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The Advocates’ Society<br />

FALL <strong>2023</strong>


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 />



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



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 />



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 />


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 />


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 />


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 />


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 HUDDLE.<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 />


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 />


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 />


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 />






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 />


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 />




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


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 />


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 />


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 />


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 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 />


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 />



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 />


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

Le Windsor, Montréal, QC<br />

36 37


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