The-Advocate's-Journal-Winter-2024

Vol. 43, No. 3. | WINTER 2024

Innovative

The Advocates’ Journal

Vol. 43, No. 3; Winter 2024

Solutions

26

for Your Most

Complex

Disputes

From the Editor

3

26

The Honourable Mary T. Moreau

L’honorable Mary T. Moreau

Alexandra Heine

Recognized as Regional Law Firm of the

Year for the second consecutive year.

Reflections on my term

as TAS president:

How not to plan a year

Dominique T. Hussey

6

34

Preparing your client

for a successful mediation

Stephen Richard Morrison

lawsonlundell.com

- 2024 Canadian Law Awards

A primer on hearsay

for civil lawyers

The Honourable Justice Peter D. Lauwers

12

38

Conducting a skillful examination for

discovery, in contemplation of trial

Robert S. Harrison and Richard B. Swan

Vancouver | Calgary | Yellowknife | Kelowna

Annals of Law:

The All Families Are Equal Act, 2016

Kirsti Mathers McHenry

18 Look back: The body in the jungle

46 Peter Griffin, KC, LSM, ASM

THE ADVOCATES’ JOURNAL | WINTER 2024 | 1

FROM THE EDITOR

THE ADVOCATES’ SOCIETY

At the movies

PAST PRESIDENTS

Winter 2024; Vol. 43, No. 3.

Editor

Linda Rothstein, LSM, ASM | Linda.Rothstein@paliareroland.com

Managing Editor

Andrea Gonsalves | andreag@stockwoods.ca

The Advocates’ Journal: cite as Adv J

Production Editor

Sonia Holiad | sholiad@rogers.com

Editorial Correspondence

Linda Rothstein, LSM, Paliare Roland Barristers

155 Wellington St West, 35th Floor

Toronto, ON, M5V 3H1

Linda.Rothstein@paliareroland.com | 416-646-4327

Advertising and Subscription Correspondence

Robin Black

robin@advocates.ca | 1-888-597-0243 x.108

Creative Director

Jessica Lim | jessical@advocates.ca

Kim Burton | jkburton64@gmail.com

Paintings, Illustrations, and Photography

Delaney Cox: cover, p. 6

Stefan Culum: p. 38

Hyesoo Kim: p. 12

Ryan Little: pp. 27, 34

Scott Shields: pp. 19, 46

Page 19 illustration based on the photograph by Andrea

Houston published in xtramagazine.com, Nov. 30, 2015.

https://xtramagazine.com/power/toronto-couple-wantsequality-for-parenting-rights-69526

Opinions expressed by authors are their own and do not

necessarily reflect the policies of The Advocates’ Society.

Publications Mail Commercial Sales Agreement No. 40019079

The Advocates’ Journal is printed in Canada and is published four

times a year by The Advocates’ Society, 250 Yonge St, Suite 2700,

Toronto, Ontario, M5B 2L7. Distributed free to all members of the

Society. Contents copyright © 2024 by The Advocates’ Society.

Second class registration number 5941, paid at Scarborough.

Contents may be reproduced only with written authorization of

the authors and acknowledgment of The Advocates’ Journal. The

editors do not assume responsibility for the loss or return of

manuscripts, photographs, or illustrations.

1965-66 J. J. Robinette, QC, ASM

1966-67 The Hon. R. F. Reid

1967-68 The Hon. Justice R. S. Montgomery

1968-69 The Hon. Justice P. Cory

1969-71 W. B. Williston, QC, ASM

1971-72 The Hon. Justice W. D. Griffiths

1972-73 C. F. McKeon, QC, ASM

1973-74 A. E. M. Maloney, QC, ASM

1974-76 P. B. C. Pepper, QC, LSM

1976-77 H. G. Chappell, QC

1977-78 W. S. Wigle, QC

1978-79 The Hon. Justice J. J. Fitzpatrick

1979-80 E. A. Cherniak, KC, LSM, ASM

1980-81 The Hon. Justice J. W. O’Brien

1981-82 T. H. Rachlin, QC

1982-83 K. E. Howie, QC, ASM

1983-84 J. P. Nelligan, QC, LSM, ASM

1984-85 Peter Webb, KC, LSM

1985-86 Bert Raphael, QC, LSM

1986-87 A. D. Houston, KC

1987-88 The Hon. Justice J. R. R. Jennings

1988-89 R. A. Stradiotto, KC, LSM

1989-90 The Hon. Justice Peter G. Jarvis

1990-91 John F. Evans, KC, LSM

1991-92 Terrence J. O’Sullivan, LSM

1992-93 The Hon. Justice Eleanore A. Cronk

1993-94 Roger Oatley

1994-95 The Hon. Justice Mary Anne Sanderson

1995-96 C. Clifford Lax, KC, LSM

Mark Abradjian

Simon Bieber

Caroline Biron

Hilary Book

Sean Boyle

Melissa Burkett

Cara Cameron

Frank Cesario

Scott Croteau

OFFICERS

President: Darryl Cruz

Vice-President: Sheree Conlon, KC

Treasurer: Sheila Gibb

Secretary: Scott Hutchison

Chief Executive Officer: Vicki White

Aaron Dantowitz

Joni Dobson

Craig Ferris, KC

Jon Foreman

Linda Fuerst

Julie Girard

Peter Henein

Lara Jackson

Najma Jamaldin

DIRECTORS

1996-97 Margaret A. Ross, LSM

1997-98 The Hon. Justice Harriet Sachs

1998-99 Michael F. Head

1999-00 James A. Hodgson

2000-01 Ronald G. Slaght, KC, LSM, ASM

2001-02 J. Bruce Carr-Harris, LSM

2002-03 Philippa G. Samworth, ASM

2003-04 Jeffrey S. Leon, LSM

2004-05 The Hon. Justice Benjamin Zarnett

2005-06 Linda Rothstein, LSM, ASM

2006-07 Michael E. Barrack

2007-08 Michael Eizenga, LSM

2008-09 Peter J. E. Cronyn

2009-10 Sandra A. Forbes

2010-11 Marie T. Henein, LSM

2011-12 Mark D. Lerner

2012-13 Peter H. Griffin, KC, LSM, ASM

2013-14 Alan H. Mark

2014-15 Peter J. Lukasiewicz

2015-16 Martha A. McCarthy, LSM

2016-17 Bradley E. Berg

2017-18 Sonia Bjorkquist

2018-19 Brian J. Gover, LSM

2019-20 Scott Maidment

2020-21 Guy J. Pratte, AdE, LSM

2021-22 Deborah E. Palter

2022-23 Peter W. Kryworuk

2023-24 Dominique T. Hussey

Monique Jilesen

Katherine Kay

Cynthia Kuehl

Troy Lehman

Robin Lepere

Craig Lockwood

Anne McConville

Sudevi Mukherjee-Gothi

Ira Nishisato

PAST EDITORS OF THE JOURNAL

1982-90 Moishe Reiter, QC

1991-2008 David Stockwood, QC, LSM

2008-20 Stephen Grant, LSM, ASM

Tamara Prince

Tamara Ramsey

Yashoda Ranganathan

Shawn Richard

Luisa Ritacca

Scott Robertson

Andrew Shaughnessy

John Sorensen

Cynthia Spry

Linda Rothstein, LSM, ASM

“That recording is not reality. It is a part of it, maybe. If you have an extreme moment in life,

an emotional peak, and you focus on it, of course, it crushes everything.

It may seem like irrefutable proof, but actually warps everything. It’s not reality.

It’s our voices, that’s true, but it’s not who we are.”

It’s late September as I write my editorial,

and the countdown to the US election is a

constant drumbeat in my head that makes it

hard to focus fully on the rest of the world, or

even the rest of my world. When I am not buried

deep inside a case, I am endlessly distracted by

the latest poll results, the newest endorsements,

the fresh predictions and punditry. My coping

mechanism is unsophisticated – immerse myself

in something else. While books sometimes

fail the immersive test, a great movie can strap

me to my seat in ways that still surprise me.

Better yet, a charged courtroom drama.

Enter the gripping portrayals of the French

legal system in two recent films – Anatomy of a

Fall, released in North America in October last

year, and The Goldman Case, released in September

2024. As a Canadian litigator with only

passing familiarity with the French inquisitorial

criminal justice system, watching the

cinematic courtroom process unfold is in equal

parts disorienting and completely riveting.

In Anatomy of a Fall, Samuel, a struggling

male writer and professor, is found in the snow

after falling from the attic window of his chalet

home in the French Alps. After the authorities

conclude that his death is suspicious, his wife,

Sandra, a much more successful writer, is put

on trial for his murder. Their 11-year-old son,

Daniel, did not see the fall and, poignantly, his

vision has been impaired by a recent accident.

But he is a keen observer of his parents and

their marriage, and the impact on him of this

double-sided tragedy is at the moral centre of

the film.

~ Sandra Voyter, in Anatomy of a Fall

The Goldman Case tells the true story of

Pierre Goldman, a far-left activist, who in 1976

was tried for the murder of two pharmacists in

the course of an armed robbery. The trial depicted

in the film was his second: It followed

an appeal overturning his conviction after five

years in prison. While incarcerated, Goldman

wrote a book about his case, Dim Memories of

a Polish Jew Born in France, which helped win

his appeal.

Both Sandra Voyter and Pierre Goldman are

wildly intelligent and articulate. They are also,

by turns, angry and defensive. With good reason.

Anatomy of a Fall reveals the subtle and

not so subtle sexist stereotypes that still pervade

our views of marriage and the power dynamics

between a very successful female partner

and her much less successful male one. The

Goldman Case exposes the dark underbelly of

French racism and antisemitism, police abuse,

and intimidation in the 1970s.

Both trials reveal many of the distinguishing

features of an inquisitorial system: Before

the trial, the judges will have received

and reviewed the entire investigative record.

Judges take an active role in the trial, directly

questioning witnesses including the accused.

Counsel, especially defence counsel, play a reduced

role. And there is an absence of detailed

rules of evidence restricting the use of hearsay,

speculation, and opinion evidence.*

There are endless ways to watch these films,

but for me the thrill was being taken inside the

French courtroom for prolonged periods. The

result: an intense, chaotic, charged thought

2 | WINTER 2024 | THE ADVOCATES’ JOURNAL


CONTRIBUTORS

experiment in which our allegiance to the adversarial

system can be measured in fictionalized

real time against a radically different inquisitorial

one.

***

This issue will keep you guessing until the last

page. We begin with a deeply personal reflection

from Dominique Hussey on her year as president

of TAS as her world fell apart. Resilient doesn’t

begin to describe her.

Justice Peter Lauwers gives us the handbook

on hearsay evidence that every civil litigator

needs to read – and then, read again. We have a

profile of Justice Mary Moreau, the newest member

of the Supreme Court of Canada. Our Annals

of Law series takes us inside the frontlines in the

fight to better recognize LGBTQ+ parents. You’ll

find a practical guide to the conduct of examination

for discovery, and an article with hands-on

advice for properly preparing a client for mediation.

Finally, Peter Griffin, recipient of the Advocates’

Society Medal in November 2024, has written

a “look back” at one of his most memorable

cases: not so much a who done it as a who is it.

As readers will appreciate, the range of topics

we publish is enormously varied. I know there

are other great writers and stories out there in

the land of advocacy. Please send them, or just

your ideas, our way.

* Antoine Kirry, Frederick T Davis, and Alexandre Bisch, “France,” in

Nicolas Bourtin, ed, The International Investigations Review, 9th ed

(London: Law Business Research, 2019).

THE ADVOCATES’ SOCIETY

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valid, we expect you to make note of this in the citation.

Peter Griffin, KC, LSM, ASM

Peter Griffin is a founder and counsel at

Lenczner Slaght LLP.

Robert S. Harrison

Robert practised commercial litigation at

Fasken LLP for over 47 years before retiring

in 2021.

Alexandra Heine

Alexandra Heine is an associate at Stockwoods

LLP in Toronto. She practises in the areas of

criminal, commercial, and public law, and

represents clients in both French and English.

Dominique T. Hussey

Dominique is the immediate past president

of The Advocates’ Society, an IP litigator, and

the CEO of Bennett Jones LLP. She lives in

Toronto with her family.


Peter Lauwers was appointed to the Court of

Appeal for Ontario in 2012 after four years

on the Superior Court of Justice in Central

East Region. He chairs the court’s Civil Rules

Committee and the AI Subcommittee.


Kirsti Mathers McHenry is the executive

director of Pro Bono Ontario and a longstanding

advocate for access to justice.


Stephen brings nearly 50 years of legal and

business experience to the resolution of

complex commercial disputes as a chartered

mediator, chartered arbitrator, and fellow

of the Chartered Institute of Arbitrators. He

encourages parties to be “early settlers.”

Richard B. Swan

Richard Swan is a litigation partner at Bennett

Jones LLP, based in Toronto, and a fellow

of the American College of Trial Lawyers.

With Robert Harrison, he is the co-author

of Skillful Witness Examinations in Civil and

Arbitration Cases.

June 5, 2025

WWW.ADVOCATES.CA

Thank you,

Linda Rothstein, Editor

Andrea Gonsalves, Managing Editor

Sonia Holiad, Production Editor

4 | WINTER 2024 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | WINTER 2024 | 5

REFLECTIONS OF AN ADVOCATE

Reflections on my term as TAS

president: How not to plan a year

Sharing personal reflections as the 2023–24 president of The

Advocates’ Society is truly self-indulgent; why would anyone

else care? (Spoiler alert: What follows is a record of

some events in a year in the life of one advocate – with little

reference to advocacy. The ending is positive, not because the

presidency has ended but because it happened.) You need not

read on, but I am grateful for the opportunity to capture memories

that will otherwise fade.

Dominique T. Hussey

Stepping into the role with a plan

In June 2023 I had a plan: As president, I wanted to lead with

strength, to spotlight the next generation of advocates, and to

help TAS tackle the pressing issues of judicial access and administration.

I intended to show up at events across the country

and cooperate with other organizations. And the Society

needed to develop a new strategic plan to ensure our resilience

in an evolving social and legal landscape.

“All Rise! Focus on the Future” was my chosen theme. This

meant focusing on developing our future leaders in advocacy,

tackling the integration of technology into legal practice, and

building a justice system that could better serve its users. I

wanted to ensure the Society’s commitment to equity, diversity,

and inclusion was institutional and not an afterthought,

with a member of the Diversity and Inclusion Steering

Committee serving on every standing committee. We would

focus relentlessly on the issue of delay in our civil and family

systems. We would showcase the expertise of the younger

generation of advocates and create advocacy opportunities

for them. Each committee would contribute to advancing the

Society’s mission.

I planned with military precision. I knew I had a busy year

of litigation ahead of me. I was already balancing my practice

(thankfully supported by a phenomenal team) with my role as

Toronto managing partner at Bennett Jones. I had other board

commitments and a family. For one year, I would socialize only

in an official capacity. I pushed away the nascent fear that my

husband’s recently discovered health issue was much worse

and more immediate than his doctor had expected. It would

be fine.

I then embarked on a year that, despite a colour-coded calendar,

defied all planning.

The gala that was not the hard part

Before I became president, I was already meeting regularly

with TAS CEO Vicki White. I had met with the leaders of

the workhorse Young Advocates’ Standing Committee and

the Mid-Career Advocates’ Standing Committee to talk about

their priorities for the year. They were on

track, and were total pros.

The most popular TAS event is the End

of Term Dinner. The incoming president

serves as the MC. I anticipated that this

would be the hardest job of the year;

for me, the thought of trying to quiet a

crowd of a thousand unwilling listeners

delighting in one another’s company after

two hours of cocktails ranked with

sleeping in a room full of spiders. I am

still recovering.

Robin Black of TAS executed a lovely

affair, anchored by a keynote speech

by then newest Supreme Court Justice

O’Bonsawin and an address by Ontario

Chief Justice Tulloch.

Delay No Longer in action: The summer

when plans fell apart

The policy work of the Society launched

immediately with the publication of

Delay No Longer: The Time to Act Is Now

(thanks especially to the very heavy lift

of board member Hilary Book and TAS

policy lawyer Suzanne Amiel). The report

highlighted the urgent crisis facing

our civil and family law systems, finally

gaining the media attention it deserved.

We seized the pivotal moment in a flurry

of media interviews, strategy meetings,

and opportunities to speak directly

with justices, attorneys general, and key

stakeholders across Canada. The report

spun off a stream of impactful work that

continued throughout the year.

The end of June marked 20 years of

marriage with my husband, Alan Gardner,

also a Bennett Jones litigator. We

celebrated by visiting New York City at

a time when forest fires had significantly

compromised air quality. It was a tough

few days. Alan struggled to breathe.

When we flew home, we had to stop four

times between the tarmac and the gate

while he hyperventilated. Terrifying.

A few days later, Alan was admitted

to the hospital. He kept it quiet (so I did,

too). He worked from his room while doctors

worked him over to figure out why

a minor and slow-progressing respiratory

issue had suddenly become a crisis.

Two weeks later, Alan was released

with prescriptions for supplemental

oxygen and an assortment of pharmaceuticals,

but no improvement. We were

catapulted into the world of the home

oxygen market and a progressive lung

disease of unknown pace and trajectory.

As an IP litigator in the pharma/biotech

space, I was well suited to take on the

job of reading all the medical literature

about Alan’s condition. Nothing was encouraging.

I researched all the devices to

make life as normal as possible. Equally

discouraging.

Delay in the justice system has the biggest

impact on the parties denied justice,

but it is not great for the advocates, either.

My husband had been healthy and fully

prepared for a trial set down in January

2023, but the day after it had been scheduled

to start, it was postponed indefinitely

because no judge was available. By

the time it was rescheduled for the end

of September, Alan’s lungs had become

a living metaphor for how delays in the

judicial system affect all stakeholders.

At the end of summer, we took a family

vacation to a tiny cottage. I worked with

TAS on a Supreme Court intervention.

Alan re-prepared for his rescheduled

trial while I plotted to get adequate oxygen

delivery to make it happen and fretted

about the future.

September: Engagement and chaos

In September, at our first meeting with

the new TAS board of directors, the optimism

of the new leaders provided a jolt

of energy. We had multiple opportunities

to advocate for judicial reform. We were

invited, for the first time, to the Rentrée

Judiciaire in Quebec. We met with Alberta’s

Justice Minister Amery in Edmonton.

Strategic planning was underway.

Client work was busy. Our children

were happily back at school. This was a

wonderful period of engagement.

Alan’s trial proceeded, which he conducted

seated and on large tanks of oxygen

delivered to his lungs through a nasal

cannula. Two days before the end of the

trial, I was about to fly to the Society’s

Montreal gala, for which I had prepared

to deliver a speech en français. I received

a call that my daughter was not feeling

well and was going to the hospital. I texted

TAS CEO Vicki, who told me, before

I had even asked a question, not to give

it another thought. Colleagues graciously

stepped in for me. Alan was in court,

with closing arguments scheduled in two

days. I texted for his availability, keeping

it really low-key, but at the right time I

would need to let him know I was at the

hospital and had it covered. He pressed;

I confessed. He left the courtroom at once

and walked to SickKids Hospital, dragging

a large oxygen tank and becoming

hypoxic many times. Our daughter had

her appendix removed at 2 a.m.

Awake, waiting for our daughter to

get out of surgery, I heard an app on my

phone buzz, alerting me that our son, a

Type 1 diabetic home alone, was having

a blood sugar crash. He never wakes up

unless we get up to shake him. I crossed

my fingers and called him, hoping he

would wake up this time; otherwise, I

would need to rush home. He answered

because he was half-awake and worried

about his sister, and then treated himself.

Phew! My daughter made a record

recovery. Alan finished the trial. All was

OK. I realized I had entered a level of

peak compartmentalization to cope.

October: Reflecting on history and fearing

for the future

Early October, the board and the entire

staff of The Advocates’ Society visited the

Woodland Cultural Centre in Brantford,

at the site of a former residential school.

We toured the school and heard about the

experiences of its Indigenous students

and their families. We spoke with young

people who searched for lost family members

and ancestors, without distraction or

diversion. It was a profoundly moving

experience that brought to light generational

trauma and historical injustices

that continue to resonate today.

At the same moment in time, our members

were suffering because of the atrocities

of the October 7 attack on Israel and

its aftermath in Gaza. In Canada, there

was a spike in antisemitism and polarization.

TAS grappled with how we could

meaningfully support our members,

which we dearly wanted to do.

For all, the world seemed like a dark

place. I had to steel myself to avoid being

taken down.

At the end of the month, as I was

counting Alan’s breaths against mine

nightly and realizing that we were six

to one – even while he was on oxygen –

Alan was hospitalized again. The disease

had progressed far more rapidly and

catastrophically than anyone had anticipated.

For the first while, family could

visit him only in full PPE – face shields,

masks, gloves, and gowns.

I suited up for work and again for the

hospital, then headed home, on a loop.

In that time, the firm had come to a

consensus on a leadership transition, to

be effective January 1, 2024, and it would

involve me.



November: Not according to plan

With November came the Fall Convention,

which we could obviously no

longer attend. A colleague and steadfast

friend took our place. TAS friends took

over some difficult matters and prepared

and delivered speeches I had planned to

give. The vice president hosted the President’s

Reception.

News of my firm’s future leadership

changes was becoming known, so it was

time to announce the transition publicly.

It was exciting. I was to become CEO

alongside executive chair John Mercury.

My photo was splashed across the country.

I had hoped the announcement could

wait until the change was effective in

January. Immediately, I felt I had to explain

to clients that, yes, I would continue

to represent them; to TAS that,

yes, I remained committed to the presidency

and, no, this was not the reason

I had missed Fall Convention; and to

the public that, yes, I was very excited

to be leading our firm into a successful

future. My inbox was as full of congratulatory

notes as my office was of flowers,

all of which I deeply appreciated and

many of which, I am ashamed to say,

went unacknowledged. I did not feel

celebratory. I felt I could not respond to

anyone other than strangers without explaining

everything that was going on.

I focused on maintaining a strong front,

but at that time, what was mostly on my

mind was the fact that we had been told

plainly that Alan was dying. His lung

tissue had been replaced by scar tissue.

A lung transplant was the only chance

for survival, assuming he could get one

in time. I had been compartmentalizing

nearly perfectly, like a robot. When we

got the news, it was one of the few times

I cried – but I really made it count. Alone

at home, my entire body was seized by

racking grief.

While Alan was in the hospital, it was

up to me to explain the situation to my

children (in the face of their father’s persistent

cheerfulness, optimism, and fearlessness).

I tried to be clinical and clear

– neither too optimistic nor too pessimistic.

Their dad would not leave the hospital

until after the transplant, whenever

that happened. He needed it to survive,

and there were no guarantees.

Anyone who knows Alan will not be

surprised that earlier in his hospitalization

he had broken out so he could see

our daughter briefly at home on her

birthday. Now, breaking out became impossible,

but by our son’s birthday he

had convinced the transplant team to

turn down the oxygen levels just enough

so that he could manage at home with

high-flow liquid oxygen. It was a setup

straight out of a sci-fi movie and required

a full oxygen mask. Liquid oxygen, with

very careful planning, allowed for short

outings before he ran out of oxygen.

Alan routinely gambled on it to drop the

kids off at school and see people.

Preparing for a lung transplant is a

full-time job. In addition to the patient’s

physical preparation work and suffering

from the underlying condition, it comes

with a massive manual. I read all of it.

Alan read none. It was grim. It told us

to prepare for end of life. It explained

there were multiple false alarms when

lungs became available, and that people

often died waiting. A lung transplant

was the path of last resort because of

the extreme risk.

And so, we entered the holiday season

with Alan at home and the morbid hope

that someone of his size and blood type

would die so he could survive.

Α December to remember:

Holding it together

December brought the President’s Festive

Reception – an event I was not looking

forward to hosting. (Couldn’t it just

be called the “Festive Reception”? Too

late.) Memories of being the MC at the

End of Term Dinner were still fresh, and

I was afraid of bringing home a virus

that would kill Alan. To my complete

surprise, the event was a wonderful experience.

I addressed guests briefly and

from the heart. I was genuinely thrilled

to see members and friends. Robin Black

squeezed my hand. I had not realized

how alone I had been feeling. This president

left in a festive mood.

That holiday season was bittersweet.

I had hope but was planning for what

could well be our last Christmas together.

(Alan was sure it would not be.) I do

not think I sent a single personal card to

colleagues, clients, or friends.

We were in our home the entire time.

I focused on making it as memorable as

possible for the kids. They were entirely

adaptable. Our whole family became accustomed

to the obstacle course of a giant

smoking tank of liquid oxygen and two

concentration machines. We instinctually

stepped over the 25 to 50 feet of tubing

that trailed Alan wherever he went. With

useless lungs, he performed impossible

calculations as to how much oxygen he

would need for what activity and how he

could get it. He did a lot of the holiday

cooking (although high-flow oxygen and

stoves are strictly incompatible). He remained

an independent, optimistic, and

active father, when he could rightfully

have taken to bed permanently.

We had a scary moment (one of hundreds)

when we lost power one night,

and Alan woke me up because he was

unable to breathe or move, unassisted by

his electric oxygen concentrators.

And then, it was 2024.

January: The call that changed everything

On January 1, I became CEO of the firm.

At Alan’s insistence, I flew to Calgary

to do my job. I was apprehensive about

going away, given the power outage experience,

potential germ exposure, the

knowledge that at any moment we might

get a call that there were lungs, or the

fact that Alan simply might die.

While I was out for dinner with my

partners the first evening, Alan called. A

matching donor had been found. He told

me not to come home right away; we had

been warned we could expect up to four

false alarms, and this was our first call.

But we both had a good feeling. Shepherded

by my colleagues, I boarded the

overnight flight.

Within 36 hours, the kids at school, I

was alone in a cold room at Toronto General.

I stared at the traffic on University

Avenue as my husband’s upper body

was cut in half and he was cracked open

like a clam. His lungs were removed

and a stranger’s lungs were attached to

his respiratory, vascular, muscular, and

nervous systems. Twelve hours later, I got

the call that I could see him in the ICU.

The operation was a success, a miracle

by any measure, facilitated by an act of

human kindness, medical ingenuity, and

pharmacy. But there were complications.

Alan was in the ICU for more than a

week. For 15 hours a day, in the dark, I

kept time to the sound of the ventilator

and stared at the multiple IV drips keeping

him alive, the monitors that proved

he was, and the 80-plus staples holding

him together. My sister joined me the first

night. Alan’s sister joined me thereafter.

My parents looked after our children.

Colleagues and friends checked in. One

sent a beautifully prepared meal. One

sent a gift certificate for Italian night. Fruit baskets. Flowers.

Chocolate. A hospital survival care package. I responded only

sporadically and was grateful throughout. Sometimes I took a

call in a hospital coat closet; sometimes in an empty elevator.

Alan was finally extubated and was moved from the ICU

to the step-down unit. Things then improved rapidly. He was

able to walk unassisted in record time, courtesy of sheer will

and his rebellious pre-transplant behaviour that kept him

stronger going into surgery.

I started taking client calls again regularly. I returned to

management duties.

I prepared a bilingual speech in honour of new Supreme

Court Justice Moreau, but later than was ideal. Thanks to the

agile senior staff at The Advocates’ Society, it was condensed

and submitted to the SCC on time.

February: Back on plan

Early February, after many highs and lows, Alan was home

with new lungs, without needing an admission to the rehab

facility or supplemental oxygen. Recovery was tough. Life was

and would remain medically intensive, but he was recovering

well ahead of schedule.

I attended the ceremony welcoming Madame Justice Moreau

to the Supreme Court of Canada. It was a fantastic experience

and an honour to have shared it with Vicki White, who had

been checking in on me, running interference, ensuring sufficient

coverage, and delicately testing my appetite for involvement

on every single issue throughout this period.

I regret that I was not able to attend The Big Chill, the first

national conference of our Mid-Career Advocates’ Standing

Committee, but am thrilled that it was a huge success.

Late February, Premier Doug Ford issued a call for

“like-minded” judges in the Ontario judicial system, precipitating

another round of media interviews. My children saw my

name in the news and were afraid I had picked a big, public

fight with the premier. I assured them that it was not personal,

but the “like-minded” sentiment was a threat to democracy,

which, while strong, needs to be defended. Things were getting

back to normal.

March to June: The final stretch

Alan had no immune system and was still in hard-core recovery.

All the roles I played were public facing. The kids were

at school, which is a giant Petri dish. We had to balance our

family’s comfort level with public exposure and how far, and

for how long, I felt comfortable being away. We returned to a

world of N-95 masking in our home.

The Society’s year wrapped up with a flurry of events from

March to June: the Sopinka Cup in Ottawa, a bar and bench

event in Montreal with judges of several courts, the Society’s

Annual Alberta Gala in Calgary, meetings with ministers,

the John P. Nelligan Award ceremony, the Ontario Court of

Justice AGM, and the Supreme Court bar and bench meeting

(still fighting for interveners to be allowed to appear in person),

among many other TAS and other association events

and initiatives.

Heuristica welcomes

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We completed the Society’s strategic plan.

During this time, Alan was infected. Illness severely set back

his recovery, but he handled it as expected. (Let nothing get in

the way of good advocacy or a good time.)

June brought the final board meeting, where I had the

honour of recognizing and thanking outgoing board members.

A framed cover of

choice from this very journal,

which is lovingly

and perfectly edited by

Linda Rothstein, was a fitting

parting gift for each

director.

The Advocates’ Society:

A lifeline in the year that

defied planning

Strategic planning led TAS

to a vision: to be essential

to the professional life of

every advocate in Canada.

This year, when planning

was of no help to me, TAS

was essential for my professional

life – providing

purpose, friendship, and

support.

I did not attend or contribute to everything as I had hoped,

but it did not matter. The Society’s strength and leadership ensured

its goals were met. We held eight productive board meetings.

The committees excelled in delivering on their mandates.

The Society continues to fulfill its mission to build a national,

collegial community of advocates committed to excellence inside

and outside the courtroom, and to amplify the voices of

advocates in protecting and enhancing the legal profession and

our justice system.

On a personal level, I learned that:

Planning is adapting: As litigators, we are trained to prepare

for every scenario, but personal and professional challenges

do not always follow a script. The key to surviving is being

adaptable when plans unravel.

Compartmentalization has limits: This year was brutal. Olympiclevel

compartmentalization skills, common among advocates,

helped me manage, but, more crucially, I had strong support.

Compartmentalization only works until it doesn’t. It is vital to

know your limits and to get help when you need it.

Community is critical: This profession is hard, and so is life.

None of us can do it alone. It is important to find community.

The quiet, consistent support from colleagues at The Advocates’

Society and my firm, and from friends in the legal community,

was invaluable. They checked in, sent messages, and

took tasks off my plate, often without my even realizing how

much I needed help.

Purpose is essential: The presidency gave me a platform to

engage meaningfully with the broader legal system, which was

crucial for building resilience last year. We all need purpose

in our work. It is easy to find it: Right after my term ended,

I found fulfillment in 45 minutes of mentoring a younger

advocate through The Advocates’ Society mentorship portal. I

recommend it. It made my day.

We held eight productive board meetings.

The committees excelled in delivering

on their mandates. The Society continues

to fulfill its mission to build a national,

collegial community of advocates committed

to excellence inside and outside the courtroom,

and to amplify the voices of advocates

in protecting and enhancing the legal

profession and our justice system.

Gratitude for an unplanned year

My presidency year ended as it began, with the End of Term

Dinner. I was not the MC. Alan and the children were with

me. I spoke to the crowd of thirteen hundred advocates after

two hours of cocktails plus dinner, and if they were unwilling

listeners, I could not tell. I had a great time.

I conclude here with the

remarks I made there, which

remain true:

My time as president and

my eight years on the board

were over in an instant – and

they have been the honour of

a lifetime. What I will take

from this experience is mostly

gratitude.

As Canadian advocates,

we’re lucky. When we go to

law school, we can’t imagine

the level of community we’ll

one day experience with advocates

across the country. The

collegiality, skill, and integrity

of this bar are the backbone

of our legal system.

We’re also lucky to have a

knowledgeable, impartial, and

engaged bench that works with the bar to demystify and improve our

justice system.

And we’re lucky to have a justice system to which other countries

can only aspire.

But our system needs constant care. The continued enjoyment of

our Canadian democracy depends on timely justice and a belief in

our system. As advocates, we’re in a privileged position to speak up

and help.

Through The Advocates’ Society, the people in this room can continue

to make a difference.

Whenever problems in the system cause injustice, your stories are

important. Don’t be silent. Share them. We need them to advocate

for change.

With our younger advocates, given their inclusive mindset and

multi-perspective approach, our future is in excellent hands if we

prioritize mentoring, training, and practical experience.

And it will always be important for advocates to get together.

The presidency has now passed to the distinguished Darryl Cruz,

for which I am proud, delighted, and profoundly relieved. He was a

great VP. He will be an excellent president, and the Society will soar

to even greater heights.

The Society is run by an exceptional team. Thank you, CEO Vicki

White, for your inspiring and unwavering leadership, and to the talented

staff who always rise to the occasion. Thank you to the excellent

Executive Committee and the phenomenal, hard-working board.

Thank you to Barb Murchie, who first introduced me to The Advocates’

Society 18 years ago. And to past presidents Mike Eizenga and

Jeff Leon, who threw my hat in the ring for the board – and told me

after the fact. To all my Bennett Jones colleagues, thank you for your

support, trust, and patience.

Deepest gratitude to my husband, Alan, and our children. Thank

you for being alive. Thank you for being you. There is nothing and no

one more important to me.

Tricks of the Trade 2025

A 30+ Year Tradition for Leaders of the Personal Injury Bar

January 31, 2025 | 9:30 am to 4:30 pm (ET) | Live at Arcadian Court in Toronto

For over three decades, Tricks of the Trade has been the leading annual conference for the Ontario personal injury bar,

addressing current challenges for both plaintiff and defence counsel. Esteemed faculty will provide key updates on recent

decisions, timely advocacy tips, and the latest guidance on practice and procedure for personal injury litigators.

Tort Law Update

A roundup of key tort decisions from the past year

that personal injury lawyers need to know.

Speaker: Maya Kanani, Aviva Trial Lawyers

AI and Legal Tech Update

See practical live demos of how you can leverage

new tech to be more efficient and effective.

Speakers: Kanon Clifford, Bergeron Clifford LLP

Andrew Murray, Lerners LLP

Expert Evidence Update

The latest guidance on case law and trends in the

wake of recent changes to the Rules.

Speaker: Daniela M. Pacheco, Neinstein LLP

Keynote Speaker

The Hon. Justice Darla A. Wilson, Court of Appeal for Ontario

Justice Wilson practiced civil litigation in Ontario for over twenty years, including

medical malpractice work, general insurance defence work, and representing

plaintiffs in personal injury claims. She was appointed to the Superior Court of

Justice in Toronto in December 2007, where she served until her recent appointment

to the Court of Appeal for Ontario in May 2024.

Accident Benefits Update

A review of the top Accident Benefits updates and

decisions from the past year.

Speaker: Suzanne Clarke,

Zarek Taylor Grossman Hanrahan LLP

Demonstration and Commentary:

Handling Hearsay in

Personal Injury Matters

Faculty break down how to handle common evidentiary

issues through live demonstrations and discussion.

Speakers: The Hon. Justice Kathleen E. Cullin,

Superior Court of Justice, Barry Cox, Boghosian Allen LLP,

Barbara Legate, Legate Injury Lawyers

For up to date topics and agenda visit

www.advocates.ca


EVIDENCE AND ADVOCACY

A primer on hearsay

for civil lawyers

Let’s start with the primary rule of evidence: Evidence that

is relevant to a fact in issue in the case is admissible unless

it is subject to an exclusionary rule. However, hearsay

evidence is considered “so inherently untrustworthy as to merit

exclusion” 1 in order to preserve the truth-seeking function of

the trial. The rule that makes hearsay evidence presumptively

inadmissible has been part of the bedrock of the law of evidence

for centuries. 2

In this article I define hearsay, lay out the purpose behind its

exclusion, and discuss the exceptions to the exclusion. I then

address hearsay in joint document books filed at trial, and how

the Court of Appeal deals with hearsay in civil cases. I conclude

with some practice tips.

My objective in this article is to warn against the casual

treatment of hearsay evidence at trial and to encourage a more

thoughtful approach to forestall problems on appeal. In Bruno

v Dacosta, 3 I denounced “the deplorable tendency in civil cases

of admitting evidence subject only to the weight to be afforded

by the trial judge.” I then quoted Justice Stratas, who wrote:

“Seduced by this trend towards [evidentiary] flexibility, some

judges … have been tempted to rule all relevant evidence as

admissible, subject to their later assessment of weight.” 4 He

described this approach as “legal heresy.” And so it is. The

errors of trial judges in admitting impermissible hearsay evidence

have led to reversals by the Court of Appeal in civil

cases. You do not serve your client’s interest by sliding the

evidence in at trial only to lose on appeal. You must address

hearsay evidence properly.

What is hearsay?

Hearsay is a concept that is both basic and complex. We all

know, basically, what hearsay is: an out of court statement that

is being tendered for the truth of its contents. 5 But, to handle

the nuances of hearsay evidence as they emerge in various trial

contexts, counsel should continually refresh, not just passively

but actively, that understanding of the concept.

For that reason, I provide here a couple of examples. The definition

comes from a Privy Council appeal from Malaysia. Mr.

Subramaniam was found seriously wounded. He was charged

with possessing ammunition contrary to a counter-terrorism

decree. Mr. Subramaniam testified that he had been captured

by terrorists and that he had stored the ammunition under

duress. Specifically, he testified that the terrorists threatened


to kill him if he did not store the ammunition. These threats

became the subject of a hearsay ruling. The trial court excluded

Mr. Subramaniam’s recounting of the threats against him

as inadmissible hearsay, finding that the terrorists’ threats

were out of court statements made without the possibility of

cross-examining them. Mr. Subramaniam was convicted and

sentenced to death. The Supreme Court of the Federation of

Malaysia confirmed his conviction on appeal.

Mr. Subramaniam appealed, and the Privy Council found

that his retelling of the terrorists’ threats was not hearsay. The

threats were statements, made out of court, without crossexamination.

But, crucially, they were not adduced for the

truth of their contents. Mr. Subramaniam

did not need to prove that the threats

were true – that the terrorists actually

intended to kill him if he did not comply.

The actual truth of the threats did

not matter. What mattered was that the

threats were made and Mr. Subramaniam

believed them, which caused him to act

as he did. The conviction was set aside

because it was not clear that the result of

the trial would have been the same had

the evidence been admitted.

Although hearsay issues arise more

frequently in criminal cases, the same

principles apply to civil cases.

For example, 9725440 Canada Inc. v Vijayakumar,

2023 ONCA 466, was about a

failed real estate transaction. The issue

was the availability of specific performance

as the remedy, which turned on the

intention of the purchasing party, Mr.

Lin. But Mr. Lin did not testify. Instead,

his son testified as to his father’s intentions

in the purchase. This testimony

was clearly hearsay because the father

made the statement out of court and

his intentions were adduced through

his son to show the truth of what the

father wanted. The trial judge accepted

this evidence without conducting any

hearsay analysis. The Court of Appeal

noted that none of the established hearsay

exceptions were met, and in the absence

of the hearsay evidence, there was

no basis for specific performance as the

remedy. The case was sent back for a

hearing on damages.

To summarize, there are three important

elements of a hearsay statement. First,

a statement is only hearsay if it is made

out of court and the person who made it

is not testifying to it before the trier of

fact. 6 Second, evidence can be hearsay

only if it takes the form of a statement,

though this requirement is interpreted

broadly to include speech, written

documents, assertive conduct (like

shrugging shoulders), non-assertive

conduct, 7 and implied assertions (like a

call to a person’s phone asking for drugs

– implying that the phone’s owner is a

drug dealer). 8 Third, because hearsay is

“defined not by the nature of the evidence

per se, but by the use to which the

evidence is sought to be put,” 9 the hearsay

exclusion is only for a statement that

is offered to prove the truth of the statement’s

contents. 10

Non-hearsay uses include showing the

declarant’s mindset 11 ; that a declarant

was alive at a particular time 12 ; and that

the statement was not a recent fabrication

because it was made earlier 13 – generally

to attack the credibility of another witness

14 or to further a narrative and put

matters in context. 15

As a trial judge, I heard counsel argue

that a statement was being proffered to

show that it was made and not for its

truth-value. But sometimes counsel’s

real goal was to sneak it in for its truthvalue.

I would ask: Does the mere fact

that the statement was made do any

work in proving or disproving a fact in

issue? If not, then the request for admission

reveals counsel’s hope that the

content of the statement will work its

magic implicitly without the risk of

cross-examination. But that is precisely

why the rule keeps such evidence out.

Why is hearsay inadmissible?

The historical caselaw yields five

grounds for the presumptive inadmissibility

of hearsay statements:

1. they are not made under oath;

2. they are not subject to testing by

cross-examination;

3. they might not be the “best” evidence;

4. they might lead to unnecessary

proliferation of evidence; and

5. as statements are repeated, their

accuracy tends to deteriorate. 16

Of these points, the second – the lack

of cross-examination – has the most

force. The trier of fact is severely hobbled

in the pursuit of the truth by being unable

to assess the declarant’s credibility

and reliability in the crucible of crossexamination.

John Henry Wigmore famously called

cross-examination “the greatest legal

engine ever invented for the discovery

of truth.” 17 The ability to cross-examine

a witness allows the examiner to confront

the witness with prior inconsistent

statements, the statements of others, or

contrary physical and other evidence,

and to challenge the witness on the basis

of a motive to fabricate, the presence of

bias, a history of dishonesty, and so on.

Without the ability to see the declarant

tested in this way, the trier of fact is less

able to assess whether the witness misperceived

the events, has an inaccurate

memory, was unintentionally misleading,

or lied. 18 Simply put, without

cross-examination a party is unable to

adequately test the evidence.

When is hearsay admissible?

Trial judges dislike excluding relevant

evidence because it impairs the search

for truth, and they have been wrestling

with the hearsay exclusion for centuries.

This attitude led to a catalogue of exceptions

to the hearsay rule, and, more recently,

to the “principled approach.”

I will address briefly the traditional exceptions

to give readers a sense of them,

but the jurisprudence is increasingly engaging

the principled approach.

The traditional exceptions

The traditional exceptions were shaped

to meet the practical evidentiary needs of

courts for relevant evidence while avoiding

the hearsay dangers. 19 The dying declaration

exception, for example, allows

for the admission of hearsay evidence

in homicide cases where the soon-to-be

deceased described the circumstances of

the homicide in the context of a settled,

hopeless expectation of death. 20 These

statements were considered necessary

and inherently reliable.

Another traditional exception is for

the spontaneous utterance, also known

as res gestae. This exception allows hearsay

to be admitted where the statements

arise in the context of a startling event,

before the declarant, who personally observes

the event, has time to fabricate a

reaction. 21

A third category is party admissions –

that is, acts or words of a party offered as

evidence against that party.” 22 Exclusion

is not required because the party making

the admission cannot complain about

its reliability. 23 There are about a dozen

other traditional exceptions.

Hearsay exceptions have also been

created by legislation. For example, the

traditional approach to business records

continues, 24 but these records can be admitted

under the Canada Evidence Act,

RSC, 1985, c C-5, at s 30, and provincial

evidence statutes.

The principled approach

The principled approach to the admission

of hearsay originates in R v Khan. 25

There, a young girl spontaneously told

her mother, in the unknowing language

of a child, how a doctor had sexually assaulted

her, moments after the assault

happened. Faced with excluding this

reliable evidence, which could be admitted

only through the hearsay evidence

of the mother, Justice McLachlin (as she



then was) ruled that it was time for a more flexible approach

to hearsay. The question underlying the traditional exceptions

was whether the hearsay evidence was necessary and reliable.

These two elements form the analytical framework for the

principled approach.

To be admitted under the principled approach, the evidence

must be both necessary and reliable. Necessity is not concerned

with whether the information is necessary to prove the case

of the Crown, defence, or civil parties. Instead, it asks if the

evidence can be brought before the court in other ways and

whether reasonable steps have been taken (or could be taken)

to get it. 26

The trial judge must also find that the evidence meets a

threshold level of reliability. (Ultimate reliability is determined

by the trier of fact based on all the evidence.) Bradshaw prescribed

the methodology for trial judges to follow in determining

threshold reliability. 27 In brief, threshold reliability is

established by showing that cross-examination of the declarant

is unnecessary because: (1) there are adequate substitutes for

testing truth and accuracy (procedural reliability); or (2) there

are sufficient circumstantial or evidentiary guarantees that the

statement is inherently trustworthy (substantive reliability); or

(3) there is an effective combination of elements of both procedural

and substantive reliability.

The trial judge must identify the statement’s particular hearsay

dangers regarding the declarant’s perception, memory,

narration, or sincerity, and must evaluate whether and how the

dangers specific to the case can be overcome.

Procedural reliability asks whether there are adequate substitutes

for testing the hearsay evidence by cross-examination

that will permit the trier of fact to rationally evaluate the truth

and accuracy of the hearsay statement – for example, where

there was a “functional substitute for trial testing.” 28 This

form of reliability might be established when the statement is

made under oath, audio- or video-taped, and subject to crossexamination

when it was made.

Substantive reliability asks whether the statement is “inherently

trustworthy”; for example, because of the circumstances

in which the declarant made it and any evidence that corroborates

it. 29

The trial judge must be satisfied that the statement is “so reliable

that contemporaneous cross-examination of the declarant

would add little if anything to the process.” 30 Factors that go

into this analysis include whether the statement was made

naturally, spontaneously, and without suggestion or a motive

to fabricate; whether the statement supports the declarant’s

interest; whether the declarant is dishonest; and whether the

statement is corroborated. In Khan, substantive reliability was

established because the child could not have known about the

sex acts she described at her young age, she made the statement

without any prompting, she had no reason to lie, was not

aware of the implications of what had happened to her, and her

statement was corroborated by physical evidence.

Both forms of reliability – procedural and substantive –

can be seen in civil cases, too. Skead v Chin, 2020 ONSC 1484

(Fregeau J), was a medical malpractice case. The question was

whether statements made to the defendant doctor by a longtime

office assistant who had died should be admitted. The

trial judge admitted the statements on the basis that there was

enough corroborative evidence to establish their threshold

reliability. He added that “because the witness was retired at

the time of her conversation,” she had “no personal interest

in the matters before the court and had no motive to lie to protect

Dr. Chin.”

Softcom Solutions Inc. v Attorney General of Canada, 2019 ONSC

7191 (Schabas J), was a negligent investigation case. The trial

judge admitted transcripts of evidence given at a preliminary

inquiry because the witness had since died; procedural reliability

was established on the basis that the witness had been

examined in chief and cross-examined.

Balancing probative value and prejudicial effect

Even when necessity and reliability are found, or a traditional

or legislated exception is met, trial judges retain the discretion

to exclude the evidence where its prejudicial effect

would outweigh its probative value. 31 Further, the evidence

contained within admissible hearsay must be otherwise

admissible. Hearsay exceptions cannot be used to admit

otherwise improper evidence, such as impermissible bad

character evidence.

The discretionary balancing of probative value and prejudice

in a civil case is seen in Lu v Kalman, 2023 ONSC 5335

(McKelvey J), a medical negligence action. The trial judge

refused to allow the plaintiff to file online anonymous reviews

of a doctor’s treatments. The probative value was limited

because the circumstances underlying the reviews were unknown.

32 Potential prejudice outweighed this limited probative

value. The trial judge was concerned that admitting the statements

“will result in the focus for this trial to be misdirected

into a consideration of the context and circumstances of other

complaints against Dr. Kalman.” 33

Other ways hearsay might be admitted

I comment on two other routes.

The first route by which hearsay can get in is through admissions.

34 The Supreme Court treats admissions as one of the

traditional exceptions. 35 Exclusion is not required because the

party making the admission cannot complain about its reliability.

Proof of necessity and reliability is not required. 36 However,

to protect the trial’s truth-seeking function, admissions

should not be accepted without some analysis. In particular,

the admission should be assessed for its accuracy in the circumstances

of its making.

The second route by which hearsay can bypass the traditional

and principled approaches is the use of the statement as part

of the explanatory narrative. Evidence that furthers the narrative

or puts the matter in context is not really hearsay because

it is not tendered for its truth. For example, in R v F. (J.E.), the

Court of Appeal for Ontario ruled that a mother’s testimony

about how her child disclosed sexual assault was narrative and

was not inadmissible hearsay because it was adduced to explain

how the police became involved. 37 In R v Iyeke, a police

officer could testify that he received information from an informant,

even though the informant did not testify, because the

information was being used only to explain the actions taken

by police. 38

However, it is essential to ensure that in admitting narrative,

the evidence is not actually being adduced for its truth, which

would make it a Trojan horse for the admission of hearsay. The

trier of fact must be cautioned about misuse of the evidence.

Hearsay in joint document books

Although hearsay is most often raised in

criminal cases, caution is also warranted

in civil cases. 39 Both counsel and trial

judges have a role in ensuring that the

evidence before the court is comprehensive,

accurate, and complies with the law

of evidence. Admitting hearsay without

scrutiny impairs the fact-finding process

and harms the administration of justice –

regardless of the subject matter. 40

As I noted at the outset, appellate

courts are increasingly critical of the

“overly casual approach” to the admission

of documents into agreed exhibit

books during civil trials. 41 The practice

of filing joint books containing the

documents to be relied on by the parties

is well established and can significantly

enhance trial efficiency, which is

an important factor in civil litigation. 42

Most documents do not raise evidentiary

issues. 43 But it is not unusual for counsel

to differ, in the clinch at trial, on the basis

for which a document in the brief is being

tendered – an essential consideration

in determining hearsay and, therefore,

admissibility. 44 Laxity can lead to the admission

of hearsay at trial and to problems

on appeal. 45

To ensure that evidence in joint document

books is properly admitted, counsel

should be disciplined in constructing

them. Specifically, counsel should turn

their minds to the bases of admitting and

using documents in the joint book early

and address the questions outlined in

Girao v Cunningham:

Are the documents, if they are not originals,

admitted to be true copies of the

originals? Are they admissible without

proof of the original documents?

Is it to be taken that all correspondence

and other documents in the document

book are admitted to have been prepared,

sent, and received on or about the

dates set out in the documents, unless

otherwise shown in evidence at the trial?

Is the content of a document admitted

for the truth of its contents, or must the

truth of the contents be separately established

in the evidence at trial?

Are the parties able to introduce into

evidence additional documents not mentioned

in the document book?

Are there any documents in the joint

book that a party wishes to treat as exceptions

to the general agreement on the

treatment of the documents in the document

book?

Does any party object to a document

in the document book, if it has not been

prepared jointly?

If a document is not challenged, is its

hearsay content deemed to be admitted? If

the parties do not accept the truth of the

contents of “all” documents, then which? 46

Counsel should reach an agreement

in writing that answers these questions,

provides further qualifications where

necessary, and explains both the permissible

use of the documents and the evidentiary

basis upon which they are to be

admitted. 47 Counsel should clearly distinguish

between hearsay and non-hearsay

uses of the documents. 48 Trial judges

and counsel should take a purposive

approach to assembling an agreement. 49

The agreement should be attached to the

joint document book in all civil cases,

and the trial judge should go through it

carefully with counsel to make sure there

are no lurking misunderstandings. 50

These agreements should be crafted “to

put beyond doubt” what the documents

are, how they will be used, and whether

there are any hearsay concerns. 51 A failure

by counsel to attend to these issues

might result in the trial judge refusing to

admit the documents as exhibits. 52

These agreements should be made as

early as possible, preferably in the pretrial

process. 53 If the agreement comes

too late, it can complicate ongoing proceedings

– especially where evidence has

already been heard. 54 Agreements must

also be clear. Ambiguous statements

about the parties’ positions serve little

purpose, and counsel and trial judges

should clearly and candidly address any

potential hearsay. 55 Specifically, counsel

should state the exact purpose for which

they tender each document and whether

its admissibility is contested. 56

In the absence of a shared understanding,

appeals and the trial process are

complicated and perhaps frustrated. For

example, in Kiskadee Ventures Limited v

2164017 Ontario Ltd., 2016 ONCA 955,

the court found that confusion about the

document brief led to counsel not turning

their minds to a key element of the

case, and not raising the issue before the

trial judge, but only on appeal – rendering

the trial below less effective and the

appeal more complex, although the appeal

was dismissed. 57

In Bruno v Dacosta, 2020 ONCA 602,

appellate review was partially frustrated

by errors in the preparation and use

of the joint document book, which fundamentally

weakened the trial judge’s

reasons. 58 The trial judge effectively accepted

the hearsay content of a critical

report without cross-examination because

the author did not testify. The case

was sent back.

Such incidents must be avoided. Where

the parties are not clear on the contents

of the joint brief and the admissibility of

its contents, good judicial practice is to

follow up and clarify whether there is

an objection. 59 Counsel should be wary,

too, that, in the absence of objection, an

appellate court might find the hearsay

evidence to be admissible. 60

Hearsay at the Court of Appeal

Where hearsay has been inappropriately

admitted, it can be excluded on appeal.

In Girao, Kiskadee, Bruno, and Pingue,

hearsay that had been admitted into the

trial record without analysis was central

to each appeal. Although the Court of

Appeal is reluctant to order new trials on

civil matters, a few recent cases demonstrate

the court’s willingness to intervene

and send cases back where the law of

evidence has not been followed and the

record does not permit a decision to be

made on the merits on appeal, as in Bruno.

But, before the Court of Appeal returns

a case on grounds of hearsay, its admission

must be an error that had a material

impact. In particular, counsel must show

that the hearsay was impermissibly accepted

into evidence and that the trial

judge relied on it in the ruling. 61 This

two-part analysis is a relatively high bar,

but one that the court takes seriously.

The court will not shy away from finding

and addressing impermissible hearsay if

it truly affects the justice of the case.

Dia v Calypso Theme Waterpark concerned

an altercation at a waterpark.

There, the evidentiary trial record “was

far from ideal” and consisted of photographs

of the respondent, material from

a police file, requests to admit and responses,

accounts of legal expenses, and

examinations for discovery of two appellants.

62 The parties thought that the

statements and reports were admissible

hearsay under Rule 20.02(1) of the Rules

of Civil Procedure, which states: “An affidavit

for use on a motion for summary

judgment may be made on information

and belief.” However, an affidavit based

on information and belief (i.e., hearsay)

must state the affiant’s source of the



information and the fact of the belief, and must be adequately

supported by the sworn statement of a person who could form

a belief as to the accuracy of the information. 63 After removing

the impugned evidence, there was an insufficient basis for the

motion judge to have granted summary judgment, which was

set aside. 64

In Marmer Penner Inc. v Vacaru, 2022 ONCA 280, the appellant

sought to adduce as fresh evidence on appeal the transcript

of the respondent’s discovery evidence taken over eight

years prior, which referred to the statements of others. Fresh

evidence is admissible on appeal only if it would have been

admissible at trial under the governing rules of evidence. The

court found that the proffered evidence was “hearsay in every

sense of that word” 65 and denied the motion for fresh evidence.

Practice tips for counsel

Successful trial practice demands that counsel understand

what hearsay means, how it applies, when and how to object,

when to insist upon a written ruling, and how to properly engage

with hearsay issues as they arise.

The first and most important thing for a trial lawyer to

understand is what hearsay is. Know how to identify hearsay

in all its forms and know how to argue for and against the traditional

and principled exceptions to it. Keep up to date with

the common law as it evolves, and make sure you are aware of

different statutory routes, their requirements, and the benefits

and costs of using them. Without this knowledge, lawyers cannot

properly use hearsay or defend against its admission. Remember

Dia v Calypso Theme Waterpark, where an appeal could

have been avoided with a stronger understanding of hearsay in

the context of a motion for summary judgment.

Really pin down the purpose for which a statement is to be

adduced, especially in assembling joint document books. Make

it crystal clear what is, and is not, proper evidence and what

makes the evidence admissible. Hold yourself and your friend

to account – trial fairness, appeal routes, and the interests of

your client might depend on it. Failures in this area lead to

successful appeals, as in Bruno and Vijayakumar.

Deal with hearsay issues early and in advance of the trial.

Avoid “just in time” document assembly for trial. Build the

joint document book early. Give advance notice of any intention

to rely on business records. Make use of requests to admit

facts and documents whenever possible. But, in requests to

admit, be clear whether the evidence is to be admitted for the

truth of the statement, whether it is hearsay, and what the parties’

understanding is of the document in question. Know and

follow Girao, Kiskadee, Bruno, and other cases on how to deal

with joint document books.

Make sure that your hearsay objections are clearly made,

understood, and recorded. Put any objections on the record

to preserve appeal rights. Make sure that the Court of Appeal

is able to follow your hearsay argument throughout the trial

process. As Justice Stratas noted in Dow & Duggan Log Homes

International (1993) Limited v Canada, at para. 4: “Unless such

an objection is made, the Court and all parties are entitled to

proceed on the basis that the evidence is admissible without

any restrictions on its use.” 66

Object clearly on the record and ask for a ruling. Doing so

can be daunting for young counsel, but it is your duty.

When hearsay is admitted, work as much as possible to mitigate

any of its prejudice and to promote fairness as much as

possible.

Conclusion

Hearsay is no small concern for the fair and efficient administration

of justice. If treated without care, its admission as evidence

might threaten the very purpose of a trial: to seek the

truth. But hearsay can also contain vitally important information.

Handled thoughtfully, hearsay evidence can respect and

enhance the truth-seeking function of a trial.

27. Bradshaw, supra note 10 at paras 26–28, 30–32. See R v McMorris, 2020 ONCA

844, [2020] OJ No 5765, per Lauwers JA at paras 19–30.

28. Khelawon, supra note 6 at para 63.

29. McMorris, supra note 27 at para 29.

30. Bradshaw, supra note 10 at para 31; McMorris, supra note 27 at para 30.

31. Sopinka, Lederman, and Bryant, supra note 2 at § 6.02, “Exceptions to the

Hearsay Rule, [3] Trial Judge’s Residual Discretion”; See Lu v Kalman, 2023

ONSC 5335 – online anonymous doctor reviews not permitted.

32. Lu, ibid at para 20.

33. Lu, ibid.

34. R v Schneider, supra note 22 at para 52.

35. Ibid at para 52.

36. Ibid at paras 54–55.

37. R v F. (J.E.), supra note 15 at p 476.

38. R v Iyeke, 2016 ONCA 349 at para 6.

39. Pfizer, supra note 4 at para 87; Dobrowolski v Dobrowolski, 2020 MBCA 105,

[2021] 2 WWR 1 at para 45; Clayson-Martin v Martin, 2015 ONCA 596.

40. Paciocco, Paciocco, and Stuesser, supra note 10 at pp 136–37.

41. Alberta Computers.com Inc. v Thibert, 2021 ABCA 213 at para 91; Girao v

Cunningham, 2020 ONCA 260, 2 CCLI (6th) 15 at paras 22–27, 28–35;

Dobrowolski Estate, supra note 39 at paras 32–39; Bruno, supra note 3 at paras

53–66, 69.

42. Alberta Computers.com, supra note 41 at para 93.

43. 1162740 Ontario Limited v Pingue, 2017 ONCA 52, 135 OR (3d) 792 at para 39.

44. Iannarella v Corbett, 2015 ONCA 110, 124 OR (3d) 523 at para 128. See Blake

v Dominion of Canada General Insurance Co. 2015 ONCA 165 at para 53 and

following.

45. Pingue, supra note 43 at para 40.

46. Girao, supra note 41 at para 33; Bruno, supra note 3 at para 57.

47. Girao, ibid at para 34; Kiskadee Ventures Limited v 2164017 Ontario Ltd., 2016

ONCA 955 at para 19.

48. Kiskadee, ibid at para 19.

49. Pingue, supra note 43 at paras 14–17.

50. Girao, supra note 41 at para 34; Kiskadee, supra note 47 at para 19.


52. See, e.g., Shanthakumar v CBSA, 2023 ONSC 3180 at paras 39–41.

53. Bruno, supra note 3 at para 63.

54. Bruno, ibid at para 60.

55. Bruno, ibid at para 57.


57. Kiskadee, supra note 47 at para 20.

58. Bruno, supra note 3 at paras 64, 67.

59. Dow & Duggan Log Homes International (1993) Limited v Canada, 2021 FCA 66

at para 5; Bruno, supra note 3 at paras 53–66.

60. Dow & Duggan Log Homes, ibid at paras 6–9.

61. Tiwari v Singh, 2023 ONCA 163 at paras 6–8.

62. Dia v Calypso Theme Waterpark, 2021 ONCA 273 at paras13–15.



65. Marmer Penner Inc. v Vacaru, 2022 ONCA 280 at para 20.

66. 2021 FCA 66 at para 4.

Notes

1. Ontario Law Reform Commission, Report on the Law of Evidence (1976) at 1.

2. Sopinka, Lederman, and Bryant, The Law of Evidence in Canada, 6th ed, Sidney

N Lederman, Michelle K Fuerst, and Hamish C Stewart (Toronto: LexisNexis,

2022) at § 6.01, “What Is Hearsay?”

3. Bruno v Dacosta, 2020 ONCA 602, 69 CCLT (4th) 171.

4. Pfizer Canada Inc. v Teva Canada Limited, 2016 FCA 161, 400 DLR (4th) 723, per

Stratas JA at para 83.

5. Ontario Law Reform Commission, supra note 1, citing Subramaniam v Public

Prosecutor, [1956] 1 WLR 965 at 970, adopted in R v Rosik, [1971] 2 OR 47 at p 70.

6. R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787 at para 35.

7. R v Badgerow, 2014 ONCA 272.

8. R v Baldree, 2013 SCC 35, [2013] 2 SCR 520.

9. R v Starr, 2000 SCC 40, [2000] 2 SCR 144 at para 162.

10. David M Paciocco, Palma Paciocco, and Lee Stuesser, The Law of Evidence,

8th ed (Toronto: Irwin Law, 2020) at p 138; Baldree, supra note 8 at para 1;

R v Bradshaw, 2017 SCC 35, [2017] 1 SCR 865 at para 1.

11. R v Collins, [1987] 1 SCR 265.

12. R v Ferber, 36 CCC (3d) 157 (Alta CA).

13. R v Ghomeshi, 2016 ONCJ 155.

14. Paciocco, Paciocco, and Stuesser, supra note 10 at p 173.

15. R v F. (J.E.) (1993), 85 CCC (3d) 457 (Ont CA) at p 476.

16. Ontario Law Reform Commission, supra note 1 at 12.

17. Thomas Wigmore, A Treatise on the Anglo-American System of Evidence at

Common Law, 2d ed (Boston: Little, Brown, 1923), Vol 3 at §1367, 27 (2d ed,

1923). See also Khelawon, supra note 6 at para 35; Starr, supra note 9 at paras

160–62; and R v B. (K.G.), [1993] 1 SCR 740 at p 764.

18. Baldree, supra note 8 at para 32.

19. Khelawon, supra note 6 at paras 2, 42; R v D.S., 2021 ONSC 2825 at para 25.

20. R v Nurse, 2019 ONCA 260, 145 OR (3d) 241 at para 66, following The King v

Woodcock (1789), 1 Leach 500, 168 ER 352 (KB) at p 502.

21. Nurse, ibid at paras 77–88; R v Nicholas (2004), 70 OR (3d) 1 (CA) at paras 88–89,

leave to appeal refused, [2004] SCCA No 225 (SCC).

22. R v Schneider, 2022 SCC 34 at para 52.

23. Ibid at paras 54–55.

24. Ares v Venner, [1970] SCR 608, 73 WWR (NS) 347.

25. R v Khan, [1990] 2 SCR 531.

26. R v F. (W.J.), [1999] 3 SCR 569 at paras 34–36.

Bringing experience to both sides of the table.

To find out more, or book a mediation, visit briangrantmediation.com

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FEATURE

Annals of Law: The All Families

Are Equal Act, 2016


Lawyers have unique skills: We can shape and change the

laws that, in turn, shape and change our world. As the

executive director of Pro Bono Ontario, I sometimes speak

to lawyers who are worried about volunteering: They are concerned

that they don’t know enough about the kinds of legal

issues people bring to PBO. But the truth is, lawyers – from first

years to retiring partners – can help a lot. We all know something

about where to go to get a legal remedy, we all know something

about the principles and values that shape the legal system, and

we all know that laws can be changed. This is a story about how

my wife and I, together with a community of legal experts, parents,

and activists, changed the law in Ontario to better recognize

LGBTQ+ families and protect our children.

First comes love, then comes marriage ...

Like many married couples, my wife, Jennifer, and I planned

to have children. Unlike some couples, we had to decide who

would get pregnant and whether to use a known or unknown

sperm donor. We were also different from heterosexual couples

in one important respect: When we decided that Jennifer would

get pregnant and carry our children, we knew that my relationship

to the children would not be legally recognized until after

the children were born and we went to court. Under the law at

that time, I had to either adopt our children or get a declaration

of parentage recognizing that I was their mother. Without judicial

review and approval, the law would not recognize me – a

woman married to the person giving birth – as a parent.

When Jennifer was in labour with our first child, Ruby, there

was a period of hours when both their hearts were in trouble.

There was a fetal heart monitor for the baby and another for my

wife. Two pieces of paper emerged from those machines continuously

documenting their heart rates. Those pieces of paper

were the first thing the doctor looked at when she walked into

the room and the last thing she looked at before exiting. The

nurse explained to me that there was a shaded band in the middle

of those two pieces of paper and that, as long as the heart

rates were within that shaded band, everything was OK. For a

period of hours there was not very much ink inside that band.

It is hard to describe the waves of fear that hit me: I was afraid

for my wife’s life; I was afraid for our baby’s life; and I was

afraid that I would have to hand our newborn over to a stranger

instead of caring for her myself. Until she was born and we

went to court to secure a declaration that I was her parent, I

was a legal stranger to my daughter.

Four years later, when our son, Cy, was born, the birth was

smoother and life was busier. I applied for parental benefits

and began parental leave. I did not get a timely decision, and

I – with my baby boy in a carrier snuggled into my chest – went

to the Service Canada office at Yonge and St. Clair in Toronto

many times to check on the status of my application. Service

Canada staff told me the decision was delayed because our

family wasn’t “normal.” Finally, I received a letter advising me

that I was not going to receive parental benefits because I was

not a parent. Jennifer, an executive-employment lawyer who

advocates for her clients every day, announced that the government

had picked a fight with the wrong family. We decided

to fix the law.

How to change a law

Jennifer and I had discussed challenging the laws around parental

recognition after our daughter was born, but when our

son was born and I was denied benefits, we decided that we

had to do something to protect other families. 1

We hired Joanna Radbord to secure declarations of parentage

for both our children. Together with Martha McCarthy, Joanna

had worked for decades to make family law inclusive of

LGBTQ+ families. They had expanded the definition of spouse 2

and of marriage, 3 and had been working to secure equal recognition

for LGBTQ+ parents. 4 As Dave Snow explained in

“Litigating Parentage,” “Prior to 2006, the [Vital Statistics Act]

only permitted a child’s Statement of Live Birth to list one

mother and one father.” 5 In Rutherford, one of the cases Joanna

brought to further parental equality, Justice Rivard found this

restriction discriminated on the basis of sex and sexual orientation,

suspending the declaration of invalidity for one year. 6

Ontario responded with narrow changes to the regulations

under the Vital Statistics Act, allowing a mother and an “other

parent” to register a child’s birth “where the father is unknown

and conception occurred through assisted conception.” 7

Jennifer and I talked to Joanna about bringing another

constitutional challenge. We knew that arguments about my

parental status were solid. Everyone from my colleagues at

Legal Aid Ontario to my Catholic grandmother was shocked

that two married people could have a child and not both

automatically be recognized by the law as parents. If I had

been a man married to a woman who gave birth, I would automatically

be a parent. There wasn’t much – other than my sex

and sexual orientation – different about my situation and the

situation of a husband whose wife got pregnant using a sperm

donor because of fertility issues. We were sure that bringing a

court case to extend legal recognition to parents like me would

be effective.

But then we started talking about what came next. What

other, queerer family forms would still be unrecognized, and

how would the courts respond to those families? Would a

four-parent family be able to effectively bring a constitutional

challenge? Joanna, Jennifer, and I were of the view that the more

substantive equality came into play – the “queerer” the family

form – the more difficult a constitutional challenge claiming

inequality might be. Then we discussed the fact that, even if

we were successful in court, the government might not write

a good law. The government had failed to write inclusive laws

after M. v H. and after Rutherford. Why would another court

case result in a better law? I proposed that we instead write

the law we wanted. (The litigators got to sue the government,

too, but we’ll get to that later.) Drafting our own legislation

meant that we could include three- and four-parent families,

trans parents, and genderqueer parents.

We knew that writing a law would be of limited use if we

couldn’t get the support of a member of the provincial parliament

to introduce it. Through friends who had worked at the

Ministry of the Attorney General, we were connected to the

premier’s staff, who were aware of the ways that the current

law failed to protect the children of LGBTQ+ families. Fixing

the problem was “on a list,” and they promised they would

continue to look for an opportunity to address it. (I later spoke

to a senior lawyer at the ministry, who revealed that parental

equality had been “on a list” since M. v H. was decided.)

Working with the government directly was not going to lead to

results quickly, so we approached our MPP about the possibility

of a private members’ bill. He offered his support, and we

began drafting a bill.

We sat down with Joanna and began to list the ways the law

excluded LGBTQ+ families. We talked to experts in family law

and LGBTQ+ family formation, and we researched what had

been done in other jurisdictions. We also connected with the

Sherbourne LGBTQ+ Parenting Network. They knew our families

and connected us to a community of parents who were

equally invested in making the changes we sought.

Around this time, our MPP connected us to Cheri DiNovo,

the NDP LGBTQ+ critic who had passed more private members’

bills and “pulled together more three-party agreements

bills than anyone else.” 8

Off to Queen’s Park

On November 3, 2015, about a year after the government told

me I was not a parent, Cheri DiNovo stood in the Ontario legislature

to introduce Bill 137, Cy and Ruby’s Act (Parental Recognition).

9 Cheri briefly described the changes proposed by the bill,

and first reading was complete.

All fall, our team leveraged our networks. We connected

with parents who presented petitions to politicians and did



interviews. Jennifer and I appeared on

Global News, Metro Morning, and The

Agenda with Steve Paikin.

Our friends and family were incredible.

Many contacted their MPPs and

followed up relentlessly until they got

confirmation that their member would

support our bill. I learned how sparsely

attended Queen’s Park could be on

lighter days, including for the first and

second reading of private members’ bills,

and you could see the work our friends

and family put in when their members

showed up to put themselves on the record

in support of our bill. Sophie Kiwala,

the MPP from my hometown, expressed

her support for the bill. 10

Second reading came quickly. On December

15, 2015, as we entered Queen’s

Park, the security guard asked our

daughter (now five) if she would like her

name tag to read “Princess Ruby.” She

did, which led to various MPPs welcoming

“Princess Ruby” to the legislature of

Ontario. 11 I’m not sure she appreciated

how strange and amazing that moment

was, but her moms – law nerds at heart

– will forever enjoy being able to read

about Princess Ruby in Hansard.

Heading into the holiday season, we

were jubilant. Second reading went well.

Members of all parties had shown up and

spoken in favour of the bill. We needed

to get the bill scheduled for committee,

where it would be reviewed in greater

detail, and we were confident it would

pass before the legislature adjourned for

the summer break.

We were wrong.

Pride is the season for protests – and

constitutional challenges

The government never scheduled the bill

for committee – apparently, a common

way to avoid having members come out

against a bill, and something Cheri had

predicted might happen. 12

We decided to increase the pressure

on the government by launching

a constitutional challenge. Pride

was coming, so we decided a protest

was in order, too. Joanna and Martha

McCarthy, working with nine families,

filed a claim (Grand v Ontario)

on April 8, 2016, “seeking to have 12

sections of the Children’s Law Reform

Act and seven sections of the Vital Statistics

Act ruled as unconstitutional.” 13

Relying on cases such as Rutherford and

A.A. v B.B., Joanna and Martha gathered

judicial findings that the birth registration

and parental recognition laws of

Ontario discriminated against LGBTQ+

families and presented them to the court.

The government’s failure to respond

comprehensively to those cases – going

back as far as M. v H. – was the issue:

The Province has taken no steps to

respond meaningfully to the gaps

identified by this Court in 2006 [in

Rutherford] or the Court of Appeal in

2007 [A.A.]. Although the Children’s

Law Reform Act was intended to ensure

the “equal status of children”

by abolishing the concept of illegitimacy,

the impugned legislation continues

to stigmatize, denying protections

to children born to LGBTQ

parents. 14

The Grand applicants represented

the diversity of the LGBTQ+ community

well. Lesbian co-mothers who used

both known and unknown sperm donors

were represented. Trans and genderqueer

parents were represented. Fourparent

families were represented. In the

context of Cy and Ruby’s Act, our media

strategy, and ongoing discussions with

the government about parental recognition,

the court case brought many types

of families together to show the myriad

ways in which existing laws discriminated.

It was a bold strategy – rather than

focusing on one narrow experience

of discrimination, Joanna and Martha

showed the diversity of LGBTQ+ family

forms and linked all those different

experiences back to a claim of discrimination

on the basis of sex, sexual orientation,

gender identity, and family status.

While Joanna and Martha launched

the claim in a matter of weeks, “at the

hearing on May 24, 2016, government

lawyers argued that this wasn’t enough

time to deal with the complex constitutional

questions that the suit raised.” 15

The court disagreed with the government,

and costs were awarded.

Meanwhile, we advised our government

partners that we were organizing

a protest to accompany the raising of

the Pride flag at Queen’s Park. Friends,

family, LGBTQ+ parents and children,

lawyers, Cheri and her staff, and others

joined us at Queen’s Park on June 1 wearing

T-shirts that proudly stated, “I stand

with Cy and Ruby #parentalequalitynow.”

The day before our protest, Premier

Kathleen Wynne acknowledged the

need for legislation and committed to

changes by the end of the year. 16

Grand v Ontario settled in record time.

Justice Chiappetta’s order included minutes

of settlement and a statement noting

that the Attorney General of Ontario

conceded that the [Children’s Law Reform

Act] violated the Charter; that the

attorney general would not oppose

declarations of parentage sought by

the Grand applicants; that the Registrar

General would permit parents

to identify as “mother,” “father,” or

“parent” on all Statements of Live

Birth by August 31, 2016; and, most

importantly, that the government

would propose a bill amending the

CLRA and VSA [Vital Statistics Act]

by September 30, 2016. 17

Thanks to Joanna’s and Martha’s work

on Grand, we had a timeline and a set of

principles with which to comply. Parental

equality was coming; the only questions

related to how comprehensive the

legislation would be and how we would

work with the government to get it drafted

by the September deadline.

Working with government

to get the law right

Over the summer, we sat in meeting

rooms, drafted new sections of legislation,

and critiqued drafts prepared by

government lawyers. We pushed hard to

have three or four parents recognized at

birth without any need to go to court. At

one meeting, a government lawyer suggested

that this initiative could lead to

“cults” raising children, and we countered

by telling the story of our friends,

a delightful gay couple, who were dads

to the cutest twins (we had photos) who

mostly lived with their moms, a lesbian

couple living just outside Toronto. We

had to be in the room educating people

about LGBTQ+ families. The process reinforced

the need for diversity and representation

in rooms where decisions get

made and laws get drafted.

Near the end of the summer, Joanna,

Jennifer, and I took a draft bill from the

government and did a comprehensive

rewrite to achieve our goals. We were

called to a meeting at 720 Bay Street to

discuss our proposed changes.

The lawyer tasked with reviewing the

government’s response to our proposed

changes suggested we start at the beginning.

We had suggested changes to

the preamble, and the government, she

reported, had not adopted them. Our

proposed changes were not fundamental, so we nodded and

moved on to section 1. Our proposed changes had not been incorporated

here, either. Or in the next section. I asked whether

the government had seen fit to include any of our changes. The

answer, after a brief pause, was no. We announced that we could

not support the bill in its current form and left the meeting.

We walked from 720 Bay to a patio on Bay Street and

ordered wine. We needed a media strategy. We needed to

distance ourselves from the bill. We needed to communicate

to our supporters that this bill was not good enough. We

considered relaunching the Grand v Ontario litigation because

the proposed legislation, without our changes, failed – in our

view – to comply with the principles set out in the minutes

of settlement. Someone’s phone rang, and we answered.

Could we come right now to meet with the attorney general?

Our nanny, on call for another late night caring for our

children, agreed to stay. We walked back to 720 Bay to meet

with Attorney General Yasir Naqvi.

Joanna, Jennifer, Minister Naqvi, and I sat together in the

centre of the room, and we dug in. We reviewed the draft bill

section by section.

The government’s draft bill had gone backward in many respects.

While the Children’s Law Reform Act recognized social

parents and declined to place undue emphasis on biology, the

government’s proposed law focused significant attention on

biology. Several of the proposed sections, in our view, created

a hierarchy of parents – with biological parents at the top.

For us, and for LGBTQ+ families generally, intention is what

matters. We frequently require the participation of a third

party to make a baby and so we think about and talk about

who will parent and what obligations each of us will have vis

a vis the child we are planning. It was critical that a mother

like me – who neither donated an egg nor got pregnant – was

recognized as a parent. It was equally important that someone

like our sperm donor, who had generously made it possible

for us to have our children but did not want to parent them,

not be recognized as a parent, even though he had a biological

connection to the kids.

We explained the problems with the draft bill, discussed our

proposed changes, and ran scenarios through both versions.

The government was concerned that our focus on intention as a

marker of who gets recognized as a parent could harm straight

women who got accidentally pregnant. If there was no intention

to become a parent, could a “casual fornicator” be made

to pay child support under our version of the law? We worked

with Minister Naqvi to develop a framework that protected all

families – LGBTQ+ and straight.

At the end of the meeting, we understood one another’s concerns

and perspectives on the draft bill. We were too late to get

a new bill before the committee, but we had made progress.

Presenting a united front

Cheri’s team prepared us for the committee hearings. With

the able assistance of Cheri and her team, many of our collaborators

secured spots to speak. Before the committee hearings,

we convened a meeting at our home to strategize. We had

near universal agreement on the big changes that were needed.

We asked people to include their support for those changes in

their testimony, and canvassed the room to identify other areas

where we could express support for one another’s positions.

We wanted, as much as possible, to clearly communicate to the

committee that the LGBTQ+ community was unhappy with the

bill as it stood and that we agreed on most of the substantive

changes that were required.

The Standing Committee on Social Policy was called to order

on October 17, 2016. Rachel Epstein was the first to speak.

Rachel is an expert who had worked with LGBTQ+ families for

more than 20 years, and she was one of the Rutherford litigants

in 2006. Rachel concluded her testimony before the committee,

asking it to ensure that her daughter, Sadie, be spared the ordeal

her parents had lived through:

[Sadie] is now 24 and her partner is a trans person ... I read

them this deputation last night, and they said, “Tell them

we” – i.e., Sadie and her partner – “need this legislation.”

…

I told Sadie that I planned to end my presentation to

you here today by reading an excerpt from her affidavit

from 2005. She said, “Read it and tell them that I

hope my child won’t have to write a similar affidavit.”

... These are Sadie’s 13-year-old words: “Imagining winning

the case, it would feel amazing. It would feel like

we would not have to lie anymore ... Nobody could question

who my mothers are anymore. I would feel more secure

and safer. We could just tell the truth. I could just

be who I am, and sign my own signature, Sadie Rose

Epstein-Fine.” 18

Several of us emphasized the personal toll that the law as it

stood took on families and the ways in which children were

made vulnerable by failing to recognize their parents. We knew

Welcoming the

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a lot of the people testifying on our team were going to review

the legal details and changes to the bill that were needed. Our

job was to convey the human cost.

The day ended with testimony from a longstanding opponent

of LGBTQ+ rights, and with Cheri DiNovo, who, in addition

to being a highly effective MPP, is a United Church minister

and theologian, offering to pray for him and his family.

We reconvened the following day. Joanna got into the legal

details, and we had two more opponents of parental equality

make an appearance. My wife was the last member of our

team to testify. She spoke about the specific failings of the draft

bill and movingly emphasized that I was just as much a mother

as she was.

K EVI N

Love (and lawyer moms) win

Ultimately, love wins. I believe it always will, especially when

a small army of lawyer moms is leading the way. The government

accepted all the changes we needed, and we gathered at

Queen’s Park on November 29, 2016, for third reading of the

All Families Are Equal Act. About two years after my parental

LO

Kevin Lo

benefits were denied, we secured parental recognition not only

for families like us but also for three- and four-parent families,

families with trans parents, and families with genderqueer

parents. Cheri and Minister Naqvi had both brought cake

to celebrate, and, in a fitting end to their collaboration, we

celebrated together.

Kelly Jordan, a family law expert who worked with us,

explains the significance of the All Families Are Equal Act: “When

you tell people they have rights, they cry sometimes. The people

who come into my office and don’t know the law, they can’t believe

it … For a trans man to be recognized as a birth parent and

not mis-gendered into the role of mother is revolutionary.” 19

Working alongside fierce advocates like Joanna, Martha,

and my wife was a gift. Our pro bono effort developed my

skills and made a difference. But more than that, it bonded

me to a community of activists who continue to inspire and

motivate me to be a better lawyer and a better leader. To anyone

considering using their skills – which are, I have no doubt, considerable

– to work pro bono to help a client or fix a systemic legal

problem, I promise you

Branko

the reward

Vranesh

is worth the work. 20

SENIOR ANALYST

C I S S P,

CISSP, CCE, CFI, PMP, EnCE

C C E

,

I,

C F

P M P,

E N C E

B RAN KO

VRAN E S H

S E N I O R

ANALYST

Our International Commercial Arbitration Practice

Rebecca Huang LL.B., FCIArb

Fellow of the Chartered Institute of Arbitrators

Associate Member of the College of Commercial Arbitrators

Notes

They know what

1. three preceding paragraphs are adapted from my testimony to the Standing 11. https://www.ola.org/en/legislative-business/house-documents/

Committee on Social Policy on Monday October 17, 2016; online: https://www. parliament-41/session-1/2015-12-10/hansard#para1321.

ola.org/sites/default/files/node-files/hansard/document/pdf/2016/2016-10/ 12. Arshy Mann, “Toronto Couple Wants Equality for Parenting Rights”; online:

The

committee-transcript-2-EN-17-OCT-2016_SP002.pdf.

https://xtramagazine.com/power/toronto-couple-wants-equality-forparenting-rights-69526.

you Sherlock

2. M. v H., [1999] 2 SCR

had

3.

for breakfast. Holmes

3. Halpern v Attorney General (2003), 65 OR (3d) 161 (CA).

13. Arshy Mann, “Ontario Stalls Lawsuit Over LGBTQ+ Families”; online: https://

4. See A.A. v B.B., 2007 ONCA 2, and M.D.R. v Ontario (Deputy Registrar General) xtramagazine.com/power/ontario-stalls-lawsuit-over-lgbt-families-71089 (May

(2006), 81 OR (3d) 81 (SCJ) (Rutherford).

27, 2016); Grand v Ontario, 2016 ONSC 3434.

& Dr. Watson of

5. Dave Snow, “Litigating Parentage: Equality Rights, LGBTQ+ Mobilization 14. Grand, ibid, notice of application at para 4.

and the All Families Are Equal Act,” Canadian Journal of Law and Society/Revue 15. Mann, supra note 13; https://xtramagazine.com/power/ontario-stalls-lawsuitover-lgbt-families-71089.

Canadienne Droit et Société 32, no. 3 (2017), 329–48; doi:10.1017/cls.2017.24,

online: www.cambridge.org/core/services/aop-cambridge-core/content/view/ 16. Canadian Press, “LGBT Parents Could Get Legal Recognition by Year End”;

digital Five years

0B24F8DD78D7FD260EE62780EE77C5C8/S0829320117000242a.pdf/div-class-

forensics. ago.

online: CBC https://www.cbc.ca/news/canada/toronto/lgbt-parents-couldget-legal-recognition-by-year-end-premier-says-1.3609097title-litigating-parentage-equality-rights-LGBTQ+-mobilization-and-ontario-sspan-class-italic-all-families-are-equal-act-span-div.pdf.

17. Snow, supra note 5.

6. Ibid.

18. Testimony of Dr. Rachel Epstein, Hansard: https://www.ola.org/en/legislative-

7. Ibid.

business/committees/social-policy/parliament-41/transcripts/committee-

8. Then Premier Kathleen Wynne, quoted in Kristin Rushowy, “Former MPP Cheri

transcript-2016-oct-17.

Kevin Lo and Branko Vranesh are two of the best and brightest minds

whose in the sleuthing field of skills digital will make forensics. break Together, your case. they Well recognized have more forensic than 40 pioneers, years

legislature-to-lead-trinity-st-paul-s-parish/article_70b61ccf-b063-56b6-a0ee-

Kevin of investigative and Branko lead experience. the legal industry The results in evidence are gathering formidable. and analysis. Turning Together, valuable

they have more than 40 years of investigative experience, with the deep technical expertise

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

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

Enter Kevin

DiNovo

Lo

Leaves

and

Legislature

Branko

to lead

Vranesh.

Trinity-St.

The

Paul’s

Hounds

Parish”; online:

of Bay

https://

Street.

19. Kirsti

Digital

Mathers

detectives

McHenry, Our Families, Our Laws: The Role Three Incredible Lawyers

www.thestar.com/politics/provincial/former-mpp-cheri-dinovo-leaves-

Played in Expanding Parental Recognition to Include 2SLGBTQ+ Families, online:

York. After a call from my aunt Donna Dortmans, Tim Hudak showed up to Dara Roth Edney.

OBA https://www.oba.org/Sections/Sexual-Orientation-and-Gender-Identity-

1707a2312a0c.html.

Law/Articles/Articles-2023/June-2023/Our-Families-Our-Laws-the-role-threeincredible.

the prowess

data 9. https://www.ola.org/en/legislative-business/house-documents/

points into an invaluable body of evidence. Harness

parliament-41/session-1/2015-11-03/hansard#para822.

20. For narrative ease, I did not include in the text the names of the many people

of Kevin and Branko. MT>3 Digital Forensics. | Uncover Everything.

10. https://www.ola.org/en/legislative-business/house-documents/ who worked alongside us, but I will stop to recognize some of them here: Peter

parliament-41/session-1/2015-12-10/hansard#para1321. Undying thanks to Tabuns, Bhutila Karpoche, Andrea Houston, and Susan Kushneryk helped us

Kevin Lo: klo@mt3.ca | Branko Vranesh: bvranesh@mt3.ca

Rachelle Seguin, Beth Barz, Barb and Al Fletcher, my family, and other friends navigate the legislative process. Rachel Epstein and Andy Inkster brought their

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

from Kingston who inundated Ms. Kiwala with calls. Rob Goldstein and others


can claim responsibility for getting MPPs from Davenport and Spadina–Fort

second reading and shared a story about a childhood friend’s father coming out

as gay.

TÉTRAULTDigitalForensics

TÉTRAULTDigitalForensics

A DIVISION OF McCAR THY

A DIVISION OF McCAR THY

community organizing skills to the work. Lastly, it was a privilege to work

alongside parents including Donna McDonagh, Raquel Grand, Sarah Liss, and

Rebecca is a barrister, arbitration counsel and

arbitrator. Rebecca has more than 18

years of courtroom experience dealing

with transnational and domestic commercial

disputes in Ontario. She has significant

experience as an adjudicator in discipline

hearings for the Council of Professional

Engineers Ontario. As one of few Canadian

lawyers familiar with complex commercial

matters and fluent in both English and Mandarin, Rebecca is uniquely

qualified to handle complex international commercial disputes involving

Chinese parties, venues and/or evidence. She is well-positioned to act

as counsel or arbitrator in international disputes using major institutional

rules, UNCITRAL Arbitration Rules, or other arbitration rules.


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PROFILE

The Honourable Mary T. Moreau

L’honorable Mary T. Moreau

Alexandra Heine

When Mary Moreau was admitted to the University of

Alberta Law School after only two years of postsecondary

education at the university’s Campus Saint-

Jean, she was not sure she wanted to become a lawyer. All she

was looking for was a general education that would open doors

for her.

She had no idea just how many doors her legal education

would open.

***

Justice Moreau was born and raised in Edmonton, Alberta.

She was the child of a linguistically exogamous marriage: Her

mother was anglophone from an Irish and Scottish family,

while her father was francophone from a Québécois family.

Although her parents hailed from different cultural backgrounds,

they both worked in health care. Her mother was a

nurse and her father a surgeon. Her mother left the nursing

profession to raise the couple’s eight children, including, of

course, Justice Moreau.

Her father’s passion for the French language and culture

and the preservation of the French language in Alberta was

contagious. Moreau and her siblings regularly accompanied

their father to cultural events such as the Sugar Shack and

Edmonton’s French theatre. They also celebrated Saint

Jean-Baptiste Day.

As well, the children attended schools offering Frenchlanguage

education, which in those days was often unavailable

in Alberta. Indeed, it was not until 1968 that the government

of Alberta officially authorized French-language education

(and even then, it was authorized for no more than half of

each school day). And it was not until 1984, two years after

the adoption of the Canadian Charter of Rights and Freedoms and

after Justice Moreau had graduated from law school, that the

first francophone public school opened in Alberta.

Following in her father’s footsteps, Justice Moreau seized

every opportunity she could to promote the French language

and francophone culture. Along with her sister Anne, she

won a special Génies en herbe (Budding Geniuses) competition

Lorsque Mary Moreau a été admise à la faculté de droit

de l’Université de l’Alberta après seulement deux années

d’études postsecondaires à la Faculté Saint-Jean de

l’université, elle n’était pas certaine de vouloir devenir avocate.

Mais elle espérait obtenir une formation générale qui lui

ouvrirait des portes.

Elle n’avait aucune idée du nombre de portes que cette

formation finirait par lui ouvrir.

***

La juge Moreau est née et a grandi à Edmonton, en Alberta.

Elle est issue d’un mariage exogame, sa mère étant anglophone

d’une famille irlandaise et écossaise, et son père étant francophone

d’une famille originaire du Québec.

Bien que ses parents aient des origines culturelles différentes,

ils œuvraient tous les deux dans le domaine de la santé. Sa

mère était infirmière et son père chirurgien. Sa mère a quitté

la profession d’infirmière afin d’élever ses huit enfants, dont,

bien sûr, la juge Moreau.

La passion de son père pour la langue et culture française et

la préservation de la langue française en Alberta était contagieuse.

Moreau et ses frères et sœurs accompagnaient régulièrement

leur père aux événements culturels tel que la Cabane à

sucre et le théâtre français d’Edmonton. Ils célébraient aussi la

Saint-Jean-Baptiste.

De plus, les enfants ont étudié dans des écoles offrant de

l’enseignement en français, chose qui était souvent hors de

portée en Alberta à l’époque. En effet, ce n’est qu’en 1968 que

le gouvernement de l’Alberta autorisa officiellement l’enseignement

en français (et ce uniquement pour un maximum de

la moitié de chaque journée scolaire), et qu’en 1984, deux ans

après l’adoption de la Charte canadienne des droits et libertés et

après que la juge Moreau eut terminé ses études à la faculté de

droit, que la première école francophone publique ouvra ses

portes en Alberta.

Suivant l’exemple de son père, la juge Moreau se saisit de

maintes occasions pour vivre en français et promouvoir la

francophonie : elle gagna avec sa sœur Anne un concours

during the Montreal 1976 Olympic Games. She also participated

in a summer language-training program at the University

of Montreal and a civil law program at the University of

Sherbrooke. As a student, she spent her summers working

as a junior reporter for Radio-Canada. Her mother always

encouraged her, saying, “You never know what’s behind the

next door.”

For Justice Moreau, Franco-Albertan culture is expressed

through history, the arts, and language. “I am proud of my

Franco-Albertan accent,” Justice Moreau has said. “I don’t

try to hide or change it … Within French Canadian culture

there’s a whole variety [of accents and cultures] that embody

Canada’s diversity. This is something that we must cherish.”

***

Throughout law school, Justice Moreau worked at the Student

Legal Services clinic. It was there that her wish to practise

criminal law was born – a desire that led her to join Frohlich,

Irwin & Rand, a firm that practised criminal defence.

Justice Moreau’s commitment to protecting the French language

served her well in her criminal law practice, where she

became an ardent defender of her clients’ linguistic rights. In

1983, four years after she began working as an associate, Mr.

Paquette walked into her office. A Franco-Ontarian living in

Alberta, he had been charged with possession of cocaine for

the purpose of trafficking. Mr. Paquette wanted his jury trial

to proceed in French. He asked Justice Moreau, “My buddy

in Ontario had a judge and jury trial in French. Why can’t I?”

spécial de « Génies en herbe » à l’occasion des Jeux olympiques

de Montréal en 1976, elle participa à un programme d’été de

formation linguistique à l’Université de Montréal et en droit civil

à l’université de Sherbrooke, et elle passa ses étés à travailler

comme journaliste de relève pour Radio-Canada lorsqu’elle

était étudiante. Sa mère l’encourageait toujours : « You never

know what’s behind the next door ».

Pour la juge, la culture franco-albertaine s’exprime par l’histoire,

les arts, et la langue. « Je suis fière de mon accent francoalbertain

», dit madame la juge Moreau. « Je n’essaie pas de le

cacher ou de le changer… Il y a toute une variété [d’accent et

de culture] qui exprime bien la diversité au Canada, au sein de

la culture canadienne-française. Nous devons la chérir ».

***

À l’école de droit, la juge Moreau travailla à la clinique

étudiante « Student Legal Services ». C’est là qu’est né son désir

de faire du droit pénal et sa décision éventuelle de se joindre

à un cabinet ayant pratique de défense pénale, Frohlich, Irwin

& Rand.

En tant qu’avocate criminaliste, elle continua de promouvoir

le français, se portant à la défense des droits linguistiques de

ses clients. En 1983, quatre ans après ses débuts comme sociétaire,

la juge Moreau vit entrer dans son bureau M. Paquette,

un Franco-ontarien qui vivait alors en Alberta. Inculpé de possession

de cocaïne dans le but d’en faire le trafic, Paquette voulait

un procès devant un juge et jury en français. Il demanda à

la juge Moreau - « Mon chum en Ontario a eu un procès devant



At the time, Part XVII of the Criminal

Code (“Language of Accused”) was not

yet in force in Alberta. Accused persons

in Alberta therefore could not rely on

Part XVII to request a trial in French.

Undeterred, Justice Moreau set about

finding a solution to the problem.

Soon, she was standing before the

Alberta Court of Justice (then called the

Alberta Provincial Court) to give notice

of Paquette’s intention to elect a judge

and jury trial in French. The court refused,

noting that an accused did not

have this right in Alberta.

Justice Moreau then pursued her

client’s request in the Alberta Court

of King’s Bench (then called Court of

Queen’s Bench).

She was camping with her family

when she learned that the court had

granted her request. Justice Moreau’s

family was about to pitch their tents

when her husband, inside their Volkswagen

van, tuned into a radio report on the

case’s outcome.

The Court of King’s Bench issued its

decision: Although Part XVII of the

Criminal Code had not yet been enacted

in Alberta, section 110 of the Northwest

Territories Act was still in force

in Alberta, and it granted any person the

right to address the court in French or

in English.

This victory, however, was short-lived.

The Crown chose to appeal the decision.

The Court of Appeal allowed the appeal

in part, restricting the scope of section 110.

Justice Moreau next set her sights

on Ottawa. She was seven and a half

months pregnant with her daughter – the

third child she would have during the

Paquette legal saga – when she appeared

before the Supreme Court of Canada

seeking leave to appeal the decision of

the Court of Appeal. (At that time, applications

for leave to appeal were argued

in person.) She argued the leave application

in French, one of the first lawyers

from Alberta to do so.

When Justice Moreau finished her submissions,

her emotions took over. “I was

pregnant and I had pleaded in French,”

she explained. “I was proud.” The Supreme

Court agreed to hear the case, and six

years after Paquette had walked through

the door of Justice Moreau’s office, the

Court confirmed that section 110 was

still in force with respect to proceedings

of a criminal nature or with penal

consequences. What the Paquette case

subsequently showed was that Alberta’s

judicial system was in fact equipped to

facilitate trials in French, thanks to the

presence of Crown prosecutors, defence

lawyers, judges, and jury members who

could participate in proceedings conducted

in French.

In the same year (1990), the Supreme

Court of Canada also handed down

its long-awaited decision in Mahe – a

groundbreaking decision in favour of

minority language rights under section 23

of the Charter. Justice Moreau was counsel

for the appellants along with Brent

Gawne and a number of other prominent

lawyers representing interveners,

including Justice Michel Bastarache,

Justice Paul Rouleau, and Justice Allan

Hilton (all lawyers at the time), who

pleaded in favour of a large and liberal

interpretation of section 23. For the

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un juge et jury en français. Pourquoi

pas moi? ».

À l’époque, la partie XVII du Code

criminel (« langue de l’accusé ») n’était

pas encore en vigueur en Alberta. Les

accusés en Alberta ne pouvaient donc pas

s’appuyer sur la partie XVII pour requérir

un procès en français. Ne se laissant pas

décourager, la juge Moreau se mit à la

recherche d’une solution à ce problème.

Peu après, elle se leva devant la Court

de justice de l’Alberta (appelée à l’époque

la Cour provinciale de l’Alberta) pour notifier

la Cour de l’intention de Paquette

de choisir un procès avec juge et jury en

français. La Cour refusa, en notant qu’un

accusé n’a pas ce droit en Alberta.

La juge Moreau a poursuivi sa requête

devant la Cour du banc du Roi de l’Alberta

(nommé la Cour du banc de la

Reine à l’époque).

Elle était en camping avec sa famille

quand elle a appris que la Cour avait donné

gain de cause à la requête de son client.

Ils s’apprêtaient à monter leurs tentes

quand son mari a allumé la radio, juste à

temps pour le reportage sur son dossier.

La Cour du banc du Roi a rendu sa


décision : quoique la partie XVII du Code

criminel n’était pas encore promulguée

en Alberta, l’article 110 de la Loi sur les

Territoires du Nord-Ouest était toujours en

vigueur en Alberta et octroyait à toute

personne le droit de s’adresser aux tribunaux

soit en français ou en anglais.

Cette victoire fut pourtant d’une courte

durée. La Couronne décida de porter la

décision en appel, et la Cour d’appel décida

alors d’accueillir l’appel en partie,

et de réduire le champ d’application de

l’article 110.

La juge Moreau jeta son dévolu sur

Ottawa. Elle était enceinte de 7 mois

et demi de sa fille – le troisième enfant

qu’elle allait avoir durant la saga judiciaire

Paquette – quand elle s’est présentée

devant la Cour suprême du Canada

pour demander l’autorisation de faire

appel de la décision de la Cour d’appel

(à l’époque, les demandes d’autorisations

étaient plaidées en personne). Elle

a plaidé en français, une des premières

pour une avocate originaire de l’Alberta.

Lorsque le juge Moreau a terminé

sa plaidoirie, l’émotion a pris le dessus.

« J’étais enceinte et j’ai plaidé en

français », a-t-elle expliqué. « J’étais

fière ». La Cour suprême accepta d’entendre

la cause, et six ans après que

Paquette se soit présenté au bureau de la

juge Moreau, la Cour confirma que l’article

110 était encore en vigueur en ce qui

concerne les procédures de nature criminelle

ou qui entraîne des conséquences

pénales. Ce que l’affaire de Paquette a

démontré, par la suite, est que le système

judiciaire albertain était bien outillé pour

faciliter des procès en français, et ceci

aussi grâce à la présence de procureurs

de la couronne et de la défense, de juges

et des membres de jury qui pouvaient

siéger au sein d’un procès en français.

La même année (1990), la Cour suprême

du Canada rendit également sa

décision, fort attendue, dans l’affaire

Mahé – un arrêt novateur en faveur

des droits des minorités linguistiques

en vertu de l’article 23 de la Charte

canadienne. La juge Moreau était avocate

pour les appelants avec Brent Gawne,

ainsi que plusieurs avocats renommés représentant

les intervenants, dont le juge

Michel Bastarache, le juge Paul Rouleau,

et le juge Allan Hilton (tous avocats à

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attorneys general, there were Justice

Kristine Eidsvik, Justice Jack Major, and

Chief Justice Robert Richards, among

other prominent lawyers. It was Moreau

and Gawne, with the help of the interveners,

who won the day.

Today, Mahe continues to be regarded

as a revolutionary ruling that changed

everything for Canada’s francophone

minorities.

***

Justice Moreau was appointed to the

Alberta Court of King’s Bench in 1994,

five years after she had become a partner

at Rand Moreau Barristers and Solicitors,

the Edmonton firm she founded with

Richard Rand.

When Justice Moreau was appointed

to the Court of King’s Bench, only a

quarter of the judges on that court were

women, and even fewer judges were bilingual.

Justice Moreau was confident

that her perspective and life experience

would benefit the court.

She heard many trials, applications,

motions, and appeals – both routine and

notable. As a judge, she approached her

cases the same way she had as a lawyer.

For her, each client was important, no

matter the nature of the problem they

were facing. At the court, each case was

important, whether it was a trial raising

constitutional law issues, a motion in a

family law matter, or an application in

an estates case. Her husband, a lifelong

(now retired) criminal defence lawyer,

had the same philosophy in his practice,

taking on cases of all kinds – from traffic

infractions to murder. He always encouraged

her to do the same.

“At the end of the day, what matters is

the person in front of you,” said Justice

Moreau.

In 2017, Justice Moreau received a

phone call from the minister of justice’s

office. She thought the office was seeking

references for candidates for appointment

to the Court of King’s Bench. She

was in Grande Prairie, Alberta, at the

time. As a puisne judge, she was sitting

in northern Alberta for a week. She was

also there to preside over the bar call

ceremony of a young lawyer who wanted

her ceremony to be conducted in French.

When she took the call from the

minister of justice’s office, Moreau was

immediately put on hold. After waiting

for a minute or so, she hung up,

thinking they had either forgotten about

her or the line had been disconnected.

Her phone rang again. Thinking it

was still the minister’s office, she quickly

said, “Listen, I’m sorry but I thought you

had forgotten about me” – only to find,

to her surprise, that she was speaking

to the minister of justice herself, who

was calling to offer her the position

of chief justice of the Court of King’s

Bench, a position Moreau would hold

for six years.

Over that period, Chief Justice Moreau

undertook a number of initiatives to bring

the court into the 21st century by introducing

new technology. She also worked to

improve access to justice in French.

***

Justice Moreau is still the only woman

to have held the position of chief justice

l’époque); ils ont plaidé en faveur d’une

interprétation large et libérale de l’article

23. Pour les procureurs généraux, il y

avait la juge Kristine Eidsvik, le juge Jack

Major, le juge en chef Robert Richards,

parmi d’autres avocats renommés. C’est

Moreau et Gawne, avec l’aide des intervenants,

qui connurent la victoire.

Aujourd’hui encore, Mahé est décrit

comme le jugement révolutionnaire qui

a tout changé pour les minorités francophones

du Canada.

***

Madame la juge Moreau est devenue

juge de la Cour du banc du Roi en 1994.

Cela s’est passé cinq ans après qu’elle

soit devenue associée en 1989 avec

Richard Rand dans le cabinet à Edmonton

qu’ils ont formé ensemble, Rand Moreau

Barristers and Solicitors.

À l’époque ou la juge Moreau est

devenue juge de la Cour du banc du

Roi, seulement un quart des juges de

cette Cour étaient des femmes, et encore

moins étaient bilingue. La juge Moreau

avait confiance que sa perspective et son

vécu seraient bénéfiques à la Cour.

Elle a siégé sur de nombreux procès,

demandes, motions et appels – modestes

et remarquables. En tant que juge, elle a

pris la même approche qu’elle avait en

tant qu’avocate. Pour elle, chaque client

était marquant, quel que soit le problème

auquel il ou elle faisait face. À la Cour,

chaque dossier était important, que ce

soit un procès soulevant des questions

constitutionnelles, une requête en matière

de droit de la famille, ou une demande

dans un dossier de succession.

Son mari, un avocat de la défense à vie

(maintenant à la retraite), avait la même

philosophie à l’égard de sa pratique,

puisqu’il s’occupait de tous les types de

dossiers, des infractions au Code de la

route aux affaires de meurtre. Il l’encourageait

dans cette voie.

« En fin de compte, ce qui est important,

c’est l’individu qui se trouve devant

vous », madame la juge Moreau dit.

En 2017, la juge Moreau reçut un coup

de fil du bureau du ministre de la Justice.

Elle pensait que le bureau cherchait

des références pour les candidats potentiels

qu’ils examinaient pour le poste de

juge de la Cour du banc du Roi. Elle était

alors à Grande Prairie en Alberta. En tant

que juge puînée, elle passait une semaine

dans le nord de l’Alberta pour entendre

des causes et aussi pour présider l’inscription

au barreau d’une jeune avocate

qui souhaitait que sa cérémonie se déroule

en français.

Elle reçut donc cet appel du bureau

du ministre de la Justice, puis fut mise

en attente. Après environ une minute,

Moreau raccrocha, pensant qu’ils

l’avaient oubliée ou que la ligne avait

été coupée. Son téléphone sonna à

nouveau. Croyant qu’il s’agissait encore

du bureau du ministre, elle s’empressa

de dire « Écoutez, je m’excuse, mais

je croyais que vous m’aviez oubliée »,

avant de constater avec surprise qu’elle

s’adressait à la ministre de la Justice

elle-même. Celle-ci l’appelait en fait

pour lui offrir le poste de juge en chef

de la Cour du Banc du Roi, un poste que

Moreau occupa pendant 6 ans.

Au cours de cette période, la juge en chef

Moreau mena entre autres plusieurs interventions

pour introduire de nouvelles

Relax and recharge at Toronto’s prestigious members club, just steps from the Court of Appeal

www.universitycluboftoronto.com


of the Court of King’s Bench in Alberta. Clearly, the legal profession

has made significant progress on gender equality, but

more work remains to be done.

As a mother of four, Moreau believes it is important for law

firms to understand that when a woman lawyer becomes a parent

or is entrusted with elder care responsibilities, she is going

through a vulnerable time. Offering that lawyer compassion

and empathy is critical. “Normally, it is a relatively short period

in a long career,” she said. “If you support your partners

and associates in the short term, you will benefit from their

loyalty and dedication in the long term.” This kind of support

is particularly important for encouraging women to stay in the

profession. Moreau suggests that men in the profession encourage

their women colleagues by diversifying referral bases. It is

essential for all lawyers to make a conscious effort to refer cases

to women.

As a judge, Moreau believes it is important for members

of the bench to encourage partners and seasoned lawyers to

give young lawyers a voice. When she was chief justice, Moreau

supported an initiative aimed at enabling young lawyers

to get on their feet in courts. Since her appointment to the

Supreme Court, other judges have continued this initiative.

They encourage young lawyers to make submissions, especially

when they have the opportunity to do so on behalf of an

intervener. At the Supreme Court, for instance, interveners are

technologies à la Cour, offrant un appui technologique digne

du 21e siècle. Elle a aussi œuvré pour améliorer l’accès à la

justice en français.

***

La juge Moreau est la première et seule femme à occuper le

poste de juge en chef de la Cour du Banc du Roi en Alberta. Manifestement,

la profession juridique a fait beaucoup de progrès

en matière d’égalité des sexes, mais le travail n’est pas terminé.

En tant que mère de quatre enfants, Moreau affirme qu’à

son avis, une chose importante à comprendre pour les cabinets

d’avocats est que lorsqu’une avocate devient parent ou s’occupe

d’un parent âgé, c’est une période vulnérable. La compréhension

et la compassion de l’employeur et des associés

l’emportent toujours. « Ce n’est normalement qu’une période

relativement courte dans une longue carrière », a-t-elle déclaré.

« Si vous soutenez vos sociétaires et associés à court terme, les

bénéfices à long terme, comme la loyauté et le dévouement de

ces personnes, en valent la peine ». Ce genre de soutien est un

outil essentiel pour maintenir les femmes dans la profession.

Moreau suggère que les hommes de la profession encouragent

leurs collègues qui sont des femmes en diversifiant les références.

Pour ce faire, il est essentiel de faire un effort concerté

pour renvoyer des dossiers à des avocates.

En tant que juge, Moreau croit qu’il faut encourager les

associés ou les avocats chevronnés à donner la parole aux

jeunes avocats. Quand elle était juge en chef du Banc du Roi

de l’Alberta, Moreau a appuyé l’effort visant à permettre les

jeunes avocats de s’exprimer devant les tribunaux. Depuis

sa nomination à la Cour suprême, d’autres juges ont pris


typically given five minutes for oral submissions. According to

Justice Moreau, this is an excellent opportunity to get young

lawyers on their feet.

***

After being a trial judge for 29 years, six of which were spent

also fulfilling the responsibilities associated with the role of

chief justice, Justice Moreau was appointed to the Supreme

Court of Canada in November 2023.

Moreau acknowledges that her decades as a trial judge means

that she brings to the table experience in procedural matters.

In my view, she is far too modest and does not give herself

enough credit. As a seasoned judge, Justice Moreau brings a

wealth of experience that goes well beyond procedural issues

(which in themselves are of paramount importance). After all,

she was a trial judge for 29 years. Justice Moreau is likely the

Supreme Court judge with the most trial-level experience in

the history of the Court. Undoubtedly, she has a keen sense

of how a judgment from the highest court in Canada will be

applied at first instance, and what impact it will have on the

people on the ground – whether they are individual parties,

members of the bar, police officers, justices of the peace, or

anyone else. This understanding is an invaluable asset.

The Supreme Court is enriched by the perspective and experience

Justice Moreau brings to it, and we are all fortunate

that she now sits on the Court.

la relève. Ils encouragent les jeunes avocat(e)s de plaider,

surtout en ce qui a trait aux plaidoiries devant la Cour

suprême du Canada, quand les jeunes avocats ont la chance de

plaider pour une partie intervenante. Typiquement, les intervenants

se voient accorder cinq minutes de plaidoirie orale, et

selon la juge Moreau, c’est une opportunité de leur donner la

chance aux jeunes avocats de plaider.

***

Après avoir été juge de procès pendant 29 ans, dont six passés

à assumer toutes les responsabilités liées à la fonction du

juge en chef, madame la juge Moreau fut sélectionnée comme

juge à la Cour suprême du Canada en novembre 2023.

Moreau reconnaît que ses décennies en tant que juge de première

instance signifient qu’elle apporte l’expérience au niveau

de la procédure. Bien modeste, la juge Moreau ne s’accorde pas

suffisamment de crédit selon moi. Juge chevronnée, elle apporte

une vaste expérience allant au-delà des questions de procédures

(qui sont en elle-même d’une importance capitale). Après tout,

elle a été juge de première instance pendant 29 ans. La juge

Moreau est tout probablement la juge de la Cour suprême du

Canada ayant le plus d’expérience en première instance dans

l’histoire de la Cour. Cette connaissance approfondie de la

manière dont un jugement de la plus haute cour du Canada

sera appliqué en première instance et aura un impact sur les

personnes présentes sur le terrain, qu’il s’agisse de parties

individuelles, les membres du barreau, de la police, des juges

de paix, ou toute autre personne, est un atout inestimable.

La Cour suprême s’en retrouve enrichie et nous sommes tous

fortunés qu’elle y siège désormais.

Hunter Litigation Chambers is pleased to announce that the

Hon. Russell Brown and the Hon. John J.L. Hunter, K.C. have

joined the firm, each as Associate Counsel.

Mr. Brown was formerly counsel in British Columbia and Alberta, and

Professor and Associate Dean of Law at the University of Alberta

before serving for over 10 years on the Alberta Court of Queen’s

Bench, the Alberta Court of Appeal and the Supreme Court of

Canada. At the firm he will provide legal counsel and opinions in

complex matters of private and public law, while working as a commercial

arbitrator (domestic and international) and mediator.

One of the founders of the firm, Mr. Hunter practised commercial

litigation and public law for forty years before his appointment to

the Court of Appeal for British Columbia in 2017. In his new capacity,

Mr. Hunter will provide support for the firm and its clients on

complex trial and appellate matters, including both legal opinions

and general advice. He will also work as a commercial arbitrator and

mediator.

Both Mr. Brown and Mr. Hunter will support the full range of appellate

services at the firm, and will be available to the profession to

conduct mock appeals and factum review.

Hunter Litigation Chambers is a leading dispute resolution boutique

in Western Canada. Our twenty-four lawyers have a breadth and

depth of practice that permits us to provide top quality services across

a range complex matters, including in all areas of commercial

litigation.

Hunter Litigation Chambers

www.litigationchambers.com

MEDIATION ADVOCACY

Preparing your client

for a successful mediation

In 25 years of conducting mediations, I have observed that,

while many lawyers do a great job of preparing themselves

for mediations, they often overlook the importance of carefully

preparing their clients for the process. When mediations

are unsuccessful in resolving a conflict, this lack of proper preparation

is often one of the key causes of the failure. It is an easy

problem to avoid, and I hope this article will provide some practical

advice and serve as a helpful checklist.


Make client preparation for mediation as important

as client preparation for trial

Although many lawyers will devote countless hours to preparing

their clients and witnesses for participation at trial, few devote

even a fraction of that effort to preparation for mediation.

Since all but a very small percentage of cases eventually settle

without a trial, it is surprising that more time and attention is

not given to preparation for this early form of intervention.

Even if the mediation is unlikely to be successful, the preparation

stage is nonetheless a good time to review the issues

discussed below to ensure that your client is up to date on all

developments, that they understand the risks of not settling,

and that you are on the same page with respect to a go-forward

strategy.

In my view, preparation should involve a face-to-face meeting

with the client of at least one hour to cover the necessary

topics for discussion. This meeting should occur at a time sufficiently

in advance of the mediation session to allow the client

to absorb and consider your input. A written follow-up may be

appropriate and prudent. The vast majority of cases will settle

at or shortly after the mediation session, and proper preparation

will enhance the likelihood of success and of achieving the

best possible outcome.

Explain the nature and purpose of the process

Too often, client representatives show up at mediation with, at

best, an imperfect understanding of the process. Some attend

expecting something akin to a non-binding arbitration, where

the mediator will provide an early neutral evaluation of each

party’s case and, perhaps, recommend a settlement. They may

believe the process is fundamentally a rights-based exercise

in which their position will prevail if they can convince the

mediator of its merit. Explain that trying to convince the mediator

is largely a waste of valuable time, since the mediator will

have no ability to impose your client’s view of the case on the

other party, who will largely be relying on their own counsel’s

assessment of their position.

The most important thing to ensure is that your client

understands, going into the process, that

this is not in any way, shape, or form an

adjudicative exercise where right will

prevail. Nor will your client achieve the

desired result because the mediator is

able to persuade the opposing party that

you are right, and they are wrong. The

mediator’s efforts will generally be on

keeping both parties focused on letting

go of fixed or intransigent positions and

identifying all the good reasons to justify

a less than satisfactory settlement.

Rarely do cases get settled at mediation

in the absence of significant compromise

by both parties. In my experience, even

in the case of a highly meritorious claim,

rarely will a plaintiff achieve a mediated

settlement greater than 70 to 75 percent of

the realistic judgment value of that claim,

net of unrecoverable legal costs. In many

cases, owing to a variety of factors, the

settlement amount will be much lower.

Counsel should prepare their clients for

this outcome and dispel any unrealistic

expectations well in advance of the

mediation session. Although mediation

may sometimes be an exercise in collaborative

problem solving, most often

a successful settlement is simply the result

of painful compromise on the part

of both parties motivated by a desire to

avoid something potentially worse.

Identify the key motivational factors

for compromise

Nobody likes taking a haircut, especially

when they feel wronged or aggrieved by

the other party. As every litigator knows,

emotions are prone to eclipse common

sense, even among sophisticated businesspeople.

Before you go to the mediation

session – in fact, even before you

prepare your mediation brief – you

should carefully canvass with your client

all the potential reasons for compromise.

When I was practising as counsel, I

tried to focus these discussions on four

key questions:

l What’s going to happen if we go to

trial?

l What’s it going to cost to find out?

l When will we find out?

l If we are successful, will we be able to

collect on a judgment or costs award?

Regarding the first question, whether

your client is a plaintiff or a defendant,

you have undoubtedly already given

them some opinion about the likelihood

of success. Now is a good time to remind

the client of the potential pitfalls that can

derail any case, together with identifying

specific issues or concerns related to

their case, such as:

l Many cases involve more than a single

issue on which success or failure

will turn. How confidently can you

predict the likelihood of success on

any given issue? While you may be

highly confident about liability on

one issue, you may be less so about

another. Will success on one be offset

by failure on another? Even assuming

success on any given issue regarding

liability, is the damages assessment

realistic? Predicting the outcome in a

straightforward single-issue dispute

can be daunting; forecasting the outcome

in a multi-issue dispute can be

confounding. Your client should go

into the mediation with a very clear

understanding of these risks.

l Facts and legal analysis aside, does

the case have good optics? Is it likely

to pass the smell test with a judge or

jury? Is the client likely to garner the

sympathy of the decision-maker or

will its position be seen as exploitive

and opportunistic? How might these

optics play out in the resulting judgment

or, even if successful, in the

damages awarded?

l Have you discovered any new facts

or documents through the preliminary

litigation disclosure and discovery

steps that negatively impact

your original opinion? Alternatively,

has there been any recent jurisprudence

that might negatively affect

your legal position?

l As a result of interactions with your

client’s fact witnesses, do you have

concerns about the ability of these

witnesses to testify persuasively?

How clear is their memory of the relevant

events? How good will their

memory be when the case finally

gets to trial? How will the witnesses

perform under cross-examination?

Do you have any reservations that

your independent expert witnesses

will be able to provide supportive

opinions that will stand up to scrutiny?

l Clients need to be reminded that

success at trial generally depends on

being able to muster first-hand fact

evidence under oath and subject to

cross-examination. Many clients do

not fully appreciate the importance

of this point, which of course is obvious

to lawyers. Given that most

trials will not take place until at least

three years after the events in question

have occurred (and often much

longer), is your client satisfied that

the necessary fact witnesses will still

be available when their testimony

is required? Might some witnesses

have passed away? Will they have

moved to another jurisdiction? Will

they still be in your client’s employ,

or will they be engaged in a wrongful

dismissal action?

I appreciate that many lawyers may

find these heart-to-heart conversations

with their clients difficult out of fear that,

by raising all these potential concerns,

the client may think their legal champion

has lost confidence in their case or been

intimidated by the opposing counsel. In

my experience, this concern is unfounded.

Most clients want a straightforward

and direct fresh assessment of their case

at this juncture. In any event, it is far

better that they hear whatever they need

to hear from you, rather than hear it for

the first time from a neutral mediator or,

even worse, from a judge.

Turning to the second question of cost,

litigation has regrettably become extraordinarily

expensive and in some cases

far out of proportion to the amounts in

dispute. By the time you get to mediation,

your client will probably have incurred

significant sunk costs; and, depending

on how early in the process

you get to mediation, those costs may

represent only a small fraction of what

lies ahead. This is a good time to review

the anticipated future costs of not settling.

In this regard, I would remind clients

that, since well over 90 percent of

lawsuits eventually settle without a trial,

the sunk costs only increase over time as

you get closer to the trial that may never

happen. If there is any prospect the case

will eventually settle, from a cost perspective,

the sooner the better.

I would also take this opportunity

to remind a client of the nature of the

applicable cost regime and the fact that

very few successful parties recover more

than 50 to 60 percent of their actual legal

expenses by way of a costs award, not to

mention the cost consequences of being

the unsuccessful litigant. Clients need to

be thinking about the net outcome of a

successful judgment as well as the potentially

catastrophic impact of a loss.

When considering net outcomes,

the client should be reminded that, if



the damages awarded are likely to be a taxable receipt – for

example, in connection with a contract dispute involving goods

or services – they may be fighting a costly and risky battle

in order to pay up to 50 percent of the proceeds to the tax

department. To put it another way, any amount given up by

way of compromise in a

settlement should be seen

in terms of after-tax dollars.

When first retaining

counsel, clients are often so

emotionally fired up that

they tell their lawyers that

cost is no issue. By the time

they get to mediation, emotions

have often cooled; this

is a good time to remind the

client of what the process

has cost so far and what

lies ahead. It’s also a good

time for the client to satisfy

themself that they actually

have the financial resources

to go the distance. There is

nothing worse than passing

up a reasonable opportunity

to settle a case at mediation only to find out later that the

case has to be abandoned or settled on less advantageous terms

because financial resources have run out.

Again, lawyers are often understandably reluctant to focus

their client’s attention on how much their legal services are

costing and will cost them in the future, but, in my opinion,

doing so is as much a matter of professional responsibility as

is management of the litigation itself. In fact, by encouraging

settlement, your client will likely appreciate that you are prepared

to sacrifice your future stream of fees in favour of a more

pragmatic outcome for them. And, if they choose to press on,

they will be hard pressed to complain in the future about what

the process has cost them.

So far, I’ve been addressing only the financial costs. Your

discussion with the client should also remind them of the nonfinancial

resources that will be required, including time spent

in collecting documents, attending examinations for discovery,

answering undertakings, witness preparation for trial, and

attendance at the trial itself.

And then, there is the less tangible element of distraction

and anxiety over what is likely to be an extended period until

trial. Most people are risk-averse, and by the time you get to

the mediation stage, your client will probably already have had

the experience of waking up in the middle of the night thinking

about the case. Life is short, and anyone who has been through

the litigation process will usually attest to the fact that there

are better ways to spend three or more years than engaged in

this stressful activity. Moreover, many plaintiffs may find it advantageous

to accept less compensation today as opposed to

the possibility of a better result years into the future, especially

if those funds can be invested in a productive way.

Finally, this is a good time to review with your client what

you know or have learned about the opposing party’s financial

situation. Arguably, the only thing worse than not pursuing

a legal remedy to its conclusion is successfully prosecuting

Lawyers are often understandably reluctant

to focus their client’s attention

on how much their legal services are costing

and will cost them in the future, but,

in my opinion, doing so is as much a matter

of professional responsibility as is

management of the litigation itself. In fact,

by encouraging settlement, your client

will likely appreciate that you are prepared

to sacrifice your future stream of fees in favour

of a more pragmatic outcome for them.

a claim only to find out that you have spent hundreds of

thousands of dollars to obtain a judgment and costs award

against a judgment-proof individual or a corporate entity with

few exigible assets. Rarely will the resulting disappointment

be offset by the satisfaction of putting the defaulting party into

bankruptcy. In many cases,

it will be difficult if not impossible

to assess this risk,

but preparation for mediation

is a good time to turn

your client’s attention to

such a possibility.

Educate your client about

the selected mediator

Every mediator has their

own distinctive style or approach.

If you’ve worked

with the selected mediator

in the past, you will be

familiar with their methodology.

If not, you owe it

to yourself and your client

to find out as much as you

can through colleagues or

even by approaching the mediator directly. It will be helpful to

your client to know in advance what to expect. For example, it

would be useful for your client to know:

l Does the mediator have an opening joint session with both

parties?

l If so, does the mediator encourage or permit opening

statements by counsel?

l Does the mediator generally offer evaluative input or

adopt a more facilitative approach?

l Does the mediator have subject matter expertise on the issues

in dispute?

With respect to the bargaining process, does the mediator

simply carry offers and counter-offers back and forth between

the rooms or adopt a more active role and iterative approach

in exploring settlement options on a confidential basis with

each party?

Prepare your client for mediator evaluative input

Clients need to understand that many mediators do not see it

as their role to provide any evaluative input. They feel that to

do so may be crossing the line into giving legal advice. Conversely,

while many mediators do provide some evaluation

as part of the process – indeed, they may be selected for this

reason – this is not their principal role and function. When I

provide this type of input, as I frequently do during individual

caucus sessions, it is never to give legal advice or predict

the outcome of the case, which I would be unable to do in any

event given my limited ability to evaluate the evidence and

jurisprudence on each side.

Instead, after reminding parties that my input is provided

“from 30,000 feet” and that they should disregard anything

I say if it conflicts with the advice of their own lawyer, I let

them know that I am simply trying to identify, from the limited

material I’ve reviewed, what I refer to as “issues of concern,”

challenges, or potential pitfalls that may give rise to an

unpleasant outcome if the matter goes to trial. In many cases,

these concerns have previously been identified by their own

legal counsel, and my input simply reinforces what they have

already heard. My purpose is nothing more than to ensure they

understand that, despite their confidence (and in many cases

overconfidence) in the strength of their case, things may not go

as expected.

In preparing your client for this process, you should alert

them to the fact that they may hear this type of input from

the mediator and that, given its nature, it is more likely to

accentuate the negative rather than the positive aspects of their

case. Let them know that, despite their discomfort in receiving

this negative but neutral input, the best thing they can

do is listen carefully to what the mediator has to say while

understanding that they will have ample opportunity to discuss

those issues with you in private, when the mediator goes

to visit with the other party or parties. Letting the mediator

know of some fact that may have been missed or inadvertently

disregarded can be useful, but your client should understand

that getting into an argument with the mediator rarely accomplishes

anything useful. Instead, your client should appreciate

that, to the extent that it will help, it is better to cultivate the

mediator’s empathy with your position and that this aim will

best be achieved by telegraphing that you are paying careful

attention to that input.

Ensure that your client will be represented at the mediation by

someone who has unfettered authority to settle the case

Of utmost importance is that individuals on each side of the

dispute attend the mediation with full and unfettered authority

to enter into a binding settlement. Attendance by an individual

with limited authority will often be fatal to the process. When

mediations fail, it is not uncommon that one of the party representatives

in attendance has been given limited authority

and cannot exceed that authority without obtaining further

permission from someone who may or may not be accessible

during the process. Even if the person with ultimate authority

is available by telephone, this is rarely a substitute for

that individual’s presence and active participation in the

mediation session.

Mediation is a dynamic process, and it is essential that the

mediator have direct face-to-face access to the ultimate decision-makers

on both sides of the dispute. Only in this way

can the mediator ply their particular skill set on individuals

who are critical to the settlement process. Working through

the proxy of a party representative with limited authority is

no substitute: The mediator has no opportunity to observe the

personality of the ultimate decision-maker, and that person,

in turn, has no opportunity to observe what they might be up

against in terms of the credibility and resolve of the opposing

party and its legal counsel. The mediator will have no opportunity

to explore creative ideas with one or more of the people

who might be in the very best position to turn those ideas into

solutions. Nor will the mediator have an opportunity to impress

directly on this person the enormous risks and costs of

allowing the matter to go forward to trial.

When it is not possible for the ultimate authority to attend

in person, it is imperative that the representative who does

attend have the full faith and confidence of the person they

are representing. In situations where ratification by a council

or corporate board may be required, such as in the case of

municipalities or public companies, it is important that the

attending representative be someone whose recommendation

will generally be accepted by that body. It is inappropriate to

send a representative to a mediation with anchored positions

such as, “We will not pay a penny higher than …”; or “We

won’t accept a nickel less than ...” Rather, the representative

should be told, “I trust your judgment. Get the best deal that

you can. Try to get the case settled on reasonable terms. Feel

free to consult with me by telephone, if you are uncertain.

Whatever you do, I will not second-guess you.”

Although many mediation agreements require the attendance

of an individual with authority, the mediator generally

has little control over who attends a mediation session. Because

of the importance of this issue, however, the lawyers representing

each party should require, from both their own client

and counsel for the other party, as a condition for proceeding

with the mediation, a firm commitment that the appropriate

individuals will attend in person.

Conclusion

Like everything else we do as lawyers, preparation is paramount.

For mediation to be successful, we need to prepare

our clients for the step in the litigation process that is often

their last and best chance to achieve an acceptable resolution

and which, in fact, ends most lawsuits. Proper preparation for

mediation will also allow clients to participate more confidently

in the process and will assist the mediator in helping the

parties achieve a settlement.

EXPERTS SINCE 1998 IN

FUTURE CARE COSTING

25+ years of

proven experience

Successful testimony

in landmark cases

Plaintiff and

defence expertise

1-866-314-7335

cbafuturecare.com

36 | WINTER 2024 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | WINTER 2024 | 37

THE ART OF ADVOCACY

Conducting a skillful examination for

discovery, in contemplation of trial

Conducting an effective oral examination for discovery is

a disciplined task, with a particular focus on learning the

opposing evidence and then employing the discovery

transcript as a powerful tool to control the discovery witness’s

evidence at trial. In this article, we begin with a review of the

key objectives and principles, and then demonstrate their application

in an imagined commercial case, starting at the discovery

stage, followed by cross-examination at trial.

Key Objectives and Principles

The two primary goals on oral discovery are, first, to learn, as

fully as possible, the case you have to meet; and, second, to develop

a discovery transcript that serves as a critical control device

of the key opposing witness at trial. 1 Your approach must

therefore centre on both the present (discovering the opposing

evidence) and the future (putting yourself in the best position

for cross-examination at trial). Less experienced counsel are

often too focused on the more immediate goal, at the expense

of the use of the discovery evidence at trial – an approach that

is no doubt impelled by the fact that a great many cases reach

the discovery stage but only a small fraction get to trial. 2 But

for those actions that do proceed to trial, there is no feeling

more helpless than being burdened with a poorly conducted

discovery that leads to surprises at trial and an inability to control

the principal opposing witness.

Open-ended questions

You know your client’s version of events. At discovery, you

need to hear the other side’s version. This means you should

start each line of inquiry with open-ended questions. Questions

of this nature do not presume an answer, but rather invite

the witness to tell their story using their own words.

It is a useful reminder here that the party being examined

for discovery cannot use their discovery transcript at trial. 3 Accordingly,

you should have no hesitation in hearing everything

the opposing party has to say, even if – indeed, especially if – it

is adverse to your client’s case. Now is the time to hear it fully,

to the point of letting the witness carry on at some length if


Robert S. Harrison and Richard B. Swan

they are so inclined. And if this seemingly unhelpful discovery

evidence turns out to be embellished or fabricated, drawing

out more detail on discovery increases the prospect that the

witness may go “off script” at trial.

Pinning the witness down

Starting lines of inquiry on discovery with open-ended

questions does not, of course, mean that every question is

a version of “tell me what happened

next.” Pinning the witness down

on facts to get clarity and precision, and

to close “escape hatches,” is essential,

but it requires more focused follow-up

questions. At trial, you

have no way of knowing

when a witness is likely to

stray from their discovery

evidence – whether in chief

or on cross. Therefore, your

examination for discovery

should be designed to pin

the witness down on material

factual points, so that

the witness cannot give surprise

new evidence at trial

(whether truthful, embellished,

or fabricated). And if

you intend to contradict the

witness on cross-examination

at trial with an inconsistent

statement made on

their discovery, 4 that discovery statement

must indeed be contradictory – explicitly

so, and without any ambiguity that lets

the witness, once confronted, wriggle

free. Below we provide some examples

of questions to ask and techniques to

follow.

Follow-up questions to exhaust

the witness’s testimony on a point

Questions such as “Have you told me

everything that was said at this December

1 meeting?” “Did you speak or communicate

with the plaintiff at any point

between the April 1 and June 3 meetings?”

and “Is that your entire explanation for

why you cancelled the meeting?” must

be asked. On discovery, do not be mesmerized

by what you assume is the factual

landscape of a case. Jumping from

questions about one known event to

the next, or being too focused on questions

based on documents, might lead to

missing a discussion in the interim, or

leave open a gap for the witness to create

one at trial. This category of follow-up

questions is designed to close doors and

should preclude surprises at trial.

Always be ready to question off

the witness’s last answer

This rule applies to all types of witness

examinations. 5 Examiners in all walks of

life – from police detectives to probing

parents – use this technique to great effect.

While listening very closely to the

witness’s response to your question, you

must determine whether a follow-up

question or questions must be asked

arising out of the answer, rather than

simply moving on to your next prepared

note or question. Listening intently

Admissions are concessions of fact or law.

The greater the number of admissions

you are able to extract on discovery,

the more you will have narrowed the issues,

extended the opportunity for read-ins at trial,

and laid the groundwork to control

the witness on cross-examination at trial.

means that you cannot be distracted

by your discovery notes or the text of

a document. If the witness’s answer is

unresponsive, vague, or imprecise, you

must press for clarification or precision.

If the answer raises another relevant factual

issue, you must decide whether you

are going to explore it right away or later

in the examination.

Limited cross-examination

Although commencing a line of inquiry

on discovery with open-ended questions

is essential to elicit a witness’s unvarnished

evidence, leading questions are

thereafter often necessary to pin the witness

down – “In other words, you said

‘no’ to his proposition?”; or, “To be clear,

you said nothing about the draft agreement

at the June 1 meeting?”

If you employ leading questions prematurely,

however, you run the serious

risk of walking right past the more complete

version of what the witness has to say.

The inestimable value of a

“clean” transcript

There are several aspects to a “clean”

transcript. First, ask only one (clear)

question at a time. Avoid compound

questions. Answers to complex or imprecise

questions are of little value.

Second, avoid in your questioning –

and clarify in any answer – imprecise references,

such as an unidentified “this” or

“then,” or an unspecified document. In

the same vein, when a line of questioning

is proceeding for an extended period

(over several transcript pages), repeat

your reference to the event or document

being discussed (such as an exhibit), especially

when you are putting a question

or proposition to the witness

that may be important

or generate an admission.

Third, if a witness gives

contradictory answers dur-

ing their examination, an

attempt should be made

to resolve the contradiction.

Otherwise, the

contradictory parts of the

transcript are likely to be

of limited use in terms of

trial read-ins or on crossexamination

at trial.

Fourth, as indicated earlier,

the substantive content

of each answer should

either be responsive and

complete, or pursued until it is.

“Do you recall …?”

Although you are entitled to the discovery

witness’s knowledge, information,

and belief, “do you recall” questions

should generally be avoided, if possible.

They weaken the level of commitment in

a witness’s answer and are therefore less

impactful should you subsequently want

to confront the witness with a contradiction

on cross-examination. Questions

with this formulation can also encourage

a difficult witness to claim a failed

or uncertain memory. “Did you tell John

that you were quitting?” is a far better

question than, “Do you recall if you told

John you were quitting?” However, and

in a related manner, do bear in mind that

the discovery evidence of a witness who

says they have no recollection of what

occurred at a meeting or other event is a

very useful control device if that witness

purports to give evidence at trial about

the meeting or other event.

Admissions

Admissions are concessions of fact or law.

The greater the number of admissions

you are able to extract on discovery, the

more you will have narrowed the issues,

extended the opportunity for read-ins at

trial, and laid the groundwork to control

the witness on cross-examination at trial.

In the context of an examination for

discovery, admissions fall into several

categories.


Non-controversial admissions

Some issues of fact or law will be conceded by the other

side either because they are uncontested or because they are

incontrovertible. You can expect admissions of this nature to

be surrendered without a fuss. You should have a list of them

in your discovery notes and be sure to elicit them.

“Stealth” admissions

These are admissions of fact that may not appear to be consequential

but are designed to lay the groundwork for a line of

cross-examination at trial. Examples include getting a party to

(a) acknowledge that they read and approved their pleading,

or (b) agree that they drafted a particular document or email,

and agree with it, or (c) perhaps just concede that they received

and read a communication.

Other admissions

You will also be in pursuit of other admissions the significance

of which will likely be recognized by the discovery witness. If

you run into resistance, cross-examination is appropriate, subject

to the important caveat below.

Don’t try to gild the lily

When you get a clear answer to a clear question, and it amounts

to a clean admission, leave it alone. Enough said.

Cross-examining on discovery

There is nothing wrong per se with employing cross-examination

at appropriate times during the discovery to obtain greater

precision with an answer or to extract an admission – if it is

there for the taking. As a general rule, however, you can usually

effectively cross-examine a witness on a significant issue only once.

Cross-examination at trial on a significant matter commonly

entails laying a foundation of building blocks leading to a

confrontational proposition put to the witness. The objective

is to put the witness in a position where they either have to

surrender the admission sought or give an answer that is obviously

not credible, thereby essentially giving the admission

in the process, and at the same time undermining the witness’s

credibility. 6 There is significant risk for counsel in conducting a

dress rehearsal of this kind of cross-examination on discovery.

If the cross-examination on discovery does not extract an admission,

perhaps because it arose in the moment and was not

carefully prepared, you will have given the witness a preview,

and they will likely be ready for you at trial.

Strategic decisions about questioning on “hot documents”

Decisions often need to be made regarding documents which

appear to be damaging to the opposite party. Is (cross-)examination

on such documents better left for trial? The answer is:

only if you are confident the document is incapable of misunderstanding

and its context requires no elaboration. If so, do

not ask your challenging questions about the document for the

benefit of the witness (and their counsel) on discovery. Save

those questions for potentially devastating use at trial.

A hypothetical commercial case

With these key objectives and principles in mind, the following

hypothetical case will serve as a framework for demonstrations

of an effective oral discovery on a key issue, and the use

of the evidence obtained on that discovery to shape a skillful

cross-examination on the issue at trial.

McKenzie v Puddington Publishers Ltd.

Mikayla McKenzie is a venture capitalist, known for taking big

risks and frequently being rewarded. According to McKenzie,

she entered into a binding oral agreement with an old acquaintance,

George Puddington of Puddington Publishers Ltd.,

to acquire the name Synthetic Brainpower, which Puddington

was using in connection with a fledgling online forum covering

developments in artificial intelligence. The agreement was

made one evening over drinks, as McKenzie tells it, for a price

of $1,000,000 – a lot of money, but she jumped at the chance.

She immediately recognized the marketing appeal of the name

Synthetic Brainpower in connection with artificial intelligence.

The one thing in writing that might evidence the agreement

was a note Puddington wrote on a bar coaster and handed to

McKenzie. It reads: “SB – $1,000,000.” McKenzie insists this

was an offer by Puddington to sell Synthetic Brainpower, which

she accepted right there: “We made a deal and shook hands on

it.” She says that Puddington soon reneged, however. McKenzie

originally was not going to pursue the matter but changed

her mind later when Synthetic Brainpower went viral.

Puddington has a very different account. He maintains he

did not shake hands or enter into any deal, and he has a radically

different explanation for the note. He agrees that Mc-

Kenzie expressed interest that evening in buying Synthetic

Brainpower, but he wanted to think about it and discuss the

idea with his team the next morning. They collectively decided

that they were not interested in pursuing any sale, and he communicated

this decision to McKenzie.

McKenzie’s statement of claim alleges breach of contract

and seeks substantial damages. In its statement of defence,

Puddington Publishers denies that it entered into any binding

agreement.

Demonstration of an effective examination for discovery

of Puddington on the key issue

In this discovery transcript extract, note how McKenzie’s counsel

poses questions that are initially open ended, questions

off the last answer, and gets commitment from Puddington

that the information provided on a point is exhaustive (including

through undertakings). When addressing Puddington’s

improbable explanation for his note, counsel explores the

foundation for that explanation fully, but purposefully leaves

cross-examination for trial.

…

Q. How long did you and Ms. McKenzie talk at the hotel

bar?

A. We had a couple of drinks – about an hour I’d say.

Q. You introduced her to your three colleagues seated at

the next table?

A. I did.

Q. Did you identify Ms. Bevilacqua as your COO?

A. Maybe. I’m not sure.

Q. Did Ms. Bevilacqua and Ms. McKenzie engage in any

conversation after the introductions?

A. No. The introductions were very brief.

Q. Will you undertake to provide detailed information

from all three colleagues regarding (a) whether Ms.

Bevilacqua was introduced to Ms.

McKenzie as your COO; and (b) what

if anything they may have overheard

of the conversation between you and

Ms. McKenzie thereafter?

COUNSEL: We will.

Q. Same request regarding how

many times they noticed Ms. McKenzie

and Mr. Puddington shake hands,

if at all?

COUNSEL: Agreed.

Q. Tell me the entire conversation

with Ms. McKenzie regarding Synthetic

Brainpower, please.

A. Synthetic Brainpower naturally

came up when our conversation

turned to AI.

Q. Tell me what was discussed.

A. I do not remember the details. I

certainly bragged about what we

were doing with Synthetic Brainpower.

Mikayla was very interested.

Q. What did you brag about?

A. I know I told her about a number

of prominent AI specialists who

were already contributing to the

Synthetic Brainpower forum.

Q. Did the possible sale of Synthetic

Brainpower come up?

A. Yes. Mikayla said she loved the

name and asked me out of the blue

how much I would take for the use of

the name Synthetic Brainpower in association

with artificial intelligence.

Q. What did you say in response?

A. I told her I had never thought

about selling it, but I would consider

the idea and discuss it with my

team. As it happened, I was expecting

to be meeting the team for breakfast

the next morning.

Q. What else was said by either one

of you about a possible sale?

A. Nothing.

Q. My client insists that you shook

hands on a sale for one million

dollars.

A. That absolutely did not happen.

She didn’t even propose a purchase

price.

Q. She says you even handed her a

written offer?

A. I did not.

Q. Is that your handwriting on the

original of plaintiff’s production

#005, the bar coaster?

A. Yes.

Q. What does it say?

A. “SB – $1,000,000.”

Q. What does “SB” refer to?

A. My COO, Sarah Bevilacqua.

Q. Why did you write this note?

A. Mikayla kept pressing me about

what we were paying our senior executives.

My team was right beside

me, so I slipped her this note on the

coaster.

Q. Production #005?

A. Yes.

Q. So “SB – $1,000,000” meant what?

A. We were paying Sarah Bevilacqua

one million dollars.

Q. Why did you write “SB” instead

of COO?

A. That is just what I did.

Q. Why did you decide to breach the

confidence of one of your most trusted

executives on her compensation?

A. I should not have, upon reflection.

Q. What were the various components

of the one-million-dollar

compensation figure?

A. I don’t know if she was making

exactly one million. We’d have to

check.

COUNSEL: We will undertake to

provide me with Ms. Bevilacqua’s

compensation and its component

parts in that year.

Q. You said a few minutes ago that

Ms. McKenzie kept pressing you

about what you were paying your

senior people. What do you mean?

A. Your client is an aggressive entrepreneur

who is keen on acquiring

market intelligence. She asked me

several times, two or three, what we

were paying our senior people.

Q. Can you tell me why you didn’t

just say your company’s executive

compensation packages were none of

her business?

A. I wish I had.

Q. You cannot explain why you divulged

it?

A. I’ve given you my answer – that I

felt pressed by your client, for some

reason.

Q. When did you first speak to your

colleagues about a sale of the name

Synthetic Brainpower?

A. At breakfast the next morning.

Q. What was discussed?

A. I told the team that Mikayla

was very interested in buying the

name Synthetic Brainpower. The team

was adamant that we should not

sell the name, especially my graphics

engineer, Blair, who came up

with the name and was particularly

pleased about the presence of “AI”

in “Brainpower,” which we then

highlighted in red to have the “AI”

element stand out.

Q. What else was said at that breakfast

meeting about a possible sale?

A. Nothing else comes to mind.

Q. To be clear, did you discuss a possible

sale price with your team?

A. We did not get that far.

Q. Will you undertake to provide a

detailed summary of each participant’s

evidence as to what you discussed

at the breakfast meeting on

May 31, 2023?

COUNSEL: We will.

Q. And produce any notes any of

them made?

COUNSEL: Will do.

Q. Did you have any further communication

with Ms. McKenzie

regarding Synthetic Brainpower?

A. I called Mikayla after my breakfast

meeting and told her that the

team was not interested in a sale.

Q. Did you tell her words to the effect

of you could not go forward

with the sale because of intense

push-back from your team?

A. That is not what I said.

Q. What did you say, precisely?

A. That I was not, or we were not,

interested in a sale. Nothing else.

Q. What did Ms. McKenzie say in

response?

A. I do not remember her exact

words.

Q. What was the substance of what

she said?

A. The most I can tell you is that she

was clearly disappointed.

Q Was anything else of substance

said by either one of you on this call?

A. No. It was brief and we said our

goodbyes.

Q. When did you next communicate

with her?

A. About a month later I received

several phone messages over a

short period of time. They were always

the same. She said she wanted

to close what she kept calling our

Synthetic Brainpower deal.

Q. Did you know why she was

saying that?

A. It didn’t make sense. We had no

deal.

Q. Did you save those messages?

A. I did not.

Q. Can we agree that you did not



phone her back?

A. That’s true.

Q. Why not?

A. I had nothing to say to her.

Q. Was your only response to those phone messages your

text to my client dated June 25, 2023 – your production

#75?

A. Yes.

Q. That was the last communication between the two of

you until this lawsuit?

A. It was …

Production #75 read: “Mikayla, I understand how you feel, and I

am truly sorry about what happened. But please stop calling.”

McKenzie’s counsel decided to save examination on this text

for trial.

Use of the discovery evidence on the cross-examination

of Puddington at trial

In the following trial excerpt, McKenzie’s counsel builds to

confrontations with Puddington using his discovery evidence

and the text at production #75. Counsel anticipates that

Puddington’s denials will not be believed by the trial judge.

…

Q. You will be happy to hear I am almost finished, Mr.

Puddington. But I need to go back to your bar coaster note

which says “SB – $1,000,000” – Exhibit #4. You say you

wrote this note because Ms. McKenzie was interested in

getting market intelligence about your senior executives’

compensation levels. Have I got that right?

A. Essentially.

Q. Although you can’t explain why, you have told us you

felt pressure to give her some information regarding what

your senior people were earning, right?

A. That is how I felt.

Q. Nowhere in your testimony have you suggested she

was demanding to know specifically what your COO was

making?

A. She was not that specific.

Q. You could easily have satisfied her curiosity with a

range of executive compensation levels, right?

A. Perhaps, but I didn’t.

Q. Instead, according to you, you decided to breach Ms.

Bevilacqua’s confidence and disclosed her confidential

compensation information?

A. A decision I regret.

Q. And you didn’t write down any of your other executives’

compensation?

A. So it would appear.

Q. Even though Ms. McKenzie, according to you, asked

more generally about what “your senior people” were

making?

A. I believe that was how she put it.

Q. When you decided to succumb to Ms. McKenzie’s

supposed pressure, you say you wrote this note so your

colleagues would not overhear?

A. That’s right.

Q. If you had written the initials “COO,” that would have

been clear?

A. Yes.

Q. Instead, you say you wrote the initials of a person

Ms. McKenzie had just met?

A. Yes.

Q. She might not have absorbed Ms. Bevilacqua’s full

name or appreciated her role in the company?

A. I think she probably absorbed it.

Q, In fact, sir, your note had nothing to do with Ms.

Bevilacqua’s compensation, did it?

A. Suggest what you wish, but you’re wrong.

Q. And, in fact, as it happens, Ms. Bevilacqua’s actual compensation

that year was a base salary of $850,000, and including

all incentives and benefits, $905,000.

A. There you go. I was very close to her actual number.

Q. Really? And, Mr. Puddington, you wrote, in your

handwriting, both the initials “SB” and the dollar amount

“$1,000,000.”

A. I believe I already acknowledged that.

Q. What you were writing down sir, in your handwriting,

was the price you would accept to sell the name Synthetic

Brainpower, just as Ms. McKenzie has maintained from the

beginning?

A. Absolutely not.

Q. Your evidence-in-chief, as I understood it, was that Ms.

McKenzie suggested that she was interested in buying the

name Synthetic Brainpower, but made no offer of price, and

you said you wanted to think about it and speak with your

team the next morning.

A. Exactly. Now you’ve got it.

Q. And if, after speaking with your team, you said I’m “not

interested in selling,” she would have to accept your answer?

A. She wouldn’t have a choice.

Q. If you said “no, not interested” there would be nothing

for you to feel sorry about?

A. Why would I feel sorry? It’s just business; she asked,

and I came back and said, “not interested.”

Q. Feeling sorry wouldn’t make sense?

A. Right.

Q. I am handing you the joint document book and asking

you to turn to tab 47.

A. I have it.

Q. That is a text dated June 25, 2023, which you wrote to

Ms. McKenzie after she left you several messages insisting

you had made a deal to sell Synthetic Brainpower?

A. Yes.

Q. This was your one and only response to her, right?

A. Yes.

Q. Can you read the text aloud, Mr. Puddington?

A. “Mikayla, I understand how you feel, and I am truly

sorry about what happened. But please stop calling.”

Q. You did not say, “Mikayla, stop leaving messages saying

we made a deal. I have no idea what you are talking

about.” Correct?

A. I did not.

Q. In fact you wrote that you were “truly sorry about what

happened,” right?

A. That’s what it says.

Q. Something you just acknowledged would make no sense?

A. You have to understand, I just dashed this text off.

Q. Meaning you wrote what immediately came to mind?

A. You are trying to twist what I said.

Q. Mr. Puddington, if the simple truth is that Ms. McKenzie


accepted your written offer to sell Synthetic Brainpower for

one million dollars, as in “SB – $1,000,000,” and you said

the next morning your team made you back out, your feeling

sorry would make perfect sense, wouldn’t it?

A. I’m not going to speculate with you; I’m telling you

that’s not what happened.

Q. I have no further questions, Your Honour.

Take-aways

Puddington no doubt sensed as he stepped out of the witness

box that he fared poorly on his cross-examinaiton. The trial

judge is likely to conclude, based on the cross-examination,

that Puddington’s explanation for his handwriting on the bar

coaster cannot be believed, taking his defence down with it.

The foundation for this cross-examination was put in place

with an effectively conducted examination for discovery (even

in the absence of the need here to confront and contradict

using the discovery transcript), as well as the strategic decision

not to examine for discovery on the substance of Puddington’s

June 25 text message. The impact should also be noted of

having Puddington himself read the text aloud at trial so that

his words “I’m truly sorry” come directly from his mouth – a

moment of unmistakable drama and weight.

Notes

1. This also emphasizes the importance of selecting a discovery witness

who is very knowledgeable about the facts and likely to be the, or

a, primary witness at trial. We have excluded from this discussion

circumstances when counsel is plotting a motion for summary judgment.

2. This also means that less experienced counsel may have never

conducted a trial when they undertake their early-career examinations

for discovery. The experience of cross-examination at trial is a powerful

discipline for effective future discoveries.

3. Subject perhaps to the rare circumstance where the party-witness dies or

becomes incapacitated before trial.

4. See s 20 of the Ontario Evidence Act – the statutory rule of evidence in

support of Rule 31.11(2), which contemplates impeaching a witness

on a prior inconsistent statement contained in their examination for

discovery.

5. In our book Skillful Witness Examinations in Civil and Arbitration Hearings

(Toronto: Carswell, 2023), we devote a brief chapter to this one topic –

described as a “Golden Rule.”

6. See our article in the Summer 2024 issue (43:1) of this Journal.

Tricks of the Trade 2025

A 30+ Year Tradition for Leaders of the Personal Injury Bar

January 31, 2025 | 9:30 am to 4:30 pm (ET) | Live at Arcadian Court in Toronto

For over three decades, Tricks of the Trade has been the leading annual conference for the Ontario personal injury bar,

addressing current challenges for both plaintiff and defence counsel. Esteemed faculty will provide key updates on recent

decisions, timely advocacy tips, and the latest guidance on practice and procedure for personal injury litigators.

Top Tips for Hearings and

Motions in Writing

More and more matters are now heard in writing -

learn the recipe for successful written submissions!

Speakers: The Hon. Justice Spencer Nicholson,

Superior Court of Justice,

Kadey Schultz, Schultz Law Group LLP

Working with Vulnerable People

in Civil Sexual Assault and

Personal Injury Cases

Gain guidance on working with vulnerable parties

and witnesses, including trauma-informed approaches

for both plaintiff and defence counsel.

Speakers: The Hon. Justice Loretta P. Merritt,

Superior Court of Justice,

Anna Matas, St. Lawrence Barristers PC,

David Rogers, Rogers Partners LLP

Advocates in Action

Trials Under the New Simplified

Procedure Rules: Are You Ready?

Be prepared for your next (or first) trial under the

new Simplified Procedure Rules.

As part of our mission to be a voice for advocates,

The Advocates’ Society (“TAS”) undertakes initiatives

that seek to improve access to justice, promote

diversity and inclusion, protect judicial independence,

and make submissions on matters of significance to

the legal profession. Advocates in Action is here to

keep our members informed about and engaged with

the Society’s important advocacy work.

Speaker: Laura Dickson, DWA Law

Scenarios: Damage Assessments

Our panelists share their secrets for accurately

assessing damages in complex cases.

2025 Co-Chair

Lisa Belcourt,

Ferguson Deacon Taws LLP

2025 Co-Chair

Brenda Hollingsworth, Auger

Hollingsworth Professional Corporation

Speakers: The Hon. Justice M.J. Lucille Shaw, Superior

Court of Justice, Gabriela Nagy, The Regional Municipality

of York, Stacey Stevens, Thomson Rogers LLP

Scan here to

read past issues

OHIP Subrogated Claims: Best Practices

Hear how to handle OHIP claims properly and avoid

common pitfalls.

2025 Co-Chair

Sudevi Mukherjee-Gothi,

Pallett Valo LLP

2025 Co-Chair

Brian Sunohara,

Rogers Partners LLP


Speakers: Joni Dobson, MD Lawyers

Joanne Curran, Ontario Ministry of Health

Shawna Langille, Ontario Ministry of Health

For up to date topics and agenda visit

www.advocates.ca

REFLECTIONS OF AN ADVOCATE

Look back: The body in the jungle

When asked about the cases I have been fortunate

to participate in, my mind seems to return to the

case that my children always mention: “The Body in

the Jungle.” 1

Why is that?

Because it was a case of captivating interest at the time, focused

on a partially decomposed body discovered on January

29, 1997, at the edge of the jungle in Phuket, Thailand. In the

back pocket of the pants on the body was the Canadian passport,

Cross pen, and address book of Monthol Bhromsuwan, a

resident of Toronto. The body was never visually identified by

anyone as that of Monthol Bhromsuwan.

What was the case about?

In November of 1996, Monthol Bhromsuwan travelled from

Toronto to Thailand for an extended holiday. He was insured

at the time under several life and accident insurance policies.

He was last heard from in mid-January 1997.

Under section 208, and following, of the Insurance Act, an

application may be brought to the court to determine the sufficiency

of evidence as to proof of death when the policies are

otherwise admitted as valid. Under those sections, the onus

rests in the first seven years after disappearance upon the

claimant beneficiary to establish the presumption of death.

After seven years, the onus shifts to the insurer.

The case ultimately came on for trial in June 2000 after a

checkered procedural history. Rod Byrnes and Barry Reese

acted for the beneficiary claimants. For the defendants,

Luis Sarabia and I acted for the Canada Life Assurance Company,

Robert Howe and David Cherepacha for CIBC Life Insurance

Company Limited, and Blair Groff for the Manufacturers

Life Insurance Company.

What was memorable?

The trial was punctuated by a host of unusual circumstances:

l The fact that no one had been able to actually identify the

body as that of Monthol Bhromsuwan.

l What appeared to be a hasty cremation of the body.

l No cremation records.

l The disappearance of the key three personal items found

on the body.

Peter Griffin, KC, LSM, ASM

l The disappearance of the witness who found the body.

l Conflicting evidence of what the discovering witness had

found and what he was doing there in the first place.

l The lack of a missing person report on Monthol Bhromsuwan

– either from a hotel or anyone with whom he may

have been staying.

l An unusually casual police investigation.

l The statement of the investigating officer to the insurer’s

investigator that the body was likely that of a Burmese

worker, not Monthol Bhromsuwan. Burmese workers apparently

entered Thailand illegally with no record of their

whereabouts; if a Burmese worker

was killed, there would be no trace

of the origin or name of the person.

l Witnesses reversing course from

previous statements.

l The arrest of a reluctant witness pursuant

to a bench warrant.

l Why were the insurers resisting the

claims?

Monthol Bhromsuwan operated two

restaurants in Toronto. Both seemed to

be in financial difficulty. Upon his father’s

disappearance, Bhromsuwan’s son

was unable to find any financial records

for either restaurant. Each appeared to

be failing to remit sales tax to provincial

authorities.

There was highly conflicting evidence

concerning whether Monthol Bhromsuwan

had an income. According to his

tax returns, he did not; but in accordance

with what he disclosed on his insurance

applications, he had a substantial income

($168,000 a year).

As at January 29, 1997, Monthol Bhromsuwan

held life and accident insurance

policies of approximately $3.7 million. A

few weeks before leaving for Thailand he

applied for a further $3 million of insurance.

He was issued only a further approximately

$1 million of insurance.

The trial was an entertaining affair.

Counsel speculated minute by minute

about what might have happened and

what the explanation was for the unusual

story. Even the trial judge got into

the act – commenting about discussions

the night before as to what may have

occurred. (“We were discussing this at

dinner …”)

Testifying for the plaintiffs were

Monthol Bhromsuwan’s two children,

one of whom had been in Thailand at the

time the body appeared and had seen

the body but not identified it (“I didn’t

want to look at him”) and then arranged

for its immediate cremation. A forensic

pathologist attempted to establish

that the decomposed body in a photograph

was likely of the size and nature

of Monthol Bhromsuwan. His evidence

was downplayed by the trial judge,

Blenus Wright.

The investigating police officer was

called by video-conference link (an early

virtual hearing), testifying from a hotel

room in Bangkok. Every answer he gave

was preceded by a lingering look into the

corner of the room, where clearly someone

was sitting. The trial judge was not

impressed with that evidence, especially

regarding the conflicts over the nature of

the investigation and what was found.

Lastly, the plaintiffs called an anthropologist,

who attempted to study the

photographs of the deceased’s corpse

to opine that the dead body could

have been the approximate height of

Monthol Bhromsuwan in life. However,

the category that he put him in was that

of most males in Thailand.

Monthol Bhromsuwan’s sister had

aroused the suspicion of the insurers by

reporting to an insurer that her brother

was not dead. She was also reputed to

have told Bhromsuwan’s wife (one of

two wives), when telephoned and told of

the news of Bhromsuwan’s body being

found, “I am no part of this.”

We interviewed the sister in a coffee

shop at Dufferin and King in Toronto

and delivered a subpoena to her. She

refused to attend at trial. For the first

and only time in my career, I obtained

a bench warrant and had her arrested at

her place of work and brought by the police

to the courtroom. She was not happy.

She had previously told the investigator

that her life had been threatened

if she cooperated with them. She was

clearly terrified and gave little evidence

beyond, “I don’t know.” She refused to

confirm her previously stated belief that

Monthol Bhromsuwan was not dead.

Her cross-examination revolved around

whether her upset with her brother resulted

from his disapproval of her relationship

with a young waiter at one of

the restaurants. In a cross-examination

designed to have her support the plaintiffs,

she was offered the chance to reconcile

with her family. She declined.

In their defence, the insurers called

two investigators who had been heavily

involved, one in travelling to Thailand

to investigate what had occurred (he was

the source of much of the conflicting evidence

related to what had occurred) and

one in Toronto. The insurers also called a

forensic entomologist with regard to the

state of decomposition caused by insects,

leading to the expert’s conclusion that

the body was far more slender than that

of Monthol Bhromsuwan.

The defence called Sayam Sae-Ou,

Monthol Bhromsuwan’s brother-in-law,

who had told the investigators in Thailand

that Bhromsuwan was alive and

in good health. We were able to obtain

his evidence cooperatively, so it seemed.

According to the trial judge’s description,

Sayam Sae-Ou presented as a somewhat

belligerent witness who gave long,

rambling answers. Although he was

testifying through an interpreter, he

challenged the interpreter’s interpretation

into English of what he was saying

in Thai. He backtracked completely on

what he had told the investigator.

Much evidence was led about previous

deceptions by Monthol Bhromsuwan:

l His marrying a Filipina in Canada,

not telling her that he had a wife and

children in Thailand. Once his relationship

to Canada was established,

he moved the Thai family to Toronto,

continuing his relationship with

his new Canadian wife in Kingston

and shuttling between the two families.

l The conflicting evidence over

whether he did or did not have assets

or income.

l The failure to remit sales tax and to

pay personal or corporate income

tax in Canada.

l The lack of financial records for either

restaurant at the time of his

death. There was simply nothing at

either restaurant or elsewhere.

l The placing of his automobile (a

Mercedes) in the name of a friend to

reduce insurance premiums.

After argument, Justice Wright reserved

his decision and ultimately delivered

written reasons dismissing the

applications on the basis that there was

not sufficient evidence to prove that the

body found in Phuket, Thailand, was actually

that of Monthol Bhromsuwan. All

in all, he concluded that the expert evidence

was not determinative one way or

the other as to whether the body was that

of Bhromsuwan.

Justice Wright made the specific finding

that Monthol Bhromsuwan had

sufficient motive to desire that his beneficiaries

collect on his insurance policies:

“Because of his dishonest nature, I find

that he was capable of staging his death.”

In his reasons, the trial judge continued

to ask the rhetorical questions he

asked during the course of the trial:

l In the face of two different versions

from the discovering witness of the

circumstances under which he is alleged

to have found the body (one

version had him crawling through

a 12- to 18-inch drainpipe), why did

the police fail to investigate further



the facts about how the body was discovered?

l Why was the witness in that area the day before the body

was discovered?

l Why was the witness in the exact same area the next day?

l If the body was difficult to see from the roadway … how

did the witness know the body was not there the day

before, but only the next day?

l Why were the police so seemingly unconcerned about important

pieces of evidence that disappeared?

l Why would the body have on it a tee-shirt that would be

difficult to identify as being owned by Monthol Bhromsuwan?

l Why was there no response from the advertisements containing

his picture which were placed by the police in the

local newspapers?

l Would someone be likely to have seen him or would someone

at the place where he was staying likely recognize the

picture and advise the police that he stayed at a certain

place, and when?

l Why did he apply for a Thai passport when in Thailand –

which would permit him to remain in Thailand indefinitely?

l Why was he staying so long in Thailand?

l Why would he leave his restaurants at one of the busiest

times of the season?

l Would the fight between Monthol Bhromsuwan and his

sister be sufficient reason to cause her to report to the insurance

companies any plan to fake his death if there was

no substance to her belief?

#GoGreen

Did you know TAS Members have

the option of digital only delivery

of The Advocates’ Journal? Simply

log on to your TAS Member profile

at www.advocates.ca and opt-in

for the Digital Journal.

Need help? Email us at

membership@advocates.ca

and we are happy to assist.

l Was the problem between Bhromsuwan and his sister related

to the relationship with the young waiter?

l If there was no substance to the sister’s belief that Bhromsuwan

planned to fake his death, why would anyone

threaten her?

l If Monthol Bhromsuwan is not dead, where is he?

That was not the end of the story.

The claimants appealed to the Divisional Court. The Divisional

Court set aside the decision of Justice Wright and ordered

a new trial, concluding that Justice Wright had not made

sufficient findings as to the reliability and necessity of hearsay

evidence (of which there was a fair amount) in coming to his

conclusion.

By the time all this had happened, sufficient time had passed

that the onus reversed on any subsequent application. The

claims were ultimately settled.

One final question: Was it Monthol Bhromsuwan’s body that

was found at the edge of the Phuket jungle on January 29, 1997?

Who knows?

Note

1. Bhromsuwan v Canada Life Assurance Co, [2000] OTC 576 (SCJ), rev’d

(2003), 168 OAC 310 (Div Ct).

John Collins, B.A., LL .B.

John Collins, Barrister and Solicitor B.A., LL .B.

Barrister and Solicitor

Certified by The Law Society of Ontario

Certified As a Specialist by The Law in Society Criminal of Ontario Law

As a Specialist Barrister and in Criminal Solicitor Law



Over 40 Years

Certified

of Trial

by The Law

and

Society

Appellate

of Ontario

Experience

Over 40 Years of Trial Barrister and Solicitor Appellate Experience

As a Specialist in Criminal Law

2000 - 393 Certified by The Law Society of Ontario Tel: (416) 364-9006

2000 University - 393 Over Ave 40 Years Tel: Fax: (416) (416) 364-9006

As

of

a Specialist

Trial and

in Criminal

Appellate

Law

Experience 593-1352

University Toronto, ON Ave

Fax: Cell: (416) (416) 593-1352

2000

726-8279

Toronto, M5G 1E6 Over

- 393

ON 40 Years of Trial and

Tel: (416) 364-9006

E-mail: Appellate john.collins@on.aibn.com

Cell: Experience (416) 726-8279

University Ave

Fax: (416) 593-1352

M5G 1E6 Toronto, ON

E-mail: john.collins@on.aibn.com

2000 - 393

Website: Cell:

Tel: (416)

(416) johncollinslaw.com

364-9006

726-8279

E-mail: Website: john.collins@on.aibn.com johncollinslaw.com

M5G

University

1E6

Ave

Toronto, ON

M5G 1E6

Fax: (416) 593-1352

Website:

Cell:

johncollinslaw.com

(416) 726-8279

E-mail: john.collins@on.aibn.com

Website: johncollinslaw.com

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