Advocacy-Matters-Spring-2025

ADVOCACY MATTERS
The Advocates’ Society
SPRING 2025

CONTENTS
TAS Video Collections
TAS Video Collections is a library of professional development programs
that you can rent and watch from the TAS website. Members, sole
practitioners, government lawyers, and litigators at small firms can
also take advantage of discount pricing .
Artificial Intelligence for Litigators
The award-winning Artificial Intelligence for Litigators series will get you up to speed on how rapid
advances to AI are impacting litigation practice. Click here to view the full collection.
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Govern Yourself Accordingly!
Megan Keenberg, Keenberg & Co
Upholding Public Trust:
Managing Client Capacity in Litigation
Jennifer M. Bolduc, McLeod Green Dewar LLP
Reviewing Someone Else’s Writing –
An Acquired Skill
Kristen Duerhammer, KPMG Law LLP
Nine Tips to Maximize Value for your
Clients in Mediation
Jennifer Egsgard, Egsgard Mediation
The Happy Lawyer Project -
Take a Walk on the Client Side
Lisa Marie Buccella, Aviva Trial Lawyers
Setting Up for Success in Arbitration
Laura Bevan, Lawson Lundell LLP and Megan Keenberg, Keenberg & Co
Successfully Integrating Lateral Hires (or How
Not to Lose a Lateral Hire in 10 Days)
Christine Muir, Norton Rose Fulbright Canada LLP
and David Thompson, Carroll Heyd Chown LLP
Interview with Benjamin Kates, WeirFoulds LLP
Compiled by Laura Bevan, Lawson Lundell LLP
www.advocates.ca
Editor: Megan Keenberg, Keenberg & Co | Deputy Editor: Joe Thorne, Stewart McKelvey
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
Advocacy Matters Editorial Team: Lisa Marie Buccella, Laura Bevan, Jennifer Bolduc,
Kristen Duerhammer, Omolara Oladipo, Wade Poziomka, David Thompson
3

CIVILITY
Govern Yourself Accordingly!
Megan Keenberg, Keenberg & Co
They say you never really know what’s happening in another person’s life. From the outside, I’m rock
steady. I’m the person you call when you need a person to call. “Good in a crisis”, I’m told. It takes a lot
to knock me off my footing. But it happened. Over the winter break, I broke a little bit.
When it happened, it happened all at once, but it had been brewing for years. In 2019, the unexpected
death of a close family member. In 2020, a global pandemic. In 2023, a high-stress partnership
dissolution. Post-October 7, 2023, a number of fractured or severed relationships lost to the rising
tide of antisemitism. In 2024, an aging parent in failing health underwent serious surgeries. That
same year, a big fat scary medical problem for
me. This was all on top of the ordinary practice
pressures that we all face as litigators, and the
standard unspoken horrorshow that is perimenopause
(IYKYK).
By the end of 2024, I was wound tight as a
drum. And, of course, I chose this moment in
my life to quit smoking. Great time to deprive
myself of a habitual coping mechanism.
I had a case with some thorny procedural issues
set for hearing dates in mid-January 2025. I
had a service deadline of December 27 that I was
working towards, but my work was interrupted
on December 23 with a call from my panicked
dad whose shocking personal emergency jeopardized
his fragile cardiac health. As I packed for
my flight to be by his side, I contacted opposing
counsel requesting an extension to my service
deadline, citing a family emergency.
I was met with a flurry of emails that devolved
into questions about which motions
were in fact scheduled for January. The court
had previously offered us a date for a case
conference that had not been booked. I proposed
booking that offered date as a case
conference to seek directions and get a new
timetable in place, and releasing the January
hearing dates. Opposing counsel stated that
his intention was to proceed on the scheduled
hearing dates unless there was some
good reason for not doing so. I responded
that the good reason for not doing so was the
family emergency I was experiencing.
After more emails poured in debating the
merits, I responded from my cab on the way
to the airport: “Merry Christmas! I appreciate
you both being understanding about a family
emergency during what is meant to be a happy
holiday time. I will revert in the new year.” This
was my way of willing the conduct I wished
for into existence. A bit cheeky, but it silenced
them for the remainder of 2024.
4 5

In the meantime, I finally completely and totally
burned out. My dad’s emergency, and my
‘ruined’ winter break was the last straw. My
inner reserves were depleted: I couldn’t sleep,
I couldn’t concentrate, I couldn’t work, and I
couldn’t stop crying. Like, 20 hours a day of
crying. Crying to the point of dehydration.
We set a case conference in the new year
on the date offered as I had proposed, but instead
of appearing before our case management
judge to sort out our procedural pathway,
it was used as an informal motion for
a contested adjournment before a different
judge with no prior involvement in the case.
I felt compelled to attend with my associate,
knowing that if I sent her alone, my absence
could be used as an argument to deny our requested
adjournment on the grounds that my
associate could simply argue it in my stead.
This was a very complex case, and my associate
was newer to the file. It was not an appropriate
case to delegate.
Opposing counsel made arguments about urgency
and sought terms on the adjournment
- substantive concessions that would have a
meaningful impact on my client, which I resisted.
The judge applied pressure, lamenting the
waste of court dates in the midst of the backlog.
In order to assess whether such a waste
was warranted, the judge asked me to describe
with particularity the nature and severity of my
family emergency. I could see my own face on
the zoom screen, it was flushed red and shiny.
Was I sweating? No. I was crying. Unbeknownst
to me, tears were streaming down my expressionless
face as I basically disassociated.
“What is the nature and severity of your
emergency?” (Um, well, Your Honour, where
shall I begin? Perhaps with me crying in your
courtroom?) I stammered something as I tried
to walk the fine line of letting the court know
that I was dealing with an acute crisis, while
also trying to maintain a modicum of personal
dignity and privacy in open court, in front of
opposing counsel, and in front of my employee
and mentee.
I got the adjournment, with hearing dates rescheduled
six weeks out. However, I was only
given a week’s grace to deliver my materials,
and the new hearing dates were made peremptory
at the request of opposing counsel,
despite no prior pattern of delinquency beyond
this one requested adjournment. Both
my client and I were punished.
It never should have come to this. There’s a
lot of lip service paid to the promotion of mental
health and wellness in the profession, but
we need to do better. We need to stop making
counsel sacrifice their health, their dignity and
their sanity in service to clients and courts. I
have no doubt that opposing counsel were
carrying out what they considered zealous
advocacy in line with their duties to their clients.
Likewise, I have no doubt that the judge
was just trying to protect the vanishingly scant
court resources available to litigants. But our
well-being matters too. Our needs can’t always
take the backseat.
So, the next time a lawyer asks for an extension
on a deadline or an adjournment of a
court date due to a personal emergency I suggest
the following easy to remember threestep
approach:
1
2
3
Assume the lawyer is dealing with some
heavy stuff and understand that the details
of it are really none of your business;
Assume the lawyer is not lying for personal
gain but instead is abiding by
their professional duties under the
Rules of Professional Conduct and as an
officer of the Court; and
Give the extension or adjournment on
consent.
That’s all. Until next time, govern yourself
accordingly!
CHOOSE FROM CANADA’S TOP
MEDIATORS AND ARBITRATORS
The Honourable
Michael Phelan
Retired Federal Court Justice
Michael has expertise in disputes
related to indigenous matters,
intellectual property, competition law,
environment, labour, human rights and
transportation. He has been involved in
matters involving federal laws and
regulations and has dealt with major
federal tribunals, federal regulatory
departments, government agencies,
government contracting, federal policy
making and legislative enactments.
Allan J. Stitt
Allan has mediated and arbitrated
complex disputes for over 30 years. He
specializes in commercial, partnership,
employment, insurance, sports,
transportation, tax and construction
disputes. He is a past President of the
ADR Institute of Canada and a past
Chair of the Sports Dispute Resolution
Centre of Canada. He is also a
Distinguished Fellow of the
International Academy of Mediators.
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416.362.8555 • 1.800.856.5154 • booking@adr.ca • adrchambers.com

LITIGATION
Upholding Public Trust:
Managing Client Capacity
in Litigation
Jennifer M. Bolduc, McLeod Green Dewar LLP
As lawyers we hold a duty to protect our clients’ interests. This duty forms part of the basis of
the public’s trust in the legal profession. The public’s trust in us is vital when we seek out their
instructions, regardless of the area of law involved. To continue to demonstrate that we deserve
the public’s trust, we must ensure our clients possess the capacity to provide us with instructions
and how we can make sure their interests are always protected.
In situations involving questionable client capacity there are multiple factors to consider. These
include a determination of our client’s capacity, any potential accommodations which may as-
sist in our representation of the client, our duty
of confidentiality, and ensuring protection for
both ourselves and for our clients. The Law Society
of Ontario provides an extremely valuable
guide for counsel to consider when facing the
issue of client capacity, offering a framework to
navigate these complex situations. 1
It is important to note that capacity issues can
arise from various sources, not only age. Additional
sources of questionable capacity can
arise from mental or physical health challenges,
undue influence, duress, and/or substance
use disorders. As one example, a client may be
capable of making decisions about their living
arrangements following a catastrophic accident
but also lack the capacity to navigate potentially
complex personal injury litigation and/or the
financial intricacies involved in a forced sale of
their company. It is essential that we also distinguish
between poor judgment and incapacity.
Regardless of what we may think from time
to time “[t]he belief that an individual is making
a foolish or reckless decision does not, in and
of itself, lead to a determination that the client
lacks the capacity to provide legal instructions
or manage their legal affairs.” 2 The fine line between
a bad decision and the inability to make
a proper decision underscores the value of
properly educating ourselves regarding the assessment
of our clients’ capacity.
There are third-party options available when a
client has been deemed incapable of providing
us with instructions, to protect their interests,
like the appointment of a litigation guardian
or the Public Guardian and Trustee. However,
more challenges arise when our client’s capacity
falls into a grey area, leaving us unsure about
our client’s ability to provide us with instructions.
In such cases, seeking out assistance from
a trusted mentor or colleague, or the Law Society’s
Practice Management program, is crucial
to protect not only our client but also ourselves.
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In grey zone cases, a client’s capacity may fluctuate
based on various factors. Therefore, the client’s
capacity to instruct counsel will depend on
the circumstances of the case, the type of case,
and the relevant legal threshold. As one example,
a family law client may be unable to provide
settlement instructions immediately following
an in-person court appearance where they were
faced with an abusive former partner but then
may later regain their capacity once recovered.
As a second example, a client in the early stages
of dementia may have consistent periods of clarity
in the morning which allow them to provide
proper instructions for updating their will.
The involvement of a litigation guardian or the
Public Guardian and Trustee can also engage
competing duties. We must balance the disclosure
required to obtain any necessary assistance
for our clients with their right to confidentiality.
In such cases, having a clear understanding of
who the client is will be key to properly navigating
the tightrope of protecting the client’s privacy
and best interests, while also moving matters
forward in a meaningful way.
Most importantly, we must guard against any
temptation to take advantage of a situation such
as this. There are Law Society Tribunal cases
which provide examples of our colleagues who
have placed their own interests ahead of those
of a compromised client. While it may be tempting
to push for a settlement so that you may finally
be paid or to do the opposite and lengthen
litigation (and fees payable), such actions only
serve to place that lawyer in disrepute. Our
commitment to upholding public trust is deeply
linked with our ability to manage client capacity.
Understanding capacity, engaging supports and
assessments where necessary, and protecting
our clients’ interests and confidentiality ensures
that our clients receive the highest level of service
which retains the integrity of our profession
and the public’s trust.
Notes
1. https://lso.ca/lawyers/practice-supports-and-resources/topics/the-lawyerclient-relationship/guide-to-navigating-client-capacity-concerns
2. Ibid.
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Reviewing Someone Else’s
Writing – An Acquired Skill
Kristen Duerhammer, KPMG Law LLP
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Graduating from drafting the first cut of a written argument to reviewing a completed draft
sounds glamorous. After all, we’re now getting the work product after someone has done the
heavy lifting of thinking through the problem, developing an argument, expressing that argument
in writing, and dealing with finicky citations and formatting. Our role should be easy.
In reality, reviewing is a different skill than writing and poses its own challenges. On the next
pages are some reflections from my own experiences and mistakes in the transition from drafter
to reviewer.
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Embrace a different way of learning your file
The upside of tedious drafting tasks is that they
help you internalize the documents, sources, and
details in a file. Now that someone else’s time is
spent on those tasks, you need a new and efficient
way to become familiar with the details. This
may be through marking up your own set of documents
by hand, making a summary sheet of the
relevant cases and arguments, or talking through
your case out loud.
Cultivate a style that works for your relationship
Reviewing, like writing, comes in different styles.
Some reviewers may prefer to edit a draft extensively
until it aligns with their own writing style
like to take a red pen to a draft until it resembles
something they would have drafted themselves.
Others may focus on key structural and strategy
points and overlook stylistic differences. Some
reviewers may like to use tracked changes. Others
may prefer to leave descriptive instructions in
comment bubbles. Your own style may vary based
on your relationship with the drafter, their level of
experience, and the dynamics of the file.
Let your goals focus your review
Before you start your mark ups, consider your
goals for this draft. Is this an early draft to hone
your theory of the case? If so, you may decide to
restrict your comments to high-level structure
and reserve stylistic comments for a later draft. Is
there a certain argument that needs stress-testing?
This may call for a deep dive into the statements
and sources for that argument, with the output
being a series of questions for the drafter to consider.
Is the review for style to reflect your firm’s
brand? Tracked changes may be best to display
those updates.
Bandwidth to consider comments is finite
Each comment demands time and energy from
the drafter to consider and address, which can divert
their focus from other areas. You may need
to be selective. The timing and scope of review
can determine what types of comments are most
valuable. A review of an early draft is likely not the
time to remove periods in footnote citations, and
a final review of a draft on the filing deadline is
not the time for a wholesale reorganization.
Paddling in unison propels you faster
You can work concurrently with the drafter by
reviewing an outline before drafting begins, reviewing
background materials such as pleadings
and underlying decisions while the drafter is writing,
and reviewing partially completed drafts with
placeholders for areas that are still being drafted.
Rapid feedback may be more meaningful
If you let a draft sit too long before returning comments,
the drafter’s mind may have become absorbed
in other files and they may take longer to
re-engage.
Showing can be more helpful than telling
It can be helpful to pair an example of a suggested
revision tracked changes with a comment explaining
the suggestion. This lets the drafter into
your thought process so that they can adjust your
revisions with their knowledge of the case. Conversely,
a lone question mark over a phrase that
you found unclear may lead the drafter to make
a change you didn’t intend while missing your important
point.
Meetings can provide clarity
A review works best when both sides are comfortable
sharing unpolished ideas. Talking through the
comments before trying to puzzle through them
in writing can be effective. Meetings can focus on
your more nuanced comments with the self-explanatory
comments sent in a follow-up email.
Keep at it
Like writing, reviewing involves some trial and error
to develop a routine.
12 13

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.
ADVOCACY
Tools and tips
for success
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.
Nine Tips to Maximize
Value for your Clients
in Mediation
Latest
developments
Jennifer Egsgard, Egsgard Mediation
Strategies
REGISTER
Premier Sponsor
Mediation can offer more value to your clients than number-shuttling, “split the baby” approaches,
evaluative take-it-or-leave-it pronouncements by a mediator, and settlements that are considered
successful “if everyone is unhappy”.
With the right preparation, advocacy, and mediator, mediation can be deeply satisfying for your
clients. Mediation can instigate reflective and realistic risk assessments to inform negotiations,
add value and new opportunities through creative settlement terms, and provide the chance to
deepen the professional lawyer/client relationship.
Here are some tips to help you make the most of your mediations for your clients:
And more!
Supporters:
15

PREPARE A LEGAL RISK
ASSESSMENT
Well in advance of the mediation, assess
your client’s chance of success at
trial. This will involve updating legal research, reviewing
evidence obtained to date, considering
witness performance, examining the probability
and quantum of damages being proven, estimating
your legal costs to trial and probability
of recovery, as well as the risk of liability for payment
of your opponent’s legal costs.
Candidly discuss the risk assessment with your
client well before the mediation to help inform
realistic settlement ranges to consider in the
mediation. In my experience clients who learn
of problems with their case, or possible future
legal costs, for the first time in mediation immediately
appear quite unhappy with their counsel.
FIND OUT HOW YOUR CLIENT FEELS
ABOUT THE LITIGATION
As counsel you can advise your client
on the law, but clients are the experts
on where a dispute sits in their life and business.
Check in with your client to find out how
the litigation affects them. Quite apart from
issues of success at trial, they may have additional
considerations such as:
• the impact of publicity on their reputation i.e.:
in the marketplace; as an employer; as an entity
subject to a regulator, or that wishes to expand
internationally or be purchased;
• the distracting impact that litigation is having
on their business/employees;
• stress caused by litigation – some people
enjoy the thrill of the fight but for others litigation’s
drawn-out uncertainty may be excruciating;
• importance of litigation in achieving justice,
policy change or preventing future harm.
This discussion will take you outside the corners
of the legal dispute and offer you a chance
to deepen your client relationship.
EXPLORE WITH YOUR CLIENT
WHETHER CREATIVE SETTLEMENT
TERMS MIGHT EXIST
Unlike at trial or arbitration, outcomes at
mediation are not restricted by remedies available
at law. While settlements normally involve
payment of money, consider with your client
whether more creative settlement terms might
add value to either party. For example, in a case
involving harm, a defendant might agree to:
• adopt new policy aimed at preventing similar
future injury;
• better train employees or investigate claims;
cover cost of plaintiff’s counselling; and/or
provide an apology.
In employment cases, an employer may provide:
• a letter of reference;
• particular (legal) tax treatment of settlement
funds;
• outplacement services;
• a non-disparagement clause;
• public acknowledgement of the employee’s
contribution;
• agreement about ownership of IP rights.
Other creative terms might include a new
business agreement between parties, a joint
press release or provision by one side of anything
of value to the other quite unrelated to
the substance of the case, such as (depending
on defendant business or assets): airline tickets,
a charitable contribution, restaurant vouchers.
DEVELOP A NEGOTIATION
STRATEGY WITH YOUR CLIENT
With your client, determine what you
think a reasonable settlement range
might be, with or without value-adding creative
settlement terms. If ending the litigation alone
has benefit to your client, consider ascribing
an additional value to that. Reflect on how the
other side may be thinking about the same issues
and discuss a negotiation strategy for the
mediation aiming for your target range.
USE A PRE-MEDIATION CONFERENCE
OR CALL OPPOSING COUNSEL
Attend a pre-mediation conference with
your mediator and opposing counsel to
address practical matters with a view to making
settlement the day of mediation more likely. Issues
addressed at pre-mediation conferences often
include: identifying and agreeing to exchange
remaining necessary information; considering
whether issues can be narrowed and/or if briefs
should focus on any issues that now seem to be
driving the dispute; determining who should attend
from each party; deciding on the location
and length of mediation; considering whether
accommodation of a disability or vulnerable party
is needed; and discussing whether counsel or
parties should speak at an opening session. If
your mediator does not offer pre-mediation conferences,
you may wish to call opposing counsel
to discuss some of these issues directly.
ADDRESS YOUR WRITTEN AND ORAL
ADVOCACY TO THE DECISION MAKER
AT MEDIATION – YOUR OPPONENT
Your opponent is the target of your
advocacy in mediation. In my view, insulting
your opponent is unlikely to endear them to
your point of view. Rather, using respectful
language, providing succinct submissions on
the facts and law in your favour, and making
concessions as appropriate, should give your
opponent the sense that you are a reasonable
lawyer and excellent advocate (who happens to
have a fantastic case), which will better set you
up for productive negotiations in mediation.
HARNESS VALUE EVEN IF THE
MEDIATION DOESN’T SETTLE
If the mediation doesn’t settle, consider
asking the mediator to assist counsel in
agreeing on a timeline for next steps in the litigation.
If missing information was an obstacle
to settlement, consider setting a date by which
information will be exchanged, and on which
further settlement discussions or a continued
mediation will take place. If opposing views on
a critical legal issue prevented compromise,
consider arbitrating or obtaining an early neutral
evaluation of that issue, with remaining
issues to be later mediated. In any case, you
will have likely learned a lot more about your
case during any mediation and should prepare
a memo to file with your current assessment.
IT’S NOT OVER UNTIL IT’S OVER
Consider continuing the negotiations
after the mediation with or without the
mediator’s help. After an unsettled mediation,
parties may still be willing to pick up on
settlement discussions due to information they
learned at the mediation but were not able to
quickly digest, or a sense of remorse that settlement
had been within reach but was not actually
achieved.
CHOOSING A MEDIATOR
In a mediation, there are usually multiple
factors preventing resolution that
a mediator needs to identify and address.
Are there difficult personalities and emotions
that need to be managed? Do complex legal
issues require expertise? Is space needed
for (even the most commercial of) parties to
‘get things off their chest’ before they can move
forward to think about resolution? Are apologies
required, or a chance for parties to better
understand one another? Do multiple parties
require logistics and leadership? The mediation
skills required to address these issues are quite
different from those involved in litigation or arbitration.
Consider a mediator’s training, legal
background and approach and how it lines up
with what is needed in your case. If you are
interested in trying someone new, ask about
their process to see if they might fit your case
and consider requesting references.
16 17

HAPPY LAWYER PROJECT
Relax and recharge at Toronto’s prestigious members club, just steps from the Court of Appeal
www.universitycluboftoronto.com
The Happy Lawyer Project -
Take a Walk on the
Client Side
Lisa Marie Buccella, Aviva Trial Lawyers
Five years ago, after fourteen years as a personal
injury and insurance litigator in private practice,
I moved to a client-side role. The transition
quickly reaffirmed that my prior assumptions
about in-house careers—that they were boring,
easy, and not a place for ambitious lawyers—
were wrong.
An early career conversation with a boss who
described in-house lawyers as glorified insurance
adjustors may have had something to do
with my thinking. Insurance litigation has also
evolved: insurers realized that much of their
work could be done more efficiently with internal
teams. In turn, many lawyers realized the
benefits of moving in-house both professionally
and personally.
On balance, my experience has been positive.
I am consistently impressed with the calibre
of colleagues my company attracts, including
highly experienced, highly respected former
partners. I appreciate litigating versus settling
files. I like the stability, and I like not having to
docket my time.
I was curious to hear others’ experiences, so
I asked two peers: Amelia M. Leckey, Regional
Senior Counsel with SGI Canada, and Antonella
Albano, Senior Counsel with Intact Insurance
Legal Claims.
19

Why did you move in-house?
A.L.: I was at the point in my career where
I wanted a new challenge. I had great clients
and I was doing interesting work, but
as my kids were getting older, I wanted
to try something new and to expand my
skills and knowledge.
A.A.: Relatively early in my career, the
death of my mother prompted me to evaluate
what was important in my life and to
“change the scenery”. I had worked for a
leading plaintiff firm in Toronto and felt
an in-house role would also be more conducive
to raising a family.
in-house roles. My colleagues at SGI Canada are super smart and very creative. We do challenging
and multi-faceted work. You will never be bored on an in-house team.
A.A.: The volume of work is neck and neck to that of private practice. In my experience, the time
is just managed differently, which is more conducive to work/life balance.
What have some of the challenges been?
A.L.: I had more control over my personal schedule in private practice. I could protect blocks of
time and know months in advance about my commitments. Rarely did I have to drop everything
and pivot quickly. In-house legal counsel will often get pulled into meetings at the last minute to
respond to rapidly evolving issues.
A.A.: COVID-19 impacted what used to be our very social, interactive, and personable profession,
which feels different now. Mentoring has also been more challenging since it takes more effort to
see people in person. That said, change is constant, and adaptability is key.
Amelia M. Leckey, SGI Canada
Tell me about your role and what you
appreciate about it.
A.L.: I manage our in-house legal team in
Ontario. I also support the business nationally
by providing a legal lens for business
decisions, helping with risk assessment
and risk management. I really feel
that I contribute to a bigger picture and
have learned a lot about the industry.
A.A.: I handle a wide variety of matters.
I appreciate the innovation among my
colleagues, the role of our department in
supporting our company’s mandate, and
the variety of work available. Flexibility is
great at Intact, and there is a strong sense
of trust between employees and management,
which enables both independence
and collaboration.
Antonella Albano, Intact Insurance Legal Claims
What are some of the myths about
working in-house?
A.L.: The biggest myth is that you work
less. My days are very full and work often
spills into the evening or weekends.
There is a myth that only lawyers
who cannot hack private practice pursue
20 21

ADVOCACY
Setting Up for Success
in Arbitration
Laura Bevan, Lawson Lundell LLP and
Megan Keenberg, Keenberg & Co
The first steps in an arbitration can make or break the entire proceeding. What follows is a discussion
of some of the key considerations at the outset of the arbitral process, from the perspective
of counsel (Laura), and the perspective of an arbitrator (Megan).
Laura: The first consideration when starting the process of selecting an arbitrator is the arbitration
clause itself. It usually contains key information that could constrain or dictate the
appointment of an arbitrator. How many tribunal members must the parties appoint? Does
the arbitration clause itself dictate the process for selecting the tribunal? The parties might
also have selected a place of arbitration, and
applicable law and arbitration rules. Many
arbitrations are held virtually by agreement
of the parties, so appointment of an arbitrator
that is local to the “place” of arbitration
might not be a driving consideration. But the
applicable law and rules will. The provincial
or territorial legislation that applies might
provide for an appointment process; if local
arbitration rules have been selected, there
may be a specific procedure that applies.
Megan: Even before commencing a selection
process, I would urge counsel and parties to carefully
consider the arbitration clause. The clause
may be poorly or unclearly drafted, leading to
confusion on scope or timelines for preconditions
to arbitration (e.g. negotiations or mediation).
If so, the parties should remain open to
reasonable variations of the clause on consent to
avoid increased costs and delays for everyone.
Even if the clause is reasonably clear, the parties
may benefit from a more detailed and comprehensive
arbitration agreement for the particular
dispute that has materialized. A common variation
I see entered on consent is where a shareholder
dispute arises between shareholders who
are also employees. The arbitration clause may
only apply to the shareholder dispute but not
the employment claims. In most cases, the parties
will want to deal with the employment claims
together at the same time and will submit those
claims to arbitration by consent.
Laura: The nature of the dispute is another
obvious consideration. Does the case require
someone with specific experience in a technical
area, such as construction contracts? There is
clearly a benefit in selecting an arbitrator who is
not learning a new area on the job (and on your
22 23

client’s dime). Subject-matter experience can
cut down on hearing time and cost. But in some
circumstances, credibility of witnesses could be
a central issue. In that case, parties might want
to consider engaging a former judge who might
have less subject-matter experience, but deep
trial experience with witnesses.
The timeline might also dictate arbitrator selection.
If the client needs a decision within
60 days, you also need to select an arbitrator
who can deliver on that timeline. And be clear
about the timeline when initially canvassing arbitrators
for conflicts.
Megan: Subject-matter expertise is both a
blessing and a curse for arbitrators. Laura is
right that it can cut down on ramp-up time in
the hearing, and that is a significant benefit.
That said, stringent criteria for subject-matter
expertise can significantly narrow the field of
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eligible arbitrators, many of whom might be
conflicted out due to their prior or current involvement
in that particular sector.
What’s most important for an efficient and
fair process is to select an arbitrator who understands
arbitration as a unique process that
is not just “litigation sitting down”. This is especially
crucial for international arbitrations, but
also important for domestic disputes. There
are processes available in arbitration that can
significantly reduce time and cost as compared
to court proceedings. And by the same token,
there are critical factors that arbitrators need to
address to safeguard awards against set-aside
applications that judges need not trouble themselves
with to ensure their judgments are enforceable.
To this end, it is important to select
a decision-maker that is specifically experienced
in arbitration. Avoid generic reference questions
like, “How did you like X as an arbitrator? What was
she like?” You will gain far greater insight into an
arbitrator’s command of a process and competence
with specific questions like: “How long
was it between appointment of the arbitrator and
the rendering of the award? How long between the
hearing and the release of the award? How did the
arbitrator deal with costs? Did the arbitrator suggest
procedures or leave it in the parties’ hands?
Did the arbitrator ask for additional submissions
on any issues? Did the arbitrator ask experts direct
questions?”
Laura: Once an arbitrator is appointed, the
first step is Procedural Order No. 1. Some
arbitrators have a standard procedural order
they will circulate to the parties in advance
of the first procedural hearing. Some rules,
such as the ADRIC Arbitration Rules, set out
sample procedural orders that the parties
must follow unless otherwise agreed, and
a checklist for the first procedural hearing.
Whatever form is used, Procedural Order No. 1.
often dictates nearly the entire proceeding.
Counsel need to consider and have a position
on the following questions:
• Are the pleadings sufficient, or is a further
Notice or Answer/Response required to
articulate the issues?
• What form will evidence take, and when
will it be delivered?
• If the parties anticipate serving expert reports,
are there any requirements for reports
or objections to reports?
• How will document disclosure requests be
dealt with?
• What is the timing, process and procedure
for the hearing, and what will form the arbitral
record?
These are significant issues that counsel
need to consider as part of a strategy plan very
early in the proceeding. Ideally, counsel have
their own pre-hearing conference on these issues
and are prepared to provide a consent
Procedural Order No. 1. to an arbitrator at the
Competence.
first hearing (or at least some consent items!).
Megan: I love it when parties come to the First
Procedural Meeting having carefully considered
and conferred on process issues. My typical
practice is to send counsel a comprehensive
checklist of procedural issues or questions to
consider in advance of that first meeting. But I
do prefer to have some input into those discussions
before decisions are set in stone under a
Procedural Order.
Regardless of whether you are preparing for
your first arbitration or your 25 th arbitration,
practices and preferences vary among arbitrators,
parties and counsel. If you do a proper
deep dive on the dispute analysis from the outset,
you will be prepared to adapt to and consider
new approaches and processes that could
be game changers for time and costs savings.
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24 25

Thank you to Andrew Wood (Partner at Gionet
Fairley Wood LLP, Barrie), Emily Fan (Chair of the
Disputes Resolution & Advocacy Group at Mintz, Toronto),
Samara Secter (Partner at Addario Law, Toronto),
Eric Sherkin (Partner at Miller Thomson LLP,
Toronto), Maya Angenot (Director of the Litigation
and Disputes Group, Norton Rose Fulbright LLP,
Montréal), Josh Valler (Partner at Barriston Law,
Barrie), and Erin Durant (Durant Barristers, Ottawa)
for their participation and insight.
Andrew Wood, Gionet Fairley Wood LLP
Encourage relationship-building.
PRACTICE MANAGMENT
Everyone emphasized that building relationships
is the critical focus for integrating lawyers
to a firm.
Successfully Integrating
Lateral Hires
(or How Not to Lose a
Lateral Hire in 10 Days)
Christine Muir, Norton Rose Fulbright Canada LLP
and David Thompson, Carroll Heyd Chown LLP
Kids these days just don’t have the same loyalty,
or at least that’s what we tell ourselves
as jaded mid-career lawyers when complaining
about the younger generation. Regardless
of whether there is any truth to that stereotype
(remember: senior lawyers probably made
similar complaints about us), juniors are more
mobile than their peers a generation or two
ago. Because of this new mobility, we can’t always
depend on building our firms solely (or
even primarily) from summer and articling students.
We need to hire and successfully integrate
laterals.
So, how is lateral hiring done well? Mid-career
partners and advocates from a range of firms,
small to large, joined us to weigh in.
Andrew - There’s a need for new lawyers to develop
trust with firm staff and with other lawyers. This
trust is key to building their internal referral network,
particularly at a full-service law firm.
Eric - I encourage laterals to knock on doors. They
don’t need to bring in business from outside the
firm but showing that they can get out there and
make an impression demonstrates the entrepreneurial
attitude that so many firms are looking for.
Maya - New associates need to focus on getting to
know their new colleagues. She encourages them
to take every opportunity to speak with their new
teammates: tour the office, go to social events,
and pick up the phone!
Help laterals to understand their new
landscape.
Josh - For junior lawyers moving from a large market
to a smaller market, there may be some unique
challenges. Sometimes these lawyers—who are often
moving for a lifestyle change—have a specialized
area of practice that is not widely applicable
in a smaller market. Help them to broaden their
practice to suit the wider range of clients that they
will be serving in their new community.
Eric Sherkin, Miller Thomson LLP
Emily Fan, Mintz
Samara Secter, Addario Law
26 27

Maya Angenot, Norton Rose Fulbright LLP
Josh Valler, Barriston Law
Erin Durant, Durant Barristers
Maya - Lateral moves are less common in the legal
market in Montréal and across Québec, making
it especially important for new hires coming
from elsewhere to get to know the francophone
market and its culture.
Have a plan!
Erin - An integration plan is key.To be fair to
laterals, firms must plan out who these new
hires are going to work with, where their work
will come from, and where they fit into existing
pipelines. At large firms, the planning and
integration process will need to be more complex—and
should include introducing the new
teammate to key contacts in multiple offices,
technology training, meeting with firm members,
and being introduced to the key firm clients
as well as those clients’ idiosyncrasies. At
smaller firms like her own, the integration process
can be fairly simple: new lawyers should
get the new files and clients, so they can start
working on files from the beginning and build
their practice.
Samara - Success for new hires is a symbiotic
relationship and everyone at the firm has a role
to play in their success . New hires need to give
to the firm, and the firmi lawyers and staff need
to give their time, training, and responsibility to
newly onboarded associates. .
Communicate expectations.
Firms need to be clear and candid about their expectations.
The partners we spoke with praised
the virtues of pairing newly hired lawyers with
formal (and informal) mentors and all agreed that
firms need to carefully choose the right mentor
for each new hire.
Emily - Given that junior associates in particular
need someone to take them under their wing, both
formal and informal mentorship is key to success.
Be patient!
Patience is important. New hires won’t know
the lay of the land immediately.
Andrew - Avoid making assumptions about
what new hires know, be it billing practices
or how to report to clients. Setting clear expectations
is critical.
Josh - While it takes time for new hires to get
up to speed, it’s worth the investment—junior
laterals often ramp up more quickly than
first year associates, and offer valuable experience
learned in a different firm culture. We
should be open to learning from them and
trying out new ways of doing things.
How does everyone involved know the onboarding
has been a success?
When everyone—including the lateral—
can say that they have built up a roster
of work and are contributing positively to
their colleagues’ practices.
Connect on the TAS
Mentoring Portal
EXCLUSIVELY FOR TAS MEMBERS
CLICK HERE FOR MORE INFORMATION
28

Q. First, tell us what kind of practice you had at the start of your career.
A. I joined Stockwoods after clerking and developed a true general litigation practice. I found myself
staffed on all kinds of matters – from the commercial list, to class actions, to coroner’s inquests, to
tribunal work, and even a hotly contested matter involving a cow statue. The work was varied, and it
was fun. I was learning constantly. Towards the end of my tenure, I was finding my regulatory work
to be what I was enjoying the most. In 2019 I was lead counsel on a contested professional disciplinary
hearing for the first time. That experience was rewarding and taught me a lot.
Q. So what led you to consider leaving private practice?
A. I grew up at one firm, and the lawyers there became like my family. But as I became more senior,
my perspective began to shift. Instead of focusing on the files in front of me and skills building, I realized
I needed to set aside the time to think about my career more generally. I know this seems obvious,
but I remember thinking at one point that I’d been practising for eight years and that felt like a
long time. Well, I had colleagues that had been at it for 30, 35 years. Eight years might be long, but I
was still closer to the beginning than the end. I realized that with so much of my career left, I needed
to be intentional about how to move my career forward and to be open to different opportunities.
INTERVIEW
Interview with Benjamin
Kates, WeirFoulds LLP
Q. How did that perspective lead you to the LSO?
A. I got a good piece of advice while I was trying to figure out what kind of lawyer I wanted to be:
“Do one or two things really well, and also do everything else.” Whether I recognized it at the time or
not, taking the leap to the LSO was a chance to work on those one or two things. While in-house as
LSO Discipline Counsel, I got to develop a deep understanding of an area of practice and statutory
scheme. And it was hearing work, meaning I could focus on those skills as well, and getting in repetitions.
It helped that professional regulation work was not entirely new to me – I had done similar
work, just in a different capacity. This allowed me to dive into the work in a way that would have
been much more challenging if I didn’t have that familiarity with the practice area.
Compiled by Laura Bevan, Lawson Lundell LLP
Ben Kates is a litigation partner and Chair of the Regulatory Practice Group at WeirFoulds LLP.
Ben graduated from UofT in 2010, and was called to the Ontario bar in 2011 after clerking at the
Ontario Superior Court of Justice in Toronto. Ben practiced at Stockwoods LLP, and joined the Law
Society of Ontario as Discipline Counsel, before returning to private practice at WeirFoulds. Ben,
former YASC Chair and former MASC member, sat down (virtually) with current MASC member
Laura Bevan to share what he’s learned about moving from private practice to a public
organization, and back again.
Q. How did your approach to client service change from working in a private environment to
working in a public law environment?
A. When you work for an organization, the issues are often larger than any one case. A position
that might advantage you on a particular matter can be detrimental in the big picture - particularly
when it’s an organization that operates in the public interest. You are constantly thinking about
short term objectives but also how to pursue them while having regard to institutional values, interests,
and objectives. It’s a different perspective from working mandate to mandate.
In my role, I wasn’t instructing external counsel, but I gained insight into what it’s like to be in-house
counsel, and the pressures and priorities in that role. That experience informs my approach to client
service now that I am back in private practice. Seeing firsthand how information needs to be received
and passed along by the people instructing me has changed the way I communicate with them.
Client service is about empathy, and the more you can learn about the specific circumstances
of your client and what makes their life easier, the better you are going to be at
providing that service.
30 31

Q. Was there anything about private practice that you realized only after you left?
A. It was nice to get out of the private sector bubble. We can lose sight of the fact that most people
don’t work these hours, or make this kind of money, or share a similar conception of work and work
priorities. Working in a public organization meant stepping out of that unspoken consensus and recalibrating
my perspective. It’s too easy to find yourself defining success with reference to the LinkedIn
posts of others.
Q. What lured you back into private practice?
A. Really, the opportunity presented itself when I was not looking. Joining WeirFoulds’ Regulatory
Practice Group was a chance to keep doing the type of work I was enjoying at the LSO, but at the
same time broadening it out to include other regulatory environments and a civil litigation practice.
It happened sooner than I had intended. I had more that I wanted to do at the LSO - but you
can’t always dictate the timing of an opportunity that is going to move your career in the direction
you want it to go.
Q. What are the benefits to entering or re-entering private practice mid-career or later in your
career?
A. There’s a phenomenon where you enter practice in a certain role at a law firm, and it can kind of
calcify even after you’ve outgrown it. By contrast, when you start at a new firm later in your career,
you are showing up with the skills you have at that time, and as the person you are at that time
with the benefit of all that growth.
Taking a chance on moving from private law to public law gave me the opportunity to decide
what kind of lawyer I wanted to be and what priorities are important to me in the absence of some
of the pressures that we become numb to in private practice. I was able to step back into private
practice with more intentionality because I had the opportunity to check in with myself, and I’m
better fortified for the long haul because of it.
Q. If you had to offer advice to someone contemplating a similar transition, what would it be?
A. The most important thing is to think about your options and your goals in the context of your
career as a whole, which might be a 40-year timeline. If you think a move will put you on a path
towards where you want to be, even if it’s not in a straight line, then you shouldn’t be afraid to take
the chance. All we can do is make the best decisions we can with the information we have in front
us. I genuinely worried that people were going to question why I was leaving private practice. It
turns out that other people think about you way less than you think they do. So do what matters
to you - not what you think matters to other people.
The Catzman Award for
Professionalism & Civility
CALL FOR NOMINATIONS
The annual Award honours a lawyer who
demonstrates exceptional legal knowledge,
integrity, civility, mentorship, and dedication to the
highest ideals of the legal profession. This
prestigious recognition is awarded in memory of
Justice Catzman of the Court of Appeal for Ontario.
Deadline for nominations is
Monday, May 26, 2025.
NOMINATION FORM
32 33

MASC Solo and Small
March 20 | Toronto
Friends Who Argue - A TAS podcast jointly hosted by our
Young Advocate and 10+ Standing Committees. Friends Who
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35

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