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ADVOCACY MATTERS<br />

The Advocates’ Society<br />

WINTER <strong>2024</strong>


CONTENTS<br />

05<br />

07<br />

09<br />

12<br />

14<br />

18<br />

Chair Chat<br />

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

The Happy Lawyer Project<br />

Lisa Marie Buccella, Aviva Trial Lawyers<br />

Justice Delayed (Part 1) – Getting on the Docket<br />

Jeff Van Bakel (he/him), Scott Petrie LLP and Joe Thorne (he/him), Stewart McKelvey<br />

Word to the Wise: Paying Your Dues<br />

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

Inaugural MASC <strong>Winter</strong> Summit<br />

Eric Morgan (he/him), Kushneryk Morgan LLP<br />

Roundtable: The Fresh Perspectives of<br />

Foreign -Trained Lawyers<br />

Eric Morgan (he/him), Kushneryk Morgan LLP<br />

26<br />

30<br />

What Happens in the Boardroom, Doesn’t Stay in the<br />

Boardroom: A Reminder that Civility Still <strong>Matters</strong><br />

Lisa Marie Buccella, Aviva Trial Lawyers<br />

Interview with Shawn Richard, ASR Family and Estate Law<br />

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

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

More information is available on the<br />

TAS mentoring website page.<br />

TAS Junior Members are automatically<br />

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

Want to mentor? Opt-in to be a mentor on your<br />

TAS member profile.<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


CHOOSE FROM CANADA’S TOP<br />

MEDIATORS AND ARBITRATORS<br />

CHAIR CHAT<br />

Chair Chat<br />

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

Vineberg LLP<br />

John A. Campion<br />

In his more than 50 years of<br />

arbitration, mediation and litigation<br />

across Canada and internationally,<br />

John has developed recognized<br />

expertise in public law and private<br />

law. John has experience resolving<br />

disputes related to commercial,<br />

securities, governance, energy, family<br />

enterprise, class actions, real estate,<br />

public issues, corporate, estates,<br />

human rights and government issues.<br />

<br />

<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 />

As I sit here writing this, approximately 150<br />

mid-career advocates who are 10 to 20 years<br />

out from their call to the bar are about to gather<br />

together in Ottawa for our first-ever <strong>Winter</strong><br />

Summit. It is going to be an outstanding event,<br />

and I have no doubt that that we will have a lot<br />

to say about it in the next edition of <strong>Advocacy</strong><br />

<strong>Matters</strong>.<br />

In preparing for the conference, it dawned on<br />

me just how significant our cohort of not-quiteyoung<br />

advocates is—not only to the future of<br />

our profession but to its present. I may still like<br />

to think of myself and my peers as young (even<br />

though I just turned 40 and have my fair share<br />

of grey hair, which I blame my children for), but<br />

the reality is that we are already leaders within<br />

the litigation bar. We act as lead counsel in<br />

headline-making matters, department heads<br />

within our firms, owners of our own firms and<br />

leaders and important contributors to TAS. We<br />

have a fair amount of influence in shaping the<br />

justice system, and we should realize it and exercise<br />

it.<br />

In that regard, the civil justice system in Ontario<br />

is at a major, once-in-a-generation crossroads.<br />

The Government of Ontario has just announced<br />

that it is conducting a full review of<br />

the Rules of Civil Procedure as part of a plan<br />

to modernize the administration of justice in<br />

this province. This is not just a matter of minor<br />

adjustments to a select handful of rules. Significant<br />

reforms to fundamental elements of civil<br />

litigation may be on the table.<br />

As key participants in the civil justice system—now<br />

and for the next 20 to 30 years—it is<br />

imperative that we weigh in. We all know that<br />

the civil justice system is plagued by delay; if<br />

you have not already done so, read Delay No<br />

Longer. The Time to Act is Now. And you should<br />

also read this issue of <strong>Advocacy</strong> <strong>Matters</strong>, which<br />

includes Part 1 of a two-part series from Joe<br />

Thorne and Jeff Van Bakel on advancing cases<br />

in the face of serious delay.<br />

If we want to make changes to the way that<br />

civil litigation works in order to improve access<br />

to efficient and timely justice for our clients, we<br />

need to say so. The Committee that is overseeing<br />

the review process wants to hear from us.<br />

So whether you think that the way we approach<br />

pleadings should be overhauled, or discovery<br />

rights and obligations need to be modified,<br />

or motions practice needs to be re-evaluated,<br />

or the simplified procedure threshold should<br />

be increased—I encourage you to make your<br />

voice heard. I expect that you will hear a lot<br />

more from the Mid-career Advocates Standing<br />

Committee on this incredibly important initiative<br />

later this year and 2025.<br />

4 5<br />

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


THE BALANCED BREAK:<br />

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

The Happy Lawyer Project<br />

Lisa Marie Buccella, Aviva Trial Lawyers<br />

Get a Life – Outside of Work<br />

[H]obbies that oblige you to<br />

concentrate are very healthy.<br />

- Darryl Cruz<br />

Mid-career lawyers are often pulled in many<br />

directions: growing a career, raising a family,<br />

maintaining a household, and potentially caring<br />

for aging parents. Personal pursuits get pushed<br />

to the back burner or saved for retirement.<br />

Given their significant benefit to our wellbeing<br />

and happiness, it’s short-sighted to delay or ignore<br />

our hobbies and passions until we can find<br />

more time. Time is never ‘found’; it’s made.<br />

While hobbies are often viewed as activities<br />

separate from work, they are better understood<br />

as a form of cross-training: they serve as<br />

a respite from lawyering while simultaneously<br />

strengthening the muscles that make us better<br />

lawyers. Darryl Cruz, a partner at McCarthy<br />

Tétrault LLP in the Toronto Litigation Group,<br />

says: “Motorcycling and chess have a commonality<br />

in that they require a great deal of concentration.<br />

I feel that hobbies that oblige you to<br />

concentrate are very healthy. They give you an<br />

opportunity to focus and to work on getting into<br />

a zone that clears all other thoughts.”<br />

“Boating is a bit different,” he adds. “When you<br />

are on the water, you are separating yourself<br />

from the regular world.”<br />

Our profession is rife with dissatisfaction and<br />

burnout, so if you’re waiting for retirement to<br />

pursue your passions – reconsider. Recreational<br />

pursuits are enriching, generally linked to better<br />

physical and mental well-being and can help<br />

build a sense of identity outside of work. Ongoing<br />

investment in one’s self provides considerable<br />

short and long-term returns, and is the<br />

foundation for a thriving career and a meaningful<br />

life. What do you have on your ‘one day’ list<br />

that can move to your ‘today’ list?<br />

6<br />

7


JUDICIAL REFORM<br />

WE ARE<br />

LCM ATTORNEYS.<br />

WE SPEAK<br />

LITIGATION.<br />

In less than a decade since its founding in<br />

2014, LCM Attorneys has established itself<br />

as one of the most trusted litigation<br />

boutiques in Montreal.<br />

With wide-ranging expertise and true<br />

commitment to understanding our clients’<br />

needs, we can handle the most challenging<br />

matters, providing skilful advocacy,<br />

insightful advice and practical solutions.<br />

To celebrate our 10th anniversary,<br />

we decided to refresh our image.<br />

New logo, new website.<br />

Visit lcm.ca<br />

Jeff Van Bakel<br />

Joe Thorne<br />

Civil court dockets across the country are<br />

jammed. Whether as a result of the prioritization<br />

of criminal proceedings post-Jordan,<br />

COVID-related backlogs, lack of infrastructure,<br />

or understaffed courts – court time for civil<br />

matters is a vanishingly rare commodity.<br />

Much has been said about the epidemic of<br />

court delays – TAS published a call to action to<br />

the profession, the courts, and governments<br />

to address these delays in June 2023. You can<br />

read it here.<br />

Unfortunately, systemic issues are difficult<br />

to fix. As litigation procedures become increasingly<br />

complex, so too does the prospect for delay.<br />

And as recently noted by Justice Koehnen<br />

of the Ontario Superior Court of Justice, “delay<br />

begets delay.”<br />

What can we as advocates do to get into<br />

court as soon as possible, when a motion date<br />

Justice Delayed<br />

(Part 1) – Getting on<br />

the Docket<br />

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

LLP and Joe Thorne (he/him),<br />

Stewart McKelvey<br />

is 12, 18, or even 24 months out? We get creative.<br />

Even if we can’t control court access, we can<br />

control how we litigate and how we manage<br />

client demands.<br />

When we begin to head down the road of<br />

unnecessary or overbroad motions, it is hard<br />

to pull back. Trite as it may be to say, our first<br />

consideration should be: do we need to be on<br />

the docket at all? Does a motion or trial serve<br />

our client’s interest, or is it just a rote response<br />

to disagreement or resistance? How can we resolve<br />

that disagreement without waiting a year<br />

or more? Can we narrow the issues enough<br />

that, even if we ultimately need a judge to make<br />

the decision, the scope of the hearing is minimized<br />

to ensure we get on the docket sooner<br />

and that we use the court’s time efficiently?<br />

We have found, through bitter experience,<br />

9


that many disagreements can be resolved if<br />

there is collective acknowledgment that outof-court<br />

agreement is best. Sometimes, all it<br />

takes is a simple phone call.<br />

Further, we have civil procedure tools at<br />

our disposal to address these issues before<br />

they reach the docket. Demands for particulars,<br />

requests to admit, and interrogatories<br />

are all great examples of underutilized tools<br />

available under the rules that can efficiently<br />

develop the evidentiary record and move cases<br />

forward without lengthy hearings.<br />

But if out-of-court efforts fail to resolve the<br />

dispute entirely, there are other ways to get<br />

before a judge outside the “normal” process<br />

of scheduling a contested motion or trial:<br />

• Though not available in all jurisdictions,<br />

motions in writing are useful to get a decision<br />

without scheduling an appearance.<br />

In some courts, motions in writing are encouraged<br />

or mandatory. Where facts or<br />

credibility are not seriously disputed, a<br />

motion in writing is an excellent resource<br />

for litigants.<br />

• We can also take advantage of resources<br />

such as judicial mediations or settlement<br />

conferences. In most provinces, such procedures<br />

are available to address the proceeding<br />

as a whole, or discrete contested<br />

matters. In many jurisdictions, judicial mediations<br />

and settlement conferences are<br />

available much sooner than short or long<br />

motion dates.<br />

• In more complicated matters, consider<br />

case management. Where case management<br />

is available, disputes can be brought<br />

before the case management judge in writing<br />

or by case conference, usually much<br />

more quickly than conventional hearings.<br />

• Again, though not available in all jurisdictions,<br />

in some provinces there is a “triage<br />

list”, where matters that are set for a later<br />

hearing date can be moved up if an earlier<br />

date becomes available.<br />

It is our collective responsibility, as advocates,<br />

to find ways to effectively serve our clients’<br />

needs within the limitations of our civil justice<br />

system as well as to ensure the efficient use<br />

of court resources. We encourage everyone<br />

to get creative in that pursuit.<br />

DIGITAL FORENSICS &<br />

LITIGATION SUPPORT<br />

DFI Forensics comprises a skilled<br />

group of digital forensics experts, led<br />

by a former lawyer, well-versed in legal<br />

proceedings.<br />

Our expertise lies in scrutinizing digital<br />

devices to uncover details about their<br />

involvement in illicit activities,<br />

bolstering legal cases with top-notch<br />

digital evidence.<br />

Digital forensics done right!<br />

Computer and Mobile Phone<br />

Forensics<br />

Ed. note - In Part 2 of “Justice Delayed,” coming out in our Spring Issue, we will explore longer term<br />

solutions for the civil delay epidemic.<br />

Employment Law and IP Theft<br />

Cases<br />

Expert Witness Reports and<br />

Opinion Evidence<br />

Metadata Analysis<br />

Anton Piller Order Support and<br />

Collection of Data<br />

dfiforensics.ca<br />

info@dfiforensics.ca<br />

10<br />

1-800-851-9321<br />

11


WORD TO THE WISE<br />

Word to the Wise:<br />

Paying Your Dues<br />

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

As Mid-Career Advocates, we’ve all paid our dues<br />

in the profession. We’ve done mind-numbing<br />

doc review and pulled all-nighters on countless<br />

research memos. We’ve prepared court materials<br />

for hearings that others get to argue. We’ve<br />

gone cross-eyed editing 8-point font citations.<br />

We’ve drafted articles and case comments that<br />

others claim authorship over. We’ve brought<br />

in clients without credit for origination. We’ve<br />

been yelled at. We’ve been ignored. We’ve been<br />

assigned cases that we didn’t want. We’ve had<br />

meetings and court appearances put in our<br />

calendar without a thought for our availability.<br />

We’ve cancelled vacations. We’ve worked evenings<br />

and weekends. We’ve dealt with overt<br />

and insidious sexism, racism, ageism and other<br />

-isms from our clients, opposing counsel and<br />

even our own colleagues.<br />

We’ve endured all this as a means of learning<br />

the ropes and earning status in our firms and in<br />

the profession.<br />

So now here we are, near the top of the hill,<br />

coming into positions of power after long and<br />

gruelling years. It feels good. It’s a relief. We now<br />

have greater autonomy over our time, the cases<br />

we take on, the clients and colleagues we work<br />

with, and the trajectory of our careers. We’ve<br />

learned a lot, and we have the battle scars to<br />

prove it.<br />

Many of us credit our current success with the<br />

lessons learned in the pits. From our suffering,<br />

we say, skills and wisdom emerged. We grew<br />

thick skins in response to harsh, personal criticism.<br />

We developed resilience by being yelled<br />

at. We have made an art of multitasking in order<br />

to hit billing targets while remaining fed and<br />

watered. We perfected our poker faces, laughing<br />

off aggressions (both micro and macro). So<br />

now that we are in leadership positions in our<br />

firms, we think that the next generation needs<br />

to go through the same hazing process we endured<br />

to gain the wisdom and skills we now enjoy.<br />

The next generation disagrees. In an open<br />

letter to “Gen X Boss” on LinkedIn, a millennial<br />

woman had this to say:<br />

“What if we aren’t successful because of the suffering we<br />

endured in our dues-paying years, but despite it?”<br />

This sounds like something a Gen Xer would have said to a Boomer boss 20 years ago. Have we become<br />

Boomers? Gasp!<br />

Let’s ask ourselves: was the suffering we endured worth it? Was it necessary to develop the skills and<br />

traits that led us to be successful advocates? What if we aren’t successful because of the suffering we<br />

endured in our dues-paying years, but despite it? What if we could have been even better if we only had<br />

to focus on the steep learning curve of the practice of law, instead of juggling abuse, political dynamics,<br />

and inconsideration? What if we can continue expanding our skillsets by critically assessing what worked<br />

- and what didn’t - from our own training experiences and finding new ways to impart wisdom and skills<br />

to the next generation with kindness. The practice of law is hard enough. The workplace need not be.<br />

12 13


The Hon. Justice Mahmud Jamal of the Supreme Court of Canada, and some delegates enjoyed<br />

a private tour of the SCC hosted by The Hon. Justice Karakatsanis. The conference also offered<br />

delegates a lot of social time to build new connections, including receptions, dine-arounds, and a<br />

Friday night gala dinner that welcomed some members of the local judiciary and TAS Directors.<br />

Below are some of the thoughts from some Big Chill participants:<br />

Thanks to The Advocates’ Society for organizing this important space<br />

for discussions about law firm and legal leadership, and especially important<br />

were discussions about many of the challenges of mentoring<br />

across generational divides.<br />

-Tracy Brown (she/her), Brown Law Group, Edmonton<br />

EVENT REPORT<br />

[T]he behind the scenes, candid interviews with SCC judges on their<br />

approach to leaves, factum reading and writing, and advocacy was<br />

very useful indeed.<br />

-Tom Posyniak (he/him), Fasken, Vancouver<br />

Inaugural MASC <strong>Winter</strong><br />

Summit<br />

Eric Morgan (he/him), Kushneryk Morgan LLP<br />

MASC hosted its inaugural <strong>Winter</strong> Summit: The Big Chill in Ottawa from February 1 to 3, <strong>2024</strong>.<br />

Over three days at the Château Laurier, over 150 mid-career advocates from across the country<br />

met to share ideas about giving and receiving mentorship; bridging generational differences;<br />

taking on leadership positions; and focusing on mental health, for themselves and others.<br />

The CPD sessions combined panel discussions with roundtable break out sessions for peer-topeer<br />

learning. The program also featured a fireside chat with The Hon. Justice Suzanne Coté and<br />

The roundtable discussions provided unique opportunities for candid<br />

discussions and gaining a new perspective on some common leadership<br />

challenges, all the while permitting an enjoyable networking<br />

occasion.<br />

-Jessica Harding (she/her), Osler, Montreal<br />

14 15


Congratulations to everyone who supported this incredible first conference dedicated to mid-career<br />

advocates. In particular, thanks to the conference co-chairs who worked diligently to create and execute<br />

the program - Erin Durant of Durant Barristers, Brian Duong of Hunter Litigation Chambers, Jennifer Hunter<br />

of Lerners LLP, and David Thompson of Carroll Heyd Chown.<br />

Also thanks to our sponsors who supported the program - Premier Sponsor KPMG, Breakfast Sponsor<br />

Conway Litigation, Networking Break Sponsors David & Sauvé LLP and Durant Barristers, and Supporting<br />

Sponsors Caza, Saikaley, Gowling WLG, Soloway Wright, Olthuis Kleer Townsend LLP, and Richter<br />

LLP.<br />

Get Involved!<br />

Interested in getting more involved with TAS?<br />

Applications are now being accepted for the<br />

Mid-Career Advocates’ Standing Committee<br />

(MASC).<br />

TAS welcomes applications to MASC<br />

from Society members who are about 8<br />

to 20 years of call.<br />

MASC seeks engaged, hard-working volunteers<br />

who are TAS members between 8 and<br />

20 years of call to promote the interests of<br />

mid-career advocates across Canada. MASC<br />

members plan and implement programming<br />

and networking events, and publish <strong>Advocacy</strong><br />

<strong>Matters</strong> newsletter with content tailored<br />

to the mid-career demographic.<br />

Successful candidates will serve a two-year<br />

term starting in June <strong>2024</strong>. Parental and<br />

medical leaves will be accommodated. MASC<br />

welcomes candidates from across Canada, in<br />

diverse advocacy practices.<br />

Deadline to apply: March 8, <strong>2024</strong>.<br />

APPLY FOR MASC <strong>2024</strong>/25 TERM<br />

CLICK HERE<br />

Questions? Please contact the MASC incoming<br />

Chair Sonu Dhanju-Dhillon at sdhanju-dhillon@<br />

torkinmanes.com.<br />

16 17


Internationally-trained lawyers bring a wealth of<br />

much-needed diversity of experience, knowledge<br />

and approaches to the legal industry.<br />

Foreign-trained lawyers can face challenging paths toward practicing law<br />

in Canada, including adapting to new legal systems and overcoming credential<br />

recognition barriers. Despite these hurdles, their international legal<br />

backgrounds offer a wealth of unique perspectives and distinctive problem-solving<br />

approaches. This roundtable sparks the dialogue, examining<br />

their contributions and challenges, and envisioning pathways to further integrate<br />

and empower a diverse cohort of foreign-trained lawyers within Canada’s<br />

legal community.<br />

ROUNDTABLE<br />

Roundtable: The Fresh<br />

Perspectives of Foreign<br />

-Trained Lawyers<br />

Eric Morgan (he/him), Kushneryk Morgan LLP<br />

Claudia Cappuccitti (she/her) is a partner at Dyer Brown LLP’s Insurance Claims Defence<br />

group in Toronto. She vigorously advocates for her clients’ interests in tort matters involving<br />

motor vehicle accidents. Claudia holds a Bachelor of Laws (LL.B.) from Queen Mary,<br />

University of London in the UK.<br />

Matthew Karabus (he/him) is a partner in the Commercial Litigation and Arbitration<br />

groups of Gowling WLG’s Toronto office. He has a wide range of commercial dispute resolution<br />

experience. Matthew holds a law degree from the University of Cape Town, South<br />

Africa.<br />

Omolara Oladipo (she/her) is a dual-qualified lawyer (Nigeria and Alberta) with almost<br />

two decades of experience in a practice which spans administrative law, environmental<br />

law, occupational health & safety law, municipal law and civil litigation.<br />

Valarie Matthews (she/her) is a partner at McCarthy Hansen & Company LLP. Valarie represents<br />

and advises clients on all issues related to divorce, parenting, spousal and child<br />

support. Originally from Atlanta, Valarie has a law degree from Harvard University and<br />

prior to joining MHC, Valarie practiced competition and antitrust law in Washington, D.C.<br />

18 19


What were the main challenges you faced transitioning from a<br />

foreign-trained lawyer to practicing in Canada?<br />

MK: The main challenges I faced were (1) my own lack of knowledge about the local legal market; (2) my<br />

own difficulties integrating into the local culture; and (3) the local community’s lack of familiarity with and<br />

recognition of foreign credentials (at least where I was from).<br />

CC: Getting my foot in the door was certainly the biggest challenge. If you weren’t attending one of the<br />

schools from which a law firm recruited, you were ineligible for the first step in their process. Things have<br />

changed over the last 10 years, but there’s still room for improvement.<br />

VM: I found the entire NCA [National Committee on Accreditation] process, which assesses the legal education<br />

and professional experience of individuals who obtained their legal credentials outside Canada,<br />

to be a serious roadblock to practice as it took a long time to get through the exams and the cost was<br />

also prohibitive. The timing of the NCA process is also not coordinated with the timing of provincial bar<br />

exams.<br />

Are there specific areas of law or legal skills where you believe<br />

foreign-trained lawyers bring a unique perspective?<br />

MK: A comparative legal perspective is very helpful both because the fundamentals of legal reasoning<br />

might be more apparent to those with that perspective (because those fundamentals are the same<br />

among different systems) and because one has a default alternative manner of addressing particular<br />

legal problems.<br />

OO: Internationally-trained lawyers bring a wealth of much-needed diversity of experience, knowledge<br />

and approaches to the legal industry. On an academic level, most internationally-trained lawyers have<br />

had to take core legal courses more than once to get where they are.<br />

OO: It contributes to building a foundation for what is hopefully a life-long career. The more people appreciate<br />

the diversity you bring to the industry and rely on it, the better a lawyer they will make and get.<br />

Being merely “othered” with not much more helps no one.<br />

CC: Diversity and inclusion, in my view, should be as important for foreign-trained lawyers as it is for<br />

those trained in Canada—it enriches us all by bringing varied perspectives to the workplace and to the<br />

work we do for our clients.<br />

Have you encountered any misconceptions or stereotypes about foreign-trained<br />

lawyers in Canada, and if so, how do you address or challenge<br />

them?<br />

VM: Yes! I think people assume that foreign-trained lawyers are not as qualified as lawyers trained in<br />

Canada, which is so far from the truth. Especially when it comes to securing articling experiences, I have<br />

heard stories of lawyers being passed over because people are worried about language challenges or<br />

quality of the work, more generally. I have been extremely fortunate to have a degree from an internationally<br />

recognized law school and to come from a country that most Canadians are very familiar with.<br />

But for those who don’t have the same advantages, I have tried to assist on a personal level by mentoring<br />

and assisting people with making contacts in the legal community.<br />

OO: Most people bring their cultural competencies to the workplace, along with attendant biases and<br />

misconceptions. I used to think if you didn’t address them, your life would be easier. I don’t necessarily<br />

challenge; I educate. I need people to understand that being an internationally-trained lawyer doesn’t<br />

mean you got a lower quality of education. Above all, I tell people: When in doubt, ask the person concerned<br />

what works for them.<br />

If you could time travel, what advice would you give your past self when<br />

you were just starting your journey to practice law in Canada?<br />

Why is diversity and inclusion important for foreign-trained lawyers in<br />

Canada?<br />

VM: How could it not be? Clients come from all different types of backgrounds and having lawyers who<br />

can not only understand the differences, but may also have personal knowledge of significant cultural<br />

practices or events, can be critical to ensuring appropriate representation in some cases. Especially as a<br />

family lawyer, when we’re dealing with the substance of people’s most personal relationships, if there is<br />

a cultural or other difference that may have an impact on a resolution or the ability to move the case forward,<br />

then having lawyers who can navigate those issues with sensitivity can result in a better outcome<br />

for the whole family.<br />

CC: Is ‘stop and smell the roses’ too corny? It’s sometimes hard to appreciate how much fun this job is<br />

when you’re working long hours in high-stress situations in your first few years, but this job really is a lot<br />

of fun and it only gets better as time passes. But if you take a moment to reflect on what you’ve learned,<br />

how much you’ve grown, the challenges you’ve overcome over the last year, month, day – some days<br />

even the hour – it’s encouraging to see that progress and it pushes you through the tougher moments.<br />

VM: I think my only advice would have been to give myself a bit more grace when it came to the culture<br />

shock that I experienced. Although Toronto is very diverse, as a Black person moving from Washington,<br />

D.C. to Toronto, it was also a shock to no longer see many people who looked like me.<br />

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What advice would you give to other foreign-trained lawyers who are<br />

considering pursuing a legal career in Canada? Are there particular steps<br />

or resources that were especially helpful to you?<br />

OO: Revisit the process of accepting articling students. There are obstacles to finding articling positions<br />

for internationally-trained lawyers, many of whom are already practicing lawyers with life demands and<br />

other familial and financial pressures. Law firms need to recognize and utilize the special and diverse<br />

skills and views that internationally-trained lawyers bring by virtue of their previous experiences.<br />

MK: (1) Canadian lawyers may be more prepared than you might expect to give up their time and speak<br />

with you; (2) connect with the organization set up for Internationally Trained Lawyers and National Committee<br />

on Accreditation lawyers to learn about the fundamentals of, and opportunities for, local legal<br />

recruitment.<br />

CC: Get involved. Getting involved in a local legal organization is a great way to build your network and<br />

connect with other advocates. The Advocates’ Society is an incredible resource — for those within their<br />

first 10 years of practice, I would encourage them to apply for a spot on the Society’s Young Advocates’<br />

Standing Committee (YASC) when applications open up in late January. In the meantime, get out to<br />

YASC events and consider joining YASC’s volunteer roster (details are all at advocates.ca).<br />

OO: Seek out people with similar experiences for their knowledge, BUT don’t make associating with only<br />

people of similar background or experience your main or only goal. You hopefully came to Canada for<br />

its diversity. Find and approach mentors, lawyers and businesspeople alike.<br />

VM: There are some groups, like the NCA Network, that have started to build communities for foreign-trained<br />

lawyers, but my impression is that many foreign-trained lawyers end up working as law<br />

clerks – if they can get into the legal job market – or are resigned to work in other completely unrelated<br />

fields. There needs to be leadership from the top of the profession to educate themselves about the relative<br />

strengths of lawyers trained in other jurisdictions so that there is less stigma attached to credentials<br />

from other countries – especially non-Western countries.<br />

Most people bring their cultural competencies to the workplace, along<br />

with attendant biases and misconceptions. I used to think if you didn’t<br />

address them, your life would be easier. I don’t necessarily challenge; I<br />

educate.<br />

22<br />

VM: I think that the most important thing that any foreign-trained lawyer can do is to manage their expectations<br />

and to take care of themselves – it will likely take longer than you are expecting and there will<br />

be many times when you feel discouraged, but it only takes one person saying yes.<br />

In what ways can the legal community better support foreign-trained<br />

lawyers in their career journeys?<br />

CC: Give them an opportunity. While it’s easy to bring in those candidates for interviews whose transcripts<br />

you understand, whose previous employers you recognize, and who volunteer for the same organizations<br />

you do, take a chance on someone that might not be the typical candidate on paper and grant<br />

them an interview. You may find that the grit and determination they bring to the table outweighs the<br />

fact that they went to school outside Canada.<br />

MK: The legal community should recognize in their own self-interest (just as engineers, accountants, etc.<br />

have done) that there is a vast pool of generally untapped talent overseas.<br />

Looking ahead, what do you envision for the future of foreign-trained<br />

lawyers in the Canadian legal landscape, and what steps can be taken to<br />

further integrate and empower this diverse group within the profession?<br />

VM: My hope is that lawyers trained in any country will feel that they can succeed in Canada and that<br />

there will be lawyers in law firm leadership positions and in positions of authority who are not originally<br />

from Canada and who did not earn their law degree in Canada. In terms of empowering foreign-trained<br />

lawyers – as with any group, I think seeing people succeed in the profession who have a similar background<br />

as you will go a long way to opening people’s minds to what’s possible, and I think that it’s important<br />

for groups who are in a position to help foreign-trained lawyers – like The Advocates’ Society and<br />

other legal associations– to start actively identifying and planning programs for foreign-trained lawyers<br />

so that they feel supported by the profession.<br />

OO: I think the legal profession is evolving and hopefully will only get better at absorbing this relatively<br />

untapped well of lawyers. Involving internationally-trained lawyers in legal and management work at<br />

their actual level of experience – as opposed to the assumption that every articling student should be<br />

treated as equally junior – would be beneficial to both internationally-trained lawyers and to the law<br />

firms that employ them.<br />

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“When engaged in a disagreement with counsel,<br />

simply state your position and move on. Don’t let<br />

your emo tions get the best of you.”<br />

According to Chapter 5 of the Ontario Rules of Professional Conduct,<br />

advocates must “raise fearlessly every issue, advance every argument<br />

and ask every question”, but they must also be civil and honest.<br />

The incivility of counsel often arises during the discovery process,<br />

where examinations proceed without judicial oversight. The<br />

following are two examples of inappropriate conduct during discoveries<br />

that were penalized by the courts.<br />

Singh et al. v. Braich involved a personal injury discovery dispute between<br />

a senior defence lawyer and a junior plaintiff lawyer. When<br />

the junior lawyer limited the scope of questions twenty-two minutes<br />

into an examination, the senior lawyer claimed that the refusal<br />

hindered the flow of his discovery, refused to proceed with the discovery,<br />

and refused to attempt to address the issue off the record.<br />

He further sought, by way of motion, his costs under Rule 34.14(2)<br />

(b), a rule which allows a lawyer to stop an examination if there are<br />

improper objections or interruptions, or if the person is evasive,<br />

non-responsive, or verbose.<br />

CIVILITY IN ACTION<br />

What Happens in the Boardroom,<br />

Doesn’t Stay in the Boardroom: A<br />

Reminder that Civility Still <strong>Matters</strong><br />

Lisa Marie Buccella, Aviva Trial Lawyers<br />

In dismissing the 34.14(2)(b) motion, Justice Rahman was highly<br />

critical of the senior defence lawyer for his “abuse of this Rule” and<br />

for not following the junior lawyer’s suggestion to resolve the issue<br />

off the record. Justice Rahman called out the senior lawyer’s behavior<br />

as bullying, inconsistent with the spirit of co-operation between<br />

counsel that is recommended and expected by the court. The motion<br />

backfired on defence counsel and costs were awarded in favour<br />

of the plaintiff.<br />

In Neilson v. The Commonwealth Mutual Insurance Group et al., a fire<br />

loss case, a senior lawyer for the plaintiffs acted rudely and disruptively<br />

to opposing counsel, terminated the defendants’ discovery,<br />

and then moved to compel the defendants to come back and answer<br />

more questions. Justice Fraser denied the motion, blaming the<br />

26<br />

27


senior lawyer for delay and interference at the examinations of the defendants. Since the plaintiffs’ lawyer<br />

chose to end the examinations early even though the representatives were ready to continue and<br />

answer questions, Justice Fraser rejected his request to make the defendants re-attend for discovery. In<br />

his endorsement, Justice Fraser awarded substantial indemnity costs to the defendants in the amount<br />

of $25,284.37. Justice Fraser accepted that costs on a substantial indemnity basis were warranted on<br />

account of plaintiffs’ counsel’s conduct being a “marked and unacceptable departure from the standard<br />

of reasonable conduct which is expected of a player in the judicial system.”<br />

These decisions are an important reminder that the rules of civility will be enforced throughout the<br />

discovery and litigation process and that there are consequences for ill-mannered behavior.<br />

Unfortunately, opposing counsel sometimes engage in tactics to get under our skin and prompt an<br />

uncivil response. Resist the temptation. As Craig Lockwood, litigation partner at Osler, advises: “When<br />

engaged in a disagreement with counsel, simply state your position and move on. Don’t let your emotions<br />

get the best of you. At the same time, if someone else is being unfair to you, stand your ground.”<br />

Paul Barnes, senior legal counsel at Intact Insurance, agrees it’s important not to give into anger and<br />

keep a normal tone of voice, “kind of how Luke Skywalker refused to give into the temptation of the dark<br />

side of the force at the end of Return to the Jedi”. Barnes qualifies this advice by saying that sometimes<br />

it is justified to terminate a discovery and obtain instructions from the court, but only in the clearest of<br />

circumstances. The Singh case was not one of those circumstances.<br />

At the end of the day, lawyers would be wise to heed Justice Rahman’s warning in Singh that, “the way<br />

we behave inside a boardroom might make its way before a judge. And the judge might see things very<br />

differently than they do”.<br />

The Advocates’ Society has published Principles of Civility and Professionalism for Advocates to foster civil<br />

and professional conduct in our adversarial justice system, and thereby improve the administration of<br />

justice. The Principles include information about an advocate’s duty to opposing counsel and best practices<br />

for examinations, cross-examinations, and questioning.<br />

28<br />

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Q. What is one thing that surprised you about the practice of law?<br />

A. In the summer after high school, I sold shoes at the Eaton Centre. I found that people will tell<br />

you a lot about themselves when buying shoes. One day, I sold a pair to a young lawyer who told<br />

me never to enter the profession. He said it was the biggest regret of his life and that there was<br />

nothing redeeming about the profession. I believe he described it as “soul-sucking”. I have been<br />

surprised by how rewarding it can be.<br />

Q. What was your first job?<br />

A. Washing dishes at the Red Lobster until the manager found out that I was only 10 years old and<br />

promptly, but politely, fired me.<br />

Q. Do you consider yourself an introvert<br />

or an extrovert?<br />

A. Both, I think.<br />

Q. Tell us one thing on your bucket list?<br />

A. Renovate a house - involving contractors<br />

only for the really deadly parts.<br />

INTERVIEW<br />

Interview with Shawn Richard<br />

(he/him), ASR Family and Estate<br />

Law<br />

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

Gervais LLP<br />

A. Shawn Richard practices family and estates litigation at ASR Family and Estate Law. Shawn is a full<br />

member of STEP (Society of Trust and Estate Practitioners), a fellow of the International Academy of<br />

Family Lawyers, and is Past President of the Canadian Association of Black Lawyers. He currently serves<br />

on the Board of Directors for The Advocates’ Society.<br />

Q. Tell us something about yourself<br />

that is not on your resume?<br />

A. I habitually take on physical projects that<br />

I have no business doing, like building furniture<br />

or renovating.<br />

Q. Do you have any pets?<br />

A. I have two of them: Spotty, a house cat,<br />

and, Malcolm, a pandemic cockapoo<br />

Q. What is something you have previously<br />

done, which you will never do again?<br />

A. That stays in the vault.<br />

Q. What is something you<br />

saw recently that made you<br />

smile?<br />

A. The look of horror when my<br />

family realized that I had bought<br />

us all matching cat sweaters. I<br />

like them.<br />

Q. What are your short-term goals for your career?<br />

A. To continue to build my practice, serve my clients the best that I can, find ways to contribute to the<br />

profession, and be a bit more curious and patient.<br />

Q. Who is your favourite musical artist?<br />

A. That’s a hard one. I don’t think that I have one, but “The Miseducation of Lauren Hill” (1998), Sade<br />

whenever she’s in concert, “Body and Soul Billie Holiday” (1957), “Dummy Portishead,” David Bowie (most<br />

iterations), “Hope She’ll Be Happier Live” at Carnegie Hall (October 1972) Bill Withers, Queen, Massive Attack,<br />

Aretha Franklin, and “Kid A” by Radiohead are on the shortlist. Afrobeats is completely disrupting<br />

the list, but it’s too early to say more at this point.<br />

30 31


Q. What is something you would want<br />

to tell your 12-year-old self?<br />

A. It’ll be ok. Be kinder to yourself. Listen<br />

more, including to yourself.<br />

Q. What is your best advice for someone<br />

who is looking to enter the legal profession?<br />

A. Find an issue or a cause, find something to<br />

positively contribute to in the profession or<br />

the broader community involving the law. Try<br />

to be principled when dealing with people, especially<br />

when it’s really difficult.<br />

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<strong>Winter</strong> Summit: The Big Chill Ottawa<br />

Februrary 1-3, <strong>2024</strong> | Fairmont Château Laurier<br />

Name, Firm<br />

34 35


www.advocates.ca

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