Keeping Tabs - Winter 2022

KEEPING TABS
The Advocates’ Society
WINTER 2022

Mastering the art and craft of advocacy is a career-long commitment and we are
here to help. The Advocates’ Society has been the premier provider of advocacy
skills training for over 30 years. We are proud to provide lawyers across Canada
with the training and the confidence they need to execute on their feet when it
counts. The Judge will notice…your clients will too.
Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.

CONTENTS
04
08
10
13
16
Chair Chat
Erin Pleet, Thornton Grout Finnigan LLP
Reflections on Fraser v Canada (Attorney General)
in a Global Pandemic
Ashley Maciuk, Legate Injury Lawyers
How Young Lawyers Can Improve Mental Health
in the Legal Profession
Erin Durant, Durant Barristers
Advice for Cousin Greg
Carlo di Carlo, Stockwoods LLP, and Patrick MacDonald, City of Hamilton
Interview of Kelly Twa - Osler, Hoskin & Harcourt LLP
Compiled by Carlo di Carlo, Stockwoods LLP
Editor: Alexandra Shelley, Torys LLP | ashelley@torys.com
Deputy Editor: Khrystina McMillan, Mathers McHenry & Co
Keeping Tabs Editorial Team: Carlo Di Carlo, Stockwoods LLP, Patrick J. MacDonald, Sean Petrou, McCarthy Tétrault LLP,
Timothy J.L. Phelan, Cambridge LLP, Sebastian L. Pyzik, Woods S.e.n.c.r.l.
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a
voice for young advocates (advocates who are ten years of call or fewer) within the Society and within the profession. We do this
through networking/mentoring events, by publishing articles by and for young advocates, and by raising issues of concern to
young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual authors are their own
and do not necessarily reflect the policies of The Advocates’ Society.
3

CHAIR CHAT
Chair Chat
Erin Pleet, Thornton Grout Finnigan LLP
New year, new you? ‘Tis the season
for renewal, reflection, and resolutions.
I’ve certainly been guilty of
many clichéd new year plans. But
perhaps this year is different. As if
2022 is going to be the year that I
willingly eat less chocolate. Instead,
I’m aiming to approach this year
with optimism and openness.
In this issue of Keeping Tabs, you’ll
find some great articles to get your
2022 started.
Erin Durant of Durant Barristers
(and former Keeping Tabs editor) has
written an article that is both personal
and practical, reflecting on her mental
health experiences and translating
that into advice for junior lawyers.
We also have an interview with
Kelly Twa of Osler, Hoskin & Harcourt
LLP, an up-and-coming young advocate
who acted for The Advocates’
Society in the recent Anderson v Alberta
case at the Supreme Court of
Canada. Kelly shares some of what
she learned from participating in
that intervention, and advice she’s
received from early mentors in her
legal career.
If “you can’t make a Tomelette without
breaking some Greggs” resonates
with you, then you’ll enjoy YASC
Members Carlo di Carlo and Patrick
MacDonald’s tongue-in-cheek analysis
of the legal issues arising in HBO’s
hit Succession. Fair to say: don’t do
what Cousin Greg does.
Ashley Maciuk of Legate Injury
Lawyers shares her reflections on
Fraser v Canada (the SCC case that
addressed unfair treatment of working
mothers relating to the RCMP’s
pension plan), particularly in light of
the unequal effects the pandemic
has had on women and mothers.
If you’d like to contribute to an
upcoming edition of Keeping Tabs,
please email Alex Shelley. To get
more involved in YASC, please email
our Volunteer Roster coordinator
Lisa Delaney.
Be sure to check your inboxes or
follow The Advocates’ Society on
Twitter, LinkedIn and Facebook for
the latest on our events and initiatives.
We hope you’ll join us!
4

What will be the evolution of our
practice post-pandemic?
TAKE THE SURVEY
Calling all Young Advocates (10 years of call or less)! YASC’s Future of the
Profession Working Group needs your help with an important survey.
Have your say and provide important anonymous feedback on how
COVID-19 has impacted how you practise law! Share your thoughts on
the future of advocacy in the (dare we say it?) post-pandemic world!
• How has your employer responded to the pandemic?
• What is your ideal work setup?
• Should advocacy continue to proceed virtually post-COVID?
• What do you miss (and not miss) about practising law pre-COVID?
The results of the survey will be aggregated to form the basis of a
publication that will be used to help guide leaders in our profession as
they consider how to structure work environments moving forward.
The Advocates’ Society
La Société des plaideurs

Renew & Stay Connected with TAS in 2022
New Content For TAS Member Resource Library
Our free Member Resource Library features a selection of
exclusive TAS content including:
• The Litigating from Home Series
• Allyship in Advocacy
• Fireside Chats with Canadian Chief Justices -- and more!
Learn from the Best. Be YOUR Best.
Your TAS membership will continue to offer you special rates for
the advocacy CLE you need. We take pride in delivering a comprehensive
curriculum of premier programs featuring leaders of the
Bench & Bar and signature “Learning-By-Doing” workshops with
trained skills instructors to help you master your craft.
Strong & Inclusive National Community
One silver lining of our shift to virtual programming is the
ability to bring together our members from coast to coast. Our
commitment to keeping our members connected with a calendar
full of social, practice-specific events, and CPD programming is
stronger than ever.
Advocates in Action
Our volunteer Committees and Task Forces will continue
to represent our members and the voice of advocates
in interventions, submissions and other justice sector
work across the country. Members can keep up-to-date with
TAS Advocacy in our monthly newsletter Advocates in Action.
Signature Publications by Members for Members
TAS members enjoy exclusive access to The Advocates’ Journal,
our highly regarded quarterly print magazine, and can stay
up-to-date on TAS members and events with our popular digital
newsletters, Keeping Tabs and Advocacy Matters.
Renew your Society membership today and ensure you have access to the resources
you need to hone your skills, best serve your clients and grow professionally.

Click Here to Renew your TAS Membership
What’s in store for 2022?
By Advocates. For Advocates.

FRASER V CANADA (ATTORNEY GENERAL)
Reflections on Fraser v
Canada (Attorney General)
in a Global Pandemic
Ashley Maciuk, Legate Injury Lawyers
“For many women, the decision to work on a part-time basis, far from being an
unencumbered choice, ‘often lies beyond the individual’s effective control.’ […]
Deciding to work part-time, for many women, is a ‘choice’ between either staying
above or below the poverty line.”
- Justice Abella in Fraser v Canada (Attorney General) at para 91
These statements by Justice Abella form part of the majority reasons in the
October 2020 decision of Fraser v Canada (Attorney General) (see Case in Brief
for a summary). In making these statements, Justice Abella relied on statistics
and social science to affirm the long-standing disadvantage faced by mothers
in the workforce. Women generally bear the larger share of childcare
and other domestic responsibilities in the home, leading to disadvantages in
balancing domestic work and employment, especially where working hours
are fewer, less stable, and precarious.
8

and drive to prioritize motherhood have led to
heightened financial challenges.
As I reflect on the pandemic’s disproportionate
impact on working mothers, I am thankful for Justice
Abella’s reasons in Fraser. Professor Jonnette
Watson Hamilton has identified Fraser as the first
successful adverse effects claim on the basis of
sex. While it will not eradicate the impact of the
pandemic, it provides teeth for challenging state
action and laws (and perhaps, workplace policies)
that further this existing and historical disadvantage.
Fraser is a strong judicial statement
on how Charter values can and should operate
to promote equality for women.
My background in global health has taught me
that law is only part of the equation when advocating
for change – action needs to start in the
community. To conclude, I would like to share
some thoughts on how we can rally together to
espouse the values in Fraser:
What Justice Abella could not have anticipated
when she sat for the hearing of Fraser in December
2019, was how poignant her observations
would be in the wake of the COVID-19 pandemic.
Almost two years after the pandemic started,
her observations continue to ring true.
The pandemic was accompanied by closed
schools and daycares. Jobs were paused or lost
where social distancing was not possible or the
service was deemed non-essential. Based on
data from Statistics Canada reported on by RBC
Economics, women who are mothers, lower income,
visible minorities and immigrants have
faced greater rates of unemployment compared
to fathers and women without children, women
with higher incomes, non-visible minority women,
and non-immigrant women, respectively.
This disproportionate impact on women
has been dubbed the “she-cession” by Prime
Minister Trudeau.
I have seen how members of my own Filipino
Community have experienced this phenomenon.
In my network of family and friends, it has
been a reality that the paused or lost jobs, reduced
capacity to afford continuing education,
1. Education. As many of us may work from
home, we may not be exposed to the unique
challenges faced by working mothers in precarious
jobs or otherwise. Change starts with
education and we can start by consulting
sources such as this Report by the Canadian
Centre for Policy Alternatives.
2. Donation. If you are able, consider financially
supporting mothers that are navigating the
challenges of unstable work due to the pandemic
via local women’s charities and shelters
that support women in need and help families
buy essential items.
3. Volunteer. As questions about employment
rights arise, one way to help is by volunteering
with a local or provincial pro bono law organization
to help navigate legal rights and protect
family livelihood. See, for example, Pro Bono
Canada to locate a pro bono program near you.
4. Internal Advocacy. Consider the employment
practices in your own law firm to ensure sensitivity
and flexibility around the pressures faced
by working mothers.
9

MENTAL HEALTH
How Young Lawyers Can
Improve Mental Health in
the Legal Profession
Erin Durant, Durant Barristers
In a few months, I will amazingly no longer be a “young” lawyer. I was excited
to write this article for two reasons. First, it is a topic that I have become
very passionate about given my own personal struggles. Second, years ago
I was the first editor of Keeping Tabs and I am so proud to see how far this
publication has come.
A recent study showed that lawyers between the ages of 26 and 35 displayed
the highest burnout scores and reported the lowest autonomy and
highest work intensity scores compared to their more experienced peers.
Those results would not surprise anyone reading this publication: there is
no question that the typical law firm leverage model requires young lawyers
to work very hard, long hours and, increasingly, with less administrative support
than more experienced lawyers had at the same stage in their career.
10

practice of law a better place? (Don’t worry, I am
not going to suggest yoga, wellness webinars or
meditating at 2 am after an 18-hour workday):
1. The demand for young lawyers is very high
right now across the industry. You have leverage.
Demand change internally or use the leverage
when negotiating a new position. Focus on
small stressors and easy changes, then work
your way up.
2. Share articles with suggestions about improving
the workplace with your colleagues
and supervisors.
3. Be an example for others. Watch out for articling
students and younger associates. Model
healthy habits. Teach them how to make room
for personal time and health. Help them deflect
work when they are over capacity.
The typical approach in most law firms is to focus
on fixing the individual or making them more
resilient. While these approaches may delay a
burnout or full-blown mental health crisis, they
will not solve the problem. Even the most resilient
of us can break down. Before my breakdown in
early 2021 I was the most physically healthy that
I had been in close to a decade. I was exercising,
eating well, drinking less and doing my best to
take care of myself. It was not enough.
Burnout is an institutional problem. It is
caused by chronic workplace stress. Similarly,
the overwork, stress, and lack of control that
many people feel about their career can lead
to or exacerbate depression, anxiety and other
mental health conditions. I believe that it is
not the practice of law itself that causes many
of our problems, but rather firm structures and
policies that have placed more and more work
on lawyers who have less and less time. Pile on
a pandemic and it is a recipe for disaster.
So, what can younger lawyers do to make the
4. Keep the discussion about mental health and
burnout in the legal profession going. Great
strides have been made during the pandemic
to allow this topic to be discussed openly. It is
up to all of us to keep the momentum going.
5. Consider voting with your feet. There are several
new boutique firms that have spun off larger
firms that do high quality work and that are
committed to a healthier work environment.
You do not need to be stuck in a workplace that
makes you unhappy and unwell for the rest of
your career.
A mentor told me while I was in the midst of
my crisis that a legal career is a marathon, not
a sprint. I took that advice to heart. It is unfortunate
that I went through a very difficult time
personally, but it has not, in any way, derailed
my career. The experience allowed me to realize
that I could build my own firm and operate it
in a way that is both profitable and healthy for
me and my staff. If all else fails, maybe one day
you can do the same.
11

The Patrick D. Schmidt Future
of Family Law Award
The Advocates’ Society is proud to announce the introduction of the Patrick D. Schmidt Future
of Family Law Award. This award was established to honour the late Patrick D. Schmidt and to
promote excellence in the profession by supporting junior lawyers in their early years of
practice who are choosing to dedicate their practice to family law.
This award was created to support the future of the family law bar by offering a junior lawyer
access to skills training, a strong advocacy community and some financial support as they
develop their practice.
The call for nominations will be announced in June 2022.
To learn more about the Award, the selection criteria and the prize, click here.
The award will be presented biennially at the Fall Forum legal conference hosted by The Young
Advocates’ Standing Committee. The next Fall Forum is scheduled to take place in October 2022.
The Advocates’ Society
La Société des plaideurs

FUN FEATURE
Advice for Cousin Greg
Carlo di Carlo, Stockwoods LLP, and
Patrick MacDonald, City of Hamilton
As fans of HBO’s hit TV series Succession know, the character Cousin Greg
(a.k.a. Greg the Egg) has found himself in several unfortunate situations
where he desperately needed legal advice. Two of our editors intervene to
try to provide Greg with some much needed assistance. All quotes are from
Cousin Greg, unless otherwise noted.
“If it is to be said. So it be. So it is.”
CD: This first scenario is from Cousin Greg’s testimony before Congress
where Greg essentially spouted a bunch of gibberish. Greg was poorly
served here by the lawyer who prepped him. His testimony here violates
a key witness prep tip: always be as concise as possible and answer questions
as directly as possible.
PM: I’ll go a step further. A good lawyer would prep him to answer the questions.
A great lawyer would tell him to decline to answer on the basis of
the Fifth Amendment wherever possible, even if there’s no basis to claim
that right when being questioned in that particular forum. Keep in mind that
while similar, Section 13 of the Charter does not have the same scope as the
Fifth Amendment, nor is it as cool to say as, “I Plead the Fifth.”
13

I’m quite
focused on,
like... my position
and me.
PM: Ethical counsel would remind a person in
these circumstances that they are not that person’s
lawyer and they should seek independent
legal advice. But again, the duty of a fictional
lawyer to provide entertainment to viewers is
not a function to be discharged lightly.
“I’m quite focused on, like, my position
and me.”
CD: This gets back to the problem with having
your grandfather pick your lawyer for you. Greg,
your lawyer’s objective should be on advancing
your position. If you have to clarify or remind
your lawyer of that fact, you should probably
run as fast and as far as you can.
“I just think if everyone’s showing up to
battle in armour, then I feel kind of exposed
here in my loincloth.”
CD: This is a good insight by Greg. If you are
engaging in business negotiations, particularly
where they may be intertwined with family
or estate issues, it is a good idea to be represented
by counsel. It is a less good idea to
have your grandfather pick your lawyer for
you (more on that below).
PM: Recall that as counsel, you have an obligation
in this scenario as well. Consult your province’s
Rules of Professional Conduct regarding joint retainers.
Of course, if you are merely playing a lawyer
on tv, your duty to faithfully perform the script
likely outweighs any professional obligations you
may or may not have as a fictional lawyer.
“Do you think he-- he’s probably my lawyer?”
CD: Red flag here. Greg, if you have to ask if someone
is your lawyer, they are not your lawyer! You
are in a particularly bad position if you are asking
a third party whether someone is your lawyer!
PM: Greg should consider calling his local Law
Society Referral Service to find his own lawyer,
preferably one who is also called to the bar in
New York state so as to avoid having to retain
different lawyers in the multiple jurisdictions
where he may need legal advice.
“You’re going to sue Greenpeace?”
“I like your style Greg.”
“Who do you think you’re going to go after
next?”
“Save the children?” - Tom Wambsgans
CD: I don’t think I have anything to add to Tom’s
advice here.
PM: Greg, I am not your lawyer.
This article is privileged and may contain confidential
information and poor attempts at humour
intended only for Cousin Greg. Any other
distribution, copying or disclosure is strictly prohibited,
but please, forward this to your friends.
If you have received this article in error, please
notify us immediately and permanently delete
the original, but again, not before forwarding to
your friends or coworkers.
14

2022 Courthouse Series:
Taking the Surprise Out of Trial
Every trial lawyer has nightmares of things that can go wrong at trial: your witness
gives an unexpected answer during examination-in-chief, your cross-examination
goes off the rails, or the judge limits the scope of your expert’s testimony.... Don’t
let the unexpected throw you off your game! Attend this year’s Courthouse Series
and find out how to effectively prepare for the unknowns of trial.
London - Feb 23, 2022
Thunder Bay - Mar 1, 2022
Windsor - Mar 3, 2022
Barrie - Mar 8, 2022
Kingston - Feb 24, 2022
Sudbury - Mar 2, 2022
Milton - Mar 4, 2022
Ottawa - Mar 9, 2022
Kitchener-Waterloo - May 4 & 11, 2022
To learn more or register, click here
www.advocates.ca/Courthouse2022

INTERVIEW
Interview of Kelly Twa -
Osler, Hoskin & Harcourt LLP
Compiled by Carlo di Carlo, Stockwoods LLP
Q. Why did you become a litigator or advocate?
A. My first substantive exposure to litigation was working on matters before the Environmental Appeal
Board in my first law school summer with the Environmental Law Section of Alberta Justice and Solicitor
General. I was instantly drawn to the fast pace of preparing for those appeals and the unpredictable (but
fun!) nature of litigation.
16
Q. What is your year of call?
A. 2020

Q. What is your greatest
extravagance in your everyday
life?
A. Japanese knives, skincare,
and oat milk in my
coffee.
Q. What is your favourite part about the practice?
A. My favourite part about the practice, especially litigation,
is being exposed to so many different forms of knowledge.
Depending on the week, I could be working on a range of files
involving mental health, geology, or cannabis. It is a great privilege
to show up to work every day to learn something new
about the world as well as the practice.
Q. You recently represented TAS in the Anderson v Alberta appeal. Why was it important to
you to get involved in this case?
A. When I heard that a senior partner in our firm would be representing The Advocates’ Society in this
appeal, I jumped at the opportunity to get involved. The Anderson v Alberta appeal was exciting to me as I
was familiar with the underlying litigation and knew that this appeal would present a unique opportunity
for the SCC to address its inherent jurisdiction to award advance costs and in turn promote access to justice.
The decision will be significant for Indigenous communities pursuing section 35 litigation and raises
questions (that I think those of us in the legal profession ought to consider) as to how our legal system
can and should be used to promote reconciliation. The implications of this appeal will also be significant
for all litigants bringing cases of public importance before the Court. Intervening in a matter to promote
access to justice allowed me to uphold my duties as a lawyer and make an exciting first appearance at
the SCC. I hope my practice will continue to be shaped by cases like this appeal.
Q. What are some things that you learned about access to justice as a result of your
involvement in that intervention?
A. While I have always been interested in how lawyers can enhance access to justice, working on
this appeal allowed me to better understand some of the substantive jurisprudence on access to
justice. In Trial Lawyers Association of British Columbia v. British Columbia (Attorney General), 2014 SCC
59, the SCC affirmed that there should be “some degree” of constitutional protection for access to
justice, but exactly how that protection might look appears to be evolving with the context of each
case where the principle arises.
In the Anderson appeal, we used our role as intervener to encourage the SCC to consider (and perhaps
emphasize) the constitutional dimensions of access to justice as they clarify the advance costs
framework.
17

Q. Who is an important legal mentor for you and why?
A. One very important mentor to me is the Hon. Justice Nicholas Devlin. While clerking at the Alberta
Court of Queen’s Bench, I came to admire Justice Devlin’s unique writing style. His writing is precise and
accessible for litigants, while remaining thought-provoking for lawyers. It is a privilege to have received
ongoing advice from Justice Devlin on how to (i) become a great advocate, (ii) thrive within the practice,
and (iii) maintain a healthy set of hobbies while building a career.
Q. What is the best piece of advice you received about the practice?
A. My principal at the Alberta Court of Queen’s Bench, the Hon. Justice D.B. Nixon, told me in my bar call that
“pauses in the practice to relax and rejuvenate will provide you with the substance you need to manage a
demanding career, and ensure a long and successful one”. I’ve received similar advice from almost all of my
mentors, and I believe it to be true. I recently returned from two weeks in Europe with a newfound energy to
bring into the New Year.
Q. What is something you’ve learned about yourself during the pandemic?
A. I am a true extrovert, so the pandemic has reminded me how important all of my relationships are, both
personally and professionally. I started working at Osler at the beginning of the pandemic, so forming friendships
and mentorships within the firm took longer than usual. Now that I have established those relationships,
I value them deeply and look forward to a continued return to normalcy (and social events!).
Now Live! Friends Who Argue - A new TAS podcast
jointly hosted by our Young Advocates’ and 10+
Standing Committees. Segments will feature dialogue
with the people who get what you do, as we delve
into both the serious and lighthearted aspects of life
as an advocate in Canada.
Know a TAS member we should talk to?
Contact Webnesh Haile at WHaile@singleton.com

Get Involved!
Interested in getting more involved with TAS?
Applications are now being accepted for
our Young Advocates’ Standing Committee
(YASC).
The Young Advocates’ Standing Committee
seeks engaged, hard-working volunteers to
promote the interests of young advocates
(within their first ten years of practice) by
planning and implementing mentoring/
networking programs, administering YASC’s
publication (Keeping Tabs) and participating
in the work of The Advocates’ Society.
The Society welcomes applications to YASC
from Society members who are ten years of
call or fewer. Successful applicants will serve
a two-year term starting June 2022. Parental
leave will be accommodated.
Deadline to apply: March 3, 2022.
APPLY FOR YASC 2022/23 TERM
CLICK HERE
Questions? Please contact Claudia Cappuccitti
at CC@dyerbrownlaw.com

Fireside Chat on Advocacy
October 21, 2021 | Live Online
The Hon. Justice Breese Davies

3 rd Annual British Columbia Big Mingle - Virtual Edition
November 3, 2021 | Live Online

Virtual Mentoring: Time is on Your Side
November 4, 2021 | Live Online

TAS Jolly Jamboree!
November 5, 2021 | Live Online
Santa Claus - Peter Hrastovec, Shibley Righton LLP Windsor

Tips for Recruiting & Articling in Atlantic Canada
November 17, 2021 | Live Online

Legal Careers Off Bay Street
November 21, 2021 | Live Online

Turning February
Blahs Into the
Ha Ha Ha’s!
Thursday, February 10, 2022
6:00 pm - 7:00 pm (ET)
Live Online
If laughter is the best medicine, then surely
it can cure your February Blues! YASC is
excited to present an evening of comedy
featuring comedian, Leonard Chan.
Join us on Zoom where Leonard will deliver
a half-hour set of non-stop laughs! Then
keep your spirits lifted and mingle with your
peers in randomized breakout rooms.
Who is Leonard Chan?
Leonard is a comedian who has been on stage
at the Halifax Comedy Festival, Winnipeg
Comedy Festival and Just For Laughs in
Montreal. He has opened for Ronny Chieng,
Joel Kim Booster, K. Trevor Wilson, RB Butcher
and Matt Braunger. Leonard has also written
for The Beaverton, This Hour Has 22 Minutes
and the international hit, Kim’s Convenience.
Register

www.advocates.ca