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ADVOCACY MATTERS<br />

The Advocates’ Society<br />

WINTER <strong>2022</strong>


THE ADVOCATES’ SOCIETY<br />

<strong>2022</strong> END OF TERM<br />

DINNER<br />

Thursday, June 23, <strong>2022</strong><br />

Guest Arrival: 5:30 pm | Dinner: 7:00 pm<br />

Canadian Room at the Royal York Hotel,<br />

100 Front St W, Toronto, ON, M5J 1E3<br />

Black Tie | A member-only event


What the TWEET is this?<br />

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

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

CONTENTS<br />

05<br />

06<br />

11<br />

12<br />

14<br />

17<br />

21<br />

Chair Chat<br />

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

Catching up with Faisal Mirza:<br />

Addressing systemic racism in<br />

R. v. Morris and R. v. Anderson<br />

Michelle Alton, Workplace Safety & Insurance Appeals Tribunal<br />

Word to the Wise: Mentors at all Stages<br />

Faren Bogach, Construct Legal<br />

How to Mentor: It’s Not About You<br />

Ben Kates, Law Society of Ontario<br />

Panel On Women In Middle Years Of Practice –<br />

Some Advice And Reflections<br />

Ayesha Laldin, Department of Justice<br />

Highlights from Women in Litigation<br />

Compiled by Miranda Spence, Aird & Berlis LLP<br />

Roundtable: Building Your Book of Business<br />

Using Alternative Fee Structures<br />

Compiled by Megan Keenberg, C.S., Van Kralingen & Keenberg LLP<br />

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

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

<strong>Advocacy</strong> <strong>Matters</strong> Editorial Team: Michelle Alton, Tribunal General Counsel, Daniel Baum, Langlois Avocats, Megan Keenberg, Van Kralingen &<br />

Keenberg LLP, Ayesha Laldin, Department of Justice Canada, Ontario Regional Office, Zoe Oxaal, Department of Justice, Canada, Civil Litigation Section,<br />

Miranda Spence, Aird & Berlis LLP, Christine Vanderschoot, Vanderschoot Family Law<br />

3


CHOOSE FROM CANADA’S TOP<br />

MEDIATORS AND ARBITRATORS<br />

Members of the Canadian Academy of Distinguished Neutrals<br />

Ronald M. Dash<br />

Ron has over 45 years of<br />

experience resolving a wide variety<br />

of commercial, employment,<br />

insurance, construction and real<br />

estate matters as a mediator,<br />

arbitrator, Master of the Superior<br />

Court of Justice and litigator. He<br />

has a well deserved reputation for<br />

getting quickly to the heart of a<br />

dispute.<br />

W.A. Derry Millar<br />

Derry has over 45 years of legal and<br />

neutral experience. His expertise<br />

includes commercial, aviation,<br />

estates, environmental, insurance,<br />

product liability and real estate<br />

matters. He was elected as a Fellow<br />

of the American College of Trial<br />

Lawyers, is also a Fellow of the<br />

Chartered Institute of Arbitrators.<br />

Derry is a recipient of the Law<br />

Society Medal and the Catzman<br />

Award for Professionalism and<br />

Civility.<br />

2021-22<br />

2021-22<br />

READERS’<br />

CHOICE<br />

ADR & MEDIATION CHAMBERS<br />

416.362.8555 • 1.800.856.5154 • booking@adr.ca • adrchambers.com


CHAIR CHAT<br />

Chair Chat<br />

Emily Lawrence,<br />

Paliare Roland Rosenberg Rothstein LLP<br />

Welcome to <strong>2022</strong>!<br />

I don’t set New Year’s resolutions. But I do try to spend some time reflecting on the past year and<br />

thinking about the year ahead. In 2021, I tried to keep my personal and professional objectives<br />

small and concrete. 2021, for me, was about taking it day by day (pandemic wave by pandemic<br />

wave), finding ways to be of service, and being compassionate to my family, colleagues, peers, clients,<br />

and myself. Despite another worrisome wave of the pandemic, I am thinking bigger this winter.<br />

I am excited and optimistic that we will make a shift back to in-office work life and in-person<br />

gatherings this year. I can’t wait to share lunch with my colleagues, grab coffee with my mentees,<br />

and chat with old friends in the robing room or the TAS event space. It will be a transition, and<br />

perhaps a rocky one, but I am more than ready.<br />

The pandemic propelled forward how we practise law using virtual tools – a small silver lining –<br />

and required all of us to find new ways to deliver excellent service to our clients. Collectively, we<br />

pivoted to virtual practice because we had to, but we now have an opportunity to assess what<br />

aspects of virtual practice may serve us long-term. It’s also a chance to consider the business of<br />

lawyering post-pandemic. To get you started, this issue features a thoughtful roundtable on thinking<br />

outside the box about fee structures for clients. The pandemic has also laid bare inequities in<br />

our justice system; I encourage you to read Michelle Alton’s interview of Faisal Mirza on the use of<br />

sentencing reports in criminal proceedings and parole hearings.<br />

Throughout the last two years, TAS has been a source of education, insight, and socialization for<br />

me. I am proud of the work of the 10+ Standing Committee, and TAS as a whole, to continue to deliver<br />

timely and insightful programming that has brought together advocates from across the country.<br />

This <strong>Winter</strong> <strong>2022</strong> issue highlights some of those events, including an excellent program in which<br />

junior lawyers spoke candidly about what they really want from their mentoring relationships, and a<br />

debrief from one of TAS’s signature events, the Women in Litigation Symposium (Ontario).<br />

Wishing you a warm and safe beginning of the year.<br />

5


THE JUSTICE SYSTEM<br />

Catching up with Faisal<br />

Mirza: Addressing systemic<br />

racism in R. v. Morris and<br />

R. v. Anderson<br />

Michelle Alton,<br />

Workplace Safety & Insurance Appeals Tribunal<br />

A previous article in <strong>Advocacy</strong> <strong>Matters</strong> highlighted the Ontario Sentencing and Parole Project (SPP)<br />

along with one of its co-founders, Faisal Mirza. Recently, in R. v. Morris, the Court of Appeal for<br />

Ontario considered one of the reports generated from the SPP. A few months before Morris was<br />

released, the Nova Scotia Court of Appeal considered a similar type of report, Impact of Race and<br />

Culture Assessments (IRCA), in R. v. Anderson. In this article, we talk to Faisal about the Morris and<br />

Anderson decisions, as well as next steps as the justice system strives to address systemic racism.<br />

In R. v. Anderson, 2021 NSCA 62, the Nova Scotia Court of Appeal considered IRCAs, noting its re-<br />

6


sponsibility as an appellate court to equip judges<br />

who are tasked with sentencing offenders of<br />

African descent with the necessary tools to craft<br />

fit sentences.<br />

Mr. Anderson, an African Nova Scotian, had<br />

received a conditional sentence of 2 years less a<br />

day, followed by a probationary term of 2 years,<br />

for firearm offences. At sentencing, the Crown<br />

had sought a federal penitentiary term in the<br />

range of 2 to 3 years. At the appeal, the Crown<br />

changed its position and accepted that the conditional<br />

sentence was a fit and proportionate<br />

sentence. With the support of the intervenors,<br />

the Crown asked for guidance in applying the<br />

principles of sentencing to offenders who are of<br />

African descent.<br />

The Court of Appeal acknowledged in its decision<br />

that certain groups in Canadian society are<br />

disproportionality incarcerated, notably Indigenous<br />

offenders and Black offenders. The Court<br />

also strongly endorsed the use of IRCAs in sentencing<br />

African Nova Scotian offenders.<br />

In R. v. Morris, 2021 ONCA 680, the issue being<br />

appealed was the sentence imposed for Mr.<br />

Morris, a black man who had been sentenced<br />

to 15 months plus 18 months’ probation for<br />

gun-related charges, including possessing a<br />

loaded prohibited/restricted handgun and carrying<br />

a concealed weapon.<br />

On appeal, the Crown argued that the sentence<br />

was manifestly unfit and proposed a<br />

sentence of 3 years. In particular, the Crown argued<br />

that the trial judge had allowed his consideration<br />

of the impact of overt and institutional<br />

racism on Mr. Morris to overwhelm all other<br />

considerations relevant to fashioning a sentence.<br />

Several intervenors participated in the<br />

appeal and, in general, the intervenors and Mr.<br />

Morris argued that the trial judge had properly<br />

admitted and considered evidence of overt and<br />

institutional systemic anti-Black racism and its<br />

negative impact on Mr. Morris.<br />

The Court of Appeal allowed the appeal and varied<br />

the sentence to 2 years less a day, followed<br />

by probation on the terms imposed by the trial<br />

judge. The sentence was permanently stayed.<br />

In reaching this decision, the unanimous fivejudge<br />

panel of the Court of Appeal acknowledged<br />

that both overt and systemic anti-Black<br />

racism is a reality in Canadian society. The<br />

Court set out general principles to guide sentencing.<br />

The Court was also complimentary of<br />

a report prepared as part of the SPP which described<br />

Mr. Morris’s history and circumstances.<br />

The Court noted that these types of reports can<br />

be of great assistance to a sentencing judge and<br />

stated that they hope that the preparation of<br />

these reports will be adequately funded and<br />

will become a common feature of sentencing in<br />

appropriate cases. 1<br />

Question: Faisal, as a co-founder of the SPP,<br />

and as counsel for Mr. Morris in his appeal,<br />

what are your thoughts about the Court of<br />

Appeal’s decision in Morris?<br />

Answer: It’s a legal breakthrough in the struggle<br />

against racial inequality in sentencing and a<br />

7


ecognition that all members of the justice system<br />

should learn about the detrimental impact<br />

of racism on essential parts of life, coupled with<br />

a clear direction to sentencing judges to obtain<br />

and consider this critical information when assessing<br />

proportionality. It’s a moral and legal<br />

imperative to address racism in a system in<br />

which Black people are over-represented and<br />

mistreated. This will help judges to make better-informed<br />

sentencing decisions.<br />

Question: You represented one of the intervenors,<br />

the Criminal Lawyers’ Association,<br />

in the Anderson appeal. How does the Morris<br />

decision compare to the Anderson decision?<br />

Answer: The decision in Anderson thoroughly<br />

recognizes that the distinct experiences of Black<br />

people must be better reflected in the sentencing<br />

process and determination of outcomes. The<br />

decision is fresh appellate guidance to bring the<br />

law into harmony with a modern understanding<br />

of the impact of racism so that judges can fairly<br />

assess the context in which offences occur and<br />

the degree of responsibility of certain offenders.<br />

The ruling recognizes that a superior understanding<br />

of an individual’s circumstances is necessary<br />

to advance equal treatment.<br />

The Morris decision recognizes that anti-Black<br />

racism must be addressed, that sentencing is<br />

better informed by an understanding of its detrimental<br />

impact, and that Enhanced Pre-Sentence<br />

Reports (or IRCAs, referring to their use<br />

in Anderson) are an important tool to improve<br />

outcomes. The Court of Appeal states that they<br />

can be of great assistance to a sentencing judge<br />

to assess the moral blameworthiness of an individual.<br />

At the trial and the appeal, the Courts<br />

found that this information supported the imposition<br />

of a far lesser sentence than sought<br />

by the prosecution. Even though the Court of<br />

Appeal increased the sentence marginally, they<br />

encouraged judges to give serious consideration<br />

to a conditional sentence to be served in<br />

the community in appropriate cases. The Court<br />

commented that hopefully these types of reports<br />

will be funded and become a common<br />

feature of sentencing.<br />

I hope so too. The SPP team will continue to<br />

do everything we can to prepare thorough and<br />

objective reports that educate. Our team is composed<br />

of clinical social workers, scholars, and<br />

lawyers who have considerable experience. We<br />

are continuing to grow and improve every day<br />

with the support of the community and our partners.<br />

Inadequate pre-sentence reports and a lack<br />

of understanding about the impact of racism is<br />

a source of inequality in criminal law. We must<br />

continue to find solutions to these problems.<br />

Question: In August 2021, the federal government<br />

announced that it would be investing<br />

in measures to address systemic racism<br />

in the criminal justice system, including<br />

providing funding of $6.64 million over five<br />

years, followed by $1.6 million in ongoing<br />

funding, to support the implementation of<br />

IRCAs in all provinces and territories. IRCAs<br />

and the SPP are one part of the important<br />

work that must be done to understand and<br />

address systemic racism issues in the justice<br />

system, particularly in the criminal context.<br />

What do you think are the necessary next<br />

steps? Where do we go from here?<br />

Answer: There is a lot more to learn about racial<br />

injustice. In my view, knowledge about the<br />

sources and impact of inequality improves the<br />

competency of lawyers and judges. It strengthens<br />

the quality of advocacy and better informs<br />

decisions. I will continue to support the progression<br />

of core law school education, research, and<br />

professional development in this area.<br />

Note<br />

1. The Court of Appeal also noted that with more experience in<br />

preparing these reports, and additional guidance from the courts,<br />

the reports will improve, including authors appreciating the need to<br />

present an objective assessment while avoiding the appearance of<br />

taking on the role of advocate for the offender.<br />

8


The Honourable<br />

Rosalie Silberman Abella –<br />

A Life of Firsts<br />

May 12 & 13, <strong>2022</strong><br />

Ottawa<br />

Online and In-person<br />

The Advocates’ Society is proud to be supporting this special event celebrating<br />

former Supreme Court Justice, The Hon. Rosalie Silberman Abella. Our Past<br />

President, Guy J. Pratte, will be acting as Master of Ceremonies for the<br />

Gala Dinner, and TAS will deliver a panel at the conference, entitled Justice<br />

Abella & Women in the Legal Profession. This session will explore Justice<br />

Abella’s trailblazing career and its specific significance for women in the legal<br />

profession and features TAS President Deborah E. Palter, Thornton Grout<br />

Finnigan LLP as Panel Chair and speakers The Hon. Justice Andromache<br />

Karakatsanis, Supreme Court of Canada, Sana Halwani, Lenczner Slaght<br />

LLP, The Hon. Justice Freda Steel, Manitoba Court of Appeal, Rosalie Jukier,<br />

Professor and Associate Dean, Faculty of Law, McGill University, Linda<br />

Rothstein, LSM, Paliare Roland Rosenberg Rothstein LLP, and Shantona<br />

Chaudhury, Pape Chaudhury LLP.<br />

Full conference details are available here.


MENTORING<br />

Word to the Wise:<br />

Mentors at all Stages<br />

Faren Bogach, Construct Legal<br />

The team was gearing up for a long hearing. We had been working for weeks to get everything<br />

ready. I had been on the file from the beginning, and it was going to be the biggest hearing that I<br />

had ever participated in. When the time came to decide who would examine and cross-examine<br />

the witnesses, imposter syndrome kicked into high gear for me. I was about to tell the more senior<br />

lawyer that they should take the lead on all the major witnesses.<br />

I guess my fears were obvious. Someone pulled me aside and said: “You know the file best. You<br />

have worked so hard on it over the years, and you can’t stop now. You need to examine those<br />

witnesses. You can do it.”<br />

I needed to hear that message. To have someone talk over the doubt in my mind and encourage<br />

me to do something that I was ready and able to do. And like me, others need that the vote of<br />

confidence and trust in the tougher times; the push to reach beyond a comfort zone.<br />

Finally, the person who gave me that important message was a more junior lawyer on the file.<br />

There seems to be an expectation that a mentor is someone more senior or more experienced,<br />

but that isn’t always the case. Especially in these strange times when we are more isolated from<br />

others, it is necessary look to everyone around us for advice and encouragement.<br />

11


EVENT REPORT<br />

How to Mentor:<br />

It’s Not About You<br />

Ben Kates, Law Society of Ontario<br />

The opinions expressed are those of the author.<br />

They do not reflect the opinions or views of the Law Society of Ontario.<br />

This fall, the 10+ Standing Committee’s Mentorship Working Group made a candid admission:<br />

we don’t have a clue what it’s like to practise as a junior lawyer during a pandemic and we have<br />

a feeling we are somewhat ill-equipped to mentor them through it. So, we decided to go to the<br />

source for advice.<br />

12


• Build trust: The onus is on the mentor<br />

to create the time and space required to<br />

build a relationship that is authentic and<br />

comfortable. This process can take time.<br />

New lawyers are dealing with the self-consciousness<br />

that comes with stepping into<br />

a new setting. It can be intimidating for a<br />

mentee to ask for a meeting or be transparent<br />

about their needs. Mentors should<br />

be sensitive to the mentee’s concern that<br />

their candour may come back to hurt them<br />

down the line and also be transparent<br />

about any limits to the confidentiality of<br />

their discussions.<br />

On November 9, 2021, I acted as moderator<br />

of our fall event, “It’s Not About You”. The concept<br />

of the panel discussion was to turn the<br />

tables and hear from junior lawyers directly<br />

about what it’s like to practice in this day and<br />

age, and what they look for in a mentor. Our<br />

panel was well-suited to speak to the topic, with<br />

each member having either started or transitioned<br />

their practice during the pandemic.<br />

Khrystina McMillan (Mathers McHenry & Co) lateralled<br />

from one Toronto-based litigation firm<br />

to another; Zachary Al-Khatib (Liberty Law LLC)<br />

left a Toronto firm to practise criminal law in<br />

his home city of Edmonton, and Alana Robert<br />

(McCarthy Tétrault LLP) graduated from articling<br />

student to litigation associate, all while working<br />

from home.<br />

Thanks to Khrystina, Zachary, and Alana, here<br />

are some insights on how to approach mentorship<br />

in the age of remote work:<br />

• Give feedback: More feedback is always<br />

better! Early missteps can calcify into bad<br />

habits if you wait too long to course correct.<br />

Take the time to explain not only what could<br />

have been done differently, but why. A new<br />

lawyer might not appreciate the full context<br />

that dictates how work is done—for example,<br />

things like business considerations. Frequent<br />

feedback also fosters approachability.<br />

In a genuine relationship, mentees will<br />

feel more comfortable encroaching on your<br />

time to hear how they can improve.<br />

• Have empathy: Remote work has meant<br />

that work and home have melded together,<br />

making the line between work and personal<br />

hours indistinguishable. At the same<br />

time, new lawyers are learning to practise<br />

in literal and figurative isolation. Empathetic<br />

check-ins from mentors can help. While<br />

regular online check-ins were a great tool<br />

back in April 2020, Zoom fatigue came hard<br />

and fast. Be creative and think about different<br />

ways to reach out to your colleagues in<br />

a safe way, like meeting for a walk or coffee<br />

on a bench. Try not to think of mentorship<br />

as a task or a chore, but as a part of the job<br />

you can both look forward to.<br />

13


EVENT REPORT<br />

Panel On Women In Middle<br />

Years Of Practice – Some<br />

Advice And Reflections<br />

Ayesha Laldin, Department of Justice<br />

On December 10, 2021, the Women in Law Working Group of the 10+ Standing Committee hosted<br />

“Juggle, Juggle, Toil and Trouble: Inspirations for Keeping Women in Practice”, a roundtable featuring Lianne<br />

B. Furlong (Aviva Trial Lawyers), Dominique T. Hussey (Bennett Jones LLP), and Maureen Killoran,<br />

QC (Osler, Hoskin & Harcourt LLP), and moderated by Ewa Krajewska now of Henein Hutchinson LLP.<br />

It was a lively discussion about the particular challenges many women face in the middle years of<br />

their practices, due to increasing responsibilities and pressures from multiple fronts of their lives.<br />

The speakers shared their stories about the challenges they experienced in mid-years of practice<br />

and strategies on how to deal with the urge to leave, if it strikes. Lianne Furlong spoke<br />

14


about her transition from private practice to<br />

in-house after her maternity leave, that was<br />

prompted by the lack of accommodation at<br />

the firm where she practised. After several<br />

years at Aviva and a second maternity leave,<br />

she has since accepted several promotions.<br />

Now she prioritizes herself. According to Maureen<br />

Killoran, every year can be hard, and it is<br />

about what you can and cannot handle. It is<br />

not unusual to have times when you feel you<br />

are failing everyone all the time, and when that<br />

happens, it requires a readjustment and a focus<br />

away from perfection. Dominique Hussey<br />

spoke about her experiences, shared by many<br />

women at the ten-year mark. This is often a<br />

time when women practising in firms have just<br />

been admitted to the partnership and are also<br />

raising a young family. Upon returning from<br />

maternity leave, she worked hard to build up a<br />

practice group and take leadership roles, while<br />

also building advocacy skills. It can be a challenging<br />

time because one is senior enough to<br />

be making strategic decisions for clients, but<br />

junior enough to still be tasked with ”heavy lifting”<br />

duties like drafting.<br />

Looking back, the panelists had some reflections<br />

on what they know now that they wished<br />

they knew in their middle years of practice.<br />

Lianne Furlong talked about the importance<br />

of women keeping the imposter syndrome in<br />

check by reminding themselves that they are<br />

highly educated, competent and know as much<br />

as the person next to them. Maureen Killoran<br />

wanted women to know that working does not<br />

harm children; it enhances their ability to do<br />

many things. Women should also not look to<br />

their children for approval of their career choices.<br />

It’s your career, not theirs. Dominique Hussey<br />

urged that we should try to shut down the<br />

assumptions that flow from a woman’s reproductive<br />

decisions. For example, the assumption<br />

that all new mothers are busy and unavailable,<br />

or women with no children are available and<br />

can take on added burdens needs to be rejected.<br />

Women should be much clearer about what<br />

they want to take on.<br />

15


Wednesday, April 27, <strong>2022</strong> | 9:00 am - 4:00 pm (ET)<br />

Hybrid Conference: Live Online and In-Person at<br />

The Advocates’ Society’s Education Centre,<br />

250 Yonge Street, Suite 2700, Toronto<br />

This practical program features the latest developments,<br />

strategies and tools for adapting and succeeding in your<br />

evolving litigation practice.<br />

If you are a civil litigator serious about<br />

advocacy, this is one program you<br />

cannot afford to miss! With in-person<br />

and virtual attendance options<br />

available, no matter how you<br />

choose to join us, you will<br />

take part in a dynamic and<br />

engaging day of learning.<br />

REGISTER


EVENT REPORT<br />

Highlights from<br />

Women in Litigation<br />

“Allyship and other themes from the TAS Women in Litigation Symposium”<br />

Compiled by Miranda Spence, Aird & Berlis LLP<br />

The theme of the 2021 Women in Litigation Symposium (Ontario) was, “Allies in an Era of Change.”<br />

As always, the conference featured knowledgeable and engaging speakers addressing timely topics.<br />

Attendees were treated to candid explorations of panellists’ experiences and heard about<br />

ways we can stand up as effective allies.<br />

Allyship through Leading by Example - Cynthia Spry, Babin Bessner Spry<br />

One of my favourite panels at this year’s Symposium was View from the Bench, with Justices Thorburn,<br />

Vella and Waddilove. All were excellent, and my reaction to Justice Waddilove’s story of her<br />

path to the bench was visceral.<br />

Her Honour grew up on a First Nations reserve outside London. It had no dedicated school or<br />

clean water. This remains the case today. The teachers she did have told her that her people were<br />

savages, and better suited to manual labour. When she finally joined a non-reserve school, she<br />

was three academic years behind her non-reserve peers. She sought out supportive teachers, and<br />

17


Cynthia Spry, Babin Bessner Spry<br />

worked very hard to catch up. She succeeded<br />

and thrived. In 2019, she became<br />

a justice of the Ontario Court of Justice.<br />

Her Honour talked about how — not<br />

so long ago — First Nations people could<br />

not vote, could not leave the community<br />

without permission from an Indian Agent,<br />

could not gather in groups of more than<br />

three without being considered an “uprising”,<br />

and could not go to university without<br />

losing their Indian status.<br />

Against this background, Justice Waddilove<br />

said that creativity, change and<br />

courage are required to move forward.<br />

She counseled her listeners to take care<br />

of ourselves, physically and mentally,<br />

and seek out people who support us,<br />

who do work that is important to us,<br />

with whom we have a meeting of the<br />

minds. She encouraged us to lead by<br />

example; there are generations coming<br />

up behind us who are looking to us to<br />

help and support them. We must walk<br />

with pride and strength and confidence<br />

in who we are.<br />

Justice Waddilove’s history, and the<br />

too-recent history of Indigenous people<br />

generally, emphasized anew for me how<br />

important it is that we celebrate and promote<br />

the increasing diversity on the bench<br />

and in other positions of power, and also<br />

recognize how far we have yet to go.<br />

Ayesha Laldin, Department of Justice<br />

Allyship through Diversity on the Bench -<br />

Ayesha Laldin, Department of Justice<br />

This year’s View from the Bench panel featured<br />

a lively discussion on the importance<br />

of diversity in judicial appointments. Judges<br />

bring unique perspectives and life experiences<br />

to their “judicial voice”, Justice Vella<br />

explained. This voice is reflected in the<br />

way they articulate reasons for judgment<br />

and in their approach to identifying issues<br />

and reaching a resolution. The way a judge<br />

18


uns her courtroom has a critical impact on<br />

marginalized parties feeling respected and<br />

heard. It fosters greater confidence in the<br />

justice system. Justice Waddilove echoed<br />

that judicial diversity fosters a commitment<br />

to listen with an open mind, as the criminal<br />

justice system means different things<br />

to many different people. It requires a<br />

commitment to challenge one’s own belief<br />

systems and learn from under-represented<br />

communities. For Justice Vella, this in<br />

practice means encouraging reconciliation<br />

through use of court processes like pre-trial<br />

or case conferences.<br />

Allyship through Mentoring -<br />

Miranda Spence, Aird & Berlis LLP<br />

One of the highlights of this year’s conference<br />

was the mentoring roundtable sessions,<br />

where attendees were able to (virtually)<br />

discuss their thoughts and reactions to<br />

the themes of the day and, along the way,<br />

share their own personal experiences.<br />

We have repeatedly heard that one of<br />

the many losses of the pandemic has been<br />

the informal mentoring that happens simply<br />

from being in proximity to one another.<br />

The roundtable discussions reminded<br />

me that mentoring is about more than an<br />

individuals’ personal growth and imparting<br />

wisdom from one generation to the<br />

next. Sharing stories among peers whose<br />

experiences differ from our own is a form<br />

of allyship and can provide the type of support<br />

that may be lacking in formal policies<br />

or structures. Indeed, in her Advocates’<br />

Journal article, “Litigating through motherhood:<br />

Can we talk?”, Lisa Brownstone<br />

referred to “true, honest conversations<br />

about our experiences” as a “hack” for litigator<br />

moms. One of the best ways to find<br />

common ground across diverse perspectives<br />

is to simply keep talking – and listening<br />

– to one another.<br />

Miranda Spence, Aird & Berlis LLP<br />

19


Building Block Series:<br />

Motions <strong>Advocacy</strong><br />

Live Online<br />

Motions are a key tool in an advocates’ arsenal. They can streamline proceedings or help<br />

settle disputes – but only if you know when and how to deploy them effectively.<br />

After rave reviews, the Building Block Series returns in <strong>2022</strong> with a comprehensive focus on<br />

motions advocacy. Seasoned litigators and judges will take you through an in-depth analysis<br />

of best practices, techniques and strategies for each stage of the motion process. Discover<br />

when and how to prepare for, draft materials and conduct an effective motion, and receive<br />

valuable tips for avoiding common traps.<br />

Block 1:<br />

Theory, Preparation, and Building<br />

the Record (Plenary Session)<br />

April 5, <strong>2022</strong><br />

1:00 pm – 4:00 pm<br />

Block 2:<br />

Effective Oral and Written Motions<br />

<strong>Advocacy</strong> (Plenary Session)<br />

May 3, <strong>2022</strong><br />

1:00 pm – 4:00 pm<br />

Block 3:<br />

Conducting an Effective Motion<br />

(Skills Workshop)<br />

June 21, <strong>2022</strong><br />

1:00 pm – 4:30 pm<br />

To learn more or register click here


ROUNDTABLE<br />

Roundtable: Building Your<br />

Book of Business Using<br />

Alternative Fee Structures<br />

Compiled by Megan Keenberg, C.S.,<br />

Van Kralingen & Keenberg LLP<br />

We all know that building your book of business is the key to success in law, but we don’t get a lot<br />

of practical insight into exactly how to do it. One way to stand out from the crowd and attract business<br />

is to get creative around fee structures for clients. I spoke with three leading practitioners<br />

about how fees might be structured to attract and maintain business:<br />

Erin Durant, Founder of Durant Barristers, a boutique firm based in Ontario specializing in disputes,<br />

investigations, and sports law.<br />

Annie Lespérance, Associate Investment Manager & Legal Counsel, and Head of Latin America<br />

Group at Omni Bridgeway, a global litigation funder.<br />

Justin Nasseri, Co-Founding Partner of Ross Nasseri LLP, a litigation boutique in Toronto specializing<br />

in civil and regulatory disputes.<br />

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How can dispute funding help build your book<br />

of business?<br />

Erin Durant, Durant Barristers<br />

Annie Lespérance, Omni Bridgeway<br />

Annie Lespérance: There are several ways litigators<br />

can leverage dispute funding to help<br />

generate more business and grow their practices.<br />

First, funding allows litigators to take on<br />

a broader range of cases, including meritorious<br />

and potentially lucrative cases from clients<br />

who may not have the capital to afford a firm’s<br />

hourly fees. A law firm may not be prepared to<br />

accept the risk of litigating a matter on a full<br />

contingency-basis to accommodate an impecunious<br />

client. With non-recourse funding, however,<br />

counsel’s fees are paid by the funder, and<br />

the funder is only paid if the claim succeeds.<br />

Second, well-capitalized clients may also<br />

hesitate to launch litigation, even with strong<br />

claims, preferring to use their capital for profit-generating<br />

projects instead of legal fees.<br />

Dispute funders help solve these problems by<br />

taking on the costs of litigation, thus removing<br />

them from the balance sheet and freeing<br />

up capital for the client to pursue other business<br />

priorities.<br />

Additionally, funders can be sources of referrals.<br />

Funders are routinely contacted by clients<br />

with significant claims even before they<br />

have representation. A good relationship with<br />

a funder may translate into a call to introduce<br />

you to a potential client. Finally, funders hire<br />

lawyers, too. As part of the due diligence process<br />

before we invest in a case, we often engage<br />

counsel to provide an independent opinion on<br />

the merits to help guide our funding decisions.<br />

What are some alternatives to the classic full<br />

contingency retainer that can assist law firms<br />

in maintaining revenues while taking on performance-based<br />

mandates?<br />

Justin Nasseri, Ross Nasseri LLP<br />

AL: From a dispute funding perspective, I see<br />

two relevant financial models. A firm may be<br />

prepared to take on a case with a strong chance<br />

of success on full contingency, but the case may<br />

22


equire years of work without payment. A hybrid<br />

scenario can be created whereby a portion<br />

of the case budget is paid at regular intervals<br />

by a funder. The rest can be carried by the firm<br />

on a partial contingency to be paid in the event<br />

of a successful settlement or judgment. In this<br />

way, the firm is able to share in the upside of a<br />

substantial recovery while maintaining a steady<br />

stream of income throughout the lifespan of a<br />

case. The percentage of risk allocation under a<br />

hybrid scenario will be a function of the lawyer’s<br />

and funder’s preference.<br />

Law firms can also bundle multiple contingency-based<br />

claims into a portfolio. By financing<br />

several cases at once, the funder<br />

is able to increase the amount of capital it<br />

can provide. And as the funder recovers its<br />

agreed-upon return, the firm can reap the<br />

rewards from the resolution of the remaining<br />

matters in the portfolio. For the law firm,<br />

a portfolio approach can result in substantial<br />

benefits. Cases that may not have provided a<br />

return on investment for several years now<br />

generate immediate income. Legal finance<br />

may be used to fund operational expenses,<br />

expand a practice, and hire associates.<br />

Some entrepreneurial lawyers have used<br />

this model to help finance start-up and operational<br />

costs for their own boutique firms.<br />

What are the pros and cons of fixed or flat fee<br />

structures?<br />

Erin Durant: I find that there are more pros than<br />

cons. For a new firm like ours, the fixed and flat<br />

fee files have given us some cash-flow predictability.<br />

Individual clients and smaller businesses<br />

also seem to like them as they can appropriately<br />

budget their spend on legal services. The theoretical<br />

con is that you end up spending more<br />

time on the file and haven’t budgeted properly<br />

upfront, but we deal with that by being careful<br />

about the scope description and having an opportunity<br />

to alter the fixed fee if something unexpected<br />

arises on the file.<br />

How do you calculate your flat fees?<br />

Justin Nasseri: My budgeting is based on a<br />

number of factors including data from comparable<br />

cases (what I budgeted and what the actual<br />

fees ended up being) and judgment calls<br />

based on the complexity of the case. I start by<br />

dividing the case into key phases e.g. pleading,<br />

productions, etc. and then subdivide each<br />

phase into steps representing the work involved<br />

in each phase. For each phase and step, I assign<br />

a value. Once the budget is set, I will honour it<br />

and bill in increments; but the budget for future<br />

steps can be revisited and revised if there are<br />

unforeseen complications or issues that arise.<br />

Everything is done incrementally to reflect the<br />

dynamic and somewhat unpredictable nature<br />

of civil and commercial litigation.<br />

Do you include premiums or success fees on<br />

your fixed fee or capped arrangements?<br />

JN: Yes, sometimes I do, particularly in instances<br />

where because of factors such as reasonable<br />

opposing counsel or the existence of settled,<br />

black letter law on the issue in dispute, I think<br />

that an early resolution can be leveraged that<br />

avoids the enormous cost of litigation and fulfills<br />

the client’s goals.<br />

Could you describe a subscription retainer and<br />

tell us what kinds of clients are open to this<br />

kind of billing?<br />

ED: We have some clients who pay us a flat fee<br />

every month. We use an online billing platform<br />

to automatically handle the invoicing and payments.<br />

The subscription service has been adopted<br />

by small businesses and associations that<br />

require regular advice (typically on employment<br />

matters or risk management). The subscription<br />

model has also resulted in disaster avoidance.<br />

The clients are less reluctant to reach out to us<br />

proactively as they know they are paying us<br />

every month to be there for them when they<br />

23


need us. The hope is that we will have far fewer<br />

messes to clean up for clients if they are encouraged<br />

to reach out to us early and often.<br />

Do you find that alternative fee structures result<br />

in greater or lower revenues for your firm<br />

than the billable hour?<br />

JN: I think the answer to this will vary greatly<br />

depending on the nature of the law firm, the<br />

files, and the quality and size of data that they<br />

are relying on. In my experience, in a boutique<br />

setting, it’s shaken out to be about the same;<br />

but that’s because we are very efficient, our<br />

associates are not driven by an ‘hours first’<br />

mentality, and our budgeting is based on data<br />

from a lot of cases where we have billed by the<br />

hour but we feel good about the time spent<br />

and the results achieved.<br />

Are collectability rates different for alternative<br />

fee structures?<br />

JN: Not in my experience. When I am billing by the<br />

hour, I am usually sending accounts every month<br />

or two and if my retainer hasn’t been topped up,<br />

I am asking to be paid promptly. Since most of<br />

the AFAs I have ever used have been fixed-fee/<br />

block billing arrangements that are broken into<br />

phases of the litigation, I am similarly expecting<br />

to get paid at various intervals while the file progresses<br />

and I haven’t had an issue with it.<br />

What about capped fees? Are caps always bad<br />

for law firms?<br />

ED: I think they can be bad for individual lawyers<br />

who are set up in a traditional law firm that<br />

focuses only on hours worked and effective<br />

hourly rates. There is a big risk to the individual<br />

lawyer that their metrics will be thrown off<br />

by capped fees. I think that in a smaller firm focused<br />

on overall revenues and profits, capped<br />

fees can be an important part of the overall<br />

business model and a way that you can effectively<br />

budget upcoming revenues and profits.<br />

What’s the most important thing to understand<br />

about alternative fee structures?<br />

AL: Aligning the interests of everyone concerned<br />

is a critical piece of the puzzle. The law<br />

firm, the funder, and the client should each be<br />

incentivized to achieve the most commercially<br />

sensible success in the case. To align interests<br />

in a funding arrangement, we try to ensure that<br />

everyone has “skin in the game”. The law firm<br />

may be deferring a portion of its fees until resolution,<br />

the funder is hoping to receive a return<br />

on its investment, and the client may be asked<br />

to remain financially engaged, for example, by<br />

paying for a portion of the disbursements. Thus,<br />

everyone has a financial interest in the successful<br />

outcome of the case.<br />

24


THE ADVOCATES’ SOCIETY<br />

ANNUAL GALA<br />

Thursday, April 28, <strong>2022</strong><br />

Guest Arrival: 6:00 pm (MT) | Dinner: 7:00 pm (MT)<br />

Calgary TELUS Convention Centre,<br />

136 8 Ave SE, Calgary, AB<br />

Business Formal | A member-only event


26<br />

An Evening with the Commercial Bench<br />

January 20, <strong>2022</strong> | Live Online


Justice Thomas McEwen<br />

27


Tricks of the Trade - Best Practices for Firm Management in the P<br />

January 28, <strong>2022</strong> | Live Online


andemic Panel<br />

29


30<br />

Tricks of the Trade - Chat with the Chairs: Mentorship and Trainin<br />

January 28, <strong>2022</strong> | Live Online


g for a New Era<br />

31


32<br />

www.advocates.ca

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