The-Advocates’-Journal-Winter-2022
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
THE ADVOCATES’ SOCIETY<br />
PAST PRESIDENTS<br />
<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 />
OFFICERS<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 />
DIRECTORS<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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PAST EDITORS OF THE JOURNAL<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
FROM THE EDITOR<br />
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 />
THE ADVOCATES’ JOURNAL<br />
SUBMISSION GUIDELINES<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 />
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• Length: Although we appreciate concision, there is no<br />
maximum or minimum length for <strong>Journal</strong> articles. <strong>The</strong><br />
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 />
include notes is at the author’s discretion. (All direct<br />
quotations should be referenced, however, whether<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
CONTRIBUTORS<br />
<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
FEATURE<br />
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
TRIBUTE<br />
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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ADVOCACY AND SOCIETY<br />
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
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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 />
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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
THE ART OF ADVOCACY<br />
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
REFLECTIONS OF AN ADVOCATE<br />
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 />
www.advocates.ca
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 />
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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 />
des parties autochtones (1er supplément)<br />
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
THE PRACTICE OF ADVOCACY<br />
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
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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 />
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40 | WINTER <strong>2022</strong> | THE ADVOCATES’ JOURNAL
BOOK REVIEW<br />
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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