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

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


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Vol. 42, No. 2. | FALL <strong>2023</strong>

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

Vol. 42, No. 2; <strong>Fall</strong> <strong>2023</strong><br />

33<br />

Kevin Lo<br />


Branko Vranesh<br />


<strong>The</strong> Sherlock Holmes<br />

& Dr. Watson of<br />

digital forensics.<br />

From the Editor<br />

<strong>The</strong> SCOTUS of Canada<br />

<strong>The</strong> Honourable Justice Mahmud Jamal<br />

3 32<br />

6<br />

Stay in your lane? Recent appellate<br />

scrutiny of interveners<br />

Jennifer McAleer, Kimberly Potter,<br />

and Daniella Murynka<br />

Enter Kevin Lo and Branko Vranesh. <strong>The</strong> Hounds of Bay Street. Digital detectives<br />

whose sleuthing skills will make or break your case. Well recognized forensic pioneers,<br />

Kevin and Branko lead the legal industry in evidence gathering and analysis. Together,<br />

they have more than 40 years of investigative experience, with the deep technical expertise<br />

needed to sniff out the smouldering email amidst terabytes of data. No matter where it<br />

resides. So, before you head into any critical legal proceeding, make sure Kevin and<br />

Branko are working on your side. MT>3 Digital Forensics. | Uncover Everything.<br />

Kevin Lo: klo@mt3.ca | Branko Vranesh: bvranesh@mt3.ca<br />

LTDigital Forensics<br />


Annals of Law: Lac Minerals v Corona –<br />

the new trial that wasn’t<br />

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

Judicial notice<br />

in the misinformation age<br />

Erin Pleet and Mary Paterson<br />

Gaining the edge in<br />

multi-dimensional litigation<br />

Gerald Chan and Carlo Di Carlo<br />

10<br />

20<br />

30<br />

36<br />

40<br />

44<br />

11 things common law lawyers<br />

should know about the civil law<br />

Doug Mitchell<br />

Coulter Osborne: A tribute<br />

<strong>The</strong> Honourable John I. Laskin<br />

Patronage returns in Ontario<br />

Stephen Grant, LSM, ASM<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 1



<strong>The</strong> ones that stay with us<br />


<strong>Fall</strong> <strong>2023</strong>; Vol. 42, No. 2.<br />

Editor<br />

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

Managing Editor<br />

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

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

Production Editor<br />

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

Editorial Correspondence<br />

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

155 Wellington St West 35th Floor<br />

Toronto, ON, M5V 3H1<br />

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

Advertising and Subscription Correspondence<br />

Robin Black<br />

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

Creative Director<br />

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

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

Cover<br />

Abby at the Perth County Courthouse<br />

in Stratford, Ontario.<br />

Paintings, Illustrations, and Photography<br />

Delaney Cox: p. 36<br />

Ryan Little: cover, p. 40<br />

Anna Macquistan: pp. 6, 20<br />

Scott Shields: pp. 30, 33<br />

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

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

Society.<br />

Publications Mail Commercial Sales Agreement No. 40019079<br />

<strong>The</strong> Advocates’ <strong>Journal</strong> is printed in Canada and is published four<br />

times a year by <strong>The</strong> Advocates’ Society, 250 Yonge St, Suite 2700,<br />

Toronto, Ontario, M5B 2L7. Distributed free to all members of the<br />

Society. Contents copyright © <strong>2023</strong> by <strong>The</strong> Advocates’ Society.<br />

Second class registration number 5941, paid at Scarborough.<br />

Contents may be reproduced only with written authorization of<br />

the authors and acknowledgment of <strong>The</strong> Advocates’ <strong>Journal</strong>. <strong>The</strong><br />

editors do not assume responsibility for the loss or return of<br />

manuscripts, photographs, or illustrations.<br />

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1993-94 Roger Oatley<br />

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

Caroline Abela<br />

Mark Abradjian<br />

Lisa Belcourt<br />

Simon Bieber<br />

Caroline Biron<br />

Hilary Book<br />

Sean Boyle<br />

Melissa Burkett<br />

Frank Cesario<br />

President: Dominique T. Hussey<br />

Vice-President: Darryl A. Cruz<br />

Treasurer: Sheree Conlon, KC<br />

Secretary: Sheila Gibb<br />

Chief Executive Officer: Vicki White<br />

Shantona Chaudhury<br />

David D. Conklin<br />

Kirsten Crain<br />

Joni Dobson<br />

James Doris<br />

Craig Ferris, KC<br />

Jon Foreman<br />

Linda Fuerst<br />

Peter Henein<br />



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

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

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

1998-99 Michael F. Head<br />

1999-00 James A. Hodgson<br />

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

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

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

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

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

2005-06 Linda Rothstein, LSM, ASM<br />

2006-07 Michael E. Barrack<br />

2007-08 Michael Eizenga, LSM<br />

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

2009-10 Sandra A. Forbes<br />

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

2011-12 Mark D. Lerner<br />

2012-13 Peter H. Griffin, LSM<br />

2013-14 Alan H. Mark<br />

2014-15 Peter J. Lukasiewicz<br />

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

2016-17 Bradley E. Berg<br />

2017-18 Sonia Bjorkquist<br />

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

2019-20 Scott Maidment<br />

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

2021-22 Deborah E. Palter<br />

2022-23 Peter W. Kryworuk<br />

Scott C. Hutchison<br />

Lara Jackson<br />

Najma Jamaldin<br />

Cynthia Kuehl<br />

Troy Lehman<br />

Robin Lepere<br />

Craig Lockwood<br />

Jennifer McAleer<br />

Christine Mohr<br />


1982-90 Moishe Reiter, QC<br />

1991-2008 David Stockwood, QC, LSM<br />

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

Ira Nishisato<br />

Tamara Prince<br />

Tamara Ramsey<br />

Luisa Ritacca<br />

Scott Robertson<br />

Sylvie Rodrigue, AdE<br />

Jeff Saikaley<br />

John Sorensen<br />

Cynthia Spry<br />

Linda Rothstein, LSM, ASM<br />

Some of you will remember 1988. Brian<br />

Mulroney was our prime minister and<br />

Brian Dickson our chief justice. In January<br />

of that year, the Supreme Court of Canada<br />

struck down Canada’s abortion laws. In February,<br />

Calgary hosted the Winter Olympics. In<br />

July, the War Measures Act was replaced by the<br />

Emergencies Act. In late September, Ben Johnson<br />

was stripped of his Olympic gold medal and<br />

world record when he tested positive for steroids.<br />

In October 1988, the Supreme Court of<br />

Canada was scheduled to hear the appeal in<br />

Lac Minerals v Corona from the decision of the<br />

Ontario Court of Appeal which gave Corona<br />

a constructive trust over a gold mine in the<br />

Hemlo area of northern Ontario. It’s no exaggeration<br />

to say that court watchers, academics,<br />

law geeks, and most of Bay Street were<br />

abuzz about the case. <strong>The</strong> Court of Appeal<br />

had endorsed the trial judge’s findings that<br />

Lac Minerals, a senior mining company, had<br />

breached a fiduciary duty it owed to Corona,<br />

a junior mining company, when Lac secured<br />

the property for itself after Corona’s geologist<br />

had shared valuable confidential information<br />

– assay results, sections, maps, and drill<br />

plans – with Lac’s geologists. <strong>The</strong> court<br />

had also upheld the constructive trust in<br />

favour of Corona.<br />

It was a captivating, hard-fought, David<br />

and Goliath victory. It was also a potential<br />

legal turning point. Business leaders and<br />

some academics had argued that the Court<br />

of Appeal’s decision extended the meaning<br />

of a fiduciary relationship between commercial<br />

parties to require good faith in the<br />

negotiation and performance of business<br />

contracts; imagine that. And many claimed<br />

“It is simply not the case that business and accepted<br />

morality are mutually exclusive domains.”<br />

~ Justice Gérard La Forest, Lac Minerals v Corona<br />

that Canadian law was drifting too far from<br />

its British moorings because the English jurisprudence<br />

restricted the remedy of a constructive<br />

trust to the law of trusts and saw no place for<br />

it in business relationships.<br />

Of course, we know how it all turned out:<br />

Corona won the day. <strong>The</strong> Supreme Court of<br />

Canada agreed that Lac had exploited Corona’s<br />

confidential information for its own advantage<br />

and thus breached a duty of confidence, and<br />

that this justified imposing a constructive trust<br />

on the gold mine in favour of Corona. <strong>The</strong><br />

majority also held that no fiduciary duty arose<br />

on the facts, but the Court defined the doctrinal<br />

parameters of the fiduciary relationship in<br />

a way that has governed a wide spectrum of<br />

relationships ever since.<br />

A case like that one stays with you, winner<br />

or loser. Same for the counsel. Ronald Slaght<br />

and Alan Lenczner remember well the summer<br />

of 1988. Together they had shepherded the<br />

case for Corona from 1984 all the way to<br />

the SCC. <strong>The</strong>y say it shaped their careers in<br />

large and small ways.<br />

As part of our Annals of Law series, Slaght<br />

has dug into the files long stored at Iron<br />

Mountain and reconstructed one of the case’s<br />

still untold chapters – the last-ditch attempt<br />

by Lac Minerals to head off the Supreme Court<br />

of Canada appeal by seeking a ruling that<br />

Corona had won the trial by fraud. Slaght<br />

brings to life the intense litigation that followed:<br />

the strategies and tactics, the production<br />

of previously privileged documents, the<br />

twists and turns that cleared the path for the<br />

SCC victory. Certain aspects of the 1988 legal<br />

culture Slaght describes are obvious relics of<br />

a smaller, chummier bench and bar (spoiler<br />

2 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 3


alert: counsel could get in-person meetings with<br />

the chief justice of Canada), but most of the<br />

moves and countermoves could have happened<br />

last week, or so it seems to me.<br />

<strong>The</strong> Honourable Coulter Osborne, who has<br />

a starring role in Slaght’s story, passed away in<br />

April. <strong>The</strong> Honourable John I. Laskin has written<br />

a heartfelt tribute to this giant of the bench and bar.<br />

And there is much more to savour in this issue.<br />

Justice Mahmud Jamal will make you laugh as you<br />

imagine him explaining to a room of American<br />

trial lawyers what the Supreme Court of Canada<br />

does. <strong>The</strong>re are also articles on the scope of judicial<br />

notice and on the role of interveners in the<br />

Supreme Court of Canada, plus tips for common<br />

law counsel on the civil law of Quebec. For our<br />

meta-thinkers, two authors describe how advocates<br />

must harness the work of counsel who<br />

practise in very different settings to meet the<br />

challenges of modern, complex litigation. And<br />

former <strong>Journal</strong> editor Stephen Grant gets the last<br />

word on the Ontario government’s reinstitution<br />

of the King’s Counsel designation.<br />

Dear readers: Prospective <strong>Journal</strong> writers often<br />

ask me to suggest topics that would be of interest<br />

to you, but I don’t hear from many of you<br />

about what you like to read (and what you<br />

don’t). I am aware of the wealth of law firm<br />

and law association blogs and posts that provide<br />

up-to-the-minute reactions and comments on<br />

new laws and cases. We can’t compete with that<br />

– our pieces need to have a longer shelf life. But<br />

there is surely a mountain of interesting takes<br />

and ideas out there that would be of interest to<br />

our national readership. Please don’t be shy; we<br />

would love to hear from you. And we always<br />

welcome your articles.<br />

GO GREEN!<br />

Did you know TAS Members have the<br />

option of digital-only delivery of <strong>The</strong><br />

Advocates’ <strong>Journal</strong>? Simply log on to<br />

your TAS Member profile at<br />

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

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

Need help? Email us at<br />

membership@advocates.ca and we are<br />

happy to assist. #GoGreen<br />



• Authorship: Include your name and email address at<br />

the top of your article. Be sure to list any co-authors.<br />

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

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

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

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

maximum or minimum length for <strong>Journal</strong> articles. <strong>The</strong><br />

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

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

outside this range.<br />

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

include notes is at the author’s discretion. (All direct<br />

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

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

notes with your submission, we prefer endnotes to<br />

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

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

“supra”) haven’t changed because of late additions or<br />

deletions of text.<br />

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

style. If you include citations, we trust that you will<br />

ensure they are accurate, complete, current and internally<br />

consistent. In particular, check that citations to Internet<br />

sources refer to web addresses that are valid as of the<br />

date of the submission. If a cited web address is no longer<br />

valid, we expect you to make note of this in the citation.<br />

Thank you,<br />

Linda Rothstein, Editor<br />

Andrea Gonsalves, Managing Editor<br />

Sonia Holiad, Production Editor<br />

Gerald Chan<br />

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

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

regulatory, and select civil litigation. He still<br />

has not accepted that his days as a freestyle<br />

rapper are over.<br />

Carlo Di Carlo<br />

Carlo is a partner at Stockwoods with a broad<br />

practice that covers various areas of civil<br />

and regulatory litigation. He is routinely<br />

involved in matters dealing with director/<br />

officer liability, shareholder disputes, the<br />

oppression remedy, and contractual disputes.<br />

Carlo has particular expertise dealing with<br />

securities law issues.<br />

Stephen Grant, LSM, ASM<br />

Stephen Grant is a retired lawyer and a<br />

former editor of this <strong>Journal</strong>. He now spends<br />

his time writing about art and poetry.<br />

<strong>The</strong> Honourable Justice Mahmud Jamal<br />

Mahmud Jamal is a justice of the Supreme<br />

Court of Canada. In accordance with section<br />

8 of the Supreme Court Act, RSC 1985, c S-26,<br />

he resides in the National Capital Region.<br />

<strong>The</strong> Honourable John I. Laskin<br />

<strong>The</strong> Honourable John I. Laskin was appointed<br />

to the Court of Appeal for Ontario in January<br />

1994 directly from the bar, retiring in 2018.<br />

His litigation practice, beginning in 1971,<br />

spanned all aspects of civil and public law.<br />

Since becoming a judge he has written and<br />

taught extensively on written and oral<br />

advocacy.<br />

Jennifer McAleer<br />

Jennifer McAleer is a partner at Fasken in<br />

Toronto, where she practises administrative<br />

and corporate commercial litigation.<br />

Doug Mitchell<br />

Doug Mitchell is one of the founding partners<br />

of IMK LLP, a litigation boutique in Montreal.<br />

He acts in all areas of civil, commercial, and<br />

public law at all levels of courts in Canada,<br />

and also as an arbitrator and arbitration<br />

counsel. He loves the civil law of Quebec.<br />

Daniella Murynka<br />

Daniella Murynka is a knowledge and<br />

practice innovation litigation lawyer at<br />

Fasken. She is creative and versatile in this<br />

role, tracking legal developments, drafting<br />

bespoke resources, and maximizing shared<br />

knowledge. She’s thought about it and still<br />

prefers in-text citations, the winter months,<br />

and instant coffee.<br />

Mary Paterson<br />

Mary is a litigation partner with Osler, Hoskin<br />

& Harcourt, where she specializes in tax,<br />

insolvency, and other fascinating subjects.<br />

She is a board member of Pro Bono Ontario<br />

and an amateur but enthusiastic gardener.<br />

Erin Pleet<br />

Erin Pleet is a partner at Ross Nasseri LLP<br />

in Toronto, where she practises commercial,<br />

civil, and estates litigation as well as<br />

administrative law and appeals. She builds<br />

successful cases and (with her kids) LEGO®<br />

Ninjago creations.<br />

Kimberly Potter<br />

Kimberly Potter is a partner in the Litigation<br />

and Dispute Resolution Department at<br />

Fasken. Her practice focuses on complex<br />

commercial disputes and administrative<br />

law, and she has expertise in professional<br />

regulation.<br />

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

When Ronald Slaght decided to write about a<br />

little-known chapter in Lac Minerals v Corona,<br />

he was thrilled to learn that Will McDowell<br />

had put in a marker to preserve the case<br />

records at McCarthys, “just in case.” With a<br />

72-page box list and hundreds of boxes, Ron<br />

may just be getting started.<br />

4 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 5


<strong>The</strong> SCOTUS of Canada<br />

This is a transcript of an address given to the American<br />

College of Trial Lawyers in Florida on February 25, <strong>2023</strong>. <strong>The</strong><br />

author thanks his law clerk, Siobhan Quigg, for her invaluable<br />

research assistance and wicked sense of humour.<br />

Introduction<br />

I would like to thank Jeff Leon for that kind introduction.<br />

I would also like to thank the American College of Trial<br />

Lawyers for granting me the great privilege of becoming an<br />

honorary fellow.<br />

Jeff mentioned to you that we are both proud alumni of the<br />

Ross Sheppard Composite High School in Edmonton, Alberta.<br />

What he did not tell you is that that school’s most famous<br />

<strong>The</strong> Honourable Justice Mahmud Jamal<br />

alumnus is not a nerd like Jeff or me, but a jock, and that this<br />

person’s most significant accomplishment was not becoming<br />

the second Canadian president of the American College of<br />

Trial Lawyers or a justice of the Supreme Court of Canada but,<br />

rather, winning the Stanley Cup four times – an ice skater by<br />

the name of Wayne Gretzky. Life’s not fair.<br />

Chief Justice Richard Wagner and I are delighted to bring<br />

greetings from the Supreme Court of Canada. Understandably,<br />

our Supreme Court is rarely top of mind for lawyers in the<br />

United States. I was reminded of this recently when a recruiter<br />

for a Wall Street law firm saw the “Supreme Court of Canada”<br />

on the résumé of one of my law clerks and asked her, “What<br />

kind of trials do you help with up there?” She answered politely,<br />

“Oh, it’s Canada’s apex court … it’s like your SCOTUS. It’s<br />

the SCOTUS of Canada.”<br />

<strong>The</strong> SCOTUS of Canada has much in common with your<br />

SCOTUS. Both courts hear appeals of national importance,<br />

both share common ideals about the importance of the rule of<br />

law, and both are respected around the world. Today, I’d like to<br />

tell you a little about our SCOTUS – the SCOTUS of Canada –<br />

and to compare our respective apex courts. I will touch briefly<br />

on seven points.<br />

<strong>The</strong> first six<br />

First, both courts originally had six justices and only gradually<br />

worked up to the current complement of nine. 1 Eventually,<br />

people realized that an even number of judges can lead to<br />

deadlocked decisions. It appears that an ignorance of basic<br />

arithmetic is shared by lawyers on both sides of the 49th parallel.<br />

In 1789, President George Washington selected the first six<br />

justices for the Supreme Court of the United States. <strong>The</strong>se men<br />

were so honoured by the nomination that the first chief justice,<br />

John Jay, spent most of his tenure abroad and resigned<br />

after just six years to become the governor of New York, after<br />

describing the Court as “intolerable”; another justice, John<br />

Rutledge, never attended a formal session of the Court; and a<br />

third, Robert Hanson Harrison, declined the honour completely. 2<br />

<strong>The</strong> first justices of our Court were also a motley crew. Justice<br />

Henry Strong was known for his “opinionated criticisms<br />

of his colleagues, outbursts of temper, and discourteous treatment<br />

of counsel” and has been described as lazy and irresponsible.<br />

3 He was to grace our Court for almost 30 years. 4 In a similar<br />

vein, Justice William Henry was said to be “not too bright”<br />

and was known for judgments that were<br />

“long, windy, incoherent masses of verbiage,<br />

interspersed with ungrammatical<br />

expressions, slang and the veriest legal<br />

platitudes inappropriately applied.” 5<br />

Humble facilities<br />

A second similarity between our respective<br />

apex courts is that both had<br />

humble facilities. For the first 145 years<br />

of its existence, the US Supreme Court<br />

sat in various government buildings and<br />

in at least two taverns. Historians have<br />

described the Court’s early premises as<br />

“mean and dingy” and as only a “little<br />

better than a dungeon.” 6 <strong>The</strong> premises<br />

were understandably not a priority because,<br />

during the first two terms, the<br />

Court heard a grand total of zero cases.<br />

<strong>The</strong> justices spent their time appointing<br />

a Court crier and admitting lawyers to<br />

the bar. 7<br />

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

lacked a dedicated building at first. In its<br />

early years, the Court sat in the Railway<br />

Committee room of Parliament. 8 Historians<br />

have remarked that the physical<br />

facilities were extremely poor, noting<br />

that “[h]ere was a beggarly institution.<br />

No offices were planned for the justices;<br />

all the staff were to share just one room;<br />

and there was to be no separate permanent<br />

library.” 9<br />

<strong>The</strong> Supreme Court of Canada’s first<br />

session, in 1876, also had zero cases.<br />

But the next year, things picked up. A<br />

landmark case argued over three full days<br />

in January 1877 involved a pew holder’s<br />

claim for damages for interference with<br />

his right to occupy pew #68 in a Montreal<br />

church. <strong>The</strong> ejected pew holder won<br />

and was awarded $300 in damages. 10<br />

Later that month, the Court heard another<br />

important case, in which it decided<br />

that several parish priests breached the<br />

Elections Act by giving sermons threatening<br />

their parishioners with eternal damnation<br />

if they voted for candidates of<br />

the federal Liberal party. 11 <strong>The</strong> Supreme<br />

Court of Canada’s golden age had begun.<br />

With this uptick in interesting work,<br />

our Court also upgraded its building.<br />

In 1882, the Court moved from the Railway<br />

Committee room to a two-storey<br />

Gothic revival structure that had, until<br />

then, served as a stable for horses. 12 <strong>The</strong><br />

previous tenants had left the building<br />

filthy and unfit for human habitation. 13<br />

Fortunately, the justices had an easier time<br />

than the horses did climbing the stairs.<br />

Eventually, in 1937, the Canadian government<br />

commissioned the renowned<br />

Canadian architect Ernest Cormier to<br />

build the dedicated art deco courthouse<br />

that we use today. Cormier originally intended<br />

the building to have a flat roof,<br />

but Prime Minister Mackenzie King had<br />

other ideas. Legend has it that while the<br />

building was under construction, Prime<br />

Minister King frequently walked by the<br />

building with his dog, an Irish terrier<br />

named Pat, from whom he often sought<br />

advice, including by séance after Pat’s<br />

death. 14 Perhaps on Pat’s advice, the<br />

prime minister insisted that the building<br />

should have a Gothic peaked dome<br />

to match the surrounding Parliament<br />

Buildings. Cormier grudgingly complied<br />

but, in a small act of defiance, would always<br />

refer to the new roof as the “dunce-cap.” 15<br />

Rumour has it that in 1945 the Canadian<br />

government hid a Soviet defector,<br />

Igor Gouzenko, in the damp and lonely<br />

attic of the “dunce-cap.” Besides this one<br />

valuable use of the dome, it has otherwise<br />

caused only trouble. Maintenance<br />

staff have determined that the vaulted,<br />

uninsulated roof creates its “own weather<br />

systems” and “cause[s] mini-rain<br />

storms that leak into the library below.” 16<br />

On the plus side, it is, I suppose, better<br />

for an apex court to have a leaky roof<br />

than leaky judgments.<br />

<strong>The</strong> court today<br />

<strong>The</strong> US Supreme Court does not have a<br />

“dunce-cap” roof but, as my third point,<br />

I note that it shares several interior features<br />

with our Court. For example, both<br />

courts have courts within the court. <strong>The</strong><br />

Supreme Court of Canada has an outdoor<br />

badminton court in a central quadrangle<br />

at the ground level, while the US<br />

Supreme Court has a basketball court in<br />

its top-floor gym, known to the cognoscenti<br />

as the “highest court in the land.”<br />

I am confident that my colleagues and I<br />

could handily take SCOTUS in a game of<br />

badminton.<br />

Another similarity is that the justices’<br />

offices are generally assigned by seniority.<br />

In Canada, our cavernous offices<br />

line a long marble corridor that wraps<br />

around three sides of the building. One<br />

former justice compared our offices rather<br />

unflatteringly to “gopher holes,” into<br />

which we, the gophers, periodically vanish. 17<br />

Both our courts also have public<br />

cafeterias. This is important because<br />

there aren’t any restaurants near either<br />

court. <strong>The</strong> Supreme Court of Canada’s<br />

cafeteria used to serve hot meals, but it has<br />

now been replaced with vending machines<br />

selling high-quality junk food, where, I<br />

should add, I am a regular customer.<br />

By contrast, SCOTUS has retained its<br />

cafeteria, which by tradition falls under<br />

the supervision of the newest justice.<br />

<strong>The</strong>re have been advances and setbacks<br />

over the years. As the Wall Street <strong>Journal</strong><br />

reported, Justice Stephen Breyer’s great<br />

contribution was to introduce a salad<br />

bar. He was eclipsed by Justice Elena<br />

Kagan, who became wildly popular with<br />

a frozen yogurt machine. Justice Samuel<br />

Alito said he thought the cafeteria was<br />

pretty good under his watch, proudly<br />

recounting how he had received compliments<br />

about the shrimp bisque and the<br />

hummus and broccoli, although the Wall<br />

Street <strong>Journal</strong> highlighted that his tenure<br />

also “saw disaffection over slow service<br />

and unhappiness about the removal of<br />

the pudding parfait,” as well as regular<br />

complaints that there was too much salt<br />

in the oatmeal and not enough mayonnaise<br />

in the turkey wrap. 18 A Washington<br />

Post correspondent decried the “fallingapart<br />

mushy” veggie burger of Justice<br />

Sonia Sotomayor’s tenure, along with a<br />

salmon rice bowl that bore “no resemblance<br />

to any salmon I’ve tasted before.”<br />

<strong>The</strong> Post even declared that the<br />

cafeteria food under Justice Sotomayor<br />

“should be [declared] unconstitutional.”<br />

19 After this investigative bombshell,<br />

Chief Justice John Roberts sent Justice<br />

Sotomayor a note advising her, “You’re<br />

fired.” 20 More recently, Justice Brett<br />

Kavanaugh said that when he arrived,<br />

he thought it was an “outrage” that the<br />

cafeteria did not serve pizza. He soon<br />

remedied that situation, noting that his<br />

“legacy is secure” and that henceforth he<br />

will be known “as the pizza justice.” 21<br />

Location<br />

My fourth point is about our respective<br />

courts’ locations. Both are in capital<br />

cities, although SCOTUS originally sat<br />

in New York and then in Philadelphia,<br />

before moving to its permanent home in<br />

Washington, DC. 22 You all know about<br />

Washington, so let me tell you a little bit<br />

about Ottawa.<br />

Ottawa is famously rumoured to have<br />

been chosen as Canada’s capital in 1857<br />

by Queen Victoria during a game of<br />

“pin the tail on the donkey” on a map of<br />

Canada. After Her Majesty’s selection,<br />

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THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 7

the American press reported that Ottawa<br />

was impossible to capture because even<br />

the most courageous soldiers would get<br />

lost in the woods trying to find it. 23 You<br />

may be interested in knowing that on a<br />

January day in 2019, Ottawa earned the<br />

distinction of being named the “coldest<br />

capital city” in the world. 24<br />

Perhaps you now understand why it<br />

was necessary for the Parliament of Canada<br />

to legislate a residency requirement<br />

for its Supreme Court judges. Section 8<br />

of the Supreme Court Act stipulates that<br />

all Supreme Court of Canada justices<br />

must live in the National Capital Region<br />

or within 40 kilometres thereof. So when<br />

people ask me where I live, I say that I am<br />

required by law to live in Ottawa.<br />

This statutory residency requirement<br />

has met with mixed reactions. One of the<br />

first Supreme Court justices flouted it<br />

and refused to move to Ottawa. 25 Others<br />

have turned down the job because they<br />

felt that the disadvantages of living in<br />

Ottawa outweighed the benefits of serving<br />

on Canada’s highest court. 26 One retired<br />

judge noted that even when the justices<br />

do make the move, most take “every<br />

opportunity to leave Ottawa.” 27 Let me<br />

pause here to sincerely thank you once<br />

again for inviting me to Florida.<br />

Appointment<br />

My fifth point concerns our respective<br />

nomination and appointment processes.<br />

In Canada, appointments fall along<br />

regional lines. Three justices must be<br />

from the Province of Quebec, and, by<br />

convention, two are from the Western<br />

provinces, one is from Atlantic Canada,<br />

and three are from Ontario.<br />

I understand that SCOTUS has similar<br />

regional requirements. Each of your<br />

justices must have lived at some point<br />

in either Cambridge, Massachusetts, or<br />

New Haven, Connecticut. Some think<br />

this leads to a certain narrowness of<br />

perspective. In 2009, Chief Justice Roberts<br />

defended the status quo, noting that<br />

“Not all justices went to elite institutions.<br />

Some of them went to Yale.” 28<br />

As is well known, the process for being<br />

appointed to the US Supreme Court<br />

is long and invasive. <strong>The</strong> Senate spends<br />

about a month gathering information<br />

about the nominee. <strong>The</strong> nominee is then<br />

grilled by the Senate Judiciary Committee<br />

on their qualifications, judgments, and<br />

judicial philosophy, before the Senate<br />

votes on the nomination.<br />

<strong>The</strong> parliamentary hearing for a Supreme<br />

Court of Canada nominee is much less<br />

onerous. Indeed, it is a quintessentially<br />

Canadian affair. A couple of days after the<br />

prime minister announces the nominee,<br />

a group of senators and members of<br />

Parliament hold a hearing to politely ask<br />

the nominee questions for four minutes<br />

each. Parliament does not vote on the<br />

nominee, whose appointment remains<br />

the sole prerogative of the prime minister.<br />

After a couple of hours of this process,<br />

which is akin to speed-dating with a bipartisan<br />

group of senators and MPs,<br />

you’re handed a gift bag, pointed toward<br />

the Court, and sent on your merry way.<br />

Our press coverage of Supreme Court<br />

appointments is also not as perceptive<br />

as yours. For example, when last year<br />

the prime minister appointed our new<br />

colleague, Justice Michelle O’Bonsawin,<br />

as the first Indigenous justice to the<br />

Court, the press noted that this was<br />

the second historic appointment in as<br />

many years, after my appointment to<br />

the Court the previous year as “the first<br />

black woman.” 29<br />

<strong>The</strong> hearings<br />

Sixth, our courts share some aspects of<br />

hearing procedure.<br />

On both courts, the justices enter the<br />

courtroom and sit in order of seniority.<br />

<strong>The</strong> US Supreme Court conveniently has<br />

three doors to the courtroom. <strong>The</strong> chief<br />

justice and two most senior justices enter<br />

through the centre door, three justices<br />

enter through the left door, and three<br />

through the right. 30<br />

In Canada, all the justices enter together<br />

through a single central door and<br />

alternate by crossing to the left and to the<br />

right in order of seniority. Because we sit<br />

in panels of five, seven, or nine, both the<br />

order and direction of entry can vary, depending<br />

on who is sitting on a particular<br />

case. As a result, the justices sometimes<br />

crash into each other. After one such<br />

collision, former Justice Gérard La Forest<br />

explained to counsel apologetically, “You<br />

know, this is harder than it looks.” 31<br />

Today, parties have 30 minutes each<br />

for oral argument before SCOTUS, and<br />

one hour each before our Court. But this<br />

was not always so. Hearings before the<br />

US Supreme Court used to last several<br />

days. Apparently, to avoid wasting<br />

time, Justice William O. Douglas would<br />

multi-task by writing opinions or articles<br />

during oral argument. At least once, a<br />

hearing was adjourned to permit counsel<br />

time to sober up. And when arguments<br />

were particularly long and inconsequential,<br />

the justices would retire to have<br />

lunch behind a curtain behind the bench,<br />

while counsel continued to make submissions<br />

amid the clatter of china. 32<br />

<strong>The</strong> COVID-19 pandemic forced both<br />

our courts to adapt their hearing procedures.<br />

<strong>The</strong> US Supreme Court opted to<br />

conduct remote hearings by telephone.<br />

As is well known, during one hearing in<br />

2020, a toilet flush could be heard during<br />

oral argument. 33 I greatly appreciate<br />

that this hasn’t happened in our Court,<br />

especially since we conduct our hearings<br />

by Zoom.<br />

Law clerks<br />

Finally, let me conclude with a brief comment<br />

on the role of law clerks in our respective<br />

courts. In both countries, law<br />

clerks attract considerable suspicion.<br />

A Canadian newspaper, the National<br />

Post, once described our law clerks as<br />

“recently graduated twentysomething<br />

law students weaned on an ideological<br />

soup of radical feminism, multiculturalism<br />

and moral relativism – who see<br />

the law as a means to translate these<br />

doctrines into public policy without the<br />

intervening necessity of election and<br />

legislation.” 34<br />

In a similar vein, former Chief Justice<br />

William Rehnquist once said that most<br />

law clerks tend to show “extreme solicitude<br />

for the claims of communists and<br />

other criminal defendants, expansion<br />

of federal power at the expense of state<br />

power, [and] great sympathy toward any<br />

government regulation of business.” 35<br />

And Justice Douglas once described his<br />

law clerks, no doubt affectionately, as<br />

“the lowest form of human life.” 36<br />

I don’t share these perspectives. In my<br />

view, our law clerks are brilliant young<br />

lawyers who are utterly devoted to their<br />

judges and to public service. <strong>The</strong>y are<br />

paragons of excellence and virtue. And<br />

I should know: I was once a Supreme<br />

Court clerk myself.<br />

At our court, most clerks research<br />

points of law, prepare memoranda, and<br />

generally assist their judge with their<br />

judicial and extra-judicial duties, including<br />

by preparing speeches for the American<br />

College of Trial Lawyers. <strong>The</strong> late<br />

Justice John Sopinka often had his law<br />

clerks draft his speeches. He noted that it<br />

backfired only once. On a Friday before<br />

the Canadian Thanksgiving weekend, Sopinka realized that he<br />

had forgotten to delegate a speech that he was to give the following<br />

Tuesday. He had planned a weekend away and wasn’t<br />

able to write the speech himself, so he called in the only law<br />

clerk who was still at the office. 37<br />

“Geoffrey,” Sopinka said, “I am giving a speech on Tuesday.<br />

I want you to draft it and have it for me on Tuesday morning.”<br />

Geoffrey protested that he was attending a family reunion in<br />

Vancouver. “Never mind that,” Sopinka said, “On my desk on<br />

Tuesday morning.”<br />

When Sopinka returned on Tuesday morning, the draft was<br />

sitting on his desk – typed beautifully. He glanced over the<br />

draft and decided that it looked very good. In the taxi to the<br />

speech venue, Sopinka began to read it carefully. <strong>The</strong> quality<br />

was excellent: It raised some fascinating questions to be<br />

Notes<br />

1. Philip Slayton, Mighty Judgment (Toronto: Penguin, 2011), 24.<br />

2. Joan Diskupic and Elder Witt, <strong>The</strong> Supreme Court at Work, 2d ed<br />

(Washington DC: Congressional Quarterly, 1997), 3–4.<br />

3. Slayton, supra note 1, 24.<br />

4. Ibid.<br />

5. Ibid, 25.<br />

6. Diskupic and Witt, supra note 2, 115–19.<br />

7. Ibid, 115.<br />

8. Slayton, supra note 1, 25.<br />

9. Ibid, 25.<br />

10. James Johnston v <strong>The</strong> Minister and Trustees of St. Andrew’s Church,<br />

Montreal, [1877] SCR 235.<br />

11. Brassard v Langevin, [1877] SCR 145.<br />

12. Slayton, supra note 1, 26.<br />

13. Ibid.<br />

14. See, e.g., Allan Levine, William Lyon Mackenzie King: A Life Guided by<br />

the Hand of Destiny (Madeira Park, BC: Harbour Publishing, 2005), 402;<br />

Christopher Dummitt, Unbuttoned: A History of Mackenzie King’s Secret<br />

Life (Montreal and Kingston: McGill-Queen’s University Press, 2017),<br />

66–67.<br />

15. Chief Justice Beverley McLachlin, “Remarks of the Right Honourable<br />

16. Ibid.<br />

Beverley McLachlin, P.C.,” at the Mayor’s Breakfast Series” (Ottawa:<br />

25 November 2014); online at https://www.scc-csc.ca/judges-juges/<br />

spe-dis/bm-2014-11-25-eng.aspx.<br />

17. Constance Backhouse, Claire L’Heureux-Dubé: A Life (Vancouver: UBC<br />

Press, 2017), 335.<br />

18. Jess Bravin, “Supreme Court’s Junior Justice Has to Run the Cafeteria.<br />

Don’t Eat <strong>The</strong>re,” Wall Street <strong>Journal</strong> (20 July 2017).<br />

19. Tommy Tobin, “Brett Kavanaugh, the ‘Pizza Justice’: <strong>The</strong> Latest Chapter<br />

in the Supreme Court’s Food History,” Forbes (19 November 2019);<br />

online at https://www.forbes.com/sites/tommytobin/2019/11/19/<br />

a-pizza-justice--food-at-the-supreme-court/?sh=6ae76f1e7707.<br />

20. Bravin, supra note 18.<br />

21. Tobin, supra note 19.<br />

22. Diskupic and Witt, supra note 2, 4–6.<br />

answered in the conclusion. Sopinka arrived at his destination<br />

before he could read the conclusion, but he was confident that<br />

it would not disappoint.<br />

Sopinka rushed inside the lecture hall. He was already being<br />

introduced as he entered. <strong>The</strong> speech turned out to be even<br />

better when delivered live. <strong>The</strong> rapt audience listened attentively<br />

as Sopinka began to read the conclusion: “In conclusion,<br />

as promised, here are my answers to the perplexing problems<br />

which I have raised ...” <strong>The</strong> text of the speech then continued,<br />

in block capitals: “NOW IMPROVISE, YOU S.O.B.”<br />

Conclusion<br />

Thank you again for conferring on me the privilege of becoming<br />

an honorary fellow of the American College of Trial<br />

Lawyers. And thank you for your attention.<br />

23. Britannica (online),“Know the Reason Why Queen Victoria Chose<br />

Ottawa as the Canadian Capital”; https://www.britannica.com/<br />

video/187528/Victoria-capital-Ottawa-Canadian.<br />

24. CBC News, “Ottawa Freezes Its Way to Coldest Capital City in the<br />

World” (19 January 2019); online at https://www.cbc.ca/news/<br />

canada/ottawa/coldest-capital-city-in-world-1.4985296.<br />

25. Slayton, supra note 1, 24–25.<br />

26. Ibid, 219.<br />

27. Ibid, 214.<br />

28. Adam Liptak, “<strong>The</strong> Road to a Supreme Court Clerkship Starts at<br />

Three Ivy League Colleges,” New York Times (6 February <strong>2023</strong>); online<br />

at<br />

29. “Canada Nominates O’Bonsawin as First Native Supreme Court<br />

Justice, TopWireNews.com; online at https://news.topwirenews.<br />

https://www.nytimes.com/<strong>2023</strong>/02/06/us/supreme-court-ivyleague-harvard-yale.html.<br />

com/2022/08/19/canada-nominates-obonsawin-as-first-nativesupreme-court-justice/.<br />

30. Supreme Court of the United States, “Visitor’s Guide to Oral<br />

Argument”; online at<br />

visitorsguidetooralargument.aspx.<br />

https://www.supremecourt.gov/visiting/<br />

31. Kirk Makin, “Justice Ian Binnie’s Exit Interview,” Globe and Mail (23<br />

September 2011); online at https://www.theglobeandmail.com/<br />

news/national/justice-ian-binnies-exit-interview/article555452/.<br />

32. Diskupic & Witt, supra note 2, 73–77.<br />

33. “US Supreme Court Hears Toilet Flush During Oral Arguments – A<br />

First,” BBC (7 May 2020); online at https://www.bbc.com/news/<br />

world-us-canada-52572986.<br />

34. Slayton, supra note 1, 236–37.<br />

35. Jeffrey Toobin, <strong>The</strong> Nine: Inside the Secret World of the Supreme Court<br />

(New York: Knopf Doubleday, 2008), 55.<br />

36. Diskupic and Witt, supra note 2, 108; Slayton, supra note 1, 235.<br />

37. John Sopinka, “<strong>The</strong> Many Faces of Advocacy,” in David Stockwood<br />

and David E Spiro, eds, Ethos, Pathos, and Logos: <strong>The</strong> Best of the<br />

Advocates’ Society <strong>Journal</strong> 1982–2004 (Toronto: Irwin Law, 2005), 7–8.<br />

<strong>The</strong> anecdote actually relates to when Sopinka was in practice.<br />

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THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 9


Annals of law: Lac Minerals v Corona –<br />

the new trial that wasn’t<br />

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

It all began in mid-August 1988. I’d had an enjoyable summer,<br />

pleasant and productive enough, with plenty of time to<br />

manage my hurly-burly practice, contemplate a holiday, and<br />

still finish the one major task at hand. <strong>The</strong> fall was shaping up<br />

to be a different story.<br />

We had a few weeks yet to complete and deliver our factum<br />

to the Supreme Court of Canada for our client, International<br />

Corona, responding to Lac Minerals’ appeal to that Court<br />

from the dismissal of its appeal by the Ontario Court of Appeal<br />

in October 1987, following a 10-day hearing in November<br />

1986. Lac was appealing from the decision of the trial judge,<br />

R.E. Holland J, whose reasons were released in March 1986,<br />

following a five-month trial.<br />

Justice Holland had awarded our client on remedial constructive<br />

trust principles the prize it had pursued in the litigation<br />

– the Williams property, a gold field of significant potential<br />

located in the Hemlo area of northern Ontario. <strong>The</strong> trial<br />

decision deprived Lac of the lands it had snapped up out from<br />

under Corona while the parties had been negotiating toward<br />

some form of joint enterprise.<br />

Consistent with the outsized nature of this litigation, the<br />

Supreme Court had made an order permitting the parties to<br />

deliver factums of 60 pages. Lac delivered its tome on June<br />

30, 1988. Ours was due two months later, on August 31.<br />

<strong>The</strong> argument was to proceed over two days, commencing<br />

October 11, 1988.<br />

For Alan Lenczner and for me, this was the best of times in<br />

this high-stakes, all-consuming litigation that had occupied a<br />

good deal of our minds and bodies for a few years. 1 We had<br />

succeeded below, in two courts, by advancing pared-down<br />

basic principles of fiduciary law and the law of confidence,<br />

both well established in niche sectors but now imported by<br />

these decisions into the world of mainstream commerce. We<br />

had clothed these principles within the framework of the compelling<br />

facts we had established at trial and admissions we had<br />

secured at discovery. We had succeeded in establishing that<br />

the law would protect a vulnerable commercial party in circumstances<br />

like these and that the only appropriate remedy in<br />

this case was disgorgement. Our argument was founded on the<br />

uniquely Canadian law of the constructive trust as a remedy.<br />

We now had the approval of two strong courts – a healthy<br />

foundation for the upcoming appeal where the novelty of our<br />

arguments was going to be put against us once again.<br />

So it was enjoyable working through the facts and the law<br />

one more time, countering the arguments from the other side,<br />

which were all rooted essentially in “floodgates fears” – that<br />

if this decision were to stand and these principles were loosed<br />

upon the world of commerce, business relations would become<br />

an uncertain place, without the necessary certainty and predictability,<br />

and ultimately would devolve into an after-the-fact<br />

second-guessing exercise by courts as they entertained each<br />

new set of facts coming before them.<br />

Alan and I were certainly very much alive to the risks we<br />

faced in the upcoming appeal. We had succeeded below in extending<br />

the reach of fiduciary duties, drawing from the special<br />

relationship cases (lawyer-client, trust) and from other areas,<br />

such as government duties owed to Indigenous Peoples. We<br />

had moved those principles into the world of commercial and<br />

business relations in circumstances like ours where the parties<br />

had no contract, no partnership, no joint venture, and no<br />

debating, refining, and putting down our arguments in antici-<br />

In any event, this is where we stood in mid-August 1988,<br />

confidentiality agreement, and where very little was reduced<br />

pation of the last go-round in October.<br />

to writing, but where a junior mining company, as was commonplace<br />

in Canadian mining affairs, was negotiating toward<br />

<strong>The</strong> gathering storm<br />

a relationship with a senior mining company to develop what<br />

An inkling of trouble for my vision of how the rest of that summer<br />

might unfold surfaced on August 8. Alan came around to<br />

appeared to be a new ore body with great potential.<br />

As to the law of confidence, we had established new ground<br />

say he had just had a call from J.L. McDougall, one of Lac’s<br />

there as well, relying on principles that were well accepted<br />

counsel, to say that Lac had obtained some kind of appointment<br />

before the Supreme Court to speak to the matter on<br />

in special circumstances; for example, where courts would<br />

impose obligations on parties in intellectual property cases,<br />

August 11. Alan had been unable to extract from J.L. what<br />

trade-secrets matters, and patent disputes, and also where it<br />

this was all about. All that was said was we would find out<br />

was understood that obligations of confidence would arise,<br />

when we got there. A call to Reg Boudreau, our contact at the<br />

such as in tax cases between governments and taxpayers.<br />

Supreme Court registry, confirmed there was indeed an appointment,<br />

and we were expected to attend.<br />

I have reflected often enough over the question why, after<br />

more than 30 years, Lac Minerals v Corona continues to strike<br />

Adding to the atmosphere of strange goings on, August<br />

a note in the memories and imaginations of lawyers, young<br />

11, 1988, was no typical summer day. It was cold and rainy,<br />

and old. Alan and I still field questions and comments about<br />

a low of 9 degrees and miserable. As we got ourselves to<br />

the case, and it is still cited frequently for one proposition or<br />

Ottawa that morning and duly showed up on Wellington Street<br />

another.<br />

in anticipation of who knows what, little did I realize I was<br />

Of course, it was the classic underdog-beats-bully tale, with<br />

about to experience one of the more memorable encounters in<br />

enormous value at stake. And if we’d lost, maybe a fade into<br />

my years at the bar. Alan and I were ushered into a relatively<br />

history would have been its path.<br />

small conference room, windowless as I recall, where already<br />

But, too, there were significant issues of law with future<br />

gathered around the table were not only J.L. McDougall<br />

consequences decided here. And as the matter moved along,<br />

and Earl Cherniak, Lac’s counsel in the upcoming appeal, but<br />

everyone had an opinion: academics, the media, the stock<br />

also someone completely new to the scene, Bill Sasso from<br />

market. And this didn’t end with the final result. Serious<br />

McMillan Binch, with junior counsel. Alan and I had known<br />

issues of extra-contractual commercial law and the boundaries<br />

of business behaviours were decided and not revised in a<br />

case and his presence was of course a surprise to an almost<br />

Bill for years but he had never had anything to do with this<br />

comprehensive manner until Bhasin v Hrynew in 2014. 2 shocking degree.<br />

Counsel gather for a photograph after arguing a motion on the deck of the Honourable Justice Holland’s country home in Caledon, Ontario.<br />

Left to right, standing: Alan Lenczner, Thomas Dunne; seated: Ronald Slaght, Peter Atkinson, Fred Cass.<br />

I remember the circumstances well. <strong>The</strong>re we all were,<br />

dressed in our finest blue suits and white shirts, and high tension<br />

filled the room, apparent from the body language between<br />

Bill on the one hand and Earl and J.L. on the other.<br />

Bill pushed across the table a thin record, which appeared<br />

to contain a notice of motion but without any supporting<br />

material. No one spoke. We waited.<br />

In a short time, the door opened and in strode the chief justice<br />

of Canada, Brian Dickson. He evinced a pleasant demeanour<br />

and, quite remarkably, was kitted out in Bermuda shorts and<br />

a golf shirt. He gave the room a quick glance, looking inquiringly<br />

for someone to speak up with the introductions and then<br />

asking, “So what’s this all about?”<br />

Bill Sasso started into his explanation of things. He began<br />

by saying that he represented Lac Minerals and that Lac was<br />

bringing a motion to set aside the trial judgment on the grounds<br />

of fraud and perjury. He was there to seek directions from the<br />

Court about the upcoming appeal. Although Alan and I were<br />

unaware of it, apparently rumours had recently been circulating<br />

in the mining media that Lac was bringing such a motion.<br />

As we learned later that day, Lac had obtained a one-day motion<br />

date in weekly court for October 27, 1988, apparently in<br />

the belief that the whole matter could be dealt with in one day<br />

in motions court.<br />

Bill was barely launched into this further description when<br />

the chief justice interrupted and said, “But what has this got<br />

to do with us?” Bill then attempted to explain further, but the<br />

chief made it quite clear by body language and his next words<br />

that the Court was not in the slightest interested in hearing<br />

anything more, that the date, October 11, 1988, for this appeal<br />

10 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 11

had been long established, and that the<br />

Court would be proceeding with the<br />

arguments on that date.<br />

<strong>The</strong> chief justice then looked around<br />

the room and queried, “Is there anything<br />

else?” And before anyone had a chance<br />

to say anything else, he was out of the<br />

chair and out the door with a friendly<br />

“have a good summer.”<br />

That was that. We caught the next<br />

shuttle back to Toronto.<br />

Before continuing, I should back up a<br />

bit and explain what the Corona/Lac case<br />

was really all about. We had a five-month<br />

trial concluding with reasons in March<br />

1986. Many issues were ventilated, but<br />

in essence the claims we advanced on<br />

behalf of Corona had become by the end<br />

of the trial quite straightforward. (In the<br />

last of many frustrations for our worthy<br />

adversaries, we delivered our final statement<br />

of claim at the argument.)<br />

In 1980, Corona was a junior mining<br />

company listed on the Vancouver Stock<br />

Exchange (VSX) whose principal was<br />

Murray Pezim, a well-known Vancouver<br />

stock promoter. Corona optioned 17<br />

mining claims at Hemlo, an area near<br />

Marathon in northern Ontario. <strong>The</strong>se<br />

claims, and about 150 in total, had been<br />

staked by two prospectors, Donald<br />

McKinnon and John Larche, beginning<br />

in 1979 and continuing into July 1980.<br />

Corona’s 17 claims and other claims<br />

staked by McKinnon and Larche surrounded<br />

a property known as the Williams<br />

property, which consisted of 11<br />

mining claims that were not open for<br />

staking because they had become patented<br />

or fee-simple claims in the 1940s.<br />

<strong>The</strong>re were gold showings, sporadic earlier<br />

shallow drilling, and some assays,<br />

including from the Williams property,<br />

known to exist at Hemlo for a long period.<br />

<strong>The</strong>se staked claims and the Williams<br />

patented claims ultimately resulted in<br />

three producing gold mines with extraordinary<br />

value, operating only a stone’s<br />

throw from the Trans-Canada Highway.<br />

Corona began to drill its claims in<br />

1980, in the hands of David Bell, a young<br />

geologist who was following his own<br />

theory of where and how gold might be<br />

found on these lands. Some results were<br />

being published, and the promoters were<br />

doing their thing on the VSX.<br />

<strong>The</strong> evidence was that, at Bell’s urging,<br />

Corona wanted to purchase the<br />

neighbouring Williams property and in<br />

dramatic, contested evidence at trial,<br />

both Murray Pezim and Donald McKinnon<br />

gave evidence that they had had a<br />

telephone conversation in which Pezim<br />

had instructed McKinnon and McKinnon<br />

had agreed to try to obtain the Williams<br />

property for Corona from the widow<br />

Williams.<br />

Lac heard about the developments at<br />

Hemlo, and its chief geologist, Dennis<br />

Sheehan, visited the Corona property<br />

and met with David Bell. In some dramatic<br />

evidence, Bell described the drilling<br />

program and walking with Lac’s<br />

chief geologist to the Corona property<br />

boundary overlooking the Williams<br />

property. He told Mr. Sheehan his view<br />

that gold in this area would be found in<br />

pods, and he believed a pod would be<br />

found on the Williams land in an area to<br />

which he pointed and, further, that Corona<br />

had someone out there looking to<br />

obtain that patented ground.<br />

<strong>The</strong>re were other dealings plus exchanges<br />

of information and documents<br />

between the parties, and the trial judge<br />

found that Corona and Lac were negotiating<br />

together toward a joint venture.<br />

In the meantime, Lac both staked its own<br />

claims in the area and set about to try to<br />

find the widow Williams and purchase<br />

the Williams property for itself. McKinnon<br />

found Mrs. Williams and was in the<br />

course of making a proposal when Lac<br />

appeared on the scene with its own proposal.<br />

Mrs. Williams opted for the senior<br />

company, Lac, rather than the untested<br />

junior, Corona.<br />

Relations came to an end and Corona<br />

sued Lac, seeking a transfer of the<br />

Williams property or, in the alternative,<br />

damages (which were assessed by the<br />

trial judge at a much undervalued $700<br />

million). After a few fits and starts, the<br />

action got seriously underway in 1983,<br />

resulting in a trial in October 1985, a trial<br />

decision in March 1986, a 10-day appeal<br />

before a five-judge court in November<br />

1986 with reasons almost a year later in<br />

October 1987, and, ultimately, a Supreme<br />

Court of Canada appeal in October 1988.<br />

First, the trial judge found that the<br />

parties were engaged in negotiations,<br />

and fiduciary duties, obligations of good<br />

faith, and industry practice resulted in<br />

obligations in law owed by Lac to Corona<br />

not to act to Corona’s detriment and<br />

secure property that it knew Corona was<br />

seeking to obtain while the parties were<br />

negotiating. Second, Lac owed Corona<br />

an obligation of confidence arising out<br />

<strong>The</strong>re were several affidavits filed, including one from a private<br />

investigator, Bruce Dunne, who became the central figure<br />

in this drama. Another was from one Edward Bonaventure<br />

O’Neill, who described himself as a licensed prospector and<br />

whose evidence dealt with the staking of 12 specific claims at<br />

Hemlo, which were the subject of an application to record, purportedly<br />

signed by him, filed in the mining recorder’s office in<br />

Thunder Bay and recording that O’Neill had staked these 12<br />

claims by proper practice in December 1979. In his affidavit,<br />

Mr. O’Neill swore that he had not in fact staked these claims,<br />

had not affixed proper tags, and did not believe that he had<br />

signed the application to record. Further, he was not in the<br />

Hemlo area on the dates that the application stated the staking<br />

had occurred. He swore that the application to record was a<br />

false record and that he had no knowledge of the recording of<br />

these 12 mining claims in his name or any subsequent transfers<br />

that had occurred.<br />

This evidence was certainly startling on its face. Our difficulty,<br />

however, was that the motion record did not tie any of<br />

what Mr. O’Neill was saying into any evidence that Donald<br />

McKinnon had given at trial. <strong>The</strong>re were no particulars of the<br />

alleged false and perjured evidence to be found anywhere in<br />

the motion record. A copy of McKinnon’s two days of trial evidence<br />

had been included as a separate filing but without any<br />

specificity relating any of it to Mr. O’Neill’s statements.<br />

<strong>The</strong>re was also an affidavit from one Michael Pickens. Mr<br />

Pickens went on at some length about how he ran a contract-staking<br />

outfit in Timmins and had hired John Larche, the<br />

other prospector who had been active at Hemlo and ultimateof<br />

the disclosure of information including<br />

that Corona was seeking to obtain<br />

the Williams property for itself. <strong>The</strong><br />

trial judge made a specific finding that<br />

but for the actions of Lac, Corona would<br />

have obtained the Williams property,<br />

and this formed the foundation for the<br />

remedy which Justice Holland imposed:<br />

the disgorgement to Corona of the<br />

Williams property upon which at that<br />

point stood a producing mine. <strong>The</strong> trial<br />

judge, as the Court of Appeal affirmed,<br />

specifically accepted the evidence of<br />

Pezim and McKinnon that Corona had<br />

intended to acquire the Williams property<br />

and that McKinnon was intending<br />

to acquire that property on Corona’s<br />

behalf. Other evidence supported both<br />

propositions as well.<br />

On our return to the office on August<br />

11, we learned we had been served that<br />

morning with Lac’s motion record – two<br />

thin volumes. As we pawed our way<br />

through it for the first time, the gist of<br />

the allegations seemed to be that one of<br />

our trial witnesses, Donald McKinnon,<br />

had committed perjury and fraud and<br />

given intentionally misleading evidence<br />

related to material facts on which the<br />

Court had relied. <strong>The</strong> motion asserted<br />

that this discovery of perjured testimony<br />

had not been made by Lac until after the<br />

trial and after Lac’s appeal to the Ontario<br />

Court of Appeal.<br />

<strong>The</strong> motion was founded upon rule<br />

59, the omnibus rule dealing with orders<br />

and judgments, particularly subrule<br />

59.6(2)(a), which I don’t believe I’d even<br />

read before and which established a procedure<br />

for a party moving to set aside<br />

a judgment or order on the grounds<br />

of fraud. McMillan Binch was counsel<br />

of record for the motion. Neither J.L.<br />

McDougall’s firm, Fraser & Beatty, nor<br />

Earl Cherniak was to be found anywhere<br />

on the motion record.<br />

As we came to learn shortly, yet another<br />

firm, Torys, had been deeply<br />

involved managing an investigation on<br />

behalf of Lac Minerals that had led to<br />

this discovery of allegedly false evidence<br />

– an investigation that had begun as<br />

early as April 1986, or just about one<br />

month following the release of R.E.<br />

Holland J’s trial decision. As we learned<br />

in our subsequent examinations of witnesses<br />

on this motion, the purpose of this<br />

exercise had been to seek out and obtain<br />

evidence that could lead to overturning<br />

the trial judgment.<br />

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ly became Don McKinnon’s partner, to stake these same 12<br />

claims. Larche had returned the instructions, advising Pickens<br />

that the claims had already been staked and were not available.<br />

<strong>The</strong> allegation seemed to be that McKinnon and Larche, who<br />

was not a witness at trial, had colluded in the staking of these<br />

claims, cutting out Pickens’s client, identified as Robert Schaaf,<br />

and covering up what they had done.<br />

Again, there was nothing in the record relating these allegations<br />

specifically to McKinnon. As we subsequently learned,<br />

these allegations were already the subject of an entirely separate<br />

lawsuit brought by a company called Scintilore Explorations,<br />

with which Schaaf was connected. Scintilore was seeking<br />

the proceeds of all of Larche and McKinnon’s staking at Hemlo,<br />

staking that had made them wealthy men.<br />

<strong>The</strong>re was no affidavit from anyone at Lac Minerals. <strong>The</strong>re<br />

was no affidavit from any of Lac’s many trial and appeal counsel<br />

attesting to the significance and materiality of any of this<br />

alleged false evidence of McKinnon.<br />

Even at this early stage, we were having considerable difficulty<br />

identifying the significance of these allegations in the<br />

overall scheme of what the case had actually been about. We<br />

did know that the 12 claims raised in O’Neill’s evidence were<br />

not the claims that constituted Corona’s own property. Corona’s<br />

claims, ultimately 17 of them, were acquired through<br />

various agents from the original stakers, McKinnon and<br />

Larche, and tied on to the east end of the Williams property.<br />

<strong>The</strong> 12 claims raised in O’Neill’s evidence tied on to the west<br />

end of the Williams property, ground that had no relevance or<br />

particular significance to anything in our lawsuit.<br />

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12 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 13

Bruce Dunne’s affidavit evidence<br />

Bruce Dunne described himself as a private investigator, with<br />

a business centred in Alberta. He had been retained by Kroll<br />

Associates, the well-known private investigation firm in New<br />

York, which he said was in turn employed directly by Lac Minerals.<br />

This retainer had begun in April 1986, or just about one<br />

month after Justice Holland had released his trial decision.<br />

Nowhere in the affidavit did he say exactly what he was employed<br />

to do in this investigation although, as we learned from<br />

him in cross-examination, his instructions and those of Kroll<br />

were to find evidence to set aside the trial judgment. <strong>The</strong> facts<br />

that O’Neill and Pickens swore to in their affidavits on the motion<br />

were dug up by Bruce Dunne in the course of his investigations.<br />

As early as the summer of 1986, he had received a tip<br />

that there were discrepancies relating to the staking of certain<br />

claims by McKinnon and Larche.<br />

Dunne took some trouble in his affidavit to emphasize that he<br />

had had no discussions about these claims-staking allegations<br />

with J.L. McDougall or Earl Cherniak or any other counsel involved<br />

in prosecuting Lac’s case. This effort seemed peculiar<br />

at the time, and it came back to haunt Lac in the course of our<br />

subsequent work unravelling what had actually happened.<br />

Dunne went on to say that he had interviewed Pickens in<br />

October 1986 and Robert Schaaf, Pickens’s client, in November<br />

1986. Dunne and his associates continued their investigations<br />

and first interviewed O’Neill in January 1987. We noted that<br />

all of this was occurring around the same time the Court of<br />

Appeal was hearing Lac’s appeal.<br />

What was of particular interest is that Dunne swore in his affidavit<br />

that by February 1987, or about a year and a half before<br />

Lac launched this motion, he had completed his investigations<br />

and had reported the findings set out in his affidavit and contained<br />

in the O’Neill and Pickens affidavits to “his employer.”<br />

Dunne concluded by saying that after reporting to Lac and its<br />

agents, he had been granted permission by Lac to continue investigating<br />

on behalf of Scintilore and that thereafter he had<br />

been assisting Scintilore in its case proceeding in the High<br />

Court of Justice against McKinnon, Larche, and others.<br />

Particulars and production<br />

All in all, on first impression, this looked like pretty thin gruel as<br />

grounds to overturn what was then, and may still be today, the<br />

most valuable award ever made in the annals of Canadian law.<br />

Alan and I made a number of quick decisions that August<br />

afternoon. First, there was no way we were going to have this<br />

matter determined as a motion in weekly court. We wanted the<br />

trial of an issue and the evidence to be heard in open court. We<br />

set a goal to have the case heard before the October Supreme<br />

Court of Canada hearing date.<br />

I’ve never been a big fan of demands for particulars; they<br />

are a recipe for delay and conflict between counsel, and most<br />

end up with precious little value added. In this case, however,<br />

we needed particulars to understand what it was McKinnon<br />

was supposed to have said about these matters but also to pin<br />

Lac down to the specifics of what was being alleged to be perjury,<br />

what was said to be fraud, and what were the boundaries<br />

of McKinnon’s evidence that we had to deal with. We served<br />

McMillan, Binch with a demand for particulars that afternoon.<br />

Bill Sasso was reasonably quick to respond, and by August<br />

15 we had a reply. It was helpful. Apart from a lot of argument,<br />

there was very little actual evidence to examine. McKinnon<br />

had given quite a bit of background evidence-in-chief at trial<br />

about how he had come to stake more than 150 claims in the<br />

Hemlo area, some with John Larche when they became handshake<br />

partners rather than competitors.<br />

McKinnon, as part of this background, said in his evidence<br />

that he had staked the 12 claims in issue in December 1979.<br />

We now knew that the application to record that was filed recited<br />

that O’Neill did the staking – and the tags were those of<br />

O’Neill, not McKinnon.<br />

<strong>The</strong> allegation appeared to be that McKinnon had lied about<br />

staking those claims and had intentionally misled the Court in<br />

failing to explain O’Neill’s role in all this.<br />

<strong>The</strong>re were no excerpts of evidence from J.L. McDougall’s<br />

cross-examination in the reply.<br />

A second allegation was that McKinnon had lied about the<br />

formation of his partnership with John Larche when he told the<br />

Court that he had met Larche after staking these claims. <strong>The</strong><br />

truth was allegedly that he and Larche had met and agreed to<br />

stake the claims that Larche had been contracted to stake for<br />

Pickens, thus depriving Pickens’s client, Schaaf (Scintilore), of<br />

those claims.<br />

Of course, all this needed some serious work by us, but these<br />

allegations were strangely reassuring. It was clear that whatever<br />

had gone on in the bush, McKinnon’s evidence had nothing<br />

whatsoever to do with the issues in the main action. In fact,<br />

back in the day, Alan and I had debated whether we would<br />

even call McKinnon as a witness. We certainly were not calling<br />

him to establish anything about the staking that he, Larche,<br />

and others had done in the Hemlo area. By the time of the trial,<br />

all this was ancient history and there were three working mines<br />

on the properties that the prospectors had staked or located.<br />

Why we called McKinnon in the end was because he had important<br />

evidence to give – not the only evidence on the point,<br />

but nonetheless significant evidence – about Corona’s intent<br />

to secure the Williams property. McKinnon gave evidence, as<br />

did Murray Pezim, of a conversation they had in which Pezim<br />

asked McKinnon to locate Mrs. Williams and, if he could, obtain<br />

the Williams property for Corona, and McKinnon said he<br />

would do so. This evidence had significance in the event that<br />

we had to meet a but-for test, which Justice Holland found that<br />

we needed to, that without the actions of Lac, Corona would<br />

have obtained the Williams property. That was why we called<br />

Don McKinnon, and that was the only McKinnon evidence<br />

found relevant by the trial judge as he made his findings in<br />

the case.<br />

We also had an initial look at the law. <strong>The</strong>re were surprisingly<br />

few relevant cases, but we did realize that the trial judge,<br />

R.E. Holland J, had jurisdiction to determine the issues on this<br />

motion. Our first thought was to seek the trial of an issue before<br />

him. Justice Holland of course had familiarity with all the<br />

evidence, the background, the parties, and the nature of the<br />

issues that mattered, and he was an obvious choice particularly<br />

with the limited time we had given ourselves.<br />

<strong>The</strong> leading decision was a 1937 case from the Supreme<br />

Court of Canada, Glatt v Glatt. 3 In Glatt, the Supreme Court<br />

established a due diligence test, that a judgment would not<br />

be set aside on the grounds of fraud, even if the fraud were<br />

proved, unless it was also proved that the evidence relied<br />

upon could not have been discovered by the party complaining<br />

through the exercise of reasonable diligence. This reflects the<br />

fundamental principle that finality of judgments is paramount<br />

in our system of law. This bedrock principle would be imperilled<br />

unless this rule were applied with the utmost strictness.<br />

I noted specifically that in Glatt, the Court had drawn an<br />

adverse inference against the applicant for its failure to call its<br />

trial counsel to give evidence about what was material about<br />

the alleged fraudulent evidence in that case.<br />

A second case, 100 Main Street East, 4 held that a fraud or perjury,<br />

in order to be actionable, need only be material to the<br />

decision sought to be impugned. <strong>The</strong> applicant did not have<br />

to meet a but-for test in order for a judgment to be set aside.<br />

With these principles now understood, the next immediate<br />

step we took was to demand full production from Lac of all its<br />

documents and records prepared in contemplation of, during,<br />

and after the course of the trial down to the date it launched<br />

this motion in August 1988. And we wanted the complete record<br />

of its investigation. And we wanted all of Lac’s privileged<br />

documents. We believed the latter should flow from the<br />

due diligence test established in Glatt. It seemed logical to us<br />

that to test the proposition that Lac had itself asserted in its<br />

Motion Record – that it did not know of the impugned evidence<br />

until shortly before the materials were filed on the motion – we<br />

should be entitled to production of all Lac’s trial documents,<br />

and its investigation, including its privileged documents.<br />

If Lac knew or could have known about this impugned evidence,<br />

quite apart from the issue of materiality, the proof of<br />

that would be found in its records, which on the basis of what<br />

we had seen to date, we speculated no one on the other side<br />

had even looked at in anticipation of bringing this motion.<br />

Bill Sasso rejected our production demands out of hand,<br />

arguing that production should come only in the course of the<br />

litigation, when all parties had taken their positions and filed<br />

their affidavits upon which they intended to rely. This was unacceptable<br />

to us and we needed to get before a court to establish<br />

the ground rules under which this motion would proceed.<br />

After our initial review of the materials, and sending off our<br />

particulars and production demand, our goal was to obtain an<br />

order and directions that the matter would proceed by way of<br />

a trial of an issue, and to obtain a schedule and a date for that<br />

trial. Bill Sasso was cooperative in these scheduling matters,<br />

and we secured an appearance before Chief Justice William<br />

Parker of the High Court for August 15. 5<br />

We told Chief Justice Parker that Justice Holland, who had<br />

jurisdiction to hear the matter, was the ideal judge in view of<br />

the seriousness of the allegations, the necessary speed with<br />

which the matter had to be dealt, and of course the deep background<br />

that the trial judge would have about the trial evidence<br />

and its materiality to the issues at hand. Shortly afterward,<br />

we received word from the chief justice that he had spoken<br />

with Justice Holland, who would see us in his chambers to discuss<br />

what this was all about. We obtained an appointment for<br />

August 17, 1988.<br />

Counsel trooped up to see Justice Holland on August 17, and<br />

he made two highly significant orders on that date, consistent<br />

with his well-known no-nonsense approach to civil disputes.<br />

First, he decided that he would not hear the merits of the motion.<br />

He would secure a judge for us who would meet with<br />

counsel to establish the rules, timetables, and schedules for the<br />

proceeding. Justice Holland went on to direct, however, that<br />

because of his knowledge and the obvious need for expedition<br />

in the process, he would assume control of the interlocutory<br />

matters arising during the pre-trial period and make himself<br />

available to deal with them as they arose. This was a very significant<br />

step taken in ensuring that we could get through the<br />

matter in a timely way.<br />

Most importantly, however, after argument on the issues of<br />

both materiality and due diligence, Justice Holland made a<br />

far-reaching production order that essentially pierced the veil<br />

of Lac’s entire trial preparation and its investigation, including<br />

its privileged materials for both.<br />

Justice Holland directed as follows:<br />

Lac Minerals Ltd. shall produce all documents, memoranda,<br />

statements and recording in its possession, control or power<br />

with respect to the question on when the information<br />

which is the subject matter of the Motion Record came<br />

to the attention of Lac, its authorized representatives or<br />

counsel.<br />

One can readily appreciate the game-changing significance<br />

of this direction. It was, of course, highly ironic that Fraser &<br />

Beatty, who had fought long, hard, and well over many years<br />

in this litigation, was not present at this motion and, according<br />

to Bruce Dunne’s affidavit evidence, had never been consulted<br />

about the issues that Lac had raised in this proceeding.<br />

This order and others that followed set off a tumultuous<br />

and chaotic two-month race to get to the finish line before our<br />

October date in the Supreme Court of Canada.<br />

<strong>The</strong> pre-trial period: August 17–September 18, 1988<br />

Justice Holland soon advised counsel that Justice Coulter<br />

Osborne had agreed to hear the matter. We met with Justice<br />

Osborne, who ordered the motion to proceed as a trial of an<br />

issue and set September 8 for commencement of the hearing.<br />

This date proved impossible in the circumstances, and<br />

Justice Osborne ultimately adjourned the trial to commence<br />

September 19, 1988.<br />

<strong>The</strong> following month of all-out activity from our perspective<br />

was in pursuit of two intertwined strategies. First, we needed<br />

to review quickly and get our heads around the production of<br />

documents that had been ordered on August 17, and particularly<br />

Lac’s files lodged at Fraser & Beatty, and all the records of<br />

the investigation to be found in many places – an investigation<br />

that had now been ongoing for more than two years. Second,<br />

we intended to and did conduct multiple examinations of<br />

witnesses on the pending motion over the course of this onemonth<br />

timeframe.<br />

To give some perspective on this task, over that next 30 days<br />

or so Justice Holland heard at least eight motions for directions<br />

and issued many orders arising out of the events that<br />

were transpiring in real time.<br />

In addition, 10 witnesses were examined; these included<br />

Edward O’Neill; Lac’s in-house counsel; Lac’s trial counsel;<br />

and Lac’s lawyer in charge of the investigation. Bruce Dunne,<br />

the detective, gave evidence over three days. He and other<br />

witnesses returned to answer questions following motions in<br />

respect of refusals and production issues that arose during the<br />

examinations. Don McKinnon and John Larche were examined<br />

by Bill Sasso.<br />

And then there was the small matter of our Supreme Court<br />

of Canada factum. We managed to get that completed, barely.<br />

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An articling student flew to Ottawa with<br />

the requisite copies and related materials,<br />

which were filed in the registry in<br />

the afternoon of August 31, 1988.<br />

What became clear as we got deeper<br />

into the weeds was that Lac Minerals<br />

had actually parked its investigation into<br />

these alleged wrongdoings as early as<br />

November 1986 and finally by February<br />

1987. Bruce Dunne’s investigative activities<br />

had continued after that point, not<br />

for Lac but rather on behalf of Scintilore,<br />

the company that had emerged as the alleged<br />

undisclosed principal for the staking<br />

Pickens had retained John Larche<br />

to carry out in December 1979. Messrs.<br />

McKinnon and Larche were represented<br />

by counsel in the Scintilore claim: Tom<br />

Dunne for Don McKinnon and Peter Atkinson<br />

for John Larche.<br />

As we began to receive the productions<br />

that had been ordered, we moved<br />

before Justice Holland to require Scintilore<br />

to produce the continued investigation<br />

material that Bruce Dunne had<br />

generated on its behalf and all materials<br />

that it had received from Lac Minerals,<br />

including the earlier investigations.<br />

Justice Holland made this order<br />

on August 31, 1988, and on the same<br />

day upon motion by them, Messrs. Mc-<br />

Kinnon and Larche were added as parties<br />

to the main action, limited strictly,<br />

however, to the issues to be litigated in<br />

the motion to set aside the trial judgment.<br />

<strong>The</strong> result of all this was that Bill Sasso<br />

was now facing three sets of counsel and<br />

massive production obligations on a realtime<br />

basis, as the examinations got<br />

underway in early September and continued<br />

down to September 18, the day<br />

before the trial started.<br />

What was of particular significance to<br />

us was that Edward O’Neill, who was<br />

the main witness put against McKinnon,<br />

was also deeply involved in the Scintilore<br />

case. He had given at least three<br />

affidavits in that case, and a couple of<br />

formal statements. We obtained those<br />

affidavits in the course of production,<br />

and it became perfectly obvious that<br />

Edward O’Neill was not a witness who<br />

had any reliability about much at all. For<br />

example, in an affidavit dated April 24,<br />

1987, O’Neill, contrary to what he swore<br />

in his affidavit in this proceeding, swore<br />

that he did in fact stake the 12 claims at<br />

issue in the winter of 1979.<br />

In a subsequent affidavit, just months<br />

later, July 24, 1987, O’Neill swore that he<br />

had not staked those claims. In various<br />

places in his interviews and affidavits,<br />

he said that he had in fact signed the application<br />

to record and that he had given<br />

Don McKinnon his authority to register<br />

the claims in the Thunder Bay mining recorder’s<br />

office.<br />

One amusing episode that emerged<br />

was an interview of Ed O’Neill by Jennifer<br />

Wells, a business reporter who had<br />

followed the Lac-Corona trial closely<br />

and had written many articles about the<br />

case. She had learned of the claims being<br />

made by Scintilore and interviewed Edward<br />

Bonaventure O’Neill for an article<br />

in the Financial Times that began:<br />

<strong>The</strong> trouble with O’Neill is that when<br />

he tells his story straight-out, he<br />

doesn’t stay on track. He admits to<br />

scamming mining companies in the<br />

past; he relishes being a “natural-born<br />

expander of the truth.” 6<br />

Mr. O’Neill described himself in this<br />

article as “Edward B**********, that’s B for<br />

Bullshitter, O’Neill.” <strong>The</strong>re were other<br />

such admissions (and contradictions)<br />

sprinkled throughout the article. We<br />

subpoenaed Jennifer Wells to come<br />

to the trial, but in the end that proved<br />

unnecessary.<br />

<strong>The</strong> real difficulty we encountered<br />

during this period was that although<br />

Justice Holland had made production<br />

orders in the broadest terms, including<br />

production of what would otherwise be<br />

privileged documents in the hands of<br />

Lac, its lawyers, and its investigators,<br />

Bill Sasso continued to take the position,<br />

including in the cross-examinations and<br />

in respect of production, that Lac was<br />

entitled to review the documents first<br />

and exclude privileged materials that it<br />

considered irrelevant. As a result, we<br />

were getting only partial production.<br />

This matter came to a head before Justice<br />

Holland in a motion on September<br />

12, 1988. Adding to the other-worldly<br />

nature of this entire proceeding, this<br />

motion was argued on the deck of Justice<br />

Holland’s country property in Caledon,<br />

where he was on holiday. Counsel<br />

drove to Caledon, outfitted in our suits,<br />

to deal with these important issues. It<br />

was a beautiful summer morning, the<br />

sun was shining, the coffee and muffins<br />

were delicious, and the views from the<br />

deck marvellous. Justice Holland on that<br />

occasion reiterated that his production<br />

orders were to be interpreted broadly<br />

and that questions of privilege and<br />

relevance were not to be predetermined<br />

by Lac or its counsel.<br />

Lac sought an expedited leave to appeal<br />

from this order, which was dismissed<br />

by Justice Douglas Carruthers.<br />

To deal with this explosive material,<br />

Justice Holland next volunteered to attend<br />

in person to review documents over<br />

which claims of privilege and relevance<br />

were being made by Lac. On two occasions<br />

in mid-September he did exactly<br />

that, convening counsel in a boardroom<br />

at Fraser & Beatty and going through<br />

documents that had been gathered up<br />

pursuant to his production orders and<br />

determining, on a document-by-document<br />

basis, what documents – including<br />

from the files and from the wide<br />

ranging investigations undertaken by<br />

Lac – should be produced. With that<br />

added assistance, we managed to get<br />

through the pre-trial proceedings, as I<br />

have said, with the last examination occurring<br />

on the day before the trial started.<br />

<strong>The</strong> trial of the issue<br />

<strong>The</strong> trial began on September 19, 1988.<br />

<strong>The</strong>re were 10 days of evidence, and the<br />

argument concluded on October 7, just a<br />

few days before the appeal was to start in<br />

Ottawa. At the conclusion of the argument,<br />

Justice Osborne reserved his decision. 7<br />

As we look back at it now, the result<br />

may seem inevitable. But at the time,<br />

nothing appeared certain. We were just<br />

trying to get through the case, dealing<br />

with witnesses and still trying to digest<br />

and understand the massive production<br />

that followed from the orders Justice<br />

Holland had issued.<br />

As its witnesses at the trial, Lac called<br />

Bruce Dunne, the detective; Michael<br />

Pickens, who ran the contract-staking<br />

outfit; and Ian Hamilton, Lac’s in-house<br />

counsel. None of them fared well.<br />

Edward O’Neill did not appear as a<br />

witness at this trial. Neither did any of<br />

Lac’s many counsel. O’Neill’s affidavit<br />

was struck from the record.<br />

Mr. Hamilton confirmed in crossexamination<br />

that Bruce Dunne had<br />

brought evidence that Lac was now<br />

relying upon to claim fraud, perjury,<br />

and collusion to Lac’s attention as early<br />

as November 1986 and with increasing<br />

detail in January and February 1987.<br />

Hamilton confirmed that they found this<br />

all interesting but not particularly relevant,<br />

since they were looking to turn<br />

up evidence with respect to the Williams<br />

property and that this evidence fell well short of that.<br />

Dunne was crystal clear in his cross-examination that in<br />

January 1987 he had reviewed with Lac and its agents the<br />

evidence contained in Lac’s affidavits on this motion, that<br />

O’Neill’s evidence conflicted with that of McKinnon, that the<br />

documents on their face supported O’Neill’s version of the<br />

facts, and that Lac was not really interested in the information.<br />

Moreover, a month later, in February 1987, Dunne brought<br />

additional documents and further information from O’Neill<br />

to the attention of Kroll (the private investigation firm), Lac,<br />

and Torys, essentially that the documents supported O’Neill’s<br />

version of the story and not McKinnon’s, and not only was he<br />

instructed not to do anything further but also that his retainer<br />

with Lac was terminated in February 1987, as was Torys’.<br />

It was at that time that Lac handed over its $8 million investigation<br />

to Scintilore, and Bruce Dunne took up the cudgels on<br />

behalf of Scintilore over the following years. Although Justice<br />

Osborne made a finding, no rational explanation was ever provided<br />

as to why nothing was done between February 1987 and<br />

August 1988, when this motion was instituted.<br />

<strong>The</strong>re was a lot of evidence, which I will not review, about<br />

a dirty tricks campaign that Dunne had orchestrated on his<br />

own account, anonymous letter writing to the Ontario Provincial<br />

Police, destruction of records, and attempts to influence<br />

journalists with false information, to provide just a sampling.<br />

Bruce Dunne had developed his own theory about what had<br />

happened in the bush, and, with a virtually unlimited budget<br />

and limited supervision, he was determined to make his theory<br />

into the truth.<br />

On the defence side, the main evidence was given by Donald<br />

McKinnon and John Larche. As I noted earlier, they had been<br />

made parties for the limited purpose of this mini-proceeding.<br />

<strong>The</strong>y had also been cross-examined as witnesses on the pending<br />

motion. At the trial, their evidence was led in chief by<br />

their counsel, Tom Dunne (for McKinnon) and Peter Atkinson<br />

(for Larche).<br />

<strong>The</strong>y were impressive witnesses, straightforward and with<br />

evidence by and large consistent with what McKinnon had<br />

said at the original trial, which was not very much at all about<br />

the issues now being ventilated.<br />

McKinnon’s evidence was that he had staked the 12 claims<br />

as he said he had in his evidence-in-chief at the Corona trial.<br />

When he had gone down to Hemlo to stake before Christmas,<br />

he had Ed O’Neill with him, but O’Neill could not keep up on<br />

account of the rugged terrain and his poor health. McKinnon<br />

had to take O’Neill back to Timmins, and he returned to complete<br />

that staking on three days, December 15, 16, and 17, with<br />

another helper.<br />

McKinnon testified it was not unusual for him to record his<br />

staking in the names of others, including Ed O’Neill. He had<br />

O’Neill’s permission to do this, and he had paid for the tags<br />

that were in O’Neill’s name on the stakes.<br />

Whatever the technicalities and legalities, this was a common<br />

practice, designed to cover his tracks from those who<br />

would otherwise monitor and follow his activities.<br />

McKinnon said that in this instance, he believed O’Neill had<br />

signed the application to record, with the details of the staking,<br />

but he could not remember with certainty. Forensic evidence<br />

obtained in the lead-up to this trial showed that the signature<br />

likely was O’Neill’s.<br />

All this was gone into in great detail in chief and in<br />

cross-examination here, but none of it had been the subject of<br />

cross-examination at the actual Corona trial.<br />

As for John Larche, he confirmed what he had reported to<br />

Pickens in January 1980. He travelled to Hemlo to stake the 12<br />

claims, met McKinnon there, satisfied himself that McKinnon<br />

had in fact staked those claims, and reported all that to Pickens.<br />

He and McKinnon made a subsequent agreement to stake<br />

additional claims in the area together, rather than competing.<br />

None of this had been a secret. <strong>The</strong>re were some differences in<br />

the details between the recollections of McKinnon and Larche,<br />

but their evidence was more or less consistent on the major<br />

points that had been brought into question by Lac.<br />

And then there was the matter of the documents, surfacing<br />

from our rummaging around in Fraser & Beatty’s files and<br />

those of all participants, the detectives, Torys, Lac itself, Bruce<br />

Dunne of course, all those who had been involved in putting<br />

Lac’s case together for the original trial, and those involved in<br />

the protracted investigation down to the commencement of the<br />

motion in August 1988.<br />

This cache was a treasure trove, as we had anticipated.<br />

Fraser & Beatty had done exactly what we expected they<br />

would. <strong>The</strong>y prepared their defence in a logical, ordered fashion,<br />

kept good records, and assessed the strengths and weaknesses<br />

of their case as the years went by. Fraser & Beatty had<br />

interviewed Donald McKinnon on no fewer than four occasions.<br />

That was three more times than we had done. Memoranda<br />

were prepared.<br />

<strong>The</strong>y had also interviewed John Larche and Michael Pickens.<br />

<strong>The</strong> memoranda showed that both McKinnon and Larche were<br />

straightforward and open in their responses to Lac and its<br />

lawyers and held nothing back.<br />

<strong>The</strong> decision<br />

In dramatic fashion, on October 11, 1988, just a few minutes before<br />

the argument was to get underway in the Supreme Court<br />

of Canada, the parties received word that Justice Osborne had<br />

released an endorsement, dismissing Lac’s motion. We were<br />

told that Justice Osborne would provide oral reasons in court<br />

in Toronto on October 14, 1988, two days following the conclusion<br />

of Lac’s appeal.<br />

On that day Justice Osborne, in his usual crisp and understated<br />

manner, went through the facts and law in a spare but<br />

powerful narrative. 8 He started with the position that Lac<br />

had taken in argument before him at the conclusion of the<br />

evidence, that there was a single issue at hand: the credibility<br />

of Donald McKinnon, and that the fresh evidence Lac was<br />

relying upon brought McKinnon’s credibility into disrepute,<br />

affecting the outcome in the original trial.<br />

In dealing with this, Justice Osborne made reference to Lac’s<br />

reply to the demand for particulars, which had raised the two<br />

specific issues about the staking of the 12 claims and the alleged<br />

collusion of the two prospectors. Osborne J observed that<br />

his task as the judge in this matter was more specific than simply<br />

determining an issue about McKinnon’s credibility. Rather,<br />

he had to decide if the specific allegations raised by Lac in its<br />

reply were material and had been made out, and what, if anything,<br />

had Lac known about them, and when.<br />

He concluded that McKinnon was not a witness who could be<br />

said to have been crucial to the trial judge’s liability conclusions<br />

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at the trial and that McKinnon had nothing whatsoever to do<br />

with the crucial meetings between Lac and Corona that had led<br />

to the trial judge’s findings.<br />

McKinnon’s relevant evidence at trial was his involvement<br />

in seeking out Mrs. Williams and that he had made an offer<br />

to purchase, and that the trial judge had concluded that the<br />

offer resulted in the finding that Corona would have acquired<br />

the Williams property but for the actions of Lac. Against that<br />

backdrop, Justice Osborne then reviewed the applicable test<br />

and the law related to the motion. His reasons made a lasting<br />

contribution to the jurisprudence by reducing the underlying<br />

principles to a series of seven enumerated propositions.<br />

Particularly important were his propositions that the onus<br />

is on the moving party to establish due diligence and that evidence<br />

cannot be stockpiled during the litigation process to<br />

be taken from inventory after an unsuccessful trial or appeal.<br />

Further, the test imposed upon the unsuccessful trial party is<br />

objective: What did the moving party know? and what ought<br />

the moving party to have known?<br />

He articulated a specific principle that delay will defeat a<br />

motion to set aside a trial judgment and that the conduct of the<br />

moving party is a relevant consideration. 9<br />

Justice Osborne then made his findings. <strong>The</strong>se included that<br />

McKinnon did not perjure himself in his examination-in-chief<br />

at trial, nor did he mislead the Court in failing to expand upon<br />

his evidence and thereby answer questions he was not asked<br />

with respect to the staking activities west of the Williams<br />

property. In that regard, the approach taken by Lac’s counsel<br />

in cross-examination at trial “led to the issues that are now<br />

before me being left twisting in the wind.” Justice Osborne made<br />

clear, however, that this decision of trial counsel was one that<br />

should not be criticized, having regard to the general lack of relevance<br />

of those inquiries to the actual issues at large in the trial.<br />

Justice Osborne placed considerable reliance on documents<br />

that existed in Fraser & Beatty’s files, including a memorandum<br />

of September 20, 1984, which in its detail showed that<br />

in interviews with Mr. McKinnon, many of the specific issues<br />

raised in this motion had been raised by McKinnon openly<br />

with Lac’s trial lawyers and could easily have been followed up.<br />

As to the later period, Lac had all the evidence it needed<br />

around the time of its appeal to the Ontario Court of Appeal.<br />

Justice Osborne made a finding that Lac was optimistic that<br />

it would succeed on its appeal and that it was only after the<br />

Court of Appeal’s reasons were released that Lac seized on<br />

the issues it now put forward. Lac’s approach and eventual<br />

actions did not conform to any reasonable definition of due<br />

diligence, the delay was excessive, and Lac had failed the<br />

due diligence test.<br />

Finally, Justice Osborne drew an adverse inference against<br />

Lac for its failure to call either Lac’s counsel at trial or Lac’s<br />

counsel in charge of its investigations related to this case and<br />

drew the inference that the evidence of these lawyers would<br />

not have been of assistance to Lac’s position.<br />

Perhaps the strongest statement made by Justice Osborne in<br />

the matter, one most indicative of his view of the case, was<br />

what he said subsequently in awarding the responding parties<br />

costs on a solicitor-client basis:<br />

<strong>The</strong> conduct of LAC and, more importantly, those retained<br />

by LAC; the failure of LAC, and those retained<br />

by LAC, to comply with production orders; the substance of<br />

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the allegations made, but not proved (particularly as related<br />

to McKinnon and Larche); and finally, LAC’s complete<br />

failure to establish the position it asserted on this motion,<br />

cause me to conclude that all responding parties are<br />

entitled to costs on a solicitor-and-client basis. 10<br />

<strong>The</strong> aftermath<br />

<strong>The</strong> Supreme Court of Canada released its decision on August<br />

11, 1989. Lac Minerals’ appeal failed. <strong>The</strong> Court reversed the<br />

courts below on the fiduciary issue and found that no fiduciary<br />

duty was owed by Lac to Corona in the circumstances of this<br />

case (3:2) but upheld the findings of the trial judge and the<br />

Court of Appeal that Lac had breached an obligation of confidence<br />

owed to Corona and reaffirmed that disgorgement was<br />

the appropriate remedy (3:2).<br />

<strong>The</strong> Williams property remained in Corona’s possession.<br />

This satisfying result brought the Lac and Corona saga to a<br />

conclusion for Alan and me. It was a case for the ages.<br />

For some of the parties central to this motion, however, litigation<br />

continued. <strong>The</strong> Scintilore action was not heard until 1999.<br />

In a scathing decision, 11 Justice Robert Sharpe dismissed all<br />

claims and allegations against Messrs. Larche and McKinnon.<br />

Justice Sharpe reviewed the McKinnon/Larche staking<br />

saga in great detail. He found both men highly credible and<br />

remarked on the consistency of their evidence in the face of<br />

multiple examinations and cross-examinations on the issues<br />

over many years.<br />

Don McKinnon continued with his interesting life during<br />

this long period of litigation. He explored and prospected<br />

using his own well-tested methods, researching and accumulating<br />

information about an area before launching what was<br />

often a massive staking program. He was a vocal advocate for<br />

the north and the northern economy and was philanthropic.<br />

He was awarded the Order of Canada in 1996. He died in<br />

Timmins on August 9, 2012, at age 82.<br />

<strong>The</strong>ir personalities were as different as night and day, but<br />

John Larche and Don McKinnon shared many traits. Larche<br />

also continued to prospect, although he and McKinnon had<br />

become wealthy from their staking of the Hemlo gold camp.<br />

Larche was a pilot and, when he could afford to do so in days<br />

past, flew small aircraft to locate areas and carry out quick<br />

strike-staking. Larche bought a refurbished iconic de Havilland<br />

Beaver aircraft with the purpose of extending his prospecting<br />

throughout Canada. In 1991, during a flight from Timmins<br />

to British Columbia, the plane struck a mountain in Alberta.<br />

Tragically, a long-time companion and fellow prospector was<br />

killed and Larche severely injured. Larche had a long recovery<br />

but lived to make substantial philanthropic contributions to<br />

northern Ontario and the town of Timmins, particularly in the<br />

health field. He was invested into the Order of Canada in 2003<br />

and died at age 84 in 2012.<br />

Justice Richard Holland retired from the bench in 1990. For<br />

years, he had managed the Toronto non-jury list from his perch<br />

in Courtroom 4-6 at 361. He needed one tool only, which he<br />

wielded mercilessly: no adjournments. <strong>The</strong>re was a moment in<br />

any trial presided over by Justice Holland, a moment of high<br />

drama, when he would swivel his chair and face his considerable<br />

presence fully into the witness. (He actually did this because<br />

he had a surgically fused neck.) This was credibility<br />

time: taking the measure of a key witness. With Murray Pezim<br />

in the box, it was a memorable moment.<br />

Dick Holland became an early advocate<br />

for mediation, was a founder of ADR<br />

Chambers, and was in great demand as<br />

a mediator over many years. He suffered<br />

from chronic health issues and passed<br />

away in 2002.<br />

Murray Pezim was the stereotypical<br />

stock promoter: a telephone on each ear<br />

and touting his latest can’t miss opportunity<br />

– which is exactly what he was<br />

doing when I first met him. But of course<br />

there was more to it. It was said about<br />

Murray that the worst thing that ever<br />

happened to him was that he found a<br />

gold mine, and that was true in a way.<br />

He had lost his stake in Corona long<br />

before the case was concluded. But from<br />

the start, he felt deeply betrayed by Lac<br />

Notes<br />

1. McCarthy & McCarthy’s Douglas Laidlaw had been retained in March<br />

1983, on the eve of a second motion for summary judgment Lac Minerals<br />

was bringing. Doug asked me to help. <strong>The</strong>re were five or six of us who<br />

worked with Doug on the many briefs that came to him at the firm. While<br />

we were all busy developing our own practices, we leapt at these chances<br />

to work with Doug. I was 39 when the case first came in the door. Doug<br />

was killed in August 1984 by a doped-up driver in a horrible accident. I<br />

asked my friend and squash partner Alan Lenczner to team up, and the<br />

client stuck with us. Alan was three years my senior at the bar, but we’re<br />

about the same age. And on we went.<br />

2. It should be remembered that these arguments were playing out more than<br />

35 years ago. <strong>The</strong> Supreme Court of Canada in Bhasin v Hrynew, 2014<br />

SCC 71, resolved the debate almost 25 years later by importing duties of<br />

good faith into contract negotiations and the performance of contractual<br />

obligations. It is certainly arguable on the basis of the jurisprudence that<br />

has followed Bhasin that introducing these broad duties into contractual<br />

relations has brought with it many of the uncertainties and lack of<br />

predictability that the courts heard about in the arguments in Lac Minerals<br />

v Corona.<br />

3. Glatt v Glatt, [1937] SCR 347.<br />

4. 100 Main Street East Ltd. v Sakas (1975), 8 OR (2d) 385 (CA).<br />

5. This attendance had an eerie similarity to an earlier one before Parker<br />

CJC in the fall of 1985 by us and Lac’s trial counsel when the parties<br />

were seeking the appointment of a trial judge. Chief Justice Parker on that<br />

occasion said he would make no promises, but he invited the parties to<br />

each submit a list of six trial judges with whom they’d be content, and he<br />

would take it from there. As it turned out, Justice R.E. Holland was on both<br />

lists and was duly appointed the trial judge. <strong>The</strong> psychology and reasoning<br />

behind these choices is a fascinating story in itself, for another day.<br />

Minerals’ conduct, in the handshake<br />

world of those times, and he was the<br />

force that kept us going while we developed<br />

the equitable arguments that<br />

eventually carried the day.<br />

I got to know Murray well over those<br />

years, and it was no surprise to me that<br />

Justice Holland found him to be a credible<br />

witness. Murray had many health<br />

issues in subsequent years and died of a<br />

heart attack in November 1998.<br />

Lac Minerals soldiered on, much<br />

diminished, following its defeat and<br />

was eventually acquired by Barrick Gold<br />

Corporation in 1995.<br />

In 1992, during a period of low gold<br />

prices and rising costs, International<br />

Corona was acquired by Homestake<br />

Mining Company, the US gold-mining<br />

6. <strong>The</strong> Financial Times, week of May 8, 1988.<br />

giant. Homestake secured ownership of<br />

Corona’s Hemlo gold property and the<br />

Williams mine.<br />

In 2001, Homestake merged with Barrick<br />

Gold Corporation, and Barrick took<br />

over Homestake’s Hemlo assets, including<br />

the Williams mine. Barrick continues<br />

to operate the Williams mine, which has<br />

to date produced more than 20 million<br />

ounces of gold and is still going strong.<br />

In 1992, Alan and I, with our friends<br />

and colleagues Michael Royce, Glenn<br />

Smith, and Peter Griffin, founded our<br />

firm. We continued to practise in harmony<br />

and with immense enjoyment for<br />

almost 30 more years. Corona, and one<br />

other case, were the only two briefs<br />

where Alan and I worked together over<br />

all the years.<br />

7. As I was drafting this article, the news of Coulter Osborne’s death at age<br />

88 rocketed around the profession. Over the course of a long and varied<br />

career, Coulter asserted a deep and lasting influence over the administration<br />

of justice in Ontario, from the inquiries and reform initiatives he led to the<br />

jurisprudence he authored. To me, however, his greatest quality was as a<br />

listener. He listened. And it was clear to counsel, and most importantly to<br />

clients, that he was listening and that he heard the pleas being made. He<br />

showed that quality in this case, maintaining an even hand and demeanour<br />

(with only one or two notes of incredulity). As well as listening, he also<br />

understood and, ultimately, expressed his opinions – in decisions, at<br />

mediation, and in reports – in straightforward language: logical, clear, and<br />

always very difficult to argue with, just as he did here.<br />

8. International Corona Resources Ltd. v Lac Minerals Ltd. (1988), 1988<br />

CarswellOnt 870, 66 OR (2d) 610, 54 DLR (4th) 647 (HCJ).<br />

9. This principle has stood the test of time. In 2008, Monique Jilesen and I<br />

succeeded for our client, the Government of Canada, following a lengthy<br />

trial, in setting aside the decision of a trial judge on the grounds of the<br />

fraud and perjury of the plaintiff. In that case, fraudulent letters were<br />

introduced into the record over a period of years, supporting the liability of<br />

the government to the tune of many millions in damages. <strong>The</strong> trial judge,<br />

Lederer J, applied the seven principles laid down by Justice Osborne. See<br />

Canada v Granitile Inc. (2008), [2008] OJ No. 4934, 172 ACWS (3d)<br />

1047, 302 DLR (4th) 40 (SCJ).<br />

10. International Corona Resources Ltd. v Lac Minerals Ltd. (1988),<br />

1988 CarswellOnt 870, 66 OR (2d) 610, 54 DLR (4th) 647 (HCJ),<br />

Supplementary Reasons, November 8, 1988.<br />

11. Scintilore Explorations Ltd. v Larche (1999), [1999] OJ No 2847, 48 BLR<br />

(2d) 248 (SCJ).<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 19


Judicial notice<br />

in the misinformation age<br />

“My friend submits that we have not proven<br />

that COVID-19 is a pandemic.”<br />

<strong>The</strong> authors thank Sneha Ajai, an articling student at Osler,<br />

Hoskin & Harcourt LLP, for her able assistance.<br />

Judicial notice is a rule of evidence that was developed long<br />

before the typewriter; 1 it allows a judge to make a finding of<br />

fact without any evidence of that fact. It is a powerful rule<br />

and the “only exception to the general rule that cases must be decided<br />

on the evidence presented by the parties in open court.” 2<br />

Judicial notice is justified, particularly as we emerge from a<br />

pandemic that has increased backlogs in the courts. 3 Judicial<br />

notice “expedites the process of the courts, creates uniformity<br />

in decision-making and keeps the courts receptive to societal<br />

change.” 4 It is “a functional doctrine designed to promote an<br />

efficient and sensible trial process.” 5<br />

Erin Pleet and Mary Paterson<br />

Judicial notice is a powerful rule because it permits findings<br />

of fact that are not grounded in admissions, nor proven through<br />

testimony provided under oath, nor tested by cross-examination. 6<br />

<strong>The</strong> very power of judicial notice has two consequences:<br />

1. <strong>The</strong> threshold for judicially noticing a fact is “strict” 7 or<br />

“high”; 8 and<br />

2. <strong>The</strong> parties should have the opportunity to make<br />

submissions on whether it is appropriate for the judge to<br />

judicially notice the fact. 9<br />

<strong>The</strong> doctrine of judicial notice has had to grapple with the<br />

“democratization” of information. Once more limited and<br />

homogeneous, there is now a plurality of reliable sources for<br />

information as well as a plurality of voices in the judiciary and<br />

legislative branches of government, each contributing to and<br />

relying on “notorious” knowledge. <strong>The</strong> number of sources<br />

properly considered “indisputable” has grown, and these<br />

sources are now readily available online to any interested person.<br />

However, as in any democratic system, while many voices<br />

may provide comfort, the majority is not always right, and we<br />

must vigilantly protect against misinformation.<br />

At its core, judicial notice is appropriate only for facts that<br />

are beyond controversy. In this article, we explore how the<br />

traditional doctrine of judicial notice withstands the age of<br />

fake news and misinformation in which we now live courtesy<br />

of the internet. We then consider how courts have handled<br />

judicial notice of the developing science of COVID-19.<br />

Traditional judicial notice<br />

<strong>The</strong> courts have translated the first requirement for judicial<br />

notice – a strict/high threshold – into a more tangible test by<br />

identifying two types of facts that can properly be judicially<br />

noticed because they are likely to be beyond controversy:<br />

1. notorious facts that are “so notorious or generally accepted<br />

as not to be the subject of debate among reasonable<br />

persons”; and<br />

2. immediately demonstrable facts that are “capable of immediate<br />

and accurate demonstration by resort to readily accessible<br />

sources of indisputable accuracy.” 10<br />

<strong>The</strong> courts have then qualified these two categories by explaining<br />

that questions of fact are on “a spectrum that runs<br />

from those that are central to or dispositive of an issue, at<br />

one end, to those that ‘merely paint the background to a<br />

specific issue.’” 11 As the fact becomes more central to the case,<br />

the test for judicial notice becomes more<br />

“pressing” or strict. 12<br />

Notorious facts<br />

<strong>The</strong> case law demonstrates that determining<br />

whether a fact is sufficiently notorious<br />

to be judicially noticed is not an<br />

easy task and, as we explore below, has<br />

become even more complex in the age<br />

of the internet. Ignoring the internet for<br />

the moment, determining which facts are<br />

sufficiently notorious requires the judge<br />

to consider:<br />

1. whether the fact is merely within<br />

the judge’s personal knowledge or<br />

is actually notorious and widely<br />

known; 13<br />

2. whether the fact is notorious within<br />

the parties’ industry (in a business<br />

dispute 14 ), geography (if location<br />

matters 15 ), community (i.e., general<br />

farming facts in a rural community 16 ),<br />

or other similar context; 17 and<br />

3. whether the “fact” remains subject<br />

to dispute among reasonable persons<br />

(i.e., certain investment strategies<br />

that were generally, but not universally,<br />

accepted 18 ).<br />

Given the high bar for taking judicial<br />

notice, courts and counsel should look<br />

to other rules of evidence to prove facts<br />

before resorting to judicial notice. For<br />

example, the public documents exception<br />

to the hearsay rule (that a public document<br />

may be proffered for the truth of its<br />

contents, as it is impractical to otherwise<br />

present this evidence, and public servants<br />

are expected to perform their duties with a<br />

degree of diligence and care), 19 or section<br />

25 of the Ontario Evidence Act (which<br />

states that official government documents<br />

“shall be admitted in evidence to<br />

prove the contents thereof”), 20 may lead<br />

to the desired factual conclusion with<br />

less controversy.<br />

Immediately demonstrable facts<br />

Similarly, as the case law shows, determining<br />

whether a fact is immediately<br />

demonstrable enough to be judicially noticed<br />

bumps up against expert evidence<br />

and the expansion of scientific knowledge.<br />

Conceptually, a fact that must be proven<br />

through expert evidence “is by definition<br />

neither notorious nor capable of immediate<br />

and accurate demonstration.” 21<br />

But as the scientific process transforms<br />

hypotheses to theories to indisputable<br />

facts, the amount of information contained<br />

in readily accessible sources of<br />

indisputable accuracy that we can immediately<br />

access and accurately understand<br />

grows. This growth also leads to<br />

changes, even reversals, of what we previously<br />

thought of as fact. For decades,<br />

a judge could have judicially noticed<br />

that Pluto is the ninth planet orbiting the<br />

sun; now, she cannot. 22<br />

As with notorious facts, the internet<br />

complicates how we think about immediately<br />

demonstrable facts. Determining<br />

which facts are immediately demonstrable<br />

requires the judge to consider:<br />

1. whether the source is of indisputable<br />

accuracy (traditionally reputable<br />

dictionaries, almanacs, reference<br />

texts); 23 and<br />

2. whether the “fact” is objective and<br />

knowable with certainty (i.e., a geographic<br />

fact such as the location of<br />

an intersection). 24 If the “fact” is<br />

more subjective, for example, hockey<br />

strategy, it should not be judicially<br />

noticed unless it is peripheral to the<br />

issues in the case. 25<br />

All these indicia are complicated by<br />

the fact that, as the Supreme Court of<br />

Canada pointed out, “what ‘everybody<br />

knows’ may be wrong.” 26 As we continue<br />

to understand how unconscious bias and<br />

other neural shortcuts impact our thinking,<br />

counsel must be rigorous in how we<br />

approach judicial notice. That said, from<br />

a procedural fairness perspective, many<br />

(maybe all) of the dangers associated<br />

with judicial notice are mitigated by the<br />

courts, giving the parties the opportunity<br />

to make submissions on whether the<br />

judge can or should judicially notice a<br />

particular fact.<br />

Judicial notice and the internet<br />

<strong>The</strong>se days, courts are more willing to<br />

take judicial notice of scientific and technical<br />

facts, considering such facts to be<br />

more ubiquitous knowledge than even<br />

a few years ago. 27 This willingness goes<br />

hand in hand with an increased comfort<br />

with the internet. As our society has become<br />

used to settling our dinner-table<br />

debates with our smartphones, judges<br />

have become comfortable with accessing<br />

the wealth of scientific and technical<br />

knowledge available online from the<br />

comfort of their chambers. 28 And just<br />

as those dinner-table debates can show,<br />

the quality of information found in the<br />

corners of the internet runs the gamut.<br />

It is now accepted that judges can take<br />

judicial notice of facts found on certain<br />

websites. In both traditional and internet<br />

cases, the focus is on whether the fact is<br />

truly indisputable. However, unlike the<br />

Encyclopedia Britannica (now available<br />

exclusively online 29 ), the information on<br />

the internet ranges from the carefully<br />

validated to fake news. Some courts have<br />

considered:<br />

1. whether the information comes from<br />

an official website of a well-known<br />

organization;<br />

2. whether the information is capable<br />

of being verified; and<br />

3. whether the source is disclosed so<br />

that the objectivity of the person or<br />

organization posting the material<br />

can be assessed. 30<br />

Even if we apply this rubric, judicial<br />

notice using the internet leads to a<br />

heightened concern about trial fairness,<br />

such that the best practice is to give the<br />

parties the chance to make submissions.<br />

This heightened concern applies even<br />

to what we might consider one of the<br />

most indisputable facts in this era of internet<br />

and technology: maps of Earth.<br />

Though doing so may meet the test set<br />

out above, whether it is appropriate to<br />

use Google Maps or Google Earth for<br />

geographic facts depends on the indisputability<br />

and importance of the fact.<br />

For example, the Superior Court has<br />

used Google Earth to take judicial notice<br />

of the location of an intersection. 31 In another<br />

decision, the Court of Appeal for<br />

Ontario saw no error in the trial judge<br />

using Google Maps to ascertain the<br />

travel time between locations. 32 A more<br />

aggressive use of geographic judicial<br />

notice saw a judge using Google Maps,<br />

along with the judge’s long history of<br />

living in Ottawa, to find facts relating<br />

to the general frequency of swimming<br />

pools in the neighbourhood. 33<br />

Interestingly, these cases do not discuss<br />

for what facts Google Maps is an indisputably<br />

accurate source. We accept<br />

that it is indisputably rare for an intersection<br />

to move. But the travel time<br />

between locations depends on traffic<br />

conditions. Travel times in rush hour are<br />

usually (but we can’t say always) longer<br />

than travel times early Sunday morning.<br />

Even adjusting for the time, 34 traffic patterns<br />

are impacted by construction and<br />

accidents. Google Maps does not record<br />

travel times for particular days at particular<br />

times. Nonetheless, in Calvert,<br />

the Court of Appeal suggests that it was<br />

appropriate to use Google Maps to<br />

20 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 21

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estimate travel time because the issue of judicial notice was put<br />

to the parties. 35<br />

However, in R v Ghaleenovee, the judge took judicial notice<br />

too far. <strong>The</strong> judge used an image from Google Street View to<br />

make an adverse credibility finding against the accused. <strong>The</strong><br />

accused said that he had cut his hand on a fence outside a<br />

club, not in the assault as alleged by the Crown. <strong>The</strong> trial judge<br />

searched for the Street View of the club, which showed a fence.<br />

Based on that image, the judge concluded that it would not<br />

be easy to get a cut from that type of fence. <strong>The</strong> image was<br />

not put to the accused. 36 <strong>The</strong> appeal court concluded that the<br />

trial judge had erred, explaining: “Checking indisputable facts<br />

[on the internet] is one thing. Conducting an investigation and<br />

drawing inferences – especially without giving the parties an<br />

opportunity to respond – is another.” 37<br />

As an aside, Google Street View shows the most recent image<br />

that was captured, 38 although you can look at earlier images<br />

through Street View history. 39 Did the image of the fence outside<br />

the nightclub the date of the Street View image show the<br />

same fence as the night of the altercation? This question could<br />

have been canvassed had the image been put to the parties.<br />

Courts have also taken judicial notice of geographic facts<br />

using GPS technology. In R v Snache, 40 the court took judicial<br />

notice of cellphone GPS location data. <strong>The</strong> defence argued that<br />

the Crown must establish the reliability of the GPS location<br />

data before it could have any evidentiary value. <strong>The</strong> court disagreed,<br />

citing the everyday use of GPS, including using Waze<br />

to find the quickest route and using AirTags to track luggage.<br />

<strong>The</strong> court held:<br />

In my view, the accuracy and reliability of GPS location<br />

data is now so notorious and accepted that it is not seriously<br />

disputed among reasonable people. That is not<br />

to say that it is capable of pinpointing the exact location<br />

of a cell phone. It has its limitations and may, of course,<br />

be impacted by atmospheric conditions and signal<br />

blockage. It may also be impacted if the receiver in use is<br />

malfunctioning. 41<br />

That said, the GPS data was not the only location evidence on<br />

which the court relied to convict the accused. <strong>The</strong>re was other<br />

evidence of the accused’s location, such that the judge was comfortable<br />

taking judicial notice of the cellphone GPS data.<br />

Perhaps one step further than the everyday uses of GPS, in<br />

Telus Communications Inc v Vidéotron Ltée, 42 though the parties<br />

did not tender evidence regarding what electromagnetic waves<br />

are or exactly how they are used by mobile phones, the court<br />

found it was a notorious fact among the general public that<br />

mobile phone technology requires the use of electromagnetic<br />

waves of various frequencies. 43 While we wonder whether the<br />

general public could explain that mobile phones use electromagnetic<br />

waves, we note that the parties in Telus (telecommunications<br />

companies) no doubt found it notorious, and a<br />

quick online search confirms this is true. 44<br />

What are the limits on the web-sleuthing a trial judge can<br />

do? Although the internet has given us more examples of inappropriate<br />

judicial notice, 45 the core limits remain true: Is the<br />

fact sufficiently notorious or immediately demonstrable to be<br />

indisputably true?<br />

In R v Balen, 46 a key witness to a car accident described the<br />

driver’s tracksuit as “K-way.” 47 <strong>The</strong> trial judge used Google<br />

to confirm that K-way manufactured tracksuits, writing in her<br />

reasons: “K-way manufactures tracksuits. (Note: Google search<br />

June 15, 2011).” 48 This Google research was not put to the parties.<br />

<strong>The</strong> appeal court allowed the appeal because the tracksuit<br />

was critical in identifying the accused, the fact judicially noticed<br />

was not indisputably accurate, and it was not clear if<br />

the judge’s online research considered Canadian distribution,<br />

types of fabric, or colours of the tracksuit. Further, the defence<br />

was not given the opportunity to respond to the “extra-curial<br />

evidence.” 49<br />

Similarly, in R v J.M., 50 the Court of Appeal for Ontario overturned<br />

a sexual assault conviction based on improper taking<br />

of judicial notice. <strong>The</strong> defence argued that the complainant<br />

was not credible because she did not distance herself from her<br />

abuser and she did not fight back. <strong>The</strong> trial judge rejected this<br />

argument in part based on social science research described in<br />

a Scientific American magazine article that the trial judge found<br />

online. <strong>The</strong> article was not provided to either party.<br />

<strong>The</strong> Court of Appeal noted that Scientific American is a popular<br />

science magazine. <strong>The</strong> 2017 article at issue was written by a<br />

journalist who specialized in psychology and behaviour, summarizing<br />

a 2017 Swedish study of female rape survivors who<br />

reported that they did not fight back. <strong>The</strong> Court of Appeal<br />

found that using the article exceeded the proper limits of judicial<br />

notice: “[<strong>The</strong> trial judge’s] reasons disclose that he relied<br />

on the article as a source of expert evidence that was not properly<br />

before the court to assess the veracity of the complainant.”<br />

51 <strong>The</strong> fact was therefore not immediately demonstrable.<br />

In addition, the Crown conceded that it was an error for the<br />

trial judge to refer to this article without canvassing counsel,<br />

as it breached procedural fairness.<br />

As these cases show, it is fair game for a judge to take judicial<br />

notice of information on the internet, so long as the accuracy<br />

of the source is rigorously considered and the parties have<br />

the chance to make submissions on the appropriateness of<br />

judicial notice.<br />

<strong>The</strong> threshold for taking judicial notice can and should be<br />

high. As alluded to in J.M., there is an analogy to be drawn<br />

to expert evidence. For a while, courts showed extraordinary<br />

deference to expert evidence. It took the revelations of Dr.<br />

Charles Smith’s problematic expert testimony and the consequent<br />

Goudge Inquiry to remind us that an adversarial system<br />

requires a skeptical approach to evidence, even (especially)<br />

expert evidence. 52 Taking judicial notice of online information<br />

runs the risk of circumventing the now more rigorous rules relating<br />

to expert evidence. Judicial notice can be a door through<br />

which inadmissible evidence sneaks into the record. A strict<br />

threshold for judicial notice is the best safeguard.<br />

As set out below, the COVID-19 pandemic gave us many examples<br />

in which courts took (or failed to take) a strict approach<br />

to judicial notice, highlighting the risks of misinformation on<br />

the internet.<br />

Judicial notice and COVID-19<br />

<strong>The</strong> COVID-19 pandemic put the law of judicial notice under<br />

a spotlight. Courts were not being asked to take judicial notice<br />

of historical facts; 53 rather, the judiciary was living the<br />

COVID-19 pandemic along with the parties appearing before<br />

it. COVID-19 became immediately relevant to many areas of<br />

law, including civil liberties, 54 commercial law, 55 labour and<br />

Because judicial notice “keeps the<br />

courts receptive to societal change,” 59<br />

courts were asked to take judicial notice<br />

of COVID-19 facts almost immediately.<br />

In a criminal law appeal heard in<br />

April 2020 (one month after lockdown),<br />

the incarcerated appellant argued that<br />

the pandemic had rendered his sentence<br />

unfit, as jails were not designed<br />

to maintain inmates’ safety during<br />

the pandemic. 60 <strong>The</strong> Crown argued that<br />

the appellant did not provide evidence<br />

of the pandemic’s effect in jails.<br />

While the Court of Appeal determined<br />

that it did not need to go so far as to judicially<br />

notice the pandemic’s impact on<br />

jails to decide the appeal, the court “[did]<br />

believe that it falls within the accepted<br />

bounds of judicial notice for us to take<br />

into account the fact of the COVID-19<br />

pandemic, its impact on Canadians generally,<br />

and the current state of medical<br />

knowledge of the virus, including its<br />

mode of transmission and recommended<br />

methods to avoid its transmission.” 61<br />

This decision set the stage for a slew of<br />

cases where courts took judicial notice<br />

of COVID-19–related facts.<br />

In a November 2020 family law case,<br />

L.M.S. v J.D.S., 62 the parties agreed the<br />




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mother and children could move to<br />

Arizona, with the father remaining in<br />

Alberta. <strong>The</strong> father wanted them to wait<br />

to move until after the pandemic had<br />

passed. <strong>The</strong> Court held that it could judicially<br />

notice that COVID-19 was a global<br />

pandemic, and that “our own public<br />

health officials have provided us with<br />

commonly-accepted precautions to avoid<br />

contracting COVID (wearing a mask,<br />

keeping distanced whenever possible,<br />

reducing contacts, washing hands).” But<br />

the father also asked the judge to judicially<br />

notice that Cochrane, Alberta, was<br />

safer than Phoenix or Scottsdale, Arizona,<br />

from the perspective of COVID-19<br />

risk. <strong>The</strong> judge refused, saying: “I am<br />

not accepting or rejecting any particular<br />

theory about the virus or its spread but<br />

I cannot take judicial notice of anything<br />

that is not so widely accepted as fact so<br />

as to be beyond discussion.” 63<br />

COVID-19 vaccines also became a<br />

battleground for judicial notice. In<br />

Khodeir v Canada (Attorney General), 64 the<br />

applicant sought judicial review of the<br />

federal government’s requirement that<br />

all its employees be vaccinated against<br />

COVID-19. <strong>The</strong> Attorney General sought<br />

to have the application struck at an<br />

1-866-314-7335 cbafuturecare.com<br />

employment law, 56 criminal law, 57 and family law. 58 THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 25<br />

early stage, as the applicant’s central<br />

thesis was that the COVID-19 virus did<br />

not exist. <strong>The</strong> Attorney General asked<br />

that the court take judicial notice that<br />

COVID-19 exists.<br />

Even though this fact was central to<br />

the dispute, the Federal Court agreed to<br />

take judicial notice that COVID-19 exists.<br />

It was January 2022, almost two years<br />

into the pandemic. In considering the<br />

notoriety of the information, the Federal<br />

Court noted that a fact does not become<br />

indisputable by mere repetition: “One<br />

must consider channels through which<br />

the information is conveyed, scrutinized<br />

and exposed to criticism, and the fact<br />

that these channels operate in a society<br />

based on freedom of discussion.” 65 Here,<br />

the scientific knowledge of COVID-19<br />

was subject to intense public scrutiny.<br />

Given this thorough public debate, “it<br />

is unimaginable that any actual scientific<br />

debate about these basic facts would<br />

have escaped public attention.” 66<br />

COVID-19 vaccines were hotly contested<br />

in family law cases, as parents disagreed<br />

about whether their children<br />

should receive the vaccine. <strong>The</strong> courts<br />

took judicial notice of the COVID-19<br />

pandemic, that the COVID-19 virus kills,<br />

24 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL

Time & Fees<br />

and that the Pfizer vaccine was not experimental and was<br />

deemed safe and effective for children 5–11 and 12–17. 67 Some<br />

lower courts even took judicial notice of the fact that being<br />

vaccinated against COVID-19 is in the best interests of a child,<br />

unless there is a compelling reason not to be 68 (although this<br />

appears to be a legal conclusion rather than a fact).<br />

<strong>The</strong> Court of Appeal for Ontario addressed judicial notice<br />

and pediatric vaccination in J.N. v C.G. 69 <strong>The</strong> parents were<br />

unable to resolve whether their two younger children should<br />

be vaccinated against COVID-19. Neither parent retained an<br />

expert. Rather, the father, who sought vaccination, filed printouts<br />

from Health Canada and the Canadian Paediatric Society’s<br />

websites, both recommending children be vaccinated against<br />

COVID-19. <strong>The</strong> mother filed printouts from the websites “Total<br />

Health” and “Contagion Live,” which contained references<br />

to various supposed doctors and other “experts” who were<br />

skeptical of the COVID-19 vaccine.<br />

<strong>The</strong> lower court motion judge sided with the mother. He refused<br />

to take judicial notice of the safety and efficacy of the vaccine<br />

because, in his view, the available information was a “moving<br />

target” and because there was “no consensus or consistency”<br />

as to safety and effectiveness. He reasoned that given Canada’s<br />

history of forced sterilization of Inuit women, residential schools,<br />

Japanese internment camps during World War II, Motherisk, and<br />

the Thalidomide tragedy, courts should be reluctant to “take judicial<br />

notice that the government is always right.” 70<br />

On appeal, the Court of Appeal for Ontario noted that<br />

while the motion judge did not expressly qualify the mother’s<br />

printouts as expert evidence, he essentially treated them<br />

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as such. For example, the motion judge referred to a doctor<br />

quoted in one article as an “equally competent and credible<br />

medical professional.” 71 <strong>The</strong> Court of Appeal concluded that<br />

the mother’s evidence was insufficient to cast doubt on certain<br />

indisputable facts of COVID-19, and that judicial notice<br />

provides needed efficiencies in resolving family law vaccination<br />

disputes:<br />

I would also note that there is no question that: 1) there is<br />

a COVID-19 pandemic; 2) this disease kills people, including<br />

children; and 3) the vaccines available to Canadians,<br />

including children ages 5 and older, have received regulatory<br />

approval. <strong>The</strong> problem, apart from the question of<br />

judicial notice, is that it is simply unrealistic to expect parties<br />

to relitigate the science of vaccination, and legitimacy<br />

of public health recommendations, every time there is a<br />

disagreement over vaccination. 72<br />

<strong>The</strong> motion judge had relied on some of the lower court case<br />

law which had refused to take judicial notice of Health Canada’s<br />

recommendations, on the basis that “[j]udicial notice<br />

cannot be taken of expert opinion evidence.” 73 <strong>The</strong> Court of Appeal<br />

had two responses. First, the court pointed out alternative<br />

evidentiary routes besides taking judicial notice, to support<br />

the finding that the vaccine was approved, and that approval<br />

indicated its safety and effectiveness. <strong>The</strong> public documents<br />

exception to the hearsay rule could permit the court to accept<br />

Health Canada’s approval as proof of the fact that the vaccine<br />

was approved (along with other statements made by Health<br />

Canada). 74 <strong>The</strong> Court of Appeal also referenced section 25 of<br />

the Evidence Act to support that official government documents<br />

are admissible for proof of their contents. 75<br />

As neither of those routes had been pursued by the parties<br />

before the motion judge, the Court of Appeal focused on judicial<br />

notice, highlighting the power of judicial notice and its<br />

limits. <strong>The</strong> Court of Appeal was careful not to find as a fact<br />

that the vaccine is safe and effective. Rather, the court said:<br />

“[J]udicial notice should be taken of regulatory approval, and<br />

regulatory approval is a strong indicator of safety and effectiveness.”<br />

<strong>The</strong> consequence, the court explained, was to put the<br />

onus “on the objecting party to show why the child should<br />

not receive that medication.” 76 In this case, the objecting party<br />

had not provided any admissible evidence showing why, from<br />

a medical perspective, the two younger children should not<br />

receive the vaccines. 77<br />

Plus ça change, plus c’est la même chose<br />

<strong>The</strong> principles limiting judicial notice, as a rule of evidence,<br />

have remained the same despite the proliferation of easyto-access<br />

information (and misinformation) at our fingertips.<br />

<strong>The</strong> case law reviewed above shows that judges’ decisions are<br />

being overturned for improperly taking judicial notice of facts<br />

sourced from the internet. In our view, we do not need to overhaul<br />

judicial notice as a rule of evidence if we remember the<br />

strict and high threshold that limits judicial notice to facts that<br />

are truly notorious or immediately demonstrable.<br />

Done properly, judicial notice fosters efficiency and promotes<br />

confidence in the administration of justice, especially<br />

by allowing courts to react to real-time pervasive events such<br />

as the COVID-19 pandemic. <strong>The</strong> public may have difficulty<br />

trusting courts if courts require litigants to prove notorious<br />

facts or if the courts prefer the parties’ inadmissible evidence to<br />

notorious or indisputable facts. 78 Given the wholesale change<br />

in our collective access to and attitude toward information,<br />

Notes<br />

1. <strong>The</strong> oldest case on CanLII to reference judicial notice is Hasluck v McMaster,<br />

1835 CanLII 62 (NB KB); according to Google, the typewriter was first patented<br />

in the US 33 years later, in 1868. We can make this factual statement<br />

because, at least in the endnotes, we choose not to be bound by the strict<br />

parameters for judicial notice.<br />

2. R v J.M., 2021 ONCA 150 at para 31(i) (J.M.).<br />

3. George R Strathy, Chief Justice of Ontario, “Ontario Has One of the Best<br />

Justice Systems in the World … and We Can Make It Even Better” (31<br />

August 2022) (https://www.ontariocourts.ca/coa/about-the-court/<br />

publications-speeches/cjo-strathy-speech-justice-system/).<br />

4. John Sopinka, Sidney N Lederman, and Alan W Bryant, <strong>The</strong> Law of Evidence<br />

in Canada, 6th ed (Toronto: LexisNexis, 2022), § 19.02 at para 19.25 (Sopinka).<br />

5. David M Paciocco, “Proof and Progress: Coping with the Law of Evidence<br />

in a Technological Age” (2013) 11 Can. J. L. & Tech. 181 at 188.<br />

6. J.M., supra note 2 at para 31(iii); R v Find, 2001 SCC 32 at para 48 (Find).<br />

7. J.M., supra note 2 at para 31(iv); Find, supra note 6 at para 48.<br />

8. Sopinka, supra note 4,§ 19.02 at para 19.25.<br />

9. Sopinka, supra note 4, § 19.02 at para 19.78; J.M., supra note 2 at para 38.<br />

For brevity, we will not explore the concept of ‘tacit judicial notice’ (i.e.,<br />

when a judge draws on “common sense” to interpret or understand the<br />

evidence presented at trial. Nor will we explore “contextual judicial notice”<br />

(i.e., when a judge considers the background or frame of reference in which<br />

the facts of the case are situated). We will instead pretend that the parties<br />

receive the opportunity to make submissions on whether it is appropriate<br />

for the judge to judicially notice the fact, moving the judicial notice out of<br />

the world of the tacit or contextual.<br />

10. Find, supra note 6 at para 48; J.M., supra note 2 at para 31(v).<br />

11. R v Spence, 2005 SCC 71 at para 61 (Spence); J.M., supra note 2 at para 33.<br />

12. J.M., supra note 2 at para 33. <strong>The</strong> literature makes a distinction between<br />

“adjudicative facts,” which relate to the immediate parties; “legislative<br />

facts,” which relate to the policy that drives interpreting and developing<br />

the common law; and “social facts,” which relate to current social realities<br />

that should inform the legislative facts: Elizabeth F Judge, “Curious Judge:<br />

Judicial Notice of Facts, Independent Judicial Research, and the Impact of<br />

the Internet,” in Todd L Archibald et al., eds, Annual Review of Civil Litigation<br />

(Toronto: Thomson Reuters, 2012), 325 at 334–36 (Judge). <strong>The</strong> analysis for<br />

judicial notice applies to all types of facts although legislative and social<br />

facts are less likely to be central to the disposition of the case.<br />

13. J.M., supra note 2 at para 34; Sopinka, supra note 4, § 19.02 at para 19.59.<br />

14. See, e.g., Telus Communications Inc v Vidéotron Ltée, 2021 FC 1127 at para 5<br />

(Telus).<br />

15. <strong>The</strong> City of Edmonton is located in the Province of Alberta: R v Korah, 2011<br />

ABPC 344 at para 8.<br />

16. In Saskatchewan, “grain farming is a six month engagement, saving hauling<br />

grain and farm repairs”: Olfert v Olfert, 2012 SKQB 301 at para 74.<br />

17. Sopinka, supra note 4, § 19.02 at para 19.28.<br />

18. Authorson (Litigation Administrator of) v Canada (Attorney General) 2007<br />

ONCA 501 at para 153, leave to appeal dismissed 2008 CanLII 1388 (SCC).<br />

19. See R v A.P., 1996 CanLII 871 (ONCA).<br />

20. Evidence Act, RSO 1990, c E.23, s 25.<br />

21. Find, supra note 6 at para 49; Sopinka, supra note 4, § 19.02 at para 19.54.<br />

22. Sopinka, supra note 4, § 19.02 at para 19.28: “Also, what facts are judicially<br />

noticeable may change over time.” See also Khodeir, infra note 43 at para 26:<br />

“Courts are nevertheless mindful that there is disagreement about some<br />

aspects of scientific knowledge. <strong>The</strong>y are careful not to take judicial notice<br />

of matters on which science has not reached consensus or which are laden<br />

with value judgments.”<br />

applying the principles of judicial notice with rigour is<br />

increasingly important to maintaining this confidence.<br />

23. Find, supra note 6 at para 48; Spence, supra note 11 at para 53.<br />

24. Sopinka, supra note 4 at § 19.02 at para 19.35.<br />

25. Sopinka, supra note 4 at § 19.02 at para 19.37.<br />

26. Spence, supra note 11 at para 51.<br />

27. For excellent discussions, see E Judge, supra note 12 at 326–27, discussing<br />

the case of U.S. v Bari, 599 F.3d 176 (2d Cir, 2010) and Stephen GA Pitel and<br />

Liam Ledgerwood, “Judicial Notice and the Internet” in Todd L Archibald<br />

et al, eds, Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2018)<br />

25 at 28–30.<br />

28. See Jeffrey Bellin and Andrew Guthrie Ferguson, “Trial by Google: Judicial<br />

Notice in the Information Age” 108 Nw. U. L. Rev. 1137 (2014). (https://<br />

scholarlycommons.law.northwestern.edu/nulr/vol108/iss4/1).<br />

29. “Encyclopedia Britannica Ends Print, Goes Digital,” Reuters, 12 March 2012<br />

30. See, e.g., Sutton v Sutton, 2017 ONSC 3181 (citing ITV Technologies Inc. v WIC<br />

Television Ltd., 2003 FC 1056, aff’d. 2005 FCA 96), providing a common law<br />

test for assessing an internet source.<br />

31. R v Robinson, 2010 ONCJ 576 at paras 25–30.<br />

32. R v Calvert, 2011 ONCA 379 at paras 5, 8 (Calvert).<br />

33. Yates v Fedirchuk, 2011 ONSC 5549 at para 37.<br />

34. See the plan future trips feature, allowing users to select “Depart at” or<br />

“Arrive by” to better estimate the travel time of their specific trip.<br />

35. Calvert, supra note 32 at paras 4, 5, 8.<br />

36. R v Ghaleenovee, 2015 ONSC 1707 (Ghaleenovee) at para 2.<br />

37. Ibid at para 21.<br />

38. See the “image capture” date at the bottom of the Street View image.<br />

39. See “See more dates” in the upper-right-hand corner of the Street View image.<br />

40. R v Snache, <strong>2023</strong> ONSC 2255 at para 329.<br />

41. Ibid at para 327.<br />

42. Telus, supra note 14 at para 5.<br />

43. <strong>The</strong>se comments are found in Khodeir v Canada (Attorney General), 2022 FC<br />

44 at para 25 (Khodeir), referencing the Telus decision.<br />

44. See, e.g., Health Canada, “5G Technology, Cell Phones, Cell Phone<br />

Towers and Antennas” (20 October 20 2022) (https://www.canada.<br />

(available at https://www.reuters.com/article/net-us-encyclopediabritannica-idUSBRE82C1FS20120314).<br />

ca/en/health-canada/services/health-risks-safety/radiation/everyday-things-emit-radiation/cell-phones-towers.html).<br />

45. Another example: Baptiste c R, 2021 QCCA 1064 at para 61: “With respect<br />

to the case at bar, we do not expect judges to surf the Internet in order to establish<br />

or confirm the latest upward or downward crime trends, especially<br />

when they do not notify the parties of their intention to do so.”<br />

46. R v Balen, 2012 ONSC 2209 (Balen).<br />

47. Ibid at para 10.<br />

48. Ibid at para 41.<br />

49. Ibid at para 62. In another case of judicial internet sleuthing, in R v C.D.H.,<br />

2015 ONCA 102, before sentencing, the trial judge “out of curiosity” created<br />

a fake profile on match.com, then accessed a website that contained personal<br />

information of the complainant. <strong>The</strong> trial judge told a police officer that<br />

there was enough information on the site for defence counsel to “hang the<br />

victim.” <strong>The</strong> Court of Appeal for Ontario set aside the acquittals based on<br />

apprehension of bias and lack of impartiality and ordered a new trial.<br />

50. J.M., supra note 2.<br />

51. J.M., supra note 2 at para 76.<br />

52. See, e.g., <strong>The</strong> Advocates’ Society’s Position Paper on Communications<br />

with Testifying Experts and Principles Governing Communications with<br />

Testifying Experts (June 2014), cited with approval in Moore v Getahun, 2015<br />

ONCA 55.<br />

26 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 27

53. See, e.g., the discussion regarding judicial notice of historical facts<br />

in R v Zundel, 1987 CanLII 121 (ONCA) (cited in Spence, supra note 11 at<br />

para 55).<br />

54. Spencer v Canada (Health), 2021 FC 621 (appeal dismissed as moot in <strong>2023</strong><br />

FCA 8) (regarding travel quarantine requirements); R v James Ralph Bauder,<br />

<strong>2023</strong> ONSC 996 at para 11 (the court reviewed media reports provided<br />

by the parties and took judicial notice that the “Freedom Convoy” was<br />

covered by media in Canada and internationally. “Further, there was a<br />

massive amount of communication and internet postings online. This coverage<br />

reflected a broad cross-section of viewpoints about the convoy.”);<br />

Gateway Bible Baptist Church v Manitoba, 2021 MBQB 218 and 2021 MBQB<br />

219 (whether various Manitoba public health orders limited fundamental<br />

rights and freedoms in a constitutionally defensible manner).<br />

55. Consolidated Fastfrate Inc. v 2516295 Ontario Ltd., <strong>2023</strong> ONSC 1005 (the court<br />

was not prepared to take judicial notice that the pandemic caused any inability<br />

of the defendants to pay for services rendered).<br />

56. Milwid v IBM Canada Ltd., <strong>2023</strong> ONSC 490 at para 28 (the effect of the<br />

pandemic on wrongful terminations and on reasonable notice periods);<br />

Watson v Canadian Union of Public Employees, <strong>2023</strong> FCA 48 (failure to grieve<br />

Air Canada’s mandatory vaccination employment policy); Croke v VuPoint<br />

Systems Ltd., <strong>2023</strong> ONSC 1234 (employee terminated for failure to comply<br />

with mandatory vaccine policy).<br />

57. In R v Ivarone, <strong>2023</strong> ONCJ 69, the Ontario Court of Justice reviewed case<br />

law regarding the effect of COVID-19 shutdowns on delays to criminal<br />

trials.<br />

58. See, e.g., R.S.P. v H.L.C., 2021 ONSC 8362; L.B. v I.L., 2020 ONCJ 336;<br />

Ribeiro v Wright, 2020 ONSC 1829.<br />

59. Sopinka, supra note 4, § 19.02 at para 19.25.<br />

60. R v Morgan, 2020 ONCA 279 (heard April 27, 2020).<br />

61. Ibid at para 8.<br />

62. L.M.S. v J.D.S., 2020 ABQB 726.<br />

63. Ibid at para 19.<br />

64. Khodeir, supra note 43 at para 1.<br />

65. Khodeir, supra note 43 at para 37.<br />

66. Ibid.<br />

67. Davies v Todd, 2022 ONCJ 178 at paras 39–44 (at the time the only approved<br />

pediatric age groups for COVID-19 vaccinations).<br />

68. Dyquiangco Jr. v Tipay, 2022 ONSC 1441; Rashid v Ayanesov, 2022<br />

ONSC 3401.<br />

69. J.N. v C.G., <strong>2023</strong> ONCA 77 (J.N.). (Co-author Erin Pleet was co-counsel to<br />

the father C.G. for this appeal).<br />

70. J.N. v C.G., 2022 ONSC 1198 at para 67.<br />

71. J.N. supra note 69 at para 16, citing the motion judge at para 79.<br />

72. Ibid at para 29.<br />

73. Citing the Supreme Court in R v Find, supra note 6 at para 49.<br />

74. See R v A.P., 1996 CanLII 871 (ONCA).<br />

75. Evidence Act, RSO 1990, c E.23, s 25.<br />

76. J.N., supra note 69 at para 45.<br />

77. Conversely, the Saskatchewan Court of Appeal in O.M.S. v E.J.S., <strong>2023</strong><br />

SKCA 8, noted that in that specific case, notwithstanding that the mother<br />

did not accept that the vaccine was safe and efficacious, the Court of Appeal<br />

sided with the mother because in this instance, relating to this specific<br />

child, there was evidence of a risk of self-harm and harm to her mental<br />

health if she was required to be vaccinated.<br />

78. For example, “A finding on the evidence led by the parties, for example,<br />

that the Newfoundland deficit in 1988 was $5 million whereas anyone<br />

could ascertain from the public accounts that it was $120 million would<br />

create a serious anomaly.” Newfoundland (Treasury Board) v NAPE, 2004<br />

SCC 66 at para 57.<br />



At Lawson Lundell, our Litigation & Dispute Resolution Group stands as a<br />

beacon of trust and excellence in the industry. With deep-rooted commitment<br />

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28 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

Vancouver | Kelowna | Calgary | Yellowknife<br />



Gaining the edge in<br />

multi-dimensional litigation<br />

In ecology, the “edge effect” describes the change in population<br />

at the boundary of two ecosystems. Along the border<br />

of these differing worlds lies a richness of biodiversity. Each<br />

living organism can draw from the core of the neighbouring<br />

habitats. New life forms emerge.<br />

<strong>The</strong> cellist Yo-Yo Ma has talked about the edge effect in the<br />

context of the arts. We see breakthroughs in creativity when<br />

artists travel across borders – geographical, cultural, or musical<br />

– and interact with those steeped in different genres and traditions.<br />

Just as they exist in ecology and the arts, edge effects exist<br />

in the law – to a greater extent than we often appreciate. As<br />

lawyers, we tend to concentrate our efforts within narrow<br />

practice areas. We are solicitors – tax, securities, competition,<br />

intellectual property – or barristers. If we are barristers, we<br />

are criminal or civil litigators; trial lawyers or appellate<br />

advocates. Within criminal law, we focus on impaired-driving<br />

cases, drug prosecutions, sexual assault trials, or whitecollar<br />

crime. As civil litigators, we may handle only securities<br />

or professional negligence or corporate disputes. Specialization<br />

drives us into silos.<br />

Our clients, however, don’t come to us with such neatly<br />

packaged problems. <strong>The</strong>y don’t always show up at our office<br />

with a criminal law problem, a civil litigation problem, or an<br />

administrative law problem. <strong>The</strong>y show up with a problem.<br />

Often that problem has multiple dimensions. Our ability<br />

to solve such problems depends on our exposure and openness<br />

to the ideas of those who inhabit different professional<br />

ecosystems.<br />

Together with our partner Paul Le Vay, we recently defended<br />

the former CEO and chair of CannTrust against charges of<br />

insider trading, securities fraud, and making materially<br />

misleading statements/omissions under the Securities Act. This<br />

case perfectly illustrates the multi-faceted nature of the controversies<br />

in which our clients are often embroiled.<br />

Our client’s challenges were multi-dimensional in both procedure<br />

and substance. <strong>The</strong> charges concerned securities law – a<br />

specialized and complex regulatory regime. <strong>The</strong> alleged undisclosed<br />

material fact was unlicensed growing under the Cannabis<br />

30 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

Gerald Chan and Carlo Di Carlo<br />

Regulations (which allegation was completely disproven at<br />

trial). This concerned a different area of regulation altogether.<br />

<strong>The</strong> case then moved through different procedural worlds. It<br />

originated in the employment context as our client confronted<br />

an internal investigation conducted by a special committee of<br />

the board of directors. From there, it evolved into a class action<br />

when the affected investors sued under the secondary market<br />

liability provisions of the Securities Act. <strong>The</strong> company then<br />

sought protection under the Companies’<br />

Creditors Arrangement Act, which forced<br />

the parties to resolve their disputes as an<br />

insolvency matter on the Commercial List.<br />

Eventually, after a lengthy investigation<br />

by the Ontario Securities Commission’s<br />

Joint Serious Offences Team and<br />

the RCMP Integrated Market Enforcement<br />

Team, the OSC laid charges under<br />

section 122 of the Securities<br />

Act. This moved the case into<br />

the Ontario Court of Justice,<br />

where 95 percent of the criminal<br />

cases in the province<br />

are completed. <strong>The</strong> rules of<br />

criminal procedure governed.<br />

A proper defence required<br />

a legal team well versed in<br />

the rules of evidence and the<br />

protections in the Charter of<br />

Rights and Freedoms, as well<br />

as the underlying securities<br />

and regulatory issues. Each<br />

of the three defendants had the benefit<br />

of such a team – each equipped with a<br />

diversity of expertise.<br />

<strong>The</strong> benefits of having a multi-varied<br />

team revealed themselves early in the<br />

life of the case. <strong>The</strong> OSC’s disclosure<br />

consisted of hundreds of thousands of<br />

documents and millions of pages. To<br />

process everything efficiently, the defence<br />

had to master e-discovery – specifically,<br />

the data management platform Relativity.<br />

This is more often the domain of civil<br />

and commercial litigators, whose cases<br />

tend to be more document intensive,<br />

than criminal defence counsel.<br />

Meanwhile, the charges related to the<br />

alleged non-disclosure of a material fact.<br />

Defending these charges properly required<br />

a thorough understanding of materiality<br />

as a concept in securities regulation –<br />

and how expert evidence (e.g., from<br />

economists and event studies) could establish<br />

its existence (or absence). This is<br />

the stock in trade of securities litigators.<br />

To the surprise of the criminal defence<br />

lawyer on the team, materiality had not<br />

been defined uniformly in the Securities<br />

Act. In some provisions, it had been interpreted<br />

to mean a fact that would “reasonably<br />

be expected to have a significant<br />

effect on the market price or value of the<br />

securities” (the “market impact” test). In<br />

other provisions, it had been interpreted<br />

to mean a fact that might influence a reasonable<br />

investor in their decision making<br />

(the “reasonable investor” test) – a lower<br />

standard than the market impact test.<br />

Remarkably … the average person<br />

recalls 87 percent of information<br />

presented visually, but only 10 percent<br />

of information presented with words.<br />

<strong>The</strong> lack of uniformity had long troubled<br />

securities lawyers (as well as class<br />

action lawyers dealing with the concept<br />

of materiality in shareholder class<br />

actions brought under Part XXIII.1 of the<br />

Securities Act 1 ).<br />

<strong>The</strong> criminal lawyer viewed the issue<br />

of materiality through the lens of section<br />

7 of the Charter and was able to give constitutional<br />

expression to this problematic<br />

distinction between the market impact<br />

and reasonable investor standards.<br />

Section 7 is engaged any time liberty is<br />

at stake, as is nearly always the case in<br />

criminal proceedings. <strong>The</strong> “principles<br />

of fundamental justice” under section 7<br />

demand that laws – including the distinctions<br />

they draw – not be arbitrary in<br />

light of their statutory purpose.<br />

Does it make sense that the market impact<br />

test would apply to tell reporting<br />

issuers when to disclose material facts<br />

(s 56(1)) and material changes (s 75(1)),<br />

and yet quasi-criminal liability could be<br />

imposed for making a statement that is<br />

misleading in a material respect (s 122(1))<br />

on the lower reasonable investor standard?<br />

If not, the statutory distinction is<br />

arbitrary and constitutionally flawed.<br />

That became one of the critical planks<br />

in our client’s defence at trial, although<br />

fortunately we never had to rely on it<br />

because all defendants were acquitted<br />

before it got to that stage.<br />

This was just one example of how different<br />

members of the defence team were<br />

able to bring different perspectives to<br />

bear on an issue that enhanced the overall<br />

defence position. No one lawyer can<br />

master all universes. Litigation is a team<br />

sport. Multi-dimensional cases of this<br />

sort are best tackled by groups composed<br />

of lawyers with varied backgrounds –<br />

each curious and humble enough to listen<br />

to and learn from their colleagues.<br />

One may be an expert in the culture of<br />

the forum and the procedural rules; another<br />

an expert in the substantive area of<br />

the law. Both play critical roles in the devising<br />

and execution of the trial strategy.<br />

This sort of lawyering not only serves<br />

the client better but also makes for a<br />

more enriching professional experience.<br />

Civil and criminal litigators have much<br />

to learn from one another, given their<br />

respective advantages in different<br />

aspects of advocacy.<br />

In the preparation of our<br />

defence, we relied on criminal<br />

case law (R v Handy 2 on<br />

propensity evidence) just<br />

as we relied on civil case<br />

law (Bruno v Dacosta 3 on the<br />

rules governing joint books<br />

of documents). <strong>The</strong> rules of<br />

evidence are nearly always<br />

propounded in criminal cases<br />

because of the frequency with<br />

which the latter go to trial.<br />

But too often criminal lawyers read only<br />

cases that begin with “R v,” leading them<br />

to overlook important jurisprudential<br />

developments in other areas that may<br />

affect their practice.<br />

In our firm, we had the luxury of being<br />

able to assemble a team with criminal,<br />

securities, and commercial litigation experience<br />

in house. But there are other<br />

ways of achieving the same goal across<br />

different firms. Volunteering for legal<br />

associations outside your narrow practice<br />

bubble, cultivating your curiosity<br />

in areas of the law other than your own,<br />

and reading widely so you can issue spot<br />

enough to identify the known unknowns<br />

are just a few ways to escape the trap of<br />

siloed specialization.<br />

We don’t live in entirely separate<br />

worlds. We come together at events organized<br />

by groups such as <strong>The</strong> Advocates’<br />

Society and run into one another<br />

at Osgoode Hall. But the more opportunities<br />

we can find to do cases together, the<br />

better we will all be for it; the more creative<br />

our advocacy will become, and the more<br />

we will be able to gain the edge for our<br />

clients in multi-dimensional litigation.<br />

Notes<br />

1. See Miller v FSD Pharma Inc, 2020 ONSC 4054 at<br />

paras 53ff.<br />

2. 2002 SCC 56.<br />

3. 2020 ONCA 602.<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 31


Stay in your lane?<br />

Recent appellate scrutiny of interveners<br />

Jennifer McAleer, Kimberly Potter, and Daniella Murynka<br />

Recent decisions from the Supreme Court of Canada and<br />

the Federal Court of Appeal have sparked conversation<br />

in the legal community about the role of interveners on<br />

appeal, as well as how the role of interveners intersects with the<br />

role of the judiciary.<br />

Background to intervention at the Supreme Court of Canada<br />

<strong>The</strong> rise of interventions at the Supreme Court coincides with<br />

the coming into force of the Charter in the 1980s. Before that<br />

time, it was rare to receive leave to intervene. 1 Intervention<br />

then became “routine.” In a paper published in 2020, Geoffrey<br />

D. Callaghan wrote that, since 2000, “the percentage of appeals<br />

featuring at least one intervenor factum has not dropped below<br />

35 per cent (in 2001), and was on average 55 per cent.” 2 In our<br />

review of reported Supreme Court decisions from 2021 to <strong>2023</strong>,<br />

total intervention rates have been above that average, with<br />

particularly high rates of intervention in civil matters.<br />

83<br />

Percentage of cases<br />

with at least one intervener<br />

82<br />

100<br />

Total Criminal Civil<br />

61<br />

56<br />

<strong>2023</strong> – Jan. 2022 2021<br />

to May<br />

Motions for intervention at the Supreme Court of Canada<br />

are governed by Rules 55–59 of the Rules of the Supreme Court of<br />

Canada. 3 <strong>The</strong>se rules require prospective interveners to identify<br />

the submissions they propose to make with respect to the issues<br />

on appeal, including how those submissions will be “useful to<br />

the Court and different from those of the other parties.” <strong>The</strong><br />

rules are supplemented by two Supreme Court notices to the<br />

profession, which reiterate that the purpose of an intervention<br />

is to provide views different from those of the parties. 4 An<br />

77<br />

59<br />

42<br />

75<br />

intervener is not permitted to raise “new issues” on appeal, unless<br />

a judge orders otherwise – the focus of the Supreme Court’s<br />

recent comments on interveners, discussed below.<br />

<strong>The</strong> Supreme Court’s recent comments on interveners<br />

Our starting point is R v Sharma, a case involving the unavailability<br />

of conditional sentences for certain criminal offences. 5<br />

<strong>The</strong> respondent, Cheyenne Sharma, challenged the constitutionality<br />

of certain Criminal Code provisions under sections<br />

7 and 15 of the Charter. With respect to section 15, Ms. Sharma<br />

argued that the impugned provisions contributed to increased<br />

imprisonment of Indigenous offenders relative to<br />

non-Indigenous offenders. <strong>The</strong> appeal involved 21 interveners,<br />

many representing Indigenous interests.<br />

A majority of the Court concluded that the impugned provisions<br />

were Charter-compliant, with Karakatsanis, Martin, and<br />

Jamal JJ dissenting. In allowing the appeal, and writing for<br />

the majority, Brown and Rowe JJ concluded that the Court of<br />

Appeal for Ontario had failed to “clearly delineate” Ms. Sharma’s<br />

evidentiary burden at each step of the section 15 analysis – and<br />

that, in particular, Ms. Sharma had not demonstrated a causal<br />

connection between the impugned provisions and a disproportionate<br />

impact on Indigenous offenders.<br />

As part of this discussion, Brown and Rowe JJ criticized the<br />

interveners, who had adduced “fresh evidence” before the<br />

Court of Appeal, writing, “We note here, in passing, our serious<br />

concern with interveners supplementing the record at the<br />

appellate level … Interveners creating a new evidentiary record<br />

at the appellate level undermines the trial process. That is<br />

not how our system of justice, including constitutional adjudication,<br />

is designed to work.” 6<br />

Writing for the dissent, Karakatsanis J was critical of the majority’s<br />

section 15 analysis, writing that the “thrust” of it was<br />

to “raise the bars at each step of the test,” including by “diminishing<br />

the roles of interveners …, critiquing their use of social<br />

science and other legislative fact evidence that this Court has<br />

regularly relied upon.” 7<br />

A few months later, the Court released reasons in R v McGregor,<br />

a case where it was invited to consider the extraterritorial application<br />

of the Charter. 8 <strong>The</strong> appellant, Corporal McGregor,<br />

a non-commissioned member of the Canadian Armed Forces,<br />

was posted in Washington, DC, living in Alexandria, Virginia.<br />

Corporal McGregor was the subject of an investigation<br />

by the Canadian Forces National Investigation Service (CFNIS)<br />

in relation to the offences of voyeurism and possession of a<br />

device for surreptitious interception of private communications.<br />

Subsequently, the CFNIS sought the help of the<br />

Alexandria Police Department to obtain a warrant under<br />

Virginia law to search Corporal McGregor’s residence. <strong>The</strong><br />

CFNIS and Alexandria police members then searched Corporal<br />

McGregor’s home, discovering, among other things, evidence<br />

relating to sexual assault.<br />

Subsequently, a military judge concluded that the Charter<br />

did not apply extraterritorially, and he admitted the evidence<br />

relating to sexual assault. <strong>The</strong> judge convicted Corporal<br />

McGregor of two counts of voyeurism, one count of possession<br />

of a device for surreptitious interception of private communications,<br />

one count of sexual assault, and one count of<br />

disgraceful conduct. <strong>The</strong> Court Martial Appeal Court agreed<br />

with these conclusions.<br />

<strong>The</strong> Supreme Court dismissed Corporal McGregor’s appeal<br />

but released three sets of reasons. Côté J, writing for the majority<br />

of the Court, stated that the appeal raised two main issues<br />

– whether the Charter applied extraterritorially, and, if so,<br />

whether Corporal McGregor’s Charter rights were infringed.<br />

In setting the context for these issues, Côté J observed that R v<br />

Hape 9 governs “the territorial reach and limits of the Charter”;<br />

under Hape, the Charter generally cannot apply to Canadian<br />

authorities engaged in an investigation outside of Canada,<br />

subject to certain exceptions. 10<br />

In McGregor, both parties relied on Hape but disagreed on its<br />

effect when applied to the facts of the case. Corporal McGregor<br />

argued that Hape’s exceptions applied, such that the Charter did<br />

also; the Crown argued that this case was a “straightforward<br />

application of Hape,” and that the Charter did not apply to the<br />

search. 11 As described in Côté J’s reasons, the interveners focused<br />

“on whether the Hape framework should be reaffirmed,<br />

modified, or overruled.” 12<br />

Despite framing the first issue on appeal as “Did the Charter<br />

apply extraterritorially to the CFNIS investigators in the search<br />

of Cpl. McGregor’s residence in Alexandria, Virginia?” 13 Côté<br />

J ultimately concluded that it was unnecessary to deal with<br />

the issue of extraterritoriality; this is because, even if the<br />

Charter did apply, the service’s actions “conformed to it.” 14 In<br />

so holding, Côté J was critical of those interveners that asked<br />

the Court to overturn Hape, agreeing with the earlier comments<br />

of Brown and Rowe JJ in Sharma:<br />

In this instance, only some interveners ask us to overturn<br />

Hape; in doing so, they go beyond their proper role. Doing<br />

what they are asking would mean deciding an issue<br />

that is not properly before us … I would add that, as my<br />

colleagues Brown and Rowe JJ. noted in R. v. Sharma, 2022<br />

SCC 39, at para. 75, it is inappropriate for interveners to<br />

supplement the evidentiary record at the appellate level. 15<br />

In concurring reasons, Karakatsanis and Martin JJ agreed<br />

that the appeal should be dismissed but also “comment[ed] on<br />

the central question directly at issue in [the] appeal,” the extraterritorial<br />

application of the Charter in the circumstances:<br />

This was clearly the primary and threshold issue argued<br />

by the parties and multiple interveners, it was the reason<br />

leave to appeal was sought, and we received full submissions<br />

on both constitutional and international law. <strong>The</strong> extraterritorial<br />

application of the Charter is squarely before<br />

32 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 33

the Court and it is an issue that arises<br />

infrequently, may easily escape<br />

judicial review, and has been subject<br />

to significant and sustained criticism<br />

by experts in international law. 16<br />

In their reasons, Karakatsanis and<br />

Martin JJ also disagreed with their colleagues’<br />

views that the interveners in this<br />

case overstepped their “proper role,” 17<br />

characterizing the interveners’ positions<br />

not as raising new issues but as proposing<br />

a “different view of the core legal<br />

issue of whether the Charter applied to<br />

the conduct of the CFNIS officers”: 18<br />

Indeed, these interveners were<br />

granted leave to intervene on this<br />

basis: when seeking leave, they all<br />

clearly signaled their intent to criticize<br />

Hape and suggest revisions to<br />

its framework, with the Canadian<br />

Constitution Foundation specifically<br />

stating Hape must be revisited …<br />

To hold that we cannot engage with<br />

this different view, simply because<br />

the parties themselves did not propose<br />

it, ignores the purpose of<br />

intervener submissions as set out<br />

in the Notice to the Profession and<br />

runs contrary to this Court’s past<br />

practice in decisions that have relied<br />

on the frameworks proposed by<br />

interveners. 19<br />

Justice Rowe authored concurring<br />

reasons primarily to disagree with the<br />

analysis of Karakatsanis and Martin JJ<br />

and discuss the proper scope of an intervener’s<br />

role, writing:<br />

[I]nterveners can often make important<br />

contributions. In order to do so,<br />

however, interveners must operate<br />

within recognized limits. <strong>The</strong> Rules<br />

of the Supreme Court of Canada clearly<br />

state these limits, and this Court has<br />

issued practice directions, more than<br />

once, to remind potential interveners<br />

of the boundaries they must respect<br />

…. [An intervener] exceeds its<br />

role when it seeks to alter the nature<br />

of the litigation by usurping the role<br />

of the parties, expanding the issues<br />

before the Court, or presenting new<br />

evidence. 20<br />

Reaction from the legal community<br />

Following the release of McGregor, some<br />

participants in Canada’s legal community<br />

spoke out about the decision’s comments<br />

on interveners. In a press release<br />

titled “Supreme Court Dodges Key Issue<br />

in R. v. McGregor,” the Canadian Civil<br />

Liberties Association wrote:<br />

<strong>The</strong> CCLA is concerned about some<br />

of the comments the majority and<br />

one concurring opinion made about<br />

interveners, particularly since the interveners<br />

had made their intentions<br />

and the scope of their arguments<br />

known when seeking leave to intervene.<br />

In being granted leave to intervene,<br />

CCLA and others assumed<br />

that there was nothing the Court<br />

considered to be “off-side” about<br />

their interventions. Interveners can<br />

play a significant role by providing<br />

valuable and different submissions<br />

to bring a broader perspective before<br />

the Court. 21<br />

People also took to Twitter to discuss<br />

the case. Stephen Aylward, a partner at<br />

Stockwoods LLP, tweeted, “Twice in the<br />

last 4 months the @SCC_eng has taken<br />

swipes at interveners. Interveners go<br />

beyond the issues framed by the parties<br />

because the Court itself does so. SCC<br />

appeals are tough. <strong>The</strong> Court should be<br />

encouraging lawyers who offer assistance<br />

(for free).” 22 In a similar vein, Paul-Erik<br />

Veel, partner at Lenczner Slaght LLP,<br />

tweeted, “Who cares if interveners expand<br />

the issues? <strong>The</strong> court can ignore<br />

them if they want, and highlighting different<br />

issues can help contextual [sic].” 23<br />

Response from the<br />

Federal Court of Appeal<br />

In March of this year, Stratas JA sat as motions<br />

judge in Le-Vel Brands, LLC v Canada<br />

(Attorney General), a motion by the<br />

Canadian Health Food Association and<br />

the Direct Sellers Association of Canada<br />

for leave to intervene in an appeal<br />

considering the reasonableness of the<br />

Minister of Health’s interpretation of the<br />

meaning of “natural health product.” 24<br />

Justice Stratas dismissed the motion;<br />

however, he included “[c]oncluding observations”<br />

that were “not directed” at<br />

the proposed interveners: 25 “<strong>The</strong> Court<br />

is aware of recent criticism concerning<br />

recent judicial comments about the proper<br />

limits to intervention: see, e.g., R. v.<br />

McGregor, <strong>2023</strong> SCC 4 at paras. 98–115,”<br />

Stratas JA wrote. “This criticism is misplaced.<br />

It calls for response.” 26<br />

Justice Stratas used these concluding<br />

remarks to link the proper scope of intervention<br />

to what he sees as the proper<br />

role of the judiciary in deciding cases.<br />

Justice Stratas has written on the proper<br />

role of the judiciary in the past. For<br />

example, in the 2018 case Sharif v Canada<br />

(Attorney General), he wrote for the court:<br />

“We apply the real meaning of laws to<br />

the facts before us, neutrally and objectively,<br />

logically and dispassionately,<br />

without fear or favour, and come to a<br />

result; we do not skew the result to fit<br />

what we think is right or best, to advance<br />

values we prefer, or to meet the wishes<br />

and expectations of others.” 27<br />

This time, Stratas JA reiterated these<br />

comments, tying them to the proper purposes<br />

of intervention:<br />

[S]ome see legislative interpretation<br />

as an open-ended task where courts<br />

are free to do “the right thing,” adopt<br />

the “good ideas” of academics and<br />

experts, and express what “most”<br />

would think is “right” or “reasonable.”<br />

Others feel that interveners,<br />

with their “valuable perspectives,”<br />

should be able to place before the<br />

Court academic articles full of untested<br />

social science assertions that<br />

are “right.” Still others think that<br />

courts should wade in where legislatures<br />

fear to tread in order to correct<br />

“injustices.”<br />

…<br />

Interveners admitted into our proceedings<br />

usually are those who have<br />

shown an understanding of the judiciary’s<br />

proper role. <strong>The</strong>y advocate<br />

legal positions consistent with that<br />

role. <strong>The</strong> key is to understand the<br />

nature of that role. 28<br />

It is noteworthy that Stratas JA took<br />

the opportunity in Le-Vel to respond to<br />

popular criticism of McGregor. Although<br />

Stratas JA did not reference the source of<br />

the criticism at issue, Mark Rubenstein<br />

of Shepherd Rubenstein tweeted, “Justice<br />

Stratas is reading #lawtwitter.” 29<br />

Justice Stratas’s comments are also noteworthy<br />

in that they were not, it appears,<br />

directly grounded in the submissions of<br />

the parties before the court on that motion.<br />

In this case, Conway Baxter Wilson<br />

LLP/s.r.l. acted for the proposed interveners.<br />

In a tweet, Natalia Rodriguez, a<br />

partner at that firm, wrote as follows, replying<br />

to Mr. Rubenstein’s earlier tweet:<br />

This was my colleague’s motion. He<br />

said criticism of judicial comments<br />

re intervention did not come up at<br />

the hearing or in the submissions at<br />

all. It seems to have come out of left<br />

field ... an odd place to respond to<br />

public perception unrelated to the<br />

case at bar … 30<br />

Notes<br />

1. Amanda Jane Burgess, “Intervenors Before the Supreme Court<br />

of Canada, 1997–1999: A Content Analysis” (master’s thesis,<br />

University of Windsor, 2000).<br />

2. Geoffrey D Callaghan, “Intervenors at the Supreme Court of<br />

Canada” (2020) 43:1 Dal LJ at 34.<br />

3. SOR/2002-156.<br />

4. March 2017 – Allotting Time for Oral Argument; November 2021<br />

– Interventions.<br />

5. 2022 SCC 39.<br />

6. Sharma at para 75.<br />

7. Sharma at para 205.<br />

8. <strong>2023</strong> SCC 4.<br />

9. 2007 SCC 26.<br />

10. McGregor at para 18.<br />

11. Appeal Factum of the Respondent, Her Majesty the Queen at para<br />

51; online at https://www.scc-csc.ca/case-dossier/info/af-maeng.aspx?cas=39543.<br />

12. McGregor at para 3.<br />

13. McGregor at para 17.<br />

14. McGregor at para 5.<br />

15. McGregor at paras 23–24.<br />

16. McGregor at para 47.<br />

17. McGregor at para 81.<br />

18. McGregor at para 81.<br />

19. McGregor at para 81.<br />

20. McGregor at paras 96–115.<br />

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21. Online at https://ccla.org/criminal-justice/supreme-court-dodgeskey-issue-in-r-v-mcgregor/.<br />

22. Stephen Aylward (@SGAylward), Twitter, February 19, <strong>2023</strong>, 2:36 p.m.<br />

23. Paul-Erik Veel (@PaulErikVeel), “Controversial(?) take: 1) Who<br />

cares if interveners expand the issues? <strong>The</strong> court can ignore them<br />

if they want, and highlighting different issues can help contextual.<br />

2) Most interveners should only be permitted to file written<br />

argument, but intervention should be almost automatic.” Twitter,<br />

February 20, <strong>2023</strong>, 11:06 a.m.<br />

24. <strong>2023</strong> FCA 66 [Le-Vel].<br />

25. Le-Vel at para 30.<br />

26. Le-Vel at para 31.<br />

27. 2018 FCA 205 at para 51.<br />

28. Le-Vel at paras 33, 35.<br />

29. Mark Rubenstein, (@mrubenst), “Justice Stratas is reading<br />

#lawtwitter. decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/<br />

521139/index.do.” Twitter, March 24, <strong>2023</strong>, 8:13 p.m.<br />

30. Natalia Rodriguez (@nurodrig19), Twitter, March 24, <strong>2023</strong>, 10:48 p.m.<br />

34 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 35


11 things common law lawyers<br />

should know about the civil law<br />

<strong>The</strong> author thanks Andrew Hamilton for translating his<br />

ideas clearly.<br />

Although lawyers outside the Province of Quebec know<br />

that the judicial system works differently here, that<br />

doesn’t always mean they have any real appreciation<br />

of the differences. While the two systems share a number<br />

of traits, continue to move closer together, and influence each<br />

other through Supreme Court jurisprudence (see, for example,<br />

the continued expansion of good faith between contracting parties<br />

in the common law 1 ), a number of important differences<br />

between the common law system and Quebec civil law remain.<br />

Doug Mitchell<br />

In this article, we present a number of concrete examples<br />

that lawyers may regularly come across which illustrate these<br />

differences.<br />

1. <strong>The</strong>re is no common law in the civil law system<br />

<strong>The</strong> Civil Code of Quebec is a statute that provides the substantive<br />

law of the province, governing core principles of private<br />

law (both contractual and extra-contractual obligations),<br />

law of successions, trust law, family law, property law, certain<br />

rules of evidence, and private international law, among other<br />

topics. Although decisions that interpret the code are cited before<br />

the court, they are not seen to “create law” in the same<br />

way that common law decisions do.<br />

Prior decisions are also not the sole authority on interpretation<br />

of the Civil Code (or other laws). Authors’ commentary,<br />

known as “doctrine,” is significantly more authoritative in the<br />

civil law. Prior decisions of higher courts are also not seen as<br />

binding a court in the same way that they do in the common<br />

law, though judges are still generally reluctant to disagree with<br />

higher courts and risk being summarily overturned. That said,<br />

disagreements among trial court judges are not especially rare<br />

– there have even been cases of disagreements over the interpretation<br />

of a single provision between two judgments by the<br />

same judge. 2<br />

2. Specific performance is not an exceptional remedy in Quebec<br />

Although the articles that authorize it – articles 1590 and 1601<br />

of the Civil Code – refer only to obligations which are not met,<br />

in practice specific performance is most commonly demanded<br />

or ordered in cases where there have been problems in the execution<br />

of a contract. Article 1601 narrows the applicability of<br />

specific performance to “cases which admit of it,” 3 giving judges<br />

some discretion in deciding whether to order it, but it is typically<br />

viewed as the default remedy for contractual obligations<br />

that have not been fully executed.<br />

Quebec courts are aware of this difference between juridical<br />

systems. In a 1997 Superior Court decision, the court wrote<br />

that “[i]n British and American common law, despite recent<br />

developments, the specific performance recourse is still an<br />

exceptional remedy and the claim for damages is the general<br />

rule. In Quebec … the role of the two remedies for contractual<br />

breach is the reverse: specific performance<br />

is now the rule while damages is<br />

the exception.” 4 As such, this is one of a<br />

limited number of areas where Quebec<br />

courts will not even consider jurisprudence<br />

from other Canadian jurisdictions.<br />

3. A right exercised under a contract can<br />

be considered a fault or can be considered<br />

to be tortious conduct even if the conduct<br />

is specifically authorized within<br />

the contract<br />

Quebec law requires that rights under a<br />

contract are exercised in good faith. <strong>The</strong><br />

exercise of a right can therefore be found<br />

to be abusive, and to attract liability. This<br />

is the case even with specifically authorized<br />

conduct.<br />

This principle was most famously<br />

enunciated in the 1990 Supreme Court<br />

of Canada decision in Houle v Canadian<br />

National Bank. 5 In that case, the bank<br />

was aware that the plaintiffs were in the<br />

process of selling their shares of their<br />

privately held company but decided to<br />

immediately call for the company’s line<br />

of credit to be repaid on one hour’s notice<br />

and liquidated substantially all the<br />

company’s assets within three hours.<br />

Although the Supreme Court recognized<br />

that the contract between the bank and<br />

the company allowed for the bank to<br />

realize on its securities without notice, it<br />

held that “this seemingly absolute right<br />

must be tempered by the principle of reasonable<br />

delay, and what constitutes the<br />

abuse of contractual rights in this case<br />

is the absence of such reasonable delay<br />

to allow the company to pay after it was<br />

put in default.” 6<br />

4. In defamation, the truth of the statement<br />

is not an absolute defence<br />

Consistent with the law that all acts must<br />

be undertaken in good faith, defamation<br />

can be found in Quebec even where the<br />

content of the statement is true if it was<br />

motivated by bad faith intentions. In<br />

particular, if the motivation for spreading<br />

truthful information was to damage<br />

the reputation of another, then the transmitter<br />

can be held liable for the damage<br />

that the victim’s reputation suffered.<br />

For example, in Srivastava c Hindu<br />

Mission of Canada (Quebec) Inc., 7 certain<br />

individual defendants who were directors<br />

of a Hindu temple came to believe<br />

that a priest employed at the temple was<br />

having an affair with a member of the<br />

temple. <strong>The</strong>ir repeated statements to this<br />

effect to other members as well as their<br />

repeated offers to play a wiretapped<br />

phone call were found to be defamatory<br />

without the court ruling on the veracity<br />

of the allegations.<br />

5. An employee or an agent owes a duty<br />

of loyalty to their employer or principal,<br />

and everything received in the context of<br />

their mandate or employment must be<br />

given over to the employer<br />

This principle is clear in articles 2138<br />

and 2146 of the Civil Code. 8 This duty of<br />

loyalty means that the mandatary must<br />

always act in the best interest of the mandator,<br />

and not in their own best interests.<br />

<strong>The</strong>refore, irrespective of whether<br />

damages were suffered by the employer<br />

or principal, the victim, employer, or<br />

principal is entitled to disgorgement.<br />

All profits derived from the mandate are<br />

the property of the mandator, as the<br />

mandatary was only acting to collect<br />

profits for them – not for themselves.<br />

This principle applies equally to an<br />

employment relationship and the author’s<br />

firm is currently awaiting a judgment<br />

from the Supreme Court in a case that<br />

raises the question of whether this principle<br />

should be applied to directors of<br />

a corporation. 9<br />

6. In employment matters, the employee<br />

cannot renounce in advance the right to<br />

any amounts due upon severance<br />

Even if an employment contract provides<br />

for a specific severance in the context of<br />

dismissal without cause, the employee<br />

is not bound by this amount and can request<br />

more. 10 This provision of the Civil<br />

Code is a “public order” provision, meaning<br />

parties cannot contract out of it. 11<br />

That said, this provision does not prevent<br />

an employer and employee from<br />

coming to an agreement at the time of<br />

dismissal on the amount of notice that<br />

is due. Severance agreements remain<br />

possible under Quebec law 12 but the law<br />

simply requires that the conditions of the<br />

dismissal, the amount of time worked<br />

before dismissal, and other relevant factors<br />

be known before a notice period is calculated<br />

or agreed upon.<br />

7. In contracts of insurance, defence<br />

costs do not erode the policy limits<br />

<strong>The</strong> Civil Code explicitly provides that<br />

“[l]egal costs and expenses resulting<br />

from actions against the insured, including<br />

those of the defence, and interest on<br />

the proceeds of the insurance are borne<br />

by the insurer over and above the proceeds<br />

of the insurance.” 13 This has obvious<br />

effects on the incentives of insurance<br />

companies to have long, expensive<br />

procedures.<br />

As a general rule, found in the same<br />

article of the Civil Code, the insurer is<br />

required to take up the insured’s defence<br />

for any act or omission covered by their<br />

insurance. If the insurer does not take up<br />

the insured’s defence when asked to do<br />

so and when it is legally obligated to do<br />

so, the insurer must reimburse the fees<br />

that the insured paid in support of their<br />

own defence, but not fees that the insured<br />

paid pursuing the insurer for their<br />

fees or to try to force the insurer to take<br />

up their defence. 14<br />

8. If there is a contractual regime in play,<br />

a plaintiff may not invoke a claim based<br />

on extra-contractual liability<br />

Article 1458 of the Civil Code provides<br />

that no party to a contract “may … avoid<br />

the rules governing contractual liability<br />

by opting for rules that would be more<br />

favourable to them.” 15 <strong>The</strong> parties must<br />

instead proceed through the realm of<br />

contractual liability in deciding the damages<br />

owed between them.<br />

That said, a fault in the pre-contracting<br />

phase (i.e., after an offer has been made<br />

or negotiations have been entered into)<br />

gives rise only to extra-contractual liability,<br />

since the contract was not yet formed<br />

at the time of the fault. 16 Similarly, a fault<br />

to a third party, which is discussed in the<br />

following paragraph, is founded on extra-contractual<br />

liability because the contract<br />

cannot bind parties which are not<br />

party to it. <strong>The</strong> third party is therefore<br />

entitled to seek extra-contractual relief<br />

and to ignore any clauses in the contract<br />

that generally limit the liability of one of<br />

the contracting parties.<br />

9. A violation of a contractual obligation<br />

to a co-contracting party can constitute<br />

a tort to a third party if that conduct<br />

causes damage to the third party<br />

Observant readers will have noticed in<br />

the description of Houle above that the<br />

plaintiffs were not the company that had<br />

borrowed from the bank, but its shareholders.<br />

<strong>The</strong> plaintiffs were only parties<br />

to the contract in that they had provided<br />

personal surety on a part of the loan,<br />

which was not called when the banks<br />

realized on their security. As such, any<br />

36 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 37

theory of damages must instead rest on<br />

extra-contractual liability. In this case,<br />

the Supreme Court found that the bank<br />

had violated “a general legal obligation<br />

… that a person not prejudice, by his or<br />

her actions, the parties to a sale, when<br />

such sale, to his or her knowledge, is<br />

imminent.” 17<br />

As Justice Rowe reminded me in Brunette<br />

v Legault Joly Thiffault, s.e.n.c.r.l.,<br />

the Court did not create a generalized<br />

exception allowing shareholders to sue<br />

for damages suffered by a company, but<br />

“simply reiterated the essential elements<br />

of civil liability in Quebec civil law –<br />

fault, injury, and causation – and held<br />

that shareholders can have an independent<br />

right of action where they establish<br />

the existence of each element in a way<br />

that is distinct from the fault and injury<br />

caused to the corporation.” 18 This same<br />

test applies to third parties to a contract<br />

more broadly, sometimes allowing them<br />

to sue for the damages they suffer as a<br />

result of a party to a contract failing to<br />

meet its obligations.<br />

10. Service contracts can be terminated<br />

at will<br />

Where a contract is “resiliated” (terminated<br />

on a going-forward basis) and not<br />

“nullified,” some payment is still due by<br />

the client. Under article 2129, the amount<br />

due is a portion of the overall payments<br />

due under the contract based on the<br />

proportion of the work that has been<br />

completed and the costs incurred by the<br />

contractor, among other minor factors,<br />

with the weighing of these factors left<br />

to the judge’s determination. In short,<br />

a “fair” payment representing the work<br />

done is to be paid. If the contractor was<br />

paid in advance, they are bound to return<br />

any excess amount, as determined<br />

by the judge. 19<br />

<strong>The</strong> right to terminate, however, is<br />

not of “public order” and can therefore<br />

be contracted out of or renounced. This<br />

renunciation must, in most cases, be explicit<br />

– setting a fixed term for the contract<br />

is not enough to conclude that the<br />

right has been renounced, and neither<br />

is setting out in the contract that the<br />

client has a right to terminate the contract<br />

under certain circumstances. 20 <strong>The</strong><br />

clause must instead say that the client<br />

only has that right under certain circumstances,<br />

or that the client has renounced<br />

that right.<br />

11. In matters of contractual interpretation,<br />

the document is evidence of the<br />

meeting of the minds but is not necessarily<br />

taken as the complete and accurate<br />

contract<br />

Instead, per article 1425 of the Civil<br />

Code, “[t]he common intention of the<br />

parties rather than adherence to the<br />

literal meaning of the words shall be<br />

sought in interpreting a contract.” 21 Although<br />

there is a significant burden on<br />

the party wishing to displace the words<br />

of a contract, especially when they are<br />

relatively unambiguous, courts have<br />

shown themselves open to “reading in”<br />

clauses on which the contract is otherwise<br />

silent. 22<br />

This principle of interpretation can<br />

even be used to benefit sophisticated<br />

commercial parties, who are generally<br />

presumed to have received adequate, appropriate<br />

legal advice on documents before<br />

signing them. In Sobeys Québec inc.<br />

c Coopérative des consommateurs de Ste-<br />

Foy, 23 a national grocery chain was successfully<br />

able to argue that a second sublease<br />

with the same sublessor should be<br />

interpreted to include certain clauses<br />

that were present in the first sub-lease<br />

but absent in the second.<br />

Notes<br />

1. See, e.g., Bhasin v Hrynew, 2014 SCC 71;<br />

C.M. Callow Inc. v Zollinger, 2020 SCC 45.<br />

2. Arrangement relatif à Bloom Lake, 2017 QCCS<br />

4057 at paras 101–102.<br />

3. Article 1601 CCQ.<br />

4. Avi Financial Corporation (1985) Inc. v<br />

Novergaz Inc., 1997 CanLII 8864 (QC CS).<br />

5. [1990] 3 SCR 122.<br />

6. Ibid at 176.<br />

7. 2001 CanLII 27966 (QC CA).<br />

8. Arts 2138, 2146 CCQ.<br />

9. Antoine Ponce, et al. v Société d’investissements<br />

Rhéaume ltée, et al., 2022 CanLII 38772<br />

(SCC).<br />

10. Art 2092 CCQ.<br />

11. Quebec (Commission des normes du travail)<br />

v Asphalte Desjardins inc., 2014 SCC 51 at<br />

para 53.<br />

12. Tanase c Commission des normes du travail,<br />

2015 QCCS 4199.<br />

13. Art 2503 CCQ.<br />

14. Compagnie canadienne d’assurances générales<br />

Lombard c Roc-Teck Coatings Inc., 2007 QCCA<br />

986.<br />

15. Art 1458 CCQ.<br />

16. Infineon Technologies AG v Option<br />

consommateurs, 2013 SCC 59 at para 23.<br />

17. Ibid at 184. Emphasis in original.<br />

18. Brunette v Legault Joly Thiffault, s.e.n.c.r.l.,<br />

2018 SCC 55 at para 30.<br />

19. Art 2129 CCQ.<br />

20. Steve Brown Machineries Solutions (SBMS)<br />

inc. c Groupe Sutton Excellence inc., 2021<br />

QCCA 302.<br />

21. Art 1425 CCQ.<br />

22. Sobeys Québec inc. c Coopérative des<br />

consommateurs de Ste-Foy, 2005 QCCA 1172<br />

at paras 50–53.<br />

23. 2005 QCCA 1172.<br />

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38 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL


Coulter Osborne: A tribute<br />

I<br />

have had at most two or three heroes in my life. Coulter Osborne<br />

was one of my heroes. In April of this year Coulter<br />

passed away, just shy of his 89th birthday. He was a great<br />

advocate, a great judge, a great athlete, a great husband, father,<br />

and grandfather, and perhaps most important, a great person.<br />

<strong>The</strong> mere listing of Coulter’s achievements attests to an<br />

extraordinary life. He was a star student and athlete at high<br />

school, Hillfield College in Hamilton and St. Andrew’s College<br />

in Aurora; a terrific basketball player at Western and a member<br />

40 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

<strong>The</strong> Honourable John I. Laskin<br />

of three intercollegiate championship teams, for which he was<br />

inducted into the university’s hall of fame; and the starting forward<br />

on Canada’s basketball team at the 1956 Summer Olympics<br />

in Melbourne, Australia.<br />

After graduating from Osgoode Hall Law School, Coulter<br />

became an outstanding advocate. In his magnificent speech<br />

about Coulter at the celebration of his life, his long-time friend<br />

Chris Speyer described Coulter as “<strong>The</strong> Man to See” in Waterloo<br />

County. And Chris added: “Was Coulter a good lawyer? He<br />

was better than good – he was fabulous. Picture this in your<br />

mind’s eye – Coulter in front of a Waterloo County jury: a Gary<br />

Cooper–like figure – tall, blond, blessed with good looks, endowed<br />

with unassailable natural ability dispensing his unique<br />

brand of quiet persuasion. Juries loved him, judges liked him,<br />

and his legal opponents respected him.” Coulter was so highly<br />

regarded in Waterloo County that the region’s law association<br />

established the Coulter A. Osborne Award given for integrity,<br />

comity, and beneficence in the practice of law and in public life.<br />

In 1978 Coulter began his judicial life: 12 years as one of the<br />

most admired trial judges in Ontario and another 11 years as<br />

a Court of Appeal judge, which included three years of extraordinary<br />

leadership as associate chief justice of Ontario.<br />

He left the Court of Appeal in early 2001, but, as he said, “I<br />

found it hard to retire.” Indeed, his post-judicial life was as<br />

rich as his previous life: a “go to” arbitrator, who put Arbitration<br />

Place on the map, integrity commissioner for Ontario,<br />

lobbyist registrar of Ontario, chair of the Holland Group (composed<br />

of the leading medical malpractice litigators in Ontario),<br />

and author of the still influential Civil Justice Review report.<br />

What I have just recounted are little more than the bare facts<br />

of Coulter’s remarkable life. What I will remember most about<br />

Coulter, however, are his personal qualities that made him<br />

such a beloved human being and that set him apart from virtually<br />

anyone I have ever known.<br />

We first met in the mid-1970s, on the opposite sides of a<br />

messy piece of commercial litigation out of Kitchener. I was<br />

a young advocate, trying to make my way in the litigation<br />

world. Coulter was already an established star, not just in<br />

Waterloo County, but across the province. And of course he<br />

had been an Olympic athlete. <strong>The</strong> first<br />

things that struck me about Coulter were<br />

his warmth, his kindness, his modesty,<br />

his humility. I was and still am a huge<br />

basketball fan, and here I was dealing<br />

with a man who had played at the same<br />

Olympics as the future legendary star of<br />

the Boston Celtics, Bill Russell. I wanted<br />

to ask him about what it was like. But<br />

Coulter had no interest in talking about<br />

his past accomplishments. “<strong>The</strong> statute<br />

of limitations passed on that event a long<br />

time ago,” he told me. When we came<br />

to discuss the case, he treated me as an<br />

equal – no hubris, no ego, no arrogance.<br />

We settled the case before it went to trial.<br />

A decade passed – Coulter was now<br />

a trial judge – when out of the blue he<br />

telephoned me. <strong>The</strong>re was an automobile<br />

insurance crisis in Ontario. Premiums<br />

were sky high, some drivers couldn’t<br />

even get insurance, and the NDP was<br />

clamouring for no-fault auto insurance.<br />

Ian Scott, then the attorney general for<br />

the governing Liberals, had wisely appointed<br />

Coulter to head an inquiry into<br />

motor vehicle accident compensation in<br />

Ontario. Coulter was a natural choice. He<br />

had both the experience and the expertise.<br />

On the phone call, Coulter asked me<br />

to be his counsel. “But,” I stammered, “I<br />

don’t know anything about personal injury<br />

litigation.” “That’s the whole point,”<br />

he replied. I was somewhat taken aback<br />

until he added, “If you knew anything<br />

you would be on one side or the other<br />

and have a bias, and I don’t want that.”<br />

I couldn’t believe my good fortune. I accepted<br />

his offer immediately. We worked<br />

closely together for 18 months. We travelled<br />

across Canada, to the United States,<br />

and even to Switzerland (where the head<br />

offices of some of the Ontario auto insurers<br />

were located), studying the auto<br />

insurance industry and various compensation<br />

schemes.<br />

Coulter hired a very small staff, just<br />

five people. He showed respect for each<br />

of us and treated us as his peers, despite<br />

our differences in age and experience.<br />

He made us feel we were his friends and<br />

genuinely valued our views. In turn,<br />

we always wanted to do our best for<br />

him. One of our staff, a young research<br />

assistant, Saskia Matheson, recently reminded<br />

me of something I said to her<br />

during the inquiry. I took her aside one<br />

day and said, “You know you have made<br />

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a terrible mistake.” For a second or two,<br />

Saskia had an awful feeling she had done<br />

something horribly wrong. But I quickly<br />

added, “You don’t start your career with<br />

a job like this. You finish it, because now<br />

no job will ever feel like it measures up.” 1<br />

Our colleague Justice David Doherty<br />

described Coulter as “a natural born<br />

leader.” And so he was. I saw that first<br />

during the inquiry and later on at the<br />

Court of Appeal. Coulter never demanded,<br />

never dictated, never shouted.<br />

He never bragged or boasted. He led by<br />

an amalgam of exceptional qualities: He<br />

was so likeable; he had such good judgment<br />

and common sense; he always came<br />

across as reasonable; and he was laidback<br />

and unflappable, even in stressful<br />

situations, and he faced plenty of those<br />

during the inquiry. Even if you initially<br />

held a contrary view on some issue, after<br />

listening to Coulter’s calm voice and<br />

sensible words, invariably you discarded<br />

your view and agreed with him.<br />

And you would drop everything to<br />

try to help him. Toward the end of the<br />

inquiry Coulter was under enormous<br />

pressure to complete his report and deliver<br />

it to the government. Two assistants<br />

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THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 41

at the law firm where I worked pitched<br />

in. <strong>The</strong>y hardly knew Coulter, but in<br />

those last few, frenetic days they worked<br />

virtually ’round the clock to help him<br />

finish his report. He never asked them<br />

to do so. <strong>The</strong>y just wanted to. His leadership<br />

was inspirational.<br />

Coulter let me draft part of his report,<br />

but his editorial pen hovered over every<br />

word I wrote. Economy and precision of<br />

language were hallmarks of his writing.<br />

And he always ensured he explained<br />

clearly why he had decided<br />

the way he did. He produced<br />

a two-volume report of nearly<br />

900 pages. He believed in the<br />

tort system, rejected no-fault<br />

as cost inefficient, but recommended<br />

enhanced no-fault<br />

benefits, a recommendation<br />

(among many) that the government<br />

implemented.<br />

Every judge who has sat on<br />

the Court of Appeal for Ontario<br />

in the past 35 years knows that<br />

internally the associate chief<br />

justice oversees the day-to-day running<br />

of the court. Coulter was an exceptional<br />

associate chief. His door was always<br />

open. He was there for us, no matter<br />

what our problem, big or small. He took<br />

time to listen to us, encouraged us when<br />

we were down, and always dispensed<br />

the good advice we needed. He and<br />

Chief Justice McMurtry were a formidable<br />

team. We all considered ourselves<br />

so lucky to have these two giants of our<br />

profession as our leaders.<br />

If you look at the law reports during<br />

the years Coulter was a judge, you will<br />

find he wrote very few jurisprudential<br />

landmarks. Coulter had no interest in<br />

writing for his legacy. His focus was on<br />

resolving the dispute before him. But his<br />

wisdom, common sense, and good judgment<br />

shone through in every judgment<br />

he wrote. Indeed, of all the judges I sat<br />

with no one had better judgment than<br />

Coulter. When I had a difficult issue on<br />

an appeal often I would trek down to<br />

Coulter’s office, and by the time I left<br />

invariably he had helped me resolve the<br />

issue. I echo the words of our colleague<br />

Jim MacPherson: “In my 24 years on the<br />

Court of Appeal, I can safely say that<br />

Coulter Osborne was, universally, the<br />

most respected judge on the Court.”<br />

Coulter also had a way with words and<br />

a wry sense of humour. In one case, a real<br />

property dispute, he started his reasons<br />

42 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />

with the following: “<strong>The</strong> plaintiff and the<br />

defendant have at least one thing in common.<br />

<strong>The</strong>y both think they own a small<br />

five-sided parcel of land at Mallorytown<br />

Landing.” In a civil appeal I sat on with<br />

Coulter, he gave an oral judgment and<br />

began with: “In this appeal neither party<br />

occupies the moral high ground.”<br />

In a summary judgment appeal, which<br />

has been cited nearly 600 times, Coulter<br />

wrote his famous line, “A respondent<br />

on a summary judgment appeal must<br />

<strong>The</strong> respect, admiration, and affection for<br />

Coulter ran throughout the legal profession<br />

and the judiciary. He had an easy charm<br />

and an unfailing kindness, which<br />

endeared him to everyone he met.<br />

lead trump or risk losing.” And in the<br />

highly publicized Gwen Jacob case, he<br />

overturned Ms. Jacob’s conviction for<br />

committing an indecent act by walking<br />

topless in downtown Guelph on a hot<br />

and humid summer day, noting that “no<br />

one who was offended was forced to continue<br />

looking at her.”<br />

And then there were the inmate sittings<br />

in Kingston that Michael Moldaver<br />

and I will never forget. After a jury trial,<br />

a fellow had been convicted of manslaughter<br />

and sentenced to nine years<br />

in jail. He was appealing his conviction.<br />

After hearing the oral argument, we<br />

went into our retiring room to decide<br />

what to do. <strong>The</strong> jury charge was pretty<br />

bad and we quickly agreed we had to<br />

allow the appeal, set aside the conviction,<br />

and order a new trial. “But,” Mike<br />

asked, “what should we say?” “Yeah,” I<br />

chimed in, “what should we say?” Coulter<br />

thought for a few seconds and then<br />

said, “How about this: For brevity’s sake<br />

we will record those parts of the charge<br />

the trial judge got correct.” (Of course<br />

we didn’t actually record that.)<br />

Coulter loved to work with law clerks,<br />

and they loved to work with him. He<br />

used them as a sounding board to work<br />

through a problem. “Apply your fertile<br />

mind to this issue and get back to me”<br />

was one of his favourite lines. An early<br />

law clerk whom he later persuaded to<br />

leave practice and join the court as a<br />

staff lawyer was Alison Warner. I sometimes<br />

teased Coulter that the best thing<br />

he ever did for the court was to hire Alison.<br />

Coulter and Alison became life-long<br />

friends, and in some ways he regarded<br />

her as a “fourth” daughter.<br />

Coulter was one of the least pretentious<br />

people I have ever known. Despite<br />

his high office he treated everyone the<br />

same, no matter their station in life. <strong>The</strong><br />

staff of the Court of Appeal adored him<br />

because he was genuinely<br />

interested in how they were<br />

and in finding out what<br />

they were doing. <strong>The</strong>ir talks<br />

often revolved around dogs,<br />

basketball, and family.<br />

Coulter left the court<br />

several years before his<br />

mandatory retirement age.<br />

I and many of his colleagues<br />

pleaded with him<br />

to stay, but he had made<br />

up his mind to leave. As I<br />

have mentioned, Coulter<br />

had an enormously active post-judicial<br />

life. I missed him terribly on the court. I<br />

could no longer walk down the hall and<br />

ask him what to do on a tough problem.<br />

So instead I would ask myself, “What<br />

would Coulter do?”<br />

<strong>The</strong>re is a wonderful story about how<br />

Coulter became an Olympian. In 1956,<br />

after finishing first-year law school,<br />

Coulter had a summer job loading empty<br />

cans onto a freight car for the American<br />

Can Company. He came home from work<br />

one day and found a letter addressed to<br />

him from the Canadian Olympic Association:<br />

“Be in Vancouver the day after<br />

Labour Day.” Unsure what to do, he<br />

went to his law school dean for advice.<br />

Coulter said to him, “I’d like to go but if<br />

I do I won’t be at any classes in the first<br />

term.” <strong>The</strong> dean looked down at the papers<br />

on his desk and replied, “We don’t<br />

take attendance.” And so Coulter went<br />

to Melbourne.<br />

Forty-four years later, in 2000, on the<br />

eve of his departure from the Court of<br />

Appeal, Coulter returned to Australia,<br />

this time to Sydney, for the Summer<br />

Games, as a member of the Olympic<br />

torch relay. He trained for the relay. In<br />

the months leading up to it, he was a fixture<br />

every evening at the North Toronto<br />

Collegiate Institute track. He would<br />

jump over the fence and run. He said, “I<br />

wanted to be able to do the relay without<br />

embarrassing myself.” Christie Blatchford wrote a touching piece<br />

about Coulter’s participation:<br />

It was both the run, and the stuff, of Coulter Osborne’s<br />

honourable life. It took him along Railway Street in this<br />

unpretentious, working-class western suburb – so like his<br />

Hamilton hometown – of the glittering Olympic city just<br />

an hour away …<br />

It was probably not the glamorous route Judge<br />

Osborne’s friends on the bench at the Ontario Court of<br />

Appeal … imagined for him when, in his self-effacing and<br />

diffident way, he mentioned in passing, and this is how he<br />

would have done it, that he would be taking part in the<br />

2000 Olympic Torch Relay …<br />

Judge Osborne wore No. 209 … [He] would be handing<br />

off to, and lighting the torch of, No. 210, Harry Harris, a<br />

53-year-old from the Sydney suburb of Concord … <strong>The</strong>n it<br />

was go time …<br />

Suddenly, Judge Osborne came into view, a tall, slender,<br />

ever-so-slightly jug-eared man with silver blond hair.<br />

He was smiling hugely, until he handed off to Mr. Harris,<br />

gave him a gentle push of encouragement on the back, and<br />

found [his wife] Barbara, and then he cried, just a little. 2<br />

<strong>The</strong> last several years of Coulter’s life were difficult ones as<br />

he suffered the ravages of Parkinson’s disease. But he bore his<br />

illness with grace, with good humour, and without a hint of<br />

complaint. Alison and I visited him from time to time. He was<br />

invariably alert, upbeat, and engaged for those visits, as we<br />

discussed among many topics the latest high-profile decision<br />

from the Court of Appeal and the current sorry state of the<br />

Toronto Raptors.<br />

Fairmont Château Laurier | February 1-3, 2024<br />

<strong>The</strong> respect, admiration, and affection for Coulter ran<br />

throughout the legal profession and the judiciary. He had an<br />

easy charm and an unfailing kindness, which endeared him to<br />

everyone he met. I knew him for more than 45 years, and in all<br />

those years I never heard him say a mean word about anyone<br />

and I never heard anyone say an unkind word about him. I<br />

don’t think I can say that about any other person I have known.<br />

As much as Coulter enjoyed being with the members of the<br />

bar and his judicial colleagues, first and foremost for him was<br />

his family: Barbara, his wife and life partner for 64 years, and<br />

their wonderful daughters, Mary, Julie, and Katie, of whom<br />

he and Barbara were immensely proud. I doubt I have met a<br />

family as close knit as the Osborne family. Coulter and Barbara<br />

were inseparable to the end. He was an outsized presence<br />

in the lives of his daughters and his grandchildren, and just<br />

before his death he welcomed a great-granddaughter into the<br />

family.<br />

This piece, so personal in many ways, is my tribute to Coulter<br />

Osborne. He was my mentor and my friend. I will always<br />

treasure my good fortune in knowing him and working with<br />

him. My memory of him will remain forever green.<br />

Notes<br />

1. Happily, Saskia has gone on to a wonderful career in the auto insurance<br />

industry. She is now the president and CEO of the Facility Association.<br />

2. Christie Blatchford, “Ontario Judge Carries the Torch,” National Post<br />

(13 September 2000) 1.<br />



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

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THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 43


Patronage returns in Ontario<br />

<br />

In the early spring of 1985, I found myself campaigning for<br />

the best counsel I ever saw in court and a personal hero,<br />

Ian G. Scott. He was running as a Liberal in the 1985<br />

Ontario election as the tides were turning against the long-ruling<br />

Progressive Conservatives.<br />

My partners Chris Paliare and Ian Roland were also actively<br />

campaigning for Ian, despite their different political affiliations.<br />

I remember laughing when I heard that each of them<br />

had extracted a promise from Ian that if he were elected and<br />

became the next attorney general (almost inevitable if the<br />

Liberals won), he would ensure that both would be bestowed<br />

with the much-coveted designation of Queen’s Counsel – QC,<br />

now KC with the new monarch. I can say with confidence, it<br />

never occurred to me to ask, although it may well have been<br />

lack of initiative.<br />

As happened, the Liberals formed the government under<br />

Premier David Peterson, and Ian Scott became attorney general.<br />

My partners were convinced that QCs (taking “silk,” as it is<br />

called in the UK) were imminent.<br />

Scott told us repeatedly, as he quickly learned from the civil<br />

servants, that there were rules against appointing two lawyers<br />

as QCs from one firm. He would have to choose between my<br />

partners. Ian then chortled in his infectious way, waiting for<br />

his audience to catch up, and added the punchline, “So I decided<br />

to abolish QCs.” A related anecdote has it that he said that<br />

to redress the political imbalance after 40 or so years of Tory<br />

governance, he would have to name 10,000 Liberals as QCs and<br />

had neither the time nor the inclination to do so.<br />

<strong>The</strong>se bons mots were classic Ian. He loved a good story and<br />

would go far for a laugh, but for him the reality was more<br />

serious. Ian was never self-righteous, but he was deeply principled.<br />

He had no time for honours that had long been overtaken<br />

by cronyism and patronage, and he was fearless in stopping<br />

this practice although he didn’t abolish the designation outright<br />

and allowed those lawyers who had one to keep using it.<br />

Premier Peterson offered five reasons for this decision:<br />

(1) QCs were originally meant for leading courtroom advocates<br />

but had been diluted to any lawyer of good standing;<br />

(2) the designation had become misleading and was<br />

based on whom one knew more than on what one knew;<br />

(3) it was unfair to lawyers who weren’t named a QC, calling<br />

into question their competence in the public mind; (4)<br />

no other profession received governmental awards of this<br />

kind; and (5) the designation was a blatant (my word) form<br />

Stephen Grant, LSM, ASM<br />

of political patronage. David Peterson’s rationale is equally if<br />

not more valid today, especially with the growth of lawyerpermitted<br />

advertising – in its infancy in 1985.<br />

Despite this background, and with seemingly little or no<br />

consultation with the various interested groups such as <strong>The</strong><br />

Advocates’ Society, the Ontario Bar Association, and the Law<br />

Society of Ontario – the Treasurer of the Law Society declined<br />

the invitation (if that’s what it was) to receive one – the Ford<br />

government has recently awarded a spate of KCs, many to<br />

political cronies or operatives. I didn’t count the number but,<br />

among other self-aggrandizements, the attorney general appears<br />

to have awarded one to himself, and a former attorney<br />

general seems suddenly to have been called to the Ontario bar<br />

despite being a lawyer for many years.<br />

Although there are at least two counsel on the list who<br />

would be eminently qualified to be awarded this honorific<br />

on any criteria, especially reflecting its original intent to<br />

acknowledge the finest of advocates, it appears that most on<br />

the list must have other unrecognizable attributes, save political<br />

affiliation. One of the recipients of this now-hollow<br />

honour, although having worked in the government for several<br />

years, is not the experienced counsel for whom the designation<br />

was originally meant, even in its later years of transparent<br />

political patronage.<br />

As opposition parliamentarians used to say (and may still,<br />

for all I know), “For shame.”<br />

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Anna Wong | Patrick Healy Fraser Dickson<br />

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44 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL

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