An institution within The Advocates' Society and the profession since 1982, The Advocates’ Journal features articles on law and practice, in-depth interviews with leading advocates, thought-provoking commentary, tributes, and much more.

An institution within The Advocates' Society and the profession since 1982, The Advocates’ Journal features articles on law and practice, in-depth interviews with leading advocates, thought-provoking commentary, tributes, and much more.


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Vol. 41, No. 3. | WINTER <strong>2022</strong>

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<strong>The</strong> <strong>Advocates’</strong> <strong>Journal</strong><br />

Vol. 41, No. 3; <strong>Winter</strong> <strong>2022</strong><br />

35<br />

From the Editor<br />

3 24<br />

Three features of Canadian law<br />

and three resulting focuses<br />

of Canadian advocacy<br />

Geoff R. Hall<br />

Annals of Law: R v Marshall –<br />

<strong>The</strong> making of the<br />

“moderate livelihood” fishery<br />

Alisa Lombard and Andrew Lokan<br />

6 27<br />

Look back: Work hard<br />

and don’t grumble<br />

<strong>The</strong> Honourable Ian Binnie, CC, KC<br />

Clay Ruby:<br />

Activist, mentor, and friend<br />

Gerald Chan and Nader R. Hasan<br />

12 34<br />

Why it’s hard to become<br />

a better advocate<br />

Paul Fruitman<br />

Politigation games:<br />

An analysis of Donald Trump’s legal<br />

siege on the 2020 election<br />

Awanish Sinha, Brittany Cerqua, and Jonathan Nehmetallah<br />

14 39<br />

An essential resource<br />

for Canadian jurists<br />

Shaun E. Finn<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 3



<strong>Winter</strong> <strong>2022</strong>; Vol. 41, No. 3.<br />

Editor<br />

Linda Rothstein, LSM | Linda.Rothstein@paliareroland.com<br />

Managing Editor<br />

Andrea Gonsalves | andreag@stockwoods.ca<br />

<strong>The</strong> <strong>Advocates’</strong> <strong>Journal</strong>: cite as Adv J<br />

Production Editor<br />

Sonia Holiad | sholiad@rogers.com<br />

Editorial Correspondence<br />

Linda Rothstein, LSM, Paliare Roland Barristers<br />

155 Wellington St West 35th Floor<br />

Toronto, ON, M5V 3H1<br />

Linda.Rothstein@paliareroland.com | 416-646-4327<br />

Advertising and Subscription Correspondence<br />

Robin Black<br />

robin@advocates.ca | 1-888-597-0243 x.108<br />

Creative Director<br />

Jessica Lim | jessical@advocates.ca<br />

Kim Burton | jkburton64@gmail.com<br />

Cover | Charlotte County Court House National Historic<br />

Site of Canada in Saint Andrews, NB<br />

Ryan Little<br />

1965-66 J. J. Robinette, QC, ASM<br />

1966-67 <strong>The</strong> Hon. R. F. Reid<br />

1967-68 <strong>The</strong> Hon. Justice R. S. Montgomery<br />

1968-69 <strong>The</strong> Hon. Justice P. Cory<br />

1969-71 W. B. Williston, QC, ASM<br />

1971-72 <strong>The</strong> Hon. Justice W. D. Griffiths<br />

1972-73 C. F. McKeon, QC, ASM<br />

1973-74 A. E. M. Maloney, QC, ASM<br />

1974-76 P. B. C. Pepper, QC, LSM<br />

1976-77 H. G. Chappell, QC<br />

1977-78 W. S. Wigle, QC<br />

1978-79 <strong>The</strong> Hon. Justice J. J. Fitzpatrick<br />

1979-80 E. A. Cherniak, KC, LSM, ASM<br />

1980-81 <strong>The</strong> Hon. Justice J. W. O’Brien<br />

1981-82 T. H. Rachlin, QC<br />

1982-83 K. E. Howie, QC, ASM<br />

1983-84 J. P. Nelligan, QC, LSM, ASM<br />

1984-85 Peter Webb, KC, LSM<br />

1985-86 Bert Raphael, QC, LSM<br />

1986-87 A. D. Houston, KC<br />

1987-88 <strong>The</strong> Hon. Justice J. R. R. Jennings<br />

1988-89 R. A. Stradiotto, KC, LSM<br />

1989-90 <strong>The</strong> Hon. Justice Peter G. Jarvis<br />

1990-91 John F. Evans, KC, LSM<br />

1991-92 Terrence J. O’Sullivan, LSM<br />

1992-93 <strong>The</strong> Hon. Justice Eleanore A. Cronk<br />

1993-94 Roger Oatley<br />

1994-95 <strong>The</strong> Hon. Justice Mary Anne Sanderson<br />


President: Peter W. Kryworuk<br />

Vice-president: Dominique T. Hussey<br />

Treasurer: Darryl A. Cruz<br />

Secretary: Sheree Conlon, KC<br />

Executive Director: Vicki White<br />


1995-96 C. Clifford Lax, KC, LSM<br />

1996-97 Margaret A. Ross, LSM<br />

1997-98 <strong>The</strong> Hon. Justice Harriet Sachs<br />

1998-99 Michael F. Head<br />

1999-00 James A. Hodgson<br />

2000-01 Ronald G. Slaght, KC, LSM, ASM<br />

2001-02 J. Bruce Carr-Harris, LSM<br />

2002-03 Philippa G. Samworth, ASM<br />

2003-04 Jeffrey S. Leon, LSM<br />

2004-05 <strong>The</strong> Hon. Justice Benjamin Zarnett<br />

2005-06 Linda Rothstein, LSM<br />

2006-07 Michael E. Barrack<br />

2007-08 Michael Eizenga, LSM<br />

2008-09 Peter J. E. Cronyn<br />

2009-10 Sandra A. Forbes<br />

2010-11 Marie T. Henein, LSM<br />

2011-12 Mark D. Lerner<br />

2012-13 Peter H. Griffin<br />

2013-14 Alan H. Mark<br />

2014-15 Peter J. Lukasiewicz<br />

2015-16 Martha A. McCarthy, LSM<br />

2016-17 Bradley E. Berg<br />

2017-18 Sonia Bjorkquist<br />

2018-19 Brian J. Gover, LSM<br />

2019-20 Scott Maidment<br />

2020-21 Guy J. Pratte, AdE, LSM<br />

2021-22 Deborah E. Palter<br />

Paintings, Illustrations, and Photography<br />

Delaney Cox: pp. 24, 27, 34, 37<br />

Spencer Flock: p. 7<br />

Scott Shields: pp. 12, 14<br />

<strong>The</strong> opinions expressed by individual authors are their own<br />

and do not necessarily reflect the policies of <strong>The</strong> <strong>Advocates’</strong><br />

Society.<br />

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Caroline Abela<br />

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Frank Cesario<br />

David D. Conklin<br />

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Tamara Prince<br />


1982-90 Moishe Reiter, QC<br />

1991-08 David Stockwood, QC, LSM<br />

2008-20 Stephen Grant, LSM, ASM<br />

Luisa Ritacca<br />

Michael G. Robb<br />

Scott Robertson<br />

Sylvie Rodrigue, AdE<br />

Stephen G. Ross<br />

Jeff Saikaley<br />

John Sorensen<br />

Ann L. Stoner<br />

4 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL


On friendship<br />

“And do as adversaries do in law, strive mightily,<br />

but eat and drink as friends.”<br />

~ William Shakespeare, <strong>The</strong> Taming of the Shrew<br />

Linda Rothstein, LSM<br />

<strong>The</strong> phrase “my learned friend,” or even<br />

the more neutral “my friend,” used to<br />

grate on me. This in-court reference to<br />

opposing counsel was de rigueur when I grew<br />

up in the profession, but it nevertheless felt antiquated<br />

and contrived – a marker of the faux<br />

British men’s club atmosphere that pervaded<br />

courtrooms back then. Even worse, not infrequently<br />

I heard the words used with a hint of<br />

sarcasm, occasionally contempt. <strong>The</strong>y seemed<br />

anything but a reflection of genuine respect, let<br />

alone friendship.<br />

Besides, when I look back on my first few<br />

years of practice, the idea that friendships<br />

could grow, even flourish, between hardbitten<br />

counsel seemed no more believable than<br />

the predictable plotline of an episode of Ally<br />

McBeal and no closer to my world than the<br />

show’s portrayals of law firm washroom sex.<br />

Of course, I was wrong. Eventually and<br />

inevitably, like most advocates of my vintage,<br />

I made many friends inside and outside the<br />

courtroom; some of them I first met as the<br />

counsel who crushed me in a case. Indeed,<br />

I’m convinced that a cultural anthropologist<br />

studying the lives of happy enough litigators<br />

would conclude that most view their friendships<br />

with other counsel as essential to their<br />

professional satisfaction. Friendships within<br />

law firms are important, too, but they are easier<br />

to understand – the constant if not daily<br />

proximity, the shared goals and burdens. But<br />

the idea that opposing counsel in a long, hardfought<br />

case can become a trusted friend is less<br />

intuitive. Older counsel treat it as a given but<br />

rarely talk about it; some younger counsel in<br />

the age of Zoom motions and trials, I am told,<br />

need it explained. So I will try.<br />

<strong>The</strong> famous friendships between the world’s<br />

best rival athletes offer an analogy. Roger<br />

Federer and Rafael Nadal; Chris Evert and<br />

Martina Navratilova. No one doubts how intensely<br />

they wanted to beat each other or how<br />

devastated they were by any defeat. But the<br />

shared intensity of the effort has bred respect<br />

and deep affection, not antipathy. Check out<br />

the post-game videos of Federer and Nadal’s<br />

last match together at the Laver Cup: Nadal is<br />

as bereft as the retiring Federer.<br />

This analogy has obvious limitations. None<br />

of my online research revealed how common<br />

these famous rival friendships are in the tennis<br />

world, let alone in the wider world of competitive<br />

sports. And no matter how passionate<br />

one is about a particular athlete or a particular<br />

team or sport, there is no escaping Boris Becker’s<br />

deadpan reality check after a Wimbledon upset:<br />

“I haven’t lost a war. No one got killed. I just lost<br />

a tennis match.”<br />

Litigation is not a war, either, but the high<br />

stakes for our clients can weigh heavily on the<br />

most seasoned litigator – the threats to job or<br />

profession or family, the economic hardship,<br />

the loss of liberty for clients charged with criminal<br />

offences. Watching our clients and witnesses<br />

being effectively cross-examined is not for the<br />

faint of heart, but it is still an opportunity to<br />

admire the talent and conviction of opposing<br />

counsel. And although it may take weeks to<br />

stop the rounds of self-flagellation and escape<br />

the blue funk after losing an important case, a<br />

friendly invitation from opposing counsel is<br />

rarely unwelcome. You’ll find a bond of shared<br />

vulnerability, provided there is no gloating.<br />

Amanda Mull, who writes for <strong>The</strong> Atlantic,<br />

has observed that we don’t have enough English<br />

words for all the categories of friendship<br />

and that a communications professor has explained<br />

that “friend is a very promiscuous word”<br />

(“<strong>The</strong> Pandemic Has Erased Entire Categories of<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 5

Friendship,” January 27, 2021). That works for me.<br />

<strong>The</strong> good news is that friends made at the bar are<br />

lower maintenance than most others: they understand<br />

when you don’t reach out for months at a<br />

time and don’t expect you to invite them to your<br />

house for dinner. <strong>The</strong>y thrive on last-minute<br />

phone calls or spontaneous suggestions for a<br />

catch-up. You don’t have to know their taste in<br />

music or food, or even the names of their kids.<br />

<strong>The</strong> conversation can centre on venting, especially<br />

about the latest bruising by a judge. <strong>The</strong> reassurance<br />

on offer is better than a bottle of scotch<br />

or even the most talented psychotherapist.<br />

One consequence of the pandemic is that human<br />

connections have suffered. Peter Kryworuk,<br />

president of <strong>The</strong> Advocate’s Society, worries<br />

because mentoring is also a clear casualty, and<br />

he has championed its importance in return to<br />

workplace strategies for law firms. If I’m right,<br />

friendships in our profession will not dissipate<br />

as quickly as mentor-mentee relationships. But<br />

lest the value of collegiality at the bar become<br />

one more fading platitude, let’s call, email, or<br />

text our learned friends and ask them what’s up.<br />

****<br />

In this issue, we include an Annals of Law feature<br />

about the historic victory for Mi’kmaw treaty<br />

rights in R v Marshall. We also mourn the sad and<br />

sudden passing of Clay Ruby in a profile by two of<br />

his mentees and partners. We include an analysis<br />

of Donald J. Trump’s legal strategy to contest the<br />

results of the 2020 election, a deconstruction of<br />

the endless challenges in mastering advocacy, a<br />

meta-theory about Canadian law and advocacy,<br />

and a review of the new, seminal book on class<br />

actions. Time to take a break, put your feet up,<br />

and embrace some new ideas.<br />

GO GREEN!<br />

Did you know TAS Members<br />

have the option of digital-only<br />

delivery of <strong>The</strong> <strong>Advocates’</strong><br />

<strong>Journal</strong>? Simply log on to your<br />

TAS Member profile at<br />

www.advocates.ca and opt-in<br />

for the Digital <strong>Journal</strong>.<br />

Need help? Email us at<br />

membership@advocates.ca<br />

and we are happy to assist.<br />

#GoGreen<br />



• Content: We value articles about advocacy and advocates<br />

that are topical and crackle with currency.<br />

• File format: We accept submissions only in Microsoft<br />

Word format.<br />

• Length: Although we appreciate concision, there is no<br />

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majority of our articles are between 1,500 and 3,500<br />

words (excluding notes), but we will consider articles<br />

outside this range.<br />

• Notes: We prefer articles without notes, but whether to<br />

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quotations should be referenced, however, whether<br />

in the body of the article or in notes.) If you include<br />

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footnotes. When reviewing notes after completing the<br />

final draft, double-check that cross-references (“ibid.,”<br />

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• Citation format: We do not insist on a particular citation<br />

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Thank you,<br />

Linda Rothstein, Editor<br />

Andrea Gonsalves, Managing Editor<br />

Sonia Holiad, Production Editor<br />

6 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL


<strong>The</strong> Honourable Ian Binnie, CC, KC<br />

One of Canada’s most respected judges and<br />

advocates, the Honourable Ian Binnie served<br />

for nearly 14 years as a justice of the Supreme<br />

Court of Canada.<br />

Nader R. Hasan<br />

Nader is a partner at Stockwoods LLP, where<br />

he practises criminal, constitutional, and<br />

regulatory law. By day, he is a trial and appellate<br />

lawyer. By night, he is a glorified chauffeur for<br />

an 8-year-old and a 5-year-old.<br />

Brittany Cerqua<br />

Brittany Cerqua is an associate in the litigation<br />

group at McCarthy Tétrault LLP in Toronto.<br />

She maintains a broad litigation practice<br />

with an emphasis on corporate commercial<br />

litigation, securities litigation, banking litigation,<br />

and professional liability.<br />

Andrew Lokan<br />

Andrew Lokan is a partner at Paliare Roland<br />

Rosenberg Rothstein LLP, where he specializes<br />

in constitutional litigation including Indigenous<br />

rights, appellate advocacy, public law, and<br />

complex commercial litigation. He is co-author<br />

of Constitutional Litigation in Canada and teaches<br />

this subject at Osgoode Hall Law School.<br />

Gerald Chan<br />

Gerald Chan is a partner at Stockwoods LLP<br />

in Toronto, practising criminal, constitutional,<br />

and administrative law. Once in a while, he still<br />

daydreams about the rap career that never was.<br />

Alisa Lombard<br />

Alisa Lombard is a multilingual, bijural lawyer<br />

specializing in Indigenous-Crown relations in<br />

national and international forums. A dedicated<br />

citizen of the Mi’kmaq Nation (Elsipogtog First<br />

Nation), she has appeared before all levels<br />

of courts, including the Supreme Court of<br />

Canada, and practises nationally in service of<br />

Indigenous collectives and individuals.<br />

Shaun E. Finn<br />

Shaun E. Finn is a litigation partner at BCF<br />

LLP and co-leader of the Class Action Defence<br />

Group. He represents business and institutional<br />

clients, lectures at the McGill Faculty of Law,<br />

and enjoys long walks on the beach.<br />

Jonathan Nehmetallah<br />

Jonathan Nehmetallah is an associate at<br />

McCarthy Tétrault LLP in Toronto, practising<br />

in litigation with a focus on securities matters<br />

and municipal law. He isn’t clever enough for<br />

a flash of wit in such a short biography.<br />

Paul Fruitman<br />

Paul Fruitman is a partner at Lax O’Sullivan<br />

Lisus Gottlieb LLP. He’s got to admit it’s<br />

getting better, a little better, all the time. At<br />

least he thinks it is.<br />

Geoff R. Hall<br />

Geoff R. Hall is a litigation partner at<br />

McCarthy Tétrault LLP, where he handles<br />

a wide variety of commercial matters at all<br />

three levels of court, an experience that has<br />

taught him the importance of the features<br />

and focuses discussed in his article.<br />

Awanish Sinha<br />

Awanish Sinha is a litigation partner at<br />

McCarthy Tétrault LLP and co-lead of the public<br />

sector group. Awi represents political actors and<br />

corporations in ethics, lobbying, and elections<br />

law matters. He also advises clients on legal<br />

issues at the intersection of business, politics,<br />

and public policy.<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 7


Annals of Law: R v Marshall -<br />

<strong>The</strong> making of the “moderate livelihood” fishery<br />

Alisa Lombard and Andrew Lokan<br />

When the late Donald Marshall, Jr., was arrested in 1993<br />

for selling 463 pounds of eels caught in Epegoitnag<br />

(Pomquet Harbour, Antigonish County, Nova Scotia),<br />

he was already a household name. He had spent 12 years in prison<br />

for a murder he did not commit – a travesty of justice that<br />

captured the headlines when a Royal Commission of Inquiry<br />

found that systemic failures and ingrained racism had led to his<br />

wrongful conviction. 1 But the challenge to the legal system from<br />

his arrest for catching and selling eels was equally profound.<br />

His defence was simple – he had a Treaty right to catch and<br />

sell fish and wildlife, under the “truckhouse” clause of a 1760<br />

“Peace and Friendship Treaty” between the British Crown and<br />

the Mi’kmaw of what is now Atlantic Canada.<br />

His defence did not leap from the page, on the text of the<br />

Treaty. <strong>The</strong> truckhouse clause reads:<br />

And I do further engage that [the Mi’kmaw] will not traffick,<br />

barter or Exchange any Commodities in any manner but<br />

with such persons or managers of such Truck houses as<br />

shall be appointed or Established by His Majesty’s Governor<br />

at Lunenbourg or Elsewhere in Nova Scotia or Accadia.<br />

Nevertheless, in R. v Marshall, 2 a majority of the Supreme<br />

Court agreed with his defence, finding that the terms of the<br />

Treaty gave the Mi’kmaw the right to earn a “moderate livelihood”<br />

through harvesting and selling fish and wildlife.<br />

How the Court got there is a story of stellar advocacy, a longterm<br />

commitment by the Mi’kmaw to breathe life into a Treaty<br />

that many considered to be moribund, and a Court that was<br />

receptive to reframing the paradigm of Treaty interpretation.<br />

<strong>The</strong> ruling touched off a political firestorm. Mi’kmaw fishers<br />

began to fish and sell other species, as foreseen by the<br />

ruling. Non-Indigenous commercial fishers, fearful of losing<br />

an already dwindling resource (and in some cases exhibiting<br />

racist attitudes like those noted in the Marshall Inquiry), reacted<br />

with fury. Violence broke out between non-Indigenous<br />

and Mi’kmaw lobster fishers. Mainstream media denounced<br />

the ruling. Politicians did what politicians do (at least in the<br />

immediate aftermath), which is to say, committed to as little as<br />

possible. <strong>The</strong> West Nova Fishermen’s Coalition, an intervener<br />

in the original appeal (now known as “Marshall I”), applied for<br />

a rehearing “to have the Court address the regulatory authority”<br />

of the federal government. 3 <strong>The</strong> Court dismissed the motion<br />

(in a ruling known as Marshall II), but took the opportunity<br />

to stress that both the federal and provincial governments<br />

retained the authority to regulate the right for conservation<br />

purposes, as long as they met the applicable test for justifying<br />

the infringement of a Treaty right. 4<br />

Now, 23 years later, Marshall is back in the news. While the<br />

federal government undertook various initiatives to implement<br />

Marshall, many First Nations have been frustrated by<br />

the slow pace of negotiated settlements and what they see as<br />

the paternalistic attitudes of the Department of Fisheries and<br />

Oceans. No subsequent Supreme Court case has defined the<br />

contours of “moderate livelihood,” and there are conflicting<br />

claims over what that means. Some First Nations have reached<br />

moderate livelihood fisheries agreements with the government.<br />

On September 17, 2020 (21 years to the day after Marshall<br />

I), the Si’pekne’katik launched their own moderate livelihood<br />

fishery, asserting the inherent self-government right to<br />

self-regulate their own harvesting activities according to the<br />

concept of “Netukulimk,” an L’nu (Mi’kmaw) word meaning<br />

“we use our Indigenous ecological knowledge along with ceremony<br />

as a means of negotiating our survival in Mi’kma’ki.” 5<br />

Other First Nations followed suit. Again, there have been incidents<br />

of sabotage of Mi’kmaw fishing equipment, which many<br />

attribute to non-Indigenous fishers. 6<br />

So how did we get here, and what does this tell us about<br />

what the future holds?<br />

How the case unfolded<br />

<strong>The</strong> Marshall case starts with commitment from the community.<br />

In the early 1990s, the Aboriginal Title Project, located at<br />

the Treaty and Aboriginal Rights Research Centre at Shubenacadie<br />

(Si’pekne’katik) hired a freshly minted PhD named<br />

William Wicken, a historian with a focus on Indigenous issues.<br />

Dr. Wicken recounts that at the time, few historians had paid<br />

much attention to the Peace and Friendship Treaties as a source<br />

of rights. But the elder Chiefs held steadfast: “We have to defend<br />

the Treaties.” Two Mi’kmaw organizations – the Union of<br />

Nova Scotia Indians (UNSI) and the Confederacy of Mainland<br />

Micmacs (CMM) – began to look for a test case to establish a<br />

Treaty right to fish for trade. Wicken and others began to research<br />

the historical basis for such a right. Dr. Wicken was part<br />

of a newer approach to history, emphasizing social context. He<br />

was less focused on the words of the Treaties than on the context<br />

in which they arose – the military rivalries of the 18th century,<br />

the economy and way of life of Mi’kmaw communities,<br />

and what each side might expect or assume when they came<br />

together in Treaty negotiations. Dr. Wicken became convinced<br />

8 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

that both sides would have assumed that the Mi’kmaw had a<br />

general right to hunt and fish, and to trade their bounty for<br />

goods at the “Truck house.” 7<br />

Establishing such a right would not be an easy matter. In<br />

R v Denny, 8 the Nova Scotia Court of Appeal accepted that the<br />

Mi’kmaw had an Aboriginal right to fish for food, protected<br />

by section 35 of the Constitution Act, 1982, but sidestepped the<br />

question of whether they had a Treaty right. <strong>The</strong> lawyer for<br />

the accused in Denny was Bruce Wildsmith, a law professor<br />

at Dalhousie University. Like the elder Chiefs, he believed in<br />

the Treaties and their untapped potential to support a broader<br />

right to harvest fish and wildlife for trade.<br />

When Marshall was charged, the UNSI and CMM agreed to<br />

support his defence. <strong>The</strong> UNSI retained Wildsmith, and the<br />

CMM was represented by Eric Zscheile. Together they planned<br />

a defence that would be different from any previous efforts in<br />

Atlantic Canada. For the first time, they used professional historians<br />

versed in Western historical interpretation – Dr. Wicken,<br />

and Professor John Reid of St. Mary’s University, a specialist<br />

in European and Indigenous peoples inhabiting the Maritime<br />

region prior to 1710. <strong>The</strong>y faced off against Professor Stephen<br />

Patterson of the University of New Brunswick, a specialist in<br />

colonial New England history who had developed an interest<br />

in Mi’kmaw Treaties. This was the first of several trials in<br />

which Dr. Wicken and Dr. Patterson were on opposite sides of<br />

the courtroom. 9 In those early days, Dr. Wicken recalls, procedures<br />

were not as formalized as they have since become.<br />

<strong>The</strong> defence experts did not prepare expert reports but led the<br />

court through all the key historical documents in their testimony-in-chief.<br />

Reid testified for seven days, Wicken for 14 and<br />

a half, and Patterson for 11. <strong>The</strong> experts were the only witnesses<br />

to testify.<br />

<strong>The</strong> Crown prevailed at trial and in the Court of Appeal. <strong>The</strong><br />

trial judge ultimately accepted Dr. Patterson’s more colonial<br />

approach to the Treaty. Truckhouses, Dr. Patterson said, had<br />

been established pursuant to the Treaty in the 1760s, but had<br />

disappeared within a few years. For Dr. Patterson, the emphasis<br />

of the Treaty was on the submission by the Mi’kmaw<br />

to British authorities, who had just emerged victorious from<br />

their campaign against the French, with whom the Mi’kmaw<br />

had been allied. (Louisbourg had fallen in 1758, and Quebec<br />

the following year.) <strong>The</strong> significance of the truckhouse clause<br />

was that the Mi’kmaw agreed to an exclusive trading arrangement<br />

with the British authorities; truckhouses were to be<br />

established to facilitate this. Dr. Patterson’s historical interpretation<br />

was that the Mi’kmaw had asked only to be treated like<br />

other British subjects. Once the truckhouses disappeared, the<br />

truckhouse clause had no further significance. <strong>The</strong> trial judge<br />

found that the Mi’kmaw had a “right to bring” the products of<br />

their harvesting activities to the truckhouse to trade, but that<br />

right was subject to regulation, and was only on the same basis<br />

as other British subjects. He agreed that once the truckhouses<br />

were abandoned the right became moot. <strong>The</strong> Court of Appeal<br />

affirmed the trial judge’s ruling. <strong>The</strong> approach taken in the<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 9

lower courts has since been widely disavowed<br />

as a textual “permafrost right” 10<br />

interpretative framework.<br />

<strong>The</strong> Supreme Court of Canada was<br />

a very different court from the lower<br />

courts. In the 1990s, the Court had been<br />

engaged in an attempt to flesh out the<br />

framework of Aboriginal and Treaty<br />

rights, which had acquired constitutional<br />

protection in 1982 with the enactment of<br />

section 35. Two justices wrote reasons:<br />

Justice Binnie (for the majority), and Justice<br />

McLachlin (in dissent). Justice Binnie<br />

had just joined the Court in 1998. Prior<br />

to that, he had served from 1982 to 1986<br />

as federal associate deputy minister of<br />

justice, where he had special responsibilities<br />

for Aboriginal matters. 11 He would<br />

have seen three constitutional conferences,<br />

12 held in 1983, 1985, and 1987, play<br />

out. <strong>The</strong>se conferences were intended<br />

by some to identify and define section<br />

35 rights, but they did not accomplish<br />

that clairvoyant task. <strong>The</strong> task of giving<br />

content to section 35 would be up to the<br />

courts. It is evident from Justice Binnie’s<br />

various decisions that he had a deep and<br />

abiding sense that Canada needed to do<br />

better for Indigenous peoples. Justice<br />

McLachlin, too, was deeply engaged in<br />

the Court’s jurisprudence on section 35.<br />

In her 1996 dissent in R v Van Der Peet,<br />

she would have recognized an Aboriginal<br />

right of the Sto:lo to catch and sell<br />

fish for sustenance purposes (which she<br />

equated with earning a “moderate livelihood”<br />

in the modern context, borrowing<br />

a phrase originally coined by Lambert JA,<br />

dissenting in the British Columbia Court<br />

of Appeal). 13 Subsequently, as Chief<br />

Justice, she wrote for the Court in Tsilhquot’in<br />

Nation v British Columbia, 14 the first<br />

case to make a declaration of Aboriginal<br />

title in Canada. Speaking extra-judicially,<br />

she endorsed the claim that Canada had<br />

attempted to commit “cultural genocide”<br />

against Aboriginal peoples, and that this<br />

was the worst stain on Canada’s human<br />

rights record. 15 But as a jurist, she<br />

was perhaps more of an incrementalist,<br />

concerned with building consensus and<br />

respecting precedent. Moreover, she had<br />

great respect for trial judges and was<br />

generally loathe to interfere with their<br />

factual findings.<br />

For the majority, Justice Binnie held<br />

that the text of the Treaty did not comprise<br />

the entirety of the agreement between<br />

the signatories. <strong>The</strong> Treaty was to<br />

be interpreted generously, in accordance<br />

with the Court’s prior cases (although<br />

this should not, in a phrase which has<br />

become beloved of government lawyers,<br />

“be confused with a vague sense of afterthe-fact<br />

largesse”). 16 Further, both the<br />

majority and dissent held that the courts<br />

can look to extrinsic evidence to interpret<br />

the Treaty even absent ambiguity,<br />

contrary to the Court of Appeal’s view. 17<br />

<strong>The</strong> extrinsic evidence recorded that the<br />

Aboriginal leaders had requested truckhouses<br />

“for the furnishing them with necessaries,<br />

in Exchange for their Peltry.” 18<br />

<strong>The</strong> majority found that the truckhouse<br />

clause carried an implied right to harvest<br />

fish and wildlife and sell the catch<br />

for “necessaries,” which Justice Binnie<br />

equated with securing a “moderate livelihood”<br />

in the modern context. 19 As for<br />

the truckhouse clause, it would not be<br />

consistent with the honour and integrity<br />

of the Crown to interpret the Indigenous<br />

parties’ positive trade demand<br />

as leading only to a negative covenant<br />

not to trade with anyone other than the<br />

British. 20 <strong>The</strong> Crown did not advance a<br />

justification argument for breach of the<br />

Treaty, so Marshall was acquitted on the<br />

basis that the regulations under which<br />

he was charged failed to accommodate<br />

his Treaty right.<br />

Wildsmith’s cross-examination of Dr.<br />

Patterson figured predominantly in the<br />

majority’s decision. As quoted by Justice<br />

Binnie:<br />

Q. [I]n this time period, 1760 and<br />

’61, fish would be amongst the<br />

items [the Mi’kmaw] would have<br />

to trade. And they would have the<br />

right under this treaty to bring fish<br />

and feathers and furs into a truckhouse<br />

in exchange for commodities<br />

that were available.<br />

A. Well, it’s not mentioned but it’s<br />

not excluded. So I think it’s fair to<br />

assume that it was permissible.<br />

Q. Okay. It’s fair to say that it’s<br />

an assumption on which the trade<br />

truckhouse clause is based.<br />

A. That the truckhouse clause is<br />

based on the assumption that natives<br />

will have a variety of things to<br />

trade, some of which are mentioned<br />

and some not. Yes, I think that’s fair.<br />

Q. Yes. And wouldn’t be out of line<br />

to call that a right to fish and a right<br />

to bring the fish or furs or feathers<br />

or fowl or venison or whatever they<br />

might have, into the truckhouses<br />

to trade.<br />

A. Ah, a right. I think the implication<br />

here is that there is a right<br />

to trade under a certain form of<br />

regulation –<br />

Q. Yes.<br />

A. – that’s laid down. And if you’re<br />

saying right to fish, I’ve assumed<br />

that in recognizing the Micmac by<br />

treaty, the British were recognizing<br />

them as the people they were. <strong>The</strong>y<br />

understood how they lived and that<br />

that meant that those people had<br />

a right to live in Nova Scotia in their<br />

traditional ways. And, to me, that implies<br />

that the British were accepting<br />

that the Micmac would continue to<br />

be a hunting and gathering people,<br />

that they would fish, that they<br />

would hunt to support themselves.<br />

I don’t see any problem with that.<br />

It seems to me that that’s implicit in<br />

the thing …<br />

More than this, the very fact that<br />

there is a truckhouse and that the<br />

truckhouse does list some of the<br />

things that natives are expected to<br />

trade, implies that the British are<br />

condoning or recognizing that this<br />

is the way that natives live. <strong>The</strong>y do<br />

live by hunting and, therefore, this<br />

is the produce of their hunting. <strong>The</strong>y<br />

have the right to trade it. 21<br />

Dr. Wicken recalls that on the day of this<br />

cross-examination, Wildsmith came back<br />

into the room they were using for preparation,<br />

shortly after this exchange. He<br />

was jubilant. “We’ve just won the case,”<br />

he said, or words to that effect. One might<br />

quibble that it took three court levels to<br />

get there, but he was proved right. In his<br />

book, Dr. Wicken notes that Dr. Patterson<br />

was on the stand for 10 days in chief, but<br />

Wildsmith cross-examined him for only<br />

one. 22 Wildsmith clearly understood the<br />

golden rule of cross-examination: get<br />

what you need, and then stop.<br />

Wildsmith was also the architect of<br />

the strategy of putting forward a limited<br />

right to trade for “necessaries,” not<br />

a full-blown right to commercial fishing.<br />

<strong>The</strong> word “necessaries” was not used in<br />

the Treaty, and Dr. Wicken and the other<br />

historians had not given it much attention.<br />

Dr. Wicken felt that his research<br />

supported an unrestricted commercial<br />

right to fish. 23 But Wildsmith and the<br />

legal team were looking for an argument<br />

10 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

that would tempt the Court.<br />

As it was, the result was far from<br />

certain. Justice McLachlin’s dissent accepted<br />

the trial judge’s conclusions on<br />

the limited nature of the truckhouse<br />

clause. She would have found that the<br />

truckhouse clause was a limited promise,<br />

whereby the Mi’kmaw promised to<br />

trade exclusively with the British, who<br />

promised truckhouses for them to do so,<br />

and that the “right to bring” was limited<br />

to this context. Within a few years there<br />

were no truckhouses, and no restrictions<br />

on Mi’kmaw trading with others. 24 One<br />

might speculate from the way it is written<br />

that her dissent started out as a majority<br />

judgment – it is rare, for example, for a<br />

dissent drafted after a majority judgment<br />

to recite the arguments and results in<br />

the courts below. 25 Dr. Patterson, for his<br />

part, complained to the media after the<br />

judgment was released that the Supreme<br />

Court had misunderstood his evidence<br />

– that he only meant the Mi’kmaw had<br />

a right to fish subject to regulation, the<br />

same as everyone else. 26 His complaint<br />

was a factor in the backlash to the case.<br />

<strong>The</strong> legacy of Marshall<br />

Stepping back, we consider what the majority<br />

may have been trying to achieve,<br />

and whether they were successful.<br />

In the 1990s, the Supreme Court issued<br />

a series of ground-breaking decisions<br />

pertaining to Indigenous Treaty and harvesting<br />

rights, of which Marshall is one.<br />

<strong>The</strong>se cases nudged the yardsticks toward<br />

greater recognition of Indigenous<br />

rights but left considerable uncertainty<br />

about the precise scope of those rights.<br />

One could criticize the slow pace of this<br />

approach, which carries the risk that it<br />

does little to prevent a slide toward assimilation,<br />

previously an expressly stated<br />

objective of the federal government:<br />

[T]he Government will in time reach<br />

the end of its responsibility as the<br />

Indians progress into civilization<br />

and finally disappear as a separate<br />

and distinct people, not by race extinction<br />

but by gradual assimilation<br />

with their fellow-citizens. 27<br />

One could also speculate that the objective<br />

was to create conditions in which negotiated<br />

settlements and dispute resolution could<br />

occur, which are always preferable to<br />

adversarial litigation in this field. 28 If so,<br />

the results have been mixed. Terms such<br />

as “moderate livelihood” are inherently<br />

vague, leaving room for very different<br />

claims and counterclaims about what<br />

they mean. <strong>The</strong> continued strife in the<br />

Maritimes over Indigenous fishing rights<br />

may owe something to this fact.<br />

Marshall is also, in a sense, of its time.<br />

Unlike some cases since, no Mi’kmaw<br />

witnesses testified. Oral history evidence<br />

was not part of the mix, though recognized<br />

in 1997 (three years after the<br />

Marshall trial began) as carrying weight<br />

on footing equal to more familiar forms<br />

of evidence to colonial courts, such as<br />

documentary evidence. 29 <strong>The</strong>re is also a<br />

top-down quality to the decision. Rights<br />

are recognized, but the presumption is<br />

that they will be regulated as necessary<br />

by the federal and provincial governments.<br />

Since 1999, there has been a significant<br />

shift toward the recognition of<br />

Indigenous laws and self-government<br />

rights. Canada has removed its previous<br />

reservations in respect of the United<br />

Nations Declaration on the Rights of<br />

Indigenous Peoples (UNDRIP) and has<br />

recently passed legislation to implement<br />

this declaration. 30 UNDRIP fortifies the<br />

status in colonial institutions of Indigenous<br />

laws and self-government. 31<br />

<strong>The</strong> Supreme Court is beginning to<br />

put stock in the space belonging to<br />

Indigenous legal orders, traditions, and<br />

perspectives within the Canadian legal<br />

framework. Asked about the effect of<br />

the Court’s uniformity of perspective on<br />

the collective nature of Indigenous<br />

rights, Professor Naiomi Metallic of the<br />

Schulich School of Law at Dalhousie<br />

University, a citizen of Listuguj First<br />

Nation, says that “once you unpack what<br />

a collective right is, there is a clear unveiling<br />

of the right to governance with<br />

a self-government dimension.” <strong>The</strong>re<br />

is support for Professor Metallic’s apt<br />

proposition in Bernard v R, 32 which she<br />

argued and in which the New Brunswick<br />

Court of Appeal held that the nature<br />

of communal rights mandates that<br />

the community regulate, or authorize,<br />

appropriate exercise of these rights by<br />

its individual members through ensuring<br />

equitable access to the resources. 33<br />

Marshall’s interpretation has dominated<br />

recent disputes in southwest Nova Scotia.<br />

Some First Nations, such as Membertou<br />

First Nation (where the late Donald Marshall,<br />

Jr., was from), have approached<br />

the rights assertion by acquiring a significant<br />

stake in Nova Scotia’s most lucrative<br />

lobster buyer. Others, as noted,<br />

have directly met the ambiguities and<br />

asserted their rights by establishing<br />

their own “moderate livelihood” fisheries,<br />

which they regulate themselves.<br />

As of time of writing, the Sipekne’katik<br />

First Nation continues to assert the right<br />

to self-manage its lobster fishery and is<br />

facing enforcement action by the Department<br />

of Fisheries and Oceans. 34 A number<br />

of First Nations have reached various<br />

types of moderate livelihood agreements<br />

with the federal government, and some<br />

seek a principled realization and meaningful<br />

implementation of Netukulimk.<br />

For example, Chief Sock of Elsipogtog<br />

First Nation says:<br />

Miigemeoei tepleotagn ag nimatjeonsotiil<br />

tegtetal taan getoo gôgai elegeoit<br />

teleoetj. Nigemenagiig ag tje niinen,<br />

elmiag egtlamsitaiegsep, na gisaag<br />

gagi’tepagsalôgsigep. Mô neotaoeg gapetnôlg’eoag<br />

tlit’goenogsinen, pasg’elg<br />

noetag negemô tjiglitaan notaotinen’g<br />

ag tlamsôteoan negemô oongiigeo’ag<br />

glaman gis siao’nimatjoltitesnen ninen<br />

gotai Gisolg teltet’gep.”*<br />

<strong>The</strong>se approaches are not necessarily<br />

mutually exclusive. It seems plausible<br />

that there will be further litigation and<br />

that the “moderate livelihood” issue will<br />

again reach the Supreme Court.<br />

If so, it is likely that much more attention<br />

will be paid to Indigenous laws<br />

and self-government rights. Self-government<br />

is the subject of a pending Supreme<br />

Court of Canada case in which<br />

Quebec is contesting the constitutionality<br />

of Canada’s Bill C-92 on Child Welfare.<br />

35 Professor Metallic is hopeful that<br />

the Court will seize the opportunity to<br />

make unambiguous pronouncements on<br />

the scope of the right and its location<br />

within the constitutional order. Crucially,<br />

* English translation: “Mi’kmaq laws and ways of living will exist no matter what the crown says. If our ancestors and ourselves, for that matter, understood or believed in that logic,<br />

we’d all be wiped out. We don’t need the government/crown to guide us; however, we do need them to get out of our way and listen to their ancestors so that we may live in<br />

peace with nature as the Creator intended.”<br />

12 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

the Court will have an Indigenous judge with a background in<br />

Indigenous law and Indigenous relations, Justice O’Bonsawin,<br />

for the case on Bill C-92.<br />

A future case on the moderate livelihood fishery will likely<br />

have to consider more directly how Indigenous perspectives<br />

on resource management, law, and self-government, ascertained<br />

through Mi’kmaw legal orders, can be considered and<br />

infused into the governing legal framework in which they<br />

already theoretically exist.<br />

“<strong>The</strong> Mi’kmaw perspective around Netukulimk is what informs<br />

the exercise of the [harvesting] right,” according to<br />

Professor Metallic. However, she explains, Netukulimk is not<br />

exhaustive of applicable L’nu legal traditions informing the<br />

right to harvest. Referencing Listuguj First Nation’s Lobster<br />

Law, Professor Metallic points to the ripe principles that direct<br />

Mi’kmaq practices and activities: Ango’tmu’q, which means<br />

“taking care of something in a careful manner”; Apajignmuen,<br />

which means “sharing” and “giving back to one’s community,<br />

thereby strengthening relations; Gepmite’tmnej, which means<br />

“respect”; and Welte’tmeg, which means “We agree in thought.”<br />

<strong>The</strong> reconciliation imperative requires that these principles,<br />

inter alia, be given meaningful effect in Western law.<br />

Notes<br />

1. Royal Commission on the Donald Marshall, Jr., Prosecution: Digest of Findings and Recommendations (Halifax: Province of Nova Scotia, December 1989).<br />

2. [1999] 3 SCR 456 (Marshall I).<br />

3. R v Marshall, [1999] 3 SCR 533 (Marshall II).<br />

4. Marshall II, paras 18–19. <strong>The</strong> justification test is onerous and requires the Crown to demonstrate “that [the impugned] legislative objective must be attained in such a way<br />

as to uphold the honour of the Crown and in keeping with the unique contemporary relationships, grounded in history and policy, between the Crown and Canada’s<br />

aboriginal peoples”: R v Sparrow, [1990] 1 SCR 1075.<br />

5. Translation provided by Stephen J. Augustine, Hereditary Chief, Keptin on Mi’kmaq Grand Council and executive director of the Marshall Institute.<br />

6. “Livelihood or Profit? Why an Old Fight over Indigenous Fishing Rights Is Heating Up Again in Nova Scotia,” CBC News, September 23, 2020.<br />

7. Wicken has set out his views in detail in Mi’kmaq Treaties on Trial: History, Land, and Donald Marshall Junior (Toronto: University of Toronto Press, 2002).<br />

8. 1990 CanLII 2412 (NSCA).<br />

9. <strong>The</strong>y also both testified in R v Stephen Frederick Marshall, R v Bernard, 2005 SCC 43; and Daniels v Canada (Indian and Northern Affairs), 2016 SCC 12. Andrew Lokan was cocounsel<br />

for the plaintiffs in Daniels.<br />

10. Bradford W Morse, “Permafrost Rights: Aboriginal Self-Government and the Supreme Court in R v Pamajewon,” (1997) 42 McGill LJ 1011.<br />

11. Wewaykum Indian Band v Canada, 2003 SCC 45, para 5.<br />

12. <strong>The</strong>se were constitutional conferences required by the former ss 37 and 37.1 of the Constitution Act, 1982.<br />

13. 1996 CanLII 216 (SCC) at paras 279, 282–83.<br />

14. 2014 SCC 44.<br />

15. S. Fine, “Chief Justice Says Canada Attempted ‘Cultural Genocide’ on Aboriginals,” Globe and Mail, May 28, 2015.<br />

16. Marshall I, supra note 2, para 14.<br />

17. Marshall I, paras 9–13, 81.<br />

18. Marshall I, para 19.<br />

19. Marshall I, paras 7, 59.<br />

20. Marshall I, paras 4, 52.<br />

21. Marshall I, para 37. [Emphasis added in original.]<br />

22. Mi’kmaq Treaties on Trial, supra note 7.<br />

23. Mi’kmaq Treaties on Trial, 234–35.<br />

24. Marshall I, supra note 2, paras 93–101.<br />

25. Marshall I, paras 72–74.<br />

26. “Prof Says Court Got Marshall Case Testimony Wrong,” CBC News, October 29, 1999; online: https://www.cbc.ca/news/canada/prof-says-court-got-marshall-casetestimony-wrong-1.184010<br />

27. Duncan Campbell Scott was the deputy superintendent general of Indian Affairs from 1913 until 1932 and was credited for taking Sir John A. Macdonald’s repressive<br />

policies relating to Indigenous peoples into assimilation. He is widely credited for making this statement in 1931.<br />

28. R v Desautel, 2021 SCC 17, para 87.<br />

29. Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 87.<br />

30. United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c14.<br />

31. See, e.g., Articles 3, 4, 5, 12, 18, 20, 26, 32, 34.<br />

32. 2017 NBCA 48.<br />

33. Bernard v R, 2017 NBCA 48 at para 58; Delgamuukw v British Columbia, [1997] 3 SCR 1010 at para 115; R v Marshall, [1999] 3 SCR 533 at para 17; R v Sappier; R v Gray, 2006<br />

SCC 54 at para 26; Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para 75. See also Kent McNeil, “<strong>The</strong> Inherent Right of Indigenous Governance: Emerging Directions<br />

for Legal Research” (West Vancouver: National Centre for First Nations Governance, 2004). Commissioned Reports, Studies, and Public Policy Documents, Paper 173; and<br />

Sébastien Grammond, “Recognizing Indigenous Law: A Conceptual Framework” (<strong>2022</strong>) 100:1 Can Bar Rev 1 at 18.<br />

34. A Moore, “Mi’kmaw Treaty Lobster Fishery Launches, Fisheries Officers Seize Lobster and Gear,” APTN, September 7, <strong>2022</strong>.<br />

35. Québec (A.G.) v Canada (A.G.), SCC Court File No. 40061.<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 13


Clay Ruby:<br />

Activist, mentor, and friend<br />

Gerald Chan and Nader R. Hasan<br />

Many will rightly remember Clayton Ruby, CM, as a<br />

legend of the bar and a giant of Canadian law. He<br />

won landmark cases for a woman’s right to choose,<br />

the LGBTQ2S+ community, animal rights, the right to a speedy<br />

trial, and the fair treatment of Indigenous People in the criminal<br />

justice system. For generations of lawyers who grew up under<br />

him, he was also a hero, a mentor, and a friend.<br />

Even when we were young lawyers working for Clay, he<br />

treated us as equal members of the team. Seniority at the bar<br />

was irrelevant to him; we were all lawyers, plain and simple.<br />

He valued our opinions, he ensured that we were given equal<br />

time in court (all the way up to the Supreme Court of Canada),<br />

and he passed on the credit when the media asked him about<br />

his work. When he asked us to join the partnership, he was the<br />

first to suggest that we change the name of the firm to include<br />

our names alongside his.<br />

Although he never gave an inch in the pursuit of his clients’<br />

rights, the other side – prosecutors, government lawyers, and<br />

police – respected him. One time, after being shredded on<br />

the stand during a cross-examination by Clay, a police officer<br />

approached him and shook his hand for his professionalism.<br />

Clay taught us to pack as much punch into as few words<br />

as possible, how to be forceful and gracious in a courtroom<br />

at the same time, and the importance of courageous advocacy<br />

irrespective of its unpopularity.<br />

He was never big on speechifying, but once, looking us<br />

in the eye, Clay told us, “Never want anything from them.”<br />

“<strong>The</strong>m” was the Man. Government. <strong>The</strong> Establishment. Somewhat<br />

ironically, Clay’s long list of accolades – Member of the<br />

Order of Canada, honorary doctorate from the Law Society<br />

of Ontario – made him one of the most decorated lawyers in<br />

Canadian history. It’s fair to say they sought him out, not the<br />

other way around.<br />

Always hyper-curious about the law, Clay would tell us,<br />

“<strong>The</strong>re are no boring cases, only boring lawyers.” He’d add<br />

that we should be creative in framing the case. Picasso had<br />

his brushes, and Beethoven had his piano. Clay Ruby had<br />

the Canadian Charter of Rights and Freedoms, and he was<br />

endlessly creative with it – never afraid to challenge government<br />

action on novel grounds.<br />

<strong>The</strong> people Clay mentored are legion and trailblazers in<br />

their own right: Marlys Edwardh, Justice Melvyn Green, Justice<br />

14 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

Michael Code, Frank Addario, Justice<br />

Shaun Nakatsuru, Delmar Doucette,<br />

Justice John Norris, Justice Jill Copeland,<br />

Justice Breese Davies, Annamaria<br />

Enenajor, and Stephanie DiGiuseppe –<br />

to name but a few. Clay championed<br />

women’s advancement in the<br />

profession, and many leading<br />

advocates at the criminal bar are<br />

women who at one time trained<br />

with Clay. He took special pride<br />

in this.<br />

Clay loved his family and<br />

friends with as much force as he<br />

brought to the courtroom. Dinners<br />

with him and his spouse, Justice<br />

Harriet Sachs, and our annual<br />

trips to their cottage, were rich in<br />

conversation, flowing from law<br />

and politics to our family hobbies and<br />

travel plans. And then, when it got too<br />

late, Clay would announce, “It’s time to<br />

go home,” always said with affection.<br />

He was a connoisseur of classical music<br />

and a patron of the arts scene in Toronto.<br />

He could speak about these subjects with<br />

authority. But he would react with a mix<br />

of bewilderment and amusement if the<br />

conversation ever switched to sports.<br />

More than with the arts, Clay was<br />

an authority on all matters of food<br />

Clay championed women’s advancement<br />

in the profession, and many leading advocates<br />

at the criminal bar are women<br />

who at one time trained with Clay.<br />

He took special pride in this.<br />

and wine. His tastes were eclectic – he<br />

loved fine dining and counted some of<br />

Canada’s most prominent chefs among<br />

his friends, but he also had a fondness<br />

for a great pastrami or peameal bacon<br />

sandwich. He insisted that we go out for<br />

lunch together every day we were in the<br />

office – even when we protested that we<br />

were too busy with work. Sometimes<br />

we would drive to Markham in the middle<br />

of the workday for a good lobster or<br />

Peking duck.<br />

One of our enduring<br />

memories was dining at<br />

a local Chinese restaurant<br />

that Clay had been<br />

frequenting for years. On<br />

this particular day, an<br />

angry customer stormed<br />

into the restaurant complaining<br />

that something<br />

was rotten in his takeout<br />

and threatening to<br />

file a complaint. Before<br />

we could put our spoons<br />

down, Clay had rushed to the manager’s<br />

side and offered his pro bono services<br />

to the restaurant, capturing so much of<br />

Clay: his fierce loyalty, his aversion to<br />

injustice, and his love of food.<br />

We will miss him.<br />

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Politigation games:<br />

An analysis of Donald Trump’s legal siege on the 2020 election<br />

Awanish Sinha, Brittany Cerqua, and Jonathan Nehmetallah<br />

<strong>The</strong> authors wish to thank Juliana Smith and Hannah Cinel, our<br />

exemplary summer and articling students at McCarthy Tétrault.<br />

“<strong>The</strong> only way we’re going to lose this election<br />

is if the election is rigged.”<br />

~ President Donald J. Trump, August 16, 2020<br />

Politigation: <strong>The</strong> evolution of political warfare<br />

in the courtroom<br />

Politigation is a legal action (or series of actions) by a political<br />

actor primarily to appropriate procedural legitimacy in<br />

the pursuit of a purely political grievance. It is politics using<br />

law as a disguise.<br />

This article focuses on the normalization of this corrosive<br />

legal strategy, its likely acceleration, and the duty on lawyers<br />

to identify and denounce it. Politigation threatens to become a<br />

fixture of elections and public policy debates, hijacking legal<br />

gravitas to undermine democratic institutions. If it does, it will<br />

be because the legal community became inured to the justice<br />

system being brought into disrepute by political opportunism.<br />

If the purpose of litigation is to secure an outcome, the<br />

purpose of politigation is merely to exist. Its existence<br />

provides the necessary support buoying the integrity of a<br />

political campaign.<br />

As lawyers, we rely on, and therefore hold dear, just and<br />

rational legal processes. While our stewardship of the administration<br />

of justice is a professional responsibility, it of course<br />

has a cultural impact. Our collective reverence for legal<br />

processes informs society’s dutiful deference to the legal system<br />

as a legitimate authority on legitimate disputes subject to the<br />

laws of the land. Courts are, of course, of independent power<br />

but equal authority to political actors in western democratic<br />

models. Indeed, courts receive special social acceptance as<br />

the last bastion of fair assessment of state conduct. Lawyers’<br />

respect for legal systems is paramount to society’s social contract<br />

to abide peacefully by the courts’ edicts. Unfortunately,<br />

this reverence creates a myopia to be exploited politically.<br />

Our legal culture focuses, rightly, on the validity of the legal<br />

process so as to authenticate the purity of the legal outcome.<br />

This fidelity is good for civilized society but is prone to abuse<br />

in elections because of a simple, unanchored assumption: candidates<br />

respect the integrity of the legal system and the gravity<br />

of initiating an action.<br />

Tacitly, the legal system presumes that, for instance, a presidential<br />

candidate will seriously consider the merit of their position<br />

and risks of loss before the court. <strong>The</strong> very fact that a candidate<br />

has launched an action means that this is, at least, a serious<br />

matter to be heard. Justice is inherent in the system because<br />

loss will be material to a plaintiff whose claim is unsubstantiated.<br />

<strong>The</strong> certainty of judicial dismissal will render a subject<br />

res judicata and settled for public debate. A plaintiff’s credibility<br />

and integrity are on the line.<br />

Marshall McLuhan’s dictate that “the medium is the message”<br />

demonstrates its blunt realities here. Politigation gives<br />

a forum and a structure for political grievance that allows its<br />

proponents to give it a name.<br />

<strong>The</strong> systemic danger of politigation is that it saps the<br />

16 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL



Barry H. Bresner<br />

Barry is an arbitrator, mediator and<br />

investigator with over 40 years of<br />

experience handling complex<br />

commercial matters. His expertise<br />

includes shareholder/partnership,<br />

contract interpretation,<br />

environmental liability, commercial<br />

insurance and reinsurance &<br />

franchise disputes. Barry is a Fellow<br />

of the Chartered Institute of<br />

Arbitrators.<br />

Allan J. Stitt<br />

Allan is a Chartered Mediator and<br />

Chartered Arbitrator, and a Fellow<br />

of the International Academy of<br />

Mediators. He specializes in<br />

commercial, partnership,<br />

employment, insurance, and sports<br />

disputes. He is a past President of<br />

the ADR Institute of Canada and a<br />

past Chair of the Sports Dispute<br />

Resolution Centre of Canada. He is<br />

also a Canadian delegate to<br />


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underlying integrity of the legal process.<br />

If the courts are the forum for political<br />

disputes, then they are also valid<br />

targets of political criticism. <strong>The</strong> legal<br />

outcomes are immaterial because the<br />

candidate can simply wave them away<br />

as politically reasoned: if the litigation’s<br />

only value to you is performative, then<br />

you have no motivation not to burn the<br />

process’s credibility if it ceases to serve<br />

you. <strong>The</strong> rank hypocrisy of this positioning<br />

can be distorted by the very political<br />

expectation-setting that precedes formal<br />

proceedings – “If the court acts right, I<br />

will prevail” – that the general public will<br />

never really dissect.<br />

Once used and discarded in a con, the<br />

legal system, like all marks, is left deficient<br />

for the experience.<br />

Lying in plain sight: A case study of<br />

Donald Trump’s 2020 politigation campaign<br />

In the United States in 2020, incumbent<br />

President Donald J. Trump lost the presidential<br />

election to former vice-president<br />

Joseph R. Biden. States duly named<br />

electors to the electoral college, and, on<br />

January 20, 2021, Joe Biden assumed<br />

the presidency in accordance with the<br />

Constitution and custom. To the law, this<br />

is a fact. Yet in the United States of <strong>2022</strong>,<br />

it remains a volatile social controversy.<br />

How is that possible?<br />

In some quarters, the 2020 election result<br />

is the synthetic result of mass systemic<br />

corruption. As documented elsewhere, 1<br />

Mr. Trump 2 himself is a primary generator<br />

of that disinformation. Beginning<br />

with his 2020 foreshadowing (quoted<br />

above and repeated often), throughout<br />

the election itself and continuing with<br />

his rallies in <strong>2022</strong>, his grand narrative is<br />

that the election was “rigged.” Refusing<br />

to ever acknowledge an outcome creates<br />

a permanent campaign environment for<br />

the Americans in Mr. Trump’s orbit –<br />

wrangling, warring, fundraising.<br />

In the United States, the final protection<br />

against such ambiguity – the final arbiter<br />

of election fraud or election disinformation<br />

– should be the courts. Structurally,<br />

there is a bevy of legal processes to test<br />

complaints about the process to select the<br />

most powerful office-holder in the world.<br />

While usually not needed, this safety net<br />

is part of the democratic infrastructure.<br />

But on November 8, 2020, five days<br />

following the presidential election, we<br />

witnessed a novel, direct political threat<br />

to the institutional legitimacy of the legal<br />

system – one that is instructive for the<br />

Western world. Mr. Trump did not concede<br />

the election of Mr. Biden as the 46th<br />

President of the United States of America,<br />

according to constitutional custom. Nor<br />

was there a single, clear fight about a<br />

swing state that was too close to call, as<br />

in Bush v Gore. 3<br />

Rather, Mr. Trump engaged in a full<br />

public denial that he had lost the election<br />

generally, and cited system-wide, ambient<br />

electoral failure and fraud. Mr. Trump refused<br />

to acknowledge that Mr. Biden was<br />

the president-elect. <strong>The</strong> Trump campaign<br />

paralyzed American civil structures and<br />

crushed the economy by proliferating a<br />

message of electoral uncertainty.<br />

In effect, the Trump campaign weaponized<br />

tactical litigation as a political<br />

communications tool, crafting a ghoulish<br />

caricature of administrative law. Persuasion<br />

of the court was a distant second<br />

priority to co-opting legal integrity in<br />

a bid to shore up popular support for a<br />

presidential campaign that would not declare<br />

defeat. Despite separate, far-fetched<br />

prayers of relief in individual matters, the<br />

actual accomplishment of the siege was<br />

quite potent: it obscured and distorted<br />

the validity of the electoral result. Despite<br />

dismissal upon dismissal, the ambient<br />

sense that the courts were seriously considering<br />

the democratic outcome made<br />

that outcome prone to disavowal, and it<br />

made the legal system complicit in the<br />

disinformation that followed.<br />

<strong>The</strong> Trump 2020 campaign capitalized on<br />

cultural assumptions by doing away with<br />

the prerequisite legal diligence and instead<br />

capitalizing on the imprimatur of legal language.<br />

Trump supporters were asked to<br />

consider the medium of communication<br />

itself, and not the content, as the primary<br />

driver of meaning. Here, the legal medium<br />

conferred the meaning. <strong>The</strong>re must be legitimacy<br />

to these grievances simply because<br />

they were being litigated.<br />

For acolytes, Mr. Trump did not have a<br />

post facto, unfounded, conspiracy theory<br />

born out of resentment – he had pending<br />

legal actions to pursue “an accurate,<br />

honest vote count” in an election that<br />

“was not over.” 4 <strong>The</strong> allegations raised<br />

by Mr. Trump and his allies in the 2020<br />

politigation ranged from the administrative<br />

to the fantastical – that mail-in<br />

ballots were improperly sent out; absentee<br />

ballots were counted wrongly; poll<br />

observers were not given proper access<br />

to the tabulation; and foreign powers<br />

hacked into and manipulated voting machines.<br />

From, a legal perspective, each of<br />

the lawsuits was a separate procedural<br />

being, with different, legally unaffiliated<br />

plaintiffs and different state defendants.<br />

Each case received the full benefit of procedural<br />

fairness and judicial scrutiny.<br />

(See Appendix A: Catalogue of Trump<br />

politigation cases.)<br />

Yet when one analyzes the actual<br />

pleadings from the Trump legal siege,<br />

even with generous benefit of the doubt,<br />

they do not, in isolation or some combination,<br />

ever manifest a potential legal outcome<br />

that could have had an impact on<br />

the electoral outcome. 5<br />

After receiving the benefit of procedural<br />

fairness and judicial scrutiny, the<br />

very things judicial integrity is built on,<br />

61 of the 62 independent actions brought<br />

by Trump and his allies related to the<br />

2020 election were dismissed or otherwise<br />

failed. <strong>The</strong> one case where Mr.<br />

Trump found success involved reducing<br />

the time to amend errors on mail-in<br />

ballots. 6 <strong>The</strong> number of ballots was small<br />

and could not have changed the outcome<br />

of Pennsylvania’s election – and the<br />

decision was overturned on appeal. 7<br />

<strong>The</strong> staggering lack of success puts the<br />

lie in plain sight – nihilistically, the lie<br />

is not carefully hidden. Since it strains<br />

credulity that Mr. Trump, his allies, and<br />

his various legal teams failed 61 times<br />

to determine the merit of a matter and<br />

marshal the evidence before bringing<br />

it to the court, the goal was something<br />

distinct from a judicial outcome like that<br />

in Bush v Gore.<br />

Surveying the cases, it becomes clear<br />

that the ones put forward by Mr. Trump<br />

and his allies lacked any evidence at all<br />

to ground the improbable assertions<br />

made or to justify the relief sought.<br />

Federal District Judge Linda V. Parker,<br />

in her decisions regarding the Michigan<br />

election King v Whitmer, 8 found that the<br />

plaintiffs provided no evidence regarding<br />

the allegation that physical ballots were<br />

altered and that election machines and<br />

software were changing votes away from<br />

Donald Trump. She stated that “with<br />

nothing but speculation and conjecture<br />

that votes for President Trump were destroyed,<br />

discarded or switched to votes<br />

for Vice President Biden, Plaintiff’s equal<br />

protection claim fails.” 9<br />

Chief Federal District Judge Matthew<br />

Brann also opined on the dearth of evidence<br />

put forward by the Trump campaign in<br />

18 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

the Pennsylvania matter Trump v Boockvar:<br />

This Court has been presented with strained legal arguments<br />

without merit and speculative accusations, unpled<br />

in the operative complaint and unsupported by the evidence<br />

[…] [o]ne might expect that when seeking such a<br />

startling outcome, a plaintiff would come formidably<br />

armed with compelling legal arguments and factual proof<br />

of rampant corruption…. This has not happened. 10<br />

Clark County Nevada District Court Judge Joseph Hardy, in<br />

Becker v Gloria, also zeroed in on that case’s dearth of evidence<br />

and apparent use of hearsay to justify a “do-over” election:<br />

Plaintiff’s allegations are largely based on declarations and<br />

newspaper articles. <strong>The</strong> Court would necessarily need to<br />

disregard those declarations as inadmissible hearsay. <strong>The</strong><br />

Court finds that Plaintiff has offered no evidence sufficient<br />

to find any error on the part of either Clark County or Registrar<br />

Gloria that would warrant granting the relief sought<br />

here. Finally, Plaintiffs have put forth no evidence that any<br />

discrepancies in Senate District 6 would affect the outcome<br />

of the election given that the margin was 631 votes. 11<br />

Maricopa County Superior Court Judge John R. Hannah Jr.,<br />

in dismissing Arizona Republican Party v Fontes noted:<br />

<strong>The</strong> plaintiff baldly asserted that this relief was necessary<br />

to maintain “confidence in the integrity of our elections,”<br />

without alleging any facts to show that the machines might<br />

have miscounted the votes. <strong>The</strong> plaintiff could not explain<br />

why the suit had not been filed before the election, or what<br />

purpose another audit would serve. 12<br />

If the cases were overwhelmingly meritless and lacked any<br />

evidence to ground the allegations or justify the relief sought,<br />

as the above judicial quotes demonstrate, then there must be<br />

some motive beyond a judicial outcome animating these cases.<br />

Again, if we look to the judicial decisions, it is made plain what<br />

Mr. Trump and his allies were seeking to do.<br />

Federal District Judge Brett H. Ludwig, a Trump nominee,<br />

wrote in Trump v Wisconsin Elections Commission:<br />

This is an extraordinary case. A sitting president who did<br />

not prevail in his bid of reelection has asked for federal<br />

court help in setting aside the popular vote based on disputed<br />

issues of election administration, issues he plainly<br />

could have raised before the vote occurred. 13<br />

Also in Wisconsin, Chief Justice Pamela Pepper of the United<br />

States District stated in Feehan v Wisconsin Elections Commission<br />

that federal judges do not appoint the president but then went<br />

on to wonder “why the plaintiffs came to federal court and<br />

asked a federal judge to do so.” 14<br />

Federal District Judge Linda V. Parker was more blunt<br />

when she penned her conclusory statement in King v Whitmer:<br />

“This lawsuit seems to be less about achieving the relief the<br />

Plaintiffs seek … and more about the impact of their allegations<br />

on People’s faith in the democratic process and their trust<br />

in our government.” 15<br />

United States District Court Judge Steven D. Grimberg, another<br />

Trump nominee, again alluded to the purpose of the<br />

claims with respect to Trump ally L. Lin Wood’s Georgia case<br />

Wood v Raffensperger: “<strong>The</strong>se claims should not depend on the<br />

outcome of any particular election, to wit, whether Wood’s<br />

preferred candidates won or lost.” 16<br />

Finally, and again in Arizona Republican Party v Fontes in the<br />

Order Awarding Attorney’s Fees to Arizona Secretary of State<br />



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against Arizona Republican Party, the bench noted, “<strong>The</strong> plaintiff<br />

is effectively admitting that the suit was brought primarily<br />

for an improper purpose. […] It is saying that it filed this lawsuit<br />

for political reasons. ‘Public mistrust’ is a political issue,<br />

not a legal or factual basis for litigation.” 17<br />

All things considered, the US judicial process largely worked<br />

as designed. Each matter was afforded due process and was<br />

subject to consideration of its facts before the court. <strong>The</strong> judiciary,<br />

however, plainly and decisively made the determination<br />

that these matters largely lacked merit and evidentiary support<br />

and were made for some purpose other than securing a<br />

legitimate legal outcome.<br />

<strong>The</strong> collective outcome of the cases most clearly demonstrates<br />

that they were wholly unprecedented in terms of electoral law.<br />

It is difficult to feel that every case came before the court<br />

with full reflection on stare decisis and bona fide belief that the<br />

evidence had created a situation analogous to Bush v Gore.<br />

Rather, more credibly, Mr. Trump brought these cases to<br />

support the narrative being put forth.<br />

<strong>The</strong> litigation was without regard to judicial sanctions (as<br />

was the case in Michigan 18 ), cost awards (as in Arizona 19 ), or<br />

the impact of a scathing judicial decision (just about every<br />

other decision). Courts in 2020 quickly became aware that it was<br />

not the electoral process being contested – a legal grievance.<br />

It was the outcome of the election itself – a political grievance.<br />

It matters little. Although Mr. Trump lost all litigation, he<br />

arguably won the politigation.<br />

Mr. Trump maintains primacy in American political conversation,<br />

despite his electoral failures and court failures. He has<br />

preserved pride of place in the public psyche like no failed<br />

candidate before him.<br />

Aftermath: How will the legal community reckon with the rise of<br />

politigation?<br />

A lawyer, looking inward at the litigation campaign, may say<br />

that once each matter was concluded and the judge had made<br />

a determination, the system has functioned fully as required.<br />

<strong>The</strong> court has made its determination and answered the question,<br />

providing societal certainty. <strong>The</strong> legal outcome is truth of<br />

the matter. And from a legal perspective, adherence to the judicial<br />

process was necessary to ensure an unassailable decision,<br />

because the citizenry needed pure adjudication on any contentious<br />

points. Here, the court’s imprimatur revealed the truth<br />

on these especially important public issues of debate and the<br />

matter concluded. All those who were suspect of Mr. Biden’s<br />

election win could now feel confident in the functioning of<br />

both the election process and the legal system.<br />

Tragically, this was not the legacy, nor was it ever the intent<br />

of Mr. Trump and his allies. <strong>The</strong> intent of the politigation was to<br />

build the necessary public support for the Big Lie. <strong>The</strong>re were<br />

two realities at play here: one within the courtrooms, where<br />

things like the quality of evidence and soundness of legislative<br />

interpretation mattered. In this reality, the fantastical claims<br />

and extraordinary relief sought by Mr. Trump and his allies<br />

were soundly rejected.<br />

<strong>The</strong> second reality was the one in the media spin cycle,<br />

where the quality of evidence and soundness of legal argumentation<br />

did not matter. <strong>The</strong> sheer quantity of cases, “motions,”<br />

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“affidavits,” “depositions,” and “new<br />

urgent briefs filed” were ingredients<br />

enough to brew a toxin that corrupted<br />

civic certainty about the election. Indeed,<br />

the very ability to use concepts such as<br />

“affidavits” and “subject to appeal” in<br />

political punditry gave the entire enterprise<br />

the air of complexity beyond the<br />

ordinary person. And it is impossible to<br />

quantify the time and space in the civic<br />

conversation taken up by analysis – even<br />

dismissive analysis – about the lawsuits,<br />

thereby forging a national armchair judiciary<br />

who viewed the election results<br />

like a real crime mystery.<br />

<strong>The</strong> impacts of the toxin seeped in and<br />

scarred the sanctity of legal proceedings<br />

as well. <strong>The</strong> courts were now primed to<br />

be viewed as merely alternative political<br />

forums that were open to political<br />

criticism. Mr. Trump tweeted before his<br />

efforts to have a matter heard at the Supreme<br />

Court of the United States that<br />

“<strong>The</strong> Supreme Court has a chance to<br />

save our Country from the greatest Election<br />

abuse in the history of the United<br />

States.” 20 This failed, and Mr. Trump<br />

tweeted: “This is a great and disgraceful<br />

miscarriage of justice. <strong>The</strong> people of<br />

the United States were cheated, and our<br />

Country disgraced. Never even given<br />

our day in Court!” 21<br />

This is the real, long-term risk of politigation.<br />

Of course, some mitigation<br />

might reside with the use of existing<br />

procedures for frivolous matters or summary<br />

judgment. However, such boldness<br />

to discard litigation about high office<br />

would be unprecedented. Although<br />

this paradox presents no easy solution,<br />

it is a worthwhile cultural focus for<br />

conversations within our profession.<br />

Lawyers, ultimately, are stewards of a<br />

system. We personify, in some quotidian<br />

way, the concept of fair processes and<br />

legitimate legal ends. If the legal community<br />

collectively accepts shabby show<br />

trials as a new phase of high democracy,<br />

then the legal system is demeaned.<br />

<strong>The</strong> courtroom will be just another<br />

tool in the endless narrative-crafting of<br />

never-ending election cycles. Although<br />

judicial process ultimately can render<br />

decisions that decry abuse of process,<br />

the damage can already be done unless<br />

advocates call out this tawdry phenomenon.<br />

Canada, and other democratic nations,<br />

need to brace for politigation to become<br />

commonplace in both our politics and<br />

our law.<br />

Appendix A<br />

Catalogue of Trump politigation cases:<br />

style of cause; state – county/district;<br />

court; court file number; and outcome<br />

1. Aguilera v Fontes; Arizona –<br />

Maricopa; State Superior Court;<br />

No. CV2020-014083; voluntarily<br />

dismissed.<br />

2. Arizona Republican Party v Fontes,<br />

Arizona – Maricopa; State Superior<br />

Court; No. CV2020-014553; case<br />

dismissed with prejudice.<br />

3. Bowyer v Ducey; Arizona (District<br />

of); Federal Court; No. CV-20-<br />

02321-PHX-DJH; Case dismissed;<br />

SCOTUS petition for mandamus<br />

denied.<br />

4. Burk v Ducey; Arizona – Pinal;<br />

State Superior Court;<br />

No. S1100CV2020-01869; case<br />

dismissed; State Supreme Court<br />

appeal dismissed; SCOTUS petition<br />

for certiorari denied.<br />

5. Donald J. Trump for President, Inc.<br />

v Hobbs; Arizona – Maricopa; State<br />

Superior Court; No. CV2020-014248;<br />

case dismissed with prejudice.<br />

6. Stevenson v Ducey; Arizona –<br />

Maricopa; State Superior Court;<br />

No. CV2020-096490; voluntarily<br />

dismissed.<br />

7. Ward v Jackson; Arizona – Maricopa;<br />

State Superior Court; No. CV2020-<br />

015285; case dismissed;<br />

State Supreme Court appeal<br />

dismissed; SCOTUS petition for<br />

certiorari denied.<br />

8. Wisconsin Voters Alliance v Pence;<br />

District of Columbia; Federal Court;<br />

No. 1:20-CV-03791; case dismissed.<br />

9. Brooks v Mahoney; Georgia (Southern<br />

District, Savannah Division);<br />

Federal Court; No. 4:20-CV-00281-<br />

RSB-CLR; voluntarily dismissed.<br />

10. Boland v Raffensperger; Georgia –<br />

Fulton; State Superior Court;<br />

No. 2020CV343018; case dismissed;<br />

State Supreme Court appeal<br />

voluntarily dismissed.<br />

11. Favorito v Fulton County; Georgia –<br />

Fulton; State Superior Court;<br />

No. 2020CV343938; case dismissed.<br />

12. In Re: Enforcement of Election Laws<br />

and Securing Ballots Cast or Received<br />

After 7:00 pm on November 3, 2020;<br />

Georgia – Chatham; State Superior<br />

Court; No. SPCV20-00982; case<br />

dismissed.<br />

13. Pearson v Kemp; Georgia (Northern<br />

District, Atlanta Division); Federal<br />

Court; No. 1-20-CV-04809-TCB;<br />

case dismissed; Circuit Court<br />

appeal dismissed.<br />

14. Still v Raffensperger; Georgia –<br />

Fulton; State Superior Court;<br />

No. 2020CV343711; voluntarily<br />

dismissed.<br />

15. Trump v Kemp; Georgia (Northern<br />

District, Atlanta Division); Federal<br />

Court; No. 1:20-CV-05310-MHC;<br />

voluntarily dismissed.<br />

16. Trump v Raffensperger; Georgia –<br />

Fulton; State Superior Court;<br />

No. 2020CV343255; voluntarily<br />

dismissed after petition to State<br />

Supreme Court for certiorari denied.<br />

17. Wood v Raffensperger; Georgia –<br />

Fulton; State Superior Court;<br />

No. 2020CV342959; case dismissed.<br />

18. Wood v Raffensperger; Georgia<br />

(Northern District, Atlanta Division);<br />

Federal Court; No. 1:20-CV-04651-<br />

SDG; case dismissed; Circuit Court<br />

appeal dismissed; SCOTUS petition<br />

for certiorari denied.<br />

19. Johnson v Benson; Michigan<br />

(Western District); Federal Court;<br />

No. 1:20-CV-01098; voluntarily<br />

dismissed; SCOTUS petition for<br />

certiorari denied; plaintiff’s counsel<br />

sanctioned.<br />

20. King v Whitmer; Michigan<br />

(Eastern District); Federal Court;<br />

No. 2:20-CV-13134-LVP-RSW; case<br />

dismissed; SCOTUS petition for<br />

certiorari denied.<br />

21. Kistner v Simon; Minnesota; State<br />

Supreme Court; No. A20-1486;<br />

case dismissed.<br />

22. Kistner v Simon; Minnesota –<br />

Dakota; State District Court;<br />

No. 19AV-CV-20-2183; case<br />

dismissed; appeal to State Supreme<br />

Court voluntarily dismissed.<br />

23. Barnette v Lawrence; Pennsylvania<br />

(Eastern District, Philadelphia<br />

Division); Federal Court;<br />

No. 2:20-CV-05477-PBT; voluntarily<br />

dismissed after motion for temporary<br />

relief denied.<br />

24. Bognet v Boockvar; Pennsylvania<br />

(Western District); Federal Court;<br />

No. 3:20-CV-215; motion for temporary<br />

relief denied; Circuit Court<br />

appeal dismissed; State Supreme<br />

Court petition for certiorari denied.<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 21

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25. Donald J. Trump for President, Inc.<br />

v Boockvar; Pennsylvania; State<br />

Commonwealth Court; No. 602-<br />

MD-2020; temporary injunction<br />

granted.<br />

26. Donald J. Trump for President, Inc. v<br />

Boockvar; Pennsylvania (Middle<br />

District); Federal Court; No.4:20-CV-<br />

02078-MWB; case dismissed; Circuit<br />

Court petition for temporary relief<br />

denied; SCOTUS appeal dismissed.<br />

27. Donald J. Trump for President, Inc. v<br />

Boockvar; Pennsylvania (Western<br />

District); Federal Court; No.<br />

2:20-CV-00966-NR; case dismissed.<br />

28. Donald J. Trump for President, Inc.<br />

v Bucks County Board of Elections;<br />

Pennsylvania – Bucks; State<br />

Common Pleas Court; No. 20-05786-<br />

35; case dismissed; Commonwealth<br />

Court and State Supreme Court<br />

appeals dismissed.<br />

29. Donald J. Trump for President, Inc. v<br />

Montgomery County Board of Elections;<br />

Pennsylvania – Montgomery; State<br />

Common Pleas Court; No. 2020-<br />

18680; case dismissed; appeal to<br />

Commonwealth Court withdrawn.<br />

30. Donald J. Trump for President, Inc.<br />

v Montgomery County Board of Elections;<br />

Pennsylvania – Montgomery; State<br />

Commonwealth Court; No. 1171-<br />

CD-2020; voluntarily dismissed.<br />

31. Donald J. Trump for President, Inc.<br />

v Philadelphia County Board of<br />

Elections; Pennsylvania<br />

(Eastern District); Federal Court;<br />

No. 2:20-CV-05533-PD; voluntarily<br />

dismissed after motion for temporary<br />

relief denied.<br />

32. Hamm v Boockvar; Pennsylvania;<br />

State Commonwealth Court; No.<br />

600-MD-2020; temporary injunction<br />

granted in part.<br />

33. In Re: Canvass of Absentee and Mail-In<br />

Ballots of November 3, 2020 General<br />

Election; Pennsylvania – Philadelphia;<br />

State Common Pleas Court;<br />

No. 201100878; case dismissed;<br />

Commonwealth Court reversing;<br />

State Supreme Court reinstating<br />

dismissal.<br />

34. In Re: Motion for Injunctive Relief of<br />

Northampton County Republican Committee;<br />

Pennsylvania – Northampton;<br />

State Common Pleas Court; No.<br />

C-48-CV-2020-6915; case dismissed;<br />

appeal to Commonwealth Court<br />

withdrawn.<br />

35. Kelly v Pennsylvania; Pennsylvania;<br />

State Commonwealth Court; No.<br />

68-MAP-2020; temporary injunction<br />

granted pending evidentiary hearing;<br />

State Supreme Court vacating order;<br />

SCOTUS petition for certiorari<br />

denied.<br />

36. Pirkle v Wolf; Pennsylvania (Middle<br />

District, Williamsport Division);<br />

Federal Court; No. 4:20-CV-02088-<br />

MWB; voluntarily dismissed.<br />

37. Ziccarelli v Allegheny County Board of<br />

Elections; Pennsylvania – Allegheny;<br />

State Common Pleas Court;<br />

No. GD-20-011654; case dismissed;<br />

State Commonwealth Court Appeal<br />

reversing; State Supreme Court<br />

reinstating dismissal.<br />

38. Ziccarelli v Allegheny County Board of<br />

Elections; Pennsylvania – Allegheny;<br />

State Common Pleas Court;<br />

No. GD-20-011793; case dismissed.<br />

39. Gohmert v Pence; Texas (Eastern<br />

District, Tyler Division); Federal<br />

Court; No. 6:20-CV-660-JDK;<br />

case dismissed; Circuit Court<br />

appeal dismissed.<br />

40. Feehan v Wisconsin Elections Commission;<br />

Wisconsin (Eastern District);<br />

Federal Court; No. 20-CV-01771-PP;<br />

case dismissed; Circuit Court<br />

appeal dismissed; SCOTUS petition<br />

for certiorari denied.<br />

41. Langenhorst v Pecore; Wisconsin<br />

(Eastern District, Green Bay<br />

Division); Federal Court; No. 1:20-<br />

CV-1701; voluntarily dismissed.<br />

42. Mueller v Wisconsin Elections<br />

Commission; Wisconsin; State<br />

Supreme Court; No. 2020AP1958-<br />

OA; case dismissed.<br />

43. Trump v Biden; Wisconsin – Dane;<br />

Milwaukee; State Circuit Court;<br />

No. 2020CV007092; case dismissed;<br />

SCOTUS petition for certiorari<br />

denied.<br />

44. Trump v Evers; Wisconsin; State<br />

Supreme Court; No. 2020AP1971-<br />

OA; case dismissed.<br />

45. Trump v Wisconsin Elections Commission;<br />

Wisconsin (Eastern District);<br />

Federal Court; No. 20-CV-1785-<br />

BHL; case dismissed with prejudice;<br />

Circuit Court appeal dismissed;<br />

SCOTUS petition for certiorari<br />

denied.<br />

46. Wisconsin Voters Alliance v Wisconsin<br />

Elections Commission; Wisconsin; State<br />

Supreme Court; No. 2020AP1930-OA;<br />

case dismissed.<br />

47. Texas v Pennsylvania; Filed Directly<br />

with the SCOTUS; No. 22O155; case<br />

dismissed.<br />

Congratulations Linda!<br />

We were honoured to present Linda<br />

Rothstein, LSM, ASM with <strong>The</strong> <strong>Advocates’</strong><br />

Society Medal on November 29, <strong>2022</strong>.<br />

24 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

Notes<br />

1. Zeve Sanderson et al., “Twitter Flagged Donald Trump’s Tweets<br />

with Election Misinformation,” Misinformation Review (August<br />

24, 2021); online: https://misinforeview.hks.harvard.edu/article/<br />

twitter-flagged-donald-trumps-tweets-with-election-misinformationtheycontinued-to-spread-both-on-and-off-the-platform/.<br />

2. To avoid confusion about the transient title of President across<br />

relevant times, this article respectfully will refer to “Mr. Trump” and<br />

“Mr. Biden.”<br />

3. Bush et al. v Gore et al., 531 U.S. 98 (Fla Sup Ct 2000).<br />

4. Rev, Kayleigh McEnany & Ronna McDaniel Press Conference<br />

Transcript: Lawsuits Over Election Dispute (November 9, 2020);<br />

online: https://www.rev.com/blog/transcripts/kayleigh-mcenanyronna-mcdaniel-press-conference-transcript-lawsuits-over-electiondisputes.<br />

5. It is worth a detour here to consider the relevance of the seminal<br />

presidential litigation of Bush v Gore in 2000. That precedent looms<br />

large with cultural importance, fuelled by civic memory of the speedy<br />

appellate route to the Supreme Court, the national recognition of a<br />

live issue, and the finality of the decision’s impact on the election.<br />

However, 2020 politigation is far from a mere evolution of presidential<br />

electoral litigation. A number of Donald Trump’s most ardent<br />

supporters, including his attorney Jenna Ellis and Reps. Clay Higgins<br />

(R-La.), Vern Buchanan (R-Fla.), and Jason Smith (R-Mo.), made the<br />

precedent argument, citing Bush v Gore. <strong>The</strong>re is a subtle irony in the<br />

fact that Bush v Gore resulted in the stoppage of a recount and resulted<br />

in status quo affirmation – but, as we will see, subtlety and irony have<br />

no place in politigation. Put simply, Bush v Gore addressed a unique<br />

fact pattern and legal conundrum that created uncertainty in the eyes<br />

of elections officials. Florida was an open state with an agonizingly<br />

close result that was subject to a recount that could have changed<br />

the outcome of the election. In 2020, there was no such impactful fact<br />

scenario triggered by state uncertainty. Instead, Mr. Trump and his<br />

campaign allies brought more than 60 lawsuits both in the Federal<br />

Court and in varying other states, including the six key swing states of<br />

Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin.<br />

In 2000, the electoral college victory hinged on a 537-vote margin in<br />

Florida. <strong>The</strong> legal outcome – either allowing or stopping the Florida<br />

recount – very much had the potential to affect the political outcome.<br />

In 2020, by contrast, the three closest states in the 2020 election,<br />

Arizona, Georgia, and Wisconsin, had a margin of more than 10,000,<br />

11,000, and 20,000 votes, respectively. It bears noting that even in the<br />

unlikely scenario that Mr. Trump was successful in having himself<br />

declared winner in those three states, he would still not have met the<br />

requisite 270 electoral votes to win the 2020 presidential election – it<br />

would have ended in a tie of 269 electoral votes for each candidate. In<br />

2000, the losing campaign sought a singular, discrete judicial outcome<br />

– a recount. In 2020, the prayers for relief were varied and were, absent<br />

incredible and unprecedented judicial activism, largely unlikely to<br />

affect the outcome of the election. In 2000, Al Gore challenged the<br />

vote count when thousands of voters were found to have problems<br />

punching their voting ballots – the infamous hanging chads. <strong>The</strong><br />

Florida Supreme Court allowed a recount in an effort to ensure that all<br />

votes were properly counted. <strong>The</strong> problem was one of process – each<br />

individual county had a different standard for counting the hanging<br />

chads, and the Florida Supreme Court provided no uniform direction<br />

on how to undertake the recount in its decision. <strong>The</strong> Supreme Court<br />

of the United States (SCOTUS) found that it was the lack of uniformity<br />

in the standards applied to count votes that violated the Equal<br />

Protection Clause. In other words, each vote had different weight,<br />

varying by county and depending on which standard was applied.<br />

SCOTUS stopped the recount and Bush was declared the winner<br />

in Florida – granting him sufficient electoral votes to win the 2000<br />

election. In summary, the common thread between Bush v Gore and<br />

the Trump politigation is not in factual basis, legal argument, or even<br />

jurisdiction – it is simply the fact of a presidential candidate seeking<br />

recourse to the courts. <strong>The</strong>re is no inherent presumption of electoral<br />

fraud, administrative failure, or legal rationale. Indeed, in the end, Mr.<br />

Trump’s public bravado was not matched by his lawyer’s arguments.<br />

Every court rejected the substantive relevance of Bush v Gore. This<br />

hardly matters.<br />

6. In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General<br />

Election, Pa Commw Ct, case number 201100878.<br />

7. In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General<br />

Election, Pa Sup Ct, case numbers J118A2020-J118F2020.<br />

8. King et al. v Whitmer et al., Dist Ct Mich case number 2:20-cv-13134<br />

(2020) [King v Whitmer].<br />

9. Ibid at 34.<br />

10. Donald J. Trump for President, Inc. et al., v Kathy Boockvar et al., Dist Ct Pa<br />

case number 4:20-cv-02078 (2020) at 2.<br />

11. April Becker v Joseph P. Gloria et al., Dist Ct Nev case number A-20-<br />

824878 (2020) at 4–5.<br />

12. Arizona Republican Party v Adrian Fontes, et al., Super Ct Ariz case<br />

number CV2020014553 (2020) at 2 [Arizona Republican Party v Fontes].<br />

13. Donald J. Trump v <strong>The</strong> Wisconsin Elections Commission, et al., Dist Ct Wis<br />

case number 20-cv-1785 (2020) at 22. [Emphasis in original.]<br />

14. William Feehan v Wisconsin Elections Commission, et al., Dist Ct Wis case<br />

number 20-cv-1771 (2020) at 2.<br />

15. King v Whitmer, supra note 8 at 35.<br />

16. L. Lin Wood, Jr., v Brad Raffensperger, et al., Dist Ct Ga case number 1:20-<br />

cv-04651 at 21.<br />

17. Arizona Republican Party v Fontes, supra note 12 at 6.<br />

18. King v Whitmer, supra note 8.<br />

19. Arizona Republican Party v Fontes, supra note 12.<br />

20. Lawrence Hurley, “States Assail ‘Bogus’ Texas Bid to Overturn U.S.<br />

Election at Supreme Court,” Reuters (December 10, 2020);<br />

online: https://www.reuters.com/article/uk-usa-election-trumpidINKBN28K30R.<br />

21. Aaron Blake, “Trump’s Spin on His Big Supreme Court Failure Is as<br />

Bad as His Legal Case,” Washington Post (December 12, 2020).; online:<br />

https://www.washingtonpost.com/politics/2020/12/12/trumpsspin-his-big-supreme-court-failure-is-bad-his-legal-case/.<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 25


Three features of Canadian law<br />

and three resulting focuses<br />

of Canadian advocacy<br />

Geoff R. Hall<br />

<strong>The</strong> three features of Canadian law that I identified are (1)<br />

Canadian law tends to dislike bright-line rules and instead<br />

prefers legal standards that are deeply rooted in the facts of<br />

particular cases; (2) Canadian law is highly deferential to decisions<br />

made at first instance; and (3) Canadian law generally<br />

permits an appeal as of right to an intermediate appellate court<br />

after a final decision at the trial level, followed by an onerous<br />

test for leave to appeal to the Supreme Court of Canada.<br />

<strong>The</strong> three resulting focuses of Canadian advocacy that I identified<br />

are (1) at the trial level, the narrative (or story) is of paramount<br />

importance; (2) at the intermediate appellate level, the<br />

trial narrative should be put aside and, instead, an appellant<br />

should pursue a surgical strike approach while a respondent<br />

should invoke a repeated incantation of the concept of deference;<br />

and (3) at the Supreme Court of Canada, both the trial<br />

narrative and the first appeal surgical strike/incantation of deference<br />

should be put aside in favour of an exercise akin to the<br />

inquiry at a law school seminar as to what the law should be.<br />

<strong>The</strong> features and resulting focuses are illustrated in the<br />

chart below.<br />

Feature<br />

Resulting focus<br />

I<br />

recently made a presentation about commercial advocacy<br />

in Canada to a group of British barristers. 1 Although I addressed<br />

commercial litigators, my focus was on Canadian<br />

advocacy in general and not just advocacy in Canadian commercial<br />

proceedings. <strong>The</strong> exercise of distilling Canadian advocacy<br />

into a readily digestible short presentation to foreign lawyers<br />

led me to conclude that three features of Canadian law necessarily<br />

lead to three resulting focuses of advocacy in Canada. <strong>The</strong><br />

three features are unique to Canadian law, resulting in an approach<br />

to advocacy that is somewhat different from advocacy as<br />

practised by our British counterparts. It occurred to me that my<br />

observations might also be of interest to a Canadian audience.<br />

1. Aversion to Trial level: Trial narrative<br />

bright-line rules (results from feature #1<br />

and feature #2)<br />

2. Highly deferential to Intermediate appellate level:<br />

first-instance decisions Surgical strike if appellant/<br />

incantation of deference if<br />

respondent (results from<br />

feature #2 and feature #3)<br />

3. Appeal structure Supreme Court of Canada:<br />

(one appeal as of right <strong>The</strong> law school seminar<br />

followed by restrictive (results from feature #2<br />

leave to appeal to the and feature #3)<br />

apex court)<br />

26 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

<strong>The</strong> three features<br />

Feature #1: Canadian law favours<br />

standards over bright-line rules<br />

Canadian law is replete with multi-part<br />

legal tests that require a court facing a<br />

particular issue to make a determination<br />

that is deeply rooted in the particular<br />

facts of the case. Often at least one<br />

of the branches of a multi-part test is<br />

open-ended, sometimes even conferring<br />

discretionary power or something close<br />

to discretionary power to the decision<br />

maker. Many tests call for a balancing of<br />

factors, such that no one branch of the<br />

test is determinative.<br />

A few examples demonstrate the point.<br />

<strong>The</strong> test for an interlocutory injunction<br />

is a three-part balancing test, including<br />

an open-ended branch that requires<br />

consideration of “the balance of convenience.”<br />

2 <strong>The</strong> test for the oppression remedy<br />

is a two-part test, with both parts being<br />

open-ended (whether there is a reasonable<br />

expectation, which entails a consideration<br />

of a multitude of factors; and<br />

whether the reasonable expectation was<br />

violated by conduct falling within the<br />

terms “oppression,” “unfair prejudice,”<br />

or “unfair disregard”). 3 All three parts of<br />

the test under section 2(b) of the Charter<br />

of Rights and Freedoms (freedom of expression)<br />

are open-ended (Does the activity in<br />

question have expressive content? Is the<br />

activity excluded from that protection as<br />

a result of either the location or the method<br />

of expression? If the activity is protected,<br />

does an infringement of the protected<br />

right result from either the purpose or the<br />

effect of the government action?). 4 <strong>The</strong><br />

test for approval of a plan of arrangement<br />

is also in three parts; its third branch is<br />

whether the plan is “fair and reasonable,”<br />

which requires consideration of “a variety<br />

of relevant factors.” 5<br />

Indeed, multi-part tests that include<br />

balancing or highly open-ended elements<br />

are so pervasive in Canadian law<br />

that it is difficult to think of bright-line<br />

rules that lead to a single legally correct<br />

outcome on a particular fact pattern.<br />

Feature #2: Canadian law is highly deferential<br />

to decisions made at first instance<br />

<strong>The</strong> standards of appellate review in<br />

Canada are familiar and well established.<br />

Different standards apply, depending on<br />

the nature of the legal issue, with one<br />

standard for questions of fact, another<br />

for questions of mixed fact and law, and<br />

another for questions of law.<br />

Since the 1970s, findings of fact made at<br />

trial can be overturned on appeal only if a<br />

palpable and overriding error is shown. 6 A<br />

palpable error is “an error that is obvious,”<br />

while an overriding error is “an error that<br />

affects the outcome of the case.” 7 Establishing<br />

a palpable and overriding error “is<br />

a difficult standard to meet.” 8<br />

Since 2002, a similarly deferential standard<br />

applies to questions of mixed fact<br />

and law, which of course covers a broad<br />

range of what trial courts do. An appellate<br />

court may not interfere with a finding<br />

of mixed fact and law made below<br />

unless a palpable and overriding error or<br />

an extricable error of law is shown. 9<br />

This leaves a narrow range of issues –<br />

questions of law – for which a standard<br />

of correctness applies, with the appellate<br />

court owing no deference to the decision at<br />

first instance and being “free to replace the<br />

opinion of the trial judge with its own.” 10<br />

<strong>The</strong> high degree of deference afforded<br />

by appellate courts to trial courts reflects<br />

a broader trend in Canadian law, most<br />

notably the high degree of deference in<br />

administrative law to the decisions of<br />

administrative tribunals 11 and the adoption<br />

of the Housen mixed fact and law<br />

standard of review for issues of contractual<br />

interpretation. 12<br />

Feature #3: Canadian law generally<br />

permits one appeal as of right and a<br />

second appeal with restrictive leave<br />

In general, any final decision of a superior<br />

court creates an appeal as of right<br />

to an intermediate appellate court. 13 A<br />

further appeal to the Supreme Court of<br />

Canada requires leave to appeal. 14 This<br />

structure is different from the one familiar<br />

to my British audience. In England,<br />

permission (leave) to appeal is required<br />

at both levels, 15 meaning that only arguable<br />

appeals even make it to the Court of<br />

Appeal of England and Wales.<br />

<strong>The</strong> resulting three focuses<br />

At the trial level: <strong>The</strong> narrative<br />

Multi-part legal tests with one or more<br />

branches that are open ended (feature<br />

#1 in the chart above) mean that on any<br />

particular set of facts, multiple outcomes<br />

may be legally correct. This in turn gives<br />

judges much scope to achieve outcomes<br />

that they regard as just on the particular<br />

facts of a case. <strong>The</strong> high degree of<br />

deference to first-instance decisions, in<br />

particular findings of fact (feature #2 in<br />

the chart), means that trial judges are<br />

well aware that their risk of appellate<br />

reversal declines dramatically if their<br />

decisions are rooted in specific factual<br />

findings on the evidence, as opposed to<br />

statements of law.<br />

Together, these two features lead to a<br />

high degree of focus at first instance on<br />

the trial narrative. <strong>The</strong> facts matter much<br />

more than the law. Advocates have an<br />

incentive to focus on the facts and the<br />

narrative: if an advocate can convince<br />

the judge that the facts are favourable to<br />

the advocate’s client, the law provides<br />

significant flexibility to support an outcome<br />

in favour of the client. Trial judges<br />

also have an incentive to focus on the<br />

facts and the narrative: a trial judge who<br />

grounds a decision in findings of fact<br />

is much less likely to have the decision<br />

overturned on appeal.<br />

At the trial level, the factual narrative<br />

is decisive. Regardless of what the legal<br />

issue is, the advocate who succeeds in<br />

convincing the judge or jury of the factual<br />

narrative that that advocate is advancing<br />

will usually be on the winning side. <strong>The</strong><br />

advocate whose factual narrative is rejected<br />

will usually be on the losing side.<br />

At the intermediate appellate level:<br />

Surgical strike if appellant/incantation<br />

of deference if respondent<br />

<strong>The</strong> lack of any gatekeeper at the intermediate<br />

appellate level (feature #3 in<br />

the chart) means that many appeals are<br />

advanced that are without merit or are<br />

highly unlikely to succeed. <strong>The</strong> high degree<br />

of deference on questions of fact<br />

and mixed fact and law (feature #2 in the<br />

chart) expands the class of appeals that<br />

are unlikely to succeed.<br />

Combined, these two factors create an<br />

advocacy challenge for appellants. Appellants<br />

must overcome an intermediate<br />

appellate court’s inherent skepticism<br />

about their cases, and a predisposition<br />

to affirm the decision below. To counter<br />

this skepticism and this predisposition,<br />

an appellant should set aside the narrative<br />

of the case and construct a surgical<br />

strike, zeroing in on specific (and a very<br />

limited number of) arguable legal errors,<br />

with reference to particular paragraphs<br />

of the reasons for judgment below where<br />

the trial judge went wrong. <strong>The</strong> advocate<br />

must catch the court’s attention and convince<br />

the court that there is a legal error<br />

which warrants appellate intervention.<br />

Conversely, respondents should seek<br />

to encourage an intermediate appellate<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 27

court’s tendency to non-intervention by<br />

engaging in a repeated incantation of<br />

the concept of deference. <strong>The</strong> exercise is<br />

to convince the intermediate appellate<br />

court that the decision at first instance<br />

is within a legally supportable range of<br />

correct outcomes in light of the specific<br />

findings of fact that have been made. <strong>The</strong><br />

goal is to show that the decision below<br />

checked off all the right boxes, with the<br />

issue of whether the boxes were checked<br />

off correctly or not being somewhat<br />

secondary to the analysis.<br />

Importantly, for both appellants and<br />

respondents the narrative that was so<br />

crucial to victory (or so decisive in a<br />

loss) at the trial level is of limited or no<br />

utility. A few years ago I conducted an<br />

(admittedly anecdotal) test of this proposition<br />

when I found myself arguing<br />

three appeals in a short period in the<br />

Court of Appeal for Ontario – two on<br />

behalf of appellants and one on behalf<br />

of a respondent. I decided that in all<br />

three appeals, I would structure my oral<br />

argument by beginning with a short<br />

trial-style narrative, followed quickly by<br />

a shift to surgical strike/incantation of<br />

deference. In all three oral arguments,<br />

the panels were utterly uninterested in<br />

my narratives and pressed me quickly<br />

(and in one case quite forcefully) to move<br />

on in my argument. As if to reinforce<br />

the lesson, in one of the appeals, in which<br />

I was representing an appellant, my client<br />

won on a surgical strike analysis in which<br />

two discrete errors of law were identified; 16<br />

in the second appeal, in which I was again<br />

representing an appellant, my client lost<br />

on the basis of deference; 17 and in the<br />

appeal in which I was representing a respondent,<br />

my client won on the basis of<br />

deference. 18 In none of the cases was the<br />

factual narrative in any way decisive.<br />

At the Supreme Court of Canada:<br />

A law school seminar<br />

<strong>The</strong> same two features that are decisive<br />

in structuring advocacy at the intermediate<br />

appellate level (feature #2 defence<br />

to first-instance decisions and feature<br />

#3 first appeal as of right but second<br />

with restrictive leave to appeal) are also<br />

decisive in structuring advocacy at the<br />

Supreme Court of Canada, but they lead<br />

to a very different style of advocacy.<br />

At the Supreme Court, the facts are<br />

as fixed as at the intermediate appellate<br />

level. But if leave has been granted, there<br />

must be a very serious issue of law: there<br />

is uncertainty in the law, or there are conflicting<br />

intermediate appellate decisions,<br />

or the existing legal doctrine is dubious<br />

and may be in need of reform or correction.<br />

<strong>The</strong> law itself is at issue, with the<br />

Supreme Court’s task being to choose a<br />

legal rule among two or more plausible<br />

alternatives.<br />

Thus the trial narrative that was discarded<br />

at the intermediate appellate court<br />

should remain discarded because the task<br />

is no longer to find facts and choose an<br />

outcome among a range of legally correct<br />

possibilities. Similarly, surgical strike/<br />

incantation of deference should also be<br />

discarded because there is no need to<br />

convince the court that the appeal has<br />

merit and needs serious consideration:<br />

that goal has already been achieved at the<br />

leave stage. <strong>The</strong> legal rule to be applied to<br />

facts that are now well fixed in the record<br />

is itself open to serious debate.<br />

I learned this lesson first-hand in an<br />

appeal I argued a few years ago. My<br />

client had received an easy ride in both<br />

courts below because a helpful precedent<br />

was binding on both courts. In the<br />

Supreme Court of Canada, the atmosphere<br />

was entirely different because the<br />

precedent itself was at issue – and ultimately<br />

overruled, leading to my client’s<br />

loss in the Supreme Court. 19<br />

Conclusion<br />

Sometimes legal systems that are very<br />

similar in most aspects approach specific<br />

matters in strikingly different ways, resulting<br />

in profound differences. While<br />

the Canadian common law legal system<br />

is very similar to the English common<br />

law legal system from which it is derived,<br />

the three features of Canadian law and<br />

the resulting three focuses of Canadian<br />

advocacy that I identified for my British<br />

audience were not features or focuses of<br />

their system. One can often learn much<br />

about one’s own legal system, and one’s<br />

own practice of advocacy, by considering<br />

another legal regime that is similar in<br />

origin but sometimes radically different<br />

in outcome.<br />

Notes<br />

1. Presentation to the Commercial Bar Association, North American meeting,<br />

Florence, Italy, June 2, <strong>2022</strong>. I was on the panel “La Terza Sessione: Advocacy<br />

in Commercial Proceedings,” along with Lord Hamblen (a justice of the UK<br />

Supreme Court), Sir Julian Flaux (Chancellor of the High Court of Justice<br />

of England and Wales), Mrs Justice Cockerill (a justice of the King’s Bench<br />

Division of the High Court of Justice of England and Wales, and the head<br />

of the Commercial Court) (who collectively provided a British and judicial<br />

perspective on commercial advocacy), and Roberta Kaplan of Kaplan Hecker &<br />

Fink LLP in New York (who provided an American perspective on commercial<br />

advocacy).<br />

2. RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311.<br />

3. BCE Inc. v 1976 Debentureholders, 2008 SCC 69 at para 68.<br />

4. Canadian Broadcasting Corp. v Canada (Attorney General), 2011 SCC 2 at para 38.<br />

5. BCE Inc. v 1976 Debentureholders, supra note 3 at paras 137 and 154.<br />

6. Stein v <strong>The</strong> Kathy K, [1976] 2 SCR 802.<br />

7. Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at paras 62 and 64.<br />

8. Millennium Pharmaceuticals Inc. v Teva Canada Limited, 2019 FCA 273 at para 6,<br />

leave to appeal refused 2020 CanLII 32289 (SCC).<br />

9. Housen v Nikolaisen, 2002 SCC 33 [Housen].<br />

10. Ibid at para 8.<br />

11. <strong>The</strong>re is an enormous body of case law on the standard of judicial review<br />

in administrative law, with the latest and greatest iteration of the standard<br />

articulated by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019<br />

SCC 65.<br />

12. Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53.<br />

13. See, e.g., Court of Appeal Act, RSBC 1996, s 6(1)(a); Judicature Act, RSA 2000, c J-2,<br />

3(b (iv); Courts of Justice Act, RSO 1990, c C.43, s 6(1)(b); Federal Courts Act, RSC<br />

1985, c F-7, s 27(1)(a).<br />

14. Supreme Court Act, RSC 1985, c S-26, s 40.<br />

15. Procedure Rules, Rule 52.3(1)(a).<br />

16. Service Mold + Aerospace Inc. v Khalaf, 2019 ONCA 369.<br />

17. Canadian National Railway Company v Crosslink Bridge Corp., 2019 ONCA 349.<br />

18. GrowthWorks Commercialization Fund Ltd. v GrowthWorks WV Management Ltd.,<br />

2019 ONCA 371.<br />

19. Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56.<br />

28 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL


Look back: Work hard<br />

and don’t grumble<br />

<strong>The</strong> Honourable Ian Binnie, CC, KC<br />

In the era before national law firms and tech-savvy lawyers, Bay<br />

Street was populated with smallish (by today’s standards) law firms<br />

whose practitioners tended to be more laidback than today and rarely<br />

aspired to become as rich as their clients. It was not a “golden<br />

age,” but it was certainly a different world. <strong>The</strong> following are some<br />

recollections of the firm I joined in 1965, which was unusual only in<br />

that, although never more than about 25 lawyers, it produced two<br />

future Chief Justices of Ontario, an Associate Chief Justice of Ontario,<br />

three learned judges of the Court of Appeal and the Federal Court of<br />

Appeal, and five Superior Court judges, not to mention a sprinkling<br />

of other judicial figures up and down the system, including one who<br />

accepted an appointment to the Supreme Court of Canada and one<br />

who twice refused.<br />

Every year at Christmas, we get together for the firm lunch.<br />

This would be unremarkable except Wright & McTaggart<br />

closed its doors 35 years ago. <strong>The</strong> firm itself was remarkable.<br />

To the outside world it was a formidable fighting machine.<br />

Over its lifespan of not much more than 30 years (1952 to 1986),<br />

it developed more than its fair share of big cases, aggressive<br />

advocates, and flinty-eyed judges. However, the alumni do not<br />

gather to celebrate these worthies. <strong>The</strong> talk all has to do with<br />

reminiscing about a firm that had the feeling of a family business<br />

with a cast of characters worthy of a Yann Martel novel<br />

mixed with a bit of <strong>The</strong> Far Side.<br />

In the beginning were the military people. Colonel Peter<br />

Wright (later, Wright J) was something of an anti-establishment<br />

establishment figure, an officer in the Canadian Intelligence<br />

Corps in the Second World War. He had played a role in the<br />

Nuremberg war crimes trials. Bert MacKinnon, a much younger<br />

man and, later, Associate Chief Justice of Ontario, born and<br />

bred in eastern Ontario, was in the Fleet Air Arm. Joe Potts<br />

fought in Europe with Princess Patricia’s Canadian Light Infantry.<br />

At a 1967 firm dinner celebrating Peter Wright’s appointment<br />

to the Superior Court, the appointee was reduced<br />

to tears recalling the gallantry of the “boys of Royal Military<br />

College who died on Juno Beach.” Under the glass on his office<br />

desk was a map of the D-Day landing.<br />

Peter Wright was the only member of the firm born into a<br />

prominent legal family. Peter’s father, Ward Wright, was a<br />

founding member of what was then Wright McMillan Binch<br />

(now McMillan, which continued to use the cable address<br />

“Wardrite”). Ward Wright was eventually appointed to the<br />

Superior Court. Peter’s mother, Geraldine, was called to the<br />

Ontario bar in 1907, only the third of Canada’s pioneering<br />

women lawyers. She was also the daughter, wife, niece, sister,<br />

aunt, and cousin of members of the Ontario bar. 1 Peter’s uncle<br />

was Chief Justice of Ontario Newton Rowell. He was also related<br />

to Magistrate Hugh Richardson, who presided (infamously)<br />

over the trial and sentencing of Louis Riel in Regina in 1885.<br />

In the 1950s and 1960s, top lawyers considered it de rigueur to<br />

run for bencher. Peter used his position as bencher to persuade<br />

the Law Society to adopt the motto “Let [W]Right Prevail,”<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 29

which it still uses. When Peter, then a<br />

member of McMillan Binch, was asked to<br />

become a director of Barclays Bank Canada<br />

in the early 1950s, his partners came to<br />

oppose his acceptance because of hostile<br />

rumblings from their major client, the<br />

Royal Bank of Canada. So a furious Peter<br />

left to found Wright & McTaggart.<br />

Donald Harrison McTaggart had no<br />

known interest in the military. A muchloved<br />

figure in the firm (he was generally<br />

referred to as “the Auld Chief”), he was<br />

brought up on a farm near Beaverton,<br />

Ontario. Where Peter Wright’s manner<br />

was aggressive and formidable, Don Mc-<br />

Taggart was amiable and generous. In<br />

later years his wife imposed a strict diet<br />

at home, which he neatly sidestepped by<br />

regularly taking out younger lawyers to<br />

a massive lunch at the Engineers Club<br />

(on Lombard Street, conveniently near<br />

the city morgue), which served an all<br />

you can eat buffet. His wife was quite<br />

pleased when Don seemed satisfied with<br />

a poached egg and a little spinach for<br />

dinner. With Elizabeth Julian, Don ran<br />

the conveyancing and estates practice.<br />

He told the rest of us to “work hard and<br />

don’t grumble.”<br />

In later years, most firm events were<br />

enlivened with bagpipes and Don’s<br />

speech reciting the firm history, which<br />

was delivered word perfect – until he got<br />

to the recruitment of “the young blond<br />

fellow Bert MacKinnon,” at which point,<br />

snorting into his hankie and overcome<br />

with emotion, he dissolved into tears.<br />

His speeches were invariably interrupted<br />

by a young George Strathy (later<br />

CJO), who on occasion pretended to do<br />

a simultaneous translation into Italian<br />

(which George doesn’t speak) or loudly<br />

provided a running commentary into a<br />

rotary dial telephone that wasn’t connected<br />

to anything.<br />

<strong>The</strong> “young blond fellow,” Bert<br />

MacKinnon (later ACJO), provided a disproportionate<br />

share of the firm’s brainpower.<br />

A postwar Rhodes Scholar and<br />

sometime lecturer in constitutional law<br />

at Osgoode Law School, he was as unpretentious<br />

as a man as he was brilliant<br />

as an advocate. I recall sitting in the bar<br />

admissions course classroom in 1966<br />

listening to Bert presenting a bencher’s<br />

report on articling. (He thought lawyers<br />

owed a professional obligation to give<br />

incoming recruits the same articling advantage<br />

they had been given.) A student<br />

stuck up his hand and suggested the<br />

articling program was a plot by “the establishment”<br />

to hire cheap labour. Bert<br />

was miffed at being labelled establishment<br />

and snapped, “You’re talking to a<br />

beekeeper’s son from Vankleek Hill.” Bert<br />

was recruited from the firm of the senior<br />

Roy McMurtry, whose son Roy, Jr. (later<br />

CJO), also worked at Wright & McTaggart<br />

for a time. Bert was twice offered an<br />

appointment to the Supreme Court of<br />

Canada but declined for personal reasons.<br />

Bert took me along as a student to the<br />

Supreme Court of Canada in 1965 when<br />

he argued the appeal of an Indigenous<br />

man charged with shooting a couple of<br />

ducks out of season for food. 2 <strong>The</strong> accused<br />

had a right to do so both under<br />

his treaty as well as an exemption in<br />

the Migratory Birds Convention with the<br />

United States. <strong>The</strong> United States had<br />

implemented the exemption in its regulations.<br />

Canada had not. 3 Bert was at<br />

his best – haranguing the bench with<br />

moral outrage and Baptist fervour –<br />

denouncing Canada’s betrayal of its<br />

treaty obligations to the First Nations<br />

peoples as well as to the United States.<br />

<strong>The</strong> legal argument was strong. A provision<br />

in the Indian Act 4 makes treaties<br />

paramount to “laws of general application,”<br />

but the Supreme Court was having<br />

none of it. <strong>The</strong> majority, per Martland J,<br />

found (without any basis in the text) that<br />

“laws of general application” did not<br />

include federal laws. Only Justice Cartwright<br />

(later CJC) dissented. For Bert<br />

the point was that the Crown had acted<br />

dishonourably. Sixteen years later, as Associate<br />

Chief Justice, he wrote a decision<br />

in the Court of Appeal for Ontario 5 citing<br />

the “Honour of the Crown” to uphold an<br />

obscure Indigenous treaty right to hunt<br />

bullfrogs. Now, another 40 years later,<br />

the “Honour of the Crown” is the centrepiece<br />

of Supreme Court jurisprudence on<br />

the rights of Indigenous Peoples. 6<br />

In those days there was a recognized<br />

“appellate bar.” Bert’s appellate work<br />

was referred to him from law firms across<br />

the province. He generally argued two<br />

or three appeals every month before the<br />

Court of Appeal. His visits to the Supreme<br />

Court were fewer but grew steadily over<br />

the years. Counsel at that level were<br />

keenly aware (from long exposure) of the<br />

strengths and weaknesses of each of the<br />

appellate judges. Bert told me early on<br />

that Schroeder JA had a particular weakness<br />

for Latin maxims, so Bert would<br />

always throw in a bit of Latin whether<br />

pertinent or not. “Ah, yes, my Lord,” he<br />

would say straight-faced to Schroeder<br />

JA. “Quite right,” he would continue,<br />

“this is a case of res inter alios acta.” And<br />

Schroeder JA would beam contentedly,<br />

having once again been proved right.<br />

When required, Bert could mobilize<br />

his powers of indignation on behalf of<br />

whoever retained him – a sign of nimble<br />

counsel. On one occasion he was acting<br />

for the widow of a North Bay mining<br />

magnate who was living an extravagant<br />

lifestyle with her much younger boyfriend<br />

aboard their converted Chinese<br />

junk floating in Hong Kong Harbour.<br />

<strong>The</strong> deceased had made his generous<br />

financial arrangement for his widow<br />

terminable if she remarried. So she<br />

didn’t. <strong>The</strong> other beneficiaries of the<br />

estate went to court to try to terminate<br />

payments on the grounds that, giving a<br />

“purposeful” interpretation, the widow<br />

was doing exactly what the deceased<br />

opposed. Bert rose to the occasion,<br />

denouncing the deceased with evangelical<br />

fervour for having forced his poor<br />

widow “to live in sin.”<br />

Another excellent litigator in the early<br />

days of the firm was Brian Kelsey, an<br />

English-trained barrister, who cut a rolypoly<br />

Rumpole-like figure. On more than<br />

one occasion, after being relentlessly<br />

badgered and hectored by the judges<br />

and his appeal being dismissed from the<br />

bench, Brian would turn to me and say<br />

philosophically under his breath, “Sometimes<br />

you get the benefit of their stupidity.”<br />

<strong>The</strong> firm culture owed more to Don<br />

McTaggart and Bert MacKinnon than to<br />

the more aloof Peter Wright. <strong>The</strong> partners<br />

gave loyalty and inspired loyalty. Young<br />

lawyers could expect to become partners<br />

within three years or so from their call to<br />

the bar because the firm wanted to bring<br />

the associates under the big tent rather<br />

than sustain a “we” and “them” relationship.<br />

Three years was thought to be<br />

sufficient to get to know each other. After<br />

becoming partner, we all marched in<br />

lockstep financially year after year with<br />

increasing draws, until after about eight<br />

years we reached the maximum allocation.<br />

One of the commercial lawyers,<br />

Vic Seabrooke, felt under-compensated<br />

under the lockstep system. At the time,<br />

I was engaged before the Ontario Municipal<br />

Board on behalf of Toronto ratepayer<br />

associations opposing a mammoth<br />

redevelopment of CN/CP railway lands<br />

in downtown Toronto between Bay and<br />

30 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

Tricks of the Trade 2023<br />

January 27, 2023 | 9:00 am to 4:00 pm (ET) | Live at the Carlu<br />

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

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

the latest guidance on practice and procedure for personal injury litigators. We are excited to be back in person!<br />

Keynote speaker<br />

Marie Henein,<br />

Henein Hutchison LLP<br />

Program highlights include:<br />

A fireside chat with <strong>The</strong> Hon. Justice<br />

Katherine van Rensburg,<br />

Court of Appeal for Ontario.<br />

Views from the bench on the new rules<br />

for delivery of expert reports.<br />

<strong>The</strong> annual updates you need on tort law, damage<br />

assessments, accident benefits, crown liability,<br />

and much more!<br />

Tricks of the Trade:<br />

A 30+ Year Tradition for Leaders<br />

of the Personal Injury Bar.<br />

For a full agenda visit<br />


Bathurst streets. (In the end the only part built was the CN Tower.)<br />

<strong>The</strong> firm didn’t seem to mind that I was doing a two-month<br />

hearing pro bono (“It’ll be great experience on your feet”), but I<br />

was embarrassed by my lack of billings and said (without much<br />

enthusiasm) that in the circumstances my draw should be reduced.<br />

Donald McTaggart reflected on the problem and said the<br />

firm should pool my share and Vic’s share and “Vic should take<br />

what he wants and Ian can have whatever is left.”<br />

<strong>The</strong> firm was initially housed in somewhat Dickensian offices<br />

at 67 Yonge Street (moving in the early 1960s to 365 Bay<br />

Street). An early acquisition was Joseph Henry Potts (later the<br />

somewhat irascible Justice Potts). Joe was from Saskatchewan,<br />

the son of General Arthur Potts, with a brother in the military<br />

and a personality the size of<br />

the planet. He had acquired<br />

notoriety at the University of<br />

Toronto by cheerleading the<br />

Varsity Blues football team,<br />

making a terrific amount of<br />

noise and sporting a huge<br />

raccoon coat that he ceremoniously<br />

burned in a funeral<br />

pyre at the end of the season’s<br />

final game. Everyone<br />

on campus knew Joe Potts.<br />

After the war he went to the University of Cambridge on a<br />

veterans’ scholarship. It seems everyone at Cambridge also<br />

came to know Joe. When I was there about 15 years later and<br />

applied for membership in the Cambridge Union Society, the<br />

man behind the desk said, “Oh you’re from Canada. Do you<br />

know Joe Potts?”<br />

Joe was the firm’s goodwill ambassador to the world, devoting<br />

himself to the Canadian Bar Association, the Lawyers<br />

Club (dinners more or less monthly in Convocation Hall in<br />

the 1970s), the Canadian Club, the Empire Club, Liberal Party<br />

politics (bigtime), and so on, with a commercial law practice<br />

sandwiched somewhere in between. He was publicized extensively<br />

(too extensively, we thought) by the CBA newspaper.<br />

<strong>The</strong>re were photographs from a midwinter meeting at the<br />

Château Montebello of Joe being thrown into a swimming pool<br />

by “visibly refreshed” senior members of the bar, another at<br />

the annual meeting in Calgary featuring Joe trying unsuccessfully<br />

to wrestle a calf at a mock rodeo, then another at some<br />

function dancing with a lampshade over his head. Joe was puzzled<br />

that all this publicity didn’t attract more blue-chip clients.<br />

We all turned out to canvass for Joe in his many unsuccessful<br />

election campaigns in the provincial riding of Rosedale. Peter<br />

had run in the same riding (also unsuccessfully) years earlier.<br />

After losing one campaign, Joe pointed out to Peter that about<br />

5,000 more people had voted for him than had voted for Peter.<br />

Peter responded that in the interval the people who supported<br />

him had had 10,000 children “of whom only half were prepared<br />

to vote for you.” Joe was not one of those “male, pale,<br />

and stale” lawyers. He was a big man physically and emotionally.<br />

He became a compassionate if not excessively scholarly<br />

Supreme Court of Ontario judge.<br />

Another early partner, less rambunctious than Joe but greatly<br />

strengthening the intellectual horsepower of the firm, was<br />

Arthur Joseph Stone (later Stone JA of the Federal Court of<br />

Appeal). In 1957, office space was so limited that Arthur and<br />

32 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL<br />

His style of mentoring meant that younger<br />

lawyers both worked closely with senior<br />

counsel and ran their own files under a<br />

reassuring measure of remote oversight.<br />

Skills were learned. Traditions passed down.<br />

Nobody felt adrift.<br />

Roy McMurtry did their work at the “boardroom” desk in the<br />

firm library. Born on a farm in Cape Breton, Arthur had been<br />

identified by one of his teachers as a boy with too much academic<br />

potential to waste his life on the farm or a fishing boat.<br />

She gave him additional instruction and pushed him hard and<br />

got him to Dalhousie, which he followed up with a scholarship<br />

to the Harvard Law School. However, after experiencing the<br />

Family Compact that dominated the Halifax legal community<br />

in the 1950s, he joined the brain drain to Toronto. Arthur spent<br />

a lot of time fighting admiralty cases with Frank Garity of Mc-<br />

Millan Binch. <strong>The</strong>y were good at making settlements. Arthur<br />

would walk by my office saying he was on his way down “to<br />

put my hand in Frank Garity’s pocket and take some money.”<br />

In those days, there was<br />

less pressure on Bay Street<br />

to specialize. Arthur’s practice<br />

was an eclectic mix of<br />

admiralty law, regulatory<br />

law, solicitor’s work, and<br />

civil litigation. Being a generalist<br />

was less remunerative<br />

but more fun.<br />

Mentoring was a big part<br />

of the firm’s strength. Senior<br />

lawyers seldom went to court<br />

without taking along younger lawyers or students. Everybody<br />

carried their own bags. If the file couldn’t support the extra<br />

expense of a junior, the firm absorbed it. Mentoring involved<br />

a hands-on approach that on occasion could squeeze tightly.<br />

Bert sat in the library every morning reading the incoming<br />

mail of all the litigation lawyers. He sat shoes off in shirtsleeves<br />

with his legs tucked up underneath his body like<br />

a cat. He did not read outgoing mail but he could tell from<br />

the incoming correspondence where trouble was brewing. In<br />

the early 1970s I was engaged in rancorous correspondence<br />

with Marvin Catzman (JA), later of the eponymous Catzman<br />

Award for Professionalism & Civility awarded annually by <strong>The</strong><br />

<strong>Advocates’</strong> Society. I had taken the position that Marvin was<br />

wielding the Bankruptcy Act against my client as a collections<br />

tool, which the courts frowned on, and there ensued correspondence<br />

that escalated from the outraged to the sulphurous.<br />

Bert eventually dropped by to discuss cooling the matter. His<br />

style of mentoring meant that younger lawyers both worked<br />

closely with senior counsel and ran their own files under a<br />

reassuring measure of remote oversight. Skills were learned.<br />

Traditions passed down. Nobody felt adrift.<br />

Litigation recruits included Bill Herridge from McMillan<br />

Binch (who claims he was called “Judas” as he walked out<br />

McMillan’s door) and Ed Sexton from a London, Ontario, firm<br />

who eventually became chair of Oslers and a judge of the Federal<br />

Court of Appeal. <strong>The</strong>re are lots of Bill Herridge stories. He<br />

was a High Tory and nephew of former Prime Minister R.B.<br />

Bennett. Rumour had it that Bill still wore R.B. Bennett’s old<br />

shirts with the starched collars. A forceful lawyer and a faithful<br />

parishioner of Rosedale United Church, Bill was evenly<br />

matched against his secretary, the formidable Sally Case – a<br />

middle-aged woman with a fast brain who spoke her mind.<br />

She did not share Bill’s religious bent. I recall sitting in his office<br />

one day, with Miss Case typing away just outside his door,<br />

when he decided to do a little dictation. Instead of going to the

door and asking her politely to come in,<br />

he decided to call her on the telephone.<br />

Miss Case: “Jesus Christ … it’s just you.”<br />

Bill: “Take not the name of the Lord in<br />

vain!” Miss Case: “Oh, you and your<br />

goddamn fairy tales.” [Bill hung up.]<br />

Three years after Bert MacKinnon went<br />

to the Court of Appeal and Chief Justice<br />

“Bud” Estey was appointed to the Supreme<br />

Court of Canada, the office of Chief<br />

Justice of Ontario fell vacant. Bert’s name<br />

went before cabinet for appointment as<br />

the new Chief Justice. Unfortunately for<br />

Bert, the Right Honourable John Turner,<br />

parked at McMillan Binch awaiting his<br />

return to federal politics, decided to flex<br />

his political connections and orchestrated<br />

the last-minute appointment of McMillan<br />

Binch alumnus William Howland instead.<br />

<strong>The</strong> appointment was flipped from<br />

Bert to Howland at cabinet. In government,<br />

nothing is done until it’s done. Remarkably,<br />

the “curse of ACJO” followed<br />

Bert’s successors John Morden and Dennis<br />

O’Connor who were both thought to<br />

be in line for CJO but (surprisingly) were<br />

also passed over.<br />

By the early 1970s, the firm’s high-end<br />

litigation practice and its quirky culture<br />

attracted some formidable talent including<br />

Robert (“Dr. Bob”) Sharpe (later Sharpe<br />

JA). It was evident from the outset that Dr.<br />

Bob would be torn between practice, for<br />

which he was well suited, and an academic<br />

career, especially after he pocketed a<br />

DPhil from Oxford with a thesis on habeas<br />

corpus which, surprisingly for so young<br />

a scholar, became the Oxford University<br />

Press standard text on the subject.<br />

In 1974, Bob and I headed off to the Supreme<br />

Court of Canada on the Canadian<br />

Arctic Gas Pipeline case, 7 where our<br />

client was mounting an attack on the<br />

impartiality of Marshall Crowe, who had<br />

been presiding as chair of the National<br />

Energy Board in hearings to approve a<br />

gas pipeline down the Mackenzie Valley.<br />

<strong>The</strong> client’s objective was to disrupt the<br />

NEB process to give the Honourable<br />

Thomas Berger time to issue a report<br />

on his parallel (and competing) inquiry<br />

into the impact the natural gas pipeline<br />

would have on Indigenous Peoples<br />

and the environment. <strong>The</strong> NEB seemed<br />

poised to give its approval. Dr. Bob and<br />

I were alone on the appellant’s side of<br />

the courtroom, facing a responding array<br />

of about 17 oil and gas counsel. <strong>The</strong><br />

giant doors of the Court swung open<br />

(the huissier de justice shouting, “<strong>The</strong><br />

Court! La Cour!” always sending a frisson<br />

up the spine), and the judges filed<br />

in. (Bryan Finlay says the entry of the<br />

judges reminds him of prisoners being<br />

led up from the cells to face justice.)<br />

<strong>The</strong> nine wintry figures were vocal and<br />

clearly divided. As the expression goes,<br />

counsel were there just to facilitate the<br />

discussion among the judges. <strong>The</strong> gas<br />

companies requested a quick ruling so<br />

that the NEB hearing could resume. <strong>The</strong><br />

Court obliged the next morning with a<br />

quick ruling announcing the disqualification<br />

of Marshall Crowe “with reasons<br />

to follow.” <strong>The</strong> decision, which included<br />

a strong dissent by de Grandpré J, is still<br />

the leading Supreme Court of Canada<br />

authority on adjudicative impartiality.<br />

<strong>The</strong> Berger Report 8 was issued before the<br />

NEB could reorganize itself. <strong>The</strong> pipeline<br />

was never built.<br />

Dr. Bob drifted steadily toward academia,<br />

where be eventually became<br />

dean of the University of Toronto Faculty<br />

of Law before escaping to the<br />

Ontario bench in 1995 and then to the<br />

Court of Appeal in 1999. <strong>The</strong>reafter, most<br />





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advocates hoped, he would go on to the<br />

Supreme Court of Canada, but unfortunately<br />

for our jurisprudence the last<br />

elevation never happened.<br />

In 1974, the firm attracted the three top<br />

students from the U of T Faculty of Law:<br />

George Strathy (gold), John Gregory (silver),<br />

and Owen Gray (bronze). George<br />

and I did a couple of cases involving the<br />

scandal-ridden Hamilton Harbour commissioners.<br />

Our client was the Hamilton<br />

city solicitor, Ken Rouff, who waged an<br />

unrelenting war with the Hamilton bar.<br />

(A typical quote to a senior Hamilton lawyer:<br />

“I don’t tell you how to run your ratassed<br />

law firm; you don’t tell me how to<br />

run City Legal.”) <strong>The</strong> Harbour commissioners,<br />

reconstituted after the jailing of<br />

one of their number, decided they could<br />

redevelop their lands more profitably<br />

for commercial and residential buildings<br />

than as a harbour. <strong>The</strong>y took the position<br />

that, as a federally regulated “enclave,”<br />

they were immune from provincial land<br />

use regulation and could build whatever<br />

they wanted. We succeeded at trial but<br />

were dragged off to the Court of Appeal,<br />

where J.J. Robinette took over as counsel<br />

for our opponent. We survived the Court<br />

of Appeal (where, annoyingly, the judges<br />

watched with excessive interest Mr.<br />

Robinette’s disapproving body language<br />

at most of what I had to say, accompanied<br />

by a few of his heavy sighs and occasional<br />

loud intakes of breath at critical<br />

moments). A few weeks later, sitting in<br />

my office with not much to do, I received<br />

a phone call from Mr. Robinette to say,<br />

“I have received instructions to seek<br />

leave to appeal to the Supreme Court.<br />

Would you be available to be in Ottawa<br />

on such and such a date?” Of course,<br />

he knew perfectly well that I would be<br />

“available.” Many senior (and lesser)<br />

counsel would simply have served the<br />

leave application on a young opponent,<br />

or instructed a “junior” of appropriately<br />

low rank to send a peremptory letter. But<br />

the top man in the counsel business considered<br />

that we were all members of the<br />

bar and should be dealt with courteously<br />

(at least outside of court).<br />

In the 1970s, Toronto litigation practice<br />

was more casual than today. <strong>The</strong><br />

bar was much smaller. <strong>The</strong>re were no<br />

megafirms in which young lawyers got<br />

buried. Blake, Cassels & Graydon, the<br />

largest firm in Canada, was about 75 lawyers.<br />

<strong>The</strong> court offices were wide open.<br />

If you had a procedural problem you<br />

could walk up to Central Office, then located<br />

just to the right as you entered the<br />

front door of Osgoode Hall, and consult<br />

behind the desk with John, who never<br />

revealed his last name but knew everything<br />

and was glad to share it, together<br />

with clouds of his cigarette smoke. You<br />

could get a motion heard in Weekly Court<br />

or the Master’s Office within a matter of<br />

days. Superior Court trials took place in<br />

the wood-panelled luxury of the Old City<br />

Hall courtrooms. We viewed with mixed<br />

feelings the opening of the “new,” somewhat<br />

antiseptic, courthouse at 361 University<br />

Avenue.<br />

In 1973, our firm moved to 390 Bay<br />

Street. Often around 10 a.m., when not<br />

otherwise occupied, we would head out<br />

for coffee to the Honey Dew restaurant,<br />

on Bay near Temperance Street. <strong>The</strong> Honey<br />

Dew would be jammed with lawyers<br />

from all over downtown, swapping gossip<br />

and settling cases. <strong>The</strong> great Joe Sedgwick, a<br />

leading criminal counsel, could be heard<br />

over the din reciting something from<br />

Shakespeare. Lawyers found it hard to<br />

be unpleasant to each other after sharing<br />

coffee, although sometimes they succeeded.<br />

Bert would often take his juniors<br />

to lunch at the Ontario Club, where we<br />

sat reading all the newspapers.<br />

In 1980 I went off to Ottawa, on secondment<br />

for two years to the Department<br />

of Justice to get a chance to do more public<br />

law cases. I overstayed the original<br />

plan and, by the time I finished a stint<br />

as associate deputy minister of justice<br />

in 1986 and headed back to the firm, the<br />

partnership, great as it was, had decided<br />

to wind itself up. It turned out that its<br />

biggest strengths were also its greatest<br />

weaknesses. Our easygoing attitude to<br />

money and the lockstep compensation<br />

structure was coming under pressure.<br />

Too many lawyers had too many other interests.<br />

<strong>The</strong> firm was being regularly decapitated<br />

by appointments to the bench.<br />

We couldn’t even hang onto our name to<br />

build the brand. When Peter Wright left,<br />

the firm became MacKinnon McTaggart.<br />

When Bert left, it became McTaggart,<br />

Potts, Stone & Herridge. When Joe was<br />

appointed, it became McTaggart Stone.<br />

Bert suggested it should now simply be<br />

called McTaggart and Associates, with<br />

Donald marketing himself as “Mentor of<br />

Judges.” By 1986 the partners had begun<br />

to scatter elsewhere.<br />

In my case there was a direct line<br />

from the generosity of the “auld firm”<br />

in the 1970s to my appointment to the<br />

Supreme Court of Canada in 1998. My<br />

pro bono ratepayer work opposing Metro<br />

Centre garnered a lot of press (the Globe’s<br />

daily coverage included a description<br />

of my cross-examination of a traffic<br />

<strong>The</strong> First Supplement to <strong>The</strong> Guide for Lawyers Working with Indigenous<br />

Peoples is now available online. Scan the QR codes to access.<br />

Guide for Lawyers Working with<br />

Indigenous Peoples (First Supplement)<br />

Guide pour les avocats qui travaillent avec<br />

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34 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

expert as “tedious but relentless”) and led to a lot of Ontario<br />

Municipal Board work (becoming marginally remunerative)<br />

opposing suburban shopping centre proposals on behalf of<br />

downtown merchants in exotic places as scattered as Sudbury,<br />

Espanola, and Thunder Bay. (We called it “Store Wars.”) In 1979<br />

the federal Competition Bureau was reviewing the Hudson’s<br />

Bay takeover of the Robert Simpson Company, and I was called<br />

to Ottawa to share my “shopping centre expertise.” This work<br />

led to my secondment to the Department of Justice in 1980,<br />

where I managed to escape from competition law and jumped<br />

headfirst into Aboriginal and constitutional law appeals. Much<br />

of my work over the next six years was before the Supreme Court<br />

of Canada, which carried over when I returned to private practice<br />

in 1986. No doubt this background in arguing Charter and<br />

other constitutional cases, and a lot of Indigenous rights work<br />

(and not my commercial cases), opened the door to the possibility<br />

of a Supreme Court appointment. And it all goes back to<br />

the indulgence of the old firm for my non-paying efforts at the<br />

Ontario Municipal Board.<br />

It wasn’t until I joined McCarthys that I understood<br />

why its approach succeeded and Wright & McTaggart’s<br />

approach ultimately failed. McCarthy’s, with its outstanding<br />

litigation group, which at the time included the<br />

founding partners of Lenczner Slaght, focused laser-like on<br />

the business of law. Arthur Scace, one of the brightest lawyers<br />

of his generation, essentially devoted his career to building the<br />

national law firm. <strong>The</strong> McCarthy Tétrault brand rested on an<br />

ever-expanding army of lawyers who were in it for the long<br />

term. At the time I joined in 1986, I think McCarthys’ most recent<br />

judicial appointment was John Brooke JA in the early 1960s.<br />

Arthur Scace once asked me if a Supreme Court of Canada appointment<br />

was ever offered (which both of us correctly thought<br />

far-fetched), would I take it. I said yes, of course I would. He was<br />

genuinely surprised. It was not a choice he would have made. His<br />

kind of commitment was foreign to the culture of the old gang<br />

at Wright & McTaggart. On the other hand, McCarthys’ alumni<br />

do not (so far as I am aware) gather in plenary session every<br />

Christmas to raise a glass to the “auld firm.”<br />

Notes<br />

1. Gazette (Law Society of Upper Canada: 1968), 1991.<br />

2. <strong>The</strong> Queen v George, [1966] SCR 267.<br />

3. Migratory Birds Convention Act, RSC 1952, c 179.<br />

4. Indian Act, RSC 1952, c 149, s 87.<br />

5. R v Taylor and Williams (1981), 34 OR (2d) 360.<br />

6. See, e.g., Manitoba Metis Federation v Canada (AG), 2013 SCC 14.<br />

7. Committee for Justice and Liberty et al. v National Energy Board et al., [1978]<br />

1 SCR 369; 1976-03-11.<br />

8. Canada, <strong>The</strong> Mackenzie Valley Pipeline Inquiry, Report<br />

(Ottawa: Minister of Supply and Services, 1977)<br />

(Commissioner Thomas R Berger).<br />



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THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 35


Why it’s hard to become<br />

a better advocate<br />

Paul Fruitman<br />

Nobody said it would be easy. But the level of difficulty<br />

has been a surprise. Beyond the long hours, the challenging<br />

clients, and the occasionally ornery judges is<br />

the struggle to improve as advocates.<br />

<strong>The</strong> advocate’s theatre of battle is fraught with an infinite<br />

number of variables, unique circumstances, delayed (if ever)<br />

feedback, and flexible “rules” governing the substance of disputes<br />

and the procedure for adjudicating them. Add to that the<br />

tricks our minds play to amplify our confidence and help us<br />

deal with defeats, and it is difficult to know if we are improving<br />

at all. Although we can work on foundational skills such<br />

as writing and oral advocacy, there is a lot more to winning<br />

cases. Our efforts to get better can at times echo the quip often<br />

attributed to Yogi Berra: “We’re lost, but we’re making good<br />

time.” If we are actually going to get better, we need to start by<br />

engaging in honest self-reflection.<br />

Limited and flexible rules<br />

Litigation is ostensibly governed by thick rulebooks that give it<br />

a veneer of predictable order. But many of the “rules” are really<br />

guidelines that retain residual discretion for judges. Imagine<br />

if a hockey rulebook stated that a referee “may” call a penalty<br />

for high-sticking. Similarly, substantive law is typically based<br />

on discretionary “tests” that are meant to appear objective, but<br />

ultimately require the subjective weighing of criteria.<br />

Of course, the flexibility given to judges is a feature, not a<br />

bug. It allows for each case to be decided on its own merits.<br />

Justice Sharpe notes that this flexibility is inherent in the balance<br />

struck between precisely drafted rules that will inevitably<br />

leave gaps and more vague rules that will cover the widest<br />

range of possibilities. 1<br />

Whether we have got the balance right is debatable. But a<br />

natural consequence of judicial flexibility is that it can make it<br />

harder for counsel to understand what went right, or wrong,<br />

as the case may be.<br />

Flexible rules help qualify litigation as what psychologists<br />

call a “wicked” learning environment. 2 Wicked learning environments<br />

are also characterized by limited feedback, a lack<br />

of repetition, and a lot of variables. And, as the name suggests,<br />

they are very hard to master. Sound familiar?<br />

So little feedback<br />

At the opposite end of the spectrum from “wicked” learning<br />

environments are “kind” ones. Kind learning environments<br />

neatly fit the practice-makes-perfect paradigm, loosely quantified<br />

as the “10,000-hour rule,” itself made popular in Malcolm<br />

Gladwell’s bestseller, Outliers.<br />

Consider Tom Amberry, a retired podiatrist who became a latenight<br />

television celebrity after setting the world record for most<br />

consecutive basketball free throws: 2,750. Amberry improved<br />

his shooting by taking at least 500 shots a day, six days a week. 3<br />

Each shot produced feedback based on whether and how cleanly<br />

it hit; or, if it missed, in which direction and by how much.<br />

<strong>The</strong> Williams sisters, perhaps the greatest sibling athletes<br />

ever, improved in a similar way. As girls, they were forced by<br />

their father to return 500 volleys after school before they could<br />

go home. 4 That practice regimen was still less intense than the<br />

one imposed on the three Polgár sisters, whose parents kept<br />

them out of school entirely so they could practise chess day<br />

and night. All three achieved international success, and two<br />

became grandmasters. Judit, who was apparently the slowest<br />

to pick up the game but the most persistent, reached the No. 8<br />

overall global ranking and famously beat Gary Kasparov, perhaps<br />

the most renowned chess champion in history. 5<br />

Another example is the professional musician, whose success<br />

starts with two things: a good ear and the patience to play<br />

the same pieces over and over, each time a little more smoothly.<br />

<strong>The</strong> ear and the instrument provide instant and constant feedback,<br />

marking a clear path toward improvement.<br />

<strong>The</strong> quickest way to improve at anything is to do it, assess<br />

the result, and then use that information to do it better the next<br />

time. But litigation, true to its “wicked” way, gives us few such<br />

opportunities. Depending on the type of practice, a litigator<br />

might carry between 20 and 100 active cases. If you are a civil<br />

litigator, you would be fortunate if half a dozen of those cases<br />

get to trial. Many of them settle or die on the vine before ever<br />

seeing a judge (or jury) in any capacity.<br />

If you are fortunate enough to have your case resolved by<br />

judicial decision, you still get limited insight into how much<br />

your advocacy and strategy figured into the final outcome. <strong>The</strong><br />

case you just lost may have been too much even for the famed<br />

36 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL

oration of Clarence Darrow. Your great win? Maybe one of the<br />

Scopes monkeys 6 could have got the same result because it was<br />

all about facts over which you had no control.<br />

So many variables<br />

Litigation never repeats. And, like history, it only sometimes<br />

rhymes. 7 Each case comes with its own facts, witnesses, opposing<br />

counsel, and decision maker. It is nearly impossible, if not<br />

actually impossible, to separate the impact of each variable on<br />

the ultimate outcome.<br />

Even if all other factors were static, the variance in decision<br />

makers would still make prediction unrealistic. In Noise: A Flaw<br />

in Human Judgment, Nobel Prize winner Daniel Kahneman and<br />

his co-authors break down the different types of uncertainty<br />

inherent in cognitive judgments.<br />

<strong>The</strong> first is “level noise,” which describes the variability of<br />

average judgments made by different individuals. Words such<br />

as “likely,” as well as points on numerical scales (a “6” versus<br />

a “7”), mean different things to different people. 8<br />

<strong>The</strong> second type of decision static is “pattern noise,” which<br />

concerns how different people view the same types of events.<br />

Some judges consider events by emphasizing equities, while<br />

others rely on strict legal interpretations. <strong>The</strong> increasing diversity<br />

of the bench, while overdue, great for representation,<br />

and a net benefit to the legal system, also increases pattern<br />

noise. Judges with similar backgrounds are more likely to see<br />

things the same way. Conversely, a wider spectrum of judicial<br />

backgrounds makes prediction more challenging.<br />

<strong>The</strong> third type of decision noise is “occasion noise,” which<br />

describes how the same judge may view the same case differently<br />

on different days. Maybe the judge is irritable after a bad<br />

night’s sleep. Maybe they had an argument with their spouse.<br />

Perhaps a recent personal experience causes the judge to view<br />

the defendant in a different light. Each of these scenarios is an<br />

example of occasion noise, and all of them further complicate<br />

one’s ability to predict and explain outcomes.<br />

Occasion noise is also where artificial intelligence reaches its<br />

limit. AI may be able to tell you the average likelihood of a<br />

certain outcome among a pool of judges, or even how a specific<br />

judge is likely to decide a dispute. But it does not account for<br />

“broken leg exceptions” – the probability that people will go<br />

to a movie tonight does not reveal whether a specific person<br />

broke their leg this morning and will therefore stay home. 9 In<br />

other words, AI does not consider the idiosyncrasies of being<br />

human that often turn a case.<br />

Occasion noise applies to lawyers and witnesses as well.<br />

Opposing counsel could make a crucial error if they are distracted<br />

by a personal issue. <strong>The</strong> witness you thoroughly prepared<br />

could lose their composure after getting bad news earlier in<br />

the day. All these variables and contingencies make it hard to<br />

extricate the role the advocate actually played in the outcome<br />

of the case.<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 37

In assessing that outcome, we take the<br />

role of a veterinarian. <strong>The</strong> patient does<br />

not tell us what needs to be remedied or<br />

could be improved. Even the most thorough<br />

judicial reasons lack a prescription<br />

for better counsel work. A conciliatory<br />

“despite the able arguments of counsel”<br />

only makes it harder to determine where<br />

things went wrong.<br />

Cognitive limits and tricks<br />

our minds play<br />

Even if court decisions were<br />

to itemize what we did well<br />

and what we need to do better,<br />

we would still struggle<br />

to accept and apply that information.<br />

We are cursed – or<br />

blessed, depending on your<br />

perspective – with a series of<br />

psychological biases that help<br />

us get along in the world,<br />

but also prevent us from<br />

seeing problems that need to<br />

be fixed.<br />

Our first issue is egocentrism.<br />

We believe that the world looks<br />

as it does to us because that is how it is,<br />

and that other people accordingly view<br />

the world the same as we do. As a result,<br />

we think that what is in our heads is<br />

also in others’ heads and find it hard to<br />

conceive that others do not see things<br />

as we do. 10 This belief helps explain our<br />

struggle to comprehend why the judge<br />

“just did not get it.”<br />

Second, when we get a bad outcome,<br />

we engage in “cognitive dissonance,” a<br />

term coined by social psychologist Leon<br />

Festinger after he and his colleagues infiltrated<br />

a doomsday cult in 1954. <strong>The</strong><br />

cult’s leader had promised that the faithful<br />

would escape by flying saucer as the<br />

world ended. When neither Armageddon<br />

nor the flying saucer came, the leader explained<br />

that the world had been spared<br />

because of their prayer. Rather than abandon<br />

the group, the most ardent believers<br />

– those who sold all their possessions in<br />

anticipation of leaving Earth – became<br />

more convinced of their leader’s predictive<br />

power and began to proselytize. 11<br />

Festinger recognized the mental pain<br />

we feel when our actions and beliefs conflict.<br />

He concluded that psychological inconsistency<br />

makes us uncomfortable and<br />

that we accordingly rationalize or ignore<br />

information that creates dissonance. If<br />

those who succumbed to the doomsday<br />

prophecy admitted it was contrived, they<br />

38 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL<br />

would also have to admit they had been<br />

fooled. One exception to pattern noise is<br />

that nobody likes to think of themselves<br />

as foolish.<br />

We do like to think of ourselves as good<br />

litigators, and when we lose, we need to<br />

reconcile a bad outcome with what we<br />

expect a good litigator would achieve.<br />

To avoid psychological discomfort, we<br />

choose an explanation that minimizes<br />

We believe that the world looks as it does<br />

to us because that is how it is ... As a result,<br />

we think that what is in our heads is also in<br />

others’ heads and find it hard to conceive that<br />

others do not see things as we do.<br />

dissonance. <strong>The</strong> bad facts were baked in.<br />

<strong>The</strong> law was always against us. <strong>The</strong> witness<br />

performed poorly. <strong>The</strong> judge “just<br />

did not get it.”<br />

Because there are so many variables<br />

in a case, it is easy to explain away a<br />

loss with reference to factors beyond our<br />

control. We engage in causal thinking<br />

that makes the bad outcome explainable,<br />

if not inevitable. This process leads<br />

to a satisfying sense of coherence, in<br />

which emotional comfort fills in for<br />

rational confidence. 12<br />

Our third issue is our tendency to commit<br />

the “fundamental attribution error.”<br />

When we win, we do not need to resort<br />

to cognitive dissonance. Instead, we tend<br />

to attribute the positive outcome as the<br />

result of our own skill and performance,<br />

rather than luck or other situational and<br />

environmental factors. <strong>The</strong>re is truth in<br />

the maxim that we learn little from some<br />

success, but much from failure, an observation<br />

often credited to Dracula author<br />

Bram Stoker. Failure at least causes us<br />

to search for a (comforting) explanation.<br />

<strong>The</strong> only explanation we need to explain<br />

a great win is a mirror.<br />

Too much experience can backfire<br />

Winning a case – regardless of why –<br />

often generates new briefs of the same<br />

type. But too much of the same can<br />

hamper our efforts to get better. In his<br />

bestseller, Range: Why Generalists Triumph<br />

in a Specialized World, David Epstein argues<br />

that in the most “wicked” learning environments,<br />

too much experience can<br />

narrow our thinking and limit our ability<br />

to respond to changing circumstances.<br />

Epstein cites the examples of firefighters<br />

with years of experience fighting house<br />

blazes losing their intuition when faced<br />

with a skyscraper fire, and of expert<br />

accountants being less able<br />

than novices in adapting to<br />

new tax rules. 13<br />

To win in the wild and<br />

wicked world of litigation, we<br />

must simultaneously focus<br />

and keep a wide perspective.<br />

If we narrow ourselves to the<br />

same types of cases – mortgage<br />

fights, perhaps, or medical<br />

malpractice claims – we<br />

can find it hard to adjust if<br />

the next case slightly stresses<br />

the mould. We can also forget<br />

that judges are generalists<br />

who may have just transferred<br />

from the criminal or family courts<br />

to the civil lists, or vice versa.<br />

<strong>The</strong> nebulous nature of improvement<br />

Even if we do manage to maintain peripheral<br />

vision, we still need to know<br />

what we are looking for. More specifically,<br />

we need to decide what improvement<br />

means. Counting up wins and losses<br />

is insufficient because the inherent<br />

variables noted above make for an uneven<br />

and dynamic playing field. <strong>The</strong> best<br />

lawyers lose a lot because they attract<br />

tough cases. A lawyer who never loses is<br />

a lawyer who sticks with easy ones.<br />

Improving individual skills such as<br />

legal writing, oral advocacy, and legal<br />

analysis is helpful but does not generate<br />

a direct line to more trial wins. In addition<br />

to improving our skills, we need to<br />

critically examine our outcomes.<br />

How to get better: First, ask why we win<br />

and why we lose<br />

Following every game, Al Davis, the late,<br />

iconic coach-turned-owner of the Oakland<br />

Raiders and serial litigant, 14 used to<br />

press his coaching staff to answer “Why<br />

did we win?” or “Why did we lose?”<br />

Although the obvious response might<br />

be a key play – a timely third down stop<br />

or a big punt return – Davis pushed for<br />

a more thoughtful analysis that would<br />

often uncover strategic decisions made

Mastering the art and craft of advocacy is a career-long commitment and we are<br />

here to help. <strong>The</strong> <strong>Advocates’</strong> Society has been the premier provider of advocacy<br />

skills training for over 30 years. We are proud to provide lawyers across Canada<br />

with the training and the confidence they need to execute on their feet when it<br />

counts. <strong>The</strong> Judge will notice…your clients will too.<br />

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

after practice several days earlier.<br />

<strong>The</strong> point of this post-game review was<br />

to better position the team for the weeks<br />

ahead. And it worked: Davis’s ongoing<br />

quest to identify the reasons for wins and<br />

losses led to three Super Bowl titles.<br />

Embrace the litigation post-mortem<br />

<strong>The</strong> kind of forensic analysis Davis demanded<br />

is not common to our line of<br />

work. Reported case analyses typically<br />

focus on changes in law. In-firm litigation<br />

seminars can tend toward war stories and<br />

lessons with limited broader applicability<br />

– and they are confined to victories. Few<br />

want to discuss their devastating defeat<br />

over doughnuts.<br />

We shy away from true forensic reviews<br />

of our cases for three reasons.<br />

<strong>The</strong> first is that analyzing why we won<br />

or why we lost is not billable time. <strong>The</strong><br />

second is that trying to determine why<br />

we won or why we lost is very hard.<br />

<strong>The</strong> third is that we prefer to avoid<br />

uncomfortable truths.<br />

But a litigator cannot be like a baseball<br />

closer, whose best attribute is often<br />

the ability to forget what happened<br />

the day before. We improve by seeing<br />

more, doing more, keeping an open<br />

and curious mind, and then honestly<br />

reflecting on what went right and what<br />

went wrong.<br />

Maybe we won that case in spite of<br />

ourselves, and because the facts and the<br />

law were overwhelmingly in our favour.<br />

Or maybe we won because we drew<br />

a judge sympathetic to our client and<br />

who was motivated to distinguish unhelpful<br />

case law. Maybe that is why<br />

the Court of Appeal emphasized the<br />

importance of deferring to the trier of<br />

fact rather than the soundness of the trial<br />

judge’s analysis.<br />

Maybe that crushing loss really was the<br />

product of our own poor performance or<br />

woolly strategic decisions. Saying it was<br />

inevitable might be just causal thinking.<br />

And, if it really was inevitable, could we<br />

have recognized that fact earlier and invested<br />

more effort in settlement?<br />

Of course, if we conduct the analysis<br />

alone, we are less likely to avoid the<br />

psychological biases described above. It<br />

is also best to avoid limiting the postmortem<br />

to those involved in the case,<br />

since they will all struggle to move beyond<br />

the biases obtained by living on<br />

one side of the dispute for so long. Ideally,<br />

we enlist a colleague – a ruthlessly<br />

honest one completely ignorant of the case<br />

– to review at least the written arguments<br />

and the judge’s reasons and to give an<br />

objective view.<br />

None of this is fun. Confronting the<br />

realities of our wins and losses requires<br />

engaging with difficult thoughts. But efforts<br />

to understand why we won or lost<br />

Notes<br />

can only help us to get better. As we critically<br />

review what went right or wrong,<br />

we take lessons for the next case, and<br />

the one after that. Though each case is<br />

different, subtle similarities and vague<br />

patterns start to emerge. We get better as<br />

we get a little less lost, while still making<br />

good time.<br />

1. Robert J Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018),<br />

55–59.<br />

2. David Epstein, Range: Why Generalists Triumph in a Specialized World (New York: Riverhead Books,<br />

2019), 20–21.<br />

3. Steve Marble, “Tom Amberry, Podiatrist Who Set World Record with 2,750 Straight Free Throws,<br />

Dies at 94” (March 23, 2017), Los Angeles Times.<br />

4. Jordan Zakarin, “How Serena and Venus Williams’ Father Helped Push the Sisters to Tennis Stardom<br />

(November 2, 2020), Biography Newsletter.<br />

5. Carlin Flora, “<strong>The</strong> Grandmaster Experiment” (July 1, 2005), Psychology Today.<br />

6. One of the highlights of Darrow’s storied career was acting as defence counsel in the 1925 “Scopes<br />

Monkey Trial,” in which a Tennessee schoolteacher was charged with teaching evolution in violation<br />

of state law.<br />

7. This assessment of history is attributed to Mark Twain, who also observed that “a good lawyer knows<br />

the law; a clever one takes the judge to lunch.”<br />

8. Daniel Kahneman, Oliver Sibony, and Cass R Sunstein, Noise: A Flaw in Human Judgment (New York:<br />

Little, Brown Spark, 2021), 365–66.<br />

9. Ibid, 129.<br />

10. Steven Sloman and Philip Fernbach, <strong>The</strong> Knowledge Illusion (New York: Riverhead Books, 2017), 128.<br />

11. Leon Festinger, Henry W Riecken, and Stanley Schachter, When Prophecy Fails (Minneapolis: University<br />

of Minnesota Press, 1956).<br />

12. Kahneman, supra note 8, 155–58.<br />

13. Epstein, supra note 2, 21, 31–32.<br />

14. Davis successfully sued the National Football League on anti-trust grounds in 1980 after the league<br />

tried to stop him from moving the Raiders to Los Angeles. After moving the team back to Oakland<br />

in 1995, Davis then unsuccessfully sued the league for allegedly sabotaging his efforts to secure a<br />

new stadium in Los Angeles. Davis was also the only NFL owner to support a “successful” anti-trust<br />

lawsuit brought against the NFL by the upstart United States Football League – the jury ruled in favour<br />

of the USFL, but ordered only $1 in damages (tripled, since it was an anti-trust case) plus $5.5 million<br />

in costs, which was not enough to keep the USFL afloat. Fun fact: the lead plaintiff in the case was New<br />

Jersey Generals owner Donald Trump.<br />


Free Member Resource Library<br />

Only TAS Members enjoy exclusive access to this selection of<br />

archived TAS content 24/7<br />

40 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL


An essential resource<br />

for Canadian jurists<br />

Shaun E. Finn<br />

A version of this book review was published in the April <strong>2022</strong><br />

BCF Class Action NetLetter.<br />

Michael A. Eizenga<br />

<strong>The</strong> Class Actions Handbook<br />

(Toronto: LexisNexis Canada, <strong>2022</strong>)<br />

Neither a legal treatise, a marketing gimmick, nor a partisan<br />

diatribe, Michael A. Eizenga’s Class Actions Handbook<br />

is a useful 312-page primer that manages the feat<br />

of concentrating the statutory law of all relevant Canadian jurisdictions<br />

and approximately 30 years of case law into a single,<br />

accessible volume. In addition to providing useful background<br />

information, it introduces the reader to various crucial procedural<br />

stages and legal considerations.<br />

Access to justice<br />

As the Handbook explains, one of the most critical focuses of<br />

class action legislation is access to justice. Invoking Western<br />

Canadian Shopping Centres v Dutton 1 and Hollick v Toronto (City), 2<br />

the Handbook notes that “[t]he high cost of litigation means that<br />

claims of modest amounts rarely will be economically feasible<br />

to pursue on an individual basis. By aggregating the claims of<br />

potential individual plaintiffs and effectively spreading legal<br />

costs across hundreds or thousands of class members, economies<br />

of scale can be generated to reduce the economic barriers<br />

to litigation.” 3 Class action legislation thus has a broader<br />

social dimension that transcends traditional civil litigation. It<br />

is in part for this reason that the Supreme Court of Canada<br />

describes the class action as a procedural mechanism whose<br />

purpose is to foster social justice. 4<br />

This focus on access to justice is consistent with other important<br />

developments in civil procedure. For example, Lord<br />

Woolf’s “Access to Justice – Final Report” noted as a defect<br />

of the legal system of England and Wales “a lack of equality<br />

between the powerful, wealthy litigant and the underresourced<br />

litigant.” 5 Hence the need to render access to British<br />

justice easier, more transparent, and less expensive. Access<br />

to justice is also at the centre of Quebec’s new Code of Civil<br />

Procedure, whose Preliminary Provision stipulates, among other<br />

things, that it is “designed to ensure the accessibility, quality<br />

and promptness of civil justice, the fair, simple, proportionate<br />

and economical application of procedural rules, the exercise of<br />

the parties’ rights in a spirit of co-operation and balance, and<br />

respect for those involved in the administration of justice.” 6<br />

In remarks to the seventh National Pro Bono Conference,<br />

Wagner CJ of the Supreme Court of Canada stated that access<br />

to justice is ultimately “about getting good justice for everyone,<br />

not perfect justice for a lucky few. It’s a democratic issue.<br />

It’s a human rights issue. It’s even an economic issue.” 7 Class<br />

actions fit neatly into this broader culture shift.<br />

THE ADVOCATES’ JOURNAL | WINTER <strong>2022</strong> | 41

Multijurisdictional issues<br />

According to the Handbook, “[t]he avoidance<br />

of a multiplicity of proceedings is<br />

a foundational principle of civil procedure.<br />

Multiple proceedings about the<br />

same wrong may lead to inefficiency,<br />

the duplication of fact-finding, legal analysis<br />

and appeals, wasted forensic and<br />

judicial resources, and inconsistent outcomes.”<br />

8 In other words, as a general<br />

proposition, there should not be two or<br />

more class actions advancing the same<br />

cause of action on behalf of the same putative<br />

class. It is not unusual, however,<br />

for overlapping class proceedings to coexist<br />

in different jurisdictions. 9<br />

One way of addressing the problem<br />

of possibly overlapping class actions is<br />

to stay superfluous parallel proceedings,<br />

thereby reducing costs for the court<br />

system and defendants, avoiding contradictory<br />

judgments, and dispelling<br />

any confusion among the putative class<br />

members. <strong>The</strong> mechanism used for this<br />

purpose in common law jurisdictions is a<br />

carriage motion whose purpose is to stay<br />

all other present or future class proceedings<br />

relating to the same subject matter<br />

in a particular province. 10<br />

But carriage motions are not used<br />

throughout Canada. In Quebec, “courts<br />

apply a ‘first to file’ rule which awards<br />

carriage to the action filed first. This rule is<br />

not absolute, however, and the court will<br />

not follow it if a party shows that it would<br />

not be in the best interests of the class.” 11<br />

Because Canada does not have an<br />

equivalent to the US Judicial Panel on<br />

Multidistrict Litigation – which is able<br />

to consolidate federal class actions and<br />

assign them to a specific district court<br />

for adjudication – Canadian litigants,<br />

counsel, and courts have struggled with<br />

efficient management of parallel class<br />

actions across jurisdictions (i.e., substantially<br />

similar proceedings commenced before<br />

the superior courts of more than one<br />

Canadian jurisdiction) and/or “national”<br />

class actions (i.e., those which include<br />

as putative members persons residing in<br />

several, or indeed all, Canadian jurisdictions).<br />

Even the Supreme Court of Canada<br />

has weighed in on the issue, observing<br />

in Canada Post Corp v Lépine that “the<br />

creation of national classes … raises the<br />

issue of relations between equal but different<br />

superior courts in a federal system<br />

in which civil procedure and the administration<br />

of justice are under provincial<br />

jurisdiction … [T]he decisions made may<br />

sometimes cause friction between courts<br />

in different provinces.” 12<br />

Although a pan-Canadian solution<br />

has yet to be adopted and implemented,<br />

some helpful steps have been taken. As<br />

the Handbook explains, “[t]he Uniform<br />

Law Conference of Canada has recommended<br />

that courts should consider the<br />

issue of parallel multi-jurisdictional class<br />

proceedings at the certification stage,<br />

under a more refined preferable procedure<br />

criterion.” 13 While several provinces<br />

have adopted the recommendation and<br />

amended their class proceeding statutes<br />

accordingly, the courts have held that<br />

even without a statutory amendment,<br />

the broad statutory discretion granted to<br />

a case management judge provides them<br />

with jurisdiction to consider which of two<br />

actions is preferable at the certification<br />

motion with the benefit of a full record. 14<br />

Limitation periods<br />

Time waits for no one – and no lawsuit. In<br />

all Canadian jurisdictions, litigants must<br />

contend with limitation periods, which<br />

represent unique and complex issues in<br />

the class action context. In class actions, as<br />

in individual actions, the governing limitation<br />

periods are those that apply to the<br />

causes of action asserted in the statement<br />

of claim. 15 It follows that a representative<br />

plaintiff who has waited too long to bring<br />

a claim risks applicable limitation periods<br />

barring the claim, sometimes at an early<br />

stage (via motion to strike, certification,<br />

or summary judgment) or eventually at<br />

the merits (at the common issues trial or<br />

at individual trials). 16<br />

To avoid such a prejudicial outcome,<br />

the parties can enter into tolling agreements<br />

pursuant to the applicable statutes.<br />

As the Handbook specifies, “[t]olling<br />

provisions suspend the running of limitation<br />

periods during the course of a class<br />

proceeding. <strong>The</strong>y are intended to further<br />

the policy objectives of access to justice<br />

and judicial economy.” 17 Put simply, “[t]<br />

heir purpose is to protect potential class<br />

members from the expiry of limitation<br />

periods until the feasibility of the class<br />

action is determined, which removes the<br />

need for each class member to commence<br />

an individual action in order to preserve<br />

his or her rights.” 18<br />

Yet, as with class actions, tolling provisions<br />

vary from jurisdiction to jurisdiction.<br />

Summarizing the tolling landscape<br />

in Canada, the Handbook explains that<br />

“[t]he class proceedings statutes of the<br />

common law provinces all contain provisions<br />

tolling limitation periods for<br />

potential class members. In Quebec, the<br />

tolling provisions are found in the Civil<br />

Code of Quebec. <strong>The</strong>re is no comparable<br />

provision suspending limitation periods<br />

in the federal class action regime.” 19<br />

Conclusion<br />

<strong>The</strong> bookshelves of a Canadian class<br />

action practitioner will likely include<br />

annotated statutes, loose-leaf binders,<br />

textbooks, case books, and law reviews.<br />

<strong>The</strong>y should now include <strong>The</strong> Class<br />

Actions Handbook as well. Not only is it<br />

a recent publication that captures the<br />

most relevant class action authority,<br />

but it is an authentically multijurisdictional<br />

work that does not give short<br />

shrift to any Canadian jurisdiction,<br />

including (most notably) the civilian<br />

province of Quebec.<br />

Notes<br />

1. 2001 SCC 46, [2001] 2 SCR 534.<br />

2. 2001 SCC 68, [2001] 3 SCR 158.<br />

3. Michael A Eizenga, <strong>The</strong> Class Actions<br />

Handbook (Toronto: LexisNexis Canada,<br />

<strong>2022</strong>) [Handbook], 1.<br />

4. Desjardins Financial Services Firm Inc. v<br />

Asselin, 2020 SCC 30, para 1267.<br />

5. Harry Woolf, “Access to Justice – Final<br />

Report” (1996), s 1(2); online: https://<br />

webarchive.nationalarchives.gov.uk/<br />

ukgwa/20060214041452/http://www.<br />

dca.gov.uk/civil/final/overview.htm.<br />

6. CQLR c C-25.01 [CCP].<br />

7. Chief Justice Richard Wagner, “Access to<br />

Justice: A Societal Imperative,” remarks<br />

made at the 7th Annual Pro Bono<br />

Conference (4 Oct 2018); online: www.scc-<br />

csc.ca/judges-juges/spe-dis/rw-2018-10-<br />

04-eng.aspx.<br />

8. Handbook at 77.<br />

9. Ibid.<br />

10. Ibid at 78.<br />

11. Ibid at 83.<br />

12. Canada Post Corp v Lépine, [2009] 1 SCR 549<br />

at para 57 [Lépine].<br />

13. Eizenga, Handbook at 85.<br />

14. Ibid.<br />

15. Ibid at 89.<br />

16. Ibid.<br />

17. Ibid at 96.<br />

18. Ibid.<br />

19. Ibid at 97.<br />

42 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL



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