Keeping-Tabs-Winter-2025

KEEPING TABS
The Advocates’ Society
WINTER 2025

CONTENTS
THE ADVOCATES’ SOCIETY
END OF TERM DINNER
Thursday, June 5, 2025
Guest Arrival: 5:30 pm (ET) | Dinner: 7:00 pm (ET)
Metro Toronto Convention Centre
Toronto, On
Formal attire | A member-only event
05
07
11
14
19
22
24
Chair Chat
Alexandra Shelley, Torys LLP
Reflections on the YASC Fireside Chat
with Justice Doherty
Tomislav Miloš
Tips on How to Write a Factum
for New Advocates
The Hon. Justice William Hourigan, Court of Appeal for Ontario
Muddy Waters: Determining the Availability
of Judicial Review after the Court of Appeal
for Ontario’s Decision in Khorsand v. Toronto
Police Services Board
Thomas Russell, Stieber Berlach LLP
Lessons from the Trenches:
My First Trial Experience
Christina A. Di Lella, MayLex Litigation
Lyrical Limitations:
A foretaste of the Versified Law Reports
Mohammed Elshafie, Conway Baxter Wilson LLP/s.r.l.
YASC Interview with Yashoda Ranganathan
Compiled by Folu Adesanya, Whitelaw Twining (Ontario) LLP and
Michael Hodgins, MD Lawyers
Editor: Julie Mouris (she/her), Conway Baxter Wilson LLP/s.r.l.
Deputy Editor: Emily Dishart (she/her), McMillan LLP
Keeping Tabs Editorial Team: Folu Adesanya, Whitelaw Twining (Ontario) LLP, Michael Hodgins, MD Lawyers, Sydney McIvor, Durant Barristers,
Tomislav Milos, Oksana Romanov, Crown Attorney’s Office (Northeast), Sara Romeih, Ross Nasseri LLP
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a voice for young advocates
(advocates who are ten years of call or fewer) within the Society and within the profession. We do this through networking/mentoring events, by
publishing articles by and for young advocates, and by raising issues of concern to young advocates as we work with the Society’s Board of Directors.
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
3

Spring Symposium 2025
Friday, May 23, 2025 |9:00 am - 4:00 pm (ET)
Live Stream and In-Person at
The Advocates’ Society’s Education Centre,
250 Yonge Street, Suite 2700, Toronto
This practical program features the latest developments,
strategies and tools for adapting and succeeding in your
evolving litigation practice.
CHAIR CHAT
Chair Chat
Alexandra Shelley, Torys LLP
Tools and tips
for success
And more!
If you are a civil litigator serious about advocacy,
this is one program you cannot
afford to miss! With in-person and virtual
attendance options available, no
matter how you choose to join us,
you will take part in a dynamic
and engaging day of learning.
Latest
developments
Strategies
REGISTER
Premier Sponsor
Hello Young Advocates (and supporters of Young
Advocates!) –
You have made it through the return from holiday
rush and the long 31 days of January and
the short 28 days of February. And just like that,
March is upon us. This is a great time to check
in on your goals and intentions for the year. Are
you making decisions and taking steps that align
with how you want to grow your career and life?
If not, you have lots of time to pivot, seek out
mentors (including through the TAS Mentorship
Portal) and recalibrate.
If you are looking for inspiration, this edition
is jam-packed with content from Young Advocates,
as well as perspectives from senior advocates
and the judiciary.
Justice Hourigan’s first installment of a twopart
series on advocacy features an article on
factum drafting for new advocates. Bookmark
this article to refer back to before you put fingers
to keyboard on your next draft.
If you missed November’s Fireside Chat with
Justice Doherty, you are in luck because we have
an article from Tomislav Miloš sharing some of
Justice Doherty’s insights on effective advocacy.
Poetry is making a rare appearance in Keeping
Tabs. Mohammed Elshafie’s poem on the case
of Bank of Montreal v. Iskenderov, 2023 ONCA 528
will delight!
As part of our new “Then & Now” series, there
is an interview with a senior advocate – Yashoda
Ranganathan. Yashoda reflects on how her
practice and views have evolved since she was
previously interviewed for Keeping Tabs in
2013. Enjoy the time capsule!
We also have articles on first trials and, judicial
review.
If you are interested in contributing to future
issues, our lead editor, Julie Mouris, would love
to hear from you.
See you in the spring,
Alex
Supporter: 5

EVENT REPORT
Relax and recharge at Toronto’s prestigious members club, just steps from the Court of Appeal
www.universitycluboftoronto.com
Reflections on the YASC
Fireside Chat with
Justice Doherty
Tomislav Miloš
The Honourable David Doherty’s legal legacy is such that his exploits as both a lawyer and judge
need no introduction. Having recently retired from the Court of Appeal for Ontario as its longest-serving
judge, the notoriously private Justice Doherty peeled back the curtain on his career
to have a candid discussion with another legend of the bar, TAS Past President Guy Pratte, as part
of YASC’s Fireside Chat series on November 28, 2024. The esteemed pair’s discussion ranged from
Justice Doherty’s journey to law school, to joining the Crown Law Office, his stint at McCarthy &
McCarthy, to the breadth of his decisions covering nearly 50 areas of civil law. War stories were
interspersed with themes for effective advocacy during the chat, summarized on the next page:
7

Ed. Note - Thank you to BLG Toronto for hosting this special event. TAS
members who missed the program can view the archive on the TAS Member
Resource Library here.
1. Written advocacy’s importance
Factums used to hint at appellant
arguments in broad terms, whereas
even motions are now briefed to the
gills. Gone are the days when famed
legal raconteurs like Ian Scott could
save the day with a novel argument
not found in their factum. With that
show-stealing element no more, a
written argument’s importance is
unquestionable. On his days on the
bench, Justice Doherty would have
4-5 questions heading into an appeal
whose answers were determinative
of the result or the reasoning
process used to arrive at it. On that
note, written material then allows
for the oral argument to focus much
more on how to convince a judge to
follow your intended path to the outcome
you seek.
2. Narrowing the grounds of appeal
You have to focus on what you have a
chance of selling in the factum. Justice
Doherty glibly stated, “You could put
whatever you wanted in your notice of
appeal because I probably wasn’t going
to read it anyway.”
3. Dealing with a hot bench
The questions coming from the bench
may reveal that one member of the
court doesn’t fully grasp the argument,
and you should be ready to react to
that. Start from the presumption that
the judges have read the factum and
trial decision carefully, and be ready to
fill gaps in human knowledge when it
becomes apparent. Where questions
threaten to take you over your time limit,
pre-emptively acknowledge the fact
and ask for an indulgence to organize
your next few points. Upon taking a
moment to collect yourself and your remaining
arguments, ask for 10-15 minutes
with confidence (aware of his stern
reputation, Justice Doherty laughed and
said: “I would even say yes.”)
4. Don’t wilt in the face of an
unsympathetic judge
Often, a judge will argue the other
side of a case under the guise of asking
a question. Or worse, present an
argument that neither side has presented,
giving way to a difficult situation.
In those cases, it is imperative
to hold the line since the worst thing
you can do is cave. The second worst
thing you can do is get nasty. In a
calm, civil fashion, simply advise the
judge that they take a different view
of the evidence/theory and have
wandered outside your argument.
8 9

Summer Trial
Advocacy
College
Thursday, June 12 and
Friday, June 13, 2025
9:00 am - 4:30 pm
The Advocates’ Society,
2700-250 Yonge St., Toronto ON
Master the art of civil trial advocacy at our
popular intensive two-day workshop. This
hands-on program will test and refine your
skills in case analysis, opening and closing
statements, examination-in-chief and crossexamination.
Limited spaces available!
The workshop is your chance to practise and
refine your trial advocacy skills in a supportive
environment. You will get practical, individualized
feedback from our trained instructors. You will
also learn from your peers as you work through
the interactive exercises in small groups. Please
also note that the workshop requires advance
preparation based on a mock case file, which will
be provided to you in advance of the workshop.
To learn more visit www.advocates.ca
INSIGHTS FROM THE BENCH
Tips on How to Write a
Factum for New Advocates
The Hon. Justice William Hourigan,
Court of Appeal for Ontario
Introduction
For litigators starting their careers, it may seem daunting to create a personal approach to written
and oral advocacy. Over time and with practical experience, you will find that you naturally develop
your own litigation style. When I was starting out, I found much of the literature on advocacy
to be theoretical. Therefore, in this first of a two-article series, I offer a step-by-step guide on how
to prepare a factum. The second article will review several oral advocacy tips that I have compiled
during my 16 years on the bench.
These articles are not intended to be a comprehensive courtroom guide. There is nothing
11

earth-shattering in the advice I am going to offer
about factum writing, but hopefully this article
will help you organize your arguments and
provide the court with a compelling summary
of your client’s position.
Factum Writing
The subject of effective written advocacy could
fill many volumes. For the purposes of this article,
I will focus on one litigation product: the
factum. The Rules of Civil Procedure 1 dictate
when a factum is required. Do not feel restricted
by these limitations. I encourage you to file
a factum any time you are before a court on
anything more than the most trivial of matters.
I vividly recall hearing a family motion as a trial
judge, where the moving party filed about two
feet of affidavit materials. When I inquired why
no factum was filed, the lawyer replied that he
didn’t think the case merited one. The message
was clear: “I cannot be bothered to synthesize
this material and explain why I should win; you
do it.” In contrast, when you file a factum when
it is not required, you are sending a message
to the judge that you want to assist the court in
getting to the right answer.
No judge will admonish you for filing a factum.
Ever. A well-crafted factum aids a judge in distilling
the facts and grasping the issues. An exceptional
factum offers the judge a clear roadmap
for their reasoning. More fundamentally, a
factum presents your first chance to influence
a judge’s perspective on a case. Judges diligently
review written materials before entering the
courtroom. Often, based on their examination
of these materials, they have a solid idea of
their intended course of action, subject to hearing
submissions. Thus, if you choose not to file
a factum, you are placing your client at a significant
disadvantage.
So, you find yourself writing your first factum.
As you stare at a blank computer screen,
you will undoubtedly ask yourself, “Where do I
start?” I offer the following approach, recognizing
that with experience, you will develop your
own practices. Divide your factum into the following
sections: Introduction, Facts, Issues, Legal
Arguments, and Order Requested.
Start by putting together the Issues section.
Identify the key issues that need to be addressed.
Note that I mentioned key issues. You
are well-acquainted with your case and can likely
think of many issues. However, take some
time to determine what the essential issues
are. In the context of an appeal, start this section
as follows: “The issues in this appeal and
the appellant’s position on each issue may be
summarized as follows.” Then, list the issues in
bold type in the form of questions and provide a
brief paragraph under each issue that explains
your stance. For example, issue 1 in your factum
might be articulated as follows:
(1) Did the trial judge err in admitting hearsay
evidence?
Yes. The evidence did not meet any of the
traditional exceptions to the hearsay rule
because... Further, it should not have been
admitted under the principled exception as
it is not reliable because...
The Issues section is the most important part
of the factum. It informs the judge in a page or
two—no longer—what the issues are and your
position on each one. It also determines what
else to include in the factum.
Next, you should compose the Facts section.
While you possess a detailed understanding of
the facts, the judge doesn’t need to know everything
you know. Rather, the judge needs to
grasp only the facts essential to determining
the issues. Therefore, refer to the Issues section
and include only those facts that provide
the necessary context. Be cautious when referencing
facts and ensure you cite the source
in the record. Judges consider missing citations
to the record a red flag; their absence suggests
that the factum presents an unreliable narrative.
This can negatively impact your credibility
with the court. When I observe an orphan fact,
I often note it down and ask counsel about it
during their oral submissions.
After you complete the Facts section, proceed
to the Legal Argument. Here, you must focus on
what the judge needs to decide the case. This
largely involves exercising discretion as you
determine what should be included in the factum
and what can be omitted. You do not need
to cite every case related to an issue. Instead,
emphasize binding authority. Ideally, you have
identified a recent binding authority on which
you can rely. Do not underestimate the influence
of case law from the appellate court in
your province. If you are litigating in Ontario and
there is a relatively recent case on the same legal
issue from the Court of Appeal for Ontario, it
should be prominently featured in your factum.
The best practice is to hyperlink the case to the
relevant paragraph(s). You can quote from the
decision, but avoid lengthy quotations, as they
can distract the reader.
I have two notes of caution regarding case
law. First, if you reference a case, ensure that
it supports the proposition you are citing it for.
Second, if there is binding authority that contradicts
your position, you must cite and distinguish
it. Neglecting these precautions will
undermine your credibility with the court. If a
judge feels they are not receiving an accurate
representation of the law, they will question
where else they have been misled. The use of
dishonest tactics can irreparably damage your
client’s case and your reputation.
Next comes the Order Requested section of
the factum. This may appear straightforward
and uncontroversial, but it often raises complex
issues. For the judge, it is critically important because,
at the end of the day, they must issue an
order. Therefore, they need to know with precision
from the outset what you are asking them
to do and whether they have the authority to
grant the requested order. Obviously, the order
must align with your originating document (e.g.,
notice of motion or notice of appeal).
Finally, you need to distill your argument into
three or four concise paragraphs in the Introduction.
To do this effectively, picture yourself
in an elevator with your gown bag slung over
your shoulder. One of the partners in your firm
is in the elevator and asks what you have in
court that day. Your elevator pitch should briefly
explain what the case is about, the key issues,
and what you are asking the judge to do. Avoid
getting bogged down in the details, as you will
address all these matters in more detail in the
body of your factum.
Conclusion
With that, you have written your first factum.
Now you must prepare for your oral argument,
which will be covered in my next article. Again,
the above order for factum writing is one that I
found useful in my career as an advocate; you
may find that you like to do things a little differently.
Do not hesitate to adopt practices or styles
from other lawyers’ factums. For example, if
there is something you find effective in opposing
counsel’s factum, make a note of it, and consider
incorporating it into your next factum.
Notes
1. R.R.O. 1990, Reg. 194.
13

CASE COMMENT
Muddy Waters:
Determining the Availability
of Judicial Review after the
Court of Appeal for Ontario’s
Decision in Khorsand v.
Toronto Police Services Board
Thomas Russell, Stieber Berlach LLP
The Court of Appeal for Ontario’s 2024 decision
Khorsand v. Toronto Police Services Board 1 helps
clarify the availability of judicial review of administrative
decisions made by public employers
but reveals a gap in the remedies that may
be available to individuals who are harmed by
such administrative decisions.
Judicial review is a public law process that
allows courts to ensure that administrative
decision-makers respect the rule of law. 2
Courts can review decisions based on either the
substance of the decision itself, or the procedural
fairness that the administrative decision-maker
offered the individual. 3 The question of what organizations
qualify as administrative decision-makers,
rendering their decisions subject to judicial
review by the courts, is an ongoing debate.
In the 2018 Supreme Court of Canada decision
Highwood Congregation of Jehovah’s Witnesses
(Judicial Committee) v. Wall, Justice Rowe, writing
for the Court, criticized prior cases that found
that courts could review decisions made by voluntary
associations. 4 Justice Rowe held that this
expanded judicial review power had arisen because
of the courts’ mistaken reliance on a prior
Federal Court of Appeal decision, Air Canada v.
Toronto Port Authority. Air Canada set out a test
that allowed for judicial review when a decision
was sufficiently “public” in nature. 5
Justice Rowe clarified two key points in Wall.
First, judicial review is only available where
there is an exercise of state authority and that
exercise is of a sufficiently public character. 6
Second, the Air Canada test is used solely to
determine when a decision from a public body
is insufficiently public to be subject to judicial
14 15

review (e.g., employment decisions or renting
property). 7 The Air Canada test cannot be used
to find that a decision made by a private body is
sufficiently “public” in nature to become subject
to judicial review by the courts. 8
In August 2024, the Court of Appeal for Ontario
released its decision in Toronto Police. 9 The
case related to Yazdan Khorsand’s application
for employment as a special constable, requiring
the Toronto Police Service (“TPS”) to conduct
a background check. 10 Mr. Khorsand was
informed he had failed the pre-screening process,
so he sought further information. 11
First, Mr. Khorsand made an access to information
request. He received only a partial record
in response, which included a record of
his previous interactions with the police. Notably,
this record did not disclose any criminal
behaviour, but it did include references to Mr.
Khorsand’s race. 12 Mr. Khorsand subsequently
pursued judicial review of the TPS’s pre-screening
decision, arguing that the decision, and the
TPS’s refusal to provide all the information it
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relied upon in making the decision, violated his
right to procedural fairness. 13
The issue before the courts in Toronto Police
was whether the TPS’s pre-screening decision
was subject to judicial review. The Ontario Divisional
Court found that the pre-screening decision
was made by a public body and was public
in nature, and thus subject to judicial review. 14
This was based not only on the statutory nature
of the TPS’s decision-making powers, but also
the public importance of the decision itself. The
decision could potentially perpetuate discrimination
in law enforcement and undermine public
confidence in the police. 15
However, the Court of Appeal overturned
the Divisional Court’s decision. 16 It found the
TPS’s pre-screening decision was private in
nature because, as per Wall, it was an employment-related
decision. 17 The Court of Appeal
rejected the argument that the impact of the
decision on a broad segment of the public
made it sufficiently “public”, and hence subject
to judicial review. 18
At the time of writing, an application for
leave to appeal the Court of Appeal’s decision
in Toronto Police has been filed with the
Supreme Court of Canada. 19 However, if this
decision stands, it exposes a gap in the remedies
available to individuals harmed by administrative
decisions.
A theme in Toronto Police was the possibility that
the TPS’s pre-screening decision was discriminatory.
20 That could be true, but the basis for the
decision was unknown and only the spectre of
discrimination was before the courts. Without
disclosure of the full basis for the pre-screening
decision, it is unclear how Mr. Khorsand could
bring any potential discrimination to light.
If, for example, Mr. Khorsand went before the
Human Rights Tribunal of Ontario, the tribunal
would require prima facie evidence that the decision
was based upon an enumerated ground
in the Human Rights Code. As stated in a recent
case, “[t]o come within the Tribunal’s jurisdiction,
the applicant must provide some factual
basis to link the respondents’ conduct to their
Code-enumerated ground. A bald assertion that
the adverse treatment they received was owing
to their enumerated ground is not enough to
provide the required factual basis.” 21
It is also unlikely that Mr. Khorsand would succeed
in a Charter application. He would need to
demonstrate that a Charter right or value was
infringed by the decision, 22 which would be difficult
when the basis for the TPS’s decision remains
unknown.
Finally, Mr. Khorsand would likely experience
great difficulty if he attempted to bring his
claim by civil action in the hopes of obtaining
evidence through the documentary discovery
process. First, there are the considerable costs
and delays associated with seeking a private law
remedy. Second, and arguably more important,
it is not clear that Mr. Khorsand would have a
viable cause of action to allow him to get past
the pleading stage. 23
Prior to Wall, courts allowed judicial review
of decisions made by organizations as diverse
as sports teams, 24 political parties, 25 and religious
organizations. 26 These prior decisions
emphasized that no one is above the law, and
provided broad options for remedies through
the courts for individuals whose rights to procedural
fairness were violated by an administrative
decision maker.
However, Toronto Police applied Wall to state
that “the purpose of judicial review is to ensure
the legality of state decision making,” 27 not any decision
that impacts a broad segment of the public.
While Toronto Police has restricted the availability
of judicial review, potentially freeing up court
resources, it also creates a gap that may immunize
some decision makers from judicial review
of their actions. Mr. Khorsand was left unable to
pursue his career, potentially on the basis of racial
discrimination. Without the availability of judicial
review, and given the challenges posed by private
law remedies, he is left with no meaningful way to
challenge the decision or bring the processes that
led to the decision to light.
We should consider whether Toronto Police
demonstrates that the gap left by Wall may
leave Canadians unable to challenge certain decisions
despite procedural unfairness, removing
public scrutiny when the public might rightly
expect a remedy.
Notes
1. Khorsand v. Toronto Police Services Board, 2024 ONCA 597, [“Toronto
Police - ONCA”].
2. Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v.
Wall, 2018 SCC 26, at para. 13 [“Wall”], citing Knox v. Conservative
Party of Canada, 2007 ABCA 295, at para. 14; The Constitution Act,
1867, 30 & 31 Victoria, c. 3 (U.K.), s. 96.
3. Wall, supra note 2 at para 13.
4. Ibid, at paras. 17-20. The line of cases criticized regarding the
availability of judicial review to churches being Lindenburger v.
United Church of Canada (1985), 10 O.A.C. 191 (Div. Ct.) and Davis
v. United Church of Canada (1992), 1992 CanLII 7731 (ON SC)
(Gen. Div.). The line of cases criticized regarding the availability
of judicial review to voluntary associations being Graff v. New
Democratic Party, 2017 ONSC 3578; Erin Mills Soccer Club v. Ontario
Soccer Assn., 2016 ONSC 7718; West Toronto United Football Club v.
Ontario Soccer Association, 2014 ONSC 5881; Setia v. Appleby College,
2013 ONCA 753 .
5. Wall, supra note 2, at para. 21; Air Canada v. Toronto Port Authority,
2011 FCA 347, at para. 60 [“Air Canada”].
6. Ibid, at para. 14.
7. Ibid, at paras. 14 and 20-21.
8. Ibid at paras. 20-21.
9. Toronto Police – ONCA, supra note 1.
10. Ibid, at paras. 15-20.
11. Ibid, at para. 22.
12. Ibid, at para. 23.
13. Khorsand v Toronto Police Services Board, 2023 ONSC 1270, at
para. 3 [“Toronto Police – ONSC”].
14. Ibid, at paras. 52 and 80.
15. Ibid, at paras. 64-79.
16. Ibid, at para. 79.
17. Toronto Police – ONCA, supra note 1, at paras. 78-84. Although it
is not relevant to the point being made in this article, this author
acknowledges that the Court of Appeal also felt that the nature of
the information relied upon by the TPS made the pre-screening
decision unsuitable to judicial review. The Court noted that some
information relied upon by the TPS in making the pre-screening
decision is highly sensitive law enforcement information. In these
circumstances, it is more appropriate to determine whether information
must be disclosed by reference to sophisticated statutory
schemes already in existence. See Toronto Police – ONCA,
supra note 1, at paras. 99-109.
18. Toronto Police – ONCA, supra note 1, at paras. 85 – 90. .
19. See SCC Docket for Leave to Appeal, Docket no. 41481.
20. Toronto Police – ONSC, supra note 13, at paras 70-79; Toronto Police
– ONCA, supra note 1, at paras. 86-98.
21. Teshale v. Sunnybrook Health Sciences Centre, 2024 HRTO 1037,
at para. 28.
22. Law Society of British Columbia v. Trinity Western University, 2018
SCC 32, at paras. 60-75; Trinity Western University v. Law Society of
Upper Canada, 2018 SCC 33, at paras. 31-32. See also Loyola High
School v. Quebec (Attorney General), 2015 SCC 12, at paras. 39 and
113-114; and Doré v. Barreau du Québec, 2012 SCC 12, at para. 57.
23. Possible contenders for a cause of action include the Tort of Misfeasance
in Public Office, the Tort of Abuse of Process, and the
Tort of Civil Conspiracy. (1) The Tort of Misfeasance in Public Office
is likely unavailable as it requires establishing deliberate and
unlawful conduct on the part of a public officer with awareness
that their conduct would harm the Plaintiff, See, Ontario (Attorney
General) v. Clark, 2021 SCC 18 (CanLII), [2021] 1 SCR 607, <https://
canlii.ca/t/jfnmp> at para. 22; Odhavji Estate v. Woodhouse, 2003
SCC 69 (CanLII), [2003] 3 SCR 263, <https://canlii.ca/t/1g18n> at
para. 23. (2) the Tort of Abuse of Process is likely unavailable because
it does not allow liability where a defendant merely employs
regular processes to its proper conclusion, even if done
with bad intentions, see, Harris v. GlaxoSmithKline Inc., 2010 ONSC
2326 (CanLII), <https://canlii.ca/t/29fwr> at para. 70; Konstan v.
Berkovits, 2024 ONCA 510 (CanLII), <https://canlii.ca/t/k5hkm> at
para. 27. (3) The Tort of Civil Conspiracy would either require, as
a component, establishing that the predominant purpose of the
defendants action was to cause injury to Mr. Khorsand, or that
the actions of the defendant was unlawful, which it does not appear
could be achieved on the facts in this case, see, PMC York
Properties Inc. v. Siudak, 2022 ONCA 635 (CanLII), <https://canlii.
ca/t/jrrwm> at paras. 69-70; Robins v. 2758729 Ontario Inc. et al,
2023 ONSC 4367 (CanLII), <https://canlii.ca/t/jzfkl> at para. 29.
24. West Toronto United Football Club v. Ontario Soccer Association,
2014 ONSC 5881, at paras. 27-29.
25. Graff v New Democratic Party, 2017 ONSC 3578, at para. 37.
26. Davis v. United Church of Canada, 1992 CanLII 7731 (ON SC) (Gen.
Div.).
27. Wall, supra note 2, at para. 13.
17

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TRIAL TIPS
Lessons from the Trenches:
My First Trial Experience
Christina A. Di Lella, MayLex Litigation
The senior partner pops into your office (or sends you a Zoom invitation, as is common practice now)
to talk about running your very own trial. Your heart skips a beat in elated anticipation, and your palms
are laced with sweat as you suddenly realize the responsibility that falls into your lap. Preparations
only get you so far. The legal industry provides a landscape that to some extent can only be learnt
through trial and error. Once you jump in, you must learn to swim quickly.
At the time of my first trial, I was working alongside one of the top criminal lawyers in Toronto,
Ontario. The client faced a criminal conviction, as well as serious repercussions regarding his future
employment and his ability to travel abroad. The principal lawyer asked me to run this trial
on my own. I was equally as excited as I was terrified. This case was a fight for social justice. It
involved a significant breach of the client’s right to safety and security of his person: he had been
subjected to racist remarks and suffered injuries from excessive force applied against him.
Over four days in the Brampton Ontario Court of Justice, I cross-examined five police officers
with the goal of succeeding on an exclusion of evidence defence. Two months later, the judge
ruled in my favour. I share the following seven lessons with young advocates who find themselves
taking on their first trial.
19

1. THE STOICS GOT IT RIGHT
Marcus Aurelius stated, “Be confident in your own abilities. Believe in yourself, and others will believe
in you too.” Your confidence in presenting your client’s narrative dictates your audience’s faith and
trust in you. There were many moments in my trial where I believed certain facts to be true based
on my review of the evidence and my client’s version of events. However, the Crown, witnesses and
judge consistently challenged my interpretation, understanding and knowledge of the case.
This caused my confidence to falter at times as I battled with imposter syndrome. Do
not allow the experience or stature of your opponent to undermine your belief in
your case. Your convictions and robustness may be the reason opinions are
altered, and things start to go your way.
2. BEGIN AT THE END
Write the closing argument at the beginning of your trial
preparation. This provides a roadmap, keeping you focused
on your end goal. It will also help you prepare for examinations,
allowing you to fully flesh out all supporting evidence
required to bolster your position and prevent you
from getting lost in irrelevant details.
3. THE 85% RULE
When something comes out of left field at trial (and
it will), remaining calm, relaxed and fluid enough to
react strategically will give you a competitive advantage.
On the second day of my trial while driving to
the courthouse, I stumbled upon some unanticipated
advice just when I needed it most. Two radio station
hosts were discussing the 85 percent rule: giving 85
percent effort instead of 100 percent, in theory, allows
for a relaxed mind to tap into greater productivity and
creativity. Employing this technique on the second day
of my trial, I noticed I had more energy, could recall facts
at a moment’s notice and moved seamlessly throughout
my cross-examinations without skipping a beat. Trusting in
your preparations and focusing on the present moment creates
space for you to become a more dynamic lawyer.
4. DO NOT MISS THE FOREST FOR THE TREES
Preparing for trial requires examining vast amounts of information and breaking
down segments into tiny pieces. Clarifying the central pivot point in your case is crucial to
employing your time and energy effectively while utilizing the strongest pieces of evidence to support
the crux of your argument. Always keep the big picture of what is at stake and what you need to
prove at the forefront of any deep dives you conduct when going through the evidence.
CONCLUSION
Trials are terrifying, exhilarating and challenging moments in your legal career, especially when
you are facing your first solo battle. They are also fun and rewarding, even when you are a novice.
I hope my experience highlights the potential challenges and lessons learned for anyone
taking on their trial. It is well worth the journey.
7. THE HARDER THE BATTLE,
THE SWEETER THE VICTORY
On the final day, running on just three hours of sleep, I felt deflated
by the constant interruptions and questions from the trial judge;
70 percent more questions were directed at me than to the
Crown. I left the courthouse thinking I had lost. In hindsight,
I realized the judge was laying the groundwork to rule in
my client’s favour. Although it is challenging to anticipate
every question a judge may ask you, your goal should
be to answer in a way that assists their understanding.
In my experience, the more the trier of fact attempts
to understand, the more questions they will ask. Do
not see this as a negative reflection of your work or
any indication of how they might rule.
6. STORYTELLING: THE ART OF A TRIAL
A compelling story relies heavily on tone, and the
same applies to a trial. After initially reviewing the
evidence, take a step back to identify any characters
who set the tone for your argument. In my case, there
was one officer whose actions and words captured in
the body camera footage set the tone for events that
followed, and the judge relied on this officer’s actions in
finding excessive force. Leveraging evidence that strongly
supports your argument emotionally is a powerful way
to strengthen your case.
5. MAY THE RECORD REFLECT…
The most important aspect of cross-examination is ensuring
that the statement, assertion or opinion you are trying to get from
a witness is stated on the record. When starting out, it is easy to become
wrapped up in the script you have prepared and lose sight of your
objective. As a recent call and someone new to examinations, it was only through
hindsight that I learned the valuable lesson: the judge will only rely on the evidence admitted
onto the record. Slow down and take your time to ensure that everything needed to
prove your case is on the record because there is no going back.
20 21

RHYME & REASON
Lyrical Limitations:
A foretaste of the
Versified Law Reports
Mohammed Elshafie,
Conway Baxter Wilson LLP/s.r.l.
Mohammed Elshafie orally delivered this “versified law report” on the case of Bank of Montreal v
Iskenderov, 2023 ONCA 528 at the Carleton County Law Association’s Civil Litigation Conference on
November 15, 2024 at the “6 under 6 for 6” panel (6 lawyers under 6 years of call each presenting on
a case for 6 minutes) in Mont Tremblant, QC. Mohammed received a standing ovation.
I sing not war, peace, love, or ancient fact
My song is of the Limitations Act.
But ere I tell my tale, oh, Legal Muse
Nomos by name I pray, do not refuse
Success to him who, by sweet charm or curse,
Vowed to a mentor to present in verse.
And give me, Nomos, for why should you not?
The fire that moved the heart of Frank R. Scott.
When creditors’ conveyances defy
As fraudulent, what time limits apply?
Do such claims for 10 years remain intact
Per the Real Property Limitations Act?
Or must all Plaintiffs’ hopes, Defendants’ fears
Expire at the end of but two short years?
Roufat Iskenderov obtained a loan
From BMO by claiming for his own,
The income that he thought he well deserved
But did not have. Then love’s term being served,
His matrimonial bliss came to its doom
And his wife’s share, the matrimonial home,
Mr. Iskenderov duly conveyed
And nothing since toward his loan was paid.
The BMO let five long years subside,
Then sought to set this conveyance aside.
Under the Fraudulent Conveyances Act.
Iskenderov, moved by ire and by tact
Cried “Two-year limitation!” and summarily sought
This claim to dismiss and prompt invoked
The two-year limit of the Limitations Act.
The bank, no less ingenious than its foe,
Met Act with Act and prompt responded “No!
This claim seeks the conveyance to negate
And 10 long years is its appointed date,
per the Real Property Limitations Act.”
The motion judge by appellate precedent, bound,
Uttered the name of Anisman and found
The RPLA to apply. Therefore,
The claim he held to have been timely brought.
Iskenderov appealed, pleading that Anisman
in which the ONCA said no more
Than “we affirm,” Bound not the motion judge,
And that the two years’ limitation held
Of this as other claims. The Appeal Court
For Ontario, moved by the magnitude
Of argument that sought to overturn
Its precedent, five judges then convened
To bring this thorny question to an end.
Oh, Legal Muse, would that I had the time
To sing their praise or make their names to rhyme!
But let them who judicial merit know
Think towards Feldman JA who did their reasons show.
The appeal heard, the BMO replied,
“Tis but the law the motion judge applied!
Witness the many lower court decisions
And Anisman, which though brief, lacked not precision.”
In silence for a moment the judge sate,
As Jove when asked to tell Achilles’ fate.
And, raising eyes, as fair as they were just,
I have it on good authority “I must!”
She said, “I must reject the Bank’s ingenious reasons.
This suit has no more right to a longer season
Of life than the two years fixed for other claims.
In days of yore, there was no limitation
On claims of fraud and nowhere was it said
That the RPLA supplied a limit
Of 10 years on these claims. Now, when this Law,
The 20-year-old Limitations Act
Was once proclaimed, the lower courts were rift.”
Some thinking that the global limit ruled
And some, turning to the RPLA,
Supposed the 10 year limitation as true.
A claim that a conveyance is a fraud
Does not attach to the real estate itself,
But to the alleged fraud. The creditor
Has no more right than other mortals do
To the land itself. Logic, the mother of law,
Does not permit this judgment then to stand.
Anisman was as binding on the court
As any other appellate decision.
‘Tis not by length that precedent is weighed.
But with the lower judgment ‘tis overruled.
“Mais non ! Mais non !” The BMO exclaimed.
With high bilingual ire well inflamed
« Que devient-il de notre juste demande ? »
« La sagesse des temps anciens » a répondu
La juge a dit « qu’un procès tardif
Comportait ce risque très grave et lourd. »
Or, in English, this proverb for to state:
“Who sues at leisure must repent in haste.”
22 23

Q: Back in 2013, you described your career at that point (4 years in) as “challenging, exciting,
and fun or (depending on the day), mystifying or terrifying.” How has that changed?
A. The “challenging, exciting, and fun” adjectives are still there, for sure. I am much less mystified
and terrified though, and I now enjoy helping others through the things I used to feel mystified
and terrified about.
I remember being told that after about five years as a lawyer I would start feeling more comfortable
about the day-to-day of litigation, and for me, that was very much the case. I think it’s similar
to the idea of it taking 10,000 hours to master anything; once you hit that point—especially if
you’re in a good place and work with supportive people—you can take on more and more responsibility
until you are leading your files.
THEN & NOW SERIES
YASC Interview with
Yashoda Ranganathan
Compiled by
Folu Adesanya, Whitelaw Twining (Ontario) LLP
and Michael Hodgins, MD Lawyers
Q: What was it like transitioning from private practice to MAG? Is there anything about
working for MAG that would surprise someone in private practice?
A: It was seamless in some ways because the Constitutional Law Branch (“CLB”) where I work feels
like a litigation boutique. We are about 20 lawyers and although we do some advisory work, we are
primarily litigators. I now deal with substantive issues in constitutional law, but the skillset needed to
be a good litigator and solve litigation problems are the same.
One thing that has been different and you don’t get in private practice is that, even though many
people in private practice are generous with their time, at a certain point you can’t be spending
time on someone else’s file. At CLB, I have very supportive colleagues, and we spend a ton of time
brainstorming and workshopping difficult problems together. It is a fun and interesting way of
working collaboratively that I really enjoy.
Yashoda Ranganathan (she/her) is Senior Counsel in the Constitutional Law Branch, Civil Law Division
of the Ministry of the Attorney General Ontario. Prior to joining MAG in 2014, Yashoda was an
Associate at Lenczner Slaght Royce Smith Griffin LLP. She has argued cases at all levels of Court in
Ontario, as well as in the Alberta Court of Appeal and Supreme Court of Canada.
Yashoda has held many roles at The Advocates’ Society (TAS), including four years on YASC, of
which one was as Chair, serving as a member of TAS’s Diversity and Inclusion Steering Committee
since 2020, and, since 2024, as a member of the Board of Directors. Yashoda also sits on the
Antiracism Committee of the Association of Law Officers of the Crown.
**The views expressed in this article are Yashoda’s own and not those of the Ministry of the
Attorney General or the Government of Ontario.
Q: In 2013 you were asked what living lawyer
you admire the most and answered
Brendan Gray. Is that still the case or is
there someone now tied with Brendan?
A: I still really appreciate Brendan, but funnily
enough a colleague of Brendan’s recently
joined CLB, and I really admire her – her
name is Cara Zwibel. Cara was at the Canadian
Civil Liberties Association and the Office
of the Information and Privacy Commissioner
of Ontario before joining MAG. Cara
brings an easy-going openness to learning
this new job while having such an incredible
wealth of knowledge and experience. We
are so lucky to have her.
Q: What is your greatest achievement?
A: In 2013 I said it was applying to law
school in my 30’s. Now I’ll add joining the
Board of The Advocates’ Society.
Q: Is your favorite drink still a cosmo?
A: No, that’s funny. My drink tastes have
evolved. I got really into cocktail mixing
during the pandemic. Today my favorite
drink is a classic gin martini
with olives.
24 25

Q: You got there before us – can you tell us about the work you’ve done with TAS and how it has
helped your career?
A: Being a part of TAS has been one of the most important things for my career right from the beginning.
At first, it was attending programs and meeting people who made me feel connected to my
community of advocates. Then, I started to get involved with YASC and eventually worked my way to
YASC Chair. When I finished with YASC, I continued on the Diversity and Inclusion Steering Committee
and started doing teaching, which helped me to stay connected with the organization.
As a matter of fact, my move to government was in part through the connections I made within
TAS. I recommend getting involved with TAS to every young advocate. It’s one of those things
where the more you put in, the more you get out.
Q: In 2013, you said your most marked characteristic
was your ability to connect with others.
Is it still? If so, how do you think it helps you be
a better lawyer?
A: I think that’s probably still the case. I think it makes
me a better lawyer in instances where I’m able to see
how the human element might be playing into someone’s
position. For example, when working with clients,
it really helps to be able to read how they might
be feeling and acknowledge it. It allows you to gain
their trust which can be helpful when you are giving
them advice or preparing them for litigation.
The ability to connect with people helps in court
too. For example, being able to sense that a judge
has additional questions and to show through a
pause or body language that you can assist. That
enhances your ability to be persuasive. If you’re a
person with good people skills, you should bring
those skills to your lawyering.
Q: Your motto in 2013 was
“Just Surrender”. What does
that mean and how does it
help you professionally?
A: The idea is that when you
are feeling anxious or worried
about things that are happening
in your practice, to just step
into the present and be open to
the work that you need to do in
the given moment. It’s that simple,
but not that easy. If you can
remind yourself to surrender, it
makes life and litigation more
fun. And litigation is supposed
to be fun!
Q: In 2013, Jarvis v. Swan Tours was your favourite case. What about today?
A: I still really like Jarvis v. Swan Tours, but today my answer would be Toronto (City) v. Ontario (Attorney
General), 2021 SCC 34. It’s a case I litigated with my colleague Robin Basu all the way from
the Superior Court to the Supreme Court of Canada and was the first time that I got to argue in
the Supreme Court of Canada.
Connect on the
TAS Mentoring Portal
Q: Is that advice that you would give
junior lawyers?
A: That’s actually something I tell more
junior lawyers that I work with often. Remember
that litigation is supposed to be
fun! When you go to court, and you’ve done
your preparation, it’s time to let the preparation
do its work and have some fun. Tell
yourself “I’m going to have fun answering
questions, I’m really prepared’, and surrender
all of the other stuff.
Q: Last one: What is your idea of perfect
lawyerly happiness?
A: Probably either being in court arguing
an interesting case with good colleagues,
or going to lunch with those colleagues after
you’ve done a great job. That moment
when you are answering the tough questions
from the bench that you’ve prepared
for. That’s pretty fun.
EXCLUSIVELY FOR TAS MEMBERS
CLICK HERE TO SET UP YOUR ACCOUNT
As part of our “Then & Now” series, the editorial team is reviewing articles from the early
days of Keeping Tabs to find out what’s changed, what’s stayed the same, and what’s
new. Yashoda’s previous interview from 2013 can be found here.
27

YASC Kingston Social
January 23, 2025 | Kingston, ON
Thunder Bay Fireside Chat
March 6, 2025 | Thunder Bay , ON
28 29

The Advocates’ Society BC in Bloom Gala
March 6, 2025 | Vancouver, BC
30 31

The Advocates’ Society BC in Bloom Gala
March 6, 2025 | Vancouver, BC
Emily Dishart and Jenna Green speak about YASC
Floral Sponsor:
32 33

www.advocates.ca