymied in their efforts to move 

cases forward. Parties are frustrated with the inertia. In the absence 

of a credible and immediate threat to convene a case conference 

or bring a motion, litigators find themselves without the resources 

they need to force an uncooperative opposing party to comply 

with an agreed-to schedule or provide agreed-to productions. 

By the time a procedural motion can be heard, there has been a 

lengthy interlude of downtime that results in lawyers needing to 

re-ramp on the facts and review case law for new decisions that 

may have been released in the meantime. Worse, business events 

may have arisen in the intervening time that affect a litigant’s resources 

or motivation to bring the motion, leading to withdrawals 

based on resources rather than merits, or to moot or needless proceedings. 

The problem is compounded by litigants and counsel 

who use delay as a tactic to wear down an opponent to avoid or 

defer payment. 

Litigants have increasingly adopted a novel solution to move 

their cases forward efficiently: case management arbitration. Case 

management arbitration is not a full referral to arbitration. The 

courts maintain ultimate jurisdiction over the determination of the 

parties’ substantive rights on the merits, while interim procedural 

matters are referred to a mutually agreed-on arbitrator for speedy 

and effective resolution. The purpose of case management arbitration 

is to permit the parties to move forward expeditiously without 

having to wait for interim motion dates or case conference dates 

from overwhelmed courts. 

In its broadest iteration, case management arbitration is similar 

to civil case management available under Rule 77 of the Rules of 

Civil Procedure (Ontario) or pursuant to Part XIII of the Consolidated 

Practice Direction Concerning the Commercial List, where 

the parties agree or are directed to refer all procedural matters to 

a single case management judge or master. Civil case management 

was introduced in Ontario as a system designed to reduce unnecessary 

delay and cost, facilitate early and fair settlements, and bring 

cases promptly to a just conclusion. In Quebec, this would be akin 

to special case management. Ironically, in the context of a significant 

backlog, civil (or special) case management in the court system 

can actually contribute to further delays. If all motions must be 

directed to a single adjudicator, that person’s lack of availability 

will become a bottleneck to the progression of other cases. 

This is the problem the judicial system is currently facing. As 

noted by Regional Senior Justice Mark L. Edwards (Newmarket): 

As the regional senior justice of the Superior Court of Justice 

for the Central East region, I can speak to the current backlog of 

cases here. Motions in Newmarket are currently booking at 

least 20 weeks out. The backlog will only worsen as we resume 

empanelling juries for criminal matters. Those matters will take 

priority over civil cases, using up finite court and judicial 


esources and leading to further delays 

in setting civil motions dates. If 

we can move interim procedural matters 

off the court’s docket and have 

them dealt with by an arbitrator, it will 

speed up resolution for civil matters, 

and, speaking for myself and not as a 

matter of court policy, I think that’s a 

great idea, so long as the parties agree. 

The problem of finite judicial and courtroom 

availability for interim matters is 

significantly mitigated under case management 

arbitration where the parties refer 

their procedural disputes to an arbitrator 

instead of a judge or master. Arbitrators 

typically have much greater autonomy 

over their schedules than judges do and 

are available outside of conventional court 

hours, if need be. Case conferences or motions 

can be convened on relatively short 

notice at any reasonable hour: early in the 

morning, over lunch, or after the end of an 

ordinary business day – whenever counsel 

and the arbitrator are available. Moving to 

timeframes outside of standard court hours 

also frees up a lot of counsel time that would 

otherwise be subject to scheduling conflicts 

with other court matters. Further, the case 

management arbitrator’s availability will 

be a factor in selection and be canvassed 

upfront, thereby avoiding surprises over 

scheduling conflicts. 

In Quebec, which is faced with similar 

backlogs before the civil courts, the possibility 

of case management arbitration has 

become an increasingly attractive option 

for litigants and counsel. While the concept 

remains novel in that province, the 

Code of Civil Procedure places a central emphasis 

on alternative dispute resolution 

(ADR) processes and expressly requires 

litigants to consider resolving their disputes 

privately. Properly implemented, 

case management arbitration could significantly 

assist parties in resolving their 

disputes quickly and efficiently. 

As noted by François Rolland, former 

chief justice of the Superior Court of Quebec 

and current arbitrator: 

In Quebec, it is not yet an established 

practice to have an arbitrator entertain 

procedural motions and case management 

conferences in order to help courts 

manage their delays. However, I believe 

this to be an excellent initiative. Not only 

would it help reduce the delays (hence, 

the backlog), but it would also allow 

parties to explore possibilities of settling 

their dispute, in whole or in part. Courts 

and arbitrators’ associations could also 

consider adopting protocols to facilitate 

case management arbitration. Moreover, 

such a practice would also allow new arbitrators 

to gain valuable experience. 

What follows is a description of how case 

management arbitration works in practice in 

Ontario, and how this process may be adopted, 

with necessary modifications, in Quebec. 

Scope 

The scope of a case management arbitrator’s 

jurisdiction will be set by the parties’ agreement 

and may include all interlocutory 

matters or focus more narrowly on production 

and discovery issues. There may be 

a carve-out for interlocutory matters that 

engage the merits of a dispute, such as a 

substantive summary judgment motion, or 

motions to dismiss on preliminary grounds, 

while leaving room for the case management 

arbitrator to decide adjacent matters. 

To best suit the needs of a given case and 

to best ensure that the process operates efficiently, 

parties should carefully tailor the 

scope of any agreement to refer a matter to 

case management arbitration. 

Court approval 

Advance consideration should be given to 

whether court approval of a case management 

arbitration agreement is necessary 

or advisable. In Ontario, court approval is 

generally not required or sought for ordinary 

civil and commercial matters but may 

be advisable for any proceeding to which 

any party is operating under a disability 

(e.g., a minor) or where a group of litigants is 

bound by a representative litigant or committee 

(e.g., in class proceedings or mass 

torts). Indeed, for proceedings over which 

the court must maintain regular oversight 

with statutorily mandated reporting at 

regular intervals (e.g., proceedings under 

the Companies’ Creditors Arrangement Act), 

case management arbitration may not be 

appropriate. That said, the categories of 

cases listed above are typically subject to 

particularized court procedures and heard 

at specialized courts. 

In Quebec, courts maintain oversight over 

pre-trial civil case management, notably 

through the requirement of court approval 

of a case protocol at the early stages of 

a proceeding. Thus, parties will be prompted 

to inform the court of the existence of a 

case management arbitration agreement at 

the early stages of the litigation process. By 

carefully tailoring the scope of their case 

management arbitration agreement (for 

instance, by limiting it to cover discovery 

and procedural issues that do not directly 

impact the merits of a claim), parties 

can best ensure that it will meet the court’s 

approval, such that it does not engender 

unintended issues at trial. 

Process rules 

Parties should consider whether to (1) specify 

particular rules of arbitration to govern 

the process of their procedural disputes; 

(2) rely on the applicable rules of 

civil procedure in the jurisdiction, with or 

without modifications; or (3) craft their 

own procedure by agreement with each 

other and the case management arbitrator. 

Although fixed rules provide certainty 

and may avoid disputes on procedure, they 

can often be cumbersome or inadequately 

tailored to the dispute in question. In particular, 

the wholesale importation of the 

applicable rules of civil procedure could result 

in an unduly time-consuming process 

that may not be necessary to safeguard the 

parties’ entitlements to fairness and proportionality. 

Wherever possible, counsel 

should work together co-operatively and 

with the guidance of the case management 

arbitrator to craft an agreed-on process that 

best suits their dispute. However the parties 

choose to govern their arbitration of procedural 

matters, certain process rules will 

require particular attention in case management 

arbitration – specifically, appeal rights 

and costs. 

To fully embrace the time-saving benefit 

of case management arbitration, it is preferable 

to agree at the outset that the case 

management arbitrator’s decisions will be 

final and binding. Consideration should 

be given to the court’s capacity to intervene, 

overturn, or annul a decision by the 

case management arbitrator. Where possible 

in the relevant jurisdiction, parties 

may want to consider limiting appeal or 

annulment rights to instances where the 

arbitrator renders a decision exceeding the 

scope of the case management arbitration 

agreement itself, or one that irremediably 

affects the outcome of the dispute on its 

merits. In Ontario, a common practical 

solution is simply to refer any appeal of 

a procedural decision made by the case 

management arbitrator to the trial judge, 

to be addressed as a threshold matter prior 

to the commencement of trial. 

The parties will also need to agree on 

the treatment of costs for the interim matters 

decided by the case management arbitrator. 

In Ontario, arbitrators have a wide 

discretion on the costs of arbitration: they 


can order full indemnity costs, no costs, or any reasonable scale 

of costs in the circumstances. The possibility of full indemnity 

costs can be both a carrot and a stick, incentivizing parties to take reasonable 

positions on each interim step, agreeing where possible, 

and avoiding all but the most important contested procedural 

wars. Where costs are ordered on interim steps, care should be 

taken to avoid double recovery in the cause. Specifically, the parties 

will need to agree on what remaining costs constitute costs in the 

cause following trial. One way to avoid double recovery issues is 

to order all interim costs to be paid in the cause. If the parties opt 

for this costs treatment, the case management arbitrator may elect 

to assist the trial judge by fixing the costs of the interim steps to be 

paid in the cause. In Quebec, where extrajudicial costs (i.e., legal 

fees) may be less frequently awarded, parties should nevertheless 

address the issue of costs in their case management arbitration 

agreement. For instance, parties can agree to defer the issue of costs 

to the trial judge. 

Benefits of case management arbitration 

Clearly a major benefit to case management arbitration, particularly 

in view of the current backlog, is more timely resolution of 

interim matters resulting in faster routes to a trial on the merits. For 

any case involving time sensitivity, case management arbitration 

is particularly useful. After pleadings close, parties who opt for 

case management arbitration may immediately set down for trial 

with a view to obtaining the earliest possible trial dates from the 

court and then work backward from the set court dates to perform 

the remaining steps of the litigation under the management of the 

agreed-to arbitrator. For practical purposes, it is advisable to have 

selected and appointed a case management arbitrator and to have 

canvassed that arbitrator’s general availability for interim motions 

before setting down and committing to trial dates. 

Case management arbitration is also a smart choice where parties 

need to move the action along to productions and discoveries 

in order to optimize settlement opportunities. Having faster access 

to a decision-maker on interim disputes relating to the exchange 

of information and documents will position parties to engage in 

meaningful settlement discussions at an earlier point. As noted by 

the Honourable Colin Campbell (retired justice): 

As a former judge of the Commercial List, I am very familiar 

with case management in the courts. Since my retirement from 

the bench, I have been practising as a mediator and an arbitrator, 

and I offer case management arbitration. The need for case 

management arbitration often arises after an early mediation 

attempt reveals that settlement cannot be achieved without 

certain productions or threshold matters resolved. In those 

cases, I have offered to assist the parties in getting through the 

interim procedural steps required to get into a settlement position, 

with the idea that mediation would resume thereafter. 

The myriad disputes that can arise around productions, discoveries, 

and examinations are particularly suitable for case management 

arbitration, especially those arising from complex claims 

involving a high volume of electronic documents. A case management 

arbitrator can assist the parties in coming to an agreed-to 

discovery plan and determine disputes involving the scope of the 

discovery plan, the timing of delivery of productions, the appropriate 

representatives for examinations for discovery, the appropriate 

duration of discovery examinations, the order of party examinations 

Bringing experience to both sides of the table. 

To find out more, or book a mediation, visit briangrantmediation.com 

brian@briangrantmediation.com | 416.792.7772 


and third-party examinations, the appropriate format for electronic productions, the sufficiency of answers to undertakings, and the 

propriety of refusals or objections. 

Where the parties agree, common arbitration procedures may be employed to deal with discovery disputes. Many such disputes can 

be dealt with by exchanging a few emails, bypassing the formality of interim motions required by the courts and saving time and money. 

Documents and information can be addressed together through the use of Redfern schedules. 

Redfern schedules 

A Redfern schedule, which is similar to an undertakings and refusals chart, is an efficient method of organizing and characterizing 

requests for documents and information. It is most often organized with columns, as set out in the chart below, allowing the parties to 

present their requests for documents and information, or categories thereof, and to spell out the reasons for their requests – cross-referencing 

each request to the record and then permitting the counterparty to lay out its objections to the requests with a reply option. The final 

column is for the arbitrator’s decision. 

No. 

Request for 

Documents or 

Information 

Relevance and Materiality 

Reasoned 

Objections 

to Request 

Response to 

Objections 

Decision 

References 

Reasons for 

Request 

This method of organization streamlines the arguments in a cogent 

manner, allowing the parties and the arbitrator to cut to the 

chase for efficient decision-making. It essentially combines production 

and discovery with a refusals motion, making a single step out 

of four litigation phases (productions, examinations, answering 

undertakings, advancing or responding to a refusals motion). A Redfern 

can be used as a stand-alone process or as a supplement to distinct 

litigation phases. For example, parties may agree to produce 

to one another the documents on which they intend to rely and/or 

to submit to time-limited examinations; and then supplement those 

productions and the information relayed in brief examinations with 

further requests organized in a Redfern. 

Discouraging strategic delays 

There will always be litigants who benefit from delay as well as 

counsel who encourage delay as a strategy. These parties will be 

difficult to convince to enter into a case management arbitration 

agreement. There are a few strategies we suggest when proposing 

case management arbitration to a reluctant opponent. 

First, where feasible, parties may agree to case management arbitration 

before a dispute arises and before any motivation to delay 

the resolution of such disputes becomes entrenched. Parties might 

consider including in their governing contracts a referral to case 

management arbitration for procedural and interim matters arising 

from any disputes that need to be litigated in court. This referral 

would be related to but independent of a substantive ADR clause, 

essentially relating to any matter outside the scope of that clause. 

Second, arbitrators and the courts should consider whether costs 

consequences are appropriate for a party’s refusal to engage in 

proposed case management arbitration as a means of promoting 

or benefiting from delay. Stalwart refusal to engage in a process 

for the fair determination of interim and procedural disputes – a 

process that would ease the burden on the overwhelmed courts in 

the context of an unprecedented court backlog – for no other reason 

than to benefit from the avoidance or deferral of final judgment, 

is not a tactic that courts should accept or endorse. As such, good 

faith proposals for case management arbitration, and any refusals 

to engage in them, could be taken into account in the award of 

costs – not only for interim steps in the court, but also for costs in 

the cause. As Regional Senior Justice Edwards stated: 

In cases where one party wants to refer to arbitration, but 

another party opposes it, I wouldn’t order them to go to arbitration, 

but I would encourage the refusing party to reconsider 

by appealing to their common sense. When properly 

assessed, the time savings and costs savings and the shortening 

of the duration of cases to full resolution (by settlement, 

usually) are strong common-sense incentives to engage in 

case management arbitration. If a party maintains its objection, 

any additional costs incurred as a result of this refusal 

would be appropriately taken into consideration in awarding 

costs under Rule 57. 

Third, picking up on Justice Edwards’s comments, where there 

is a dispute between the parties as to whether or not to engage 

in case management arbitration, it may be worthwhile to bring 

that dispute to the attention of the court in a case conference. 

Although, at the present time, it may take a while to get a date 

for a case conference, it may be worth the effort if the proposing 

party can get the judge on side. If the proposing party’s arguments 

about the time and costs savings are persuasive, the judge 

presiding over the case conference may strongly encourage the 

parties to refer their procedural disputes to a case management 

arbitrator while remaining seized of the substantive dispute. As 

the Honourable Colin Campbell noted: 

In certain cases, when the case management judge sees a long 

list of interim matters to be determined and knows that the 

next available court dates are quite far off, he or she may encourage 

the parties to refer these interim steps to an arbitrator. 

With the current backlog being what it is, I don’t see the trial 

list or long motions lists being normalized in the near future. 

Counsel and judges should be encouraged to see case management 

arbitrators as a helpful resource for alleviating the backlog 

and moving cases along. 

To sum up the above points, justice delayed is, in some cases, justice 

denied. Case management arbitration is an essential resource 

for the courts, parties, and litigators to combat such delay and to 

enhance access to justice for more litigants across Canada. 


FEATURE 

Annals of Law: 

Halpern v Canada (Attorney General) 

Charlotté Calon and Douglas Montgomery 

The authors would like to thank Joanna Radbord, Martha McCarthy, 

Michael Leshner, Michael Stark, and the Honourable Susan Lang 

who, through interviews, provided invaluable insight on the Halpern 

case. The authors would also like to thank Professor Samuel Singer 

for providing helpful resources, and Radbord (again) for her excellent 

article, “Lesbian Love Stories,” 1 which tells the story of this case 

in a form that is both legal scholarship and autobiography. 

O 

n June 10, 2003, the Court of Appeal for Ontario released 

its decision in Halpern v Canada (AG), joining a small 

chorus of other Canadian jurists in extending marriage 

rights to same-sex couples. 2 The unanimous ruling, which arrived 

less than two months after the appeal was heard, struck down the 

common law definition of marriage, limited to “one man and one 

woman,” as a violation of the Charter rights of same-sex couples. 

To the surprise of all interested parties, including the lawyers, 

attorneys general, and then Prime Minister Jean Chrétien, the 

Halpern panel gave its decision immediate effect. This action set 

it apart from and, if we’re counting, ahead of the other contemporaneous 

same-sex marriage decisions of the courts in Ontario, 

British Columbia, and Quebec, all of which had suspended their 

declarations of invalidity by two years to allow the government 

time to catch up. Rather than follow suit, the Halpern panel, chaired 

by then Chief Justice Roy McMurtry, who had played a major role 

as the attorney general of Ontario in brokering the political deal 

that gave life to the Charter, reformulated the legal definition of 

marriage to be between any “two persons” and ordered immediate 

remedies for the applicants. 

For the seven same-sex couples represented by lead counsel 

Martha McCarthy and Joanna Radbord, the order required the city 

clerk of Toronto to immediately issue the marriage licences that 

they had previously been denied. 

“Nobody expected that the judgment would have immediate effect. 

We argued for it – begged for it, truth be told – but between 

counsel felt that there was little prospect of an immediate remedy,” 

recalls McCarthy. “The beauty of Halpern and the genius of Roy 

McMurtry” was that the immediate effect of the ruling meant that 

“the genie was out of the bottle, the toothpaste out of the tube, 

the horses out of the barn.” And so it was. Within hours of the decision’s 

release, same-sex couples in Ontario were being issued marriage 

licences and making use of them. Two of these same-day marriages 

involved core members of McCarthy and Radbord’s litigation 

team, including Radbord herself. 

The other marriage was between Michael Leshner and Michael 

Stark, one of the applicant couples, who were married in a jury 

room at a Toronto courthouse by Justice Hamilton, apparently the 

only judge on Leshner and McCarthy’s call lists who would agree 

to officiate the ceremony. Theirs was the first civil same-sex marriage 

in Canada. “We’re the genies out of the bottle,” said Leshner 

at the time. 3 

The couple, dubbed the “Michaels” by the media, became the 

faces of same-sex marriage in Canada and around the world, not 

least owing to the longstanding mutual attraction between the 

media and Leshner, a career Crown and gay rights activist with a 

particular talent for headline-grabbing one-liners and blistering 

op-eds. 4 Images of the couple kissing outside the courthouse 


on June 10, 2003, announced the news of 

the decision to the public: same-sex marriage 

exists, and it’s happening now. The 

Michaels were named Newsmakers of the 

Year for 2003 by Time Canada, which described 

their wedding as starting a “cultural 

revolution.” 

McCarthy, who wore a white suit to pick 

up the judgment that morning, attended 

both Radbord’s and the Michaels’ courthouse 

ceremonies. In anticipation of an 

application for leave to appeal by the federal 

government, she directed a student at 

her firm’s office, then McMillan Binch, to 

wait at the fax machine in case a leave application 

arrived. It didn’t. One week later, 

with many more queer genies celebrating 

across Ontario, Chrétien controversially announced 

that there would be no attempt to 

appeal, including of the decisions in other 

provinces, and that his government would 

instead introduce legislation to recognize 

same-sex marriage across Canada. 

Amid the social and political hubbub 

that followed, Chief Justice McMurtry and 

his co-panellists, Justices James MacPherson 

and Eileen Gillese, were named the 

Globe and Mail’s Nation Builders of 2003 for 

their decision, which the Globe described 

as “an example of the willingness of the 

nation’s judges to go with speed and precision 

where politicians only dither” and 

“the most concrete sign of the country’s 

determination to be a socially liberal place, 

where differences can be celebrated and 

choice will be honoured.” 5 

However bold it was, the Halpern decision 

quietly stood on the shoulders of many 

years of hard-fought lawyering across Canada 

for same-sex spousal rights, particularly 

at the intersection of family law and public 

law, including by a number of the lawyers 

involved in the Halpern case, whose 

stories converged in the early 1990s. Our 

article aims to provide only a very small 

piece of this account. 

In 1992, two important things happened 

in the legal fight for same-sex spousal rights. 

McCarthy, then only a first-year family law 

lawyer, commenced an application on behalf 

of her client, “M,” challenging the constitutionality 

of the definition of “spouse” 

under the Family Law Act of Ontario, which 

excluded members of same-sex couples 

from its regime. Under that regime, M had 

no legal recourse when her decade-long 

same-sex relationship ended in September 

1992, leaving her locked out of the home 

she had shared with her former partner, 

“H,” and without access to any of the assets 

that she and H had accumulated during 

their relationship. 

McCarthy “didn’t have a clue” about 

equality law when M unexpectedly walked 

into her office to ask for help. “When M left, 

I asked a student to bring me a copy of the 

Charter and the leading cases on equality,” 

recalls McCarthy. With the support of her 

mentor, Malcolm Kronby, who convinced 

the McMillan Binch partnership to allow 

her to take the case pro bono, McCarthy 

began her career as what she describes as 

an “accidental activist.” It would take eight 

more years of deliberate legal activism before 

the constitutional question in M v H 

was finally decided by the Supreme Court 

of Canada. 

Around the same time in 1992, Leshner 

won a landmark decision before the Ontario 

Human Rights Tribunal, then the Board of 

Inquiry, which found that his employer, 

the Province of Ontario, had discriminated 

against him on the basis of sexual orientation 

by not entitling his partner, Stark, to 

spousal benefits. 6 The tribunal read down 

the definition of “marital status” in the 

Human Rights Code, removing the phrase 

“opposite sex” to bring it into compliance 

with the Charter. Leshner was represented 

before the tribunal by Katherine van Rensburg, 

now a justice of the Court of Appeal 

for Ontario. 

By the time of the hearing before the 

tribunal, the provincial government had 

extended full coverage for all insured and 

non-insured benefits to same-sex spouses, 

largely in response to Leshner’s complaint 

and an increasing number of others like it. 

However, the Province argued that it was 

prevented from providing survivor benefits 

under the existing pension plan for 

Ontario government employees owing to 

restrictions in the federal Income Tax Act, 

over which it had no jurisdiction. The tribunal 

rejected this argument as one of “administrative 

convenience” and ordered 

the Province to provide survivor benefits 

through a separate but equivalent pension 

plan. The tribunal also urged the Province 

to attempt to persuade the federal government 

to amend the Income Tax Act to 

remove the discriminatory restriction and, 

if unsuccessful, to take legal action against 

the federal government on the grounds that 

the restriction violates the equality rights of 

same-sex spouses. 

Following the tribunal’s decision, in 1994, 

Bob Rae’s NDP provincial government introduced 

Bill 167, the Equality Rights Statute 

Amendment Act, which provided same-sex 

couples with rights and obligations (mostly) 

equal to those of unmarried opposite-sex 

couples by amending the definition 

of “spouse” in 79 provincial statutes, including 

the Family Law Act. The bill was 

defeated on a free vote in June 1994. 

Radbord, who was working for the Province 

of Ontario at the time, recalls sitting in 

the visitors’ gallery of the legislature as the 

bill was voted down, “watching MPP after 

MPP say that my relationship was not real.” 

She describes how the gallery erupted in 

spontaneous protest and how the protestors, 

herself included, were forcibly removed 

by security personnel, including police and 

protective services, who wore rubber gloves 

and carried billy clubs. Motivated by this experience, 

Radbord made the decision to go 

to law school. Less than three months later, 

she was at Osgoode Hall. 

Despite these origins, it was by chance 

rather than design that Radbord arrived at 

McMillan Binch as an articling student in 

1997, having been hired into the firm’s tax 

practice. Thankfully, however, she landed 

on McCarthy’s radar almost immediately. 

She spent her entire articling year, and then 

her first year of practice, working on M v H. 

At the time Radbord became involved 

in the case, it was headed to the Supreme 

Court of Canada, on appeal by the Attorney 

General of Ontario from a majority decision 

of the Court of Appeal for Ontario. 

The majority had upheld the decision of 

Justice Gloria Epstein, then of the Superior 

Court, which found that the Family Law 

Act unjustifiably violated M’s Charter rights 

by excluding members of same-sex couples 

from its definition of “spouse” for the purposes 

of spousal support. 

In May 1999, seven years after M first 

walked into McCarthy’s office, the Supreme 

Court dismissed the government’s appeal 

by an 8-1 majority, 7 effectively reversing its 

position in Egan v Canada, which itself had 

been decided four years prior. In Egan, the 

Court had confirmed sexual orientation as 

an analogous ground under section 15(1) of 

the Charter; But, in a narrow 5-4 split, held 

that the exclusion of same-sex cohabitants 

from the old age security scheme in question 

was justified under section 1 on the 

basis that it was good public policy to support 

“heterosexual family units.” 8 In reaching 

this conclusion, the majority described 

marriage as “deeply rooted in our fundamental 

values and traditions” and “by nature 

heterosexual” insofar as its “ultimate 

raison d›être […] is firmly anchored 

in the biological and social realities that 


heterosexual couples have the unique ability 

to procreate, that most children are the 

product of these relationships, and that 

they are generally cared for and nurtured 

by those who live in that relationship.” 9 

In M v H, the Court declared the same 

kind of statutory exclusion unconstitutional, 

distinguishing Egan on the basis of 

legislative purpose. Importantly, however, 

the Court found there was a societal significance, 

which “cannot be overemphasized,” 

to legally recognizing intimate relationships 

for the purposes of spousal benefits: 

The exclusion of samesex partners 

from the benefits of s. 29 of the FLA 

promotes the view that M., and individuals 

in samesex relationships generally, 

are less worthy of recognition 

and protection. It implies that they 

are judged to be incapable of forming 

intimate relationships of economic 

interdependence as compared to opposite-sex 

couples, without regard to 

their actual circumstances. As the intervener 

EGALE submitted, such exclusion 

perpetuates the disadvantages 

suffered by individuals in samesex relationships 

and contributes to the erasure 

of their existence. 10 

The Court called upon lawmakers across 

Canada (and not just in Ontario) to bring 

their laws into compliance. 

The M v H decision resulted in monumental 

legislative amendments across the 

country, 11 which, over time, had the effect of 

emptying marriage of its privileged status 

as the gatekeeper of spousal rights and obligations. 

This levelled the playing field between 

unmarried same-sex and opposite-sex 

couples, while keeping same-sex couples 

on the outside of marriage. 

“There was nothing left but marriage,” explains 

McCarthy, “M v H was always about 

getting to marriage, although we went to 

great pains to assure the courts otherwise.” 

McCarthy recalls that “the ink was barely 

dry on the legislative amendments when 

Joanna and I started getting calls about 

marriage.” They wanted to move quickly, 

concerned as they were to maintain momentum 

and to avoid the case falling in 

the hands of someone who would “screw 

it up.” According to McCarthy, her confidence 

came from “having a junior whose 

IQ was 100 times mine, whose lived experience 

was at the heart of the case, and 

who could educate me about the issues.” 

Succinctly: “Joanna was the secret weapon. 

I was the lipstick.” 

Drawing on their shared networks, McCarthy 

and Radbord assembled a group of samesex 

couples to be their applicants (the Applicant 

Couples). It was important to them to 

put together as diverse a group as possible 

– in contrast to the US approach, which 

prioritized applicants who would be most 

“acceptable” to those in power. However, 

many potential applicants, and particularly 

the most vulnerable among them, 

were understandably reluctant to expose 

themselves to judicial and public scrutiny, 

as well as the possibility of costs consequences. 

12 As Radbord explains, “Everyone 

thought that the case was a loser.” Nor was 

there universal support for the case from 

within the 2SLGBTQIA+ community. Some 

members thought that demanding marriage 

went too far and could cause a social 

or political backlash. Others rejected marriage 

outright as an inherently heterosexual 

institution, which queer persons should not 

have to or seek to imitate. 

The retainer agreement was simple but 

uncompromising. The Applicant Couples 

were on the hook for costs but had no 

decision-making power with respect to the 

litigation: “There is no settlement. There is 

nothing but marriage. Joanna and I were 

calling the shots.” 

McCarthy and Radbord intended to seek 

litigation funding from the Court Challenges 

Program and, accordingly, directed 

their couples to “quietly” apply for and be 

denied marriage licences. This plan worked 

fine until it was the Michaels’ turn. There 

was nothing quiet about Leshner’s reaction 

to the city clerk of Toronto’s refusal to provide 

him with written reasons for not granting 

him and Stark a marriage licence. After 

holding an impromptu press conference 

outside City Hall, Leshner called McCarthy 

to advise her that he had “good news and 

bad news.” Yes, his marriage licence had 

been denied, as expected. However, the city 

clerk had also forwarded the issue to the 

city’s legal department. 

Shortly thereafter, the city clerk indicated 

that she intended to bring an application to 

the Superior Court for directions and, in the 

meantime, would hold the marriage licences 

of the Applicant Couples in abeyance. The 

Applicant Couples and their lawyers were 

wary of the City of Toronto leading the litigation 

in Ontario, and they believed that 

the best shot at winning the case would be 

for family lawyers advocating on behalf of 

same-sex couples to take charge. The city 

clerk, they worried, would not be forceful 

in advancing the injustice of the current regime. 

McCarthy explains that the success of 

the case would depend on centring the experiences 

and stories of same-sex couples. 

That kind of task would be better accomplished 

by members of the family law bar 

who knew how to, and would be best able 

to, tell the story of the applicants. 

To strike first, McCarthy and Radbord 

immediately pulled together their application 

on behalf of the couples and the following 

day appeared before Justice Mary 

Lou Benotto (now of the Court of Appeal 

for Ontario), who was then senior justice of 

the Family Court for Ontario. At the time, 

she maintained a regular 9:30 am session to 

deal with special problems in family proceedings. 

McCarthy attended before Justice 

Benotto during one of these sessions and received 

a handwritten endorsement issuing 

their application – one half-hour before the 

Registry of the Superior Court opened and 

the city clerk would have been able to issue 

her own application, which she did later 

that day, as a regular civil proceeding. 

The case was off to a rushed start, and for 

McCarthy and Radbord that also meant they 

could no longer apply for litigation funding. 

Not long afterward, McCarthy moved 

her practice to Epstein Cole LLP, where the 

late Phil Epstein easily agreed to McCarthy’s 

wish list, which included bringing over the 

Halpern case on a pro bono basis as well 

as her team, which importantly, included 

Radbord, then a first-year associate. 

Radbord’s first year at Epstein Cole was entirely 

dedicated to the case. “Joanna built the 

case; she did it all,” is how McCarthy opens 

her interview with us. 

On January 14, 2001, around six months 

after the Applicant Couples had filed their 

materials, Radbord attended the defiant marriage 

ceremonies of two same-sex couples 13 

at the Metropolitan Community Church 

of Toronto (MCCT). The ceremonies were 

performed by the Rev. Dr. Brent Hawkes, 

who wore a bulletproof vest under his robes 

while hundreds of police officers waited 

in the church basement in the event of 

trouble. The marriages were solemnized in 

the church according to the ancient Christian 

doctrine of the publication of the “banns.” 

Although the publishing of the banns of 

marriage was a lawful alternative under the 

Marriage Act of Ontario to a marriage licence 

issued by municipal authorities, the Government 

of Ontario did not register these marriages, 

and the MCCT commenced a separate 

application seeking relief. 

The MCCT application was spearheaded 

by the renowned equality rights advocate 

R. Douglas Elliott. Elliott, who had also 


een involved in M v H on behalf of the 

Foundation for Equal Families, had proposed 

the doctrinal loophole to Reverend 

Hawkes. Unlike the Applicant Couples’ 

application, which was anchored in the 

discrimination protection of section 15(1), 

the MCCT application relied on the right 

to freedom of religion enshrined in section 

2(a) of the Charter. 14 

When now-retired Justice Susan Lang 

was appointed as the case management 

judge, she understood that the case was 

going to be closely scrutinized by the public, 

the media, and the legal profession. She 

recalls a sense of awe about the social and 

legal importance of the case. One of Justice 

Lang’s first matters was to address the 

question of competing applications. First, in 

2000, she consolidated the city clerk’s application 

and the applicants’ application and 

transferred them to the Divisional Court. 15 

Then, in 2001, Justice Lang issued a consent 

order for the Applicant Couples’ and the 

MCCT’s applications to be heard together, 

with the same evidence and a combined 

title of proceedings. 

Although Justice Lang was familiar with 

the legal basis of the application, the question 

of process to resolve the application 

on its merits was far from settled. Justice 

Lang, who was eventually appointed to 

the Court of Appeal for Ontario in 2004 

and went on to conduct the Motherisk Hair 

Analysis Independent Review, recalls that, 

on paper, her role was to get the case ready 

for a panel of the Divisional Court, which 

would hear the application on the merits. 

However, Justice Lang’s task was complicated 

by two factors related to the evolving 

nature of Charter litigation, happening 

simultaneously to the Halpern application. 

First, case management was a relatively 

recent introduction and, until that point, 

few Charter cases had been subject to case 

management in Ontario. In 1995, the Civil 

Justice Review in Ontario, which was cochaired 

by Justice Robert Blair, released its 

first report, which advanced the view that 

the “modern civil justice system should 

operate under the rubric of an overall caseflow 

management system.” 16 Acting on that 

recommendation, the Ontario Superior Court 

had just begun a process of formalizing the 

role of case management. Still, there was no 

roadmap or template for how a Charter case 

ought to be managed, particularly one that 

was subject to considerable public attention 

and scrutiny. 

Second, the evidentiary burden on parties 

to bring or defend a Charter challenge 

continued to grow. The Supreme Court’s 

1993 decision in R v Morgentaler, Justice Lang 

recalls, weighed heavily on the minds of application 

judges tasked with hearing Charter 

cases. In Morgentaler, the Supreme Court had 

confirmed the value of extrinsic evidence in 

order to determine the “background, context 

and purpose” of legislation that was 

being challenged. 17 As a result, the volume 

of evidence in application records swelled as 

parties sought to provide a factual basis for 

social arguments, or to ensure there was an 

evidentiary basis to counter any resistance 

in a judicial mind reluctant to forge new 

paths in the Charter landscape. 

Although a case management judge does 

not necessarily need to review all the materials 

that will be before the panel, Justice 

Lang spent a train ride from Toronto to 

Halifax reviewing all the evidence, both 

factual and expert, out of personal interest. 

Reviewing the evidence was no small 

feat. The parties tendered evidence from 

experts on the legal history of same-sex relationships, 

the sociology of families and 

family dynamics, the history of motherhood 

and families, child and family development, 

cross-cultural evidence of samesex 

partnerships and marriage, and the 

philosophy of marriage. By way of example 

of the parties’ extensive evidentiary rally, in 

response to the government’s evidence that 

it was not possible for marriage to include 

same-sex couples because the definition of 

the term itself was limited to opposite-sex 

couples, the applicants hit back with an 

affidavit from a scholar on the philosophy 

of language, who explained the concept of 

tautological reasoning. The expense of this 

exercise for the government was enormous 

– hundreds of thousands of dollars on expert 

evidence. In contrast, the applicants’ 

19 experts gave their evidence at no cost. 

The Applicant Couples also provided 

affidavits explaining their own personal 

experiences. Although most of the fact affidavits 

explained the significance of the 

institution of marriage as it related to their 

own lives, Leshner’s affidavit evidence was 

more pointed: 

I will not explain our personal characteristics 

further in this Affidavit as I do 

not believe that the details of our lives 

and relationship are relevant. It should 

not be necessary for me to justify my 

application for a marriage licence and 

requiring me to do so would be discriminatory, 

humiliating, and upsetting. 

The parties, and Justice Lang, also had a 

heightened concern for the timeline for the 

application. Not only was there a sense 

of social urgency for the applicants and 

their counsel. Similar applications in other 

Canadian jurisdictions were also proceeding, 

posing a risk of creating a patchwork of 

rights for same-sex couples between jurisdictions. 

Indeed, while the Ontario case 

was being litigated, on October 2, 2001, the 

British Columbia Supreme Court rejected 

EGALE’s request for a similar declaration. 18 

Further, there was a real threat to the viability 

of the proceeding if it dragged on too 

long. At one point in the discussion between 

the parties regarding the timeline, the prospect 

was raised that cross-examinations for 

each expert would take a full two weeks, 

while cross-examinations for each fact witness 

would take two days. This would have 

resulted in a timetable of up to three years 

of pre-hearing motions. The applicants’ lawyers, 

who were working on the file pro bono, 

would be unable to continue to the case if 

it stretched on too long, given the intensive 

resources required for the application. 

McCarthy recalls that Justice Lang “cajoled” 

the parties into brokering an agreement, 

and, when the dust settled, the parties 

agreed that only one half-day of cross-examinations 

would be necessary in total. 

As a result of the parties’ efforts to expedite 

the proceedings, the applications were 

ultimately heard by a panel of the Divisional 

Court on the merits between November 

5 and 9, 2001, less than one and a half years 

after McCarthy and Radbord filed their materials. 

The panel was made up of judicial 

heavy hitters: Associate Chief Justice Heather 

Smith (who would later be appointed 

chief justice of the Superior Court) and 

Regional Senior Justice Robert Blair and 

Justice Harry LaForme (who would both go 

on to be elevated to the Court of Appeal). 

In a judgment released in July 2002, all 

three judges of the Divisional Court agreed 

that the common law definition of marriage 

discriminated against same-sex couples 

who wanted to be married, and that such 

discrimination was contrary to section 15(1) 

of the Charter. 

Despite their agreement, each judge issued 

a different set of reasons on the appropriate 

remedy. Regional Senior Justice Blair’s 

position, which was reflected in the final 

order, was the conceptual middle ground 

– it deferred the remedy for 24 months (favoured 

by Associate Chief Justice Smith), 

but also provided an immediate remedy if 

Parliament failed to act (favoured by Justice 

LaForme). 

The Attorneys General of Canada and 


Ontario appealed on the issue of whether 

the common law definition of marriage 

was discriminatory. The Applicant Couples 

cross-appealed on the question of remedy, 

arguing that the declaration should have 

immediate effect. The appeal was heard on 

April 22–25, 2003, by Chief Justice McMurtry, 

who had appointed himself to the panel, and 

Justices MacPherson and Gillese. 

On the final day of hearing, the morning 

began with continued argument on the merits 

of the appeal. The applicant team’s confidence 

on the issue of marriage itself had been 

bolstered by some notably pointed comments 

and questions made by the panel, 

including a particularly colourful contribution 

from the chief justice in response to the 

government’s argument that marriage was 

restricted to couples who could procreate. 

“Are you telling us that this comes down 

to a penis and a vagina?” he asked the 

government lawyer, while Radbord, who 

was pregnant and showing at the time, sat 

across from the bench. 

“We all felt that marriage was in hand,” 

explains McCarthy. The real question was 

remedy: “There was a fear that we were asking 

for too much with an immediate remedy,” 

and the applicants’ team was divided 

on the right strategy, which was intensely 

debated over a lunch break in the cafeteria 

of Osgoode Hall. The team decided that 

fortune would favour the bold, and, during 

the afternoon hearing, Radbord argued 

for an immediate remedy. McCarthy recalls 

that, during Radbord’s submissions, Chief 

Justice McMurtry put it to her that what she 

was asking the panel to order went beyond 

what any other country had done to date. 

Radbord responded, “Yes, and that is why 

I’m proud to be a Canadian.” 

Seven weeks later, the panel dismissed 

the appeal and allowed the cross-appeal. 

The 60-page decision, which was tellingly 

signed “by the Court,” opened with block 

quotes from the affidavits of three of the 

Applicant Couples describing the reasons 

for their desire to be married, which, the 

panel stated outright, “are the same as the 

reasons of heterosexual couples.” Two of 

these excerpts expressed the affiants’ desire 

to have their relationships validated and 

recognized by their community. Much later 

in the decision, the panel pointed to this 

reason in particular as the basis for finding 

the opposite-definition of marriage discriminatory, 

referring back to the Supreme 

Court’s findings in M v H: 

Importantly, no one, including the AGC, 

is suggesting that procreation and 

childrearing are the only purposes 

of marriage, or the only reasons why 

couples choose to marry. Intimacy, 

companionship, societal recognition, 

economic benefits, the blending of two 

families, to name a few, are other reasons 

that couples choose to marry. As 

recognized in M. v H. at p. 50 S.C.R., 

same-sex couples are capable of forming 

“long, lasting, loving and intimate 

relationships.” Denying same-sex couples 

the right to marry perpetuates the 

contrary view, namely, that same-sex 

couples are not capable of forming loving 

and lasting relationships, and thus 

same-sex relationships are not worthy 

of the same respect and recognition as 

opposite-sex relationships. 

To the surprise of many observers, the 

panel allowed the couples’ cross-appeal 

and agreed that the definition of marriage 

should be reformulated with immediate 

effect. While other courts had been circumspect 

and held Parliament should respond 

to the legal gap, the Court of Appeal for 

Ontario put in plain words that there was 

no evidence that “a declaration of invalidity 

without a period of suspension will pose 

any harm to the public, threaten the rule of 

law, or deny anyone the benefit of legal recognition 

of their marriage.” The Applicant 

Couples, and Radbord herself, were finally 

free to marry. 

Following the Court of Appeal’s decision, 

McCarthy went on to argue similar applications 

in the Yukon and Quebec, where 

she was co-counsel with the late Colin K. 

Irving. Both the British Columbia Court of 

Appeal and a five-judge panel of the Court 

of Appeal of Quebec rendered judgments 

granting declarations in favour of samesex 

couples. 19 Rather than appeal any of 

these decisions, the federal government 

eventually referred the question of the 

validity of proposed same-sex marriage 

legislation to the Supreme Court. That did 

not stop the litigation from continuing 

in each province: after the reference was 

initiated but before it was decided, the 

opposite-sex requirement for marriage was 

struck down in the Yukon, 20 Manitoba, 21 

Nova Scotia, 22 and Saskatchewan. 23 

The Applicant Couples intervened at the 

Supreme Court. They were permitted to 

provide evidence to the Court, and, as 

McCarthy points out, this may be one of 

the only times when the applicants’ affidavits 

could speak to the practical outcome 

of their successful challenge at the 

courts below. The Applicant Couples all 

drafted new affidavits, having been given 

the opportunity to present the Court with 

evidence of their lives after they gained 

their rights: the stories of their weddings, 

complete with photos, and the stories of 

their lives as married couples. Although 

each affidavit was written independently, 

the evidence all said the same thing – that 

being married had provided them with 

a monumental sense of belonging. Even 

couples who had been together as long 

as 40 years felt differently, having experienced 

a transformative sense of family. 

In her oral submissions, McCarthy took 

the Court to the affidavit of Robbie Barnett-Kemper, 

the young son of one of the 

Applicant Couples, which described the 

impact of his parents’ marriage on his own 

sense of family and belonging: 

The day of their wedding, I did not feel 

that anything was changing … I didn’t 

cry like my sister. But I do feel different 

now that my parents are married, and I 

feel that people treat me differently. I am 

beginning to feel like a regular kid … I 

feel like my parents are just a little more 

like other parents … Now other kids 

can’t say that I don’t have a real family. 24 

The importance of the immediacy of the 

remedy was again borne out by the Supreme 

Court’s decision in the Same-Sex Marriage 

Reference, which refused to revisit the question 

of whether the opposite-sex definition 

of marriage violated Charter rights: 

The parties in EGALE, Halpern and 

Hendricks have made this intensely 

personal decision. They have done so 

relying upon the finality of the judgments 

concerning them. We are told 

that thousands of couples have now 

followed suit. There is no compelling 

basis for jeopardizing acquired rights, 

which would be a potential outcome 

of answering Question 4 … There is 

no precedent for answering a reference 

question which mirrors issues already 

disposed of in lower courts where an 

appeal was available but not pursued. 25 

The legal impact of the Halpern decision 

was undoubtedly significant. Prior 

to Halpern, only two other countries, Belgium 

and the Netherlands, had legally recognized 

same-sex marriages. As well, the retroactive 

effect of the decision meant that the 

marriages performed by Reverend Hawkes 

in 2001, and which were at issue on the 

MCCT application, were the first legally recognized 

same-sex marriages in the world. 

The decision would also be relied upon by 

rights-oriented decisions of courts in other 


countries and, notably, within weeks 

of its release, was referred to by Justice 

Antonin Scalia of the United States Supreme 

Court, in his irate dissent in the 

case striking down a state sodomy law 

as unconstitutional, as a cautionary 

tale against the recklessness of taking 

constitutional protection of homosexuals 

too far. 

However, the personal magnitude for 

rights holders was even more significant. 

The Michaels recall the immediate 

impact of both the Halpern decision and 

the Same-Sex Marriage Reference opinion. 

The consequences on the everyday 

lives of Canadians was tangible, 

and strangers began thanking them on 

the street for the change in their lives. 

One particularly memorable encounter 

involved an elderly woman stopping 

the Michaels to thank them because her 

grandson could get married. 

Despite that, the fight for 2SLGBTQIA+ 

rights is far from over. In particular, 

trans and gender non-conforming persons 

have continued to face considerable 

obstacles in achieving equal results 

from the justice system. As Dr. Viviane 

Namaste has pointed out, the primary 

focus of legal reforms led by lesbian 

and gay communities from the 1990s 

onward has been “state recognition 

that facilitates the legal transfer of 

property”; in other words, institutions 

such as marriage and pensions. 26 

However, trans rights are particularly 

vulnerable, being neglected or left behind 

because meaningful progress is 

possible only through substantive, rather 

than formal, equality. Explicit human 

rights can go only so far. Rather, substantive 

work is still required to address 

the social marginalization of trans persons 

in areas such as housing, benefits, 

racial profiling, and parenting. 27 

Still, the achievement of equal marriage 

marked a legal breakthrough 

in the ongoing struggle for freedom 

from discrimination, as well as broader 

public recognition of 2SLGBTQIA+ 

rights. Years of litigation in the realm 

of benefits and employment paved 

the way for victory in Halpern, 

and countless numbers of litigants 

and advocates dedicated endless 

amounts of energy in challenges to 

dominant systems over the years, 

both successful and unsuccessful. 

Canada’s social and legal tapestry is 

all the richer for it. 

Notes 

1. Joanna Radbord, “Lesbian Love Stories: How We Won Equal Marriage in Canada” 17:1 (2005) Yale 

Journal of Law & Feminism 99. 

2. The authors use the term “same-sex marriage” in the article given that this term was popularly used 

during the litigation as meaning the freedom for any two persons to marry, regardless of sex. Sex 

is typically associated with physical and physiological biological attributes and should not be 

confused with gender. While sex is usually categorized as female or male, there may be variation of 

these attributes that does not fit either conventional category. Accordingly, it should be noted that 

neither “same-sex” nor “opposite-sex” marriage recognizes the existence of intersex persons. 

3. Ian Mackenzie, “Who’s on First,” Xtra*, July 9, 2003; online: https://xtramagazine.com/power/ 

whos-on-first-43680. 

4. For a more detailed telling of Leshner’s activism, see Andrew Flavelle Martin, “The Government Lawyer 

as Activist: A Legal Ethics Analysis,” Windsor Review of Legal & Social Issues, 41 (2020) 44–51. 

5. Erin Anderssen, “Ontario Court of Appeal, 2003,” The Globe and Mail, December 13, 2003; 

online: https://www.theglobeandmail.com/news/national/ontario-court-of-appeal-2003/ 

article4392160/. 

6. Leshner v Ontario, 1992 CanLII 14288 (ON HRT); online: https://www.canlii.org/en/on/onhrt/ 

doc/1992/1992canlii14288/1992canlii14288.html. 

7. M v H, [1999] 2 SCR 3. 

8. Egan v Canada, [1995] 2 SCR 513. 

9. Ibid, 535–36. 

10. M v H, supra note 7 at para 73. 

11. In response to the Supreme Court’s decision, 58 federal statutes and 68 Ontario statutes were 

amended, and similar numbers of statutes were amended at the provincial level across the country. 

12. This has led to some insightful criticism that the fight for same-sex marriage in Canada was premised 

on white racial normativity. Although that is beyond the scope of this article, for a more detailed 

analysis see Suzanne Lenon, “Why Is Our Love an Issue?: Same-Sex Marriage and the Racial Politics 

of the Ordinary” 17:3 (2011) Social Identities 351–72. 

13. The couples were Kevin Bourassa and Joe Varnell, and Elaine Vautour and Anne Vautour. 

14. For more information, see R. Douglas Elliott, “The Canadian Earthquake: Same-Sex Marriage in 

Canada” 38:3 (2003) New England Law Review 592. 

15. Halpern v Toronto (City), 2000 CarswellOnt 3031. 

16. Civil Justice Review, First Report, March 1995 at 13.1; online: https://wayback.archive-it. 

org/16312/20210402064140/http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/ 

cjr//. 

17. R v Morgentaler, [1993] 3 SCR 463 at 483. 

18. EGALE Canada Inc v Canada (Attorney General of), 2001 BCSC 1365. This was later overturned on 

appeal: EGALE Canada Inc. v Canada (Attorney General), 2003 BCCA 251. 

19. EGALE Canada Inc. v Canada (Attorney General), 2003 BCCA 251, and Hendricks c Québec (Procureur 

général), 2004 CarswellQue 1927 (CA). 

20. Dunbar v Yukon, 2004 YKSC 54. 

21. Vogel v Canada (Attorney General), [2004] MJ No 418 (QL) (QB). 

22. Boutilier v Nova Scotia (Attorney General), [2004] NSJ No 357 (QL) (SC). 

23. NW v Canada (Attorney General), 2004 SKQB 434. 

24. See Sylvain Larocque, Gay Marriage: The Story of a Canadian Social Revolution (Toronto: Lorimer, 

2006) at 208. 

25. Reference re Same-Sex Marriage, 2004 SCC 79 at paras 67–68. 

26. Viviane Namaste and Dalia Tourki, “Trans Justice and the Law: From Then to Now, From There to 

Here: A Conversation Between Dr. Viviane Namaste and Dalia Tourki” (2020) 35:2 Can J of Law 

and Society 159–75. 

27. Samuel Singer, “Trans Rights Are Not Just Human Rights: Legal Strategies for Trans Justice” (2020) 

35:2 Can J of Law and Society 293–315. 


Tricks of the Trade 2022 

January 28, 2022 | 9:00 am to 4:00 pm (ET) | Live Online 

Tricks of the Trade is “THE” annual conference for the personal injury bar, addressing current challenges for both plaintiff and 

defence counsel. Esteemed faculty from across Ontario will provide key updates on recent decisions, timely advocacy tips, and 

the latest guidance on practice and procedure for personal injury litigators. 

Once again you can have Tricks of the Trade your way, from the comfort of your home or office. Join your colleagues 

live online for an engaging day of learning and virtual networking opportunities. Like last year the live event will be held 

on pheedloop.com, a virtual conference platform where you can chat and videoconference with colleagues in real time 

throughout the day as you enjoy the program. You can also catch up on any premier CPD content you miss by viewing 

recordings of each presentation and panel at your convenience for 30 days after the program. 

Tort Law Update 

A roundup of key tort decisions from the past year 

that personal injury lawyers need to know. 

Speaker: Jayashree Goswami, Intact Insurance Company 

The Fallout: 

Personal Injury Law and the Pandemic 

The latest updates on personal injury cases and law 

arising as a result of the pandemic. 

Speaker: Tom Macmillan, Rogers Partners LLP 

Navigating New Internet Torts 

Insights on Caplan v. Atas, the new tort of internet 

harassment and the evolving law in this area. 

Speaker: Gary M. Caplan, Mason Caplan Roti LLP 

Accident Benefits Update 

A review of the top Accident Benefits updates and 

decisions from the past year. 

Speaker: Heather L. Kawaguchi, Kawaguchi Krajden LLP 

Assessing Damages 

in the Post-Moore Era 

Current trends in assessing damages in the wake of 

Moore v. 7595611 Canada Corp. 

Speaker: Anandi D. Naipaul, Ross & McBride LLP 

The Benefit of Hindsight: Overcoming 

Mistakes in Personal Injury Law 

A candid discussion about how to handle and learn 

from mistakes with professionalism. 

Speakers: 

Pascale Daigneault, Fleck Law 

Paul Tushinski, Dutton Brock LLP

Fireside Chat: 

Current Issues with Expert Evidence 

A conversation about current expert evidence issues. 

Speaker: Todd J. McCarthy, Flaherty McCarthy LLP 

Untold Lessons from Rankin’s Garage: 

The Role of the Motor Vehicle 

Accident Claims Fund 

The inside scoop on the Motor Vehicle Accident Claims 

Fund and interesting costs issues. 

Speakers: Maia L. Bent, Lerners LLP, 

Jacob S.W. Aitcheson, Lerners LLP 

Unraveling Cases with Concurrent 

or Multiple Tortfeasers 

How to untangle files involving concurrent tortfeasers 

and multiple accidents. 

2022 Co-Chair: 

Maia L. Bent, Lerners LLP 

Speaker: Professor Erik Knutsen, Queen’s Law 

Partial Settlement Agreements: 

A Primer 

Practical tips on partial settlements and the serious 

consequences of non-disclosure. 


Susan E. Gunter, Dutton Brock LLP 

Speaker: Dena N. Verah, Lenczner Slaght 

Best Practices for Firm Management 

in the Pandemic 

Strategies for balancing public safety with employer 

and employee rights. 

Speakers: Neena Gupta, Gowling WLG (Canada) LLP, 

Tino Kasi, Kasi Law, Dale Orlando, McLeish Orlando 

Personal Injury Lawyers 


Stephen G. Ross, 

Rogers Partners LLP 

Chat with the Chairs: 

Mentorship and Training for a New Era 

Virtual litigation, working remotely and the future of 

mentorship and training. 

Speakers: Claudia Cappuccitti, Dyer Brown LLP, 

Gerry Antman, Longo Lawyers 

For up to date topics and agenda visit 

www.advocates.ca

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CIVIL LAW ADVOCACY 

A plea for interrogatories 

Jennifer Brevorka and David Postel 

Canadian civil litigation is predicated on the ability of parties 

to obtain their opponents’ evidence through discovery 

tactics such as demands for particulars, requests to inspect 

or admit, oral examination, and examination by written questions. 

Lawyers considering discovery advocacy largely focus on oral 

examinations. And, yes, oral discoveries may be great for eliciting 

spontaneous answers or for developing a new line of questions from 

a surprising answer. But there exists an oft-ignored discovery workhorse 

– interrogatories – that are cost- and time-effective while yielding 

voluminous details about an opponent’s claims or defences. 1 

Interrogatories are valuable because most civil litigation is settled 

“by mutually agreed terms once each side has ferreted out the 

truth through discovery of the other side’s case.” 2 Sworn written 

responses to written questions may yield information that spurs 

settlement long before the expense and headache of oral discoveries. 

Interrogatories, as Justice Myers of the Ontario Superior 

Court of Justice recently observed, can thus “be a very important 

step to obtain admissions for an agreed statement of fact.” 3 

And, if your case makes it to trial, interrogatories can be a better 

tool for impeachment than a muddled discovery transcript. A 

trial witness can claim confusion about an oral question previously 

posed, but it is harder to make the same contention about a question 

that the witness answered with a sworn written response. 

Despite their clear utility, interrogatories rarely appear during discovery 

in certain Canadian jurisdictions. In part, this is because court 

rules make interrogatories an either-or choice: practitioners must decide 

whether to deploy written questions in lieu of an oral discovery. 

4 “This or that” rules may discourage interrogatories in Ontario 

or federal court proceedings. Indeed, in Ontario at least, there is a 

clear preference for oral examinations over written ones. 5 This localized 

preference likely exists because, until 1985, Ontario discovery 

rules permitted only oral examination. 6 This changed with the advent 

of the Ontario Rules of Civil Procedure, which provided litigants 

the right to conduct an examination for discovery in writing. 7 

In other Canadian jurisdictions, however, courts view interrogatories 

as a worthwhile discovery tool, permitting interrogatories 

and oral discoveries, since interrogatories can “reduce or eliminate 

the need of or time required for oral examinations.” 8 

Still other provinces, such as British Columbia, allow parties to 

incorporate interrogatories into a case plan proposal by consent, or 

allow for a party to seek leave of the court to pose interrogatories if 

parties cannot agree on terms. This flexible approach allows parties 

to incorporate interrogatories and oral examinations, with parties 

deciding how to place limits on both before turning to the court. 

Conceivably, even under the current rules, Ontario practitioners 

could similarly permit interrogatories on consent and incorporate 

appropriate limits on them into their discovery plans. We hope this 

article prompts our fellow barristers to at least consider doing so. 

To those thinking, “Can’t I just do the same thing via undertaking?” 

we’d answer that interrogatories helpfully get you information earlier 

on in the process and, thus, may enhance your discoveries and can 

be crafted more precisely than an on-the-fly oral question. 

Unlike US legal practice, where interrogatories are so often 

abused that practice rules cap the number of questions asked, 9 

Canadian jurisdictions have little need for such limitations. Instead, 

when determining whether parties have served an abusive 

number of interrogatories, Canadian courts frequently consider 


objections to the number of interrogatories 

in the context of proportionality and the 

breadth of a claim or defence. 10 This is an 

attractive feature of the flexible approach to 

discovery throughout Canada. 11 

For example, in Green, a class action against 

CIBC after the subprime mortgage meltdown, 

the court agreed with an objecting 

plaintiff that the bank had posed a voluminous 

number of interrogatories (several 

hundred!). 12 Nevertheless, the court required 

the plaintiff to answer all questions. While 

acknowledging potential “overkill in the questions 

posed,” the court found such questions 

relevant to the issues pled in the 300-paragraph 

statement of claim and proportional in light 

of the billions of dollars at issue. 13 

Canadian practitioners may limit interrogatory 

use because of rule-based limitations on 

these tools and the length, or number, of oral 

examinations. In the United States, civil litigation 

often involves many depositions (oral 

discoveries), including those of non-party 

witnesses or various officials from a single 

corporate party. Thus, American lawyers 

tend to deploy interrogatories so a client can 

determine exactly whom to depose or what 

non-party witnesses to serve subpoenas for 

document production. 

Canadian civil practice also frequently employs 

demands for particulars, something 

infrequently used in American litigation. 

In many US jurisdictions, notice pleading 

is permitted, which means statements 

of claims are more broadly written than 

in provincial courts. American requests for 

particulars are generally lodged when a 

claim is confusing or nonsensical. In Canada, 

however, demands for particulars are 

frequently used to require an opposing party 

to articulate all statutes, treaties, or laws on 

which its claims lie. In the United States, an 

interrogatory would need to do this type of 

work. Demands for particulars – as opposed 

to an interrogatory – are also a better means 

of having a party explain the basis for 

specific assertions in a claim. Problematically, 

though, demands for particulars are not 

very useful after the close of pleadings. 

Why interrogatories? 

Like a Swiss Army knife, interrogatories 

can be used for many purposes: 

• establishing a party’s contacts with 

a forum; 

• obtaining an itemized breakdown of 

specialized damages; 

• learning which documents support a 

party’s damages request; 

• learning about an organization or 

the structure of a corporate party; 

• ascertaining the identity of personnel 

in an organization with knowledge 

of contested matters; 

• detailing the identity of all lay witnesses 

with knowledge of the case’s facts; 

• obtaining the identity of people from 

whom the other side obtained statements; 

and, 

• gathering information about insurance 

or the identity of those with 

subrogation interests. 14 

There exist few Canadian scholarly or practitioner 

articles on this underrated discovery 

tool, so we spoke with a couple of lawyers 

familiar with it through their practice. 

As a litigator with a focus on insurance 

defence and subrogation matters, Bernice 

Bowley will deploy interrogatories once she 

knows a matter is headed to trial. Bowley, 

partner at Fillmore Riley in Winnipeg, uses 

interrogatories to establish “base facts” so 

subsequent oral examinations move more 

smoothly with introductory inquiries already 

answered in writing. 

Bowley also uses interrogatories when 

she knows that a plaintiff would not have 

all the answers at hand during an oral 

examination. For example, with a property 

damage claim, where an adjuster has likely 

determined the damages instead of the 

plaintiff, interrogatories are used to gather 

information about how and when the plaintiff 

obtained quotes 

In Manitoba, rules permit for liberal deployment 

of interrogatories before or after 

discoveries. So these written questions 

can serve as a subsequent line of inquiry if 

a lawyer reads a discovery transcript and 

finds areas for follow-up. 

“We should be using them more in Manitoba, 

no doubt,” Bowley said of interrogatories. 

For Laesha Smith, partner at Cozen O’Connor 

in Vancouver, interrogatories are often 

the most practical means of obtaining straightforward 

information in complex civil litigation. 

Smith practised law in New York and the 

United Kingdom before practising securities 

law in Canada. Her British experience 

rarely involved interrogatories, but her 

American and Canadian practices have frequently 

incorporated the written questions. 

Smith prefers the controlled methodology 

for interrogatories used in British Columbia’s 

courts – agreement among the parties 

as to interrogatories, or else leave from the 

court – to that of the American practice. In 

her New York practice, where lawyers often 

provided unhelpful responses because of 

broad and numerous objections, Smith came 

to view interrogatories as another form of 

discovery gamesmanship. That has not been 

her experience in Canada, however. 

When to use interrogatories 

Interrogatories lack the adaptive capabilities 

of questions posed in an oral examination 

because the written inquiries are prepared in 

advance. Example: one cannot immediately 

pursue a new line of inquiry suggested by an 

earlier answer. Certain jurisdictional rules, 

however, allow for additional interrogatory 

questions where “an answer suggests a new 

line of questioning.” 15 Answers to interrogatories 

are also carefully drafted or reviewed 

by counsel, which means responses are unlikely 

to contain spontaneous outbursts or 

unexpected gaffes. 

That said, interrogatories can give rise to 

useful fodder for oral examinations. Because 

counsel may have helped craft interrogatory 

answers, subsequent questions about this 

material may elicit gaffes that make the oral 

discovery helpful to your case 

While written questions may elicit complex 

quantitative material, they are, obviously, ineffective 

at ascertaining the demeanour and 

credibility of witnesses. If your inquiries seek 

subjective or interpretive information, or are 

crafted to test a party’s credibility, save these 

queries for trial or an oral examination. 16 

The same for questions asking: “Why?” 

The answer is better when explained from 

a witness chair. 

Interrogatories are useful in obtaining 

the identity of personnel within the opposing 

party’s corporate organization who 

may have knowledge about, or play a role 

in, matters in dispute. 17 Interrogatories are 

also excellent for posing questions relating 

to information involving technical or statistical 

data, which a deposition or document 

request may not readily reveal. 18 For 

example, in a product liability case, if one 

is unsure of how a malfunctioning device 

worked, pose questions about the defendant’s 

assembly process. Such questions may 

include inquiries about: 

• assembly dates; 

• machines used; 

• machine settings; 

• make and model of each machine used; 

• name and address of each machine 

operator for devices used to assemble 

or manufacture the product; 

• shipping dates for the device in 

question; and, 

• certain documents with the information 

requested in earlier sub-parts of 

the question. 19 


To be sure, the answers may be found in your opponent’s production, 

but one beauty of interrogatories is that they enable 

you to make your opponent do some of your work for you. An 

example: you may further ask that interrogatory responses are 

supported by appropriate citations to the documents within your 

opponent’s productions. 

Likewise, these questions may be put to a witness on oral discovery, 

but an interrogatory produces a cleaner record than a transcript, 

as oral questioning must generally be broken down “into small 

pieces, each successive question taking into account the information 

given in the previous answer.” 20 This produces a transcript with “a 

series of questions where one written question and answer would 

suffice.” 21 Conversely, a written interrogatory will more likely produce 

answers that are “more informative,” “clearer and more succinct” 

than their oral counterparts. 22 The upshot: “More information 

more clearly and more succinctly.” 23 What’s not to like? 

For those wedded to oral examinations, consider this argument: 

interrogatories are just another form of undertaking – except that 

the answers to these questions come much earlier in the discovery 

process and they allow for follow-up questions under even the 

stricter discovery rules such as in Ontario. 

How to draft great interrogatories 

Another reason why practitioners avoid interrogatories? Lawyers 

abuse them. When mangled by lengthy instructions and complicated 

definitions, interrogatories are akin to a plastic water pistol: annoying, 

but unlikely to inflict harm. 

By making interrogatories persuasive and concise, a questioner 

may obtain the desired information more easily and with fewer 

objections. But perfecting interrogatories requires self-discipline. 

Consider including an introduction explaining the basis for posing 

questions. By doing this, the drafter of the interrogatories is 

forced to consider and formulate a game plan. And, if your questions 

come before the court in a discovery dispute, the scope and 

relevancy of your requests are already stated in black and white. 24 

Your introduction should include instructions about answers. 

Simple and effective directions include: (1) a request for the identification 

of who answered each question; (2) the specifics of the time 

period for the questions; (3) what a party should do if it is unable 

to answer a question; and (4) how a party should explain why it 

cannot answer a question (in full or in part). 25 

Do not use boilerplate instructions, canned questions, or formulaic 

inquiries. “Ideally an interrogatory should be a single direct 

question phrased in a fashion that will inform the other party what 

is requested” of them. 26 

Bowley, the partner from Winnipeg, usually writes her own interrogatories 

instead of assigning the task to an associate. When 

drafting the inquiries, Bowley starts fresh with an introduction, 

definitions, and questions based on the case at hand – as opposed 

to recycling old interrogatories. Such a practice, according to Bowley, 

ensures interrogatories are relevant and targeted in scope. 

Once you have drafted your interrogatories consider their organization, 

making sure certain questions are grouped in a logical fashion. 

Weigh whether the inquiries build on one another or follow a chronological 

approach. Use headings or subheadings for groups of questions 

so that the respondent understands the subject being queried. 

Make sure to define thorny words or terms of art in your instructions 

or introduction. Concerned that you have not covered all 

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persnickety terms? In your instructions, tell respondents that, 

for any confusing or ambiguous term, they should define the 

term, noting their own definition in the answer. 27 

After you have drafted questions, consider whether each question 

could be simplified, consolidated with others, or eliminated. Ask 

yourself what helpful information your inquiry might elicit. Try 

making a list of possible loopholes an opponent may find – or 

an objection that could be raised – to avoid a complete answer. 28 

Then, rework the interrogatory so – presto! – the loophole vanishes. 

By incorporating these tactics, interrogatories will become your 

first line of offensive discovery, enabling you to get facts the other 

side can neither embellish nor diminish. While interrogatories may 

not provide the war stories obtained from a day-long oral examination, 

the results garnered from effectively written questions may 

yield something much better: a win for your client. 

Tips for drafting and using interrogatories 

• If interrogatories are uncommon in your jurisdiction, 

start by simply trying to incorporate 

them in discovery plans. Make opposing counsel 

(or a supervising partner) more at ease with 

an interrogatory request by including: 

• a specified number of interrogatories (rather 

than unlimited inquiries); 

• the subject matters covered by the interrogatories 

before posing questions; and 

• details on whether interrogatory responses 

will be returned before or after oral discoveries. 

• To get what you want (interrogatories!) in a discovery 

plan, offer compromises. Serve a limited 

number of requests to admit or negotiate a shorter 

subsequent oral examination. 

• Draft your interrogatories with the operative 

statement of claim or defence nearby. Pleadings 

frame issues and serve as the architecture 

on which interrogatories are based. 29 

• Don’t confuse an interrogatory’s purpose with 

that of a demand for particulars. Interrogatory 

questions seek targeted facts, whereas demands 

for particulars seek the specifics forming 

the basis for an allegation or assertion. 

• If a party may rely on certain information, witnesses, 

or documents to prove claims, damages, 

or defences, ask about these items. Such 

questions are important if document production 

appears deficient. 

• Concerned about an anemic document production? 

Ask the party to list all email addresses 

or mobile numbers used by relevant witnesses. 

During the subsequent oral examination, or in another 

interrogatory, inquire how counsel searched 

such email addresses or numbers during document 

collection. Or ask about a party’s document 

retention policy and the steps the party took to 

collect documents under that policy. 

Notes 

1. Steven D Stark, Writing to Win (New York: Three Rivers Press, 

2012) at 215. 

2. Edna Selan Epstein, Seeking to Discover, 103 ABA J 22 (2017) at 22. 

3. Green v Canadian Imperial Bank of Commerce, 2020 ONSC 5342 at 

para 20. 

4. Canadian Federal Court Rules 88, 99, 234; Ontario Rules of Civil 

Procedure 31.02 & 35. 

5. See generally Botiuk v Campbell et al, 2011 ONSC 1632 at paras. 

41–48. 

6. Holmested, George Smith & Garry D Watson, Ontario Civil 

Procedure (Toronto: Carswell, 1984) § 51.8 at [2]. 

7. Patrick Schindler, “The Advantage and Disadvantages of Written 

Examinations for Discovery” 10 (1989) Advoc Q 404. 

8. Yukon Supreme Court Rule 29(1); Manitoba Rules of the Court of 

the Queen’s Bench r 31.02. 

9. See eg Fed R Civ P 33, limiting interrogatories to 25 questions, 

including all discrete subparts. 

10. Green v Canadian Imperial Bank of Commerce, supra note 3 at paras 

21–24. 

11. See eg Newfoundland Rules of the Supreme Court r 31.02. 

12. Green v Canadian Imperial Bank of Commerce, supra note 3 at paras 1, 4. 

13. Ibid at para 22. 

14. Patricia A Seitz, “Get More Information and Less Indigestion 

Out of Your Interrogatories” 71:3 (Mar 1985) ABA J 74–77; 

online: https://www.jstor.org/stable/20757692 (last visited 

Aug. 2, 2021). 

15. Ontario Rules of Civil Procedure 35.04(1). 

16. Seitz, supra note 14 at 75. 

17. William M Dallas, Jr, “Effective Use of Interrogatories and 

Depositions: Some Practical Pointers” 45 (1979) Brook L Rev 

297 at 299. 

18. Schindler, supra note 7 at 407–8. 

19. Kenneth R Berman, “Q: Is This Any Way to Write an Interrogatory? 

A: You Bet It Is” 19:3 (Summer 1993) ABA Litigation Journal 

42–49 at 45; online: https://www.jstor.org/stable/29759648 (last 

visited Aug. 3, 2021). 

20. Schindler, supra note 7 at 407. 

21. Ibid. 

22. Ibid at 415. 

23. Ibid. 

24. Stark, supra note 1 at 215–16. 


26. Adrian P Schoone and Edward L Miner, The Effective Use of Written 

Interrogatories, 60 (1976) Marquette L Rev at 32, citing Wright & 

Miller, Federal Practice and Procedure: Civil § 2168 at 515. 


28. Ibid. 

29. Richard Tabura, “Tips for Drafting Your Initial Set of Written 

Discovery” (Mar. 30, 2019) ABA Practice Points; online: https:// 

www.americanbar.org/groups/litigation/committees/masstorts/practice/2019/tips-for-drafting-your-initial-set-of-writtendiscovery/ 

(last visited Aug. 1, 2021). 


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Investigations. Ms. Epstein brings to 

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The Honourable Russell Juriansz has joined 

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Mr. Juriansz is dedicated to providing 

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Arbitration Place Proudly Welcomes 

 

Dr. Ayodele (“Ayo”) Akenroye, FCIArb is an independent commercial arbitrator based in 

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He is also a Tribunal Member with the Government of Canada where he adjudicates 

immigration matters. 

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ETHICAL ADVOCACY 

The ethics of advocacy: 

Can lawyers handle the truth? 


The author thanks Professor Amy Salyzyn of the University of 

Ottawa’s Faculty of Law for reading two drafts of this article and 

providing helpful comments. Thanks are also extended to other 

members of the Canadian Association of Legal Ethics (CALE) for 

their welcome and inspiration. 

I 

s law a profession or a trade? A lawyer’s strongest claim to its 

being the former is the practitioner’s adherence to ethical standards. 

This article raises a touchy subject: are there cases that, 

with concern for those ethical standards, lawyers should not take? 1 

I propose that the answer is yes – although there are not many 

such cases. When one crosses your desk, however, you should 

think long and hard before taking it on. What does it look like? In 

my view, neither the (alleged) conduct of the client nor the viability 

of the action (assuming it is not frivolous) should be factors. Regarding 

the former, we know that terrible people deserve lawyers, 

too. As for the latter, bad cases aren’t the end of the world; we’ve all 

acted on some, and, occasionally, arguments that seemed terrible to 

many might just carry the day. 2 

But there is a class of cases we should all be worried about. 

They are the ones where simply bringing them has the potential 

to undermine some aspect of the agreed-on social rules by which a 

community, country, or province agrees to govern itself. In the end, 

justification for doing what we do depends heavily on the need 

for the rule of law. When acting in a case undermines rather than 

reinforces the rule of law, the alarm bells should start ringing. 

The same principle generally holds true for how lawyers conduct 

themselves during the cases we bring. Adversarial conduct 

is an inevitable and, indeed, necessary part of litigation. Counsel 

are not expected to link arms and sing “Kumbaya.” But tactics that 

undermine the process we are supposed to be advancing – and the 

values this process rests on – also cross an ethical line. 

Why think about this now? 

Every few years we see an outbreak of lawyer-shaming in the popular 

press or, more recently, on social media. It usually starts when an 

advocate represents a controversial defendant who is alleged to have 

engaged in dastardly deeds. And regardless of whether the defendant 

is Jian Ghomeshi or Nestlé, 3 a cacophony of voices asks: “How could 

they?” The response is predictable: the relevant segment of the bar 

rushes to the lawyer’s defence, the people who asked the question in 

the first place remain totally unpersuaded, and the questions that were 

raised are quickly drowned out by everyone taking sides. But the profession 

rarely uses such cases as occasions for introspection about why 

so many view as controversial what we do and how we do it. 

But maybe a little introspection is worthwhile. After all, the past 

20 or so months have been one of the strangest eras we have lived 

through. The waning weeks of the Trump administration and the 

pandemic caused by the novel 4 coronavirus gave us examples of 

cases where it might be appropriate to ask whether the story we 

tell ourselves about the ethics of client representation is as straightforward 

as we would like. 

The lawyer’s dilemma, and the lawyer’s defence 

Almost every day, advocates face a central moral dilemma. As one 

lawyer noted almost a hundred years ago, a barrister “with a wig 


on his head and a band round his neck [will] do for a guinea what, 

without those appendages, he would think it wicked and infamous 

to do for an empire.” 5 

We say we are seeking justice and upholding the rule of law but, 

if we are being honest, can’t really say that everything we do is 

genuinely directed toward those ends. We keep secrets that, if revealed, 

might change the outcome of a case. We make legal arguments 

that try to bend established principles to our client’s benefit. 

We undermine witnesses through cross-examination, even when 

they have been through terrible experiences. We employ the law so 

our clients can do things that at least most of us would not approve 

of in everyday life: like not paying a debt (perhaps because it’s past 

a limitation period), or depriving elderly retirees of their pensions 

(from a restructuring). 6 In other words, we can’t possibly argue that 

every breath we take, every move we make, every vow we break, 

and every claim we stake 7 is for a noble moral purpose, when our 

conduct inflicts harm on people who do not deserve it. 

So how do we justify what we do and how we do it? It’s clearly 

not the “guinea” that we are paid for our labours. If we are doing 

ethically questionable things, the idea that we are doing them 

for money does not make it any better and may indeed make it 

worse. Ethicists would describe a lawyer’s explanation for what 

we do as acting with “role morality.” 8 In other words, the idea that 

circumstances may exist where a person’s questionable conduct 

could otherwise be justified because of their social role. A frequently 

cited example is parenting. Parents can believe that every child 

is of equal moral worth; yet, because of the social importance of the 

parent-child relationship, be morally justified in preferring their 

own child’s interests above others. 9 

John Collins, B.A., LL.B. 

Barrister and Solicitor 

Certified by The Law Society of Ontario 

As a Specialist in Criminal Law 

Over 40 Years of Trial and Appellate Experience 

2000-393 University Avenue, Tel : (416) 364-9006 

Toronto, ON 

Fax: (416) -593-1352 

M5G 1E6 

Cell: (416) 726-8279 

E-mail: john.collins@on.aibn.com 

Website: johncollinslawoffice.com 

www.johncollinslawoffice.com 

Similarly, we might prefer our friend’s interests to those of a 

stranger, and, so long as we act within reason, few would consider 

this preference inherently unethical. As an example: if you are 

going to the movies with a friend and arrive first, you can save 

them a seat, even a very good seat. But if you are there by yourself, 

you clearly cannot save the seat beside you and then, as the 

trailers close, sell it to the highest bidder. Why is that? Because it’s 

socially accepted that if you are going to the movies with a friend, 

you should sit with them – even if it violates the generally accepted 

ethical norm of “first come, first served.” In other words, role morality 

accepts that, in addition to abstract morality, people occupy 

social roles; and that what they do while occupying those social 

roles may well justify their behaviour. 

But “may well” is not exactly the same as “always.” Although 

the role-morality justification is powerful, it just tells us there are 

circumstances in which lawyers can subordinate universal moral 

principles (such as “pay your debts” or “don’t cause harm to 

people”) to other considerations. But it does not tell us what those 

circumstances are. We all acknowledge there are things lawyers 

cannot do, or should not do, even if they are in their clients’ interests. 

These things can be a matter of law (knowingly permit a 

client to commit perjury ); a matter of professional responsibility 

(failing to inform a tribunal of a relevant adverse authority); a 

matter of professional courtesy (refusing an adjournment for an 

opposing counsel who broke his leg); 10 or just a matter of human 

decency (asking a witness who caught a sterilizing pelvic infection 

from the Dalkon Shield IUD a series of “dirty questions” designed 

to embarrass her into dropping the case). 11 So where and 

how do we draw the line? 

To answer this question, it is necessary to take a slightly deeper 

dive into the advocate’s role morality. “We have a role to play 

and we’re playing it” is not a viable answer to the question, “How 

do you justify the harm you inflict on third parties?” Hit men also 

have a role to play and play it. Rather, to justify the advocate’s conduct, 

we need to explain how and why the social harm we inflict 

is a necessary by-product of an otherwise socially productive role. 

And in legal ethics circles, the most compelling explanation comes 

from what’s called “four-fold root”: four steps which, together, can 

be used to justify conduct that is more consistent with role morality 

than ordinary morality. 12 

Step one is to justify the existence of an institution by demonstrating 

its moral goodness. For example, the rule of law and the concept of 

legality allow people to coexist in a pluralist society, with different 

moral beliefs and aspirations. But when they do so, they need a 

stable system through which they sort out those differences, such 

as “a political process that creates laws and legal institutions for the 

peaceful and orderly resolution of conflicts.” 13 Ethics scholars refer 

to this process as the “institutional settlement.” 14 Agreeing to the 

institutional settlement is a key prerequisite to setting up a society 

ruled by laws. You might not like the outcome of the process (e.g., 

people you disagree with may win elections and pass laws you 

think are harmful), but if you accept that the process is legitimate, 

then you will abide by lawful authority. 15 

Step two is to justify the role by appealing to the structure of the institution. 

If we want our laws to be more than just blunt instruments, 

they will be too complicated for everyone to understand them intimately. 

So we need lawyers to advise people on the details of their 

legal rights and obligations and then advocate before bodies (such 

as courts) that determine them. 

Step three is to justify role obligations by showing they are essential 


to the role. This step is a little tricky. It requires us to ask the question, 

“What must we require of lawyers to fulfill their purpose of 

allowing us to live in a society governed by the rule of law?” An 

important answer is that lawyers should not act as moral or legal 

gatekeepers to the justice system. That is, a client should not have 

to persuade a lawyer that their case is meritorious before the lawyer 

agrees to represent them. The client does not bear a “burden 

of proof.” 16 And once the advocate has agreed to the retainer, their 

job is to advocate and allow an independent decision-maker to 

decide the case. 

Step four is to justify the role act by showing that obligations require 

it. Once a lawyer has taken on a retainer, it’s an easy leap to what 

the lawyer should do: everything within the legal and professional 

limits to win the client’s case, which may include aggressively 

cross-examining the witnesses, asserting all legal defences (including 

limitation periods), 17 and keeping confidences – even if doing 

so might change the outcome of the case. 

If these sentiments sound familiar, that is because they are what 

we tell ourselves, tell each other, and, perhaps most importantly, tell 

those outside the barristers’ guild. Try to explain to your mother 

or your cranky uncle 18 how that charming lawyer they see on 

TV could possibly defend someone as appalling as the accused, 

and the chances are you will end up repeating some version of 

this four-fold root. You might even finish with a plea that instead 

of criticizing lawyers, we should be thanking them for taking on 

difficult cases, even though it brings them public notoriety to go 

with their retainers. 19 

The four-fold root makes for a pretty persuasive defence of 

the practice of advocacy. But it can clearly be abused. The reason 

is obvious: these four logical leaps are largely premised 20 on a 

normative judgment rather than an empirically observable truth. 

“We need lawyers if we are going to have a rule of law”; or, “lawyers 

cannot be gatekeepers to the system,” are not statements of 

fact like three plus three equals six. 21 Don’t believe me? Then rewatch 

the classic courtroom movie A Few Good Men and observe 

how Colonel Jessup (Jack Nicholson) uses the same four steps to 

justify the “code red” on Private Santiago (an assault that resulted 

in his death): 

• Step one – justify the existence of an institution: “… we live in 

a world with walls and those walls have to be guarded by 

men with guns.” 

• Step two – justify the role by appealing to the structure of the institution: 

“My existence, while grotesque and incomprehensible 

to you, saves lives … You want me on that wall. You 

need me on that wall!” 

• Step three – justify role obligations by showing they are essential 

to the role: “We use words like honour, code, loyalty. We use 

these words as a backbone of a life defending something.” 

• Step four – justify the role act by showing that obligations require 

it: “You weep for Santiago, and you curse the Marines. You 

have that luxury. You have the luxury of not knowing what 

I know; that Santiago’s death, while tragic, probably saved 

lives. And my existence, while grotesque and incomprehensible 

to you, saves lives.” 

Colonel Jessup’s message is clear to Lieutenant Kaffee (played by 

a very energetic Tom Cruise) and everyone else in the courtroom: 

Don’t question my methods. After all, as he told us, “I have neither 

the time nor the inclination to explain myself to a man who rises 

and sleeps under the blanket of the very freedom that I provide, 

and then questions the manner in which I provide it. I would rather 

you just said thank you and went on your way.” Not so different 

from what you might tell your mom, right? 

So what do we do about this? If we reject Colonel Jessup’s dystopian/utilitarian 

calculus of killing Santiago to “save lives,” we 

know the four-fold root cannot be a complete answer. This raises 

the question: Can lawyers handle the truth? And it brings us to 

the 2020 US presidential election, COVID-19, and the question I 

started with: whether there are cases lawyers should be turning 

down, or conduct we should not engage in. 

Some recent events that you may have heard about 

The United States had its 59th presidential election in November 

2020. American presidential elections have occurred every 

four years since 1788–89, without fail. But it is fair to say that the 

elections of 2016 and 2020 were both unusual, mostly because of 

the Republican candidate, Donald Trump. Mr. Trump had never 

served in any elected office before eking out a surprise victory in 

2016. Perhaps because of his “outsider” status, he had less confidence 

in, and less need for, democratic traditions and institutions 

than any of his predecessors. In both the run-up to the election 

he won (in 2016) and the election he lost (in 2020), he made no 

attempt to pretend he would accept defeat graciously. So when 

he lost the 2020 race, he started undermining confidence in the 

election and contesting the result, both in public and in court, 

with the help of a large team of lawyers, including some from 

large, well-respected US firms, such as Jones Day, Porter Wright 

and Foley & Lardner. 22 

The large firms that were assisting Mr. Trump quickly found 

themselves a target of the Lincoln Project, an advocacy group of 

former Republican strategists dedicated to defeating the president. 

The Lincoln Project not only went after the firms’ reputations, but 

it also went straight for their clients, trying to persuade companies 

such as Walmart, GM, and Amazon to move their business. The 

pressure on the Foley & Lardner lawyer was so great that she ultimately 

resigned from her firm, blaming her departure on “a massive 

pressure campaign.” 23 And this was all before Mr. Trump’s supporters 

broke into and vandalized the United States Capitol Building, 

turning his attempts to overturn the election from a laughable 

farce to borderline treason. 

In other news, COVID-19 swept the world in 2020–21. Although 

reactions across the world have differed, governments in Canada, 

many US states, and many parts of Western Europe have taken the 

significant step of imposing varying degrees of lockdown on their 

populations. The strictness of the lockdowns has varied significantly, 

from “stay in your home except for an hour of outdoor exercise 

each day” to “no large gatherings.” Millions of organizations 

and entities that rely on people gathering indoors have been shut, 

among them retail stores, restaurants, houses of worship, sports 

facilities, and offices. Although there are some disagreements on 

the margins, essentially every legitimate scientist in the world 

recognized the need for these restrictions to limit the spread of 

COVID-19. However, that has not stopped some individuals from 

retaining counsel to challenge the restrictions as being ultra vires 

the enabling legislation – imposing unconstitutional limits on freedom 

of association or religion, or even debating the existence of the 

pandemic itself. The reaction has not been nearly as strong as it was 

to Mr. Trump’s attempts to overturn the election, but numerous 

comments circulating on social media have criticized some of the 

lawyers engaged in this litigation. 

Finally, on the question of tactics, the recent decision of the Ontario 


Superior Court of Justice in Del Giudice v 

Thompson 24 reminds us that, despite the 

bar’s best efforts, 25 lawyers may still engage 

in tactically unpalatable conduct. In that 

case, the court described counsel as bringing 

“unnecessary, wasteful motions that 

were deplorably prosecuted.” It described 

the injunction motion as “unnecessary, 

overreaching, unproductive, rude, and unsuccessful,” 

and the conduct of the plaintiffs’ 

counsel as “reprehensible, scandalous 

and outrageous.” The court was particularly 

vexed because counsel advanced “numerous 

allegations of improper conduct, 

dishonesty, conspiracy and deceit” against 

the defendant and its lawyers and conducted 

a 388-question cross-examination of 

a four-paragraph affidavit. 

Are there cases we should not take or 

moves we should not make? 

So where does this leave us as lawyers? 

How do we identify the “hard cases” where 

we really need to think about whether we 

should be taking them on at all? In my view, 

the answer comes back to the basis of our 

four-fold root in the first place: the “institutional 

settlement” – that is, a democratic 

governance structure, bound by the rule of 

law. Why? Because if the case you are proposing 

to bring is going to undermine the 

institutional settlement that you are using 

to justify your role morality, what exactly 

are you upholding? 

The resort to the rule of law makes the decision 

relatively straightforward in most 

cases, in a way that likely appeals to our 

intuitive sense of right and wrong. So why 

is it morally acceptable to represent a defendant 

accused of doing terrible things, 

even if that means a vigorous cross-examination 

of someone who has been through 

a very bad experience? It is acceptable because 

the institutional settlement relies on 

trials to decide who is worthy of criminal 

sanction. To be sure those trials are fair, the 

accused needs counsel whose role is to test 

the state’s evidence and ensure it meets the 

standard required before we convict. 

Some ethics scholars have suggested 

that the line is blurrier for civil defendants. 

But, at least in my view, the underlying 

argument remains the same: in a system in 

which civil disputes are resolved through 

lawsuits, clients need lawyers. The mere 

choice to defend a client from a lawsuit 

thus will almost never cause ethical concerns. 

26 However, while the whether is not 

ethically problematic, the how can be – if 

counsel takes advantage of resource disparities 

between parties to prevent a resolution 

of the matter on its merits. 27 Of 

course, as the Del Giudice case shows us, 

problematic tactics can happen on either 

side of a civil dispute, and the plaintiff’s 

counsel are no more merited in abusing the 

court’s process than are the defendant’s. 

Cases brought primarily to vindicate a 

personal (or corporate) vendetta against the 

defendant are also problematic. Lawsuits 

are expensive to bring or defend, and even 

a modest-sized case can force an opposite 

party to pay tens of thousands of dollars to 

defend themselves with reasonably priced 

counsel. Bringing a case primarily to force 

a party to incur that expense is an abuse of 

process (even if it’s dressed up in the language 

of a wrong), and lawyers need to be 

careful not to be sucked into their clients’ 

grievances. This is of course difficult to police, 

because it requires knowing what is in 

a client’s mind. There is nothing inherently 

wrong with bringing a case where the likelihood 

of success is slim, although that can 

sometimes be a red flag for poor intentions. 

Perhaps the Trump lawyers earned their 

grief; maybe not for the first few cases (unsuccessful 

candidates challenge elections in 

court from time to time and there’s nothing 

wrong with that), but certainly once it became 

clear the challenges were less directed 

toward the underlying legal merits and 

more at undermining public confidence 

in the electoral process. It is difficult to 

explain how or why bringing these cases 

supports the institutional settlement, when 

their ultimate goal seemed to be undermining 

and replacing it with an alternative 

(non-democratic) system of government. 

The COVID cases, which have largely 

(but not completely) been unsuccessful, 

likely require greater nuance. There is 

nothing inherently wrong with challenging 

government orders, even in public health 

emergencies. The institutional settlement 

depends in no small measure on governments 

acting in accordance with law, and 

asking the courts to enforce this requirement 

is entirely consistent with a lawyer’s 

role and the role morality that accompanies 

it. But there are lines that one should think 

strongly about before crossing. Litigation 

that is not about fidelity to law, but instead 

is premised on undermining a strongly 

held scientific consensus in emergency circumstances 

can be dangerous. Merely the 

act of bringing certain litigation can give 

aid and comfort to groups whose priorities 

are far away from ensuring public health. 

While I am not suggesting counsel bringing 

these cases are acting unethically, I am suggesting 

that boundaries need be set before 

accepting the retainer, so the client understands 

what arguments you are willing and 

unwilling to make. Otherwise, you may 

find yourself following your clients down a 

deep, dark hole of conspiracy theories, with 

no easy way out. 

A fascinating final example comes from 

our friends in the United Kingdom and its 

former colony Hong Kong, where the Chinese 

government recently decided that its 

promise of “one country, two systems,” 

including freedom of speech and freedom 

of peaceful assembly, was not convenient 

and enacted a far-reaching national security 

law. Several pro-democracy activists 

were arrested under this law, and the Hong 

Kong government retained David Perry, 

QC, a British barrister, to act as prosecutor. 

This led to a significant outcry in the 

United Kingdom, including criticism from 

the foreign minister 28 as well as a member 

of the House of Lords who said, “The truth 

is that we are not hired guns. We are not 

mercenaries that take a brief that might involve 

the erosion of the rule of law.” 29 Of 

course, and unsurprisingly, this view was 

not unanimous, and some members of the 

bar cited the need to separate counsel from 

client. Ultimately, the learned Mr. Perry resigned 

from the retainer. Although this case 

is tricky, it seems to me that this was the 

right decision. After all, the National Security 

Law hardly seems like an institutional 

settlement that we can justify upholding. 

Conclusion 

Interesting ethical questions are never 

straightforward. But it’s worth taking the 

deeper dive into how and why lawyers 

justify acting in accordance with their role 

as opposed to “ordinary” morality. Understanding 

the basis of our role morality ensures 

that we don’t overstep it or use it to 

justify something that perhaps is beyond 

justification. No doubt some will disagree 

with my description of what justifies what 

we do and others will reject anything but 

complete absolution for our sins, whatever 

they may be. Still others will reject 

the premise of an institutional settlement 

or claim that the institutional settlement 

is structurally unjust and therefore not 

worth preserving. These are all interesting 

claims that should be interrogated, although 

it is certainly possible to envision 

a fairer society in which the questions of 

what lawyers should and should not do 

nevertheless persist. 


Notes 

1. This article was inspired by W Bradley Wendel’s extremely insightful paper “Lawyer 

Shaming” (2021) Cornell Legal Studies Research Paper 21-09; available at: https://papers. 

ssrn.com/sol3/papers.cfm?abstract_id=3778984. 

2. My favourite example is the Reference re: Supreme Court Act, 2014 SCC 21, but there are lots 

of examples out there. If you have ever been wrong about the outcome of a case, you 

know things are not as cut-and-dried as we sometimes might prefer. 

3. The Ghomeshi case and Ghomeshi’s counsel, Marie Henein, are likely well known to 

most readers. Details about the Nestlé case (in which the company was represented 

in the United States Supreme Court by well-known SCOTUS lawyer Neal Katyal) 

can be found at: https://www.scotusblog.com/2020/12/confusing-supreme-courtcounsel-with-their-clients/. 

To be clear, the criticisms of both these outstanding counsel 

are in my view wrong. But you will have to read on to find out why I say that. 

4. Is it just me, or did it lose its novelty sometime around June of 2020? 

5. Macaulay, Thomas B “Francis Bacon; Critical and Historical Essays 290, 317,” as cited in 

David Luban and W Bradley Wendel, “Philosophical Legal Ethics: An Affectionate 

History” 30 Geo J Legal Ethics 337 at 338. 

6. These are examples from civil cases. The criminal context is in some ways harder (because 

of the stakes) but in many ways easier. We don’t take people’s liberty without a fair trial, 

and a fair trial requires a lawyer. 

7. Synchronicity and its first hit, “Every Breath You Take,” came out in 1983. I was in middle 

school. If you have never heard the album, start at Track 6 (Synchronicity II) and listen 

to the rest. 

8. Judith Andre, “Role Morality as a Complex Instance of Ordinary Morality” (1991) 28 

American Philosophical Quarterly 73 at 73. 

9. To a point. It’s fine to help your child study for a math test and not help the rest 

of your child’s classmates, even if that will affect university admissions. But for 

a different perspective on how the choices that parents make affect others, and 

whether those choices are ethically justifiable, I recommend the New York Times’s 

podcast “Nice White Parents.” 

10. I unfortunately witnessed this very early in my career. As a junior lawyer I was part 

of a multi-client defence team for a trial that was to start in January. One of our cocounsel 

broke his leg skiing during the Christmas holidays, and when he asked for 

an adjournment, plaintiff’s counsel refused to consent (although sheepishly and 

apologetically indicating he was acting on instructions). The adjournment was granted 

over his objection. 

11. Luban and Wendel, supra note 5 at 348. 

12. David Luban, Lawyers and Justice (Princeton: Princeton University Press, 1988) 131. 

13. Luban and Wendel, supra note 5 at. 353. 

14. Ibid. 

15. There has been some litigation by people who claim they are “Free Men on the Land” 

and they do not have to pay taxes or adhere to social rules. They are essentially 

rejecting the institutional settlement. 

16. Robert Rodes, “A Modern Legal Ethics: Adversary Advocacy in a Democratic Age” 54 

Am J Juris 187 at 189 (2009). 

17. David Wasserman, “Should a Good Lawyer Do the Right Thing? David Luban on the 

Morality of Adversary Representation” 49 Md L Rev 392 (1990). 

18. I have three uncles: my father’s brother, Lorne; and my mother’s sisters’ husbands, Steve 

and Marty. All three are great guys, none of them are at all cranky, and they have never 

asked me about this. My mom and I have had more discussions about it in the context 

of my father-in-law doing high-profile homicide trials, but she understood it intuitively, 

remarking how criminal defence work is a mitzvah because it ensures the process is fair, 

which protects everyone. 

19. I think it is important to acknowledge that a lot of important advocacy work for the 

people who need it the most, and are the least popular, is often done for very modest 

legal aid rates. 

20. It’s arguable that the complexity of the law under our current system and the need for 

lawyers is a descriptive rather than normative statement, although arguably it is 

a matter of how our particular system evolved, rather than an inevitable result of 

having a system of law. 

21. Math nerds: I am one of you. I am therefore aware there are numerical systems in which 

three plus three does not equal six. Please don’t write and tell me about them. 

22. “Lawyer Shaming,” supra note 1, 2–3. 

23. https://www.nytimes.com/2021/01/05/us/politics/cleta-mitchell-foley-lardner-trump.html. 

24. 2021 ONSC 5187. 

25. https://www.advocates.ca/Upload/Files/PDF/Advocacy/InstituteforCivilityand 

Professionalism/Principles_of_Civility_and_Professionalism_for_AdvocatesFeb28.pdf. 

26. Another question that sometimes gets debated is whether it is appropriate to decline a 

retainer within a barrister’s area of expertise on the basis of what the client is accused of doing. 

(In the United Kingdom, this is subject to the “cab-rank” rule.) 

27. See Amy Salyzyn and Penelope C Simons, “Professional Responsibility and the Defence of 

Extractive Corporations in Transnational Human Rights and Environmental Litigation 

in Canadian Courts” (March 5, 2021) 24(2) Legal Ethics. Ottawa Faculty of Law Working 

Paper No 2021-01. 

28. https://www.theguardian.com/world/2021/jan/17/dominic-raab-calls-qc-actingfor-hong-kong-government-mercenary. 

29. https://www.theguardian.com/world/2021/jan/15/british-qc-prosecuting-activists-inhong-kong-fought-to-be-allowed-to-take-case. 

Clae Willis 

MHA MSc FAAPM CRTWC CCVE CLCP CVRP(F) 

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ENVIRONMENTAL LAW ADVOCACY 

Climate change litigation in Canada: 

A primer 

Tamara Prince, Jason Holowachuk, and Thomas Neville 

C 

limate change litigation is emerging in Canada but has 

become relatively more frequent in other countries. Currently, 

wildfires, extreme weather events, and other palpable 

effects of a changing climate appear more acute and frequent 

than ever, invigorating public debate about individual rights and 

obligations in the context of “good governance” duties of the state. 

How will society meet and redress the current challenges? One 

way will be through the judicial system. 

The Supreme Court of Canada has recently acknowledged that 

climate change is real, is caused by human activity, and poses a 

“grave threat to humanity’s future” (References re Greenhouse Gas 

Pollution Pricing Act, 2021 SCC 11 at para 2 [References re GGPPA]). 

While the legal duties, liabilities, rights, and remedies around climate 

change in Canada have not yet been clearly defined, efforts to 

bring these issues before the courts continue. 

Outside Canada, global proliferation of climate change litigation 

has tested the jurisdiction of a number of courts, often brought by 

young litigants with creative legal theories that, in some cases, have 

caused courts to direct states and industry participants to modify 

their emissions. In our view, Canadian courts will look to these developments 

in climate justice to inform a Canadian approach as 

climate change suits become increasingly common here. 

In this article, we introduce some recurring legal themes in global 

climate change litigation and take a brief look at what is happening 

in Canada and what the future might look like. 

Climate change litigation: What is it? 

“Climate change litigation” seeks to address climate change effects 

by an adjudication of claims involving factual or legal climate 

change issues, with an apportionment of responsibility to state actors 

(public law) or industry participants (private law). 

Allegations typically include statutory, constitutional, and 

rights-based claims against state actors, or negligence and failureto-adapt 

allegations against industry. Given its relative “newness” 

in terms of scientific proof and general public acceptance, such 

litigation relies on novel and creative legal theories currently developing 

across jurisdictions, informed by both local law and international 

legal influences. 

The United Nations recently released its Global Climate Litigation 

Report, 2020 Status Review (United Nations Environmental Protection, 

Sabin Centre for Climate Change Law, Global Climate Litigation 

Report, 2020 Status Review, 26 January 2021), outlining six forward 

trends in climate litigation. 

Climate rights 

Climate rights cases include allegations that an individual’s constitutional 

rights are violated by a government’s inaction or insufficient 

action. This engages complex matters of the nature of “negative 

rights” (rights to be free from excessive state intervention) and 

“positive rights’ (rights that require a government to act). Canadian 

Charter law has to date been based on “negative rights” (for 

example, the right to free speech restricts the government’s ability 

to censor), with the possibility of “positive rights” being left open 

but not firmly established to date. 

Domestic enforcement 

Domestic enforcement cases typically either seek to hold governments 

accountable for failure to comply with its own legislation 

or seek to challenge the validity of a government’s climate change 

commitment. In Canada, this type of matter can include constitutional 

arguments; for example, the argument that Canada has 

exceeded its constitutional power in enacting certain legislation 

which would impact provinces. 

Fossil fuels remaining in the ground 

These are cases that challenge specific resource extraction projects 

and typically focus on climate impacts of the project in question. 

Defendants can be industry or government, depending on jurisdiction 

and the nature of the local regulatory approval processes. 

Corporate liability and responsibility 

These cases involve claims directly against fossil fuel producers in 

an effort to hold them responsible for a share of climate change’s 

impacts. Such claims can be in the form of nuisance or negligence, 

which makes causation a major hurdle for plaintiffs. 

Failure to adapt 

These are claims against either government or private parties 

where the plaintiffs allege a failure to adapt to the effects of climate 

change or a failure to prepare for the foreseeable effects of climate 

change. Such cases can also include claims for damages resulting 

from actual efforts to adapt to climate change. 

Climate disclosures and “greenwashing” 

These are cases that are also based on the fact that updated information 

about climate change is readily available to governments 

and the public. Plaintiffs (or government regulators) seek to hold 


defendants responsible for inaccurate, incomplete, or misleading 

information that leads to damages; for example, an investor who 

relies on inaccurate disclosure for making an investment. 

Remedies 

Remedies sought typically include judicial review of environmental 

regulatory decisions or legislation by the application of statutory 

or common law principles. Plaintiffs seek to achieve a result 

or compel an action to reduce emissions linked to climate change 

or obtain damages (or other remedies) for previous actions that are 

alleged to have contributed to climate change. 

Common legal issues 

Justiciability, which has been a significant hurdle, generally refers 

to a court’s authority to adjudicate a matter, engaging issues of 

standing and constitutionality/separation of powers. 

Standing refers to the basis on which a plaintiff is entitled to 

seek a remedy from court. Typically, it requires that the plaintiff 

is personally and directly affected or has a statutory entitlement 

to standing, and a compensable injury caused by the defendant’s 

conduct. This has proved a difficult hurdle, as proving a unique 

and specific impact of climate change or adaptation on an individual 

and valuing that for damages is, in many cases, beyond 

the plaintiff’s ability. 

The concepts of constitutionality and separation of powers limit 

a given court’s ability to adjudicate on policy matters. Historically, 

matters of environmental protection and remediation have been 

considered policy-based. To rule on a matter involving climate 

change, a court generally must be satisfied that it is adjudicating a 

legal dispute rather than opining on a strict policy matter. 

Global examples of climate change litigation 

The United States 

Most climate change cases globally have been commenced in the 

United States, with mixed success and justiciability at the forefront. 

Juliana v United States (Juliana v United States, 947 F (3d) 1159 (9th 

Cir 2020)). Nearly two dozen youth plaintiffs, an environmental 

organization, and a representative of “future generations” brought 

an action in Oregon alleging that the federal government violated 

their rights by continuing to permit, authorize, and subsidize fossil 

fuel use while aware of its risks. 

A divided 9th Circuit Court of Appeals held that the plaintiffs 

lacked standing under Article III of the US Constitution, which required 

them to demonstrate (1) a concrete and particularized injury 

(2) caused by the challenged conduct and (3) likely redressable by 

a favourable judicial decision (para 25). The court found that, 

while there was sufficient evidence of causation to defeat the government’s 

motion for summary dismissal, the plaintiffs failed to 

establish that their issues could properly be remedied by the court 

because a remedial plan would require complex policy decisions 

and the discretion of legislators. 

New York (State of) v Exxon Mobil Corp. (People v Exxon Mobil Corp, 

119 65 Misc (3d) 1233(A), 119 NYS (3d) 829 (NY Sup Ct 2019)). In 

2018, the Attorney General for the State of New York filed a complaint 

against Exxon Mobil Corp., alleging that ExxonMobil engaged 

in securities fraud between 2013 and 2016, when it failed to disclose 

material information relating to the manner in which ExxonMobil 

accounted for past, present, and future climate change risks. 

The Attorney General was required to prove under New York law 

that ExxonMobil made a “misrepresentation of material facts” 

[or omission] such that a reasonable investor would think it 


“significantly altered the total mix of 

information made available” (para 5). 

In acquitting ExxonMobil on the securities 

charges, the court still cautioned that 

“[n]othing in this opinion is intended to 

absolve ExxonMobil from responsibility for 

contributing to climate change through the 

emission of greenhouse gases in the production 

of its fossil fuel products” (para 3). 

Australia 

Australia has also been a hotbed of climate 

change litigation against both industry and 

government, although, in terms of sheer volume, 

to a lesser extent than the United States. 

KEPCO Bylong Australia Pty Ltd v Independent 

Planning Commission (KEPCO Bylong 

Australia Pty Ltd v Independent Planning 

Commission, [2020] NSWLEC 38). KEPCO 

sought judicial review after the New South 

Wales Independent Planning Commission 

refused the plaintiff’s application to develop 

a mine with 124 million tonnes of coal 

reserves. The relevant legislation required 

the Commission to consider greenhouse 

gas emissions, including downstream emissions, 

and to have regard to applicable state 

or national policies in doing so. 

The New South Wales government endorsed 

the Paris Agreement (Paris Agreement, 

15 December 2015, UN Doc FCCC/ 

CP/2015/L.9/Rev/1 (entered into force 4 

November 2016)), and Australia has “Nationally 

Determined Contributions” targeting 

greenhouse gas emissions reduction by 

26–28 percent below 2005 levels by 2030. 

The plaintiff argued that in considering 

KEPCO’s application, it was not open to 

the Commission to have regard to Australia’s 

26–28 percent reduction target. This 

argument was ultimately unpersuasive to 

the court, which rejected the argument that, 

if not approved, the greenhouse gas emissions 

would inevitably occur as KEPCO 

found other, inferior sources of coal to burn. 

Sharma by her litigation representative Sister 

Marie Brigid Arthur v Minister for the 

Environment ([2021] FCA 560). In Sharma, 

a group of child plaintiffs sought to block 

an extension of the Whitehaven Vickery 

Coal Mine. In a partial victory, the plaintiffs 

established that the minister for the 

environment owed a common law duty of 

care to the children, although the court did 

not grant an injunction to stop the project’s 

approval (para 513). The court considered 

the risk of harm to them under “future 

world” warming scenarios and discussed 

the reasonable foreseeability of harm to the 

children in the context of local effects such 

as Australian heat waves and bushfires. 

Ultimately the court concluded: “By reference 

to contemporary social conditions and 

community standards, a reasonable Minister 

for the Environment ought to have the 

Children in contemplation when facilitating 

the emission of 100 Mt of CO2 into the 

Earth’s atmosphere” (para 491). However, 

the plaintiffs failed to establish that the 

minister would breach the duty of care by 

making an approval decision. 

The Netherlands 

Milieudefensie et al v Royal Dutch Shell (Rechtbank 

Den Haag [The Hague District 

Court], 26 May 2021, Milieudefensie et al v 

Royal Dutch Shell (2021), No C/09/571932 

/ HA ZA 19-379 (English version) (Netherlands)). 

On May 26, 2021, in a case that 

made international headlines, the Hague 

District Court delivered a win to plaintiffs 

who sought to compel Royal Dutch Shell to 

act to reduce greenhouse gas emissions. The 

court found in favour of the plaintiffs, noting: 

“There is a direct, linear link between 

man-made greenhouse gas emissions, in 

part caused by the burning of fossil fuels, 

and global warming” (para 2.3.2.). 

The court directed Shell to reduce both 

direct and indirect greenhouse gas emissions 

by 45 percent. This decision was based 

on a particular statute creating an unwritten 

standard of care that required Royal Dutch 

Shell to “observe the due care exercised 

in society.” Acting in conflict with what is 

“generally accepted according to unwritten 

law” was unlawful (para 4.4.1.). As a result, 

the court found that there was a justiciable 

issue because this unwritten standard 

required Royal Dutch Shell to mitigate impacts 

directly linked to its operations and 

the emissions produced by the end-user of 

its products, even though RDS does not directly 

produce those emissions. The only way Royal 

Dutch Shell can meet the target is to produce 

fewer fossil fuels, as the end-user emissions 

account for 85 percent of the total. 

Royal Dutch Shell has announced an intention 

to appeal this decision. 

Urgenda v Netherlands (Hoge Raad der 

Nederlanden [Supreme Court of the Netherlands], 

20 December 2019, Urgenda v 

Netherlands (2020), No 19/00135 (English 

version) [Netherlands]). On December 20, 

2019, the Supreme Court of the Netherlands 

upheld two lower court rulings requiring 

the federal government to reduce, 

by 2020, the country’s emissions to at least 

25 percent below 1990 levels. This decision 

was based on the Netherlands’ obligations 

under the Convention for the Protection of 

Human Rights and Fundamental Freedoms, 

which created a duty of care to protect 

citizens from the effects of climate change 

and thereby a justiciable issue (Convention 

for the Protection of Human Rights and 

Fundamental Freedoms, 4 November 1950, 

213 UNTS 221 at 223 (entered into force 3 

September 1953)). 

Notably, the court rejected the government’s 

defence that the country’s emissions were 

immaterial to global climate change concerns. 

Germany 

Neubauer et al v Germany (Federal Constitutional 

Court, Karlsruhe, 24 March 2021, 

Neubauer et al v Germany, 2021 NJW 1723 

(Germany)). The plaintiffs claimed Germany’s 

emission-reduction legislation did 

not go far enough to meet the country’s climate 

commitments (para 1). Like Canada, 

Germany has a constitution guaranteeing 

certain individual rights, known as the 

Basic Law. As a signatory to the Paris Agreement, 

Germany has also enacted a law to 

target reducing emissions by 55 percent. 

The plaintiffs were successful, arguing 

that by not curbing emissions rapidly 

enough, Germany failed to proportionally 

ration its carbon budget between current 

and future generations. The court reasoned 

if the current generation is allowed to spend 

a disproportionate amount of the carbon 

budget, it will expose future generations 

to serious losses of freedoms when they 

must enact drastic restrictions. 

The Philippines 

Segovia et al v Climate Change Commission 

(Segovia et al v Climate Change Commission 

(2017), 806 PHIL 1019 (Supreme Court, 

Philippines)). The Supreme Court of the 

Philippines was asked to decide whether 

the government’s Climate Change Commission 

violated the Constitution of the 

Republic of the Philippines by failing to enact 

ambitious climate-related transportation 

measures (Constitution of the Republic of the 

Philippines, 1987, Art XI.1 [Philippines]). The 

petitioners sought protection of a constitutional 

right to a healthy environment. 

In dismissing the claim, the court reasoned 

that, while a general correlation between air 

quality and public health was undeniable, 

this was not enough to support the case. The 

“bare allegations” put forward by the petitioners 

were lacking a “causal link or reasonable 

connection” to an actual or threatened 

violation of their constitutional right to a 

healthy environment (para 6). 


Colombia 

Future Generations v Ministry of the Environment 

and Others (Corte Suprema de Justica 

[Supreme Court], Bogotá, 5 April 2018, Future 

Generations v Ministry of the Environment 

and Others (2018), STC 4360-2018 No 11001-22- 

03-000-2018-00319-01 (Colombia)). A group 

of 25 children, adolescents, and young adults 

sued a number of Colombian government 

bodies and corporations on the basis that 

failure to comply with the Paris Agreement 

and the National Development Plan threatened 

their fundamental rights (National 

Development Plan 2014–2018, Colombia 

National Planning Department, Law 1753 

Art 51 (Decree 2220, 2015) [Colombia]). The 

claim alleged that the government’s failure 

to reduce deforestation in the Amazon, 

coupled with climate change, unjustifiably 

threatened the well-being and rights of future 

generations. 

The lower court dismissed the suit. On 

appeal, the Supreme Court reversed that 

decision and held that changes must be 

made swiftly and effectively to preserve 

intergenerational equity, which would be 

directly jeopardized if the temperature continues 

to rise while the rate of deforestation 

fails to reach zero. 

Canada 

Canadian cases to date have largely been 

focused on: (1) the legislative mandate of 

parliament to enact laws for the benefit 

of “Peace, Order and good Government” 

under section 91 of the Constitution Act; or 

(2) the Canadian Charter of Rights and Freedoms, 

including the right of every Canadian 

to enjoy life, liberty, and security 

of the person (s 7) and the right of every 

Canadian to equality before and under 

the law (s 15). 

Few cases have been determined on the 

merits, with most courts expressing concern 

at the prospect of proactively alerting 

government policy rather than applying 

the conventional remedy of judicial review 

to strike down or limit the effect of government 

legislation or decision-making. 

ENvironnement JEUnesse c Procureur général 

du Canada (2019 QCCS 2885). In this 

2018 class action brought against the Government 

of Canada in Quebec, plaintiffs 

alleged, inter alia, that the federal government’s 

failure to adopt specific greenhouse 

gas emission targets is a violation of the 

plaintiffs’ rights under sections 7 and 15 the 

Charter. The proposed class (all Quebec citizens 

age 35 and younger) sought both declarations 

and punitive damages in an effort 

to force action. 

The court denied certification, finding 

the proposed class to be too vague and 

suggesting the preferred course of action 

would be for such a claim to be brought 

by an individual. Notably, the court found 

that the government’s actions with respect 

to climate change are prima facie reviewable 

where Charter rights are engaged. 

ENJEU is currently under appeal. 

La Rose v Canada (2020 FC 1008). The 

plaintiffs were 15 young people from across 

Canada who cited a range of federal government 

conduct, including failure to adopt 

greenhouse gas emission targets consistent 

with available science. The plaintiffs alleged 

this conduct violated their sections 7 and 15 

Charter rights and failed to discharge public 

trust obligations. 

The Federal Court struck the claim, noting 

that its concern was not that the plaintiffs 

sought to challenge “a network of Canada’s 

actions and inactions related to climate 

change,” but rather with the “undue 

breadth” and “diffuse nature” of that network, 

which unacceptably put “Canada’s 

overall policy choices at issue” (para 46). 

Mathur v Ontario (2020 ONSC 6918). In 

contrast, the Ontario Superior Court of Justice 

in Mathur dismissed Ontario’s application 

to strike a climate change case. The 

applicants, aged 12 to 24, sought declaratory 

and mandatory orders related to Ontario’s 

plan for greenhouse gas emissions 

by 2030 and challenged the Ontario government’s 

greenhouse gas emission legislative 

amendments on various Charter and other 

constitutional grounds. 

The court left open the possibility that 

section 7 jurisprudence may evolve to encompass 

positive obligations in the context 

of climate rights. 

Misdzi Yikh v Canada (2020 FC 1059). In 

2020, the Fireweed clan of the Wet’suwet’en 

(Dini Zi’) nation in British Columbia filed 

a claim against the Government of Canada, 

alleging that Canada’s inaction on climate 

change violated their constitutional rights 

under sections 7 and 15 of the Charter. They 

further alleged that Canada was not meeting 

its obligations under section 91 of the 

Constitution Act, 1867 on the basis that the 

“peace, order and good governance clause” 

imposes a positive obligation to legislate 

compliance with Canada’s commitment to 

keep global warming below 2 o C. 

Canada argued the claim should be struck, 

and the court agreed, stating that “when the 

issue spans across various governments, 

involves issues of economics and foreign 

policy, trade, and a host of other issues, the 

courts must leave these decisions in the 

hands of others” (para 56). 

The court left open the prospect of compelling 

the government to take positive 

action but found that the plaintiff’s requests 

were vague, and “without the focus to affect 

the desired results” (para 58). 

The Dini Zi’ are appealing the decision. 

Ernst v Alberta Energy Regulator (2017 SCC 

1). Although not strictly a climate change 

case, a plurality of the court in Ernst considered 

that very exceptional circumstances 

will be required for the court to go beyond 

the usual remedy of judicial review and 

award Charter damages against a state actor 

in an environmental harm case. 

The individual plaintiff sued an energy 

corporation, a conservation board [AER], 

and the Province of Alberta. As against the 

AER and province, the plaintiff claimed for 

negligence in the administration of the governing 

environmental regulatory regime, 

failure to protect the water supply, and 

failure to respond to her complaints constituting 

a breach of her right to freedom of 

expression under section 2(b) of the Charter 

(para 6). The plaintiff also sought an award 

of damages under section 24(b) of the Charter, 

a broad remedial provision. 

The Court of Appeal struck portions of 

her claim on grounds that included the 

board owed no common law duty of care to 

the plaintiff; and forcing the board to consider 

the extent to which it must balance interests 

of specific individuals while attempting 

to regulate overall public interest would be 

unworkable in fact, and bad policy in law. 

A majority of the Supreme Court of Canada 

agreed, finding that Charter damages 

would have depleted the board’s resources 

of money and time and could distort the 

appeal and review process. 

What’s next for climate change litigation 

in Canada? 

We expect climate change litigation in Canada 

will continue to evolve unevenly in the 

short term but that, over time, and consistent 

with the experience of other jurisdictions, 

there will be an increasing emphasis 

on enforcement of global climate obligations 

and a greater focus on climate-based 

individual rights. Determination after trial 

of some of the issues raised above will, 

hopefully, create a roadmap for climate 

change litigation in Canada going forward. 

For now, we expect the arguments to become 

more novel and creative, and the outcomes 

to be as uncertain. 


BOOK REVIEW 

An AI forensic friend and 

guide for litigators and judges 


Jill Presser, Jesse Beatson, and Gerald Chan 

(general editors and contributing authors) 

Litigating Artificial Intelligence, 2021/22 Edition 

(Toronto: Emond Publishing, 2021) 

C 

riticisms of new approaches are rarely based on comparisons 

to what we have now. As often as not, they are based 

on a comparison between the new and some idealized, 

stylized, or romanticized version of what exists: the mythically perfect 

system operating ideally for the perfectly represented client, expeditiously, 

simply, and affordably. Yet, for decades, consumers have 

increasingly taken a different view and reached a different verdict on 

the existing system. For most people, the reality is a denial of their 

right to justice. For too many others, the reality is an approach to justice 

that is too slow, complex, and expensive for their needs. ~ Chris 

Bentley, Chapter 15: “Online Dispute Resolution” 

The economic imperative in offering efficient and timely access 

to justice cannot simply look past the messy, if necessary, elements 

of a properly adversarial system that ensures fairness and a full 

hearing of the issues. The use of AI tools would also raise constitutional 

questions where oral argument is essentially rendered meaningless. 

~ Ryan Fritsch, Chapter 2: “Background” 

Litigating Artificial Intelligence, a structured collection of 17 contributions 

edited by Jill Presser (before her appointment to the Ontario 

Superior Court of Justice), Jesse Beatson, and Gerald Chan, 

plays many roles. 

First, the book provocatively and critically examines the place 

of AI-based systems in our justice system from radically different 

perspectives, as the quotations above reveal. 

Second, the book is a litigator’s forensic friend and guide, providing 

both criminal and civil litigators with an understanding of the 

implications of AI-generated information and evidence for our court 

and administrative adjudicative systems, together with detailed, casebased 

strategies for challenging or defending the use of such evidence. 

Third, the collection offers practical advice about the application 

of AI products in legal practice, providing descriptions and assessments 

of the AI-based tools now available for legal practitioners. 

In short, Litigating Artificial Intelligence is a “must buy”: it deserves 

a place on every modern litigator’s bookshelf and should be a mandatory 

read for every judge’s social context self-study program. 

The book’s 17 chapters are written by 19 authors and are organized 

into five basic parts: 

• an introduction by Ryan Fritsch to the basic concepts and elements 

of AI, and to what he calls the meeting of “AI Code” 

with “Legal Code.” Fritsch provides an overview of the current 

uses of AI in both the public and the private law sectors 

and identifies several limitations of AI that he thinks point 

to the need for regulation before the use of AI in the legal 

sphere becomes more pervasive; 

• detailed legal strategies for challenging a decision informed 

by, or made by, AI; 

• dealing with AI-related evidentiary issues; 

• litigating suits regarding the sale, design, or operation of AI 

products that cause harm; and 

• deciding which AI tools to use in your own legal practice. 

Assessing the impact of AI on criminal proceedings makes up 


a substantial part of the book. At the conceptual 

level, Chapter 10, by Justice Presser 

(“Do Androids Dream of the Electric 

Chair?”), contains an intriguing review of 

the literature on the application of criminal 

liability principles to AI agents. Reflecting 

on the two main metaphors for AI entities 

– robot as anthropomorphized surrogate 

human and robot as mere machine or tool 

– the chapter considers the treatment of the 

actus reus and mens rea requirements for 

criminal liability in the competing conceptions 

of Professors Gabriel Hallevy (When 

Robots Kill: Artificial Intelligence Under Criminal 

Law) and Ying Hu (“Robot Criminals”). 

At the courtroom-floor level, several chapters 

explore the interplay among AI, criminal 

law, and the law of evidence. Kate Robertson 

and Justice Presser detail the three main 

types of AI technology that tend to arise in 

criminal cases: algorithmic risk prediction 

tools used to generate probabilistic estimates 

of the likelihood of an individual’s recidivism 

in order to influence decision-making 

in bail, sentencing, or correctional settings; 

probabilistic genotyping DNA tools that employ 

AI to extract forensic evidentiary value 

from complex DNA samples; and algorithmic 

technologies designed to enable law enforcement 

agencies to automate surveillance 

techniques or draw inferences through mass 

data processing in the hope of predicting potential 

criminal activity. 

The authors propose two main litigation 

strategies for challenging the admissibility 

of evidence derived from, or police conduct 

based upon, such technologies. The first 

is based on “lessons learned” from earlier 

court challenges to actuarial risk prediction 

instruments. The second approaches AI-derived 

evidence as a kind of expert opinion 

evidence based on “novel science,” subject 

to scrutiny on that basis under the criteria 

in R v Mohan, [1994] 2 SCR 9. 

Presser, Robertson, and Beatson supplement 

this conceptual formulation of 

legal challenges to AI with a chapter that 

addresses the procedural considerations 

which arise as lawyers begin to litigate algorithms: 

requesting and accessing meaningful 

disclosure/discovery in the face of 

claims the technology is proprietary or 

prosecutorial claims of privilege; leveraging 

human expertise to understand and 

unpack the technology behind the algorithmic 

tools at issue; and raising adequate 

funding to mount legal challenges, including 

hiring knowledgeable experts. 

In their chapter on “AI and Evidence 

Law,” Gerald Chan and Mabel Lai dive 

deeper into the issues concerning the gathering 

(disclosure) and admission of AIbased 

evidence. They review the types of 

privilege that may be asserted against a 

request for disclosure of algorithmic information, 

such as public interest (investigative) 

privilege or national security privilege 

under the scheme in section 38 of the 

Canada Evidence Act. Disclosure takes on 

additional complexity where the algorithm 

employs machine learning as production 

of the source code may go only so far in 

capturing what the algorithm is doing and 

why. The chapter contains a lengthy discussion 

of the application of the framework for 

investigative privilege in R v Mirarchi, 2015 

QCCS 6628, to sophisticated technological 

evidence. As well, the authors review the 

application of the evidentiary principles of 

authentication, best evidence, and expert 

opinion to digital evidence. 

Chan and Lai note that, in the civil context, 

the pre-hearing gathering of information 

about algorithms will be subject to the principle 

of proportional discovery. They offer 

practical advice about the courtroom challenges 

of calling and demystifying algorithmically 

generated evidence, including the use 

of demonstrative aids, summaries, demonstrations, 

re-enactments, and experiments. 

In Chapter 8, “Spies and Robots,” Leah 

West visits the challenges of litigating the 

use of AI in national security hearings. 

Her chapter provides the most detailed 

description of the two basic forms of computer-driven 

data analytics: subject-based 

analysis, where the program begins with a 

known and works outward; and pattern- or 

event-based analysis that aims to discover 

patterns within stored data that either match 

or deviate from predictive models replicated 

elsewhere. West deals with the forensic 

implications of the differences between interpretable 

and non-interpretable processes: 

in the former, a human analyst can explain 

and justify how the AI program arrived at 

its conclusions and on what parameters the 

results are based. However, today’s reality is 

that most machine-learning techniques are 

non-interpretable, so that the rationale for a 

particular result may not be apparent or is 

practically inexplicable to humans. 

Two contributions assess the impact of 

AI on administrative proceedings from different 

perspectives. My colleague, Justice 

Lorne Sossin, argues that administrative 

law incorporates significant procedural 

flexibility around its two main pillars: the 

right to be heard; and the right to an impartial 

and independent decision-maker. With 

respect to the right to be heard, AI may 

make it far easier for a more diverse set of 

parties to convey their positions to administrative 

decision-makers. As well, going 

into a hearing parties can know more about 

the case to meet than ever before through 

searchable databases of prior decisions and 

information on rates of success. 

With respect to the independence and 

impartiality of the decision-maker, Justice 

Sossin notes that many have cited the 

promise of AI-enhanced decision-making 

for removing implicit bias or other human 

subjectivity from decision-making and ensuring 

that similarly situated parties are 

treated in consistent and coherent ways. 

Nevertheless, a decision-making body would 

have a duty to disclose its reliance on AI. 

Justice Sossin ventures that for participants 

who are self-represented and may lack legal 

sophistication, AI can be a fairness game 

changer. As well, the availability of predictive 

analytics holds the promise of allowing 

counsel and parties to better determine 

what should be challenged as an outcome 

inconsistent with the applicable legal standard 

or principles. Here, online predictive 

analytics may become an important feature 

of judicial review proceedings based on 

arguments with respect to legal incoherence 

leading to unreasonableness as the relationship 

between consistency and reasonableness 

continues to be developed. 

A more skeptical tone permeates Petra 

Molnar’s discussion of the use of AI in immigration 

and refugee decision-making. Molnar 

describes the automated decision-making 

technologies used by various countries 

in the immigration regulatory process in 

areas such as processing visa applications 

and lie detection at border checkpoints. 

Molnar observes that algorithms are vulnerable 

to the same decision-making concerns 

that plague human decision-makers: 

transparency; accountability; discrimination; 

bias; and error. Accordingly, before developing 

and deploying new technologies 

in migration management, Canada needs 

governance and oversight mechanisms with 

meaningful procedural rights, including 

the ability to challenge decisions in a court 

of law. 

The book’s fourth part deals with issues 

concerning lawsuits where AI, or its effects, 

are the subject matter of the proceeding. Ren 

Bucholz and Andy Yu explore how Canadian 

tort law might deal with harms caused by the 

use of AI systems, defined as any combination 

of software and/or hardware designed to 

operate autonomously or semi-autonomously 


in response to external input, such as data 

from sensors in an autonomous vehicle. 

The authors propose a “graded agency” 

approach to tort liability for the creation 

and use of AI systems. The approach rests 

on two key principles: a person who adopts 

AI for its various benefits correspondently 

adopts the risks of harm that the use of 

the AI system might cause; and the particular 

standard of liability to which the person 

is subject should depend on the extent to 

which they delegate their legal responsibilities 

to the AI system. Liability for users 

of AI systems who abdicate their agency 

should be assigned on a strict liability basis. 

By contrast, where a user employs an AI 

system to assist in making a decision but 

retains the role of ultimate decision-maker, 

the user has delegated their agency only 

partially and a traditional negligence analysis 

is more appropriate. 

The authors canvass the application of a 

graded agency approach to liability by considering 

the cases of autonomous vehicles, 

professionals who rely on AI systems as an 

element of the provision of their professional 

services but who retain ultimate decision-making 

power, and the application 

of AI in the hiring context. 

With two sons who have served on active 

military duty, I found of particular interest 

Major Christopher Nam’s chapter, “International 

Law, AI, and Military Operations: 

Legal Obligations and Accountability.” Major 

Nam describes the current military applications 

of AI, including its employment 

in lethal autonomous weapons systems. He 

then discusses the international regulation of 

AI in the context of military operations, specifically 

the principles of public international 

law and international humanitarian law, the 

latter designed to regulate the conduct of 

hostilities and to protect the victims of armed 

conflict. The chapter contains a useful review 

of the fundamental principles and rules 

of international humanitarian law: the obligation 

that belligerents distinguish between 

legitimate targets and civilians; military necessity; 

humanity; proportionality; and precautions 

in attack. Major Nam also canvasses 

the key issues a Canadian court will consider 

when hearing a non-criminal matter relating 

to national defence: the intertwined concepts 

of justiciability and high policy; the extraterritorial 

application of the Charter to military 

operations; and Crown immunity from tort 

liability for policy decisions. 

The final major part of the book deals with 

AI-enabled litigation tools. Colin Stevenson 

and Jesse Beatson provide an introduction to 

the topic, describing the AI tools already in 

use in litigation practices, such as those that 

facilitate document review, perform legal 

research, and predict judicial outcomes. On 

the issue of whether predictive tools should 

be allowed to use judges’ names in any AI 

analysis to forecast judicial behaviour, they 

set out the contending views: 

[I]t may be argued that there is good 

reason to be cautious about allowing 

such data to be used in an AI program. 

Data analysis showing inconsistency in 

judicial decision-making with respect to 

similar issues risks harming the perception 

of judicial neutrality and objectivity 

and could bring the administration 

of justice into disrepute. It could also invite 

“judge shopping” or other strategic 

behaviour. The contrary position, however, 

is that shining a light on judicial 

bias, if it can be accurately quantified 

and identified, could have a salutary 

effect on any judicial or other adjudicative 

system by discouraging idiosyncratic 

decision-making and identifying 

inadequate decision-makers. Doing so 

might have some short-term costs, but it 

might also inspire courts and tribunals 

to take further measures to encourage 

consistency in decision-making, resulting 

in a long-term gain for the rule of 

law and perceptions of judicial fairness. 

Put me in the camp favouring the use of judicial 

names in predictive legal analytics. Such 

products could serve as robust judicial-writing 

quality control mechanisms. When used 

by counsel, analytic predictions should be 

disclosed to the court so that judges can critically 

examine – and perhaps improve – the 

legal accuracy of their judicial decisions. 

For those who use technology-assisted 

review (TAR) for electronic discovery, the 

chapter written by Professors Maura Grossman 

and Gordon Cormack offers a technical 

critique of the kinds of TAR and non-TAR 

products available on the market. The authors 

discuss the measures of effectiveness 

of TAR in light of the difficult challenge 

posed by the subjectivity of the concept of 

“relevance.” The chapter concludes with 

a checklist of key takeaways regarding 

the assessment of TAR, followed by two 

appendices that contain model validation 

protocols: one for examining the effectiveness 

of an individual review effort, and 

the other for vetting a TAR tool or comparing 

two different review methods. 

Carla Swansburg considers the use of AI 

technology in legal research, writing, and 

drafting tools. Swansburg observes that 

there seems to be a growing implication that 

lawyers need to consider using available 

and proven research technologies, in particular 

where those technologies provide 

faster, less expensive, and more accurate 

results. Swansburg discusses the results of 

studies that demonstrate AI tools produce 

superior legal research results in terms of 

speed and accuracy. She is highly critical of 

the Canadian copyright regime governing 

judicial decisions, under which the Crown 

holds exclusive copyright and then bestows 

contractual user rights on a small list of 

legal publishers. In her view, this regime 

cuts off the legal innovation community in 

Canada from the necessary access to judicial 

decisions required to build proper platforms 

that could be alternatives to those 

used by incumbent legal publishers. 

The book concludes on an existential note, 

with former Ontario Attorney General Chris 

Bentley’s contribution about online dispute 

resolution (ODR). I started this review 

with a quote from Bentley’s chapter that 

describes, quite accurately in my view, the 

troubling reality of our court system – it is 

too slow, too complex, and too expensive. 

Bentley canvasses various ODR initiatives, 

including the successful BC Civil Resolution 

Tribunal, that offer “litigation consumers” 

alternatives to the public court system. Or, as 

Richard Susskind has proposed, could operate 

as front-end add-ons to the court system. 

Bentley’s chapter touches on the existential 

because, in describing the reality of the ODR 

alternatives, he establishes that the time has 

come for Canadian superior courts to stop 

turning their backs on ODR processes and, 

instead, learn to work with them. If they do 

not do that then, in my view, civil litigation 

consumers will continue to vote with their 

feet and leave the court system. 

Litigating Artificial Intelligence concentrates 

on examining the application of AI 

products to the law rather than providing 

a detailed, technical introduction to AI. For 

those interested in learning more about the 

inner workings of AI (without the specialist 

mathematics), I recommend two books: 

Michael Wooldridge’s A Brief History of 

Artificial Intelligence: What It Is, Where We 

Are, and Where We Are Going (2021); and 

Margaret A. Boden, Artificial Intelligence: 

A Very Short Introduction (2018). 

Litigating Artificial Intelligence is a rich 

and ambitious book, with a broad reach; 

one that should be read by all advocates 

and judges. I am pleased to see that, as the 

book’s title shows, this edition will be the 

first of many to come. 


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2021 

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The Advocates' Journal - Winter 2021

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The Advocates' Journal - Winter 2021

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