The-Advocates’-Journal-Winter-2022

Vol. 41, No. 3. | WINTER 2022

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The Advocates’ Journal 

Vol. 41, No. 3; Winter 2022 

35 

From the Editor 

3 24 

Three features of Canadian law 

and three resulting focuses 

of Canadian advocacy 

Geoff R. Hall 

Annals of Law: R v Marshall – 

The making of the 

“moderate livelihood” fishery 

Alisa Lombard and Andrew Lokan 

6 27 

Look back: Work hard 

and don’t grumble 

The Honourable Ian Binnie, CC, KC 

Clay Ruby: 

Activist, mentor, and friend 

Gerald Chan and Nader R. Hasan 

12 34 

Why it’s hard to become 

a better advocate 

Paul Fruitman 

Politigation games: 

An analysis of Donald Trump’s legal 

siege on the 2020 election 

Awanish Sinha, Brittany Cerqua, and Jonathan Nehmetallah 

14 39 

An essential resource 

for Canadian jurists 

Shaun E. Finn 

THE ADVOCATES’ JOURNAL | WINTER 2022 | 3

THE ADVOCATES’ SOCIETY 

PAST PRESIDENTS 

Winter 2022; Vol. 41, No. 3. 

Editor 

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

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Cover | Charlotte County Court House National Historic 

Site of Canada in Saint Andrews, NB 

Ryan Little 

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

1966-67 The Hon. R. F. Reid 

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

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1986-87 A. D. Houston, KC 

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

1989-90 The Hon. Justice Peter G. Jarvis 

1990-91 John F. Evans, KC, LSM 

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1992-93 The Hon. Justice Eleanore A. Cronk 

1993-94 Roger Oatley 

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OFFICERS 

President: Peter W. Kryworuk 

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DIRECTORS 

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2003-04 Jeffrey S. Leon, LSM 

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2005-06 Linda Rothstein, LSM 

2006-07 Michael E. Barrack 

2007-08 Michael Eizenga, LSM 

2008-09 Peter J. E. Cronyn 

2009-10 Sandra A. Forbes 

2010-11 Marie T. Henein, LSM 

2011-12 Mark D. Lerner 

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2013-14 Alan H. Mark 

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2016-17 Bradley E. Berg 

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2018-19 Brian J. Gover, LSM 

2019-20 Scott Maidment 

2020-21 Guy J. Pratte, AdE, LSM 

2021-22 Deborah E. Palter 

Paintings, Illustrations, and Photography 

Delaney Cox: pp. 24, 27, 34, 37 

Spencer Flock: p. 7 

Scott Shields: pp. 12, 14 

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PAST EDITORS OF THE JOURNAL 

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4 | WINTER 2022 | THE ADVOCATES’ JOURNAL

FROM THE EDITOR 

On friendship 

“And do as adversaries do in law, strive mightily, 

but eat and drink as friends.” 

~ William Shakespeare, The Taming of the Shrew 

Linda Rothstein, LSM 

The phrase “my learned friend,” or even 

the more neutral “my friend,” used to 

grate on me. This in-court reference to 

opposing counsel was de rigueur when I grew 

up in the profession, but it nevertheless felt antiquated 

and contrived – a marker of the faux 

British men’s club atmosphere that pervaded 

courtrooms back then. Even worse, not infrequently 

I heard the words used with a hint of 

sarcasm, occasionally contempt. They seemed 

anything but a reflection of genuine respect, let 

alone friendship. 

Besides, when I look back on my first few 

years of practice, the idea that friendships 

could grow, even flourish, between hardbitten 

counsel seemed no more believable than 

the predictable plotline of an episode of Ally 

McBeal and no closer to my world than the 

show’s portrayals of law firm washroom sex. 

Of course, I was wrong. Eventually and 

inevitably, like most advocates of my vintage, 

I made many friends inside and outside the 

courtroom; some of them I first met as the 

counsel who crushed me in a case. Indeed, 

I’m convinced that a cultural anthropologist 

studying the lives of happy enough litigators 

would conclude that most view their friendships 

with other counsel as essential to their 

professional satisfaction. Friendships within 

law firms are important, too, but they are easier 

to understand – the constant if not daily 

proximity, the shared goals and burdens. But 

the idea that opposing counsel in a long, hardfought 

case can become a trusted friend is less 

intuitive. Older counsel treat it as a given but 

rarely talk about it; some younger counsel in 

the age of Zoom motions and trials, I am told, 

need it explained. So I will try. 

The famous friendships between the world’s 

best rival athletes offer an analogy. Roger 

Federer and Rafael Nadal; Chris Evert and 

Martina Navratilova. No one doubts how intensely 

they wanted to beat each other or how 

devastated they were by any defeat. But the 

shared intensity of the effort has bred respect 

and deep affection, not antipathy. Check out 

the post-game videos of Federer and Nadal’s 

last match together at the Laver Cup: Nadal is 

as bereft as the retiring Federer. 

This analogy has obvious limitations. None 

of my online research revealed how common 

these famous rival friendships are in the tennis 

world, let alone in the wider world of competitive 

sports. And no matter how passionate 

one is about a particular athlete or a particular 

team or sport, there is no escaping Boris Becker’s 

deadpan reality check after a Wimbledon upset: 

“I haven’t lost a war. No one got killed. I just lost 

a tennis match.” 

Litigation is not a war, either, but the high 

stakes for our clients can weigh heavily on the 

most seasoned litigator – the threats to job or 

profession or family, the economic hardship, 

the loss of liberty for clients charged with criminal 

offences. Watching our clients and witnesses 

being effectively cross-examined is not for the 

faint of heart, but it is still an opportunity to 

admire the talent and conviction of opposing 

counsel. And although it may take weeks to 

stop the rounds of self-flagellation and escape 

the blue funk after losing an important case, a 

friendly invitation from opposing counsel is 

rarely unwelcome. You’ll find a bond of shared 

vulnerability, provided there is no gloating. 

Amanda Mull, who writes for The Atlantic, 

has observed that we don’t have enough English 

words for all the categories of friendship 

and that a communications professor has explained 

that “friend is a very promiscuous word” 

(“The Pandemic Has Erased Entire Categories of 


Friendship,” January 27, 2021). That works for me. 

The good news is that friends made at the bar are 

lower maintenance than most others: they understand 

when you don’t reach out for months at a 

time and don’t expect you to invite them to your 

house for dinner. They thrive on last-minute 

phone calls or spontaneous suggestions for a 

catch-up. You don’t have to know their taste in 

music or food, or even the names of their kids. 

The conversation can centre on venting, especially 

about the latest bruising by a judge. The reassurance 

on offer is better than a bottle of scotch 

or even the most talented psychotherapist. 

One consequence of the pandemic is that human 

connections have suffered. Peter Kryworuk, 

president of The Advocate’s Society, worries 

because mentoring is also a clear casualty, and 

he has championed its importance in return to 

workplace strategies for law firms. If I’m right, 

friendships in our profession will not dissipate 

as quickly as mentor-mentee relationships. But 

lest the value of collegiality at the bar become 

one more fading platitude, let’s call, email, or 

text our learned friends and ask them what’s up. 

**** 

In this issue, we include an Annals of Law feature 

about the historic victory for Mi’kmaw treaty 

rights in R v Marshall. We also mourn the sad and 

sudden passing of Clay Ruby in a profile by two of 

his mentees and partners. We include an analysis 

of Donald J. Trump’s legal strategy to contest the 

results of the 2020 election, a deconstruction of 

the endless challenges in mastering advocacy, a 

meta-theory about Canadian law and advocacy, 

and a review of the new, seminal book on class 

actions. Time to take a break, put your feet up, 

and embrace some new ideas. 

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Need help? Email us at 

membership@advocates.ca 

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Thank you, 

Linda Rothstein, Editor 

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Sonia Holiad, Production Editor 


CONTRIBUTORS 


One of Canada’s most respected judges and 

advocates, the Honourable Ian Binnie served 

for nearly 14 years as a justice of the Supreme 

Court of Canada. 

Nader R. Hasan 

Nader is a partner at Stockwoods LLP, where 

he practises criminal, constitutional, and 

regulatory law. By day, he is a trial and appellate 

lawyer. By night, he is a glorified chauffeur for 

an 8-year-old and a 5-year-old. 

Brittany Cerqua 

Brittany Cerqua is an associate in the litigation 

group at McCarthy Tétrault LLP in Toronto. 

She maintains a broad litigation practice 

with an emphasis on corporate commercial 

litigation, securities litigation, banking litigation, 

and professional liability. 

Andrew Lokan 

Andrew Lokan is a partner at Paliare Roland 

Rosenberg Rothstein LLP, where he specializes 

in constitutional litigation including Indigenous 

rights, appellate advocacy, public law, and 

complex commercial litigation. He is co-author 

of Constitutional Litigation in Canada and teaches 

this subject at Osgoode Hall Law School. 

Gerald Chan 

Gerald Chan is a partner at Stockwoods LLP 

in Toronto, practising criminal, constitutional, 

and administrative law. Once in a while, he still 

daydreams about the rap career that never was. 

Alisa Lombard 

Alisa Lombard is a multilingual, bijural lawyer 

specializing in Indigenous-Crown relations in 

national and international forums. A dedicated 

citizen of the Mi’kmaq Nation (Elsipogtog First 

Nation), she has appeared before all levels 

of courts, including the Supreme Court of 

Canada, and practises nationally in service of 

Indigenous collectives and individuals. 

Shaun E. Finn 

Shaun E. Finn is a litigation partner at BCF 

LLP and co-leader of the Class Action Defence 

Group. He represents business and institutional 

clients, lectures at the McGill Faculty of Law, 

and enjoys long walks on the beach. 

Jonathan Nehmetallah 

Jonathan Nehmetallah is an associate at 

McCarthy Tétrault LLP in Toronto, practising 

in litigation with a focus on securities matters 

and municipal law. He isn’t clever enough for 

a flash of wit in such a short biography. 

Paul Fruitman 

Paul Fruitman is a partner at Lax O’Sullivan 

Lisus Gottlieb LLP. He’s got to admit it’s 

getting better, a little better, all the time. At 

least he thinks it is. 

Geoff R. Hall 

Geoff R. Hall is a litigation partner at 

McCarthy Tétrault LLP, where he handles 

a wide variety of commercial matters at all 

three levels of court, an experience that has 

taught him the importance of the features 

and focuses discussed in his article. 

Awanish Sinha 

Awanish Sinha is a litigation partner at 

McCarthy Tétrault LLP and co-lead of the public 

sector group. Awi represents political actors and 

corporations in ethics, lobbying, and elections 

law matters. He also advises clients on legal 

issues at the intersection of business, politics, 

and public policy. 


FEATURE 

Annals of Law: R v Marshall - 

The making of the “moderate livelihood” fishery 

Alisa Lombard and Andrew Lokan 

When the late Donald Marshall, Jr., was arrested in 1993 

for selling 463 pounds of eels caught in Epegoitnag 

(Pomquet Harbour, Antigonish County, Nova Scotia), 

he was already a household name. He had spent 12 years in prison 

for a murder he did not commit – a travesty of justice that 

captured the headlines when a Royal Commission of Inquiry 

found that systemic failures and ingrained racism had led to his 

wrongful conviction. 1 But the challenge to the legal system from 

his arrest for catching and selling eels was equally profound. 

His defence was simple – he had a Treaty right to catch and 

sell fish and wildlife, under the “truckhouse” clause of a 1760 

“Peace and Friendship Treaty” between the British Crown and 

the Mi’kmaw of what is now Atlantic Canada. 

His defence did not leap from the page, on the text of the 

Treaty. The truckhouse clause reads: 

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

barter or Exchange any Commodities in any manner but 

with such persons or managers of such Truck houses as 

shall be appointed or Established by His Majesty’s Governor 

at Lunenbourg or Elsewhere in Nova Scotia or Accadia. 

Nevertheless, in R. v Marshall, 2 a majority of the Supreme 

Court agreed with his defence, finding that the terms of the 

Treaty gave the Mi’kmaw the right to earn a “moderate livelihood” 

through harvesting and selling fish and wildlife. 

How the Court got there is a story of stellar advocacy, a longterm 

commitment by the Mi’kmaw to breathe life into a Treaty 

that many considered to be moribund, and a Court that was 

receptive to reframing the paradigm of Treaty interpretation. 

The ruling touched off a political firestorm. Mi’kmaw fishers 

began to fish and sell other species, as foreseen by the 

ruling. Non-Indigenous commercial fishers, fearful of losing 

an already dwindling resource (and in some cases exhibiting 

racist attitudes like those noted in the Marshall Inquiry), reacted 

with fury. Violence broke out between non-Indigenous 

and Mi’kmaw lobster fishers. Mainstream media denounced 

the ruling. Politicians did what politicians do (at least in the 

immediate aftermath), which is to say, committed to as little as 

possible. The West Nova Fishermen’s Coalition, an intervener 

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

a rehearing “to have the Court address the regulatory authority” 

of the federal government. 3 The Court dismissed the motion 

(in a ruling known as Marshall II), but took the opportunity 

to stress that both the federal and provincial governments 

retained the authority to regulate the right for conservation 

purposes, as long as they met the applicable test for justifying 

the infringement of a Treaty right. 4 

Now, 23 years later, Marshall is back in the news. While the 

federal government undertook various initiatives to implement 

Marshall, many First Nations have been frustrated by 

the slow pace of negotiated settlements and what they see as 

the paternalistic attitudes of the Department of Fisheries and 

Oceans. No subsequent Supreme Court case has defined the 

contours of “moderate livelihood,” and there are conflicting 

claims over what that means. Some First Nations have reached 

moderate livelihood fisheries agreements with the government. 

On September 17, 2020 (21 years to the day after Marshall 

I), the Si’pekne’katik launched their own moderate livelihood 

fishery, asserting the inherent self-government right to 

self-regulate their own harvesting activities according to the 

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

“we use our Indigenous ecological knowledge along with ceremony 

as a means of negotiating our survival in Mi’kma’ki.” 5 

Other First Nations followed suit. Again, there have been incidents 

of sabotage of Mi’kmaw fishing equipment, which many 

attribute to non-Indigenous fishers. 6 

So how did we get here, and what does this tell us about 

what the future holds? 

How the case unfolded 

The Marshall case starts with commitment from the community. 

In the early 1990s, the Aboriginal Title Project, located at 

the Treaty and Aboriginal Rights Research Centre at Shubenacadie 

(Si’pekne’katik) hired a freshly minted PhD named 

William Wicken, a historian with a focus on Indigenous issues. 

Dr. Wicken recounts that at the time, few historians had paid 

much attention to the Peace and Friendship Treaties as a source 

of rights. But the elder Chiefs held steadfast: “We have to defend 

the Treaties.” Two Mi’kmaw organizations – the Union of 

Nova Scotia Indians (UNSI) and the Confederacy of Mainland 

Micmacs (CMM) – began to look for a test case to establish a 

Treaty right to fish for trade. Wicken and others began to research 

the historical basis for such a right. Dr. Wicken was part 

of a newer approach to history, emphasizing social context. He 

was less focused on the words of the Treaties than on the context 

in which they arose – the military rivalries of the 18th century, 

the economy and way of life of Mi’kmaw communities, 

and what each side might expect or assume when they came 

together in Treaty negotiations. Dr. Wicken became convinced 


that both sides would have assumed that the Mi’kmaw had a 

general right to hunt and fish, and to trade their bounty for 

goods at the “Truck house.” 7 

Establishing such a right would not be an easy matter. In 

R v Denny, 8 the Nova Scotia Court of Appeal accepted that the 

Mi’kmaw had an Aboriginal right to fish for food, protected 

by section 35 of the Constitution Act, 1982, but sidestepped the 

question of whether they had a Treaty right. The lawyer for 

the accused in Denny was Bruce Wildsmith, a law professor 

at Dalhousie University. Like the elder Chiefs, he believed in 

the Treaties and their untapped potential to support a broader 

right to harvest fish and wildlife for trade. 

When Marshall was charged, the UNSI and CMM agreed to 

support his defence. The UNSI retained Wildsmith, and the 

CMM was represented by Eric Zscheile. Together they planned 

a defence that would be different from any previous efforts in 

Atlantic Canada. For the first time, they used professional historians 

versed in Western historical interpretation – Dr. Wicken, 

and Professor John Reid of St. Mary’s University, a specialist 

in European and Indigenous peoples inhabiting the Maritime 

region prior to 1710. They faced off against Professor Stephen 

Patterson of the University of New Brunswick, a specialist in 

colonial New England history who had developed an interest 

in Mi’kmaw Treaties. This was the first of several trials in 

which Dr. Wicken and Dr. Patterson were on opposite sides of 

the courtroom. 9 In those early days, Dr. Wicken recalls, procedures 

were not as formalized as they have since become. 

The defence experts did not prepare expert reports but led the 

court through all the key historical documents in their testimony-in-chief. 

Reid testified for seven days, Wicken for 14 and 

a half, and Patterson for 11. The experts were the only witnesses 

to testify. 

The Crown prevailed at trial and in the Court of Appeal. The 

trial judge ultimately accepted Dr. Patterson’s more colonial 

approach to the Treaty. Truckhouses, Dr. Patterson said, had 

been established pursuant to the Treaty in the 1760s, but had 

disappeared within a few years. For Dr. Patterson, the emphasis 

of the Treaty was on the submission by the Mi’kmaw 

to British authorities, who had just emerged victorious from 

their campaign against the French, with whom the Mi’kmaw 

had been allied. (Louisbourg had fallen in 1758, and Quebec 

the following year.) The significance of the truckhouse clause 

was that the Mi’kmaw agreed to an exclusive trading arrangement 

with the British authorities; truckhouses were to be 

established to facilitate this. Dr. Patterson’s historical interpretation 

was that the Mi’kmaw had asked only to be treated like 

other British subjects. Once the truckhouses disappeared, the 

truckhouse clause had no further significance. The trial judge 

found that the Mi’kmaw had a “right to bring” the products of 

their harvesting activities to the truckhouse to trade, but that 

right was subject to regulation, and was only on the same basis 

as other British subjects. He agreed that once the truckhouses 

were abandoned the right became moot. The Court of Appeal 

affirmed the trial judge’s ruling. The approach taken in the 


lower courts has since been widely disavowed 

as a textual “permafrost right” 10 

interpretative framework. 

The Supreme Court of Canada was 

a very different court from the lower 

courts. In the 1990s, the Court had been 

engaged in an attempt to flesh out the 

framework of Aboriginal and Treaty 

rights, which had acquired constitutional 

protection in 1982 with the enactment of 

section 35. Two justices wrote reasons: 

Justice Binnie (for the majority), and Justice 

McLachlin (in dissent). Justice Binnie 

had just joined the Court in 1998. Prior 

to that, he had served from 1982 to 1986 

as federal associate deputy minister of 

justice, where he had special responsibilities 

for Aboriginal matters. 11 He would 

have seen three constitutional conferences, 

12 held in 1983, 1985, and 1987, play 

out. These conferences were intended 

by some to identify and define section 

35 rights, but they did not accomplish 

that clairvoyant task. The task of giving 

content to section 35 would be up to the 

courts. It is evident from Justice Binnie’s 

various decisions that he had a deep and 

abiding sense that Canada needed to do 

better for Indigenous peoples. Justice 

McLachlin, too, was deeply engaged in 

the Court’s jurisprudence on section 35. 

In her 1996 dissent in R v Van Der Peet, 

she would have recognized an Aboriginal 

right of the Sto:lo to catch and sell 

fish for sustenance purposes (which she 

equated with earning a “moderate livelihood” 

in the modern context, borrowing 

a phrase originally coined by Lambert JA, 

dissenting in the British Columbia Court 

of Appeal). 13 Subsequently, as Chief 

Justice, she wrote for the Court in Tsilhquot’in 

Nation v British Columbia, 14 the first 

case to make a declaration of Aboriginal 

title in Canada. Speaking extra-judicially, 

she endorsed the claim that Canada had 

attempted to commit “cultural genocide” 

against Aboriginal peoples, and that this 

was the worst stain on Canada’s human 

rights record. 15 But as a jurist, she 

was perhaps more of an incrementalist, 

concerned with building consensus and 

respecting precedent. Moreover, she had 

great respect for trial judges and was 

generally loathe to interfere with their 

factual findings. 

For the majority, Justice Binnie held 

that the text of the Treaty did not comprise 

the entirety of the agreement between 

the signatories. The Treaty was to 

be interpreted generously, in accordance 

with the Court’s prior cases (although 

this should not, in a phrase which has 

become beloved of government lawyers, 

“be confused with a vague sense of afterthe-fact 

largesse”). 16 Further, both the 

majority and dissent held that the courts 

can look to extrinsic evidence to interpret 

the Treaty even absent ambiguity, 

contrary to the Court of Appeal’s view. 17 

The extrinsic evidence recorded that the 

Aboriginal leaders had requested truckhouses 

“for the furnishing them with necessaries, 

in Exchange for their Peltry.” 18 

The majority found that the truckhouse 

clause carried an implied right to harvest 

fish and wildlife and sell the catch 

for “necessaries,” which Justice Binnie 

equated with securing a “moderate livelihood” 

in the modern context. 19 As for 

the truckhouse clause, it would not be 

consistent with the honour and integrity 

of the Crown to interpret the Indigenous 

parties’ positive trade demand 

as leading only to a negative covenant 

not to trade with anyone other than the 

British. 20 The Crown did not advance a 

justification argument for breach of the 

Treaty, so Marshall was acquitted on the 

basis that the regulations under which 

he was charged failed to accommodate 

his Treaty right. 

Wildsmith’s cross-examination of Dr. 

Patterson figured predominantly in the 

majority’s decision. As quoted by Justice 

Binnie: 

Q. [I]n this time period, 1760 and 

’61, fish would be amongst the 

items [the Mi’kmaw] would have 

to trade. And they would have the 

right under this treaty to bring fish 

and feathers and furs into a truckhouse 

in exchange for commodities 

that were available. 

A. Well, it’s not mentioned but it’s 

not excluded. So I think it’s fair to 

assume that it was permissible. 

Q. Okay. It’s fair to say that it’s 

an assumption on which the trade 

truckhouse clause is based. 

A. That the truckhouse clause is 

based on the assumption that natives 

will have a variety of things to 

trade, some of which are mentioned 

and some not. Yes, I think that’s fair. 

Q. Yes. And wouldn’t be out of line 

to call that a right to fish and a right 

to bring the fish or furs or feathers 

or fowl or venison or whatever they 

might have, into the truckhouses 

to trade. 

A. Ah, a right. I think the implication 

here is that there is a right 

to trade under a certain form of 

regulation – 

Q. Yes. 

A. – that’s laid down. And if you’re 

saying right to fish, I’ve assumed 

that in recognizing the Micmac by 

treaty, the British were recognizing 

them as the people they were. They 

understood how they lived and that 

that meant that those people had 

a right to live in Nova Scotia in their 

traditional ways. And, to me, that implies 

that the British were accepting 

that the Micmac would continue to 

be a hunting and gathering people, 

that they would fish, that they 

would hunt to support themselves. 

I don’t see any problem with that. 

It seems to me that that’s implicit in 

the thing … 

More than this, the very fact that 

there is a truckhouse and that the 

truckhouse does list some of the 

things that natives are expected to 

trade, implies that the British are 

condoning or recognizing that this 

is the way that natives live. They do 

live by hunting and, therefore, this 

is the produce of their hunting. They 

have the right to trade it. 21 

Dr. Wicken recalls that on the day of this 

cross-examination, Wildsmith came back 

into the room they were using for preparation, 

shortly after this exchange. He 

was jubilant. “We’ve just won the case,” 

he said, or words to that effect. One might 

quibble that it took three court levels to 

get there, but he was proved right. In his 

book, Dr. Wicken notes that Dr. Patterson 

was on the stand for 10 days in chief, but 

Wildsmith cross-examined him for only 

one. 22 Wildsmith clearly understood the 

golden rule of cross-examination: get 

what you need, and then stop. 

Wildsmith was also the architect of 

the strategy of putting forward a limited 

right to trade for “necessaries,” not 

a full-blown right to commercial fishing. 

The word “necessaries” was not used in 

the Treaty, and Dr. Wicken and the other 

historians had not given it much attention. 

Dr. Wicken felt that his research 

supported an unrestricted commercial 

right to fish. 23 But Wildsmith and the 

legal team were looking for an argument 


that would tempt the Court. 

As it was, the result was far from 

certain. Justice McLachlin’s dissent accepted 

the trial judge’s conclusions on 

the limited nature of the truckhouse 

clause. She would have found that the 

truckhouse clause was a limited promise, 

whereby the Mi’kmaw promised to 

trade exclusively with the British, who 

promised truckhouses for them to do so, 

and that the “right to bring” was limited 

to this context. Within a few years there 

were no truckhouses, and no restrictions 

on Mi’kmaw trading with others. 24 One 

might speculate from the way it is written 

that her dissent started out as a majority 

judgment – it is rare, for example, for a 

dissent drafted after a majority judgment 

to recite the arguments and results in 

the courts below. 25 Dr. Patterson, for his 

part, complained to the media after the 

judgment was released that the Supreme 

Court had misunderstood his evidence 

– that he only meant the Mi’kmaw had 

a right to fish subject to regulation, the 

same as everyone else. 26 His complaint 

was a factor in the backlash to the case. 

The legacy of Marshall 

Stepping back, we consider what the majority 

may have been trying to achieve, 

and whether they were successful. 

In the 1990s, the Supreme Court issued 

a series of ground-breaking decisions 

pertaining to Indigenous Treaty and harvesting 

rights, of which Marshall is one. 

These cases nudged the yardsticks toward 

greater recognition of Indigenous 

rights but left considerable uncertainty 

about the precise scope of those rights. 

One could criticize the slow pace of this 

approach, which carries the risk that it 

does little to prevent a slide toward assimilation, 

previously an expressly stated 

objective of the federal government: 

[T]he Government will in time reach 

the end of its responsibility as the 

Indians progress into civilization 

and finally disappear as a separate 

and distinct people, not by race extinction 

but by gradual assimilation 

with their fellow-citizens. 27 

One could also speculate that the objective 

was to create conditions in which negotiated 

settlements and dispute resolution could 

occur, which are always preferable to 

adversarial litigation in this field. 28 If so, 

the results have been mixed. Terms such 

as “moderate livelihood” are inherently 

vague, leaving room for very different 

claims and counterclaims about what 

they mean. The continued strife in the 

Maritimes over Indigenous fishing rights 

may owe something to this fact. 

Marshall is also, in a sense, of its time. 

Unlike some cases since, no Mi’kmaw 

witnesses testified. Oral history evidence 

was not part of the mix, though recognized 

in 1997 (three years after the 

Marshall trial began) as carrying weight 

on footing equal to more familiar forms 

of evidence to colonial courts, such as 

documentary evidence. 29 There is also a 

top-down quality to the decision. Rights 

are recognized, but the presumption is 

that they will be regulated as necessary 

by the federal and provincial governments. 

Since 1999, there has been a significant 

shift toward the recognition of 

Indigenous laws and self-government 

rights. Canada has removed its previous 

reservations in respect of the United 

Nations Declaration on the Rights of 

Indigenous Peoples (UNDRIP) and has 

recently passed legislation to implement 

this declaration. 30 UNDRIP fortifies the 

status in colonial institutions of Indigenous 

laws and self-government. 31 

The Supreme Court is beginning to 

put stock in the space belonging to 

Indigenous legal orders, traditions, and 

perspectives within the Canadian legal 

framework. Asked about the effect of 

the Court’s uniformity of perspective on 

the collective nature of Indigenous 

rights, Professor Naiomi Metallic of the 

Schulich School of Law at Dalhousie 

University, a citizen of Listuguj First 

Nation, says that “once you unpack what 

a collective right is, there is a clear unveiling 

of the right to governance with 

a self-government dimension.” There 

is support for Professor Metallic’s apt 

proposition in Bernard v R, 32 which she 

argued and in which the New Brunswick 

Court of Appeal held that the nature 

of communal rights mandates that 

the community regulate, or authorize, 

appropriate exercise of these rights by 

its individual members through ensuring 

equitable access to the resources. 33 

Marshall’s interpretation has dominated 

recent disputes in southwest Nova Scotia. 

Some First Nations, such as Membertou 

First Nation (where the late Donald Marshall, 

Jr., was from), have approached 

the rights assertion by acquiring a significant 

stake in Nova Scotia’s most lucrative 

lobster buyer. Others, as noted, 

have directly met the ambiguities and 

asserted their rights by establishing 

their own “moderate livelihood” fisheries, 

which they regulate themselves. 

As of time of writing, the Sipekne’katik 

First Nation continues to assert the right 

to self-manage its lobster fishery and is 

facing enforcement action by the Department 

of Fisheries and Oceans. 34 A number 

of First Nations have reached various 

types of moderate livelihood agreements 

with the federal government, and some 

seek a principled realization and meaningful 

implementation of Netukulimk. 

For example, Chief Sock of Elsipogtog 

First Nation says: 

Miigemeoei tepleotagn ag nimatjeonsotiil 

tegtetal taan getoo gôgai elegeoit 

teleoetj. Nigemenagiig ag tje niinen, 

elmiag egtlamsitaiegsep, na gisaag 

gagi’tepagsalôgsigep. Mô neotaoeg gapetnôlg’eoag 

tlit’goenogsinen, pasg’elg 

noetag negemô tjiglitaan notaotinen’g 

ag tlamsôteoan negemô oongiigeo’ag 

glaman gis siao’nimatjoltitesnen ninen 

gotai Gisolg teltet’gep.”* 

These approaches are not necessarily 

mutually exclusive. It seems plausible 

that there will be further litigation and 

that the “moderate livelihood” issue will 

again reach the Supreme Court. 

If so, it is likely that much more attention 

will be paid to Indigenous laws 

and self-government rights. Self-government 

is the subject of a pending Supreme 

Court of Canada case in which 

Quebec is contesting the constitutionality 

of Canada’s Bill C-92 on Child Welfare. 

35 Professor Metallic is hopeful that 

the Court will seize the opportunity to 

make unambiguous pronouncements on 

the scope of the right and its location 

within the constitutional order. Crucially, 

* 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, 

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 

peace with nature as the Creator intended.” 


the Court will have an Indigenous judge with a background in 

Indigenous law and Indigenous relations, Justice O’Bonsawin, 

for the case on Bill C-92. 

A future case on the moderate livelihood fishery will likely 

have to consider more directly how Indigenous perspectives 

on resource management, law, and self-government, ascertained 

through Mi’kmaw legal orders, can be considered and 

infused into the governing legal framework in which they 

already theoretically exist. 

“The Mi’kmaw perspective around Netukulimk is what informs 

the exercise of the [harvesting] right,” according to 

Professor Metallic. However, she explains, Netukulimk is not 

exhaustive of applicable L’nu legal traditions informing the 

right to harvest. Referencing Listuguj First Nation’s Lobster 

Law, Professor Metallic points to the ripe principles that direct 

Mi’kmaq practices and activities: Ango’tmu’q, which means 

“taking care of something in a careful manner”; Apajignmuen, 

which means “sharing” and “giving back to one’s community, 

thereby strengthening relations; Gepmite’tmnej, which means 

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

The reconciliation imperative requires that these principles, 

inter alia, be given meaningful effect in Western law. 

Notes 

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

2. [1999] 3 SCR 456 (Marshall I). 

3. R v Marshall, [1999] 3 SCR 533 (Marshall II). 

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

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 

aboriginal peoples”: R v Sparrow, [1990] 1 SCR 1075. 

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

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

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). 

8. 1990 CanLII 2412 (NSCA). 

9. They 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 

for the plaintiffs in Daniels. 

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

11. Wewaykum Indian Band v Canada, 2003 SCC 45, para 5. 

12. These were constitutional conferences required by the former ss 37 and 37.1 of the Constitution Act, 1982. 

13. 1996 CanLII 216 (SCC) at paras 279, 282–83. 

14. 2014 SCC 44. 

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

16. Marshall I, supra note 2, para 14. 

17. Marshall I, paras 9–13, 81. 

18. Marshall I, para 19. 

19. Marshall I, paras 7, 59. 

20. Marshall I, paras 4, 52. 

21. Marshall I, para 37. [Emphasis added in original.] 

22. Mi’kmaq Treaties on Trial, supra note 7. 

23. Mi’kmaq Treaties on Trial, 234–35. 

24. Marshall I, supra note 2, paras 93–101. 

25. Marshall I, paras 72–74. 

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 

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 

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

28. R v Desautel, 2021 SCC 17, para 87. 

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

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

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

32. 2017 NBCA 48. 

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 

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

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

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

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

35. Québec (A.G.) v Canada (A.G.), SCC Court File No. 40061. 


TRIBUTE 

Clay Ruby: 

Activist, mentor, and friend 

Gerald Chan and Nader R. Hasan 

Many will rightly remember Clayton Ruby, CM, as a 

legend of the bar and a giant of Canadian law. He 

won landmark cases for a woman’s right to choose, 

the LGBTQ2S+ community, animal rights, the right to a speedy 

trial, and the fair treatment of Indigenous People in the criminal 

justice system. For generations of lawyers who grew up under 

him, he was also a hero, a mentor, and a friend. 

Even when we were young lawyers working for Clay, he 

treated us as equal members of the team. Seniority at the bar 

was irrelevant to him; we were all lawyers, plain and simple. 

He valued our opinions, he ensured that we were given equal 

time in court (all the way up to the Supreme Court of Canada), 

and he passed on the credit when the media asked him about 

his work. When he asked us to join the partnership, he was the 

first to suggest that we change the name of the firm to include 

our names alongside his. 

Although he never gave an inch in the pursuit of his clients’ 

rights, the other side – prosecutors, government lawyers, and 

police – respected him. One time, after being shredded on 

the stand during a cross-examination by Clay, a police officer 

approached him and shook his hand for his professionalism. 

Clay taught us to pack as much punch into as few words 

as possible, how to be forceful and gracious in a courtroom 

at the same time, and the importance of courageous advocacy 

irrespective of its unpopularity. 

He was never big on speechifying, but once, looking us 

in the eye, Clay told us, “Never want anything from them.” 

“Them” was the Man. Government. The Establishment. Somewhat 

ironically, Clay’s long list of accolades – Member of the 

Order of Canada, honorary doctorate from the Law Society 

of Ontario – made him one of the most decorated lawyers in 

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

other way around. 

Always hyper-curious about the law, Clay would tell us, 

“There are no boring cases, only boring lawyers.” He’d add 

that we should be creative in framing the case. Picasso had 

his brushes, and Beethoven had his piano. Clay Ruby had 

the Canadian Charter of Rights and Freedoms, and he was 

endlessly creative with it – never afraid to challenge government 

action on novel grounds. 

The people Clay mentored are legion and trailblazers in 

their own right: Marlys Edwardh, Justice Melvyn Green, Justice 


Michael Code, Frank Addario, Justice 

Shaun Nakatsuru, Delmar Doucette, 

Justice John Norris, Justice Jill Copeland, 

Justice Breese Davies, Annamaria 

Enenajor, and Stephanie DiGiuseppe – 

to name but a few. Clay championed 

women’s advancement in the 

profession, and many leading 

advocates at the criminal bar are 

women who at one time trained 

with Clay. He took special pride 

in this. 

Clay loved his family and 

friends with as much force as he 

brought to the courtroom. Dinners 

with him and his spouse, Justice 

Harriet Sachs, and our annual 

trips to their cottage, were rich in 

conversation, flowing from law 

and politics to our family hobbies and 

travel plans. And then, when it got too 

late, Clay would announce, “It’s time to 

go home,” always said with affection. 

He was a connoisseur of classical music 

and a patron of the arts scene in Toronto. 

He could speak about these subjects with 

authority. But he would react with a mix 

of bewilderment and amusement if the 

conversation ever switched to sports. 

More than with the arts, Clay was 

an authority on all matters of food 

Clay championed women’s advancement 

in the profession, and many leading advocates 

at the criminal bar are women 

who at one time trained with Clay. 

He took special pride in this. 

and wine. His tastes were eclectic – he 

loved fine dining and counted some of 

Canada’s most prominent chefs among 

his friends, but he also had a fondness 

for a great pastrami or peameal bacon 

sandwich. He insisted that we go out for 

lunch together every day we were in the 

office – even when we protested that we 

were too busy with work. Sometimes 

we would drive to Markham in the middle 

of the workday for a good lobster or 

Peking duck. 

One of our enduring 

memories was dining at 

a local Chinese restaurant 

that Clay had been 

frequenting for years. On 

this particular day, an 

angry customer stormed 

into the restaurant complaining 

that something 

was rotten in his takeout 

and threatening to 

file a complaint. Before 

we could put our spoons 

down, Clay had rushed to the manager’s 

side and offered his pro bono services 

to the restaurant, capturing so much of 

Clay: his fierce loyalty, his aversion to 

injustice, and his love of food. 

We will miss him. 

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ADVOCACY AND SOCIETY 

Politigation games: 

An analysis of Donald Trump’s legal siege on the 2020 election 

Awanish Sinha, Brittany Cerqua, and Jonathan Nehmetallah 

The authors wish to thank Juliana Smith and Hannah Cinel, our 

exemplary summer and articling students at McCarthy Tétrault. 

“The only way we’re going to lose this election 

is if the election is rigged.” 

~ President Donald J. Trump, August 16, 2020 

Politigation: The evolution of political warfare 

in the courtroom 

Politigation is a legal action (or series of actions) by a political 

actor primarily to appropriate procedural legitimacy in 

the pursuit of a purely political grievance. It is politics using 

law as a disguise. 

This article focuses on the normalization of this corrosive 

legal strategy, its likely acceleration, and the duty on lawyers 

to identify and denounce it. Politigation threatens to become a 

fixture of elections and public policy debates, hijacking legal 

gravitas to undermine democratic institutions. If it does, it will 

be because the legal community became inured to the justice 

system being brought into disrepute by political opportunism. 

If the purpose of litigation is to secure an outcome, the 

purpose of politigation is merely to exist. Its existence 

provides the necessary support buoying the integrity of a 

political campaign. 

As lawyers, we rely on, and therefore hold dear, just and 

rational legal processes. While our stewardship of the administration 

of justice is a professional responsibility, it of course 

has a cultural impact. Our collective reverence for legal 

processes informs society’s dutiful deference to the legal system 

as a legitimate authority on legitimate disputes subject to the 

laws of the land. Courts are, of course, of independent power 

but equal authority to political actors in western democratic 

models. Indeed, courts receive special social acceptance as 

the last bastion of fair assessment of state conduct. Lawyers’ 

respect for legal systems is paramount to society’s social contract 

to abide peacefully by the courts’ edicts. Unfortunately, 

this reverence creates a myopia to be exploited politically. 

Our legal culture focuses, rightly, on the validity of the legal 

process so as to authenticate the purity of the legal outcome. 

This fidelity is good for civilized society but is prone to abuse 

in elections because of a simple, unanchored assumption: candidates 

respect the integrity of the legal system and the gravity 

of initiating an action. 

Tacitly, the legal system presumes that, for instance, a presidential 

candidate will seriously consider the merit of their position 

and risks of loss before the court. The very fact that a candidate 

has launched an action means that this is, at least, a serious 

matter to be heard. Justice is inherent in the system because 

loss will be material to a plaintiff whose claim is unsubstantiated. 

The certainty of judicial dismissal will render a subject 

res judicata and settled for public debate. A plaintiff’s credibility 

and integrity are on the line. 

Marshall McLuhan’s dictate that “the medium is the message” 

demonstrates its blunt realities here. Politigation gives 

a forum and a structure for political grievance that allows its 

proponents to give it a name. 

The systemic danger of politigation is that it saps the 


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underlying integrity of the legal process. 

If the courts are the forum for political 

disputes, then they are also valid 

targets of political criticism. The legal 

outcomes are immaterial because the 

candidate can simply wave them away 

as politically reasoned: if the litigation’s 

only value to you is performative, then 

you have no motivation not to burn the 

process’s credibility if it ceases to serve 

you. The rank hypocrisy of this positioning 

can be distorted by the very political 

expectation-setting that precedes formal 

proceedings – “If the court acts right, I 

will prevail” – that the general public will 

never really dissect. 

Once used and discarded in a con, the 

legal system, like all marks, is left deficient 

for the experience. 

Lying in plain sight: A case study of 

Donald Trump’s 2020 politigation campaign 

In the United States in 2020, incumbent 

President Donald J. Trump lost the presidential 

election to former vice-president 

Joseph R. Biden. States duly named 

electors to the electoral college, and, on 

January 20, 2021, Joe Biden assumed 

the presidency in accordance with the 

Constitution and custom. To the law, this 

is a fact. Yet in the United States of 2022, 

it remains a volatile social controversy. 

How is that possible? 

In some quarters, the 2020 election result 

is the synthetic result of mass systemic 

corruption. As documented elsewhere, 1 

Mr. Trump 2 himself is a primary generator 

of that disinformation. Beginning 

with his 2020 foreshadowing (quoted 

above and repeated often), throughout 

the election itself and continuing with 

his rallies in 2022, his grand narrative is 

that the election was “rigged.” Refusing 

to ever acknowledge an outcome creates 

a permanent campaign environment for 

the Americans in Mr. Trump’s orbit – 

wrangling, warring, fundraising. 

In the United States, the final protection 

against such ambiguity – the final arbiter 

of election fraud or election disinformation 

– should be the courts. Structurally, 

there is a bevy of legal processes to test 

complaints about the process to select the 

most powerful office-holder in the world. 

While usually not needed, this safety net 

is part of the democratic infrastructure. 

But on November 8, 2020, five days 

following the presidential election, we 

witnessed a novel, direct political threat 

to the institutional legitimacy of the legal 

system – one that is instructive for the 

Western world. Mr. Trump did not concede 

the election of Mr. Biden as the 46th 

President of the United States of America, 

according to constitutional custom. Nor 

was there a single, clear fight about a 

swing state that was too close to call, as 

in Bush v Gore. 3 

Rather, Mr. Trump engaged in a full 

public denial that he had lost the election 

generally, and cited system-wide, ambient 

electoral failure and fraud. Mr. Trump refused 

to acknowledge that Mr. Biden was 

the president-elect. The Trump campaign 

paralyzed American civil structures and 

crushed the economy by proliferating a 

message of electoral uncertainty. 

In effect, the Trump campaign weaponized 

tactical litigation as a political 

communications tool, crafting a ghoulish 

caricature of administrative law. Persuasion 

of the court was a distant second 

priority to co-opting legal integrity in 

a bid to shore up popular support for a 

presidential campaign that would not declare 

defeat. Despite separate, far-fetched 

prayers of relief in individual matters, the 

actual accomplishment of the siege was 

quite potent: it obscured and distorted 

the validity of the electoral result. Despite 

dismissal upon dismissal, the ambient 

sense that the courts were seriously considering 

the democratic outcome made 

that outcome prone to disavowal, and it 

made the legal system complicit in the 

disinformation that followed. 

The Trump 2020 campaign capitalized on 

cultural assumptions by doing away with 

the prerequisite legal diligence and instead 

capitalizing on the imprimatur of legal language. 

Trump supporters were asked to 

consider the medium of communication 

itself, and not the content, as the primary 

driver of meaning. Here, the legal medium 

conferred the meaning. There must be legitimacy 

to these grievances simply because 

they were being litigated. 

For acolytes, Mr. Trump did not have a 

post facto, unfounded, conspiracy theory 

born out of resentment – he had pending 

legal actions to pursue “an accurate, 

honest vote count” in an election that 

“was not over.” 4 The allegations raised 

by Mr. Trump and his allies in the 2020 

politigation ranged from the administrative 

to the fantastical – that mail-in 

ballots were improperly sent out; absentee 

ballots were counted wrongly; poll 

observers were not given proper access 

to the tabulation; and foreign powers 

hacked into and manipulated voting machines. 

From, a legal perspective, each of 

the lawsuits was a separate procedural 

being, with different, legally unaffiliated 

plaintiffs and different state defendants. 

Each case received the full benefit of procedural 

fairness and judicial scrutiny. 

(See Appendix A: Catalogue of Trump 

politigation cases.) 

Yet when one analyzes the actual 

pleadings from the Trump legal siege, 

even with generous benefit of the doubt, 

they do not, in isolation or some combination, 

ever manifest a potential legal outcome 

that could have had an impact on 

the electoral outcome. 5 

After receiving the benefit of procedural 

fairness and judicial scrutiny, the 

very things judicial integrity is built on, 

61 of the 62 independent actions brought 

by Trump and his allies related to the 

2020 election were dismissed or otherwise 

failed. The one case where Mr. 

Trump found success involved reducing 

the time to amend errors on mail-in 

ballots. 6 The number of ballots was small 

and could not have changed the outcome 

of Pennsylvania’s election – and the 

decision was overturned on appeal. 7 

The staggering lack of success puts the 

lie in plain sight – nihilistically, the lie 

is not carefully hidden. Since it strains 

credulity that Mr. Trump, his allies, and 

his various legal teams failed 61 times 

to determine the merit of a matter and 

marshal the evidence before bringing 

it to the court, the goal was something 

distinct from a judicial outcome like that 

in Bush v Gore. 

Surveying the cases, it becomes clear 

that the ones put forward by Mr. Trump 

and his allies lacked any evidence at all 

to ground the improbable assertions 

made or to justify the relief sought. 

Federal District Judge Linda V. Parker, 

in her decisions regarding the Michigan 

election King v Whitmer, 8 found that the 

plaintiffs provided no evidence regarding 

the allegation that physical ballots were 

altered and that election machines and 

software were changing votes away from 

Donald Trump. She stated that “with 

nothing but speculation and conjecture 

that votes for President Trump were destroyed, 

discarded or switched to votes 

for Vice President Biden, Plaintiff’s equal 

protection claim fails.” 9 

Chief Federal District Judge Matthew 

Brann also opined on the dearth of evidence 

put forward by the Trump campaign in 


the Pennsylvania matter Trump v Boockvar: 

This Court has been presented with strained legal arguments 

without merit and speculative accusations, unpled 

in the operative complaint and unsupported by the evidence 

[…] [o]ne might expect that when seeking such a 

startling outcome, a plaintiff would come formidably 

armed with compelling legal arguments and factual proof 

of rampant corruption…. This has not happened. 10 

Clark County Nevada District Court Judge Joseph Hardy, in 

Becker v Gloria, also zeroed in on that case’s dearth of evidence 

and apparent use of hearsay to justify a “do-over” election: 

Plaintiff’s allegations are largely based on declarations and 

newspaper articles. The Court would necessarily need to 

disregard those declarations as inadmissible hearsay. The 

Court finds that Plaintiff has offered no evidence sufficient 

to find any error on the part of either Clark County or Registrar 

Gloria that would warrant granting the relief sought 

here. Finally, Plaintiffs have put forth no evidence that any 

discrepancies in Senate District 6 would affect the outcome 

of the election given that the margin was 631 votes. 11 

Maricopa County Superior Court Judge John R. Hannah Jr., 

in dismissing Arizona Republican Party v Fontes noted: 

The plaintiff baldly asserted that this relief was necessary 

to maintain “confidence in the integrity of our elections,” 

without alleging any facts to show that the machines might 

have miscounted the votes. The plaintiff could not explain 

why the suit had not been filed before the election, or what 

purpose another audit would serve. 12 

If the cases were overwhelmingly meritless and lacked any 

evidence to ground the allegations or justify the relief sought, 

as the above judicial quotes demonstrate, then there must be 

some motive beyond a judicial outcome animating these cases. 

Again, if we look to the judicial decisions, it is made plain what 

Mr. Trump and his allies were seeking to do. 

Federal District Judge Brett H. Ludwig, a Trump nominee, 

wrote in Trump v Wisconsin Elections Commission: 

This is an extraordinary case. A sitting president who did 

not prevail in his bid of reelection has asked for federal 

court help in setting aside the popular vote based on disputed 

issues of election administration, issues he plainly 

could have raised before the vote occurred. 13 

Also in Wisconsin, Chief Justice Pamela Pepper of the United 

States District stated in Feehan v Wisconsin Elections Commission 

that federal judges do not appoint the president but then went 

on to wonder “why the plaintiffs came to federal court and 

asked a federal judge to do so.” 14 

Federal District Judge Linda V. Parker was more blunt 

when she penned her conclusory statement in King v Whitmer: 

“This lawsuit seems to be less about achieving the relief the 

Plaintiffs seek … and more about the impact of their allegations 

on People’s faith in the democratic process and their trust 

in our government.” 15 

United States District Court Judge Steven D. Grimberg, another 

Trump nominee, again alluded to the purpose of the 

claims with respect to Trump ally L. Lin Wood’s Georgia case 

Wood v Raffensperger: “These claims should not depend on the 

outcome of any particular election, to wit, whether Wood’s 

preferred candidates won or lost.” 16 

Finally, and again in Arizona Republican Party v Fontes in the 

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against Arizona Republican Party, the bench noted, “The plaintiff 

is effectively admitting that the suit was brought primarily 

for an improper purpose. […] It is saying that it filed this lawsuit 

for political reasons. ‘Public mistrust’ is a political issue, 

not a legal or factual basis for litigation.” 17 

All things considered, the US judicial process largely worked 

as designed. Each matter was afforded due process and was 

subject to consideration of its facts before the court. The judiciary, 

however, plainly and decisively made the determination 

that these matters largely lacked merit and evidentiary support 

and were made for some purpose other than securing a 

legitimate legal outcome. 

The collective outcome of the cases most clearly demonstrates 

that they were wholly unprecedented in terms of electoral law. 

It is difficult to feel that every case came before the court 

with full reflection on stare decisis and bona fide belief that the 

evidence had created a situation analogous to Bush v Gore. 

Rather, more credibly, Mr. Trump brought these cases to 

support the narrative being put forth. 

The litigation was without regard to judicial sanctions (as 

was the case in Michigan 18 ), cost awards (as in Arizona 19 ), or 

the impact of a scathing judicial decision (just about every 

other decision). Courts in 2020 quickly became aware that it was 

not the electoral process being contested – a legal grievance. 

It was the outcome of the election itself – a political grievance. 

It matters little. Although Mr. Trump lost all litigation, he 

arguably won the politigation. 

Mr. Trump maintains primacy in American political conversation, 

despite his electoral failures and court failures. He has 

preserved pride of place in the public psyche like no failed 

candidate before him. 

Aftermath: How will the legal community reckon with the rise of 

politigation? 

A lawyer, looking inward at the litigation campaign, may say 

that once each matter was concluded and the judge had made 

a determination, the system has functioned fully as required. 

The court has made its determination and answered the question, 

providing societal certainty. The legal outcome is truth of 

the matter. And from a legal perspective, adherence to the judicial 

process was necessary to ensure an unassailable decision, 

because the citizenry needed pure adjudication on any contentious 

points. Here, the court’s imprimatur revealed the truth 

on these especially important public issues of debate and the 

matter concluded. All those who were suspect of Mr. Biden’s 

election win could now feel confident in the functioning of 

both the election process and the legal system. 

Tragically, this was not the legacy, nor was it ever the intent 

of Mr. Trump and his allies. The intent of the politigation was to 

build the necessary public support for the Big Lie. There were 

two realities at play here: one within the courtrooms, where 

things like the quality of evidence and soundness of legislative 

interpretation mattered. In this reality, the fantastical claims 

and extraordinary relief sought by Mr. Trump and his allies 

were soundly rejected. 

The second reality was the one in the media spin cycle, 

where the quality of evidence and soundness of legal argumentation 

did not matter. The sheer quantity of cases, “motions,” 

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“affidavits,” “depositions,” and “new 

urgent briefs filed” were ingredients 

enough to brew a toxin that corrupted 

civic certainty about the election. Indeed, 

the very ability to use concepts such as 

“affidavits” and “subject to appeal” in 

political punditry gave the entire enterprise 

the air of complexity beyond the 

ordinary person. And it is impossible to 

quantify the time and space in the civic 

conversation taken up by analysis – even 

dismissive analysis – about the lawsuits, 

thereby forging a national armchair judiciary 

who viewed the election results 

like a real crime mystery. 

The impacts of the toxin seeped in and 

scarred the sanctity of legal proceedings 

as well. The courts were now primed to 

be viewed as merely alternative political 

forums that were open to political 

criticism. Mr. Trump tweeted before his 

efforts to have a matter heard at the Supreme 

Court of the United States that 

“The Supreme Court has a chance to 

save our Country from the greatest Election 

abuse in the history of the United 

States.” 20 This failed, and Mr. Trump 

tweeted: “This is a great and disgraceful 

miscarriage of justice. The people of 

the United States were cheated, and our 

Country disgraced. Never even given 

our day in Court!” 21 

This is the real, long-term risk of politigation. 

Of course, some mitigation 

might reside with the use of existing 

procedures for frivolous matters or summary 

judgment. However, such boldness 

to discard litigation about high office 

would be unprecedented. Although 

this paradox presents no easy solution, 

it is a worthwhile cultural focus for 

conversations within our profession. 

Lawyers, ultimately, are stewards of a 

system. We personify, in some quotidian 

way, the concept of fair processes and 

legitimate legal ends. If the legal community 

collectively accepts shabby show 

trials as a new phase of high democracy, 

then the legal system is demeaned. 

The courtroom will be just another 

tool in the endless narrative-crafting of 

never-ending election cycles. Although 

judicial process ultimately can render 

decisions that decry abuse of process, 

the damage can already be done unless 

advocates call out this tawdry phenomenon. 

Canada, and other democratic nations, 

need to brace for politigation to become 

commonplace in both our politics and 

our law. 

Appendix A 

Catalogue of Trump politigation cases: 

style of cause; state – county/district; 

court; court file number; and outcome 

1. Aguilera v Fontes; Arizona – 

Maricopa; State Superior Court; 

No. CV2020-014083; voluntarily 

dismissed. 

2. Arizona Republican Party v Fontes, 

Arizona – Maricopa; State Superior 

Court; No. CV2020-014553; case 

dismissed with prejudice. 

3. Bowyer v Ducey; Arizona (District 

of); Federal Court; No. CV-20- 

02321-PHX-DJH; Case dismissed; 

SCOTUS petition for mandamus 

denied. 

4. Burk v Ducey; Arizona – Pinal; 

State Superior Court; 

No. S1100CV2020-01869; case 

dismissed; State Supreme Court 

appeal dismissed; SCOTUS petition 

for certiorari denied. 

5. Donald J. Trump for President, Inc. 

v Hobbs; Arizona – Maricopa; State 

Superior Court; No. CV2020-014248; 

case dismissed with prejudice. 

6. Stevenson v Ducey; Arizona – 

Maricopa; State Superior Court; 

No. CV2020-096490; voluntarily 

dismissed. 

7. Ward v Jackson; Arizona – Maricopa; 

State Superior Court; No. CV2020- 

015285; case dismissed; 

State Supreme Court appeal 

dismissed; SCOTUS petition for 

certiorari denied. 

8. Wisconsin Voters Alliance v Pence; 

District of Columbia; Federal Court; 

No. 1:20-CV-03791; case dismissed. 

9. Brooks v Mahoney; Georgia (Southern 

District, Savannah Division); 

Federal Court; No. 4:20-CV-00281- 

RSB-CLR; voluntarily dismissed. 

10. Boland v Raffensperger; Georgia – 

Fulton; State Superior Court; 

No. 2020CV343018; case dismissed; 

State Supreme Court appeal 

voluntarily dismissed. 

11. Favorito v Fulton County; Georgia – 


No. 2020CV343938; case dismissed. 

12. In Re: Enforcement of Election Laws 

and Securing Ballots Cast or Received 

After 7:00 pm on November 3, 2020; 

Georgia – Chatham; State Superior 

Court; No. SPCV20-00982; case 

dismissed. 

13. Pearson v Kemp; Georgia (Northern 

District, Atlanta Division); Federal 

Court; No. 1-20-CV-04809-TCB; 

case dismissed; Circuit Court 

appeal dismissed. 

14. Still v Raffensperger; Georgia – 


No. 2020CV343711; voluntarily 

dismissed. 

15. Trump v Kemp; Georgia (Northern 

District, Atlanta Division); Federal 

Court; No. 1:20-CV-05310-MHC; 

voluntarily dismissed. 

16. Trump v Raffensperger; Georgia – 


No. 2020CV343255; voluntarily 

dismissed after petition to State 

Supreme Court for certiorari denied. 

17. Wood v Raffensperger; Georgia – 


No. 2020CV342959; case dismissed. 

18. Wood v Raffensperger; Georgia 

(Northern District, Atlanta Division); 


SDG; case dismissed; Circuit Court 



19. Johnson v Benson; Michigan 

(Western District); Federal Court; 

No. 1:20-CV-01098; voluntarily 


certiorari denied; plaintiff’s counsel 

sanctioned. 

20. King v Whitmer; Michigan 

(Eastern District); Federal Court; 

No. 2:20-CV-13134-LVP-RSW; case 


certiorari denied. 

21. Kistner v Simon; Minnesota; State 

Supreme Court; No. A20-1486; 

case dismissed. 

22. Kistner v Simon; Minnesota – 

Dakota; State District Court; 

No. 19AV-CV-20-2183; case 

dismissed; appeal to State Supreme 

Court voluntarily dismissed. 

23. Barnette v Lawrence; Pennsylvania 

(Eastern District, Philadelphia 

Division); Federal Court; 

No. 2:20-CV-05477-PBT; voluntarily 

dismissed after motion for temporary 

relief denied. 

24. Bognet v Boockvar; Pennsylvania 

(Western District); Federal Court; 

No. 3:20-CV-215; motion for temporary 

relief denied; Circuit Court 

appeal dismissed; State Supreme 

Court petition for certiorari denied. 


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v Boockvar; Pennsylvania; State 

Commonwealth Court; No. 602- 

MD-2020; temporary injunction 

granted. 

26. Donald J. Trump for President, Inc. v 

Boockvar; Pennsylvania (Middle 

District); Federal Court; No.4:20-CV- 

02078-MWB; case dismissed; Circuit 

Court petition for temporary relief 

denied; SCOTUS appeal dismissed. 


Boockvar; Pennsylvania (Western 

District); Federal Court; No. 

2:20-CV-00966-NR; case dismissed. 


v Bucks County Board of Elections; 

Pennsylvania – Bucks; State 

Common Pleas Court; No. 20-05786- 

35; case dismissed; Commonwealth 

Court and State Supreme Court 

appeals dismissed. 


Montgomery County Board of Elections; 

Pennsylvania – Montgomery; State 

Common Pleas Court; No. 2020- 

18680; case dismissed; appeal to 

Commonwealth Court withdrawn. 


v Montgomery County Board of Elections; 

Pennsylvania – Montgomery; State 

Commonwealth Court; No. 1171- 

CD-2020; voluntarily dismissed. 


v Philadelphia County Board of 

Elections; Pennsylvania 

(Eastern District); Federal Court; 

No. 2:20-CV-05533-PD; voluntarily 

dismissed after motion for temporary 

relief denied. 

32. Hamm v Boockvar; Pennsylvania; 

State Commonwealth Court; No. 

600-MD-2020; temporary injunction 

granted in part. 

33. In Re: Canvass of Absentee and Mail-In 

Ballots of November 3, 2020 General 

Election; Pennsylvania – Philadelphia; 

State Common Pleas Court; 

No. 201100878; case dismissed; 

Commonwealth Court reversing; 

State Supreme Court reinstating 

dismissal. 

34. In Re: Motion for Injunctive Relief of 

Northampton County Republican Committee; 

Pennsylvania – Northampton; 

State Common Pleas Court; No. 

C-48-CV-2020-6915; case dismissed; 

appeal to Commonwealth Court 

withdrawn. 

35. Kelly v Pennsylvania; Pennsylvania; 

State Commonwealth Court; No. 

68-MAP-2020; temporary injunction 

granted pending evidentiary hearing; 

State Supreme Court vacating order; 

SCOTUS petition for certiorari 

denied. 

36. Pirkle v Wolf; Pennsylvania (Middle 

District, Williamsport Division); 


MWB; voluntarily dismissed. 

37. Ziccarelli v Allegheny County Board of 

Elections; Pennsylvania – Allegheny; 


No. GD-20-011654; case dismissed; 

State Commonwealth Court Appeal 

reversing; State Supreme Court 

reinstating dismissal. 

38. Ziccarelli v Allegheny County Board of 

Elections; Pennsylvania – Allegheny; 


No. GD-20-011793; case dismissed. 

39. Gohmert v Pence; Texas (Eastern 

District, Tyler Division); Federal 

Court; No. 6:20-CV-660-JDK; 


appeal dismissed. 

40. Feehan v Wisconsin Elections Commission; 

Wisconsin (Eastern District); 

Federal Court; No. 20-CV-01771-PP; 




41. Langenhorst v Pecore; Wisconsin 

(Eastern District, Green Bay 

Division); Federal Court; No. 1:20- 

CV-1701; voluntarily dismissed. 

42. Mueller v Wisconsin Elections 

Commission; Wisconsin; State 

Supreme Court; No. 2020AP1958- 

OA; case dismissed. 

43. Trump v Biden; Wisconsin – Dane; 

Milwaukee; State Circuit Court; 

No. 2020CV007092; case dismissed; 


denied. 

44. Trump v Evers; Wisconsin; State 

Supreme Court; No. 2020AP1971- 

OA; case dismissed. 

45. Trump v Wisconsin Elections Commission; 

Wisconsin (Eastern District); 

Federal Court; No. 20-CV-1785- 

BHL; case dismissed with prejudice; 

Circuit Court appeal dismissed; 


denied. 

46. Wisconsin Voters Alliance v Wisconsin 

Elections Commission; Wisconsin; State 

Supreme Court; No. 2020AP1930-OA; 

case dismissed. 

47. Texas v Pennsylvania; Filed Directly 

with the SCOTUS; No. 22O155; case 

dismissed. 

Congratulations Linda! 

We were honoured to present Linda 

Rothstein, LSM, ASM with The Advocates’ 

Society Medal on November 29, 2022. 


Notes 

1. Zeve Sanderson et al., “Twitter Flagged Donald Trump’s Tweets 

with Election Misinformation,” Misinformation Review (August 

24, 2021); online: https://misinforeview.hks.harvard.edu/article/ 

twitter-flagged-donald-trumps-tweets-with-election-misinformationtheycontinued-to-spread-both-on-and-off-the-platform/. 

2. To avoid confusion about the transient title of President across 

relevant times, this article respectfully will refer to “Mr. Trump” and 

“Mr. Biden.” 

3. Bush et al. v Gore et al., 531 U.S. 98 (Fla Sup Ct 2000). 

4. Rev, Kayleigh McEnany & Ronna McDaniel Press Conference 

Transcript: Lawsuits Over Election Dispute (November 9, 2020); 

online: https://www.rev.com/blog/transcripts/kayleigh-mcenanyronna-mcdaniel-press-conference-transcript-lawsuits-over-electiondisputes. 

5. It is worth a detour here to consider the relevance of the seminal 

presidential litigation of Bush v Gore in 2000. That precedent looms 

large with cultural importance, fuelled by civic memory of the speedy 

appellate route to the Supreme Court, the national recognition of a 

live issue, and the finality of the decision’s impact on the election. 

However, 2020 politigation is far from a mere evolution of presidential 

electoral litigation. A number of Donald Trump’s most ardent 

supporters, including his attorney Jenna Ellis and Reps. Clay Higgins 

(R-La.), Vern Buchanan (R-Fla.), and Jason Smith (R-Mo.), made the 

precedent argument, citing Bush v Gore. There is a subtle irony in the 

fact that Bush v Gore resulted in the stoppage of a recount and resulted 

in status quo affirmation – but, as we will see, subtlety and irony have 

no place in politigation. Put simply, Bush v Gore addressed a unique 

fact pattern and legal conundrum that created uncertainty in the eyes 

of elections officials. Florida was an open state with an agonizingly 

close result that was subject to a recount that could have changed 

the outcome of the election. In 2020, there was no such impactful fact 

scenario triggered by state uncertainty. Instead, Mr. Trump and his 

campaign allies brought more than 60 lawsuits both in the Federal 

Court and in varying other states, including the six key swing states of 

Arizona, Georgia, Michigan, Nevada, Pennsylvania, and Wisconsin. 

In 2000, the electoral college victory hinged on a 537-vote margin in 

Florida. The legal outcome – either allowing or stopping the Florida 

recount – very much had the potential to affect the political outcome. 

In 2020, by contrast, the three closest states in the 2020 election, 

Arizona, Georgia, and Wisconsin, had a margin of more than 10,000, 

11,000, and 20,000 votes, respectively. It bears noting that even in the 

unlikely scenario that Mr. Trump was successful in having himself 

declared winner in those three states, he would still not have met the 

requisite 270 electoral votes to win the 2020 presidential election – it 

would have ended in a tie of 269 electoral votes for each candidate. In 

2000, the losing campaign sought a singular, discrete judicial outcome 

– a recount. In 2020, the prayers for relief were varied and were, absent 

incredible and unprecedented judicial activism, largely unlikely to 

affect the outcome of the election. In 2000, Al Gore challenged the 

vote count when thousands of voters were found to have problems 

punching their voting ballots – the infamous hanging chads. The 

Florida Supreme Court allowed a recount in an effort to ensure that all 

votes were properly counted. The problem was one of process – each 

individual county had a different standard for counting the hanging 

chads, and the Florida Supreme Court provided no uniform direction 

on how to undertake the recount in its decision. The Supreme Court 

of the United States (SCOTUS) found that it was the lack of uniformity 

in the standards applied to count votes that violated the Equal 

Protection Clause. In other words, each vote had different weight, 

varying by county and depending on which standard was applied. 

SCOTUS stopped the recount and Bush was declared the winner 

in Florida – granting him sufficient electoral votes to win the 2000 

election. In summary, the common thread between Bush v Gore and 

the Trump politigation is not in factual basis, legal argument, or even 

jurisdiction – it is simply the fact of a presidential candidate seeking 

recourse to the courts. There is no inherent presumption of electoral 

fraud, administrative failure, or legal rationale. Indeed, in the end, Mr. 

Trump’s public bravado was not matched by his lawyer’s arguments. 

Every court rejected the substantive relevance of Bush v Gore. This 

hardly matters. 

6. In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General 

Election, Pa Commw Ct, case number 201100878. 

7. In Re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General 

Election, Pa Sup Ct, case numbers J118A2020-J118F2020. 

8. King et al. v Whitmer et al., Dist Ct Mich case number 2:20-cv-13134 

(2020) [King v Whitmer]. 

9. Ibid at 34. 

10. Donald J. Trump for President, Inc. et al., v Kathy Boockvar et al., Dist Ct Pa 

case number 4:20-cv-02078 (2020) at 2. 

11. April Becker v Joseph P. Gloria et al., Dist Ct Nev case number A-20- 

824878 (2020) at 4–5. 

12. Arizona Republican Party v Adrian Fontes, et al., Super Ct Ariz case 

number CV2020014553 (2020) at 2 [Arizona Republican Party v Fontes]. 

13. Donald J. Trump v The Wisconsin Elections Commission, et al., Dist Ct Wis 

case number 20-cv-1785 (2020) at 22. [Emphasis in original.] 

14. William Feehan v Wisconsin Elections Commission, et al., Dist Ct Wis case 

number 20-cv-1771 (2020) at 2. 

15. King v Whitmer, supra note 8 at 35. 

16. L. Lin Wood, Jr., v Brad Raffensperger, et al., Dist Ct Ga case number 1:20- 

cv-04651 at 21. 

17. Arizona Republican Party v Fontes, supra note 12 at 6. 

18. King v Whitmer, supra note 8. 

19. Arizona Republican Party v Fontes, supra note 12. 

20. Lawrence Hurley, “States Assail ‘Bogus’ Texas Bid to Overturn U.S. 

Election at Supreme Court,” Reuters (December 10, 2020); 

online: https://www.reuters.com/article/uk-usa-election-trumpidINKBN28K30R. 

21. Aaron Blake, “Trump’s Spin on His Big Supreme Court Failure Is as 

Bad as His Legal Case,” Washington Post (December 12, 2020).; online: 

https://www.washingtonpost.com/politics/2020/12/12/trumpsspin-his-big-supreme-court-failure-is-bad-his-legal-case/. 


THE ART OF ADVOCACY 

Three features of Canadian law 

and three resulting focuses 

of Canadian advocacy 

Geoff R. Hall 

The three features of Canadian law that I identified are (1) 

Canadian law tends to dislike bright-line rules and instead 

prefers legal standards that are deeply rooted in the facts of 

particular cases; (2) Canadian law is highly deferential to decisions 

made at first instance; and (3) Canadian law generally 

permits an appeal as of right to an intermediate appellate court 

after a final decision at the trial level, followed by an onerous 

test for leave to appeal to the Supreme Court of Canada. 

The three resulting focuses of Canadian advocacy that I identified 

are (1) at the trial level, the narrative (or story) is of paramount 

importance; (2) at the intermediate appellate level, the 

trial narrative should be put aside and, instead, an appellant 

should pursue a surgical strike approach while a respondent 

should invoke a repeated incantation of the concept of deference; 

and (3) at the Supreme Court of Canada, both the trial 

narrative and the first appeal surgical strike/incantation of deference 

should be put aside in favour of an exercise akin to the 

inquiry at a law school seminar as to what the law should be. 

The features and resulting focuses are illustrated in the 

chart below. 

Feature 

Resulting focus 

I 

recently made a presentation about commercial advocacy 

in Canada to a group of British barristers. 1 Although I addressed 

commercial litigators, my focus was on Canadian 

advocacy in general and not just advocacy in Canadian commercial 

proceedings. The exercise of distilling Canadian advocacy 

into a readily digestible short presentation to foreign lawyers 

led me to conclude that three features of Canadian law necessarily 

lead to three resulting focuses of advocacy in Canada. The 

three features are unique to Canadian law, resulting in an approach 

to advocacy that is somewhat different from advocacy as 

practised by our British counterparts. It occurred to me that my 

observations might also be of interest to a Canadian audience. 

1. Aversion to Trial level: Trial narrative 

bright-line rules (results from feature #1 

and feature #2) 

2. Highly deferential to Intermediate appellate level: 

first-instance decisions Surgical strike if appellant/ 

incantation of deference if 

respondent (results from 

feature #2 and feature #3) 

3. Appeal structure Supreme Court of Canada: 

(one appeal as of right The law school seminar 

followed by restrictive (results from feature #2 

leave to appeal to the and feature #3) 

apex court) 


The three features 

Feature #1: Canadian law favours 

standards over bright-line rules 

Canadian law is replete with multi-part 

legal tests that require a court facing a 

particular issue to make a determination 

that is deeply rooted in the particular 

facts of the case. Often at least one 

of the branches of a multi-part test is 

open-ended, sometimes even conferring 

discretionary power or something close 

to discretionary power to the decision 

maker. Many tests call for a balancing of 

factors, such that no one branch of the 

test is determinative. 

A few examples demonstrate the point. 

The test for an interlocutory injunction 

is a three-part balancing test, including 

an open-ended branch that requires 

consideration of “the balance of convenience.” 

2 The test for the oppression remedy 

is a two-part test, with both parts being 

open-ended (whether there is a reasonable 

expectation, which entails a consideration 

of a multitude of factors; and 

whether the reasonable expectation was 

violated by conduct falling within the 

terms “oppression,” “unfair prejudice,” 

or “unfair disregard”). 3 All three parts of 

the test under section 2(b) of the Charter 

of Rights and Freedoms (freedom of expression) 

are open-ended (Does the activity in 

question have expressive content? Is the 

activity excluded from that protection as 

a result of either the location or the method 

of expression? If the activity is protected, 

does an infringement of the protected 

right result from either the purpose or the 

effect of the government action?). 4 The 

test for approval of a plan of arrangement 

is also in three parts; its third branch is 

whether the plan is “fair and reasonable,” 

which requires consideration of “a variety 

of relevant factors.” 5 

Indeed, multi-part tests that include 

balancing or highly open-ended elements 

are so pervasive in Canadian law 

that it is difficult to think of bright-line 

rules that lead to a single legally correct 

outcome on a particular fact pattern. 

Feature #2: Canadian law is highly deferential 

to decisions made at first instance 

The standards of appellate review in 

Canada are familiar and well established. 

Different standards apply, depending on 

the nature of the legal issue, with one 

standard for questions of fact, another 

for questions of mixed fact and law, and 

another for questions of law. 

Since the 1970s, findings of fact made at 

trial can be overturned on appeal only if a 

palpable and overriding error is shown. 6 A 

palpable error is “an error that is obvious,” 

while an overriding error is “an error that 

affects the outcome of the case.” 7 Establishing 

a palpable and overriding error “is 

a difficult standard to meet.” 8 

Since 2002, a similarly deferential standard 

applies to questions of mixed fact 

and law, which of course covers a broad 

range of what trial courts do. An appellate 

court may not interfere with a finding 

of mixed fact and law made below 

unless a palpable and overriding error or 

an extricable error of law is shown. 9 

This leaves a narrow range of issues – 

questions of law – for which a standard 

of correctness applies, with the appellate 

court owing no deference to the decision at 

first instance and being “free to replace the 

opinion of the trial judge with its own.” 10 

The high degree of deference afforded 

by appellate courts to trial courts reflects 

a broader trend in Canadian law, most 

notably the high degree of deference in 

administrative law to the decisions of 

administrative tribunals 11 and the adoption 

of the Housen mixed fact and law 

standard of review for issues of contractual 

interpretation. 12 

Feature #3: Canadian law generally 

permits one appeal as of right and a 

second appeal with restrictive leave 

In general, any final decision of a superior 

court creates an appeal as of right 

to an intermediate appellate court. 13 A 

further appeal to the Supreme Court of 

Canada requires leave to appeal. 14 This 

structure is different from the one familiar 

to my British audience. In England, 

permission (leave) to appeal is required 

at both levels, 15 meaning that only arguable 

appeals even make it to the Court of 

Appeal of England and Wales. 

The resulting three focuses 

At the trial level: The narrative 

Multi-part legal tests with one or more 

branches that are open ended (feature 

#1 in the chart above) mean that on any 

particular set of facts, multiple outcomes 

may be legally correct. This in turn gives 

judges much scope to achieve outcomes 

that they regard as just on the particular 

facts of a case. The high degree of 

deference to first-instance decisions, in 

particular findings of fact (feature #2 in 

the chart), means that trial judges are 

well aware that their risk of appellate 

reversal declines dramatically if their 

decisions are rooted in specific factual 

findings on the evidence, as opposed to 

statements of law. 

Together, these two features lead to a 

high degree of focus at first instance on 

the trial narrative. The facts matter much 

more than the law. Advocates have an 

incentive to focus on the facts and the 

narrative: if an advocate can convince 

the judge that the facts are favourable to 

the advocate’s client, the law provides 

significant flexibility to support an outcome 

in favour of the client. Trial judges 

also have an incentive to focus on the 

facts and the narrative: a trial judge who 

grounds a decision in findings of fact 

is much less likely to have the decision 

overturned on appeal. 

At the trial level, the factual narrative 

is decisive. Regardless of what the legal 

issue is, the advocate who succeeds in 

convincing the judge or jury of the factual 

narrative that that advocate is advancing 

will usually be on the winning side. The 

advocate whose factual narrative is rejected 

will usually be on the losing side. 

At the intermediate appellate level: 

Surgical strike if appellant/incantation 

of deference if respondent 

The lack of any gatekeeper at the intermediate 

appellate level (feature #3 in 

the chart) means that many appeals are 

advanced that are without merit or are 

highly unlikely to succeed. The high degree 

of deference on questions of fact 

and mixed fact and law (feature #2 in the 

chart) expands the class of appeals that 

are unlikely to succeed. 

Combined, these two factors create an 

advocacy challenge for appellants. Appellants 

must overcome an intermediate 

appellate court’s inherent skepticism 

about their cases, and a predisposition 

to affirm the decision below. To counter 

this skepticism and this predisposition, 

an appellant should set aside the narrative 

of the case and construct a surgical 

strike, zeroing in on specific (and a very 

limited number of) arguable legal errors, 

with reference to particular paragraphs 

of the reasons for judgment below where 

the trial judge went wrong. The advocate 

must catch the court’s attention and convince 

the court that there is a legal error 

which warrants appellate intervention. 

Conversely, respondents should seek 

to encourage an intermediate appellate 


court’s tendency to non-intervention by 

engaging in a repeated incantation of 

the concept of deference. The exercise is 

to convince the intermediate appellate 

court that the decision at first instance 

is within a legally supportable range of 

correct outcomes in light of the specific 

findings of fact that have been made. The 

goal is to show that the decision below 

checked off all the right boxes, with the 

issue of whether the boxes were checked 

off correctly or not being somewhat 

secondary to the analysis. 

Importantly, for both appellants and 

respondents the narrative that was so 

crucial to victory (or so decisive in a 

loss) at the trial level is of limited or no 

utility. A few years ago I conducted an 

(admittedly anecdotal) test of this proposition 

when I found myself arguing 

three appeals in a short period in the 

Court of Appeal for Ontario – two on 

behalf of appellants and one on behalf 

of a respondent. I decided that in all 

three appeals, I would structure my oral 

argument by beginning with a short 

trial-style narrative, followed quickly by 

a shift to surgical strike/incantation of 

deference. In all three oral arguments, 

the panels were utterly uninterested in 

my narratives and pressed me quickly 

(and in one case quite forcefully) to move 

on in my argument. As if to reinforce 

the lesson, in one of the appeals, in which 

I was representing an appellant, my client 

won on a surgical strike analysis in which 

two discrete errors of law were identified; 16 

in the second appeal, in which I was again 

representing an appellant, my client lost 

on the basis of deference; 17 and in the 

appeal in which I was representing a respondent, 

my client won on the basis of 

deference. 18 In none of the cases was the 

factual narrative in any way decisive. 

At the Supreme Court of Canada: 

A law school seminar 

The same two features that are decisive 

in structuring advocacy at the intermediate 

appellate level (feature #2 defence 

to first-instance decisions and feature 

#3 first appeal as of right but second 

with restrictive leave to appeal) are also 

decisive in structuring advocacy at the 

Supreme Court of Canada, but they lead 

to a very different style of advocacy. 

At the Supreme Court, the facts are 

as fixed as at the intermediate appellate 

level. But if leave has been granted, there 

must be a very serious issue of law: there 

is uncertainty in the law, or there are conflicting 

intermediate appellate decisions, 

or the existing legal doctrine is dubious 

and may be in need of reform or correction. 

The law itself is at issue, with the 

Supreme Court’s task being to choose a 

legal rule among two or more plausible 

alternatives. 

Thus the trial narrative that was discarded 

at the intermediate appellate court 

should remain discarded because the task 

is no longer to find facts and choose an 

outcome among a range of legally correct 

possibilities. Similarly, surgical strike/ 

incantation of deference should also be 

discarded because there is no need to 

convince the court that the appeal has 

merit and needs serious consideration: 

that goal has already been achieved at the 

leave stage. The legal rule to be applied to 

facts that are now well fixed in the record 

is itself open to serious debate. 

I learned this lesson first-hand in an 

appeal I argued a few years ago. My 

client had received an easy ride in both 

courts below because a helpful precedent 

was binding on both courts. In the 

Supreme Court of Canada, the atmosphere 

was entirely different because the 

precedent itself was at issue – and ultimately 

overruled, leading to my client’s 

loss in the Supreme Court. 19 

Conclusion 

Sometimes legal systems that are very 

similar in most aspects approach specific 

matters in strikingly different ways, resulting 

in profound differences. While 

the Canadian common law legal system 

is very similar to the English common 

law legal system from which it is derived, 

the three features of Canadian law and 

the resulting three focuses of Canadian 

advocacy that I identified for my British 

audience were not features or focuses of 

their system. One can often learn much 

about one’s own legal system, and one’s 

own practice of advocacy, by considering 

another legal regime that is similar in 

origin but sometimes radically different 

in outcome. 

Notes 

1. Presentation to the Commercial Bar Association, North American meeting, 

Florence, Italy, June 2, 2022. I was on the panel “La Terza Sessione: Advocacy 

in Commercial Proceedings,” along with Lord Hamblen (a justice of the UK 

Supreme Court), Sir Julian Flaux (Chancellor of the High Court of Justice 

of England and Wales), Mrs Justice Cockerill (a justice of the King’s Bench 

Division of the High Court of Justice of England and Wales, and the head 

of the Commercial Court) (who collectively provided a British and judicial 

perspective on commercial advocacy), and Roberta Kaplan of Kaplan Hecker & 

Fink LLP in New York (who provided an American perspective on commercial 

advocacy). 

2. RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311. 

3. BCE Inc. v 1976 Debentureholders, 2008 SCC 69 at para 68. 

4. Canadian Broadcasting Corp. v Canada (Attorney General), 2011 SCC 2 at para 38. 

5. BCE Inc. v 1976 Debentureholders, supra note 3 at paras 137 and 154. 

6. Stein v The Kathy K, [1976] 2 SCR 802. 

7. Mahjoub v Canada (Citizenship and Immigration), 2017 FCA 157 at paras 62 and 64. 

8. Millennium Pharmaceuticals Inc. v Teva Canada Limited, 2019 FCA 273 at para 6, 

leave to appeal refused 2020 CanLII 32289 (SCC). 

9. Housen v Nikolaisen, 2002 SCC 33 [Housen]. 

10. Ibid at para 8. 

11. There is an enormous body of case law on the standard of judicial review 

in administrative law, with the latest and greatest iteration of the standard 

articulated by Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 

SCC 65. 

12. Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53. 

13. See, e.g., Court of Appeal Act, RSBC 1996, s 6(1)(a); Judicature Act, RSA 2000, c J-2, 

3(b (iv); Courts of Justice Act, RSO 1990, c C.43, s 6(1)(b); Federal Courts Act, RSC 

1985, c F-7, s 27(1)(a). 

14. Supreme Court Act, RSC 1985, c S-26, s 40. 

15. Procedure Rules, Rule 52.3(1)(a). 

16. Service Mold + Aerospace Inc. v Khalaf, 2019 ONCA 369. 

17. Canadian National Railway Company v Crosslink Bridge Corp., 2019 ONCA 349. 

18. GrowthWorks Commercialization Fund Ltd. v GrowthWorks WV Management Ltd., 

2019 ONCA 371. 

19. Canada (Attorney General) v Fairmont Hotels Inc., 2016 SCC 56. 


REFLECTIONS OF AN ADVOCATE 

Look back: Work hard 

and don’t grumble 


In the era before national law firms and tech-savvy lawyers, Bay 

Street was populated with smallish (by today’s standards) law firms 

whose practitioners tended to be more laidback than today and rarely 

aspired to become as rich as their clients. It was not a “golden 

age,” but it was certainly a different world. The following are some 

recollections of the firm I joined in 1965, which was unusual only in 

that, although never more than about 25 lawyers, it produced two 

future Chief Justices of Ontario, an Associate Chief Justice of Ontario, 

three learned judges of the Court of Appeal and the Federal Court of 

Appeal, and five Superior Court judges, not to mention a sprinkling 

of other judicial figures up and down the system, including one who 

accepted an appointment to the Supreme Court of Canada and one 

who twice refused. 

Every year at Christmas, we get together for the firm lunch. 

This would be unremarkable except Wright & McTaggart 

closed its doors 35 years ago. The firm itself was remarkable. 

To the outside world it was a formidable fighting machine. 

Over its lifespan of not much more than 30 years (1952 to 1986), 

it developed more than its fair share of big cases, aggressive 

advocates, and flinty-eyed judges. However, the alumni do not 

gather to celebrate these worthies. The talk all has to do with 

reminiscing about a firm that had the feeling of a family business 

with a cast of characters worthy of a Yann Martel novel 

mixed with a bit of The Far Side. 

In the beginning were the military people. Colonel Peter 

Wright (later, Wright J) was something of an anti-establishment 

establishment figure, an officer in the Canadian Intelligence 

Corps in the Second World War. He had played a role in the 

Nuremberg war crimes trials. Bert MacKinnon, a much younger 

man and, later, Associate Chief Justice of Ontario, born and 

bred in eastern Ontario, was in the Fleet Air Arm. Joe Potts 

fought in Europe with Princess Patricia’s Canadian Light Infantry. 

At a 1967 firm dinner celebrating Peter Wright’s appointment 

to the Superior Court, the appointee was reduced 

to tears recalling the gallantry of the “boys of Royal Military 

College who died on Juno Beach.” Under the glass on his office 

desk was a map of the D-Day landing. 

Peter Wright was the only member of the firm born into a 

prominent legal family. Peter’s father, Ward Wright, was a 

founding member of what was then Wright McMillan Binch 

(now McMillan, which continued to use the cable address 

“Wardrite”). Ward Wright was eventually appointed to the 

Superior Court. Peter’s mother, Geraldine, was called to the 

Ontario bar in 1907, only the third of Canada’s pioneering 

women lawyers. She was also the daughter, wife, niece, sister, 

aunt, and cousin of members of the Ontario bar. 1 Peter’s uncle 

was Chief Justice of Ontario Newton Rowell. He was also related 

to Magistrate Hugh Richardson, who presided (infamously) 

over the trial and sentencing of Louis Riel in Regina in 1885. 

In the 1950s and 1960s, top lawyers considered it de rigueur to 

run for bencher. Peter used his position as bencher to persuade 

the Law Society to adopt the motto “Let [W]Right Prevail,” 


which it still uses. When Peter, then a 

member of McMillan Binch, was asked to 

become a director of Barclays Bank Canada 

in the early 1950s, his partners came to 

oppose his acceptance because of hostile 

rumblings from their major client, the 

Royal Bank of Canada. So a furious Peter 

left to found Wright & McTaggart. 

Donald Harrison McTaggart had no 

known interest in the military. A muchloved 

figure in the firm (he was generally 

referred to as “the Auld Chief”), he was 

brought up on a farm near Beaverton, 

Ontario. Where Peter Wright’s manner 

was aggressive and formidable, Don Mc- 

Taggart was amiable and generous. In 

later years his wife imposed a strict diet 

at home, which he neatly sidestepped by 

regularly taking out younger lawyers to 

a massive lunch at the Engineers Club 

(on Lombard Street, conveniently near 

the city morgue), which served an all 

you can eat buffet. His wife was quite 

pleased when Don seemed satisfied with 

a poached egg and a little spinach for 

dinner. With Elizabeth Julian, Don ran 

the conveyancing and estates practice. 

He told the rest of us to “work hard and 

don’t grumble.” 

In later years, most firm events were 

enlivened with bagpipes and Don’s 

speech reciting the firm history, which 

was delivered word perfect – until he got 

to the recruitment of “the young blond 

fellow Bert MacKinnon,” at which point, 

snorting into his hankie and overcome 

with emotion, he dissolved into tears. 

His speeches were invariably interrupted 

by a young George Strathy (later 

CJO), who on occasion pretended to do 

a simultaneous translation into Italian 

(which George doesn’t speak) or loudly 

provided a running commentary into a 

rotary dial telephone that wasn’t connected 

to anything. 

The “young blond fellow,” Bert 

MacKinnon (later ACJO), provided a disproportionate 

share of the firm’s brainpower. 

A postwar Rhodes Scholar and 

sometime lecturer in constitutional law 

at Osgoode Law School, he was as unpretentious 

as a man as he was brilliant 

as an advocate. I recall sitting in the bar 

admissions course classroom in 1966 

listening to Bert presenting a bencher’s 

report on articling. (He thought lawyers 

owed a professional obligation to give 

incoming recruits the same articling advantage 

they had been given.) A student 

stuck up his hand and suggested the 

articling program was a plot by “the establishment” 

to hire cheap labour. Bert 

was miffed at being labelled establishment 

and snapped, “You’re talking to a 

beekeeper’s son from Vankleek Hill.” Bert 

was recruited from the firm of the senior 

Roy McMurtry, whose son Roy, Jr. (later 

CJO), also worked at Wright & McTaggart 

for a time. Bert was twice offered an 

appointment to the Supreme Court of 

Canada but declined for personal reasons. 

Bert took me along as a student to the 

Supreme Court of Canada in 1965 when 

he argued the appeal of an Indigenous 

man charged with shooting a couple of 

ducks out of season for food. 2 The accused 

had a right to do so both under 

his treaty as well as an exemption in 

the Migratory Birds Convention with the 

United States. The United States had 

implemented the exemption in its regulations. 

Canada had not. 3 Bert was at 

his best – haranguing the bench with 

moral outrage and Baptist fervour – 

denouncing Canada’s betrayal of its 

treaty obligations to the First Nations 

peoples as well as to the United States. 

The legal argument was strong. A provision 

in the Indian Act 4 makes treaties 

paramount to “laws of general application,” 

but the Supreme Court was having 

none of it. The majority, per Martland J, 

found (without any basis in the text) that 

“laws of general application” did not 

include federal laws. Only Justice Cartwright 

(later CJC) dissented. For Bert 

the point was that the Crown had acted 

dishonourably. Sixteen years later, as Associate 

Chief Justice, he wrote a decision 

in the Court of Appeal for Ontario 5 citing 

the “Honour of the Crown” to uphold an 

obscure Indigenous treaty right to hunt 

bullfrogs. Now, another 40 years later, 

the “Honour of the Crown” is the centrepiece 

of Supreme Court jurisprudence on 

the rights of Indigenous Peoples. 6 

In those days there was a recognized 

“appellate bar.” Bert’s appellate work 

was referred to him from law firms across 

the province. He generally argued two 

or three appeals every month before the 

Court of Appeal. His visits to the Supreme 

Court were fewer but grew steadily over 

the years. Counsel at that level were 

keenly aware (from long exposure) of the 

strengths and weaknesses of each of the 

appellate judges. Bert told me early on 

that Schroeder JA had a particular weakness 

for Latin maxims, so Bert would 

always throw in a bit of Latin whether 

pertinent or not. “Ah, yes, my Lord,” he 

would say straight-faced to Schroeder 

JA. “Quite right,” he would continue, 

“this is a case of res inter alios acta.” And 

Schroeder JA would beam contentedly, 

having once again been proved right. 

When required, Bert could mobilize 

his powers of indignation on behalf of 

whoever retained him – a sign of nimble 

counsel. On one occasion he was acting 

for the widow of a North Bay mining 

magnate who was living an extravagant 

lifestyle with her much younger boyfriend 

aboard their converted Chinese 

junk floating in Hong Kong Harbour. 

The deceased had made his generous 

financial arrangement for his widow 

terminable if she remarried. So she 

didn’t. The other beneficiaries of the 

estate went to court to try to terminate 

payments on the grounds that, giving a 

“purposeful” interpretation, the widow 

was doing exactly what the deceased 

opposed. Bert rose to the occasion, 

denouncing the deceased with evangelical 

fervour for having forced his poor 

widow “to live in sin.” 

Another excellent litigator in the early 

days of the firm was Brian Kelsey, an 

English-trained barrister, who cut a rolypoly 

Rumpole-like figure. On more than 

one occasion, after being relentlessly 

badgered and hectored by the judges 

and his appeal being dismissed from the 

bench, Brian would turn to me and say 

philosophically under his breath, “Sometimes 

you get the benefit of their stupidity.” 

The firm culture owed more to Don 

McTaggart and Bert MacKinnon than to 

the more aloof Peter Wright. The partners 

gave loyalty and inspired loyalty. Young 

lawyers could expect to become partners 

within three years or so from their call to 

the bar because the firm wanted to bring 

the associates under the big tent rather 

than sustain a “we” and “them” relationship. 

Three years was thought to be 

sufficient to get to know each other. After 

becoming partner, we all marched in 

lockstep financially year after year with 

increasing draws, until after about eight 

years we reached the maximum allocation. 

One of the commercial lawyers, 

Vic Seabrooke, felt under-compensated 

under the lockstep system. At the time, 

I was engaged before the Ontario Municipal 

Board on behalf of Toronto ratepayer 

associations opposing a mammoth 

redevelopment of CN/CP railway lands 

in downtown Toronto between Bay and 


Tricks of the Trade 2023 

January 27, 2023 | 9:00 am to 4:00 pm (ET) | Live at the Carlu 

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

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

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Keynote speaker 

Marie Henein, 

Henein Hutchison LLP 

Program highlights include: 

A fireside chat with The Hon. Justice 

Katherine van Rensburg, 

Court of Appeal for Ontario. 

Views from the bench on the new rules 

for delivery of expert reports. 

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and much more! 

Tricks of the Trade: 

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For a full agenda visit 

www.advocates.ca

Bathurst streets. (In the end the only part built was the CN Tower.) 

The firm didn’t seem to mind that I was doing a two-month 

hearing pro bono (“It’ll be great experience on your feet”), but I 

was embarrassed by my lack of billings and said (without much 

enthusiasm) that in the circumstances my draw should be reduced. 

Donald McTaggart reflected on the problem and said the 

firm should pool my share and Vic’s share and “Vic should take 

what he wants and Ian can have whatever is left.” 

The firm was initially housed in somewhat Dickensian offices 

at 67 Yonge Street (moving in the early 1960s to 365 Bay 

Street). An early acquisition was Joseph Henry Potts (later the 

somewhat irascible Justice Potts). Joe was from Saskatchewan, 

the son of General Arthur Potts, with a brother in the military 

and a personality the size of 

the planet. He had acquired 

notoriety at the University of 

Toronto by cheerleading the 

Varsity Blues football team, 

making a terrific amount of 

noise and sporting a huge 

raccoon coat that he ceremoniously 

burned in a funeral 

pyre at the end of the season’s 

final game. Everyone 

on campus knew Joe Potts. 

After the war he went to the University of Cambridge on a 

veterans’ scholarship. It seems everyone at Cambridge also 

came to know Joe. When I was there about 15 years later and 

applied for membership in the Cambridge Union Society, the 

man behind the desk said, “Oh you’re from Canada. Do you 

know Joe Potts?” 

Joe was the firm’s goodwill ambassador to the world, devoting 

himself to the Canadian Bar Association, the Lawyers 

Club (dinners more or less monthly in Convocation Hall in 

the 1970s), the Canadian Club, the Empire Club, Liberal Party 

politics (bigtime), and so on, with a commercial law practice 

sandwiched somewhere in between. He was publicized extensively 

(too extensively, we thought) by the CBA newspaper. 

There were photographs from a midwinter meeting at the 

Château Montebello of Joe being thrown into a swimming pool 

by “visibly refreshed” senior members of the bar, another at 

the annual meeting in Calgary featuring Joe trying unsuccessfully 

to wrestle a calf at a mock rodeo, then another at some 

function dancing with a lampshade over his head. Joe was puzzled 

that all this publicity didn’t attract more blue-chip clients. 

We all turned out to canvass for Joe in his many unsuccessful 

election campaigns in the provincial riding of Rosedale. Peter 

had run in the same riding (also unsuccessfully) years earlier. 

After losing one campaign, Joe pointed out to Peter that about 

5,000 more people had voted for him than had voted for Peter. 

Peter responded that in the interval the people who supported 

him had had 10,000 children “of whom only half were prepared 

to vote for you.” Joe was not one of those “male, pale, 

and stale” lawyers. He was a big man physically and emotionally. 

He became a compassionate if not excessively scholarly 

Supreme Court of Ontario judge. 

Another early partner, less rambunctious than Joe but greatly 

strengthening the intellectual horsepower of the firm, was 

Arthur Joseph Stone (later Stone JA of the Federal Court of 

Appeal). In 1957, office space was so limited that Arthur and 

32 | WINTER 2022 | THE ADVOCATES’ JOURNAL 

His style of mentoring meant that younger 

lawyers both worked closely with senior 

counsel and ran their own files under a 

reassuring measure of remote oversight. 

Skills were learned. Traditions passed down. 

Nobody felt adrift. 

Roy McMurtry did their work at the “boardroom” desk in the 

firm library. Born on a farm in Cape Breton, Arthur had been 

identified by one of his teachers as a boy with too much academic 

potential to waste his life on the farm or a fishing boat. 

She gave him additional instruction and pushed him hard and 

got him to Dalhousie, which he followed up with a scholarship 

to the Harvard Law School. However, after experiencing the 

Family Compact that dominated the Halifax legal community 

in the 1950s, he joined the brain drain to Toronto. Arthur spent 

a lot of time fighting admiralty cases with Frank Garity of Mc- 

Millan Binch. They were good at making settlements. Arthur 

would walk by my office saying he was on his way down “to 

put my hand in Frank Garity’s pocket and take some money.” 

In those days, there was 

less pressure on Bay Street 

to specialize. Arthur’s practice 

was an eclectic mix of 

admiralty law, regulatory 

law, solicitor’s work, and 

civil litigation. Being a generalist 

was less remunerative 

but more fun. 

Mentoring was a big part 

of the firm’s strength. Senior 

lawyers seldom went to court 

without taking along younger lawyers or students. Everybody 

carried their own bags. If the file couldn’t support the extra 

expense of a junior, the firm absorbed it. Mentoring involved 

a hands-on approach that on occasion could squeeze tightly. 

Bert sat in the library every morning reading the incoming 

mail of all the litigation lawyers. He sat shoes off in shirtsleeves 

with his legs tucked up underneath his body like 

a cat. He did not read outgoing mail but he could tell from 

the incoming correspondence where trouble was brewing. In 

the early 1970s I was engaged in rancorous correspondence 

with Marvin Catzman (JA), later of the eponymous Catzman 

Award for Professionalism & Civility awarded annually by The 

Advocates’ Society. I had taken the position that Marvin was 

wielding the Bankruptcy Act against my client as a collections 

tool, which the courts frowned on, and there ensued correspondence 

that escalated from the outraged to the sulphurous. 

Bert eventually dropped by to discuss cooling the matter. His 

style of mentoring meant that younger lawyers both worked 

closely with senior counsel and ran their own files under a 

reassuring measure of remote oversight. Skills were learned. 

Traditions passed down. Nobody felt adrift. 

Litigation recruits included Bill Herridge from McMillan 

Binch (who claims he was called “Judas” as he walked out 

McMillan’s door) and Ed Sexton from a London, Ontario, firm 

who eventually became chair of Oslers and a judge of the Federal 

Court of Appeal. There are lots of Bill Herridge stories. He 

was a High Tory and nephew of former Prime Minister R.B. 

Bennett. Rumour had it that Bill still wore R.B. Bennett’s old 

shirts with the starched collars. A forceful lawyer and a faithful 

parishioner of Rosedale United Church, Bill was evenly 

matched against his secretary, the formidable Sally Case – a 

middle-aged woman with a fast brain who spoke her mind. 

She did not share Bill’s religious bent. I recall sitting in his office 

one day, with Miss Case typing away just outside his door, 

when he decided to do a little dictation. Instead of going to the

door and asking her politely to come in, 

he decided to call her on the telephone. 

Miss Case: “Jesus Christ … it’s just you.” 

Bill: “Take not the name of the Lord in 

vain!” Miss Case: “Oh, you and your 

goddamn fairy tales.” [Bill hung up.] 

Three years after Bert MacKinnon went 

to the Court of Appeal and Chief Justice 

“Bud” Estey was appointed to the Supreme 

Court of Canada, the office of Chief 

Justice of Ontario fell vacant. Bert’s name 

went before cabinet for appointment as 

the new Chief Justice. Unfortunately for 

Bert, the Right Honourable John Turner, 

parked at McMillan Binch awaiting his 

return to federal politics, decided to flex 

his political connections and orchestrated 

the last-minute appointment of McMillan 

Binch alumnus William Howland instead. 

The appointment was flipped from 

Bert to Howland at cabinet. In government, 

nothing is done until it’s done. Remarkably, 

the “curse of ACJO” followed 

Bert’s successors John Morden and Dennis 

O’Connor who were both thought to 

be in line for CJO but (surprisingly) were 

also passed over. 

By the early 1970s, the firm’s high-end 

litigation practice and its quirky culture 

attracted some formidable talent including 

Robert (“Dr. Bob”) Sharpe (later Sharpe 

JA). It was evident from the outset that Dr. 

Bob would be torn between practice, for 

which he was well suited, and an academic 

career, especially after he pocketed a 

DPhil from Oxford with a thesis on habeas 

corpus which, surprisingly for so young 

a scholar, became the Oxford University 

Press standard text on the subject. 

In 1974, Bob and I headed off to the Supreme 

Court of Canada on the Canadian 

Arctic Gas Pipeline case, 7 where our 

client was mounting an attack on the 

impartiality of Marshall Crowe, who had 

been presiding as chair of the National 

Energy Board in hearings to approve a 

gas pipeline down the Mackenzie Valley. 

The client’s objective was to disrupt the 

NEB process to give the Honourable 

Thomas Berger time to issue a report 

on his parallel (and competing) inquiry 

into the impact the natural gas pipeline 

would have on Indigenous Peoples 

and the environment. The NEB seemed 

poised to give its approval. Dr. Bob and 

I were alone on the appellant’s side of 

the courtroom, facing a responding array 

of about 17 oil and gas counsel. The 

giant doors of the Court swung open 

(the huissier de justice shouting, “The 

Court! La Cour!” always sending a frisson 

up the spine), and the judges filed 

in. (Bryan Finlay says the entry of the 

judges reminds him of prisoners being 

led up from the cells to face justice.) 

The nine wintry figures were vocal and 

clearly divided. As the expression goes, 

counsel were there just to facilitate the 

discussion among the judges. The gas 

companies requested a quick ruling so 

that the NEB hearing could resume. The 

Court obliged the next morning with a 

quick ruling announcing the disqualification 

of Marshall Crowe “with reasons 

to follow.” The decision, which included 

a strong dissent by de Grandpré J, is still 

the leading Supreme Court of Canada 

authority on adjudicative impartiality. 

The Berger Report 8 was issued before the 

NEB could reorganize itself. The pipeline 

was never built. 

Dr. Bob drifted steadily toward academia, 

where be eventually became 

dean of the University of Toronto Faculty 

of Law before escaping to the 

Ontario bench in 1995 and then to the 

Court of Appeal in 1999. Thereafter, most 

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THE ADVOCATES’ JOURNAL | SEASON 2022 | 33

advocates hoped, he would go on to the 

Supreme Court of Canada, but unfortunately 

for our jurisprudence the last 

elevation never happened. 

In 1974, the firm attracted the three top 

students from the U of T Faculty of Law: 

George Strathy (gold), John Gregory (silver), 

and Owen Gray (bronze). George 

and I did a couple of cases involving the 

scandal-ridden Hamilton Harbour commissioners. 

Our client was the Hamilton 

city solicitor, Ken Rouff, who waged an 

unrelenting war with the Hamilton bar. 

(A typical quote to a senior Hamilton lawyer: 

“I don’t tell you how to run your ratassed 

law firm; you don’t tell me how to 

run City Legal.”) The Harbour commissioners, 

reconstituted after the jailing of 

one of their number, decided they could 

redevelop their lands more profitably 

for commercial and residential buildings 

than as a harbour. They took the position 

that, as a federally regulated “enclave,” 

they were immune from provincial land 

use regulation and could build whatever 

they wanted. We succeeded at trial but 

were dragged off to the Court of Appeal, 

where J.J. Robinette took over as counsel 

for our opponent. We survived the Court 

of Appeal (where, annoyingly, the judges 

watched with excessive interest Mr. 

Robinette’s disapproving body language 

at most of what I had to say, accompanied 

by a few of his heavy sighs and occasional 

loud intakes of breath at critical 

moments). A few weeks later, sitting in 

my office with not much to do, I received 

a phone call from Mr. Robinette to say, 

“I have received instructions to seek 

leave to appeal to the Supreme Court. 

Would you be available to be in Ottawa 

on such and such a date?” Of course, 

he knew perfectly well that I would be 

“available.” Many senior (and lesser) 

counsel would simply have served the 

leave application on a young opponent, 

or instructed a “junior” of appropriately 

low rank to send a peremptory letter. But 

the top man in the counsel business considered 

that we were all members of the 

bar and should be dealt with courteously 

(at least outside of court). 

In the 1970s, Toronto litigation practice 

was more casual than today. The 

bar was much smaller. There were no 

megafirms in which young lawyers got 

buried. Blake, Cassels & Graydon, the 

largest firm in Canada, was about 75 lawyers. 

The court offices were wide open. 

If you had a procedural problem you 

could walk up to Central Office, then located 

just to the right as you entered the 

front door of Osgoode Hall, and consult 

behind the desk with John, who never 

revealed his last name but knew everything 

and was glad to share it, together 

with clouds of his cigarette smoke. You 

could get a motion heard in Weekly Court 

or the Master’s Office within a matter of 

days. Superior Court trials took place in 

the wood-panelled luxury of the Old City 

Hall courtrooms. We viewed with mixed 

feelings the opening of the “new,” somewhat 

antiseptic, courthouse at 361 University 

Avenue. 

In 1973, our firm moved to 390 Bay 

Street. Often around 10 a.m., when not 

otherwise occupied, we would head out 

for coffee to the Honey Dew restaurant, 

on Bay near Temperance Street. The Honey 

Dew would be jammed with lawyers 

from all over downtown, swapping gossip 

and settling cases. The great Joe Sedgwick, a 

leading criminal counsel, could be heard 

over the din reciting something from 

Shakespeare. Lawyers found it hard to 

be unpleasant to each other after sharing 

coffee, although sometimes they succeeded. 

Bert would often take his juniors 

to lunch at the Ontario Club, where we 

sat reading all the newspapers. 

In 1980 I went off to Ottawa, on secondment 

for two years to the Department 

of Justice to get a chance to do more public 

law cases. I overstayed the original 

plan and, by the time I finished a stint 

as associate deputy minister of justice 

in 1986 and headed back to the firm, the 

partnership, great as it was, had decided 

to wind itself up. It turned out that its 

biggest strengths were also its greatest 

weaknesses. Our easygoing attitude to 

money and the lockstep compensation 

structure was coming under pressure. 

Too many lawyers had too many other interests. 

The firm was being regularly decapitated 

by appointments to the bench. 

We couldn’t even hang onto our name to 

build the brand. When Peter Wright left, 

the firm became MacKinnon McTaggart. 

When Bert left, it became McTaggart, 

Potts, Stone & Herridge. When Joe was 

appointed, it became McTaggart Stone. 

Bert suggested it should now simply be 

called McTaggart and Associates, with 

Donald marketing himself as “Mentor of 

Judges.” By 1986 the partners had begun 

to scatter elsewhere. 

In my case there was a direct line 

from the generosity of the “auld firm” 

in the 1970s to my appointment to the 

Supreme Court of Canada in 1998. My 

pro bono ratepayer work opposing Metro 

Centre garnered a lot of press (the Globe’s 

daily coverage included a description 

of my cross-examination of a traffic 

The First Supplement to The Guide for Lawyers Working with Indigenous 

Peoples is now available online. Scan the QR codes to access. 

Guide for Lawyers Working with 

Indigenous Peoples (First Supplement) 

Guide pour les avocats qui travaillent avec 

des parties autochtones (1er supplément) 


expert as “tedious but relentless”) and led to a lot of Ontario 

Municipal Board work (becoming marginally remunerative) 

opposing suburban shopping centre proposals on behalf of 

downtown merchants in exotic places as scattered as Sudbury, 

Espanola, and Thunder Bay. (We called it “Store Wars.”) In 1979 

the federal Competition Bureau was reviewing the Hudson’s 

Bay takeover of the Robert Simpson Company, and I was called 

to Ottawa to share my “shopping centre expertise.” This work 

led to my secondment to the Department of Justice in 1980, 

where I managed to escape from competition law and jumped 

headfirst into Aboriginal and constitutional law appeals. Much 

of my work over the next six years was before the Supreme Court 

of Canada, which carried over when I returned to private practice 

in 1986. No doubt this background in arguing Charter and 

other constitutional cases, and a lot of Indigenous rights work 

(and not my commercial cases), opened the door to the possibility 

of a Supreme Court appointment. And it all goes back to 

the indulgence of the old firm for my non-paying efforts at the 

Ontario Municipal Board. 

It wasn’t until I joined McCarthys that I understood 

why its approach succeeded and Wright & McTaggart’s 

approach ultimately failed. McCarthy’s, with its outstanding 

litigation group, which at the time included the 

founding partners of Lenczner Slaght, focused laser-like on 

the business of law. Arthur Scace, one of the brightest lawyers 

of his generation, essentially devoted his career to building the 

national law firm. The McCarthy Tétrault brand rested on an 

ever-expanding army of lawyers who were in it for the long 

term. At the time I joined in 1986, I think McCarthys’ most recent 

judicial appointment was John Brooke JA in the early 1960s. 

Arthur Scace once asked me if a Supreme Court of Canada appointment 

was ever offered (which both of us correctly thought 

far-fetched), would I take it. I said yes, of course I would. He was 

genuinely surprised. It was not a choice he would have made. His 

kind of commitment was foreign to the culture of the old gang 

at Wright & McTaggart. On the other hand, McCarthys’ alumni 

do not (so far as I am aware) gather in plenary session every 

Christmas to raise a glass to the “auld firm.” 

Notes 

1. Gazette (Law Society of Upper Canada: 1968), 1991. 

2. The Queen v George, [1966] SCR 267. 

3. Migratory Birds Convention Act, RSC 1952, c 179. 

4. Indian Act, RSC 1952, c 149, s 87. 

5. R v Taylor and Williams (1981), 34 OR (2d) 360. 

6. See, e.g., Manitoba Metis Federation v Canada (AG), 2013 SCC 14. 

7. Committee for Justice and Liberty et al. v National Energy Board et al., [1978] 

1 SCR 369; 1976-03-11. 

8. Canada, The Mackenzie Valley Pipeline Inquiry, Report 

(Ottawa: Minister of Supply and Services, 1977) 

(Commissioner Thomas R Berger). 

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THE PRACTICE OF ADVOCACY 

Why it’s hard to become 

a better advocate 

Paul Fruitman 

Nobody said it would be easy. But the level of difficulty 

has been a surprise. Beyond the long hours, the challenging 

clients, and the occasionally ornery judges is 

the struggle to improve as advocates. 

The advocate’s theatre of battle is fraught with an infinite 

number of variables, unique circumstances, delayed (if ever) 

feedback, and flexible “rules” governing the substance of disputes 

and the procedure for adjudicating them. Add to that the 

tricks our minds play to amplify our confidence and help us 

deal with defeats, and it is difficult to know if we are improving 

at all. Although we can work on foundational skills such 

as writing and oral advocacy, there is a lot more to winning 

cases. Our efforts to get better can at times echo the quip often 

attributed to Yogi Berra: “We’re lost, but we’re making good 

time.” If we are actually going to get better, we need to start by 

engaging in honest self-reflection. 

Limited and flexible rules 

Litigation is ostensibly governed by thick rulebooks that give it 

a veneer of predictable order. But many of the “rules” are really 

guidelines that retain residual discretion for judges. Imagine 

if a hockey rulebook stated that a referee “may” call a penalty 

for high-sticking. Similarly, substantive law is typically based 

on discretionary “tests” that are meant to appear objective, but 

ultimately require the subjective weighing of criteria. 

Of course, the flexibility given to judges is a feature, not a 

bug. It allows for each case to be decided on its own merits. 

Justice Sharpe notes that this flexibility is inherent in the balance 

struck between precisely drafted rules that will inevitably 

leave gaps and more vague rules that will cover the widest 

range of possibilities. 1 

Whether we have got the balance right is debatable. But a 

natural consequence of judicial flexibility is that it can make it 

harder for counsel to understand what went right, or wrong, 

as the case may be. 

Flexible rules help qualify litigation as what psychologists 

call a “wicked” learning environment. 2 Wicked learning environments 

are also characterized by limited feedback, a lack 

of repetition, and a lot of variables. And, as the name suggests, 

they are very hard to master. Sound familiar? 

So little feedback 

At the opposite end of the spectrum from “wicked” learning 

environments are “kind” ones. Kind learning environments 

neatly fit the practice-makes-perfect paradigm, loosely quantified 

as the “10,000-hour rule,” itself made popular in Malcolm 

Gladwell’s bestseller, Outliers. 

Consider Tom Amberry, a retired podiatrist who became a latenight 

television celebrity after setting the world record for most 

consecutive basketball free throws: 2,750. Amberry improved 

his shooting by taking at least 500 shots a day, six days a week. 3 

Each shot produced feedback based on whether and how cleanly 

it hit; or, if it missed, in which direction and by how much. 

The Williams sisters, perhaps the greatest sibling athletes 

ever, improved in a similar way. As girls, they were forced by 

their father to return 500 volleys after school before they could 

go home. 4 That practice regimen was still less intense than the 

one imposed on the three Polgár sisters, whose parents kept 

them out of school entirely so they could practise chess day 

and night. All three achieved international success, and two 

became grandmasters. Judit, who was apparently the slowest 

to pick up the game but the most persistent, reached the No. 8 

overall global ranking and famously beat Gary Kasparov, perhaps 

the most renowned chess champion in history. 5 

Another example is the professional musician, whose success 

starts with two things: a good ear and the patience to play 

the same pieces over and over, each time a little more smoothly. 

The ear and the instrument provide instant and constant feedback, 

marking a clear path toward improvement. 

The quickest way to improve at anything is to do it, assess 

the result, and then use that information to do it better the next 

time. But litigation, true to its “wicked” way, gives us few such 

opportunities. Depending on the type of practice, a litigator 

might carry between 20 and 100 active cases. If you are a civil 

litigator, you would be fortunate if half a dozen of those cases 

get to trial. Many of them settle or die on the vine before ever 

seeing a judge (or jury) in any capacity. 

If you are fortunate enough to have your case resolved by 

judicial decision, you still get limited insight into how much 

your advocacy and strategy figured into the final outcome. The 

case you just lost may have been too much even for the famed 


oration of Clarence Darrow. Your great win? Maybe one of the 

Scopes monkeys 6 could have got the same result because it was 

all about facts over which you had no control. 

So many variables 

Litigation never repeats. And, like history, it only sometimes 

rhymes. 7 Each case comes with its own facts, witnesses, opposing 

counsel, and decision maker. It is nearly impossible, if not 

actually impossible, to separate the impact of each variable on 

the ultimate outcome. 

Even if all other factors were static, the variance in decision 

makers would still make prediction unrealistic. In Noise: A Flaw 

in Human Judgment, Nobel Prize winner Daniel Kahneman and 

his co-authors break down the different types of uncertainty 

inherent in cognitive judgments. 

The first is “level noise,” which describes the variability of 

average judgments made by different individuals. Words such 

as “likely,” as well as points on numerical scales (a “6” versus 

a “7”), mean different things to different people. 8 

The second type of decision static is “pattern noise,” which 

concerns how different people view the same types of events. 

Some judges consider events by emphasizing equities, while 

others rely on strict legal interpretations. The increasing diversity 

of the bench, while overdue, great for representation, 

and a net benefit to the legal system, also increases pattern 

noise. Judges with similar backgrounds are more likely to see 

things the same way. Conversely, a wider spectrum of judicial 

backgrounds makes prediction more challenging. 

The third type of decision noise is “occasion noise,” which 

describes how the same judge may view the same case differently 

on different days. Maybe the judge is irritable after a bad 

night’s sleep. Maybe they had an argument with their spouse. 

Perhaps a recent personal experience causes the judge to view 

the defendant in a different light. Each of these scenarios is an 

example of occasion noise, and all of them further complicate 

one’s ability to predict and explain outcomes. 

Occasion noise is also where artificial intelligence reaches its 

limit. AI may be able to tell you the average likelihood of a 

certain outcome among a pool of judges, or even how a specific 

judge is likely to decide a dispute. But it does not account for 

“broken leg exceptions” – the probability that people will go 

to a movie tonight does not reveal whether a specific person 

broke their leg this morning and will therefore stay home. 9 In 

other words, AI does not consider the idiosyncrasies of being 

human that often turn a case. 

Occasion noise applies to lawyers and witnesses as well. 

Opposing counsel could make a crucial error if they are distracted 

by a personal issue. The witness you thoroughly prepared 

could lose their composure after getting bad news earlier in 

the day. All these variables and contingencies make it hard to 

extricate the role the advocate actually played in the outcome 

of the case. 


In assessing that outcome, we take the 

role of a veterinarian. The patient does 

not tell us what needs to be remedied or 

could be improved. Even the most thorough 

judicial reasons lack a prescription 

for better counsel work. A conciliatory 

“despite the able arguments of counsel” 

only makes it harder to determine where 

things went wrong. 

Cognitive limits and tricks 

our minds play 

Even if court decisions were 

to itemize what we did well 

and what we need to do better, 

we would still struggle 

to accept and apply that information. 

We are cursed – or 

blessed, depending on your 

perspective – with a series of 

psychological biases that help 

us get along in the world, 

but also prevent us from 

seeing problems that need to 

be fixed. 

Our first issue is egocentrism. 

We believe that the world looks 

as it does to us because that is how it is, 

and that other people accordingly view 

the world the same as we do. As a result, 

we think that what is in our heads is 

also in others’ heads and find it hard to 

conceive that others do not see things 

as we do. 10 This belief helps explain our 

struggle to comprehend why the judge 

“just did not get it.” 

Second, when we get a bad outcome, 

we engage in “cognitive dissonance,” a 

term coined by social psychologist Leon 

Festinger after he and his colleagues infiltrated 

a doomsday cult in 1954. The 

cult’s leader had promised that the faithful 

would escape by flying saucer as the 

world ended. When neither Armageddon 

nor the flying saucer came, the leader explained 

that the world had been spared 

because of their prayer. Rather than abandon 

the group, the most ardent believers 

– those who sold all their possessions in 

anticipation of leaving Earth – became 

more convinced of their leader’s predictive 

power and began to proselytize. 11 

Festinger recognized the mental pain 

we feel when our actions and beliefs conflict. 

He concluded that psychological inconsistency 

makes us uncomfortable and 

that we accordingly rationalize or ignore 

information that creates dissonance. If 

those who succumbed to the doomsday 

prophecy admitted it was contrived, they 

38 | WINTER 2022 | THE ADVOCATES’ JOURNAL 

would also have to admit they had been 

fooled. One exception to pattern noise is 

that nobody likes to think of themselves 

as foolish. 

We do like to think of ourselves as good 

litigators, and when we lose, we need to 

reconcile a bad outcome with what we 

expect a good litigator would achieve. 

To avoid psychological discomfort, we 

choose an explanation that minimizes 

We believe that the world looks as it does 

to us because that is how it is ... As a result, 

we think that what is in our heads is also in 

others’ heads and find it hard to conceive that 

others do not see things as we do. 

dissonance. The bad facts were baked in. 

The law was always against us. The witness 

performed poorly. The judge “just 

did not get it.” 

Because there are so many variables 

in a case, it is easy to explain away a 

loss with reference to factors beyond our 

control. We engage in causal thinking 

that makes the bad outcome explainable, 

if not inevitable. This process leads 

to a satisfying sense of coherence, in 

which emotional comfort fills in for 

rational confidence. 12 

Our third issue is our tendency to commit 

the “fundamental attribution error.” 

When we win, we do not need to resort 

to cognitive dissonance. Instead, we tend 

to attribute the positive outcome as the 

result of our own skill and performance, 

rather than luck or other situational and 

environmental factors. There is truth in 

the maxim that we learn little from some 

success, but much from failure, an observation 

often credited to Dracula author 

Bram Stoker. Failure at least causes us 

to search for a (comforting) explanation. 

The only explanation we need to explain 

a great win is a mirror. 

Too much experience can backfire 

Winning a case – regardless of why – 

often generates new briefs of the same 

type. But too much of the same can 

hamper our efforts to get better. In his 

bestseller, Range: Why Generalists Triumph 

in a Specialized World, David Epstein argues 

that in the most “wicked” learning environments, 

too much experience can 

narrow our thinking and limit our ability 

to respond to changing circumstances. 

Epstein cites the examples of firefighters 

with years of experience fighting house 

blazes losing their intuition when faced 

with a skyscraper fire, and of expert 

accountants being less able 

than novices in adapting to 

new tax rules. 13 

To win in the wild and 

wicked world of litigation, we 

must simultaneously focus 

and keep a wide perspective. 

If we narrow ourselves to the 

same types of cases – mortgage 

fights, perhaps, or medical 

malpractice claims – we 

can find it hard to adjust if 

the next case slightly stresses 

the mould. We can also forget 

that judges are generalists 

who may have just transferred 

from the criminal or family courts 

to the civil lists, or vice versa. 

The nebulous nature of improvement 

Even if we do manage to maintain peripheral 

vision, we still need to know 

what we are looking for. More specifically, 

we need to decide what improvement 

means. Counting up wins and losses 

is insufficient because the inherent 

variables noted above make for an uneven 

and dynamic playing field. The best 

lawyers lose a lot because they attract 

tough cases. A lawyer who never loses is 

a lawyer who sticks with easy ones. 

Improving individual skills such as 

legal writing, oral advocacy, and legal 

analysis is helpful but does not generate 

a direct line to more trial wins. In addition 

to improving our skills, we need to 

critically examine our outcomes. 

How to get better: First, ask why we win 

and why we lose 

Following every game, Al Davis, the late, 

iconic coach-turned-owner of the Oakland 

Raiders and serial litigant, 14 used to 

press his coaching staff to answer “Why 

did we win?” or “Why did we lose?” 

Although the obvious response might 

be a key play – a timely third down stop 

or a big punt return – Davis pushed for 

a more thoughtful analysis that would 

often uncover strategic decisions made

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after practice several days earlier. 

The point of this post-game review was 

to better position the team for the weeks 

ahead. And it worked: Davis’s ongoing 

quest to identify the reasons for wins and 

losses led to three Super Bowl titles. 

Embrace the litigation post-mortem 

The kind of forensic analysis Davis demanded 

is not common to our line of 

work. Reported case analyses typically 

focus on changes in law. In-firm litigation 

seminars can tend toward war stories and 

lessons with limited broader applicability 

– and they are confined to victories. Few 

want to discuss their devastating defeat 

over doughnuts. 

We shy away from true forensic reviews 

of our cases for three reasons. 

The first is that analyzing why we won 

or why we lost is not billable time. The 

second is that trying to determine why 

we won or why we lost is very hard. 

The third is that we prefer to avoid 

uncomfortable truths. 

But a litigator cannot be like a baseball 

closer, whose best attribute is often 

the ability to forget what happened 

the day before. We improve by seeing 

more, doing more, keeping an open 

and curious mind, and then honestly 

reflecting on what went right and what 

went wrong. 

Maybe we won that case in spite of 

ourselves, and because the facts and the 

law were overwhelmingly in our favour. 

Or maybe we won because we drew 

a judge sympathetic to our client and 

who was motivated to distinguish unhelpful 

case law. Maybe that is why 

the Court of Appeal emphasized the 

importance of deferring to the trier of 

fact rather than the soundness of the trial 

judge’s analysis. 

Maybe that crushing loss really was the 

product of our own poor performance or 

woolly strategic decisions. Saying it was 

inevitable might be just causal thinking. 

And, if it really was inevitable, could we 

have recognized that fact earlier and invested 

more effort in settlement? 

Of course, if we conduct the analysis 

alone, we are less likely to avoid the 

psychological biases described above. It 

is also best to avoid limiting the postmortem 

to those involved in the case, 

since they will all struggle to move beyond 

the biases obtained by living on 

one side of the dispute for so long. Ideally, 

we enlist a colleague – a ruthlessly 

honest one completely ignorant of the case 

– to review at least the written arguments 

and the judge’s reasons and to give an 

objective view. 

None of this is fun. Confronting the 

realities of our wins and losses requires 

engaging with difficult thoughts. But efforts 

to understand why we won or lost 

Notes 

can only help us to get better. As we critically 

review what went right or wrong, 

we take lessons for the next case, and 

the one after that. Though each case is 

different, subtle similarities and vague 

patterns start to emerge. We get better as 

we get a little less lost, while still making 

good time. 

1. Robert J Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018), 

55–59. 

2. David Epstein, Range: Why Generalists Triumph in a Specialized World (New York: Riverhead Books, 

2019), 20–21. 

3. Steve Marble, “Tom Amberry, Podiatrist Who Set World Record with 2,750 Straight Free Throws, 

Dies at 94” (March 23, 2017), Los Angeles Times. 

4. Jordan Zakarin, “How Serena and Venus Williams’ Father Helped Push the Sisters to Tennis Stardom 

(November 2, 2020), Biography Newsletter. 

5. Carlin Flora, “The Grandmaster Experiment” (July 1, 2005), Psychology Today. 

6. One of the highlights of Darrow’s storied career was acting as defence counsel in the 1925 “Scopes 

Monkey Trial,” in which a Tennessee schoolteacher was charged with teaching evolution in violation 

of state law. 

7. This assessment of history is attributed to Mark Twain, who also observed that “a good lawyer knows 

the law; a clever one takes the judge to lunch.” 

8. Daniel Kahneman, Oliver Sibony, and Cass R Sunstein, Noise: A Flaw in Human Judgment (New York: 

Little, Brown Spark, 2021), 365–66. 

9. Ibid, 129. 

10. Steven Sloman and Philip Fernbach, The Knowledge Illusion (New York: Riverhead Books, 2017), 128. 

11. Leon Festinger, Henry W Riecken, and Stanley Schachter, When Prophecy Fails (Minneapolis: University 

of Minnesota Press, 1956). 

12. Kahneman, supra note 8, 155–58. 

13. Epstein, supra note 2, 21, 31–32. 

14. Davis successfully sued the National Football League on anti-trust grounds in 1980 after the league 

tried to stop him from moving the Raiders to Los Angeles. After moving the team back to Oakland 

in 1995, Davis then unsuccessfully sued the league for allegedly sabotaging his efforts to secure a 

new stadium in Los Angeles. Davis was also the only NFL owner to support a “successful” anti-trust 

lawsuit brought against the NFL by the upstart United States Football League – the jury ruled in favour 

of the USFL, but ordered only $1 in damages (tripled, since it was an anti-trust case) plus $5.5 million 

in costs, which was not enough to keep the USFL afloat. Fun fact: the lead plaintiff in the case was New 

Jersey Generals owner Donald Trump. 

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BOOK REVIEW 

An essential resource 

for Canadian jurists 

Shaun E. Finn 

A version of this book review was published in the April 2022 

BCF Class Action NetLetter. 

Michael A. Eizenga 

The Class Actions Handbook 

(Toronto: LexisNexis Canada, 2022) 

Neither a legal treatise, a marketing gimmick, nor a partisan 

diatribe, Michael A. Eizenga’s Class Actions Handbook 

is a useful 312-page primer that manages the feat 

of concentrating the statutory law of all relevant Canadian jurisdictions 

and approximately 30 years of case law into a single, 

accessible volume. In addition to providing useful background 

information, it introduces the reader to various crucial procedural 

stages and legal considerations. 

Access to justice 

As the Handbook explains, one of the most critical focuses of 

class action legislation is access to justice. Invoking Western 

Canadian Shopping Centres v Dutton 1 and Hollick v Toronto (City), 2 

the Handbook notes that “[t]he high cost of litigation means that 

claims of modest amounts rarely will be economically feasible 

to pursue on an individual basis. By aggregating the claims of 

potential individual plaintiffs and effectively spreading legal 

costs across hundreds or thousands of class members, economies 

of scale can be generated to reduce the economic barriers 

to litigation.” 3 Class action legislation thus has a broader 

social dimension that transcends traditional civil litigation. It 

is in part for this reason that the Supreme Court of Canada 

describes the class action as a procedural mechanism whose 

purpose is to foster social justice. 4 

This focus on access to justice is consistent with other important 

developments in civil procedure. For example, Lord 

Woolf’s “Access to Justice – Final Report” noted as a defect 

of the legal system of England and Wales “a lack of equality 

between the powerful, wealthy litigant and the underresourced 

litigant.” 5 Hence the need to render access to British 

justice easier, more transparent, and less expensive. Access 

to justice is also at the centre of Quebec’s new Code of Civil 

Procedure, whose Preliminary Provision stipulates, among other 

things, that it is “designed to ensure the accessibility, quality 

and promptness of civil justice, the fair, simple, proportionate 

and economical application of procedural rules, the exercise of 

the parties’ rights in a spirit of co-operation and balance, and 

respect for those involved in the administration of justice.” 6 

In remarks to the seventh National Pro Bono Conference, 

Wagner CJ of the Supreme Court of Canada stated that access 

to justice is ultimately “about getting good justice for everyone, 

not perfect justice for a lucky few. It’s a democratic issue. 

It’s a human rights issue. It’s even an economic issue.” 7 Class 

actions fit neatly into this broader culture shift. 


Multijurisdictional issues 

According to the Handbook, “[t]he avoidance 

of a multiplicity of proceedings is 

a foundational principle of civil procedure. 

Multiple proceedings about the 

same wrong may lead to inefficiency, 

the duplication of fact-finding, legal analysis 

and appeals, wasted forensic and 

judicial resources, and inconsistent outcomes.” 

8 In other words, as a general 

proposition, there should not be two or 

more class actions advancing the same 

cause of action on behalf of the same putative 

class. It is not unusual, however, 

for overlapping class proceedings to coexist 

in different jurisdictions. 9 

One way of addressing the problem 

of possibly overlapping class actions is 

to stay superfluous parallel proceedings, 

thereby reducing costs for the court 

system and defendants, avoiding contradictory 

judgments, and dispelling 

any confusion among the putative class 

members. The mechanism used for this 

purpose in common law jurisdictions is a 

carriage motion whose purpose is to stay 

all other present or future class proceedings 

relating to the same subject matter 

in a particular province. 10 

But carriage motions are not used 

throughout Canada. In Quebec, “courts 

apply a ‘first to file’ rule which awards 

carriage to the action filed first. This rule is 

not absolute, however, and the court will 

not follow it if a party shows that it would 

not be in the best interests of the class.” 11 

Because Canada does not have an 

equivalent to the US Judicial Panel on 

Multidistrict Litigation – which is able 

to consolidate federal class actions and 

assign them to a specific district court 

for adjudication – Canadian litigants, 

counsel, and courts have struggled with 

efficient management of parallel class 

actions across jurisdictions (i.e., substantially 

similar proceedings commenced before 

the superior courts of more than one 

Canadian jurisdiction) and/or “national” 

class actions (i.e., those which include 

as putative members persons residing in 

several, or indeed all, Canadian jurisdictions). 

Even the Supreme Court of Canada 

has weighed in on the issue, observing 

in Canada Post Corp v Lépine that “the 

creation of national classes … raises the 

issue of relations between equal but different 

superior courts in a federal system 

in which civil procedure and the administration 

of justice are under provincial 

jurisdiction … [T]he decisions made may 

sometimes cause friction between courts 

in different provinces.” 12 

Although a pan-Canadian solution 

has yet to be adopted and implemented, 

some helpful steps have been taken. As 

the Handbook explains, “[t]he Uniform 

Law Conference of Canada has recommended 

that courts should consider the 

issue of parallel multi-jurisdictional class 

proceedings at the certification stage, 

under a more refined preferable procedure 

criterion.” 13 While several provinces 

have adopted the recommendation and 

amended their class proceeding statutes 

accordingly, the courts have held that 

even without a statutory amendment, 

the broad statutory discretion granted to 

a case management judge provides them 

with jurisdiction to consider which of two 

actions is preferable at the certification 

motion with the benefit of a full record. 14 

Limitation periods 

Time waits for no one – and no lawsuit. In 

all Canadian jurisdictions, litigants must 

contend with limitation periods, which 

represent unique and complex issues in 

the class action context. In class actions, as 

in individual actions, the governing limitation 

periods are those that apply to the 

causes of action asserted in the statement 

of claim. 15 It follows that a representative 

plaintiff who has waited too long to bring 

a claim risks applicable limitation periods 

barring the claim, sometimes at an early 

stage (via motion to strike, certification, 

or summary judgment) or eventually at 

the merits (at the common issues trial or 

at individual trials). 16 

To avoid such a prejudicial outcome, 

the parties can enter into tolling agreements 

pursuant to the applicable statutes. 

As the Handbook specifies, “[t]olling 

provisions suspend the running of limitation 

periods during the course of a class 

proceeding. They are intended to further 

the policy objectives of access to justice 

and judicial economy.” 17 Put simply, “[t] 

heir purpose is to protect potential class 

members from the expiry of limitation 

periods until the feasibility of the class 

action is determined, which removes the 

need for each class member to commence 

an individual action in order to preserve 

his or her rights.” 18 

Yet, as with class actions, tolling provisions 

vary from jurisdiction to jurisdiction. 

Summarizing the tolling landscape 

in Canada, the Handbook explains that 

“[t]he class proceedings statutes of the 

common law provinces all contain provisions 

tolling limitation periods for 

potential class members. In Quebec, the 

tolling provisions are found in the Civil 

Code of Quebec. There is no comparable 

provision suspending limitation periods 

in the federal class action regime.” 19 

Conclusion 

The bookshelves of a Canadian class 

action practitioner will likely include 

annotated statutes, loose-leaf binders, 

textbooks, case books, and law reviews. 

They should now include The Class 

Actions Handbook as well. Not only is it 

a recent publication that captures the 

most relevant class action authority, 

but it is an authentically multijurisdictional 

work that does not give short 

shrift to any Canadian jurisdiction, 

including (most notably) the civilian 

province of Quebec. 

Notes 

1. 2001 SCC 46, [2001] 2 SCR 534. 

2. 2001 SCC 68, [2001] 3 SCR 158. 

3. Michael A Eizenga, The Class Actions 

Handbook (Toronto: LexisNexis Canada, 

2022) [Handbook], 1. 

4. Desjardins Financial Services Firm Inc. v 

Asselin, 2020 SCC 30, para 1267. 

5. Harry Woolf, “Access to Justice – Final 

Report” (1996), s 1(2); online: https:// 

webarchive.nationalarchives.gov.uk/ 

ukgwa/20060214041452/http://www. 

dca.gov.uk/civil/final/overview.htm. 

6. CQLR c C-25.01 [CCP]. 

7. Chief Justice Richard Wagner, “Access to 

Justice: A Societal Imperative,” remarks 

made at the 7th Annual Pro Bono 

Conference (4 Oct 2018); online: www.scc- 

csc.ca/judges-juges/spe-dis/rw-2018-10- 

04-eng.aspx. 

8. Handbook at 77. 

9. Ibid. 

10. Ibid at 78. 

11. Ibid at 83. 

12. Canada Post Corp v Lépine, [2009] 1 SCR 549 

at para 57 [Lépine]. 

13. Eizenga, Handbook at 85. 

14. Ibid. 

15. Ibid at 89. 

16. Ibid. 

17. Ibid at 96. 

18. Ibid. 

19. Ibid at 97. 


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