27.11.2023 Views

Advocacy-Matters-Fall-2023

Keep up to date on what your fellow Society members have to say in Advocacy Matters.

Keep up to date on what your fellow Society members have to say in Advocacy Matters.

SHOW MORE
SHOW LESS

Create successful ePaper yourself

Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.

ADVOCACY MATTERS<br />

The Advocates’ Society<br />

FALL <strong>2023</strong>


CONTENTS<br />

05<br />

06<br />

09<br />

11<br />

24<br />

32<br />

Chair Chat<br />

Steven Frankel (he/him), Davies Ward Phillips & Vineberg LLP<br />

The Happy Lawyer Project<br />

Lisa Marie Buccella, Aviva Trial Lawyers<br />

Word to the Wise: Coachability<br />

Megan Keenberg (she/her), Keenberg & Co<br />

The Surprisingly Offensive Origins of<br />

Commonly Used Phrases<br />

Megan Keenberg (she/her), Keenberg & Co, and Jordan Glick (he/him),Glick Law<br />

AI and the Legal Profession:<br />

Will AI eliminate or augment the practice of law?<br />

Jeff Van Bakel (he/him), Scott Petrie LLP<br />

Interview with Lia Bruschetta (she/her), Osler,<br />

Hoskin & Harcourt LLP<br />

Compiled by Mana Khami (she/her), Borden Ladner Gervais LLP<br />

Editor: Megan Keenberg (she/her), Keenberg & Co| mkeenberg@keenco.ca<br />

Deputy Editor: Joe Thorne (he/him), Stewart McKelvey | joethorne@stewartmckelvey.com<br />

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

<strong>Advocacy</strong> <strong>Matters</strong> Editorial Team: Jeff Van Bakel, Scott Petrie LLP, Lisa-Marie Buccella, Aviva Trial Lawyers, Jordan Glick, Glick Law, Mana Khami, BLG,<br />

Eric Morgan, Kushneryk Morgan LLP, and Wade Poziomka, Ross & McBride LLP.<br />

3


WHAT’S COMING UP @ TAS<br />

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

CHAIR CHAT<br />

DEC 07<br />

Dealing with Self-Represented<br />

Litigants<br />

(Via Zoom)<br />

DEC 14<br />

Civility and<br />

Professionalism for<br />

Litigators<br />

(Via Zoom)<br />

Jan 18<br />

An Evening with the<br />

Commercial List<br />

(In Person)<br />

DEC 01<br />

View From the B.C.<br />

Bench<br />

(Vancouver, BC, Live<br />

Online)<br />

DEC 08<br />

The Bench Speaks<br />

(In Person with<br />

Live Online)<br />

Jan 26<br />

Tricks of the Trade<br />

(In Person)<br />

DEC 04<br />

Fireside Chat with The<br />

Hon. Justice Richard<br />

Bernstein<br />

(Toronto, ON, Live<br />

Stream)<br />

DEC 15<br />

Dow, Iris, and Jurisdiction<br />

Issues in Tax<br />

Litigation<br />

(Live Stream)<br />

DEC 06<br />

Written Appellate<br />

<strong>Advocacy</strong><br />

(Via Zoom)<br />

DEC 12<br />

Examinations for<br />

Discovery: Building<br />

Block Three<br />

(Live Online)<br />

Jan 16<br />

Examinations for Discovery:<br />

Building Block Four<br />

- Workshop<br />

(Via Zoom or In Person)<br />

Chair Chat<br />

Steve Frankel (he/him), Davies Ward Phillips &<br />

Vineberg LLP<br />

It might still be <strong>Fall</strong> but we are looking forward<br />

to Winter more than ever this year: we<br />

are thrilled to introduce the Winter Summit:<br />

The Big Chill Ottawa! This is the first destination<br />

TAS conference dedicated to mid-career<br />

advocates who have been in practice for 10 to<br />

20 years. Through the outstanding efforts of<br />

our conference chairs – Jennifer Hunter, Brian<br />

Duong, David Thompson, and Erin Durant - we<br />

have secured a first-rate line-up of speakers<br />

and events, including not one but two Supreme<br />

Court of Canada Judges: the Hon. Justice Suzanne<br />

Côté and the Hon. Justice Mahmud Jamal<br />

will be joining us in person for a Fireside<br />

Chat at the Château Laurier. The Winter Summit<br />

presentations will be focused on the topics<br />

that matter most to mid-career advocates as<br />

we transition into senior roles in our practices:<br />

leadership, mentoring and management.<br />

Space is limited so register now to secure your<br />

spot at the premiere event of the year here.<br />

This <strong>Fall</strong> Issue of <strong>Advocacy</strong> <strong>Matters</strong> features<br />

the first column in a series by Lisa Marie Buccella<br />

of Aviva Trial Lawyers called The Happy<br />

Lawyer Project, in which she offers strategies<br />

for building a more fulfilling work life. One person<br />

who seems to have that balance all figured<br />

out is our featured TAS member Lia Bruschetta,<br />

a litigation partner with Osler, Hoskin & Harcourt<br />

LLP. In her interview with Mana Khami of<br />

BLG, Lia credits much of her success and fulfillment<br />

in practice to the meaningful pro bono<br />

work she does. If you are looking to get more<br />

involved in community works, there are links<br />

at the end of Lia’s interview directing you to a<br />

variety of pro bono initiatives across the country<br />

that TAS members like Lia support as dedicated<br />

volunteers.<br />

Editor-in-Chief Megan Keenberg of Keenberg<br />

& Co partnered with Jordan Glick of Glick<br />

Law to share a primer on the Surprisingly Offensive<br />

Origins of Commonly Used Phrases.<br />

In this piece, Megan and Jordan uncover the<br />

cringe-worthy original meanings of everyday<br />

words and phrases we casually use in the workplace,<br />

which will make us think twice about the<br />

impact of our language on our colleagues and<br />

clients.<br />

Rounding out the issue, Jeff Van Bakel of<br />

Scott Petrie LLP tackles a topic that is on everyone’s<br />

minds these days: the use of Generative<br />

AI, what it means to the legal profession, and<br />

how it can be harnessed to complement – rather<br />

than supplant – our practices.<br />

5


THE BALANCED BREAK: INSIGHTS FOR A WELL-LIVED LIFE<br />

The Happy Lawyer Project<br />

Lisa Marie Buccella, Aviva Trial Lawyers<br />

6<br />

Our personal and professional<br />

lives are inextricably<br />

linked. When did you<br />

last meet somebody who<br />

was truly fulfilled at work<br />

but had a terrible personal<br />

life? Or vice versa?<br />

That’s a unicorn, but not<br />

the good kind.<br />

A typical white-collar professional spends<br />

around 50 percent of their waking hours at<br />

work. And in our industry, it can be quite a bit<br />

more. This is the first column in a series about<br />

making work and life better.<br />

Considering the rate of burnout in our profession,<br />

we could be forgiven for believing<br />

that happiness is a fallacy. We use earnings,<br />

career growth, and appearances on industry<br />

lists as proxies for it, and to validate that<br />

we’ve arrived. However, if the signposts along<br />

the way are a broken relationship, chronic<br />

feelings of overwhelm, a therapist’s office,<br />

or a home where the kids are already asleep<br />

when we arrive, then the destination is probably<br />

wrong.<br />

Social scientist and Harvard professor Arthur<br />

Brooks has identified the two factors<br />

within every industry that lead to meaning<br />

and happiness at work: a feeling that we are<br />

earning our success, creating value with our<br />

work, and are recognized for it; and that we<br />

are serving others and feel needed. The same<br />

arguably applies to our personal lives.<br />

Our personal and professional lives are<br />

inextricably linked. When did you last meet<br />

somebody who was truly fulfilled at work but<br />

had a terrible personal life? Or vice versa?<br />

That’s a unicorn, but not the good kind.<br />

You have a range of stakeholders across<br />

your professional and personal life, and<br />

they’re depending on you to be your best:<br />

best lawyer, best colleague, best parent, best<br />

partner, and best self. If your circumstances<br />

don’t allow for this, it’s time to make a change<br />

and introduce a new gameplan.<br />

I invite you to send your observations or<br />

questions on making work and life better to<br />

lisamarie.buccella@aviva.com. In every column,<br />

I’ll discuss strategies to build a more<br />

fulfilling work life and by extension, personal<br />

life. I’m also interested in engaging industry<br />

leaders who have something to say on the<br />

topic. If that’s you, let’s talk.<br />

Lisa Marie Buccella is happily married, has five children, one Bengal cat, and nearly a year of cancer treatment<br />

under her belt. She lives in Toronto and has been practicing since 2007.<br />

7


WORD TO THE WISE<br />

Word to the Wise:<br />

Coachability<br />

Megan Keenberg (she/her), Keenberg & Co<br />

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

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

TAS<br />

MENTORING<br />

PORTAL<br />

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

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

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

√<br />

√<br />

√<br />

No long-term commitments.<br />

No extensive questionnaires or matching.<br />

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

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

someone new.<br />

More information is available on the<br />

TAS mentoring website page.<br />

TAS Junior Members are automatically signed<br />

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

Before I came to the law, I was a professional<br />

actor. In hindsight, the theatre may have been<br />

the most fertile training ground for a career in<br />

litigation. I’m not talking about the ‘stand and<br />

deliver’ presentation skills that actors bring<br />

to advocacy. I’m talking about coachability. I<br />

learned how to be coachable by receiving extensive<br />

notes from directors before, during<br />

and after performances. Directors’ notes varied<br />

widely from simple blocking suggestions to<br />

Socratic discussions on the motivation of the<br />

character to identifying how the scene related<br />

to the overarching themes of the play, to ‘line<br />

readings’ where the director would say your<br />

character’s line exactly the way they wanted it<br />

said and tell you to mimic it. Line readings were<br />

the least helpful type of note, typically offered<br />

as a last resort when all other notes had failed.<br />

The best notes were not framed as directions at<br />

all, but rather as questions that sparked epiphanies<br />

and gave me a fresh perspective.<br />

While receiving notes was not always comfortable,<br />

the occasional sting was outweighed<br />

by the exhilaration of an insightful note. Because<br />

of the regularity of the notes, and my<br />

confidence that the purpose of these sessions<br />

was to bring out my best possible performance,<br />

I never dreaded receiving feedback. To the contrary,<br />

I looked forward to it.<br />

I learned to be coachable because I was actively<br />

coached.<br />

Being actively coached instilled in me a<br />

healthy appetite for feedback, collaboration<br />

and self-improvement that serves me well as<br />

a litigator. Unlike micro-management, active<br />

coaching gave me the freedom and the safety<br />

net to explore and develop my own style and<br />

my own process. It fostered my agency. I use<br />

that same active coaching style when mentoring<br />

other litigators. Active coaching leads to more<br />

confident, self-reliant advocates who embrace<br />

continual self-improvement and have the tools<br />

to maintain a lifetime of learning.<br />

This is different from the standard passive<br />

feedback we typically see in the legal profession,<br />

which mostly consists of blacklines showing<br />

senior lawyers’ revisions to junior lawyers’<br />

first drafts. A blackline is akin to the dreaded<br />

line reading: “This is how I would do it instead.”<br />

You can learn to emulate someone else’s writing<br />

and advocacy style from blacklines, but they’re<br />

not helpful in developing your own style.<br />

Instead, try providing directive comments<br />

(“notes”) on your mentees’ work. “The structure<br />

of this section of the factum is confusing.<br />

What’s the most important point we need to<br />

make here? Can you strip it back to outline and<br />

rebuild it?” These kinds of comments invite your<br />

mentees into the process with you and help<br />

them build confidence as they answer their<br />

own questions. It’s also more time and cost-efficient<br />

to send drafts back with notes instead of<br />

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

9


undertaking significant revisions at your higher<br />

hourly rate.<br />

Likewise, instead of hoping your mentees<br />

learn oral advocacy by watching you in court,<br />

share submissions with them. Help them map<br />

out their speaking points, moot the arguments<br />

and anticipated questions, rehearse the presentation,<br />

and give them notes right afterwards:<br />

“The judge perked up when you made<br />

that point about the timing of the sale.” Or “The<br />

judge looked overwhelmed by all the dates –<br />

let’s include a one-page timeline in our closing<br />

submissions.” Again, this doesn’t take any extra<br />

time. It may even be more time-efficient to divide<br />

and conquer in a coordinated way - helping<br />

your mentee prepare will also help you prepare.<br />

Jordan Glick<br />

TABOO TALK: ORIGINS EDITION<br />

Megan Keenberg<br />

The Surprisingly<br />

Offensive Origins<br />

of Commonly<br />

Used Phrases<br />

Jordan Glick (he/him), Glick<br />

Law, and Megan Keenberg<br />

(she/her), Keenberg & Co<br />

As litigators, we know that precision in language<br />

matters. We spend much of our time<br />

parsing the words of statutes, decisions,<br />

contracts and even emails to get to the<br />

meat of the issue: the writer’s intent. If our<br />

words elucidate our intent, then we need<br />

to be discerning in the words we use. Many<br />

everyday phrases are used in the workplace,<br />

in court, with colleagues and clients,<br />

without much thought about their original<br />

meanings.<br />

In this piece, we delve into the surprisingly<br />

offensive origin stories of phrases we use<br />

in casual conversation and offer easy alternatives<br />

to stand in their stead. Our aim is to<br />

inform. Once we understand the shocking<br />

origins of these words and phrases, we can<br />

work to avoid unwittingly peppering our<br />

communications with slurs and unknowingly<br />

alienating those around us. This article is<br />

a follow up to Megan Keenberg’s 2021 piece<br />

“You Don’t Look Like a Lawyer!”<br />

11


Phrase<br />

Origins<br />

How It’s Used<br />

Alternatives<br />

Powwow<br />

A quick, informal meeting.<br />

“Let’s meet at 9:30 for a powwow<br />

before we head into court.”<br />

In Indigenous cultures, there is<br />

nothing quick or casual about a<br />

powwow. Powwows are enormous<br />

celebrations that require<br />

months of planning. They are<br />

a way to celebrate Indigenous<br />

heritage, art, and community.<br />

Misusing the term powwow<br />

to describe something quick,<br />

informal and casual diminishes<br />

the great importance of these<br />

gatherings.<br />

A QUICK MEETING.<br />

A HUDDLE.<br />

“LET’S HAVE A QUICK<br />

HUDDLE BEFORE COURT<br />

TOMORROW.”<br />

Phrase<br />

Origins<br />

How It’s Used<br />

Alternatives<br />

Open Kimono<br />

To reveal the inner workings<br />

of a project or company to a<br />

prospective new partner.<br />

“The only way we can get this<br />

deal done is to go full open<br />

kimono.”<br />

Stemming from a rash of Japanese<br />

acquisitions of American<br />

companies in the 1980s, this<br />

phrase represents a xenophobic<br />

fear of Japan (and particularly,<br />

an American xenophobia), given<br />

the rise of its global dominance<br />

in business at that time.<br />

Full disclosure.<br />

Radical transparency.<br />

“The only way we can get<br />

this deal done is with full<br />

disclosure.”<br />

12<br />

13


Phrase<br />

Origins<br />

How It’s Used<br />

How It’s Used<br />

Alternatives<br />

Pleased as Punch<br />

Very pleased.<br />

“I just reported to the<br />

client on our success<br />

in court today. He was<br />

pleased as Punch!”<br />

This phrase is derived from<br />

the Punch and Judy puppet<br />

shows that were popular in<br />

the 18th and 19th centuries<br />

in Europe. Punch has roots<br />

in 16th century commedia<br />

dell’arte. Punch is depicted<br />

as the devil; he beats his<br />

baby and his wife to death<br />

and is very pleased with<br />

himself after each murder.<br />

Pleased.<br />

Thrilled.<br />

“I just reported to the client on<br />

our success in court today – he<br />

was thrilled to hear it.”<br />

Phrase<br />

Origins<br />

How It’s Used<br />

How It’s Used<br />

Alternatives<br />

Off the Reservation<br />

14<br />

Crazy.<br />

Rogue.<br />

“A Special Forces unit had<br />

gone off the reservation<br />

and was trying to free the<br />

hostage.”<br />

This phrase was frequently used<br />

during the 19th and 20th centuries in<br />

American politics. Native Americans<br />

were forced into treaties that limited<br />

their mobility and prohibited them<br />

from leaving reservations where<br />

they had been placed. Being seen or<br />

found off the reservation would suggest<br />

they were placing themselves<br />

outside their ‘allowed’ legal, or social,<br />

parameters.<br />

In its earliest evidence, this phrase<br />

dealt with policing, killing and colonizing<br />

Native Americans and removing<br />

them from their native land.<br />

Gone astray.<br />

Gone off-script.<br />

Gone rogue.<br />

Colouring outside the lines.<br />

“A Special Forces unit had gone<br />

rogue and was trying to free the<br />

hostage.”<br />

Now Live! Friends Who Argue - TAS podcast is jointly hosted by<br />

our Young Advocates and 10+ Standing Committees. Segments<br />

feature dialogue with the people who get what you do, as we<br />

delve into both the serious and lighthearted aspects of life as<br />

an advocate in Canada. Know a TAS member we should talk<br />

to? Contact Christopher Horkins at chorkins@cassels.com and<br />

Karen Bernofsky at KarenB@stockwoods.ca .<br />

Friends Who Argue is sponsored by<br />

15


Phrase<br />

Origins<br />

Phrase<br />

Origins<br />

How It’s Used<br />

Alternatives<br />

How It’s Used<br />

Alternatives<br />

Cakewalk<br />

Something easy.<br />

“Getting everything organized<br />

for the meeting will<br />

be a cakewalk.”<br />

The cakewalk, a Southern<br />

black custom, was a<br />

pre-Civil War dance originally<br />

performed by slaves on<br />

plantation grounds, often<br />

in the presence of their<br />

masters, first known as the<br />

“prize walk”. Reference is<br />

made to cake, as it was given<br />

as a prize for the couple<br />

that had the fanciest steps<br />

in a procession.<br />

Walk in the park.<br />

Cinch.<br />

“Getting everything organized<br />

for the meeting was a<br />

walk in the park.”<br />

Gypped<br />

Ripped off.<br />

To cheat someone.<br />

“The taxpayers are getting<br />

gypped.”<br />

The term “gypped” likely<br />

originates from the word<br />

‘gypsy’, which is an informal<br />

and offensive term<br />

referring to the Roma<br />

people of Europe who<br />

lead a nomadic lifestyle.<br />

Historically, Romani<br />

individuals were unfairly<br />

stereotyped as deceivers<br />

and thieves, leading to<br />

the creation of the term<br />

“gypped.”<br />

Defrauded.<br />

Swindled.<br />

Deceived.<br />

Tricked.<br />

“The taxpayers are being<br />

swindled.”<br />

Phrase<br />

Phrase<br />

Origins<br />

Phrase<br />

Origins<br />

How It’s Used<br />

Alternatives<br />

How It’s Used<br />

Alternatives<br />

Low Man on the Totem Pole<br />

16<br />

The lowest rung of the hierarchical<br />

ladder. The person<br />

with the least clout.<br />

“He started as the low man<br />

on the totem pole and<br />

worked his way up to be<br />

manager.”<br />

Totem poles are monuments<br />

created by the First Nations of the<br />

Pacific Northwest to commemorate<br />

ancestry, histories, people, or<br />

events. When used as an idiom,<br />

the term “low man on the totem<br />

pole,” describes a person of low<br />

rank. This subsequently portrays<br />

an inaccurate understanding of<br />

the tradition and meaning of the<br />

totem poles, which do not have<br />

a hierarchy of carvings based on<br />

physical position.<br />

Person of lower rank.<br />

Junior level.<br />

Least important.<br />

Lowest of the low.<br />

“He started as the lowest of<br />

the low and worked his way<br />

up to be manager.”<br />

Sold Down the River<br />

Betrayed.<br />

“He didn’t expect to be<br />

sold down the river by<br />

someone he had known<br />

for so long.”<br />

This expression alludes to a<br />

serious betrayal, drawing its<br />

origins from the slave trade<br />

in the United States. The term<br />

“river” directly points to significant<br />

waterways like the Mississippi<br />

or Ohio rivers, which were<br />

central to the trade. During the<br />

early 19th century, Black slaves<br />

were brought to Louisville,<br />

Kentucky, a major trading hub,<br />

where they were then sold and<br />

sent further south to work on<br />

cotton plantations.<br />

Mislead.<br />

Double-crossed.<br />

Stabbed in the back.<br />

“He didn’t expect to be<br />

stabbed in the back by<br />

someone he had known<br />

for so long.”<br />

17


Phrase<br />

Origins<br />

Phrase<br />

Origins<br />

How It’s Used<br />

Alternatives<br />

How It’s Used<br />

Alternatives<br />

Peanut Gallery<br />

A noisy or disorderly<br />

group of spectators.<br />

“No comments from the<br />

peanut gallery!”<br />

Originating in the 1860s, the peanut<br />

gallery was initially used to describe<br />

the more affordable sections<br />

of Vaudeville theaters, which were<br />

predominantly occupied by Black patrons.<br />

In a time when patrons threw<br />

tomatoes at the stage if they didn’t<br />

like the performance, those in the<br />

cheap seats threw peanuts to register<br />

their displeasure. Over time, the term<br />

has evolved to dismiss and undermine<br />

the views and contributions<br />

of Black individuals, relegating their<br />

opinions as inconsequential.<br />

Hecklers.<br />

Interrupters.<br />

“No interruptions<br />

please.”<br />

No Can Do<br />

Unable.<br />

I can’t.<br />

“When my colleague asked<br />

me to write a speech, I told<br />

him no can do.”<br />

THIS PHRASE WAS ORIG-<br />

INALLY USED TO MOCK<br />

THE SPEECH PATTERNS<br />

OF CHINESE IMMI-<br />

GRANTS TO THE UNITED<br />

STATES.<br />

Incapable.<br />

Not able.<br />

Not possible.<br />

“When my colleague asked<br />

me to write a speech, I told<br />

him that would not be<br />

possible.”<br />

Phrase<br />

Origins<br />

Phrase<br />

Origins<br />

How It’s Used<br />

Alternatives<br />

How It’s Used<br />

Alternatives<br />

18<br />

Long Time No See<br />

Used as a greeting for<br />

someone you have not<br />

seen in a long time.<br />

“Hi Bertha, long time<br />

no see.”<br />

There are two credible theories on<br />

the origins of this phrase. The first,<br />

similar to “no can do”, is rooted in<br />

American and British encounters<br />

with Chinese people speaking pidgin<br />

English. The second theory posits<br />

that it is derived from white settlers’<br />

early encounters with Indigenous<br />

Peoples in North America, later immortalized<br />

in Western films. Either<br />

way, this phrase is a rude mimicry<br />

of non-native English speakers’ attempts<br />

to speak English.<br />

It’s been a while.<br />

It’s been too long.<br />

It’s been ages.<br />

“Hi Bertha, it’s been too long<br />

since we have seen<br />

each other.”<br />

Hip Hip Hooray<br />

A cheer called out to<br />

express congratulation<br />

toward someone or<br />

something.<br />

“Three cheers for the<br />

bride and groom! Hip, hip,<br />

hooray!”<br />

The origin of this expression<br />

traces back to the German call<br />

“hep hep,” used as a signal to<br />

target Jewish individuals in the<br />

German Confederacy during<br />

the 1819 “Hep-Hep riots.” This<br />

phrase was later adopted by<br />

the Nazis as a means to gather<br />

Jews during the Holocaust.<br />

Over time, “hep hep” transitioned<br />

to “hip hip,” with “hooray”<br />

appended at the end.<br />

Hooray.<br />

Yay.<br />

Round of applause.<br />

“A round of applause for<br />

the bride and groom!”<br />

19


Phrase<br />

Origins<br />

How It’s Used<br />

Alternatives<br />

Grandfather clause<br />

“grandfathering”<br />

A person or company is<br />

exempt from following<br />

new laws.<br />

“The company rolled out<br />

new services and rates,<br />

with a grandfather clause<br />

for pre-2020 users.”<br />

American voting laws that “banned”<br />

race-based voting restrictions after<br />

slavery was abolished prohibited poor<br />

white men from voting under new<br />

restrictions based on literacy and land<br />

ownership. The “Grandfather Clause”<br />

was introduced to permit those<br />

caught by the new restrictions to vote<br />

if they could prove that their grandfather<br />

had the right to vote before the<br />

laws changed. No Black grandfathers<br />

had the right to vote while enslaved,<br />

so this exemption only applied to<br />

whites. As a result, race-based voting<br />

restrictions were maintained in the<br />

guise of a post-abolition meritocracy.<br />

Legacy clause<br />

Exemption clause<br />

“The company rolled<br />

out new services and<br />

rates, but pre-2020<br />

users are exempted<br />

and can keep their<br />

legacy rates.”<br />

Note, the offensive<br />

origins of the phrase<br />

“grandfather clause”<br />

are not improved<br />

by making it gender<br />

neutral. A “grandparent<br />

clause” is equally<br />

problematic.<br />

21


CHOOSE FROM CANADA’S TOP<br />

MEDIATORS AND ARBITRATORS<br />

Ronald M. Dash<br />

Ron has over 45 years of experience<br />

resolving a wide variety of<br />

commercial, employment,<br />

shareholder, joint venture,<br />

insurance, construction, and real<br />

estate matters as a mediator,<br />

arbitrator, Master of the Superior<br />

Court of Justice and litigator. He<br />

has a reputation for getting quickly<br />

to the heart of a dispute.<br />

Barry H. Bresner<br />

Barry is an arbitrator, mediator and<br />

investigator with over 40 years of<br />

experience handling complex<br />

commercial matters. He has<br />

expertise in disputes related to<br />

shareholder/partnership, contract<br />

interpretation, environmental<br />

liability, commercial insurance and<br />

reinsurance, and franchising. Barry<br />

is a Fellow of the Chartered<br />

Institute of Arbitrators.<br />

<br />

<br />

416.362.8555 • 1.800.856.5154 • booking@adr.ca • adrchambers.com


VIRTUAL VS. REALITY: AI IN PRACTICE<br />

AI and the Legal Profession:<br />

Will AI eliminate or augment<br />

the practice of law?<br />

Jeff Van Bakel (he/him), Scott Petrie LLP<br />

Currently, generative AI has the pesky habit of<br />

making things up. These errors are called “hallucinations”<br />

in the industry. An open-source<br />

model that draws information from various<br />

sources is only as reliable as the information<br />

the model is fed.<br />

There are currently more than 57,000 licensed<br />

lawyers in Ontario. The legal profession appears<br />

too big to fail. However, at its pinnacle, Blockbuster<br />

operated over 9,000 stores globally. Today<br />

there is one. Blockbuster collapsed due to its<br />

failure to embrace technological trends and the<br />

changing demands of its client base. The point<br />

being that the good times do not always continue<br />

to roll.<br />

The recent hype surrounding artificial intelligence<br />

(“AI”), and specifically generative AI, has<br />

been significant. OpenAI’s ChatGPT has been a<br />

bombshell since its release in November 2022.<br />

Generative AI refers to AI capable of generating<br />

text, images, or other media autonomously. It<br />

works by identifying patterns and structures<br />

from its source material and then generates<br />

original, human-like responses. Generative AI<br />

is becoming a disrupter for numerous industries,<br />

including the practice of law. It is incumbent<br />

upon lawyers in Ontario to embrace these<br />

changes in order to maintain a competitive advantage<br />

and to avoid going the way of Blockbuster.<br />

24<br />

25


In Worsoff v. MTCC 1168, 2021 ONSC 6493, Justice Myers ruled that “with the current pace of<br />

change, everyone has to keep learning technology. Counsel and the court alike have a duty of<br />

technological competency in my respectful view.” Similarly, the LSO’s Practice Management<br />

Guidelines state: “[l]awyers should have a reasonable understanding of the technologies used<br />

in their practice or should have access to someone who has such understanding.”<br />

Nine years ago, the Supreme Court of Canada ruled that the costs of civil proceedings made<br />

them inaccessible for the majority of Canadians. Access to justice was recognized as being the<br />

greatest problem facing the judicial system. It’s not hard to see a future where the court, or the<br />

LSO, imposes an obligation on lawyers to embrace the cost saving benefits of generative AI in<br />

order to achieve the principles set out in Hryniak. So, the obvious question presents itself: how<br />

can I use generative AI in my practice?<br />

“AI won’t replace lawyers, but<br />

lawyers who use AI will replace<br />

lawyers who don’t.”<br />

A simple Google search will reveal the hundreds of products on the market that use generative<br />

AI to purportedly compare and contrast contracts, redline clauses against “model” versions, and<br />

cross-references the clauses for compliance with designed legislation. The products generate suggested<br />

language.<br />

Gone are the days of trudging to the law library,<br />

pulling the O.R.s or other periodicals,<br />

and photocopying cases. Mercifully, the courts<br />

have now embraced Caselines, and hyperlinks<br />

to CanLII, which reduces the time and fees associated<br />

with preparing paper material. However,<br />

the legal analysis is still left to the lawyer.<br />

Generative AI can assist and buttress the legal<br />

analysis. AI-driven legal research platforms, like<br />

Casetext for example, can find cases with similar<br />

fact patterns, legal issues and jurisdictions.<br />

Bloomberg’s Brief Analyzer evaluates legal authorities,<br />

suggests relevant explainers, and links<br />

to related sources.<br />

If you have articled or juniored at a large firm, you will be familiar with the laborious task of performing<br />

document review and due diligence. There are various e-discovery tools that can categorize<br />

or “code” relevant documents automatically. For example, Logikcull is releasing a product<br />

called Logikbot AI, which has a feature called “Suggested Tags” that uses predictive analysis to automate<br />

coding based on other similarly tagged documents in a database. The product will express<br />

as a percentage how confident it is that the suggested code is accurate.<br />

I asked ChatGPT to draft a tolling agreement in accordance with Ontario law for fake parties. The<br />

result was satisfactory. The parties’ names were pre-populated, the document contained recitals,<br />

an entire agreement clause, signature lines, suggested definitions, and most importantly a clause<br />

confirming the parties agreed to “suspend the running of any statute of limitation or any other timerelated<br />

defence.” The Limitations Act, 2002, was not specifically referenced and there was no clause<br />

setting out how the tolling agreement could be terminated. However, the document was generated<br />

instantly and produced a sufficient working draft in less time than it would have taken to search my<br />

firm’s document management system for a precedent. It is ideal for simple, boilerplate precedents.<br />

26<br />

27


There are growing pains. Currently, generative AI<br />

has the pesky habit of making things up. These<br />

errors are called “hallucinations” in the industry.<br />

An open-source model that draws information<br />

from various sources is only as reliable as the<br />

information the model is fed. Additionally, the<br />

generated product is bereft of any caveats or<br />

insecurities. Accordingly, the product can have<br />

the obnoxious qualities of being both wrong and<br />

self-confident.<br />

The obvious example is the infamous story in<br />

Roberto Mata v. Avianca, from the Southern District<br />

of New York. US District Judge Kevin Castel<br />

castigated plaintiff’s counsel for using fake cases<br />

and citations generated by ChatGPT. In that case,<br />

the lawyer stated he was operating under the<br />

false perception that ChatGPT could not possibly<br />

be fabricating cases on its own. Remarkably, the<br />

lawyer did not bother reading the cases or confirming<br />

that the cases were real. Obviously, it is<br />

imperative that any AI generated content must<br />

be scrutinized and reviewed by the responsible<br />

lawyer before it is relied upon.<br />

In September <strong>2023</strong>, The Honourable Francois-Philippe<br />

Campagne, Minister of Innovation,<br />

Science and Industry, announced the<br />

release of the Voluntary Code of Conduct on<br />

the Responsible Development and Management<br />

of Advanced Generative AI Systems.<br />

The Code, which is not legislation, offers Canadians<br />

common standards so that they can<br />

willingly ensure that the development of generative<br />

AI is being done responsibly. There is<br />

currently no regulatory framework in Canada<br />

specifically addressing AI. It will be necessary<br />

for the legislature and the provincial law societies<br />

to weigh in shortly.<br />

It is hard to envision AI replacing the courtroom barrister. However, GPT-4 (an updated AI model released<br />

by OpenAI earlier this year) did pass the American Uniform Bar Exam in the 90th percentile.<br />

Barristers are still required to formulate novel arguments, read a room, and adjust strategies to context.<br />

That said, AI can and should be used to perform preliminary document review and legal analysis<br />

to reduce legal costs. Will the courts continue to award costs to a party that spent hundreds of<br />

hours of associates’ time to conduct document review when the task could have been accomplished<br />

more efficiently with AI? Technology is evolving at an exponential rate. I expect AI’s intervention into<br />

the legal profession will be gradual and eventually transformative. Those who choose to ignore the<br />

advent of this sea-change, risk being the last person on their street with a VCR. To steal a slogan<br />

currently making the rounds, “AI won’t replace lawyers, but lawyers who use AI will replace lawyers<br />

who don’t.”<br />

28


Q. How do you balance work, life, and community work?<br />

A. Ha! This question implies that I have figured out how to balance work, life, and community<br />

work. I’m not necessarily sure that anyone ever truly achieves the elusive concept of “balance”.<br />

I think of it more as a pendulum, with times in your career where your focus will swing more to<br />

work, as opposed to life and community work, and vice versa. My advice (which I received from<br />

a senior Partner and mentor in our Osler Women’s Network early in my career) is to not spread<br />

yourself too thin.<br />

INTERVIEW<br />

Interview with Lia Bruschetta<br />

(she/her), Osler, Hoskin &<br />

Harcourt LLP<br />

Compiled by Mana Khami (she/her), Borden Ladner<br />

Gervais LLP<br />

Lia Bruschetta is a partner in the Litigation Group at Osler, Hoskin & Harcourt LLP, where she has been<br />

her entire legal career. Lia also dedicates a lot of time to community work, and was recently recognized<br />

for her significant contributions to access to justice through her pro bono work.<br />

Q. You were recently recognized for your significant contributions to access to justice<br />

through your pro bono work. Tell us about your involvement with pro bono initiatives in<br />

Ontario over the years?<br />

A. I am a passionate pro bono ally, and I dedicate my focus on access to justice for self-represented<br />

litigants in Ontario. I started volunteering with Pro Bono Ontario’s court-based Law Help Centres when I<br />

was an articling student. Over the past decade, I’ve been a regular duty counsel volunteer at PBO’s Law<br />

Help Centres (and now the PBO’s Free Legal Advice Hotline) and I have also internally administered and<br />

championed Osler’s participation in those programs.<br />

Recently, I was honored to be named to PBO’s Honour Roll, for my volunteer contributions (donating<br />

at least 50 hours) to PBO’s Free Legal Advice Hotline.<br />

Q. What is your favourite quote of all time?<br />

A. The immortal words of Dory:<br />

“Just keep swimming.”<br />

Q. What is your pet peeve?<br />

A. In litigation, needless posturing. It doesn’t<br />

serve anyone: neither counsel or nor their<br />

clients.<br />

Q. What is your most proudest moment as a lawyer?<br />

A. My call to the bar in 2010. My parents, and all four of my grandparents who at the time were still<br />

with us, flew out from Vancouver to watch me walk across the stage at Roy Thomson Hall. As the first<br />

generation in my family to complete post-secondary education, becoming a licensed lawyer in Ontario<br />

is something that I was and remain incredibly proud of.<br />

32<br />

Q. What is your favourite part of your job?<br />

A. While I consider myself a fierce advocate, my favourite part of my job goes beyond the demands of<br />

my caseload. I am passionate about the people and community around me, and I work to find the time<br />

to support them. In addition to my volunteer work, another favourite part of my job is working with the<br />

next generation of talented students and associates at Osler.<br />

Q. Your favourite restaurant that you<br />

would recommend to someone from out<br />

of town?<br />

A. The Wood Owl! If you are ever in the east<br />

end, I insist that you “run, don’t walk” to try everything<br />

on their menu.<br />

Q. What do you look forward to every day?<br />

A. I have two adorable ragdoll cats named Kiko<br />

and Yoshi. I really love coming home to them (in<br />

addition to my husband, ha!). They are very sweet<br />

gentle cats, who are always happy to cuddle. If reincarnation<br />

is a thing, I’d love to come back in my<br />

next life as a cat.<br />

33


Q. What is at the top of your bucket list?<br />

A. Like so many of us post-COVID-19, my bucket list is entirely filled with places I’d like to travel to! At<br />

the top of the list are Mexico City and Japan.<br />

CHOOSE FROM CANADA’S TOP<br />

MEDIATORS AND ARBITRATORS<br />

Q. What is your advice to students/young lawyers about how to become a successful lawyer?<br />

A. The Honourable George R. Strathy has written and spoken extensively on the challenges that<br />

litigators face today, with a strong correlation between signs of depression and the traditional<br />

markers of career success in the legal profession. In his words, “the more successful they are<br />

in their field, the more likely lawyers are to experience mental health challenges”. I agree, and<br />

think that the truly successful litigators amongst us are those who define, clarify and protect their<br />

“non-negotiables”. For me, that has been ensuring time for family, friends, physical activity, mentorship,<br />

and community work, all of which fill my cup and build resilience against the external<br />

stressors that are inherent to practice as a litigator.<br />

Ed. note: Interested in getting involved in pro bono work to give back to your community? TAS members support<br />

a variety of initiatives across Canada, including Pro Bono Ontario where Lia has been a dedicated volunteer.<br />

More information is available on the TAS website here.<br />

Ontario Advocates - TAS’s Young Advocates’ Standing Committee is looking for volunteers for their PBO Legal<br />

Advice Hotline Week from February 5 - 9, 2024. Volunteer sign-up form here.<br />

Carol A. Albert<br />

J.D., LL.M. (ADR)<br />

Retired Construction Lien Master, SCJ<br />

Carol is available to act as mediator,<br />

arbitrator or referee for<br />

construction-related disputes. She<br />

has experience in case managing<br />

complex litigation and participating<br />

as a dispute board member on large<br />

construction projects. Carol is an<br />

honourary Fellow of the Canadian<br />

College of Construction Lawyers.<br />

Edward T. McDermott<br />

Ted has over 40 years mediation<br />

and arbitration experience, with<br />

particular expertise in labour and<br />

employment law. He has<br />

participated in wrongful dismissal,<br />

collective bargaining, human rights,<br />

employment law and labour<br />

relations cases. He is the Integrity<br />

Commissioner for several<br />

municipalities.<br />

<br />

<br />

416.362.8555 • 1.800.856.5154 • booking@adr.ca • adrchambers.com<br />

35


5e Gala Annuel de La Société des Plaideurs<br />

Le Windsor, Montréal, QC<br />

36 37


www.advocates.ca

Hooray! Your file is uploaded and ready to be published.

Saved successfully!

Ooh no, something went wrong!