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Stay up-to-date on news and events from our Young Advocates' Standing Committee (YASC) with Keeping Tabs.

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KEEPING TABS<br />

The Advocates’ Society<br />

SUMMER <strong>2023</strong>


CONTENTS<br />

05<br />

06<br />

Chair Chat<br />

Chris Kinnear Hunter, Torys LLP<br />

Court of Appeal tells Regulators to Pony Up<br />

for Disciplinary Proceedings<br />

Brynne Harding, and Tyler McDonough, Bennett Jones LLP<br />

08<br />

Health and Wellness Initiatives to Support<br />

Longevity in the Legal Practice<br />

Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP, Melissa Pike, Pink<br />

Larkin, Sarah Strban, Henein Hutchison Robitaille LLP<br />

Our national conference for mid-career advocates is finally here! Join<br />

us in Ottawa for extraordinary collegiality and learning. Spaces are<br />

limited! Book today!<br />

14<br />

Interview with Theresa Donkor, Rudnicki &<br />

Company<br />

Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP<br />

February 1 - 3, 2024<br />

Editor: Khrystina McMillan, Ontario Securities Commission | kmcmillan@osc.gov.on.ca<br />

Deputy Editor: Eric Blay, Pallet Valo LLP| eblay@pallettvalo.com<br />

<strong>Keeping</strong> <strong>Tabs</strong> Editorial Team: Nina Butz, Bennett Jones LLP, Michael Ding, WeirFoulds LLP, Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP, and Sean Petrou, McCarthy Tétrault LLP<br />

The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a voice for young advocates (advocates<br />

who are ten years of call or fewer) within the Society and within the profession. We do this through networking/mentoring events, by publishing articles by and<br />

for young advocates, and by raising issues of concern to young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual<br />

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

Fairmont Château Laurier<br />

2 3


WHAT’S COMING UP @ TAS<br />

(Click on the program to learn more)<br />

CHAIR CHAT<br />

CHAIR CHAT<br />

SEP 14<br />

This Is How We Do<br />

It: Lessons from the<br />

Senior Family Law Bar<br />

(TORONTO, ON)<br />

SEP 22<br />

Pozner on Cross-Examination:<br />

Advanced<br />

Techniques<br />

(TORONTO, ON)<br />

SEP 23<br />

Do A Trial<br />

(TORONTO, ON)<br />

SEP 26 - 27<br />

Summary Judgment<br />

Motions<br />

(TORONTO, ON)<br />

Chair Chat<br />

Chris Kinnear Hunter, Torys LLP<br />

“Deep summer is when laziness finds respectability.”<br />

– Sam Keen<br />

SEP 28<br />

13th Annual Securities<br />

Symposium<br />

(TORONTO, ON)<br />

OCT 12<br />

L’interrogatoire et le<br />

contre-interrogatoire<br />

des experts<br />

(Québec, QC)<br />

OCT 20<br />

Class Actions<br />

Advocacy<br />

(VIA ZOOM)<br />

SEP 28<br />

5e Gala Annuel de La<br />

Société des plaideurs<br />

(Montréal,QC)<br />

OCT 13<br />

Advanced Negotiation<br />

Strategies for Lawyers<br />

with Marty Latz<br />

(TORONTO, ON)<br />

OCT 05<br />

Equity, Diversity<br />

and Inclusion<br />

(VIA ZOOM)<br />

OCT 17<br />

Commissions<br />

Advocacy<br />

(VIA ZOOM)<br />

OCT<br />

24 - 25<br />

Evidence for<br />

Litigators<br />

(TORONTO, ON)<br />

OCT 11<br />

Examinations for<br />

Discovery:<br />

Building Block One<br />

(VIA ZOOM)<br />

OCT 19<br />

Atlantic Advocacy<br />

Symposium: Elevating<br />

Your Advocacy<br />

(Halifax, NS)<br />

OCT 27<br />

Women in Litigation<br />

Symposium: Forging<br />

Your Own Path<br />

(TORONTO)<br />

The dog days of summer have arrived.<br />

A time to throw on the out-of-office in favour<br />

of cottages, barbeques and outdoor patios;<br />

boating and camping; golf and baseball. 1<br />

And yet, for many of us, doing “nothing” doesn’t<br />

come easy. It’s antithetical to our M.O. during<br />

the rest of the year – the next file, next client,<br />

next goal.<br />

If that rings true for you, consider a different<br />

perspective: Olympic athletes train single-mindedly<br />

for the year leading up to their event, but<br />

not with singular intensity. They understand<br />

that peak performance is achieved not through<br />

maximal exertion at all times, but by periodizing<br />

and tapering their training to climax at the<br />

right time.<br />

The fall will be on us soon enough, with all<br />

that comes with it. If you want to get a head<br />

start now, do yourself a favour and carve out<br />

some ‘me time’ to recharge. If nothing else,<br />

you’ll have something cool to say when people<br />

ask how your summer was.<br />

And if you are taking a little time to yourself,<br />

I hope you’ll enjoy this summertime edition of<br />

<strong>Keeping</strong> <strong>Tabs</strong>, which features a discussion on a<br />

recent decision of the Alberta Court of Appeal<br />

on the role of costs in administrative proceedings<br />

that could serve as a model for the rest of<br />

1 Or insert such other summertime cliché as may apply.<br />

the country; a thought-provoking interview with<br />

Theresa Donkor on her transition from corporate<br />

lawyer to criminal appeals specialist and<br />

the pursuit of racial justice in the legal system;<br />

and a survey of health and wellness initiatives<br />

instituted by some firms that may provide a<br />

model for the future and meet Justice O’Bonsawin’s<br />

call at End of Term Dinner to improve<br />

mental health in the profession.<br />

Last but not least, I want to take a moment to<br />

thank <strong>Keeping</strong> <strong>Tabs</strong>’ outgoing editor, Khrystina<br />

McMillan, on this, her last edition of KT. Khrystina<br />

infused each edition of <strong>Keeping</strong> <strong>Tabs</strong> with<br />

the energy and enthusiasm so characteristic of<br />

her, and we are as sad to see her go as we are<br />

excited to see what Eric Blay and the incoming<br />

editorial team does with the publication.<br />

As always, Eric would love to hear from you;<br />

if you’d like to contribute a piece to a future edition,<br />

please reach out to Eric at eblay@pallettvalo.com<br />

for more details. If you’re looking to<br />

get involved in YASC, you can join our Volunteer<br />

Roster by reaching out to Katrina Crocker at<br />

kcrocker@hhllp.ca.<br />

Be sure to check your inboxes or follow The<br />

Advocates’ Society on Twitter, LinkedIn, and<br />

Facebook for the latest on YASC events and initiatives.<br />

Until then, see you in the Fall.<br />

5


CASE BRIEF<br />

Court of Appeal tells Regulators to<br />

Pony Up for Disciplinary Proceedings<br />

The new cost of self-regulation after Jinnah v<br />

Alberta Dental Association and College<br />

Brynne Harding, Bennett Jones LLP, and Tyler Mc-<br />

Donough, Bennett Jones LLP<br />

duct; (ii) is a serial offender; (iii) has failed to cooperate<br />

with investigators; or (iv) has engaged<br />

in hearing misconduct.<br />

In establishing the presumption, the Court<br />

took notice of publicly available financial statements<br />

of the College, concluding that the new<br />

rule would have “marginal, if any” impact on<br />

the College’s financial position. Of interest, this<br />

evidence had not formed part of the appeal record<br />

and the parties had not been invited to<br />

make submissions on the financial impacts. As<br />

Alberta’s professional colleges vary in size and<br />

financial means, the new presumption may affect<br />

some more than others.<br />

The Supreme Court of Canada denied the<br />

College’s application for leave to appeal.<br />

Impacts on Self-Regulated Professional<br />

Organizations<br />

The breadth of Jinnah’s application to professional<br />

regulators in Alberta and beyond is unsettled.<br />

The Court indicated that its framework<br />

applies to all professionals regulated by the Alberta<br />

Health Professions Act. Outside of healthcare,<br />

some regulators have rejected the decision,<br />

contending that it does not govern their<br />

statutory mandate (e.g., Law Society of Alberta<br />

v Beaver).<br />

With its holding that the profession as a whole<br />

should presumptively bear the cost of misconduct<br />

proceedings, except where one of the four<br />

categories of “compelling reasons” applies, the<br />

Jinnah decision may discourage regulators<br />

from pursuing disciplinary proceedings. This<br />

may, in turn, encourage informal resolution of<br />

complaints, which would be less costly, but can<br />

also create a prejudicial disciplinary history for<br />

professionals. Fewer or smaller costs awards<br />

may also mean fewer appeals by professionals<br />

from hearing decisions against them.<br />

Regulators should stay up to date on the<br />

evolution of the four categories of “compelling<br />

reasons” to award costs, and how the decision<br />

is interpreted and applied.<br />

In Alberta, punitive cost awards in administrative<br />

proceedings may be a thing of the past. In<br />

Jinnah v Alberta Dental Association and College,<br />

Alberta’s top court established a new presumption<br />

that the profession as a whole – and not individual<br />

members - should bear the costs of all<br />

but the most serious disciplinary proceedings.<br />

Overview<br />

One of Dr. Jinnah’s patients complained about<br />

her collection efforts on a $444.46 invoice for<br />

dental services. A Hearing Tribunal of the College<br />

held that the collection efforts amounted<br />

to professional misconduct and ordered Dr. Jinnah<br />

to stop practising dentistry for one month,<br />

complete a philosophy course in ethics, and<br />

pay $50,000 in costs.<br />

Dr. Jinnah sought an administrative appeal,<br />

through which the Appeal Panel quashed the<br />

one-month suspension and reduced the hearing<br />

tribunal costs award to $37,500, covering<br />

just 20% of the College’s hearing costs. Pursuant<br />

to a statutory right of appeal, Dr. Jinnah appealed<br />

to the Alberta Court of Appeal.<br />

The Decision<br />

The Court of Appeal set aside the $37,500 costs<br />

award and held that it was so large as to have<br />

become the primary sanction for Dr. Jinnah’s<br />

misconduct. This was a reviewable error, applying<br />

the longstanding principle that costs<br />

awards are designed to indemnify and not to<br />

punish. The Court had counseled restraint in<br />

past cases, but had stopped short of establishing<br />

a rule.<br />

Curtailing the discretion to award costs, the<br />

Court created the new presumption that “the<br />

profession as a whole should bear the costs in<br />

most cases of unprofessional conduct”. Four<br />

types of “compelling reasons” could justify a<br />

departure from the presumption: a member<br />

(i) has committed serious unprofessional con-<br />

6 7


hours. Rather than establishing a specific hours target, associates are assigned a moderate annual<br />

budget, which they manage with a mentor. This approach seeks to help empower associates,<br />

promote discretion over when and how they work, while also teaching the business realities of<br />

practice.<br />

To nurture this moderate hours culture, partners are cautious about the number of files and<br />

projects associates take on, closely monitor associate hours and capacity, and regularly involve<br />

associates in file management and work delegation decisions. The goal for this firm is to work<br />

slightly under capacity so that each file gets the attention it needs and so that there is enough<br />

slack to handle work emergencies when they arise. In this law firm’s experience, taking associate<br />

work/life balance seriously helps establish a healthy and sustainable pace for the firm as a whole.<br />

ALY HÁJI MELISSA PIKE SARAH STRBAN<br />

MENTAL HEALTH<br />

Health and Wellness Initiatives to support<br />

Longevity in the Legal Practice<br />

Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP, Melissa Pike, Pink Larkin, Sarah Strban,<br />

Henein Hutchison Robitaille LLP<br />

The importance of prioritizing health and wellness is becoming a more commonplace conversation<br />

in the legal profession. While traditional approaches to health and wellness such<br />

as allowances and reimbursements, offer important benefits, many firms are also implementing<br />

innovative policies to foster longevity in their workplaces. The YASC Health and<br />

Wellness Working Group canvased YASC members regarding such initiatives and highlight<br />

three below.<br />

Reframing the Billable Target<br />

The billable hour is often raised as a hot-button issue in<br />

relation to health and wellness.<br />

We spoke with a Toronto employment and labour law<br />

firm that has implemented an innovative approach to<br />

the billable hour to promote health and wellness. This<br />

approach is a product of believing that managing hours<br />

and giving associates a high degree of autonomy are<br />

essential factors in avoiding burnout and fostering longevity<br />

in litigation. From the top down, the firm has intentionally<br />

adopted a moderate hours culture. Lawyer<br />

hours typically sit around 1250 a year, with a meaningful<br />

portion of that being made up of pro bono and low bono<br />

Substansive Parental Leave<br />

With respect to pregnancy and parental leaves, some firms are providing greater top-ups so that<br />

associates who choose to take these leaves can do so without financial strain. We spoke with one<br />

such firm, a Nova Scotia and New Brunswick-based labour and employment law and litigation<br />

firm. Under their policy, associate maternity/parental EI benefits are topped up by the firm to 95%<br />

of their salaries for the entirety of a 12-month leave or the pro-rated equivalent for an 18-month<br />

leave. Such leaves also do not impact partnership considerations or delay eligibility.<br />

We spoke with one lawyer at this firm who took a one-year pregnancy and parental leave in<br />

her sixth year of practice and returned from her leave as a partner in her seventh year who said:<br />

“Working at a firm that encourages life outside of work, including family priorities, and not having<br />

a parental leave impact one’s career progression, is a testament to [our firm]’s commitment to its<br />

associates’ longevity in the legal practice and at the firm. Our firm’s collaborative approach also<br />

effectively provides coverage while associates are on leave and for their reintegration into their<br />

work when they return. It is the firm’s view that the practice of law is a marathon – not a sprint. And<br />

we’re very proud of the work environment we’ve created to support that marathon.”<br />

8 9


Mental Health Supports<br />

A Toronto litigation boutique has taken a cutting-edge approach to mental health by offering its<br />

lawyers a comprehensive wellness policy, which includes paid mental health days, an annual wellness<br />

stipend, and active engagement in Well-Being Week in Law. This firm also covers the costs of<br />

individualized counseling for each of its associates in partnership with a leading clinic specializing<br />

in lawyer-related stress and mental health services, to support their associates in navigating the<br />

early years of practice.<br />

The managing partner’s view is that mental health supports are essential for a modern practice:<br />

“We train our lawyers to be best-in-class litigators, negotiators, and investigators. There is no way<br />

to achieve long-term success in this profession without paying careful attention to your health.<br />

Mental health is health.”<br />

Paid counseling allows juniors to develop healthy habits and manage their stress levels, all with<br />

the support of an experienced professional. It also provides an avenue to manage the unique<br />

stress of litigation, as explained by the same managing partner: “We are only now coming to understand<br />

the impact that secondary or vicarious trauma can have on litigators. We want our lawyers<br />

to have long and fulfilling careers. That can’t happen if they don’t develop the tools to avoid<br />

burnout and to productively process all the turmoil and emotion that comes up when you spend<br />

your days fighting for people’s companies, livelihoods, and liberty.”<br />

Takeaways<br />

Each of these policies aims to promote longevity in the legal practice, and firms such as these<br />

three are seeing the benefits. Ensuring that associates are mentally healthy, and able to perform<br />

to their full capacity just makes sense from both a personal and business perspective.<br />

NEW TAS<br />

MENTORING<br />

PORTAL<br />

Did you know The Advocates’ Society has a new<br />

online mentoring program exclusively for TAS members?<br />

A key goal of this new mentoring program is to create a simple way for our Junior Members to<br />

feel more connected to their professional community and obtain some career advice from more<br />

experienced members of the bar. This program model is convenient, efficient and effective:<br />

√<br />

√<br />

√<br />

No long-term commitments.<br />

No extensive questionnaires or matching.<br />

No heavy agendas, minute taking or long-term planning.<br />

Just simple connection and conversation for junior lawyers to get some tips and connect with<br />

someone new.<br />

More information is available on the<br />

TAS mentoring website page.<br />

TAS Junior Members are automatically signed<br />

up. Click here to set up your profile today!<br />

10 11<br />

****At this time, the program is only available in English but we are working with Mentorship Rocket to build a bilingual (English and French) site for later in <strong>2023</strong>.


Q. Could you describe your practice in a few sentences?<br />

A. I am a criminal defence lawyer with a focus on racial justice. Because of my interest in systemic<br />

issues, I specialize in criminal appeals. Most of my litigation takes place before the Ontario Court<br />

of Appeal. I also defend clients at trial, advise complainants in sexual assault proceedings, and<br />

represent lawyers and paralegals in disciplinary proceedings before the Law Society of Ontario.<br />

INTERVIEW<br />

Q. Your career trajectory is fascinating, going from practising corporate law on Bay Street<br />

to your current practice in criminal law. Was it always your intention to practise criminal<br />

law?<br />

A. It was always my intention to do something social justice-oriented with my law degree, but I<br />

didn’t initially know what that would look like in reality. In law school, I was really interested in<br />

criminal law and employment law but there weren’t a lot of jobs available in the 2L recruit in those<br />

areas. It wasn’t until the pandemic, when I started to do a lot of self-reflection and have conversations<br />

with friends, family, and mentors, that I realized that criminal law was 100% what I wanted<br />

to do.<br />

Interview with Theresa<br />

Donkor, Rudnicki & Company<br />

Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP<br />

Q. Why did you become a lawyer?<br />

A. I’ve wanted to be a lawyer since I was a kid. I don’t have any lawyers in my family and didn’t<br />

know any lawyers growing up, but I think I’ve been interested in advocacy since even before I really<br />

understood what the word ‘advocate’ meant.<br />

I remember when I was nine or ten, I wrote a long and comprehensive letter to my parents on why<br />

we should get a family dog. I guess that letter was my first ever written submission. I didn’t get the<br />

dog, but it was the beginning of people telling me that I should be a lawyer one day and that idea<br />

stuck with me.<br />

Q. Why did you start your career by practicing corporate law?<br />

A. To be honest, I kind of stumbled upon corporate law because I wasn’t brave enough to go off<br />

the beaten path in law school, despite my interest in social justice. There was a lot of pressure in<br />

law school to get a job during the 2L recruit and I felt like I would be a failure if I didn’t.<br />

Jobs outside of Bay Street or government weren’t really advertised, and I didn’t want to risk not<br />

finding a job, especially given the large amount of law school debt I had at the time. So, I ended<br />

up applying broadly to firms in the recruit with the goal of just finding a job – any job. Ultimately, I<br />

accepted a summer student position at a full-service corporate law firm on Bay Street, and I later<br />

returned there as an articling student and associate.<br />

While it may have been ideal to practise criminal law right from the beginning, I have no regrets<br />

starting off my career in corporate law. I have a lot of great memories from my previous firm. I<br />

met some of my closest friends there, gained a lot of excellent mentors, and received top quality<br />

training and resources that shaped me into the lawyer I am today.<br />

14 15


Q. What was it like transitioning into your current practice, not only in the sense of going<br />

from corporate law to criminal law, but also from a huge firm to a smaller boutique?<br />

A. There was a learning curve in switching practice areas but the foundational skills that I learned in law<br />

school and in the early stages of my legal career helped me to get up to speed quickly. My boss was also<br />

very supportive and patient, which made the transition easier.<br />

I feel like I dove right into the deep end though – I second chaired my first jury trial in my first month<br />

practising criminal law; I made submissions on racial bias in jury selection within my first week. It was<br />

difficult, but it was an invaluable experience. I also started practising criminal law during the pandemic,<br />

so I was able to watch proceedings over Zoom, which helped me learn a lot.<br />

The most noticeable difference in the transition was the discrepancy in resources. At big corporate firms,<br />

there are dozens of different departments that help you with whatever you need – printing services, IT<br />

services, assistants, kitchen staff, human resources, client services, the list goes on. Most small criminal<br />

law firms don’t have any of that. I think a large part of the reason for this is because most criminal law<br />

firms take on a lot of clients supported by Legal Aid Ontario, which is tremendously underfunded.<br />

By virtue of that, criminal defence lawyers typically make a lot less money than corporate or civil lawyers.<br />

But at the end of the day, it’s not about the money for me, and I’m sure most of my colleagues<br />

would say the same. We do the work we do because we’re passionate about it. And thankfully, the<br />

criminal defence bar is extremely collegial – we help each other out as much as possible, even if we’re<br />

not part of the same firm.<br />

Q. What spurred the transition from corporate<br />

law to criminal law?<br />

A. I didn’t plan on practising corporate law forever,<br />

but I started to feel compelled to make the transition<br />

around 2020. Not only were we facing an unprecedented<br />

global pandemic, but we were also<br />

witnessing a major socio-political uprising with the<br />

Black Lives Matter movement.<br />

To be clear, police brutality against Black folks and<br />

anti-Black racism existed long before 2020 but that<br />

year there was an incredible amount of public attention<br />

towards it. And seeing people who looked<br />

like me being murdered on the news and on social<br />

media every day was devastating.. George Floyd,<br />

Breonna Taylor, and Ahmaud Arbery are just a few<br />

of the names on the ever-growing list of Black individuals<br />

who needlessly lost their lives. And they<br />

are more than just names. They are human beings<br />

who had families, friends, and bright futures<br />

ahead of them. This wasn’t just happening in the<br />

United States. In 2022, the Toronto police released<br />

a report entitled “Race & Identity Based Data Collection Strategy Understanding Use of Force & Strip<br />

Searches in 2020” which showed that Toronto police officers used proportionately more force against<br />

Black people, more often. 1 It is clear that racism and bias play a significant role in these use of force<br />

outcomes that must be addressed.<br />

At some point I decided that I couldn’t stand on the sidelines anymore without taking action. Being<br />

a lawyer is a privilege that equips you with tools and resources that so many other people don’t<br />

have. I wanted to use my tools and resources to more directly help people that looked like me and<br />

came from communities similar to my own.<br />

1. https://www.thestar.com/news/gta/2022/06/15/officers-use-more-force-against-black-people-with-no-good-explanation-why-toronto-police-data.html;<br />

See also: https://www.thestar.com/news/gta/toronto-police-chief-apologizes-to-black-community-as-race-based-data-released/article_43071ae0-8c28-5a67-a27d-be4ed3b9e37d.html?<br />

Q. Your practice is unique because of your focus on racial justice. How does racial justice<br />

inform your practice? Why is racial justice important to the practice of criminal law more<br />

generally?<br />

A. Racial justice is a core part of my practice because racism is a core part of the criminal justice<br />

system. Courts have recognized that systemic racism, and in particular anti-Black racism, continues<br />

to be a reality in our society and justice system, and that it must be acknowledged, confronted,<br />

and erased.<br />

As a Black woman, I’ve experienced the profound impact of racism in my own life, and I have seen<br />

the insidious impact of racism in our communities, institutions, and justice system. Most of my clients<br />

are racialized. The undeniable fact is that Black and Indigenous people are grossly overrepresented<br />

in our criminal justice system and are over-policed, over-punished, and over-incarcerated.<br />

This is what drives me to educate, advocate, and litigate against oppressive systems, practices,<br />

and laws. I have advocated for lower sentences to account for systemic anti-Black racism, the<br />

need to account for disproportionately harsh jail conditions faced by racialized prisoners, and<br />

the importance of cultural competence when representing Black defendants. Ultimately, I have<br />

a deeply-rooted interest in not only achieving just results for my clients, but also in transforming<br />

justice so that no future clients face these same issues.<br />

14 15


Souper de Mentorat<br />

May 24, <strong>2023</strong> | Auberge Le Saint-Gabriel | Montreal, QC<br />

Atlantic <strong>Summer</strong> Social<br />

June 6, <strong>2023</strong> | Arms Public House | Halifax, NS<br />

Wine & Cheese with the Bench<br />

May 31, <strong>2023</strong> | The Advocates’ Society<br />

Wine & Cheese with the Bench<br />

May 31, <strong>2023</strong> | The Advocates’ Society<br />

16 17


www.advocates.ca

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