Keeping-Tabs-Spring-2024

KEEPING TABS
The Advocates’ Society
SPRING 2024

CONTENTS
05
08
10
13
17
22
24
Chair Chat
Chris Kinnear Hunter (he/him), Torys LLP
A Cheat Sheet for Commercial Litigators: Key
Procedural Differences Between Lien Actions and
Other Actions
Cassie Chaloux (she/her), WeirFoulds LLP
In Favour of Efficiency: A Comment on Conditional
Certification in Class Action Proceedings and
Vecchio Longo Consulting Services Inc. v Aphria Inc.,
2021 ONSC 5405
Tom Russell (he/him), Stieber Berlach LLP
Arnup Cup Report
Tomislav Miloš (he/him), MMW LLP
Practice Pitfall: Avoiding a “Handley” Stay Motion
Robert Stellick (he/him), Adair Goldblatt Bieber LLP
Judgment and Restraint: Litigating Against the
Self-Represented
Sarah E. Naughton (she/her), Cunningham, Swan, Carty, Little &
Bonham LLP
Interview with Abdalla Barqawi (he/him), Conway
Baxter Wilson LLP/s.r.l.
Compiled by Ali Háji (he/him), Ricketts Harris LLP
More information is available on the
TAS mentoring website page.
TAS Junior Members are automatically
signed up. Click here to set up your
profile today!
Editor: Eric Blay (he/him), Stikeman Elliott | eblay@stikeman.com
Deputy Editor: Julie Mouris (she/her), Conway Baxter Wilson LLP/s.r.l. |
jmouris@conwaylitigation.ca
Keeping Tabs Editorial Team: Katrina Crocker, Henein Hutchison Robitaille LLP, Lisa Delaney (she/her), Cox & Palmer, Aly Háji (he/him), Rickets Harris LLP, Glynnis
Hawe, Paliare Roland Rosenberg Rothstein LLP, Karlson Leung (he/him), Ministry of the Attorney General, Crown Law Office and Jean-Simon Schoenholz, Norton Rose Fulbright LLP
2
2 3
Want to mentor? Opt-in to be a mentor
on your TAS member profile.
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a voice for young advocates (advocates
who are ten years of call or fewer) within the Society and within the profession. We do this through networking/mentoring events, by publishing articles by and
for young advocates, and by raising issues of concern to young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual
authors are their own and do not necessarily reflect the policies of The Advocates’ Society.

WHAT’S COMING UP @ TAS
(Click on the program to learn more)
MAY 7
Construction Law
Advocacy (Ontario)
MAY 8
Questioning for Family
Lawyers
MAY 8
Questioning for Family
Lawyers Skills Workshop
CHAIR CHAT
MAY 8
Young Advocates’
Speed Mentoring
(Toronto,ON
In Person)
MAY 9
The John P. Nelligan
Award for Excellence
in Advocacy Dinner
(Ottawa, ON,
In Person)
MAY 15
The Art of Settlement
(National, CA, Via
Zoom)
(Ontario, Via Zoom)
MAY 9
First Time in the
First Chair
(BC, Via Zoom)
MAY 15
Mid-Career Women’s
May Mixer
(Toronto, ON, In
Person)
(Ontario, Via Zoom)
MAY 14
Artificial Intelligence for
Litigators: AI in Court
(National, CA,
Via Zoom)
(Ontario, Via Zoom)
MAY 9
Securities Litigation
Spring Social
(Toronto, ON,
In Person)
MAY 14
Insolvency Litigation
Spring Patio Social
(Toronto, ON,
In Person)
Chair Chat
Chris Kinnear Hunter (he/him), Torys LLP
I rarely know what I want to say in these chair
chats until I sit down and write them. I always
know how they’ll end though: with a little
throw-away line to mention that our editorial
team at Keeping Tabs would love to hear from
young advocates interested in contributing a
piece to a future edition.
While I can’t speak to cause and effect, to
my pleasant surprise, we were inundated by
submissions for this edition. And though that
created a more difficult task than usual for our
editors, I think you’ll enjoy the final product.
You’ll find in these pages a primer on Handley
motions (aka the deadliest practice pitfall
since limitation periods) by Rob Stellick, some
advice on litigating against self-represented
parties from Sarah E. Naughton, an inspiring
interview with Abdalla Barqawi touching on
his experience as a visually impaired lawyer,
a cheat sheet on the key differences between
lien actions and traditional actions from Cassie
Chaloux for those brave enough to dip their
toes in that water, a compelling argument by
Thomas Russel in favour of earlier staging of
Vecchio orders in the class action context, and
a report on this year’s Arnup Cup trial moot by
Tomislav Miloš.
Without further ado then, I’ll leave you to it. As
always, my sincere thanks go out to the Keeping
Tabs’ editorial team for their work putting
this edition together. Oh and by the way, our
lead editor, Eric Blay, would love to hear from
you if you’d like to contribute a piece to a future
edition.
4 5

THE ADVOCATES’ SOCIETY
2024 END OF TERM
DINNER
Keynote Speaker:
The Hon. Robert Rae, PC, CC, OOnt, KC
Ambassador and Permanent Representative of
Canada to the United Nations in New York
Wednesday, June 26, 2024
Click here for event details!
COCKTAIL RECEPTION
SPONSOR
DINNER WINE SPONSOR
AFTER PARTY SPONSORS

of intent to defend” in a lien action. An extension of time to deliver a defence is normally obtained
through an indulgence from counsel.
There is no right to reply in a lien action. Similarly, a non-party cannot be added by way of a
counterclaim or by way of third-party claim other than a claim for contribution and indemnity in
a lien action. 8
In keeping with the summary character of lien actions, pleadings can be served in any manner
permitted by the Rules, or by certified or registered mail to the recipient’s last known mailing address.
9
Joinder
ADVOCACY
A Cheat Sheet for Commercial Litigators:
Key Procedural Differences Between Lien
Actions and Other Actions
Cassie Chaloux (she/her), WeirFoulds LLP
As a commercial litigator in Ontario, it is more than likely that a construction dispute will come
across your desk. While there are many nuances to lien actions that are not caught below, this article
will highlight some of the key procedural differences between lien actions and other actions
for litigators looking to nail it every time.
General Principles
The Construction Act (the “Act”) 1 and its regulations
2 govern the procedure of a lien action.
As a starting point, the Act provides that a lien
claim is enforceable in an action in the Superior
Court of Justice 3 , and the Rules of Civil Procedure
(the “Rules”) 4 and the Courts of Justice Act 5 apply
to lien actions unless they are inconsistent with
the Act. 6
The Act requires lien actions to be of a sum-
mary character, as far as possible, having regard
to the amount and nature of the lien in
question. 7
Pleadings
In contrast to the Rules, a statement of claim in
a lien action must be served within ninety days
after the claim is issued. While the time for delivery
of a statement of defence is the same in a
lien action as other actions, there is no “notice
A lien action can only be joined with a claim for breach of contract. A breach of trust claim cannot
be joined with a lien action. 10 After the delivery of all statements of defence or after the time for delivery
of a defence has expired, any party to a lien action can make a motion to the court to have a trial date
fixed or for a settlement meeting. 11 A lien action must be set down for trial within two years after commencement
of the lien action. 12
Given the summary nature of a lien proceeding, discoveries and affidavits of documents are not automatic
and are considered interlocutory steps in a lien action. Before taking any interlocutory steps that
are not provided for in the Act, the parties must seek leave and consent of the court. 13
Takeaways
Lien actions offer a variety of opportunities for
young litigators interested in getting on their feet
and learning new procedures. While the above are
only some of the procedural differences between
lien actions and other actions, consult the Act, the
Regulation, and the Rules to determine the proper
procedure as the matter proceeds.
Notes
1. Construction Act, RSO 1990, c. C.30 (“Act”).
2. See O Reg 302/18 (“Regulation”).
3. Act, s. 50(1).
4. Rules of Civil Procedure, R.R.O. 1990, Reg 194 (“Rules”).
5. Courts of Justice Act, RSO 1990, c. C.43.
6. Act, s. 50(2).
7. Act, s. 50(3).
8. Backyard XP Inc. v. Cesario-Valela, 2023 ONSC 6312.
9. Act, s. 87(1).
10. Regulation, s. 3; Devlan Construction Ltd. v SRK Woodworking
Inc. 2023 ONSC 3035.
11. Regulation, s. 9.
12. Act, s. 37(1).
13. Regulation, s. 13.
8 9
5

CASE BRIEF
In Favour of Efficiency: An Opinion on
Conditional Certification in Class Action
Proceedings and Vecchio Longo
Consulting Services Inc. v Aphria Inc
Tom Russell (he/him), Stieber Berlach LLP
Two primary goals of class actions in Canada are to support access to justice and judicial economy.
1 In that spirit, it is worthwhile to point out inefficiencies that have cropped up in class action
proceedings, demonstrated in Vecchio Longo Consulting Services Inc. v Aphria Inc., 2021, 2 which
could cause delays and undermine these goals.
The decision in Vecchio reflects a compromise between the parties in response to a problem
posed by the Ragoonanan principle. For the uninitiated, the Ragoonanan Principle holds that for
a cause of action against a defendant to be certified under the Class Proceedings Act, 1992, 3 there
must be a representative plaintiff who personally has a cause of action against that defendant.
This means that, where there are multiple defendants 4 in a potential class action, there must
be at least one representative plaintiff with a
cause of action against each of the co-defendants.
5
This Principle caused a serious problem in
the case of Vecchio. 6 In this case, Justice Perell
certified a class action related to alleged misrepresentations
made by a cannabis company
named Aphria Inc., some of its directors and
officers, and a group of investments banks
(the “Underwriters”) that underwrote one of
Aphria’s offerings. 7
The class action was brought on behalf of investors
who had purchased securities on both
the primary and secondary markets. However,
the only proposed representative plaintiff had
purchased securities solely on the secondary
market. 8 This is important because one of the
co-defendants, the Underwriters, were only
being sued for misrepresentations made on
the primary market. 9
The Underwriters argued that, since there
was no proposed representative plaintiff who
had purchased securities on the primary market,
the action against them could not be certified,
per the Ragoonanan Principle. 10
In response, Justice Perell made an important
point, which is the basis for this article. Justice
Perell acknowledged that the Ragoonanan
Principle posed a problem for plaintiff counsel,
who did not have access to relevant information
from the Underwriters in order to find a
proper representative plaintiff against them. 11
In response to this problem, Justice Perell exercised
his authority pursuant to the Class Proceedings
Act to (1) make a provisional certification
order, (2) adjourn the certification motion
for further evidence, and (3) require the Underwriters
to provide the relevant information to
plaintiff counsel within 30 days. 12 This form of
conditional certification, requiring production
of information from the defendants, has since
been referred to as a Vecchio-type order. 13
This article is a challenge to the Vecchio-type
order in its current form on the basis
that it introduces inefficiency into class actions.
The issue here is not with the fact that plaintiff
counsel, in some cases, may not have ac-
cess to information from a defendant at the
stage of certification which would prove valuable
in identifying adequate representative
plaintiffs. It is also acknowledged that, in light
of the strict rule imposed by the Ragoonanan
Principle, this may put plaintiff counsel at an
unfair disadvantage in a certification motion.
This is of course a strong argument for having
vecchio-type orders in class actions.
That being said, it is submitted that the
proper time to make a vecchio-type order is
not the stage of certification but beforehand.
If it is clear to plaintiff counsel that the production
of certain information will be necessary to
meet the requirements for certification, then
counsel should marshall their evidence and
resources such that evidentiary issues, and
associated vecchio-type orders are dealt with
before a certification motion is brought. Leaving
such issues to the evidentiary stage places
an unnecessary strain on judicial resources by
forcing a certification analysis a multitude of
times.
As an example, imagine a case where plaintiff
counsel has insufficient information from
the defendant, and, as a result, is forced to put
forth a representative plaintiff found inappropriate
at a certification motion. The process to
determine the suitability of a representative
plaintiff is costly and time-consuming, and, if
a Vecchio-type order was given, would have to
be repeated.
For that reason, a Vecchio-type order should,
instead, be sought well in advance of a certification
motion. Such an order could be given
where plaintiff counsel successfully establishes
the information has potential utility in identifying
appropriate representative plaintiffs
and where, through no lack of due diligence on
their part, they are unable to find a potential
representative plaintiff without some disclosure
from the defendants.
Vecchio-type orders represent an example
where the principle of fairness has been found
to require giving counsel for the plaintiff an
opportunity to acquire the evidentiary basis
to put forward a representative plaintiff. While
10 11

fairness is a core foundation of our judicial system, efficient administration of justice is also a
significant factor in bringing about a fair result. As we strive to ensure fairness in court proceedings,
we should ensure we do so as efficiently as possible. Streamlining the Vecchio-type order
by requiring it to occur in advance of a certification motion will further the objectives of access
to justice and judicial economy, while simultaneously ensuring fairness is maintained in class
action proceedings.
Notes
1. See AIC Limited v. Fischer, 2013 SCC 69 (CanLII), [2013] 3
SCR 949, at para 16.
2. Vecchio Longo Consulting Services Inc. v Aphria Inc., 2021
ONSC 5405 [Vecchio].
3. S.O. 1992, c. 6
4. Ragoonanan Estate v. Imperial Tobacco Canada Ltd., 2000
CanLII 22719 (ON SC), at para 50 [Ragoonanan].
5. Ibid.
6. Vecchio, Supra Note 2
7. Ibid.
8. Ibid at para 49.
9. Ibid at para 5.
10. Ibid at para 7.
11. Ibid at paras 182 - 183.
12. Ibid at para 183.
13. Singh v. RBC Insurance Agency Ltd., 2023 ONSC 1439 at paras
225 – 232.
ARNUP CUP
EVENT REPORT
Arnup Cup Report
Tomislav Miloš (he/him), MMW LLP
On the weekend of February 9, 2024, student teams from Ontario law schools descended upon
Toronto’s Federal Court armed with meticulously organized, colour-coded binders and barristers’
robes for the 36th annual Arnup Cup Moot. Over the course of two days, students had the opportunity
to argue their case before Justice Clayton Conlan of the Superior Court of Justice, and a
jurist-filled jury in a trial moot court organized by The Advocates’ Society and sponsored by Weir-
Foulds LLP.
The Cup gets its name from the late Honourable John D. Arnup, O.C., Q.C, a litigator who practiced
at WeirFoulds to great acclaim before ultimately sitting for the Court of Appeal for Ontario. In
its current form, the Arnup is Ontario law students’ path to Canada’s national trial advocacy com-
12 13

petition, the Sopinka Cup (two guesses which
prolific former Supreme Court justice this was
named after.)
While younger than its appellate cousin, the
Gale Cup, the Arnup is unique in affording law
students the opportunity to try their hand at a
trial before getting called to the bar. In a fraught
litigation landscape increasingly mired in motions
or other tactics designed to delay justice,
the trials at the Arnup were delightful in their
focus on pure oral advocacy (as opposed to
Outlook advocacy.)
After a tensely fought competition, Justice
Conlan and the jury selected two teams to carry
on to the Sopinka Cup. First place honours went
to Windsor’s team of Kate Hunter and Maddy
MacEachern, coached by Bryan Pillon, Eric Costaris,
and Belinda Pagliaroli, for their performance
as the Crown. Second place went to
Western’s duo of Maya Soltysiak and Matthew
Gaulton, coached by Danielle Lacasse and Nassima
Kaddoura, for their performance as the
defence.
Understandably thrilled with their victory,
Kate and Maddy were gratified by the result
given the extensive preparation required, and
thankful for the feedback from their coaches
and other practitioners for their help in getting
them there. Kate, who will be articling at McLeish
Orlando, and Maddy, who will be articling with
the Windsor Crown Law Office (Criminal), were
both looking forward to some downtime before
gearing up for the Sopinka Cup. Their strategy
will again hinge upon “a thorough knowledge of
the evidence and a sound theory.”
Caroline Abela, Arnup Cup Chair and partner
at WeirFoulds, spoke highly of all the students
and their efforts, and of the work required behind
the scenes to bring the moot to fruition:
“The students and coaches are commended for
their incredible preparation, which was evident
(Left to right) Maddy MacEachern & Kate Hunter
University of Windsor
in their presentation. We are so pleased to be
a part of the students’ experience to help them
on their journey towards litigation excellence.”
As a volunteer witness for the defence, I had a
front-row seat to all of the action, and left feeling
as if I had squeezed a term’s worth of learning into
those two days. Having absorbed all those lessons,
I thought it appropriate to pass on key ones
from Justice Conlan. Although Justice Conlan was
quick to point the students to Sir Edward Abbott
Parry’s seminal text, The Seven Lamps of Advocacy,
as a foundational text to mine for guidance, his
own advice delivered from the bench was incredibly
pertinent and can be found below. Writing to
me in the wake of the moot, Justice Conlan said:
“The quality of advocacy was strong, the level of
preparedness high, and the overall experience enriching
for all of those involved, including myself.”
Justice Conlan’s Tips for
Trial Advocacy
1. Keep openings cursory, with a bird’s eye
view of the facts as you don’t know how
the evidence will come out;
2. Take care to establish your theory from
the outset;
3. Refer to exhibits by number and not
when they have been marked;
4. Avoid legalese in the presence of a jury;
5. Always end an examination with a strong
point;
6. Avoid leading questions, except during
cross-examination and non-controversial
matters in direct and re-examination;
7. Acknowledge that re-examination can
often be poorly done and know when it is
better to abstain;
8. Do not let a witness speak at length –
take control;
9. A cross-examination should be punctuated
by short, staccato questions that leave
little room for pontification;
11. Do not show frustration at someone’s difficulty,
but instead have faith that everyone
is noting that same irascibility;
12. Know the power of circumstantial evidence;
13. Objections call for swiftness and a compelling
reason;
14. Don’t turn into a puddle at an objection –
you have an opportunity to disagree;
15. Detailed notes can only be of help;
16. Closing statements need an accurate
appraisal of the law;
17. Looking at one’s notes during opening
or closing addresses can take away from
valuable opportunities for eye contact
that can drive your point home;
18. In criminal matters, you can never focus
on the onus too much when you’re on
for the defence;
19. In criminal matters, don’t let reasonable
doubt fall by the wayside of credibility;
10. Follow up on equivocal answers by taking
the witness to their statement and having
them confirm;
20. Don’t beat a dead horse.
14 15

ADVOCACY TIPS
Practice Pitfall: Avoiding a
“Handley” Stay Motion
Robert Stellick (he/him), Adair Goldblatt Bieber LLP
Most mistakes in litigation can be fixed. After overcoming the initial embarrassment, you quickly
realize that the problem is not as catastrophic as it seemed. There are, however, a few exceptions.
In recent years a “new” settlement disclosure rule has emerged, creating a minefield for litigators
involved in multi-party litigation. Even a momentary lapse can have serious consequences.
The “New” Settlement Disclosure Rule
The basics of the rule are simple. A “partial” settlement agreement (i.e. a settlement with some,
but not all parties) that “changes the litigation landscape” must be immediately disclosed to the
Court and the non-settling parties upon completion. In Ontario, courts have been clear that a failure
to do so is an abuse of process for which the only remedy available is a permanent stay of the
non-disclosing party’s proceeding.
16 17

This rule is not really new. It dates back at
least to a 1993 decision of the Ontario Divisional
Court, 1 although it arose only sporadically in
the following years. The rule was invigorated in
2018 by the Court of Appeal for Ontario in Handley,
which restated and bluntly underscored its
strict application. Since Handley 2 was released,
the Court of Appeal (for Ontario, at least) 3 has
time and again confirmed the rule’s strict application,
staying otherwise promising and meritorious
claims. 4 The Supreme Court of Canada
has declined to intervene. 5
The rule targets laudable ends. Parties to litigation
need to understand the relationships
among the other parties to plan their strategy.
Courts need this information to control and
enforce their process. Partial settlement agreements
kept in the dark can create a “sham” litigation
process where there is secret cooperation,
payment, or alignment of interest between
seemingly adverse parties.
The rule’s application in Ontario, however,
has become nothing short of draconian. Courts
have reaffirmed its “clear and unequivocal” obligations
on parties, specifying:
• Disclosure must be immediate. Claims
have been stayed for only 20 days’ delay
before disclosure. 6
• Disclosure of the existence of a settlement,
or even “functional disclosure” 7
of the terms, is not enough. While financial
terms remain protected by settlement
privilege, the settling party must disclose all
terms that could change the litigation landscape.
8
• Intention is irrelevant. It does not matter
if nondisclosure was inadvertent, a mistake
made in good faith, or done in furtherance
of some other legal obligation. 9
• Confidentiality terms are irrelevant.
A confidentiality clause in the settlement
agreement does not impact disclosure obligations.
10
• Prejudice is irrelevant. Courts will not
even consider whether the nondisclosure
actually caused any prejudice or unfairness
to the other parties in the litigation. 11
• The only remedy is a stay. Unlike in other
legal contexts – where a stay is available in
only the “clearest of cases” – a stay is the
only remedy available. 12
Even more troubling is that despite its severe
consequences, the exact contours of the disclosure
rule remain unclear. What non-monetary
terms exactly need to be disclosed? How immediate
is “immediate”? How does one properly
“disclose” a settlement to the Court or move for
directions? 13 And what even is a partial settlement
agreement that will trigger the rule?
None of these questions have been answered
definitively or consistently in the case law.
Help on the Way: Judicial Erosion and
the Rules Committee
In recent months, courts have shown an increasing
willingness to rein in the strict application
of the rule.
This resistance has taken many forms. For example,
courts have increasingly adopted narrow
interpretations of what constitutes a “change
to the litigation landscape,” 14 resisted efforts to
expand the rule’s application to settlement with
non-parties, 15 expressly considered parties’ intentions
to put a settlement before the court, 16
and emphasized the “heavy burden” that must
be met in order to obtain a stay. 17
More recently, in Garofalo, 18 Black J. explicitly
took note of – and appeared to rely on – both
that the non-disclosure was inadvertent, and
that there was virtually no prejudice to the
non-settling party. He described these features
as “reassuring” and “relevant” to the interests of
justice more generally.
This judicial pushback rightly focuses the analysis
on the policy rationale underlying the rule
and on tailoring a remedy to the specific mischief
at issue. Indeed, although the rule has generally
been applied across the country, 19 courts outside
of Ontario have recognized that remedies other
than a stay of proceedings may be appropriate. 20
Legal policymakers have also taken notice.
The rule has attracted the attention of Ontario’s
Civil Rules Committee, which formed a “Partial
Settlement Subcommittee” to consider codifying
the common law obligation to disclose
a partial settlement agreement in the Rules of
Civil Procedure. Codification could more clearly
define the limits of the rule and provide the bar
with much-needed guidance.
The Advocates’ Society has sought to assist in
the development of a workable standard. TAS
recently provided a submission to the Subcommittee,
proposing a framework for a principled
refinement of the rule. Most importantly for
practicing litigators, this submission recommends
that remedies other than a stay of proceedings
be available to address delayed disclosure,
based on the circumstances of each case.
Hopefully these calls are heeded, and a combination
of judicial and legislative reform can
temper the rule’s harsh application. Until then,
18 19

navigating settlement agreements will remain a high-wire act for litigators at all stages. Young
litigators in particular are wise to take a cautious approach — for, as Perell J. explained in Poirier,
when dealing with this disclosure rule, it’s always “better to be safe than sorry.” 21
Notes
1. Pettey v. Avis Car, 1993 CanLII 9392 (Ont Div Ct).
2. Handley Estate v. DTE Industries Limited, 2018 ONCA 324.
3. See, by contrast, the Court of Appeal for British Columbia’s approach in Northwest Waste Solutions Inc. v.
Super Save Disposal Inc., 2017 BCCA 312, at paras. 59-60 and Salloum v. Smith, 2024 BCCA 97, at para. 31.
4. See, for example, Skymark Finance Corporation v. Ontario, 2023 ONCA 234; Poirier v. Logan, 2022 ONCA 350,
Waxman v. Waxman, 2022 ONCA 311; Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 ONCA 66.
5. See, for example, Tallman Truck Centre Limited v. K.S.P. Holdings Inc., 2022 CanLII 96460 (SCC); Morris Waxman
as assignee of the Estate Of I. Waxman & Sons Limited, et al. v. Elko Industrial Trading Corp., et al., 2022 CanLII
96459 (SCC); Roger Poirier v. Jeremy Logan, et al., 2022 CanLII 115635 (SCC).
6. Tallman, at paras. 1, 26.
7. CHU de Québec-Université Laval v. Tree of Knowledge International Corp., 2022 ONCA 467, at para. 55. The
author acted as counsel on this appeal.
8. Stamatopoulos v Regional Municipality of Durham, 2014 ONSC 6313, at paras. 19-20 (Ont Div Ct).
9. Tallman, supra note 3 at paras. 27-28.
10. Waxman, supra note 3 at para. 35.
11. Handley, supra note 2 at paras. 45-46.
12. Ibid.
13. As contemplated in Skymark, supra note 3 at para. 69.
14. Bennington Financial Corp. v. Medcap Real Estate Holdings Inc., 2024 ONCA 90, at paras. 10-11, 17; GH Asset
Management Services Inc. v. Lo, 2022 ONSC 7218, at para. 32.
15. Stronach v. Stronach et al., 2023 ONSC 5519, at paras. 32-38.
16. CHU de Québec, supra note 7 at para. 67.
17. Chu de Québec-Université Laval v. Tree of Knowledge International Corp., 2021 ONSC 5946, at paras. 87-88;
Garofalo v Unisync Corporation and Unisync Group Limited, 8 February 2024 (ONSC, unreported), at para. 61.
18. Garofalo v Unisync Corporation and Unisync Group Limited, 8 February 2024 (ONSC, unreported).
19. For a helpful summary of those cases, see E.G. Upenieks & J.M.E. Chumak, “The Balancing Act for Canadian
Litigators: Encouraging Settlement Between Parties and the Procedural Risks of Entering Into Settlement
Agreements in Multi-Party Litigation” (2023) 53 Advoc. Q. 393 at 411.
20. See, for example, Park Place Centre Ltd. v. Manga Hotels (Dartmouth) Inc. 2022 NSSC 317, at paras. 23-24;
Northwest Waste Solutions Inc. v. Super Save Disposal Inc., 2017 BCCA 312, at paras. 59-60.
21. Poirier v. Logan, 2021 ONSC 1633, at para 16.
20

ADVOCACY
Judgment and Restraint: Litigating
Against the Self-Represented
Sarah E. Naughton (she/her), Cunningham, Swan,
Carty, Little & Bonham LLP
I recently had the opportunity to conduct a 7-day, in-person trial against a self-represented litigant.
The matter was a civil action dealing with strict liability, nuisance and negligence resulting
from a sump pump pipe and septic tank placed between two properties (Warren v. Gluppe, 2023
ONSC 6301 (CanLII)). Previously represented by counsel, the opposing party did not ultimately have
a lawyer for trial. This is an increasingly common phenomenon in many civil litigation matters
involving individuals, most likely attributable to concerns regarding access to justice. The hearing
resulted in a considerable judgment (approximately $640,000 including interest and costs) for my
client. It also proved to be an educational experience for me to work opposite a self-represented
litigant.
As lawyers, we have a duty to zealously represent
our clients. We also have duties as officers
of the Court. Balancing these two responsibilities
is increasingly important, and potentially
more difficult when the opposing side is a
self-represented litigant. Engaging in reasonable
conduct, ensuring relevant authorities are
brought before the Court and preserving judicial
resources are all imperative.
The trial process often involves voluminous
records, complex legal arguments, and technical
rules of evidence. As a result, fulfilling our
concurrent duties requires a level of judgment
and restraint. For more junior litigators like myself,
it takes confidence to convey to our clients
that: (a) not every digression from the rules of
evidence ought to be objected to; (b) not every
document needs to be fought over; and (c) flexibility
with the opposing side can often benefit
our client’s position.
It may seem counterintuitive to assist an opposing
party with locating the relevant portions
of the record or in utilizing technology during
a trial. However, I would contend that the lawyers’
duties to the Court and our clients are not
only compatible but are complementary. First,
credibility and character are scrutinized during
a trial. Your client can demonstrate their reasonableness
by being judicious about objections
to evidence.
Second, taking steps to prevent potential unfairness
to a self-represented litigant helps protect
a favourable decision for your client at trial
from an appeal. I refer to the decision of the
Court of Appeal for Ontario in Girao v. Cunningham,
2020 ONCA 260 (CanLII), wherein the Court
overturned a trial decision because it found the
self-represented plaintiff had suffered substantial
trial unfairness.
Finally, saving limited and invaluable Court
resources also reduces hours spent by counsel
in Court. By facilitating an efficient trial, counsel
can save their clients’ money.
Where the cost of retaining counsel continues
to be beyond the reach of many litigants,
self-representation will undoubtedly remain a
common feature of the trial process. As advocates,
our ability to effectively navigate litigation
involving self-represented parties will ultimately
result in better client service.
23

INTERVIEW
Interview with Abdalla
Barqawi (he/him) Conway
Baxter Wilson LLP/s.r.l.
Compiled by Ali Háji (he/him), Ricketts Harris LLP
Q. I’m so happy to have the opportunity to interview you for this. I remember meeting you
for the first time 5 years ago when we clerked together at the Supreme Court of Canada.
I was in awe of the barriers you must have had to overcome as a visually impaired person
on top of the normal challenges everyone faces getting there. Could you tell me
about your disability and the challenges you’ve had to face?
A. I have a condition called Retinitis Pigmentosa. It is essentially a degenerative condition that affects
the retina. When I was about 19 years old, my vision started to worsen significantly. It continued to degenerate
over the years. Now, I have no vision.
When I started losing my vision, it was difficult to adapt to a new way of life. I had to re-learn how to
live and do the most basic things in life. After several years, and after a lot of pushing and support from
my family (especially my mother), I decided to start my university education. I eventually had to learn
how to use screen-reading programs, which are a type of software that reads text on the computer
screen. It took me a while to adjust to learning by listening. When I first started using these programs,
my brain could not adjust to learning by having text read by a machine. I would listen to the program,
and I would know what it said, but the information would not register. After many trials and errors, I
slowly became more used to it. Now, it is the only way I can work and learn; yes, because of necessity,
but also because I have adapted.
This is just one particular example of the kind of difficulties that I have had to face. There are others,
like not being able to navigate new spaces, and embarrassing myself by inadvertently ignoring people.
But, upon reflection, I think the greatest difficulties that I have encountered are anchored to how I treated
myself and perceptions that people often have of people with disabilities.
I will start with my own problems. I did not help myself because of the self-doubt that I used to have:
Could I go to university? If so, could I do well? Could I get into law school? If so, could I land a job? When
I started each stage of my post-secondary life, whether in education or in practice, I was always hard on
myself. I wanted not only to do fine, but the best that I could. I was always, and somewhat continue to
be, afraid of failure. Thankfully, I have been learning from my experiences (and from my stellar mother)
that failure is sometimes a good thing, as long as I try my best and do not give up.
The other difficulty I have faced is that, oftentimes, we have a perception of people with disabilities
that are not entirely helpful. For example, we often automatically think that a disability is a barrier
to success: how can a person who cannot see be a good lawyer? And then when a disabled person
succeeds, it is either met with surprise or skepticism. At a minimum, these perceptions do not create
the type of environment that promotes the success of any person, disabled or otherwise. We can and
should do better.
Q. How have you overcome those challenges in your practice?
A. I have been very fortunate and lucky to be surrounded by wonderful family members, professors,
and colleagues. All these people have not only helped with every step that I have taken in my adult life,
but they have encouraged me and pushed me to keep moving forward and upward. If it was not for
them, I would not be where I am today.
In a way, this is related to another point about disability: most, if not all, barriers that people with disabilities
face do not really stem from the disabilities themselves, but from the systems that we create,
the perceptions that we have, and the attitudes that we bring to the table about what disabled people
could do.
In a very real sense, these are the main barriers to the success of people with disabilities. Everyone
who has supported me has one thing in common: they do not believe that a disability is a determinative
conclusion of what one can do.
Q. What are your views on accommodation issues in the legal profession?
A. Based on my experience, I believe that the legal profession’s attitude toward accommodations
is all wrong. The prevalent approach to accommodating disabilities, from my experience, is to provide
the minimum required to allow a disabled person to perform their duties.
While this approach may achieve the minimum required by the law, it is not sufficient or helpful
because it ignores the reality that people with disabilities do not want to function at a minimum
level. They want to succeed. They have goals to accomplish. They want to go places in their careers.
Looking at providing reasonable minimum accommodations ignores this reality.
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What is intriguing about the usual approach to accommodations is that it does not match how
non-disabled people are treated: they are usually given what they need not to merely do their
job, but to excel. This makes sense from a business or organizational perspective. After all, which
employer would not want their employees to succeed, especially when the employees’ success is
directly tied to the employer’s success?
We need to switch our thinking on accommodations by helping people with disabilities achieve
their full potential. This is good for everyone, including the firm or organization that provides the
accommodations.
Q. How has being a person who is racialized informed your views on the law and justice,
and your practice?
A. From my experience, being a racialized immigrant has enriched my practice. My background has
often allowed me to better connect with clients and understand their cases. For example, our firm
recently conducted a trial of a class action in which the class members were largely immigrants. Their
stories were eerily similar to my own family’s story. I knew what they went through because my family
went through similar experiences. In my view, this shared experience allowed me to advocate on behalf
of these folks more effectively.
Q. What can senior lawyers do to address the barriers that lawyers with disabilities face?
A. Put simply, do what Tom Conway does.
Tom is a senior litigator, founding member of our firm, and former Treasurer of the Law Society.
Throughout the three years that I have worked with Tom, he has quite literally changed my life. Tom has
done everything that anyone can imagine to ensure that I progress in my career. The basic accommodations
are obviously a given, but Tom has done way more than that. Over the past three years, Tom
and I have worked on many cases together, two of which went to lengthy trials and others which were
high profile in nature. At every possible juncture, Tom has had confidence in me and encouraged me to
step up, be active on files, and learn. Nothing stopped him from ensuring that I can do what I need to
do to be the best lawyer that I can be.
To put this in perspective, one of the most senior and renowned lawyers in the country has been
helping a young blind lawyer walk around the Ottawa courthouse, find the podium in a courtroom, or
maneuver through busy downtown streets. More importantly, at no point did I ever sense one iota of
doubt from Tom that I could not do any task because of my disability. On the contrary, Tom has always
encouraged me and pushed me to be better. His goal is not to simply ensure that the firm provides
the required accommodations, but to ensure that every lawyer at our firm, disabled or not, can achieve
whatever goals they want to achieve and to be the best lawyers they can be.
To my mind, Tom exemplifies what every senior lawyer in our profession should do. If that happens,
the practice of law will look very different.
Q. Do you have any advice on persistence and motivation for young advocates?
A. Never give up. Always try your best. If you fail, try again. And surround yourself with people who
care about you, share your goals and values, and who want you to succeed.
Q. Are there any institutional barriers that lawyers with disabilities face when interfacing
with the justice system? How can those barriers be addressed?
A. There are institutional barriers, which typically arise because people with disabilities are not thought
of when systems are put in place. For example, lawyers who attend court are required to use Caselines
for hearings. However, Caselines is not accessible to visually impaired people who use reading programs.
What is frustrating about this inaccessible platform is that lawyers prepare their documents in
accessible formats and Caselines makes these otherwise accessible documents inaccessible because
it converts them to non-readable images. Of course, this issue is problematic for visually impaired lawyers.
It is a significant accessibility issue for Ontario’s justice system that requires immediate attention.
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The Advocates’ Society Vancouver Gala
March 13, 2024 | Terminal City Club, Vancouver, BC
28 29

Tips for Junior Advocates on Mid-Career Success
March 26, 2024 | Gowling WLG , Ottawa, ON
Wine & Cheese with the Bench
April 11, 2024 | The Advocates’ Society, Toronto, ON
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