The-Advocate's-Journal-Winter-2025

Vol. 44, No. 3. | WINTER 2025

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The Advocates’ Journal

Vol. 44, No. 3; Winter 2025

7

From the Editor

3

24

Choosing judges: Elect them

or appoint them?

Anna SP Wong

Authoritarians hate these

simple tricks to defend and

promote the rule of law

Michael Fenrick

6

30

Annals of law: Mack v Canada –

The campaign for head-tax redress

Kate Shao and Ryan W. O. Chan

Trailblazers: The bold power of

Justices McKinlay, Weiler, and Pepall

Laura Fric and Ankita Gupta

12

36

Litigation firms and the imperative

for transformational change

Samantha M. Green

Language, perception, and the art

and science of persuasion

Paul Fruitman

18

40

Legal submissions need visuals:

Here’s how to create them

Jennifer Brevorka

THE ADVOCATES’ JOURNAL | WINTER 2025 | 1

THE ADVOCATES’ SOCIETY

PAST PRESIDENTS

Winter 2025; Vol. 44, No. 3.

Editor

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

Editorial/Management Team

Andrea Gonsalves | andreag@stockwoods.ca

Sonia Holiad | soniaholiad@gmail.com

Dan Liebman | liebmandan@gmail.com

The Advocates’ Journal: cite as Adv J

Editorial Correspondence

Linda Rothstein, LSM, ASM, Paliare Roland Barristers

155 Wellington St West, 35th Floor

Toronto, ON, M5V 3H1

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

Advertising and Subscription Correspondence

Robin Black

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

Creative Director

Jessica Lim | jessical@advocates.ca

Kim Burton | jkburton64@gmail.com

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

1966-67 The Hon. R. F. Reid

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

1968-69 The Hon. Justice P. Cory

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

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

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

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

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

1976-77 H. G. Chappell, QC

1977-78 W. S. Wigle, QC

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

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

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

1981-82 T. H. Rachlin, QC

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

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

1984-85 Peter Webb, KC, LSM

1985-86 Bert Raphael, QC, LSM

1986-87 A. D. Houston, KC

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

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

1989-90 The Hon. Justice Peter G. Jarvis

1990-91 John F. Evans, KC, LSM

1991-92 Terrence J. O’Sullivan, LSM

1992-93 The Hon. Justice Eleanore A. Cronk

1993-94 Roger Oatley

1994-95 The Hon. Justice Mary Anne Sanderson

1995-96 C. Clifford Lax, KC, LSM

OFFICERS

Hilary Book, President

Craig Ferris, KC, Vice-President

Cynthia Kuehl, Treasurer

Monique Jilesen, LSM, Secretary

Vicki White, Chief Executive Officer

1996-97 Margaret A. Ross, LSM

1997-98 The Hon. Justice Harriet Sachs

1998-99 Michael F. Head

1999-00 James A. Hodgson

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

2001-02 J. Bruce Carr-Harris, LSM

2002-03 Philippa G. Samworth, ASM

2003-04 Jeffrey S. Leon, LSM

2004-05 The Hon. Justice Benjamin Zarnett

2005-06 Linda Rothstein, LSM, ASM

2006-07 Michael E. Barrack

2007-08 Michael Eizenga, LSM

2008-09 Peter J. E. Cronyn

2009-10 Sandra A. Forbes

2010-11 Marie T. Henein, LSM

2011-12 Mark D. Lerner

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

2013-14 Alan H. Mark

2014-15 Peter J. Lukasiewicz

2015-16 Martha A. McCarthy, LSM

2016-17 Bradley E. Berg

2017-18 Sonia Bjorkquist

2018-19 Brian J. Gover, LSM

2019-20 Scott Maidment

2020-21 Guy J. Pratte, AdE, LSM

2021-22 Deborah E. Palter

2022-23 Peter W. Kryworuk

2023-24 Dominique T. Hussey

2024-25 Darryl Cruz

Cover Illustration

Palais de justice, Montreal, Quebec

Illustrations

Anja Javelona: p. 7

Hyesoo Kim: p. 24

Ryan Little: Cover, p. 18

Scott Shields: p. 36

Opinions expressed by authors are their own and do not

necessarily reflect the policies of The Advocates’ Society.

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Contents may be reproduced only with written authorization of

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editors do not assume responsibility for the loss or return of

manuscripts, photographs, or illustrations.

Mark Abradjian

Oneal Banerjee

Simon Bieber

Caroline Biron

Melissa Burkett

Cara Cameron

Nadia Campion

Scott Croteau

Aaron Dantowitz

Robert Deane

Joni Dobson

Jon Foreman

Linda Fuerst

Julie Girard

Lara Jackson

Najma Jamaldin

Katherine Kay

Troy Lehman

DIRECTORS

Sudevi Mukherjee-Gothi

Ira Nishisato

Anne McConville

Tamara Prince

Tamara Ramsey

Yashoda Ranganathan

Shawn Richard

Luisa Ritacca

Andrew Shaughnessy

PAST EDITORS OF THE JOURNAL

1982-90 Moishe Reiter, QC

1991-2008 David Stockwood, QC, LSM

2008-20 Stephen Grant, LSM, ASM

Chloe Snider

Cynthia Spry

Deborah Templer

Lauren Tomasich

Alyssa Tomkins

Vera Toppings

Amit Ummat

Cheryl Woodin

Jason Woycheshyn

2 | WINTER 2025 | THE ADVOCATES’ JOURNAL

FROM THE EDITOR

Both sides now

“To be educated for democracy means hearing different,

even disturbing views – seeking them out, engaging and arguing

with them, learning from them, maybe letting them change your mind,

without giving an inch of ground to democracy’s erosion.”

~ George Packer, “America’s Zombie Democracy” –

The Atlantic, September 24, 2025

Linda Rothstein, LSM, ASM

By the time I entered law school in the late

’70s, the “cab rank” rule had lost the prominence

it once held as an ethical principle

for lawyers. Imported from the United Kingdom,

the rule holds that barristers, like cab

drivers, must accept the next client who comes

along, provided the brief is within their expertise.

The rule is intended to prevent clients from

being denied an advocate of their choice simply

because their cause is unpopular. Even all those

years ago, many of our professors argued that

the rule did little to enhance access to justice;

that the real barrier to legal representation was

high fees.

As I began my practice in the ’80s, except

for a handful of criminal defence firms, few

in the profession even paid lip service to the

objectives of the cab rank rule. Law firms had

already started to define their business models

around the spoken and unspoken interests of

their most important clients. In the big firms,

this meant large corporate clients had long lists

of “business conflicts”: If you acted for a bank

or an insurance company, you couldn’t take

plaintiff cases against anyone in the industry

since it put you on the wrong side of the argument.

The same logic applied in many small

firms, too: If you acted for unions, you couldn’t

act against them; if you acted for employers,

you couldn’t act for employees; if you acted for

defendants in class actions, you didn’t take on

plaintiff cases.

Somehow, family lawyers carved out a different

path – acting for the wife on one brief

and the husband the next, and therefore making

arguments in one case that might well conflict

with the argument necessary in the next

one. But family lawyers are, as best I can tell,

the exception.

I don’t mourn the passing of the cab rank rule

as a mandatory ethical principle. I couldn’t

have defended Ernst Zündel’s vocation as a

Holocaust denier; I may well have fled a profession

that insisted that I do so. But I can’t

help but see our “one side only” professional

allegiances having unfortunate knock-on

effects and as a metaphor for our times. The

more time we spend immersed in an echo

chamber we construct, the harder it is to listen

fairly to the other side.

This discomfort – or should I say, intolerance

– sneaks up on you. Why is it so difficult

to watch a client be cross-examined? Yes,

some of it is because you have a close relationship

with the client, and it’s hard to see them

flounder. But it is also just wrenching to hear

the weaknesses of their evidence exposed to a

contrary narrative. One of my partners, on the

brink of retirement, recently admitted to me he

can’t bear to read the other side’s factum when


it hits his inbox, let alone sit though opposing

counsel’s argument. He welcomed the freedom

retirement offered from those painful tasks. His

experience, born of years in the advocacy trenches,

is not unique. For me, engaging fairly with

the arguments of our opponents is, at best, one of

the hardest things we do.

Of course, as advocates, we are schooled not to

show our impatience, displeasure, or discomfort.

And we take seriously our obligation to respond

to opposing counsel in a respectful fashion.

Outside the courtroom, however, the stark reality

is that it’s harder than ever even to listen

to the other side. On TV, in print, or on a social

media feed, the rhetoric is usually more inflammatory

than it is in our courtrooms, and the

“evidence” is misstated or wholly unreliable.

Most importantly, there is no judge or referee.

Societal debate about the most important issues

of our time – public health, climate change, free

speech – is increasingly a big, hot mess.

Advocates can’t change the world, of course,

but we can guard against closed minds in our

practices. We can persuade our partners to take

a case that is the “other side” of our usual allegiances.

We can take more seriously the other

side’s best arguments. We can give our clients

fair advice about the strengths and weaknesses

of their case. We can concede what must be

conceded in the courtroom. And we can avoid

making arguments that accuse the other side of

bad faith. We can practise opening our minds to

the opposing position.

Unless we advocates can fully listen to “both

sides now,” we can hardly expect others to do so.

***

We continue to receive submissions that tell

the rich stories of our profession from diverse

perspectives. For those who love legal history,

we have profiles of three trailblazing female justices

of the Court of Appeal for Ontario as well

as a look at the work of Canadian lawyers who

addressed the injustice of the head tax imposed

to prevent Chinese workers and their families

from settling in Canada.

For those seeking new thinking about advocacy

and the justice system in a period of rapid change,

there is an update on the use of visual aids

in written advocacy, a guide to adapting litigation

to our changing world, and an open-minded

analysis of the risks/benefits of electing judges

instead of appointing them. For those, like your

editors, obsessed with the erosion of the rule of

law south of the border, we have a must-read with

some suggestions about how to fight knock-on

effects in Canada. Finally, because the art of

persuasion has perhaps never been more complicated

to understand, let alone master, we have a

piece which explores the relationship between

language and perception.

THE ADVOCATES’ JOURNAL

SUBMISSION GUIDELINES

• Authorship: Include your name and email address at

the top of your article. Be sure to list any co-authors.

• Content: We value articles about advocacy and advocates

that are topical and crackle with currency.

• File format: We accept submissions only in Microsoft

Word format.

• Length: Although we appreciate concision, there is no

maximum or minimum length for Journal articles. The

majority of our articles are between 1,500 and 3,500

words (excluding notes), but we will consider articles

outside this range.

• Notes: We prefer articles without notes, but whether to

include notes is at the author’s discretion. (All direct

quotations should be referenced, however, whether

in the body of the article or in notes.) If you include

notes with your submission, we prefer endnotes to

footnotes. When reviewing notes after completing the

final draft, double-check that cross-references (“ibid.,”

“supra”) haven’t changed because of late additions or

deletions of text.

• Citation format: We do not insist on a particular citation

style. If you include citations, we trust that you will

ensure they are accurate, complete, current and internally

consistent. In particular, check that citations to Internet

sources refer to web addresses that are valid as of the

date of the submission. If a cited web address is no longer

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

Thank you,

Editorial/Management Team


CONTRIBUTORS

Jennifer Brevorka

Jenny Brevorka is a cross-border litigator with

Hodgson Russ LLP. Based in Toronto, she

advises Canadian businesses and individuals

about US legal issues, in particular franchise

law. Jenny’s passion projects include dog

walking and baking. She recently obtained a

new title: Canadian citizen.

Samantha M. Green

Samantha M. Green is a partner at Fogler

Rubinoff LLP in Toronto, practising civil and

commercial litigation.

Ryan W. O. Chan

Ryan W. O. Chan is an associate at Corman

Feiner LLP, where he practises civil and

commercial litigation, professional liability

and regulation, and administrative law.

In his spare time, Ryan is a committed

social advocate and self-proclaimed 3.5 in

pickleball.

Ankita Gupta

Ankita is an associate in Osler’s disputes

group in Toronto. Her practice spans appellate

litigation, constitutional and Indigenous

law, securities law and white-collar defence,

and class actions. She previously clerked at

the Court of Appeal for Ontario for Justices

Brown, Pepall, and Zarnett.

Michael Fenrick

Michael Fenrick is a partner at Paliare

Roland. He has a broad litigation practice

including work in infrastructure disputes,

constitutional law, shareholder disputes, and

other commercial and public law matters. He

lives in Toronto with his wife, daughter, two

cats, and a dog.

Kate Shao

Kate Shao is a partner at Paliare Roland

Rosenberg Rothstein LLP in Toronto. She

practises union-side labour and employment

law.

Laura Fric

Laura clerked at the Court of Appeal for

Ontario more than 30 years ago and is now

a partner at Osler, litigating class actions

and commercial cases. She enjoys sharing

her learnings with younger lawyers, having

greatly benefited from the guidance of senior

women litigators herself.

Anna SP Wong

Anna practises civil and commercial

litigation with Weintraub Huang LLP in

Toronto. She is the president of the Toronto

Lawyers’ Association.

Paul Fruitman

Paul Fruitman, a partner at Lax O’Sullivan

Lisus Gottlieb, spends an inordinate amount

of time arguing about the meaning of words.

Not surprisingly, he has thoughts about

language and persuasion.


REFLECTIONS OF AN ADVOCATE

Authoritarians hate these

simple tricks to defend and promote

the rule of law

Michael Fenrick

It is easy to become despondent when you read the news these

days. The rule of law is under attack in places where only a

few years ago that seemed unthinkable. Professor Adam Dodek,

in these pages, recently posited that we were living through

a rule of law depression, not just a recession. 1 One need not look

only to the most dramatic examples in the United States to see

that he is right. Mexico is in the process of replacing its entire

tenured, independent judiciary with elected judges, even on its

apex court. 2 In our own country, Ontario Premier Doug Ford

has not once, but multiple times, in his own words, “ranted”

about how judges should be elected and questioned the alleged

ideology of their decisions. 3 Ford has also openly stated that he

wants to appoint judges who share his ideology. 4 One might

more fairly call these “rants” attacks on the independence of the

judiciary. 5 They are unacceptable.

Canadians are frustrated by many aspects of our justice

system, both criminal and civil. They have a right to be. Our

courts and the broader justice system are chronically underfunded

and under resourced by both levels of government. After

historic advances in the filling of federal judicial vacancies,

a move necessitated by the fact that vacancies were themselves

at historic levels, judicial vacancies are on the rise again. Given

the recent overturning 6 of a Federal Court decision requiring

the government to fill these vacancies, 7 the editorial board of

The Globe and Mail has noted that judicial vacancies have once

again become a political choice, rather than a constitutional

problem. 8 It is unclear whether Prime Minister Mark Carney’s

federal government will do better at addressing what is once

again a political issue, given the myriad issues it faces. But

judicial vacancies are only one part of the problem. Staffing,

technological, and even bricks and mortar issues plague our

courthouses. Legal aid has been underfunded for decades.

As lawyers, we may be inclined to think of these problems as

ultimately a process issue (one that the proposed new Rules of

Civil Procedure in Ontario, 9 though the subject of criticism from

some members of the bar, are intended to address). However,

the larger issue, in my mind, is that many Canadians (both

conservative and progressive) have been pushed to the point

that they are no longer satisfied by process solutions. They are

interested, sometimes very assertively, in outcomes.

While that desire for outcomes may be understandable and

benign, it can also have another edge. For example, a recent

story about a homeowner charged in Lindsay, Ontario, who allegedly

stabbed an intruder, 10 has captured political and public

discourse. 11 Before the facts of the case are even known, politicians

have called for changes to the law respecting self-defence.

One can have a reasoned debate over whether the presumption

that proportionate force was used in such a case should rest on

the Crown (along the lines of the “castle doctrine” in some US

states) or on the accused (as it is here). However, I detect a bigger

issue with rule of law implications animating these debates;

namely, that some people do not trust the police and prosecutors

to appropriately evaluate and use their discretion when

laying charges, or trust the courts to ultimately evaluate and

determine the issues. 12 Despite well-publicized cases involving

so-called “stand-your-ground” laws in some US states, including

a recent one where an 11-year-old boy playing a prank was

shot in the back with a shotgun by a homeowner, 13 Leader of

the Opposition Pierre Poilievre has recently called for a version

of a stand-your-ground law in Canada. 14 Under this proposed

law, once a reasonable threat has been determined to exist, the

court will have no role in evaluating whether the homeowner’s

response to that threat was proportionate.

The problem for advocates, who should, and must, be interested

in the rule of law, is that the rule of law is at its core

a value predicated on process, not outcomes. Ultimately, the

rule of law concerns the way an outcome is reached – by an

independent bar operating in a rules-based system wherein the

outcome is reached by an independent decision maker – not on

the outcome itself. The rule of law places value on the process,

not just the outcome.

Having identified a problem, one obvious question is what

advocates can do to address it. How do we demonstrate to our

fellow Canadians that the rule of law and the value of process

it enshrines is of vital importance? We cannot smugly assume

this is a problem only elsewhere, as Mr. Ford’s comments make

clear. As historian Timothy Snyder has noted, as patriots as

well as advocates we cannot simply assume that the rule of law

will not completely disappear in Canada: “A patriot says that it

could happen here, but that we will stop it.” 15


Below I have set out five “tricks” that every advocate can do

in their own practice and in their own life to help. These are

intended to be concrete steps that are readily enactable. My

hope is that by doing some or all of these things, we can

collectively help perpetuate the value of the rule of law, or that

at least I will have some friends on the barricades with me if

it comes to that.

The five tricks

Identify your values

The challenges to the rule of law are great, but they are not yet so

great in Canada that we cannot shore up the values we as advocates

hold dear. Unlike in the United States, no law firms or lawyers

have yet been targeted by a government. But that does not

mean it can’t happen here. Think in concrete terms about what

the rule of law means to you as a person and as an advocate.

Be prepared. Think about what you as an advocate and what

your firm would do if you or another advocate or firm were

targeted by a government. Identify your principles and values

clearly before they are challenged. Write your values down –

an exercise that will also help you to express your values to

others (see the following trick). And remember them when the

going gets tough.

Although I am (rightly, I believe) critical of the US firms that

faced this challenge and the decisions they made, I do not envy

them. The US government’s targeting of these firms put at risk

not only the livelihoods of the individual lawyers, but also

those of their professional and non-professional staff. That is

tremendous pressure.

You may be called upon one day to do something brave, but

that decision will be much harder to make if you do not spend

the time now to identify what your values are. You need a lodestar

because other considerations may seem overwhelming in

the moment.

Express your values to your colleagues and others

Being brave is easier in a group. Find common ground with

colleagues at your firm and at the bar more broadly. Values

are maintained and strengthened through social reinforcement

and expression. They wither when you keep them to yourself.

Through your words and actions, teach the importance of

the rule of law to summer students, articling students, and

more-junior lawyers. Newer entrants to the profession receive

reams of information and cues from which they discern what is

important and how to be a professional. Make sure the rule of

law is one of those values that, as a young or aspiring lawyer,

they see as important by placing importance on it yourself in

your interactions with them.

Signal to the bar the importance of the rule of law as well.

Many of us are told to use social media as business development

tools. Try to post something about the rule of law and its

importance in some fashion, whether it is something about the

news or a recent case you worked on. People may thank you

for posting something that is not about the latest rubber chicken

dinner you attended. And even if they don’t, do it anyway.

Finally, support the work of others promoting the rule of

law by adding your voice. One initiative to support is the Rule

of Law Project. Sandra Barton, Sheila Block, Gerald Chan,

Jake Okechukwu Effoduh, Jennifer Orange, and Lindsay Scott

developed a simple pledge and a website (https://ruleoflaw

project.ca/) encouraging lawyers across the country to think

about and indicate their commitment to protecting the rule of


law. The pledge asks lawyers not only to affirm the value of

the rule of law, but also to seek to improve access to justice and

to support other members who may become “subject to undue

harm or interference by any arm of any Canadian government

as a result of [their] efforts to uphold” respect for the administration

of justice and access to justice efforts. Take that pledge.

Defend the administration of justice

As lawyers, we have a professional obligation to uphold the

administration of justice. For example, the Rules of Professional

Conduct in Ontario require

lawyers to “uphold the standards

and reputation of the

legal profession and to assist

in the advancement of its

goals, organizations and institutions.”

16 There is no goal

which is more fundamental

to the legal profession than

the rule of law.

Even if you are more cynical,

it is in a lawyer’s selfinterest

to promote the rule

of law. Brian Gover, also in these pages, wrote convincingly

of the economic value to Canada of being a rule of law superpower.

17 More crassly, as lawyers we depend on a rules-based

system for our livelihoods. If the “rule of law” becomes the

“rule of who you know,” then our value to our clients, and

the economics of our practices, would be unrecognizable.

Anecdotally, law firms in the United States which capitulated

to government abuse are having challenges retaining clients

and recruiting and retaining talent. 18 This consequence makes

sense. Lawyers and students do not want to work for firms that

do not uphold our foundational values, and clients don’t hire

lawyers who cave under pressure.

Recall that both the judiciary and many of our colleagues

are limited in what they can say to uphold the rule of law, especially

in specific cases. Be their voice. Answer the calls from

journalists who want context on a recent decision. Explain the

legal process so that Canadians understand it better.

Professional ethics matter

Professional ethics matter because they are a shared value

among a group of disparate and distinct people. Among those

people, they are a shared set of norms. Those professional norms

are hostile to the ambitions of the opponents of the rule of law.

The importance of these shared norms can be illustrated by

the allegations of Erez Reuveni in his whistleblower complaint

against Emil Bové, which emerged during Mr. Bové’s recent

confirmation hearings for an appointment to a federal appeals

court in the United States. On March 14, 2025, Mr. Reuveni

attended a meeting with Mr. Bové and others to discuss the

Trump administration’s plans to speed up the “deportations”

of alleged Venezuelan gang members to El Salvador. Although

Mr. Bové denies the accusation, Mr. Reuveni, a long-time Justice

Department lawyer, alleged that Mr. Bové “stressed to all

in attendance that the planes need to take off no matter what.”

According to the complaint, Mr. Bové then said that the group

may need to consider telling judges “f*** you” and ignore possible

court orders blocking immigrants from being removed


More crassly, as lawyers we depend on a rulesbased

system for our livelihoods. If the “rule of

law” becomes the “rule of who you know,” then

our value to our clients, and the economics of

our practices, would be unrecognizable.

from the United States. Famously, the planes later did not turn

around when a federal judge ordered that they do so. In making

his complaint, Mr. Reuveni emphasized that “[d]iscouraging

clients from engaging in illegal conduct is an important

part of the role of a lawyer.” 19

Although most advocates will not find themselves in so

dramatic a situation, our professional ethics routinely reveal

themselves when we are confronted by our duties to our clients

(and to be zealous advocates) and our duty to the courts and to

the administration of justice.

Professors Richard Moorhead,

Steven Vaughan, and

Kenta Tsuda address this

tension in a 2023 report for

the United Kingdom’s Legal

Services Board. 20 In it, the

authors consider various

issues concerning the role

of lawyers in upholding the

rule of law through their

everyday practices. They

identify several practices,

including that lawyers help

to challenge arbitrary uses of power because they counsel (or

should counsel) clients towards legality. 21 However, the authors

also point to examples of problematic lawyer behaviour,

particularly where lawyers abdicate their responsibility to promote

the administration of justice and merely become tools of

their clients. One “archetypal” example they use is the “mob

lawyer” who knowingly or recklessly enables the illegal conduct

of their clients. 22

While few of us are “mob lawyers,” or advisors to the Trump

Justice Department, we should reflect not only on our clients’

interests when advising them but also on our independent

obligation to the administration of justice when serving our

clients’ needs. The rule of law may not demand a particular response

from an individual lawyer in a specific case, but, writing

for a regulatory audience, the authors note that a lawyer’s

behaviour is not necessarily consistent with the rule of law

merely because a superficial claim can be made that they are

exercising a right for a client. For example, that I have a right to

bring a claim does not necessarily mean I have a right to bring

a particular claim in a particular way. Other questions have to

be asked and answered. 23

These questions include whether advancing that particular

claim in that particular way serves the interests of justice, not

only the clients’ interests. Is the claim, for example, being advanced

as part of a pattern to silence others or to take unfair

advantage of others through strategic litigation against criticism?

The rule of law may not demand a particular response

from a lawyer in these circumstances, but it does require reflection.

Do pro bono work

It is easy for non-lawyers to conclude that a value based on a

process doesn’t work if they have no access to the process in

the first place. Legal aid has never been properly funded across

Canada, but it has been in dire straits now for decades. For

many people, aside from self-representation, pro bono legal

services are their only option.

Not every advocate’s practice allows

them – for financial or practical reasons

– to take on pro bono work. But

for those who can, do. Helping people

with their problems is one of the reasons

many of us entered this profession.

Some people choose to provide that

support by taking on litigation around

“big” causes. Others volunteer their time

as duty counsel or at organizations such

as Pro Bono Ontario. Yet others serve as

volunteers on boards. It all helps. Encourage

your associates to do pro bono

work as well, though this means also

incorporating recognition of pro bono

work within the framework of compensation

and promotion. If your firm

doesn’t put real value on pro bono work,

then young lawyers will rightly see it as

of little value themselves.

Ensuring that people have access to

an independent determination of their

rights is a critical component of the rule

of law. If such a determination is available

only to the wealthy and powerful,

then some in our society will have access

to the law while others must accept the

arbitrary consequences of their impotence.

Justice Ketanji Brown Jackson of the

Supreme Court of the United States recently

wrote in a dissenting judgment,

which should be mandatory reading for

all defenders of the rule of law, that the

majority decision of that court violated

the rule of law, in part, because the

decision made it more difficult for the

powerless to gain access to justice. The

case, which was widely reported, concerned

constitutional injunctions and

whether they restrained the executive

against everyone or only the individual

plaintiff. Justice Jackson held that, if the

law limited the effect of an injunction

only to the individual plaintiff, then it

will be only “[t]he wealthy and the well

connected [who] will have little difficulty

securing legal representation, going to

court, and obtaining injunctive relief in

their own name if the Executive violates

their rights.” 24 “Consequently,” as Justice

Jackson held, “the zone of lawlessness the

majority has now authorized will disproportionately

impact the poor, the uneducated,

and the unpopular – i.e., those who

may not have the wherewithal to lawyer

up, and will all too often find themselves

beholden to the Executive’s whims.” 25

Taking on pro bono mandates not only

improves the perception of the rule of

law for the individuals involved in a

lawsuit; pro bono work also helps to address

this potential zone of lawlessness.

Much as we have a looming rule-of-law

problem, we also have an access-tojustice

problem. In my view, individual

lawyers who have the capacity to do so

have an obligation to reduce this area of

lawlessness, which, as it persists, will

have deleterious effects on the rule of

law more broadly.

Some modest cause for optimism?

Do not despair, but also be vigilant.

There are some signs that suggest modest

optimism is warranted.

The courts, or at least some courts,

appear to be the final bulwark in the

United States to protect against overreaches

of the current executive, such as

a recent appeals court decision declaring

illegal certain tariffs promulgated by

the president. 26

There is also anecdotal evidence that

grand juries in Washington, DC, and

California are refusing to indict certain

felonies, 27 notwithstanding the longstanding

view of justice system participants

that a grand jury will indict a ham

sandwich. While one view may be that

these grand juries see refusing to indict

as a political protest, it is at least equally

likely that the cases which prosecutors

present them with are insufficient to

indict and they refuse to do so because

the proper process has not been satisfied.

It may be some of both. But if the latter is

at all true, it is a small victory for the rule

of law in a system under stress.

But remember that stress on the rule of

law, and even its abandonment as a core

value, can happen here. Do what you can

to protect this value before it is under assault.

Like many values, the rule of law

is one that was hard won over centuries

but is easy to lose. And once lost, it will

be a hard-fought battle to regain.

Notes

1. Adam Dodek, “Rule of Law Depression,” The Advocates’ Journal (Summer

2025) 44:1, 6.

2. “Mexico Remakes Its Entire Judicial System as States Back Vast Overhaul,”

The New York Times, September 12, 2024; https://www.nytimes.

com/2024/09/12/world/americas/mexico-courts-overhaul-states-approve.

html. “In Mexico, Thousands Run for Office, Few Voted and One Party

Dominated It All,” The New York Times, June 15, 2025; https://www.nytimes.

com/2025/06/15/world/americas/mexico-courts-election-results.html.

3. “Ford Rants About ‘Bleeding-Heart Judges Who Are Overruling the Government,”

CBC, April 30, 2025; https://www.cbc.ca/news/canada/toronto/doug-ford-ontario-judges-bail-reform-1.7522701.

4. “Ford ‘Triples Down’ on Appointing Tough-on-Crime Judges After Former

Staffers Picked for Selection Committee,” CBC, February 27, 2024; https://

www.cbc.ca/news/canada/toronto/ford-appointing-former-staffersjudge-selection-committee-1.7127050.

5. “Chief Justices Issue Statement in Response to Ford Suggesting US-Style Elections

for Judges,” Law Times, May 1, 2025; https://www.lawtimesnews.com/

practice-areas/criminal/chief-justices-issue-statement-in-response-toford-suggesting-us-style-elections-for-judges/392412.

6. Canada (Prime Minister) v Hameed, 2025 FCA 118.

7. Hameed v Canada (Prime Minister), 2024 FC 242.

8. “The Shortage of Judges Is Now a Political Choice,” The Globe and Mail,

July 4, 2025; https://www.theglobeandmail.com/opinion/editorials/

article-judicial-judge-vacancies-law-federal-court/.

9. Civil Rules Working Group, “Civil Rules Review: Phase 2 Consultation

Report,” April 2025; https://www.ontariocourts.ca/scj/files/pubs/Civil-

Rules-Review-2025-phase-two-EN.pdf.

10. “Ontario Man Charged After Confronting Intruder Inside Home Allegedly

Used Knife, Court Docs Say,” CBC, August 21, 2025; https://www.cbc.ca/

news/canada/toronto/lindsay-home-intruder-knife-defence-1.7614690.

11. “Poilievre Calls for More Legal Protection for Canadians Defending Homes

from Intruders,” CBC, August 29, 2025; https://www.cbc.ca/news/politics/

poilievre-home-invaders-1.7620982. “‘Something Is Broken’: Ford Slams Assault

Charges Against Homeowner After Break-in,” Global News, August 20,

2025; https://globalnews.ca/news/11342405/ford-lindsayman-charges/.

12. There are legitimate criticisms of these exercises of discretion, including

most importantly from equity-seeking groups. My point is that certain

critics would be proposing the same outcome solutions even if the police,


Crowns, and court were perfect. Their criticism is not animated by social

justice reasons, other than the perceived injustice (based on unknown facts)

that this particular homeowner has been charged with a crime.

13. “Texas Man Charged After 11-Year-Old Boy Shot Dead While Playing

Doorbell Prank”; The Guardian; https://www.theguardian.com/us-news/

2025/sep/02/texas-man-charged-11-year-old-shot-dead-doorbell-prank.

Texas has a “stand-your-ground” law. The homeowner involved has since

been charged and the availability of the defence has not been tested in court.

14. Andrew Coyne, “Poilievre’s Anything Goes Approach to Self-Defence Is

Even More Extreme Than US Law,” The Globe and Mail, September 3, 2025;

https://www.theglobeandmail.com/opinion/articlepoilievres-selfdefence-more-extreme-us-law/.

See also Andrew Coyne, “In Canada,

Householders Must Use ‘Reasonable Force’ Against an Intruder. That’s

Perfectly Reasonable,” The Globe and Mail, August 27, 2025; https://www.

theglobeandmail.com/opinion/article-in-canada-householders-mustuse-reasonable-force-against-an-intruder/.

It is notable that Mr. Poilievre

was a member of Prime Minister Stephen Harper’s government when

Prime Minister Harper updated Canada’s self-defence laws in 2013.

15. Snyder, Timothy, On Tyranny, Tim Duggan Books, 2017, p 114.

16. Rules of Professional Conduct, Rule 2.1-2.

17. Brian Gover, “What Sets Us Apart,” The Advocates’ Journal (Summer 2025)

44:1, 12.

18. Demand Justice, Fact Sheet: Firms Who Struck Deals with Trump Suffer,

Those Fighting Back Gain Support; https://demandjustice.org/biglawcowards-factsheet1/.

19. “Fired Justice Department Lawyer Accuses Agency of Planning to Defy Court

Orders,” NPR, June 24, 2025; https://www.npr.org/2025/06/24/g-s1-

74316/justice-department-immigration-whistleblower#:~:text=Reuveni%20ultimately%20decided%20to%20blow,that%20carries%20a%20

lifetime%20appointment.

20. Richard Moorhead, Steven Vaughan, and Kenta Tsuda, “What Does It

Mean for Lawyers to Uphold the Rule of Law?” (October 1, 2023). Faculty

of Laws University College London Law Research Paper No. 23/2023,

Available at SSRN: https://ssrn.com/abstract=4660750 or http://dx.doi.

org/10.2139/ssrn.4660750 (the “UK Rule of Law Report”).

21. Ibid, p 24.

22. Ibid, p 4.

23. Ibid, p 3.

24. Trump v CASA Inc., 606 US ____ (2025), per Justice Jackson (dissenting), p 14.

25. Ibid.

26. “Most of Trump’s Tariffs Declared Illegal by US Federal Appeals Court,”

The Globe and Mail, August 29, 2025; https://www.theglobeandmail.com/

world/us-politics/article-trump-tariffs-illegal-appeals-court-legality-levies-trade-war-canada/.

27. “Grand Juries in DC Reject Prosecutors’ Efforts to Level Harsh Charges Against

Residents,” New York Times, August 29, 2025; https://www.nytimes.com/

2025/08/29/us/politics/dc-grand-juries-indictments.html.


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PROFILES

Trailblazers: The bold power of

Justices McKinlay, Weiler, and Pepall

Laura Fric and Ankita Gupta

The authors would like to thank Amanda Currie for her excellent

research assistance.

If you’ve ever stepped into Osgoode Hall in the early morning,

you know the hush that greets you – a weighty quiet

that whispers, “Serious law happens here.” As young clerks,

we felt that message keenly as we walked down the halls and

past the many portraits of history’s judges to arrive at the chambers

of three trailblazing women – Justices Hilda McKinlay,

Karen Weiler, and Sarah Pepall – who were reshaping the script

in a world of dark suits and long traditions.

Though their paths to the bench were different, each judge

exemplified resilience, intellect, and commitment to justice. In

an institution where change is often incremental, they distinguished

themselves not only through their legal acumen but

also by expanding the boundaries of what was visibly possible

for women in law. Each of them found ways to own a seat at

a table that was not built for them, and then, through their

work and example, made space for others to follow. Their

contributions – in jurisprudence and in mentorship – left an indelible

mark on Ontario’s legal system and the dozens of lawyers

they mentored, and it raised the standard for those who

followed them.

A commercial litigator in scarlet tabs: Justice Hilda McKinlay

Hilda McKinlay’s legal journey began at a time when women

in law were rare. Entering Osgoode Hall Law School in 1963,

she was one of just six women in a class of 175. Her commitment

is all the more extraordinary considering she balanced

the demands of legal coursework with raising her four children.

Her early career was marked by skepticism from her

law school colleagues and law firms who doubted whether a

woman with a family at home “would be able to keep up the

pace.” 1 However, she quickly dispelled this notion: After articling

at Fraser & Beatty, she went on to complete her masters

of law from Columbia University, teach at the University of

Toronto, and then practise commercial and banking law at the

well-respected firms of Fasken and Calvin and, as a partner,

Fraser & Beatty. 2

Appointed to the bench in 1983 and elevated to the Court

of Appeal in 1987, Justice McKinlay earned a reputation for

her mastery of complex commercial litigation. Her approach

was methodical, rigorous, and deeply pragmatic – a style that

would come to define her judicial philosophy. Among her

many contributions was her work refining the scope of the

remedy of specific performance in commercial cases, clarifying

when this equitable remedy should be available and under

what circumstances damages would suffice.

For example, in Landmark of Thornhill Ltd. v Jacobson, 3

Justice McKinlay was faced with the question of whether

a condominium unit could be considered “unique” for the

purposes of specific performance. Justice McKinlay confirmed

that a residential condominium unit can indeed be

“unique,” but emphasized that uniqueness alone is not

determinative of whether specific performance should

be granted and related factors such as the inadequacy of

damages as a remedy and the behaviour of the parties should

be considered. 4

However, Justice McKinlay was equally careful to set boundaries.

In 1110049 Ontario Ltd. v Exclusive Diamonds, 5 the issue

was whether the sale of a business – specifically, a jewellery

store in a shopping mall – warranted specific performance.

The would-be purchasers argued that the business was unique

on account of its location and the surrounding stores. 6 Justice

McKinlay disagreed, warning that most agreements to purchase

businesses are unique in some sense, but that this factor

alone should not justify the extraordinary remedy of specific

performance. 7 She held that courts should not routinely exercise

their discretion to grant the equitable remedy of specific

performance of the purchase of businesses where the remedy

of damages would suffice. 8

Landmark and Exclusive Diamonds are important contributions

to defining the scope of what constitutes uniqueness for

the purposes of specific performance in business deals and

illustrate Justice McKinlay’s instinct for balance. While Landmark

modernizes and pushes the boundaries of types of property

traditionally thought of as unique, Exclusive Diamonds

places a backstop on how far those boundaries can be pushed,

refusing to let the doctrine become a carte blanche for litigants.

Justice McKinlay’s influence extends far beyond commercial

law, and she also had a significant impact on family law.

Her decision in a case from 1994, Sengmueller v Sengmueller, 9


still provides the leading statement of the law in calculating

equalization payments during divorce proceedings with respect

to contingent disposition costs — the potential expenses

associated with selling or transferring assets. In Sengmueller,

the issue was whether these costs could discount the overall

equalization payment owed by one spouse to another upon divorce.

Justice McKinlay allowed for such deductions when the

costs were “inevitable” on a future sale, 10 setting out a test that

has since been cited from trial courts to the Supreme Court

of Canada. 11 Although Justice McKinlay recognized that such

costs “are not liabilities in the balance sheet sense of the word,

they are amounts which the owner will be obliged to satisfy

at the time of disposition, and hence, are ultimate liabilities

inextricably attached to the assets themselves.” 12 Sengmueller

fused Justice McKinlay’s commercial precision with a palpable

sense of fairness, proving again that the balance sheet can –

and must – account for human reality.

Justice McKinlay’s judicial philosophy was characterized by

a commitment to clarity, fairness, and practical results. She saw

that the law should serve real people in real situations, and

her judgments reflect a careful weighing of both legal principle

and human consequence.

The policymaker turned jurist: Justice Karen Weiler

Karen Weiler’s path to the bench was shaped by the blend

of scholarship, practice, and public-policy work that marked

the first decade of her career. Born in Regina, Saskatchewan,

Justice Weiler earned her law degree at Osgoode Hall Law

School and later returned to Osgoode to complete a masters in

law focused on child and youth justice. 13 With an eye initially

on practising private international law, she articled with Blake,

Cassels & Graydon in Toronto, but in 1969 moved to Thunder

Bay, where she joined the firm of Weiler, Weiler & Maloney,

then the largest full-service practice in northern Ontario. 14

In the early 1970s, she came back to Toronto, finished her

graduate degree, and entered government service, first with

the Ministry of Community and Social Services and, the following

year, with the Policy Development Division of the

Ministry of the Attorney General. 15 There, she helped design

and deliver province-wide consultations on the Ontario Law

Reform Commission’s reports, drafted major portions of the

Family Law Reform Act, and served as counsel to the all-party

legislative committee that shepherded the statute – work that

established the foundation for Ontario’s modern family-law

regime. 16 She was appointed to the bench in 1980 and elevated

to the Court of Appeal in 1992. 17

Justice Weiler’s background in policy development influenced

her judicial philosophy. Her judgments are characterized

by a deep concern for fairness and a willingness to challenge

established doctrine when it fails to serve the interests of

justice. In Francis v CIBC, 18 she confronted the issue of whether

an employer could limit an employee’s notice entitlement to

a maximum of three months by introducing a new employment

agreement after the employee had already accepted the

job. At the time Francis was decided, there was a gap in the

jurisprudence regarding the role of subsequent employment

agreements in determining an employee’s notice entitlement. 19

Justice Weiler’s decision filled this gap, and Francis remains a

frequently cited employment law decision. Justice Weiler held

that the subsequent employment agreement could not override

the original offer, because there was no additional consideration

to support such a significant modification of the employment

contract. 20 She held that the employer was already bound

to employ the plaintiff based on prior correspondence and a


suitable reference, and that most clauses

in the new employment agreement were

reasonably incidental and implicit to

such employment. 21

Justice Weiler’s commitment to equality

and fairness is also exemplified in her

dissent in Cronk v Canadian General Insurance.

22 There, the majority upheld a hierarchy

that awarded longer notice periods

to executives than to clerks based on the

“character of employment.” Justice Weiler

challenged this approach, invoking

a “notion of justice … bound up with

equality.” 23 She wrote, “The elevation

of character of employment means that,

other factors such as age and length of

service being equal, Ms. Cronk is entitled

to approximately 40 per cent less notice

than that which MacPherson

J. considered would be

given to senior management

employees. This is troubling.

Our notion of justice

is bound up with equality.

… [T]he rationale of principle

assumes that each person is

as worthy as any other, that

each must be treated with

equal concern according to

some coherent conception

of what that means.” 24 (It was unstated,

but quietly apparent, that at the time,

the vast majority of executives would be

male, and clerks female.)

In Cronk, Justice Weiler laid bare the

inescapable role of fairness and justice

in determining reasonable notice entitlements

at common law, and her dissent

remains highly influential in the ongoing

debate of whether managerial employees

should receive greater notice than

non-managerial employees.

Justice Weiler’s influence also extends

to family law, where she spent a large

part of her pre-judicial career, and where

her opinions reflect the same concern for

practical justice. In Burgess v Burgess, 25

one of her most-cited decisions even today,

she addressed the issue of differential

child-support orders, upholding the trial

judge’s decision to award support for one

child but not the other based on the children’s

relationships with their father. 26

Justice Weiler’s judicial philosophy

is marked by a willingness to question

assumptions, a commitment to fairness,

and a focus on the real-world impact of

legal rules. Throughout her judgments,

she kept a steady eye on lived consequences,

and her example continues to


inspire generations of lawyers, encouraging

them to think deeply about the

purpose and effect of laws.

The Court of Appeal sits at the fulcrum of

a justice system under strain from

self-represented litigants and the challenges

of new technological innovations.

A leader on both bench and board:

Justice Sarah Pepall

Sarah Pepall’s career is a study in leadership,

resilience, and quietly spoken trailblazing.

By the time she joined the Court

of Appeal in 2012, Justice Pepall had built

a distinguished career as a commercial

litigator and served as managing partner

at McMillan Binch – a rare achievement

for any lawyer and rarer still for

a woman at the time, when few held

senior leadership positions in Bay Street

law firms. She also served 13 years as a

Superior Court judge, including serving

as a team leader of the Commercial

List from 2006 to 2010, where she presided

over some of the most significant

Canadian commercial cases and a number

of major insolvency restructurings

of the time, including Canwest Global

Communications Corp., 27 Canwest Global

Publishing Inc., 28 and Smurfit–Stone

Container Canada Inc. 29 Her experience

in both the courtroom and the boardroom

gave her a unique perspective on

the challenges facing the legal system,

and she brought that perspective to bear

in her work as a judge and as president

of the Ontario Superior Court Judges’

Association, where she represented at

the time 300 Superior Court judges in

Ontario on several critical issues, including

compensation and judicial resources.

Justice Pepall’s judicial philosophy is

marked by a commitment to rationality,

common sense, and principled fairness.

Her approach to civil procedure has had

a significant impact on access to justice in

Ontario. In the landmark case of Butera v

Chown, Cairns LLP, 30 Justice Pepall authored

what has become the leading appellate

statement on partial summary

judgment motions. There, the motion

judge dismissed the plaintiffs’ misrepre-

sentation claim while allowing the balance

of the solicitor-negligence action

to proceed. Justice Pepall reversed the

motion judge’s decision and set out the

framework for when partial summary

judgment motions will be available. Her

analysis catalogued the systemic costs

partial summary judgment motions can

impose, including delay of the main

action while a partial motion is argued

and appealed; disproportionate expense

as parties incur trial-level preparation

costs without the payoff of a final resolution;

judicial inefficiency as scarce court

time is spent on issues that may have

to be re-litigated at trial; and the risk of

inconsistent findings because the record

on the motion is rarely as fulsome

as at trial, increasing the

likelihood of factual divergence.

31 Balancing the benefits

of such motions with

access to justice, she stated

the governing principle

that “[a] motion for partial

summary judgment should

be considered to be a rare

procedure that is reserved

for an issue or issues that

may be readily bifurcated

from those in the main action and that

may be dealt with expeditiously and in a

cost-effective manner.” 32 Justice Pepall’s

test soon came to be adopted by appellate

courts across the country and continues

to provide lower courts with a roadmap

for screening motions that threaten to

derail economical adjudication.

In Canada (Superintendent of Bankruptcy)

v 407 ETR Concession Company Ltd.,

Justice Pepall, writing for a unanimous

court, held that section 22(4) of Ontario’s

Highway 407 Act, 1998, was inoperative

to the extent it frustrated the Bankruptcy

and Insolvency Act’s “fresh start” by

using plate denial to coerce payment of

discharged toll debts, applying the doctrine

of federal paramountcy. 33 The Supreme

Court of Canada dismissed the

appeal, confirming that the provincial

provision cannot be used to enforce a

provable claim released on discharge. 34

407 ETR is a leading authority protecting

the integrity of the bankruptcy discharge

and the fresh start purpose of the BIA.

Justice Pepall’s criminal law opinions

are equally notable for their clarity and

courage. In R v Lacombe, 35 she confronted

the persistent problem of long-discredited

myths and stereotypes about sexual

assault complainants. Lacombe involved an appeal from an acquittal

in which the trial judge had questioned the complainant’s

clothing, the timing of her disclosure, and her failure

to fight back. Justice Pepall set aside the acquittal and held

that each of these factors improperly invoked sexist assumptions:

dress does not signify consent, passivity is not acquiescence,

and delay in disclosure does not imply fabrication. 36 She

stressed that such reasoning is “insidious” precisely because

it “masquerades as ‘common sense.’” 37 Lacombe has since been

relied on across Canada to reinforce the principle that sexual-assault

adjudication must be free of discriminatory logic

and has equipped appellate courts with robust language to

intervene where myths resurface, strengthening the integrity

of the criminal justice system.

In R v Slatter, a sexual assault case involving a complainant

with an intellectual disability, the appellant appealed his

conviction, raising a number of alleged errors that focused on

the adequacy of the trial judge’s reasoning, including arguing

that the trial judge erred in failing to assess the reliability of

the complainant’s evidence and the expert evidence of her suggestibility.

38 Justice Pepall dissented from the majority’s order

for a new trial. 39 The Supreme Court of Canada unanimously

allowed the Crown’s appeal “for the reasons of Justice Pepall”

and underlined the importance of focusing on an individual’s

actual capacities rather than general stereotypes. 40

Another area where Justice Pepall’s decisions have left

a lasting mark is that of private international law. Justice

Pepall was instrumental in changing the law relating to recognition

and enforcement of foreign non-monetary judgments

in Pro-Swing v Elta Golf, a case that she decided on

the Superior Court, 41 which eventually made its way to the

Supreme Court in 2006. 42 A decade later, in Goldhar v Haaretz.

com, an internet defamation action arising from an Israeli publication

about a Canadian businessman, a majority of the Court

of Appeal for Ontario declined to stay the Ontario action. 43 In

dissent, although Justice Pepall agreed with the majority that

Ontario courts had jurisdiction over the action, she would

have stayed the action on the basis that Israel was clearly the

more appropriate forum. 44 Two years later, a majority of the

Supreme Court of Canada allowed the appeal and stayed the

Ontario action, holding that Israel was the clearly more appropriate

forum and endorsed Justice Pepall’s call for a “robust

and carefully scrutinized” forum non conveniens analysis. 45 In

Airia Brands Inc. v Air Canada, the Court of Appeal set out a

framework for determining when Ontario courts can assume

jurisdiction over class actions involving absent foreign claimants.

46 Justice Pepall, writing for the court, held that Ontario

courts could take jurisdiction over absent foreign claimants

where (1) there is a real and substantial connection between

the subject matter and Ontario, and jurisdiction exists over the

representative plaintiff and defendants; (2) common issues link

the representative plaintiff and the absent foreign claimants;

and (3) the procedural safeguards of adequate representation,

adequate notice, and a right to opt out are provided, thereby

enhancing the connection and protecting order and fairness. 47

Justice Pepall’s decision broke new ground and provided clarity

on the viability of class actions with global classes.

Whether tightening the reins on inefficient procedure or dismantling

prejudicial reasoning, Justice Pepall has repeatedly

shown that leadership on the bench requires both vision and

vigilance. Her decisions prioritize proportionate resolution

without sacrificing doctrinal rigour, and she has developed a

reputation as a jurist who not only interprets the law in a practical

manner but also improves the machinery through which

justice is delivered. Her decisions are also well known for being

clearly written, tightly reasoned, and accessible – qualities that

have made them widely cited by courts across the country and

the Supreme Court of Canada.

Common threads: Risk, resolve, and ripple effects

Although they had different backgrounds and areas of expertise,

Justices McKinlay, Weiler, and Pepall share common threads in

their jurisprudence and judicial philosophy, including a commitment

to precision combined with pragmatism and a courage to

challenge the status quo. Justice McKinlay’s contingent-tax test

in Sengmueller, Justice Weiler’s insistence on the fair treatment

of managerial and non-managerial employees in Cronk, and

Justice Pepall’s rejection of myths and stereotypes in Lacombe

show the courage these judges had to question and, when necessary,

change the status quo to operable rules that have increased

the reach of fairness and practicality. These decisions are not

just theoretical exercises; they are designed to ensure that the

law increasingly works for the people it is meant to serve.

As former clerks, we would be remiss if we failed to mention

that mentorship, too, is a defining feature of their collective

legacy. Each judge invested deeply in the next generation of

advocates and judges. Justice McKinlay’s post-hearing review

of ethical and professional issues indirectly raised by the cases,

Justice Weiler’s careful discussions of legal precedent and

fair outcome, and Justice Pepall’s pre- and post-hearing discussions

of case arguments and legal principles all left a lasting

mark on their collectively hundreds of law clerks. Their commitment

to leadership is as much a part of their legacy as are

their written judgments, shaping generations of lawyers.

Why their legacies matter now

The Court of Appeal sits at the fulcrum of a justice system

under strain from self-represented litigants and the challenges

of new technological innovations. The jurisprudence of Justices

McKinlay, Weiler, and Pepall offers a timeless example for

how the law can adapt to new challenges without losing sight

of its core values: clear rules anchored in lived experience,

doctrine tempered by common sense, and collegial decisionmaking

that treats disagreement as a route to better answers,

not speeches.

As former clerks, we learned from Justices McKinlay, Weiler,

and Pepall that the law is not an abstract system, but a tool

for shaping and affecting real lives with fairness and dignity.

Through the continuing evolution of Ontario’s legal system,

they showed that it is possible to be both principled and pragmatic,

to respect tradition while embracing innovation, and to

balance the demands of justice with the needs of the people

the law is meant to serve. Their mentorship extended far beyond

legal research and writing; it shaped our understanding

of what it means to be a lawyer, a mentor, and a member of

the legal community. The lessons we learned from Justices

McKinlay, Weiler, and Pepall continue to shape our briefs, our

mentoring of junior lawyers, and, we hope, the next generation

taking the elevator to the second floor of Osgoode Hall and

walking into chambers.


Notes

1. Osgoode Society for Canadian Legal History, Interviews with Hilda McKinlay,

2001, C 81-1-0-164, p 60.

2. Ibid at pp 61, 72–73, 80–82, 87–88, 105–7, 126.

3. Landmark of Thornhill Ltd. v Jacobson, 1995 CanLII 1004 (ONCA).

4. Ibid at paras 36–37.

5. 1110049 Ontario Ltd. v Exclusive Diamonds Inc., 1995 CanLII 524 (ONCA).

6. Ibid at para 8.

7. Ibid at para 9.

8. Ibid.

9. Sengmueller v Sengmueller, 1994 CanLII 8711 (ONCA).

10. Ibid at para 18.

11. Rick v Brandsema, 2009 SCC 10; Barendregt v Grebliunas, 2022 SCC 22.

12. Sengmueller v Sengmueller, 1994 CanLII 8711 (ON CA), at para 18.

13. Osgoode Society for Canadian Legal History, Interviews with Karen Weiler, June

2005, C 81-1-0-147, pp 1, 20, 50.

14. Ibid at pp 20, 31, 47.

15. Ibid at pp 48, 51, 54.

16. Ibid at pp 54–66.

17. Ibid at pp 82–83, 161.

18. Francis v Canadian Imperial Bank of Commerce, 1994 CanLII 1578 (ON CA).




22. Cronk v Canadian General Insurance Co., 1995 CanLII 814 (ON CA).


24. Ibid.

25. Burgess v Burgess, 1995 CanLII 8950 (ON CA).

26. Ibid at paras 10, 14–15.

27. Canwest Global Communications Corp., 2011 ONSC 2215.

28. Canwest Global Publishing Inc., 2011 ONSC 633.

29. Smurfit–Stone Container Canada Inc., 2009 CanLII 2493 (ONSC).

30. Butera v Chown Cairns LLP, 2017 ONCA 783.



33. Canada (Superintendent of Bankruptcy) v 407 ETR Concession Company Ltd., 2013

ONCA 769 at paras 115–16.

34. 407 ETR Concession Co. v. Canada (Superintendent of Bankruptcy), 2015 SCC 52 at

para 33.

35. R v Lacombe, 2019 ONCA 938.

36. Ibid at paras 39, 42, 45.


38. R v Slatter, 2019 ONCA 807 at para 56.

39. Ibid at paras 164, 166.

40. R v Slatter, 2020 SCC 36 at paras 1–2.

41. (2003), 68 OR (3d) 443 (SCJ).

42. Pro-Swing v Elta Golf, 2006 SCC 52.

43. Goldhar v Haaretz.com, 2016 ONCA 515 at paras 1–7.


45. Haaretz.com v Goldhar, 2018 SCC 28 at para 14.

46. Airia Brands Inc. v Air Canada, 2017 ONCA 792 at para 1.


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THE ART OF ADVOCACY

Language, perception, and the art

and science of persuasion

Paul Fruitman

The adage “a picture is worth a thousand words” is often

attributed to Confucius. It was in fact dreamed up by an

early 20th-century advertising executive promoting the

use of images in ad copy. To provide an air of seriousness, he

later called it a “Chinese proverb.” 1 The confusion notwithstanding,

few doubt the saying’s wisdom. If anything, the adage

may understate the difficulty of describing, through words,

what we see.

This is because language is an intermediary. It bridges what

we perceive with our senses and our own understandings, beliefs,

and experiences. Language is an advocate’s most powerful

tool. It allows us to shape and organize facts to create narratives

and persuade decision makers. How we frame events and

the names we give to parties, objects, and incidents can turn a

case. While “clear and concise” is the general rule, language

can also be employed to obfuscate and take advantage of cognitive

biases. To make the most of the words we use, we would

do well to understand the effects they have on our minds and

our emotions.

What is and what will never be

We use language to convey what we perceive, making it two

steps removed from reality. That’s because what we perceive

with our eyes, ears, and other sensory organs is not exactly the

same as what is really in front of us. Take the colour yellow on

an LCD television screen. The yellow is not on the screen, but

in our minds. What we are really seeing is a mixture of red and

green photons in a specific ratio that, to the human eye and

brain, is indistinguishable from yellow photons. 2

Another example is the illusion of continuous perception.

Our eyes and brain in fact observe a series of discrete frames

that we perceive as a continuous reel. This is why the wheels

on a Formula 1 race car appear to be moving in reverse. The

wheel makes a complete turn faster than our eyes and brain

can capture and process, thereby giving the illusion of backward

rotation. 3

The gap between what is and what we perceive is further

magnified by our inability to recognize that space, a phenomenon

called naive realism: the belief that our perception of the

world accurately reflects reality, free from bias or influence. We

believe that the world looks as it does because that is how it is.

And, as importantly, we also believe that other people view the

world the same way we do.

Our perception does not capture everything and often obscures

what is right in front of us. By the time we get to describing

what we perceive, through words, we lose even more. The

words we choose modify the picture and can entirely change

what that picture reveals, or at least how we react to it.


What we call something informs how we perceive it

Consider the word “dog.” The simplest description of a “dog”

is a four-legged animal with a tail and fur. But that would be

woefully insufficient to differentiate a poodle from a German

shepherd, let alone from a lion or a fox. As such, we use more

words to better particularize what we see – words such as

“big,” “small,” “fluffy,” “shaggy,” “white,” “brown,” “skinny,”

and “stout.” We also invent breed names as summaries of those

attributes. The number of dog breeds is estimated at somewhere

between 200 and 500. These mediating words – breeds

and individual characteristics – allow one person to communicate

to another what a specific dog looks like. Of course, all

those mediating words are just a poor substitute for seeing the

dog with one’s own eyes. That’s why “lost dog” posters invariably

feature a large photo of the pooch with the accompanying

description in smaller print. The name of the breed functions

as a useful but ultimately insufficient descriptor.

Names can also be used to trigger emotions. Exhibit A of

this phenomenon is the Amber Alert, named after nine-year

old Amber Hagerman, who in 1996 was kidnapped while riding

her bike in Arlington, Texas, and later murdered. In the

same vein, Ontario passed Ryan’s Law 4 in 2015 following the

asthma-related death of 12-year-old Ryan Gibbons in a Straffordville,

Ontario, school. Ryan’s Law requires schools to create

asthma-friendly environments for students. But the “Asthma in

Schools Act” has less emotional pull and urgency than a name

that invokes the memory of a child.

Governments also use legislative nomenclature to convey

political priorities – and to score political points. Case in point

is the Tax Break for All Canadians Act, 5 the 2024 federal legislation

that briefly paused GST collection, which even the outgoing

finance minister appeared to suggest was a gimmick. But

our parliamentarians have little on the Americans. The Inflation

Reduction Act was more about green energy than reducing

inflation, while the beauty of Donald Trump’s One Big Beautiful

Bill Act is clearly in the eye of the beholder. Though these

efforts to cultivate public opinion with language are wildly

transparent, newspapers and television anchors have little

choice but to refer to these statutes by the proper names, which

instinctively draw positive, if misleading, associations in the

minds of viewers and readers.

Indeed, naming a thing can change our perception of the

thing itself. “Gender-affirming care” and “safe consumption

sites” presuppose general acceptance of these initiatives by

attaching universally valued concepts such as “affirming,”

“care,” and “safe” to issues on which there is less than universal

agreement. At the same time, Ontario Premier Doug Ford

uses the “drug dens” descriptor to attach a very different value

judgment to safe drug consumption facilities.

A far less political example is the Chilean sea bass. It used

to be called a Patagonian toothfish, an unappetizing moniker

which befits its rather ugly appearance. Though tasty and hard

to overcook, the fish remained largely unknown beyond the

Chilean fisheries until 1977, when a fish merchant named Lee

Lantz rebranded it as Chilean sea bass. It is now one of the

most popular seafood items in North America.

Giving names to objects can also deplete how we perceive

them. This practice is called “verbal overshadowing.” When we

give descriptive names to subjective items such as colours or faces

or foods, we are less able to later differentiate the hues, visages,

or tastes from ones that are similar. The more difficult an item is

to describe objectively, the more pronounced this phenomenon. 6

We can use these lessons on how we describe parties and

objects in our briefs and in court. Take a typical slip and fall

in a store entranceway in winter. If you are representing the

plaintiff, you can refer to them by first name to evoke empathy

and sympathy while referencing the defendant simply as “the

defendant” or “the business.” Conversely, counsel for the defence

can use the store’s proper name and “the plaintiff” to

identify the parties. As for the scene of the injury, the defence

will want to use neutral language, while the plaintiff may use

“the uncleared entranceway” or “the icy entranceway.” After

these terms are used repeatedly at trial, the judge and even

opposing counsel may start using them, framing the injury site

with a subjective and incriminating sobriquet.

The frame defines what you see and understand

As with naming, we can use language to frame issues. So much

of how we view an object or a dispute depends on its contours,

on what is being featured, and on what is being cropped out.

As advocates, we can frame our arguments and case theories

by using anecdotes and metaphors. Framing climate change as

a “war” has been shown to elicit a greater response than framing

it as a “race” or an “issue”; the “war” metaphor makes

people perceive more urgency and risk to encourage a greater

willingness to increase conservation behaviour, irrespective of

the time horizon. 7 Describing climate change as approaching

us versus something we approach also makes the issue seem

more serious, as well as more controllable. 8

Framing is unlikely to completely change a person’s mind.

But framing will trigger already-held values. 9 It can be particularly

useful where values compete in a courtroom setting. An

obvious example is a protest that blocks public roads. We can

frame such a protest as temporary and minimal in the context

of a greater cause or, alternatively, as an infringement on mobility

rights and a risk to health and safety – in particular, because

it impedes emergency vehicles. We can frame tax cuts as

encouraging private-sector dynamism or, alternatively, as the

involuntary starvation of public services. We can frame bike

lanes as a traffic-snarling example of social engineering or, alternatively,

as an initiative to create healthier and greener cities

while reducing cyclist injuries – and even as a Charter right. 10

Change the word, enhance the impact

The above examples show that words are not neutral. Even

words that are similar carry different meanings and invoke

different images and associations in the human brain. Verb selection

can also have a huge impact. When cars are described

as “having smashed” into each other, rather than “having hit”

or “having collided,” witnesses estimate them to have been

travelling at higher speeds. Witnesses are also more likely to

convey having seen broken glass when the verb is “smashed”

as opposed to “hit.” 11 How we phrase questions to witnesses,

in particular eyewitnesses, can change the answers we get. Humans

are very suggestible.

Language is just a tool, but every tool

is a weapon if you hold it right

We have seen how language can be used to convey priorities and

suggest associations. Language can also be used, unintentionally or


otherwise, to confuse. Details and complexity cause our brains

to conserve energy and look for useful and familiar heuristics.

Using words and jargon can overwhelm and distract or divert

our processing abilities. Take, for example, “attribute substitution,”

a cognitive bias whereby our brains conserve mental

bandwidth by replacing the target attribute with a more accessible

heuristic. 12 When faced with a hard question, we unconsciously

replace it with an easy one. If asked, “Does the

police officer’s story add up?” a juror’s mind may substitute,

“Are police officers trustworthy?”

In a related way, the use of details skews our understanding

of probabilities. The “misinformation effect” increases the perceived

reasonableness of a longer list, even if each item on the

list is less than probable. 13 Adding filler words can increase the

likelihood of an argument’s being accepted. At the same time,

the more complex the topic, the easier it is to omit unhelpful

truths. While our brains are working so hard to understand

what we are hearing or reading, we have less ability to recognize

what is missing. 14

The idea of larding up messages with filler words, jargon,

and unnecessary complexity runs counter to just about every

piece of writing advice. Writing manuals tell us to avoid unneeded,

complicating verbiage, extra words, longer words,

fancy words, Latin words, other foreign words, prolix text,

gibberish, nonsense, mumbo jumbo, and gobbledygook that

only confuse people and increase the word count. Instead,

we are coached to write clearly, in plain language. Use short

sentences. Omit extra words. Kill redundancy (note the irony

here). But brevity is the right tool only when we want to communicate

as clearly as possible. If that is the goal, then less is

always more; the shortest route between two points is, barring

obstacles, always a straight line. However, clear and concise is

not in every case the best route to persuasion. Our cognitive

biases suggest that sometimes a muddle can be more effective

than straight and to the point.

The ability to exploit these cognitive biases raises ethical

questions. Does our obligation of zealous advocacy extend to

not knowingly trying to confuse adverse witnesses, let alone

decision makers? If so, how does this tactic differ materially

from how we highlight helpful facts while trying to hide or

blunt harmful ones? I leave these and other ethical considerations

to those more learned than I am. In any case, it’s important

to understand how word choices and volume impact

comprehension

Ghost in the machine

Understanding the impact of language on perception and emotion

has been a decades-long study. Using its lessons requires

deliberate attention and conscious choices – at least for now.

As with almost everything, the impact of artificial intelligence

on our written briefs and oral arguments will be profound.

Large language models will help tailor arguments for specific

decision makers. They can already analyze drafts and suggest

changes to phrasing and tailor arguments based on prior rulings.

We will soon be able to feed in a whole universe of psychological

studies on language, neuroscience, and decision making

to increase the persuasiveness of our arguments without

our even knowing exactly what mental and emotional triggers

we are pulling.

Nonetheless, the oversight of counsel will remain critical as

recent case law on the use of generative artificial intelligence

has shown. Counsel using AI tools haphazardly have been admonished

15 – and have even faced the prospect of being found

in contempt. 16

Conclusion

To use language most effectively, we need to understand it as

an intermediary. It occupies the space between what we perceive

and what we understand. And because of the large distance

between perception and understanding, language offers

a wide strike zone in which to persuade. The words we choose

to frame and argue our cases can make or break them. This

is an exercise in detail and discipline. Political strategist and

The West Wing consultant Frank Luntz famously described

language as “like fire.” Depending on how you use it, “it can

either heat your house or burn it to the ground.” 17

Notes

1. Ole Bjørn Rekdal, “Academic Citation Practice: A Sinking Sheep?”

(2014) 14(4) Libraries and the Academy 567 at 575.

2. Rory Sutherland, Alchemy: The Dark Art and Curious Science of

Creating Magic in Brands, Business, and Life (Boston: Mariner Books,

2019) at 276–78.

3. Mariano Sigman, The Secret Life of the Mind: How Your Brain Thinks,

Feels, and Decides (Boston: Little, Brown, 2017) at 158–59.

4. Ryan’s Law (Ensuring Asthma Friendly Schools), 2015, SO 2015, c 3.

5. SC 2024, c 32.

6. NJ Enfield, Language vs. Reality: Why Language Is Good for Lawyers

and Bad for Scientists (Boston: MIT Press, 2022) at 75.

7. Stephen J Flusberg, Teenie Matlock, & Paul H Thibodeau,

“Metaphors for the War (or Race) Against Climate Change”

(2017) 11(6) Environmental Communication at 769–83.

8. Stephen J Flusberg, Teenie Matlock, & Paul H Thibodeau, “Thinking

About the Future: The Role of Spatial Metaphors for Time (2017)

39th Proceedings of the Annual Meeting of the Cognitive Science

Society, London, UK.

9. NJ. Enfield, supra note 6 at 117.

10. Cycle Toronto et al. v Attorney General of Ontario et al., 2025 ONSC

4397. Appeal pending.

11. EF Loftus & JC Palmer, “Reconstruction of Automobile Destruction:

An Example of the Interaction Between Language and Memory”

(1974) 13(5) Journal of Verbal Learning and Verbal Behavior at

585–89.

12. Philip E Tetlock & Dan Gardner, Superforecasting: The Art and

Science of Prediction (New York: Crown, 2016) at 39–40.

13. Maria Konnikova, Masternmind (New York: Viking Penguin, 2013)

at 174.

14. Hector Macdonald, Truth: How the Many Sides to Every Story Shape

Our Reality (London: Transworld, 2018) at 34.

15. Ko v Li, 2025 ONSC 2766; Zhang v Chen, 2024 BCSC 285.

16. Ko v Li, 2025 ONSC 2965.

17. Frank Luntz, Words That Work (New York: Grand Central

Publishing, 2008).


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ADVOCACY AND THE COURTS

Choosing judges: Elect them

or appoint them?

Anna SP Wong

as a cornerstone of our constitutional democracy. “[A] judicial

official must be, and must be seen to be, free to decide each

case on its own merits,” they wrote, “without interference or

influence of any kind from any source, including politicians.” 2

The public exchange spurred fresh conversations on a debate

classic: how best to select judges. Appointment or election?

Which way is better?

Ordinary rules of decorum do not apply, it seems, when

your name is Doug Ford. This past spring, hot on the

heels of losing a court challenge to legislation his government

introduced, the broad-faced, square-shouldered Ford,

Ontario’s long-running premier, swung hard at what stood in

his way – or rather, who stood in his way. “What right do they

have?” he huffed. “Unelected, politically appointed judges determining

our budgets.” He went on: “Let’s do what the US does.

Let’s start electing our judges, holding them accountable.” 1

The swing he delivered hit right between the eyes, prompting

the usually restrained judiciary to snap back. In an exceptional

move, the chief justices of Ontario’s three courts issued

a same-day joint statement emphasizing judicial independence

Why it matters

How judges obtain and retain their seats undergirds the legitimacy

of the judiciary. Lacking power of purse and of sword,

courts rely on legitimacy for compliance with their decisions.

Legitimacy has been described as the “reservoir of goodwill

that sustains institutional loyalty” 3 and the “most effective

enforcement mechanism.” 4 It is a kind of psychological property,

an invisible currency that gets people to obey the law,

even when they disagree with it. 5 When an institution is seen

as legitimate, it enjoys public trust and acceptance of its right

to make binding decisions. 6 The administration of justice, then,

hinges on courts having legitimacy.

So, what legitimatizes the courts? It depends on whom you ask.

As the batting and batting back between the premier and chief

judges serves to highlight, there are sharp differences of views.

Those on the chief judges’ side rally around judicial independence

as key to maintaining public trust and a felt obligation

to obey. People turn to the courts to resolve their disputes

on the promise that they will get a fair shake before judges

beholden to no one – not the legislature, not the executive, not

the wealthy or the powerful. Independence, which stands on

the legs of security of tenure, financial security, and administrative

control, 7 frees judges to make tough calls on controversial

issues, to go against the winds of majoritarian sentiment.

It lies at the core of the public’s expectations of the bench.

Unless judges can take action without fear, favour, or political

pressure, they may find it challenging to fulfill their role in

enforcing the rights of Roncarelli against Duplessis, or Heller

against Uber. Small wonder, then, that judicial independence is

said to be an “unwritten constitutional principle” 8 ; a means to

secure the rule of law, fundamental justice, and preservation of

the democratic process. 9 It “contributes to the perception that

justice will be done in individual cases” 10 and, so, enhances the

court’s legitimacy.


For populists like Ford, independence

is far less important than democratic accountability.

They would say without a

catch that judges are answerable to the

people, who are the fulcrum, the ultimate

masters, of democracy. Populists are

skeptical of the autonomy of the courts

and the insulation of law from politics. 11

To them, judicial decision-making is just

a subset of politics, or politics by other

means. 12 The people ought to be able to

choose their judges, like they do with top

officials in the legislative and executive

branches, and have justice dispensed in a

fashion that is responsive to public opinion.

13 If the public does not have a say in

who ascends the bench and the democratic

will is ignored by those in office, then

their authority will be perceived as illegitimate.

14 Put another way, unelected judges

have no popular legitimacy.

Populist calls for public participation

in judicial selection sit uneasily with the

notion of an independent judiciary that

is in a place apart from other institutions

of our society. At this crossroads of values,

we find ourselves in something of a

conundrum: Appointing judges seems to

go against democratic principles, while

electing judges risks their independence

being put on the line. 15 There is no pleasing

all sides.

History of how we choose our judges

Throughout the history of England, from

whom we derive most of our laws and

customs (outside of Quebec), judges

have always been chosen by the executive.

Initially, the dispensation of justice

rested with the king and his entourage

of chosen officials called the Curia

Regis. When judicial business got to

be too much to handle in the 12th century,

a separate judiciary was set up. 16

It was staffed with judges appointed to

hold office durante beneplacito (Latin for

“during pleasure”). Handpicked by the

king, they were his lackeys and expected

to uphold his policies. Independence

was a wild concept. Indeed, those who

had an independent mind were swiftly

removed, as was the case with two of

the chief justices of the King’s Bench:

Edward Coke in 1616, when he opposed

the king’s attempts to limit the courts’

jurisdiction; and Randolph Crew in

1624, after refusing to affirm the king’s

forced loans. 17

1701 is often remembered as a reformist

year for judicial independence. 18 It

was then that the Act of Settlement was

passed. The Act essentially locked in security

of tenure and financial security. It

granted that “judges’ commissions be

made quamdiu se bene gesserint [during

good behaviour] and their salaries ascertained

and established but upon the address

of both Houses of Parliament it may

be lawful to remove them.” 19 Tenure during

good behaviour gave judges greater

security in office and a buffer against an

overbearing monarch. Patterning ourselves

after the British, a doppelganger

of a provision was incorporated in our

Constitution in 1867. 20 Subsection 99(1)

of the Constitution Act, 1867, promised:

“[J]udges of the superior courts shall

hold office during good behaviour, but

shall be removable by the governor general

on address of the Senate and House

of Commons.” 21 There is no guarantee of

life tenure for judges of inferior courts,

meaning that the provinces could, if they

wish, have their judges elected for fixed

terms and face retention elections.

While judicial appointments have always

been a matter for the executive in

Canada, the process by which judges are

appointed has evolved over time. The

power to fill vacancies on the Supreme

Court of Canada and superior courts (s

96 courts) lies with the Governor General;

22 provincial courts (s 92 courts),

with the lieutenant governor in council.

23 With no constitutionally mandated

protocol, it is entirely up to the executive

how it makes the selection. 24 The general

trend over the years has been to move

away from unfettered ministerial discretion

toward public involvement by having

judicial appointment bodies screen

applicants. 25 Great variation exists in

the nature (standing or ad hoc), 26 size,

and composition of these bodies; the

same goes for the evaluative criteria and

mechanisms they deploy. Appointment

processes are far from transparent or

purely merit-based, 27 but behind us are

the days of closed-door secrecy, when

judgeships were blatantly and unapologetically

awarded for patronage. Still,

considerable discretion rests with partisan

executives in making the final call.

Controversy continues to flare from time

to time, as when the federal justice minister

Peter MacKay appointed his best

man and his best man’s spouse to the

Supreme Court of Nova Scotia. 28 Critics

have pointed out structural problems

with the processes, and described the

screening committees as “arms-length

for a very short arm.” 29 All of which is to

say, the appointive systems for choosing

our judges have room for improvement. 30

Use of elections

If independence of the judiciary is a recent

development in the grand arc of

history, choosing judges through popular

elections is even more so. The United

States is but one of a few countries

around the world to have judicial races. 31

Even in the United States, it is only at

the state level, and not in all states (39 of

50), that popular elections are used. 32 Federal

judges have always been appointed

for life terms subject to good behaviour,

which is guaranteed in the Constitution. 33

At the time of founding, all 13 of the original

states appointed their judges, for

tenures of varying lengths. Judges had to

be independent, beyond the influence of

other departments of power, and appointments

were thought to be the best way to

ensure it as Founding Father Alexander

Hamilton famously argued. 34 Joseph Grodin

helpfully recapped:

Determined to avoid undue executive

influence over the judiciary,

eight of the original thirteen states

provided in their constitutions for

selection of judges by one or both

houses of the legislature, and the remaining

five states qualified executive

appointment by insisting upon

concurrence by the Council. 35

Support for appointments shifted in

the 19th century, when patronage appointments

and corruption among legislatures

stoked populist resentment. 36 No

doubt peeved when the Supreme Court

blasted his administration for flouting

the law in Marbury v Madison, 37 Thomas

Jefferson scoffed at the antidemocratic

nature of life-tenured judges. 38 Having

judges “dependent on none but themselves,”

he remarked, ran counter to the

principle of “a government founded on

the public will.” 39 During the Jacksonian

era that ensued, a number of states

rewrote their constitutions for judges to

be elected by popular vote. 40 This practice

lasted until about the 1930s. 41 Direct

democratic scrutiny was thought necessary

to make judges accountable and

more, not less, independent so they could

stand up to pressure from the political

branches and constrain government

through judicial review. 42

Forcing judges to run for office in the


same manner as other politicians was controversial almost

from the get-go. 43 Critics booed loudly, noting that elections

were no panacea for the problems with the judiciary. 44 It was

not long before the public caught on to the perils of partisan

elections – of putting judges “securely in the pocket of the ruling

political machine” 45 – and began pushing for alternative

practices. 46 It led to reforms such as the Missouri Plan, which

combines merit-based appointive selection with periodic retention

elections. 47

Fast forward to today, and how judges are chosen varies

from state to state. Of the states that use elections to fill judicial

seats, their electoral arrangements fall into three broad types

(partisan, nonpartisan, and retention) with a hodgepodge of

more than 16 unique combinations across different jurisdictions

and levels of courts. 48 A partisan election has party labels

for judicial candidates on the ballot. A non-partisan election

has judicial candidates listed on the ballot without party identification.

A retention election requires the incumbent, who

may be appointed or elected, to face voters to keep their seat.

Beginning in the 1980s, judicial elections have morphed into

well-funded, ideologically divided sporting events. They

have become “noisier, nastier, and costlier.” 49 The 2025 race

for a seat on the Wisconsin Supreme Court was record setting,

with more than $100 million poured in. 50 Given the trappings

of campaigning, the chorus of objection to partisan elections,

with former United States Supreme Court Justice Sandra Day

O’Connor 51 and the American Bar Association 52 adding their

voices to the ensemble, has grown louder and more strident.

What the research tells us

The debate over the best way to choose the best judges has pulled

into its orbit legal scholars and political scientists in the United

States, who have probed, surveyed, and measured the impact of

selection methods on public perception and judicial behaviour.

Their findings shed light on some major questions surrounding

the relative merits of appointive and electoral systems.

How judges reach the bench affects how they perform on the

bench, in a dispositive way. One of the earliest studies examining

state supreme court decisions found a “very strong relationship”

between judicial selection method and decisional

outcomes in sex discrimination cases. Specifically, “decisions

upholding the sex discrimination claim are far more likely to

occur in states with appointive systems.” 53 Subsequent studies

showing that elected judges are harder on criminal defendants

than are their appointed counterparts 54 back the pattern.

Elected judges tend to uphold death sentences in line with

public support for capital punishment, especially in election

years. 55 Appointed judges, by contrast, are more likely to take

unpopular stances against the state to protect defendants’

constitutional rights. 56 On the whole, empirical research bears

out the conventional wisdom that judges who have to worry

about re-election have a harder time putting public sentiments

aside. 57 Cutting to the bone of it, elected judges, vulnerable to

electoral pressures, tend to behave more like politicians than

independents insulated from the political thicket in the performance

of their judicial functions.

Dispositions aside, there are interesting differences between

appointed and elected judges in terms of qualifications

and judging quality. Elected judges tend to be considerably

younger and in turn have less legal experience than appointed

judges. 58 The latter are more likely to have prestigious degrees.

59 Posner, Gulati, and Choi compared the productivity of

elected and appointed judges and found that elected judges

are more prolific. They write many more opinions and resolve

many more cases, though their opinions garner slightly fewer

out-of-state citations. The authors surmised that appointed

judges labour to write well-crafted reasons that command approbation,

whereas elected judges are more interested in providing

justice as a public service to voters. 60

It takes money to campaign for election, 61 and research seems

to prove the truism that money buys influence. Kang and

Shepherd found that the probability of a judge elected by

partisan election-making pro-business decisions goes up dramatically

as the amount of contributions received from business

groups goes up. 62 Judges themselves are wise to this:

According to judicial polling, 80 percent believe that interest

groups finance campaigns to shape decisions in their favour

and almost half agree that those who helped elect them have at

least “a little influence” on their decisions. 63 The public share

the fear. An analysis of public opinion polls done over a decade

found that 80 percent of the public think that elected judges

are corrupted by the contributors they must solicit to stand

for election. 64

That said, elections edge out appointments in perceived accountability

and legitimacy. Using both experimental vignettes

and panel surveys, James Gibson assessed the impact of judicial

campaigns on public perceptions of the legal system and did not

find any negative impact save for perceived judicial bias in favour

of campaign contributors. This led Gibson to conclude that

the net effect of requiring judges to face voters in elections is to

boost the public’s faith. 65 Yet perception is not reality, for there is

a disconnect between perceived and actual accountability. Studies

show that voters are generally ill informed about judicial

candidates 66 such that they cannot really hold anyone to account

at the ballot box. Instead, they tend to cast their vote based on

name recognition or name attractiveness. 67 This is not to mention

that favourable public perception is not uniform. People in

states that put their judges through the wringer of partisan elections

reported less confidence in the courts. 68

The picture that emerges from the research does not allow

us to declare one method of choosing judges a winner over

the other. Some claim that, on the whole, it cuts against the

case for judicial elections more than it supports it. 69 With the

promised accountability from elections being more theoretical

than real, it has been argued that “the minimal gains they engender

on that score are offset by the losses to independence

they cause.” 70

Conclusion

There is no perfect system for staffing the bench. Each strikes

a slightly different balance of values; both have their pitfalls.

Elections are largely about ensuring public accountability,

but they are effective only when you have a knowing public.

With an unknowing public, campaigning prowess becomes

the clinching factor. And the nagging question remains: How

can someone who must run for election ignore electoral politics?

There is no chance, or as the late Justice Otto Kaus of

the California Supreme Court put it, that would be like ignoring

a crocodile in your bathtub when you are shaving in the

morning. 71 If Premier Ford gets his way in switching systems,


at least when it comes to the provincial

bench, we may simply be trading one set

of legitimacy-upsetting hazards for another.

If any convincing is needed, just

glance south of the border.

It bears emphasizing that judges who

are appointed are not better, if they are

better, by the very fact of their being

appointed. Nor does appointing judges

insure against the influence of partisanship

or extralegal considerations creeping

surreptitiously into their decision

making. It is only when appointments

are merit based will we be able to recruit

the highest-quality candidates – individuals

who gain office because of their

abilities and professionalism. There is

progress that can be made, to be sure, to

elevate our processes to the standards

of being truly merit based, transparent,

and as free from partisanship influences

as possible. We can also do better to

educate the public on the unique role

that judges play in society. Unlike legislators

and executives, judges do not

have constituents whose views they are

supposed to represent. 72 Unlike legislators

and executives, judges do not make

social policies based on majority will.

Unlike legislators and executives, it is

not their business to be popular. In judging,

they apply the same rules to everyone.

Only the parties before the court

matter, and only the facts and the law

they put before the court are to be considered.

The better these critical differences

are understood, the less one would

think that judges and politicians should

be chosen the same way.

Notes

1. Adam Carter, “Ford Rants About ‘Bleeding-Heart Judges’ Who Are ‘Overruling the

Government’” (April 30, 2025); https://www.cbc.ca/news/canada/toronto/doug-fordontario-judges-bail-reform-1.7522701.

2. Public Statement by Ontario’s Three Chief Justices Regarding Judicial Independence (April

30, 2025); https://www.ontariocourts.ca/coa/public-statement-by-ontarios-three-chiefjustices-regarding-judicial-independence-april-30-2025/.

3. James L Gibson, “Electing Judges: Future Research and the Normative Debate About Judicial

Elections” (2013) 96:5 Judicature 223. Elsewhere, Gibson describes institutional legitimacy

as “the most important political capital [that] courts possess”: James L Gibson, “Challenges

to the Impartiality of State Supreme Courts: Legitimacy Theory and ‘New Style’ Judicial

Campaigns” (2008) 102:1 Am Pol Sci Rev 59 at 59.

4. Benjamin Woodson, “The Dynamics of Legitimacy Change for the U.S. Supreme Court”

(2018) 39:1 Justice System Journal 75 at 75.

5. Tom R Tyler, “Psychological Perspectives on Legitimacy and Legitimation” (2006) 57:1

Annual Review of Psychology 375 at 375.

6. Tom R Tyler & Jonathan Jackson, “Popular Legitimacy and the Exercise of Legal Authority:

Motivating Compliance, Cooperation and Engagement” (2014) 20:1 Psychology, Public

Policy, and Law 78; Tom R Tyler & Gregory Mitchell, “Legitimacy and the Empowerment

of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights”

(1994) 43:4 Duke LJ 703.

7. Valente v The Queen, [1985] 2 SCR 673 at 687. On judicial independence generally, see Adam

Dodek & Lorne Sossin, eds, Judicial Independence in Context (Toronto: Irwin Law, 2010).

8. Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 SCR

3 at paras 83–109 [Remuneration of Judges].

9. The Queen v Beauregard, [1986] 2 SCR 56 at para 24.

10. Remuneration of Judges, supra note 8 at para 10.

11. Timothy Lenz, “Popular Law and Justice” (1996) 20:3 Legal Stud F 387 at 387. For an overview

of populism, a term that originated in the United States, see Randall G Holcombe,

“Populism: Promises and Problems” (2021) 26:1 Independent Review 27.

12. Frank B Cross, “Law Is Politics” in Charles Gardner Geyh, ed, What’s Law Got to Do with It?

(Redwood City, Calif.: Stanford University Press, 2011) at 92.

13. Michael J Bryant, “Judging the Judges: Judicial Independence and Reforms to the Supreme

Court of Canada Appointment Process” (2004) 24 SCLR 29 at 31.

14. Kathleen M Sellers & Kathleen Knight Abowitz, “Populism, Classrooms and Shared Authority”

in Henry Tam, ed, Who’s Afraid of Political Education? (Bristol: Bristol University

Press, 2023) at 88.

15. Laura Zaccari, “Judicial Elections: Recent Developments, Historical Perspective, and Continued

Viability” (2004) 8:1 Rich J L & Pub Int 138 at 140.

16. Sir WS Holdsworth, A History of English Law, Volume I (Boston: Little, Brown, 1922) at 51;

TFT Plucknett, A Concise History of the Common Law (London: Butterworth, 1940) at 136; WR

Lederman, “The Independence of the Judiciary” (1956) 34:7 CBR 769 at 772.

17. CH McIlwain, The Tenure of English Judges (1913) 7:2 American Political Science Review

217 at 222.

18. Remuneration of Judges, supra note 8 at para 52.

19. Act of Settlement, 1701, 12 & 13 Will. 3, c 2, s 3(7).

20. Lederman, supra note 16 at 1160–61.

21. Constitution Act, 1867, UK, 30 & 31 Victoria, c 3, s 99(1). Note that Upper Canada had a

statute in place by 1834 that provided for good-behaviour appointments. See Adam Dodek

& Lorne Sossin, “Judicial Independence in Context” in Adam Dodek and Lorne Sossin, eds,

Judicial Independence in Context (Toronto: Irwin Law, 2010) 1 at 4.

22. As described in Democracy Watch v Canada (Attorney General), 2023 FC 31 at para 9, aff’d

2024 FCA 75, all federal judicial appointments are made by the Governor General on the

advice of cabinet. In turn, cabinet acts on the advice of the minister of justice. In the case

of appointment of chief justices and associate chief justices, it is the prime minister who

provides the advice to cabinet. See also Hameed v Canada (Prime Minister), 2024 FC 242, rev’d

but not on this point, 2025 FCA 118.

23. In Ontario, appointments of provincial judges are made by the lieutenant governor in

council on the recommendation of the Attorney General: Courts of Justice Act, RSO 1990,

c C.43, s 42.

24. Richard Devlin, “Dirty Laundry: Judicial Appointments in Canada” in Hugh Corder & Jan

Van Zyl Smit, eds, Securing Judicial Independence: The Role of Commissions in Selecting Judges

in the Commonwealth (Cape Town: Siber Ink, 2017) at 3.

25. For an overview of the history and evolution of our appointment processes, see Martin

L Friedland, A Place Apart: Judicial Independence and Accountability in Canada (Ottawa:

Canadian Judicial Council, 1995); Peter McCormick, “Judicial Councils for Provincial Judges

in Canada” (1986) 6 Windsor YB Access Just 160; Peter McCormick, “Judging Selection:

Appointing Canadian Judges” (2012) 30 Windsor YB Access Just 39 [McCormick, “Judging

Selection”]; Devlin, ibid.

26. Some are standing committees that deal with anticipatory applications; others are ad hoc

committees that screen reactive applications; still others are judicial councils that fulfill

functions beyond recruitment. Devlin, supra note 24 at 27–28; McCormick, “Judging

Selection,” supra note 25 at 57.

27. Devlin, supra note 24 at 24.

28. Sean Fine, “MacKay’s Judicial Appointments Favour Prosecutors Over Defence,” The Globe

and Mail (Toronto, December 29, 2014). See also Jennifer Henderson, “Peter MacKay’s

Friends, Colleagues Make Up 6 of 9 Judge Appointees” CBC News (February 13, 2015).

29. McCormick, “Judging Selection,” supra note 25 at 57.

30. See Devlin, supra note 24; Irwin Cotler, “The Supreme Court of Canada Appointment

Process: Chronology, Context and Reform” in Shimon Shetreet & Christopher Forsyth,

eds, The Culture of Judicial Independence: Conceptual Foundations and Practical Challenges

(Boston: Martinus Nijhoff, 2012) at 284; Adam Dodek, “Reforming the Supreme Court

Appointment Process, 2004–2014: A Ten Year Democratic Audit” (2014) 67 SCLR (2d) 111


at 146; Rosemary Cairns Way, “Deliberate Disregard: Judicial Appointments Under the Harper

Government” (2014) 67 SCLR 43; Adam Dodek, “The Persistence of Patronage, the Rise of

Ideology and the Decline of Legal Elites,” Policy Options (October 5, 2025).

31. The United States, Bolivia, Switzerland, Japan, and the Northern Mariana Islands are the

small number of countries that elect some of their judges. In 2025, Mexico became the

first country to elect all of its judges. See Judiciaries Worldwide, “Judicial Selection”;

https://judiciariesworldwide.fjc.gov/judicial-selection; Dalia G Tobias, “Mexico’s Judicial

Elections: Democracy in the Ballot” (June 2, 2025); https://www.bsg.ox.ac.uk/blog/mexicosjudicial-elections-democracy-ballot.

32. See the Brennan Center for Justice’s interactive map for judicial selection; https://www.

brennancenter.org/judicial-selection-map.

33. U.S. CONST. art. III, § 1 (“The Judges, both of the supreme and inferior Courts, shall hold

their Offices during good Behaviour …”).

34. Alexander Hamilton, “The Federalist No. 78” (May 28, 1788); https://founders.archives.

gov/documents/Hamilton/01-04-02-0241.

35. Joseph R Grodin, “Developing a Consensus of Constraint: A Judge’s Perspective on Judicial

Retention Elections” (1988) 61:6 S Cal L Rev 1969 at 1970.

36. Ryan L Souders, “A Gorilla at the Dinner Table: Partisan Judicial Elections in the United

States” (2006) 25:3 Rev Litig 529 at 543. For a detailed history, see Jed H Shugerman,

The People’s Courts (Cambridge: Harvard University Press, 2012).

37. Marbury v Madison, 5 US 137 (1803).

38. It was not until Marbury v Madison was decided that Jefferson objected to life tenure

for judges: Lee Epstein, Jack Knight, & Olga Shvetsova, “Selecting Selection Systems” in

Stephen B Burbank & Barry Friedman, eds, Judicial Independence at the Crossroads (Thousand

Oaks, CA.: Sage, 2002) at 202.

39. “Proposals to Revise the Virginia Constitution: I. Thomas Jefferson to Henry Tompkinson”

(Samuel Kercheval), July 12, 1816; https://founders.archives.gov/documents/

Jefferson/03-10-02-0128-0002.

40. Larry C. Berkson, “Judicial Selection in the United States: A Special Report” (1980) 64:4

Judicature 176; Jed Handelsman Shugerman, “Economic Crisis and the Rise of Judicial

Elections and Judicial Review” (2010) 123:5 Harv L Rev 1061 at 1071–73.

41. Jancintha M Webster, “An Impossible Balance: Judicial Elections and the Constitution”

(2016) 9:2 Alb Gov’t L Rev 384 at 388.

42. Shugerman, supra note 40 at 1089; F Andrew Hanssen, “Learning About Judicial

Independence: Institutional Change in the State Courts” (2004) 33:2 J Legal Stud

431 at 445–48; Herbert M Kritzer, Justice on the Ballot: Continuity and Change in State

Supreme Court Elections (Cambridge: Cambridge University Press, 2015) at 1.

43. Richard Lorren Jolly, “Judges as Politicians: The Enduring Tension of Judicial Elections in the

Twenty-First Century” (2016) 92 Notre Dame L Rev 71; Berkson, supra note 40 at 176–77.

44. Berkson, supra note 40 at 176–77. For example, in 1906, Roscoe Pound, former dean of

Harvard Law, lamented: “Putting courts into politics and compelling judges to become

politicians in many jurisdictions has almost destroyed the traditional respect for the

bench”: Roscoe Pound, “The Causes of Popular Dissatisfaction with the Administration of

Justice” (1956) 8:1 Baylor L Rev 1 at 23.

45. Rachel Paine Caufield, “In the Wake of White: How States Are Responding to Republican Party

of Minnesota v White and How Judicial Elections Are Changing” (2005) 38:3 Akron L Rev 625

at 627.

46. Webster, supra note 41.

47. Jay A Daugherty, “The Missouri Non-Partisan Court Plan: A Dinosaur on the Edge of

Extinction or a Survivor in a Changing Socio-Legal Environment” (1997) 62:2 Mo L Rev 315.

48. Rashaud J Hannah, “‘Noisier, Nastier, and Costlier’: Shoring Up Institutional Legitimacy in

Judicial Elections Using a Legal Ethics Framework” (2022) 35:3 Geo J Legal Ethics 463 at 464.

49. Roy A Schotland, “Elective Judges’ Campaign Financing: Are State Judges’ Robes the

Emperor’s Clothes of American Democracy” (1985) 2:1 JL & Pol 57 at 76.

50. “Wisconsin Lawsuit Seeks to Ban Elon Musk from Ever Offering $1 Million Checks to

Voters Again” CBS News (June 11, 2025); https://www.cbsnews.com/chicago/news/

elon-musk-wisconsin-million-dollar-checks-lawsuit/.

51. Jenna Greene, “Sandra Day O’Connor’s Unfinished Legacy of Judicial Election Reform”

(December 4, 2023), Reuters; https://www.reuters.com/legal/government/columnsandra-day-oconnors-unfinished-legacy-judicial-election-reform-2023-12-04/.

52. American Bar Association Commission on the 21st Century Judiciary, “Justice in Jeopardy”

(2003); https://www.opensocietyfoundations.org/uploads/1a79cf5d-79fc-4e5b-8479-

16ad3d805160/justiceinjeopardy.pdf.

53. Gerard S Gryski, Eleanor C Main, & William J Dixon, “Models of State High Court Decision

Making in Sex Discrimination Cases” (1986) 48:1 J Pol 143 at 148.

54. Carlos Berdejó & Noam Yuchtman, “Crime, Punishment, and Politics: An Analysis of

Political Cycles in Criminal Sentencing” (2013) 95:3 Review of Economics and Statistics

741; Sanford C Gordon & Gregory A Huber, “The Effect of Electoral Competitiveness

on Incumbent Behavior” (2007) 2:2 Quarterly Journal of Political Science 107; Gregory A

Huber & Sanford C Gordon, “Accountability and Coercion: Is Justice Blind When It Runs

for Office?” (2004) 48:2 American Journal of Political Science 247; Kate Berry, “How Judicial

Elections Impact Criminal Cases” (2015); https://www.brennancenter.org/our-work/

research-reports/how-judicial-elections-impact-criminal-cases.

55. Paul Brace & Brent D Boyea, “State Public Opinion, the Death Penalty, and the Practice

of Electing Judges” (2008) 52:2 American Journal of Political Science 360; Brandice Canes-

Wrone, Tom S Clark, & Jason P Kelly, “Judicial Selection and Death Penalty Decisions”

(2014) 108:1 American Political Science Review 23; Berry, supra note 54.

56. Daniel R Pinello, The Impact of Judicial-Selection Method on State-Supreme-Court Policy: Innovation,

Reaction, and Atrophy (Westport, CT: Greenwood, 1995) at 129–30.

57. Matthew J Streb, “Gibson’s Electing Judges: What We Know and What We Need to Know

About the Effects of Politicized Judicial Campaigns” (2013) 96:5 Judicature 213 at 214-25.

58. Diane M Johnsen, “Picking Judges: How Judicial-Selection Methods Affect Diversity in

State Appellate Courts” (2017) 101:1 Judicature 29.

59. Henry R Glick & Craig Emmert, “Selection Systems and Judicial Characteristics: The Recruitment

of State Supreme Court Judges” (1987) 70 Judicature 228; see also Eric Posner, G Mitu

Gulati, & Stephen J Choi, “Professionals or Politicians: The Uncertain Empirical Case for an

Elected Rather than Appointed Judiciary” (2010) 26:2 J of Law, Economics & Organization 290

at 327.

60. Posner, Gulati, & Choi, supra note 59.

61. As Justice Scalia observed in Williams-Yulee v Florida Bar, 135 S Ct 1656 (2015) at 1681, “One

cannot have judicial elections without judicial campaigns, and judicial campaigns without

funds for campaigning, and funds for campaigning without asking for them.”

62. Michael S Kang & Joanna M Shepherd, “The Partisan Price of Justice: An Empirical

Analysis of Campaign Contributions and Judicial Decisions” (2011) 86:1 NYU L Rev 69;

Michael S Kang & Joanna M Shepherd, Free to Judge: The Power of Campaign Money in Judicial

Elections (Stanford: Stanford University Press, 2023) at 11–12 [Free to Judge].

63. Kang & Shepherd, Free to Judge, supra note 62 at 5–6. See also Greenberg Quinlan Rosner

Research Inc, “Justice at Stake: State Judges Frequency Questionnaire” (2001–2); https://

www.brennancenter.org/sites/default/files/2001%20National%20Bipartisan%20

Survey%20of%20Almost%202%2C500%20Judges.pdf. (35% of state supreme court justices

responded that campaign contributions have had a “great deal” of influence or “some”

influence on their decisions.)

64. Charles Gardner Geyh, “Why Judicial Elections Stink” (2003) 64:1 Ohio St LJ 43 at 54–55;

Shira J Goodman, “The Danger Inherent in the Public Perception That Justice Is for Sale”

(2012) 60:3 Drake L Rev 807.

65. James L Gibson, Electing Judges: The Surprising Effect of Campaigning on Judicial Legitimacy

(Chicago: University of Chicago Press, 2012). See also Anthony J Nownes & Colin

Glennon, “An Experimental Investigation of How Judicial Elections Affect Public Faith in

the Judicial System” (2016) 41:1 Law & Soc Inquiry 37 at 56. But cf Annenberg Public Policy

Center Judicial Survey Results (2007); https://cdn.annenbergpublicpolicycenter.org/

Downloads/20071017_JudicialSurvey/Judicial_Findings_10-17-2007.pdf (finding that

Americans who live in states that elect judges are more cynical about their courts).

66. David Klein & Lawrence Baum, “Ballot Information and Voting Decisions in Judicial

Elections” (2001) 54 Pol Res Q 709 at 710; Geyh, supra note 64 (80% of the public is unable

to identify the candidates for judicial office).

67. Anthony Champagne, “The Politics of Judicial Selection” (2003) 31 Pol’y Stud J 413 at 414.

68. Sara C Benesh, “Understanding Public Confidence in American Courts” (2006) 68:3 Journal

of Politics 697 at 704.

69. Michael S Kang & Joanna M Shepherd, “Judging Judicial Elections” (2016) 114:6 Mich L Rev

929 at 931.

70. Geyh, supra note 64 at 76.

71. See Gerald F Uelmen, “Otto Kaus and the Crocodile” (1997) 30 Loy LA L Rev 971.

72. Republican Party of Minn. v White, 536 US 765 (2002) at 806 (Ginsburg, J, dissenting) (“Judges

... are not political actors. They do not sit as representatives of particular persons, communities,

or parties; they serve no faction or constituency. ‘[I]t is the business of judges to be

indifferent to popularity.’”)

.


FEATURE

Annals of law: Mack v Canada –

The campaign for head-tax redress

Kate Shao and Ryan W. O. Chan

The authors would like to thank Gary Yee, LSM, the Honourable

Justice Avvy Yao-Yao Go, Mary Eberts, OC, and Yew Lee

for sharing their stories and insights.

Susan Eng, an invaluable leader in the redress campaign and

the Chinese Canadian community, passed away shortly before

the publication of this article. She was a fearless champion of

social justice who continued to advocate for her community

until the very end.

What does it mean to belong? This question has plagued

Chinese Canadians for more than 140 years. For 62

of those years, the Chinese in Canada were subject

to legislated racism that placed a hefty tax on and eventually

closed the door to Chinese immigrants. These discriminatory

laws aimed at excluding Chinese people from Canada. They separated

families, fractured community development, and erased

Chinese contributions from the national narrative – leaving the

Chinese in Canada without a sense of belonging.

The Canadian Charter of Rights and Freedoms changed the conversation.

Advocates within the Chinese Canadian community

lobbied for redress through a relentless social movement and

class action. The Government of Canada ultimately apologized

for the anti-Chinese laws in 2006. With two decades of hindsight,

we reflect on the legacies of the Chinese Immigration Acts,

the community-led redress movement and class action, and

lessons learned going forward.

A connection and a disconnection

The Chinese Canadian story of disconnection began with national

unity. Chinese presence in Canada predates the birth

of the country. Chinese people began migrating over in the

mid-1800s – first in search of gold and then to build the first

transcontinental railway, the Canadian Pacific Railway. Between

1880 and 1885, more than 17,000 Chinese labourers were

hired to complete the railway, which united Canada. They

were assigned the most dangerous duties, such as handling

explosives to forge rail paths through the Rocky Mountains of

Alberta and British Columbia. Estimates say that three Chinese

workers died for every mile of railroad track laid. They were

paid $1.00 a day, half the pay of their white counterparts.

The last spike was driven into the Canadian Pacific Railway

140 years ago, on November 7, 1885. Chinese labourers accounted

for three-quarters of the workforce in the railway’s

completion. A commemorative photo was taken of the ceremonial

last spike at Craigellachie, British Columbia. Chinese

workers were not pictured.

The completion of the Canadian Pacific Railway was a


landmark moment in national history. The railway was the first

of its kind to facilitate trade and travel across the country, fostering

national unity and Canadian pride. The opposite, however,

can be said for the Chinese workers who built the railway.

Most of them were men who came to Canada for work and

would send money home, aspiring to later bring their families

over. The Canadian government did not share the same aspiration.

Anti-Chinese racism was rampant. The same year that the

Canadian Pacific Railway was completed, in 1885, the Government

of Canada imposed the first discriminatory law targeting

a single race of people, the Chinese Immigration Act, 1885. This

legislation imposed an entry “head tax” to deter the Chinese

from coming to Canada.

The Chinese head tax

The Chinese head tax sought to prevent Chinese workers and

their families from settling in Canada. It targeted new immigrants

from China, placing a $50 fee on their entry and limiting

the number of Chinese passengers on any vessel entering a

Canadian port. The Chinese Immigration Act also placed restrictions

on the Chinese already in Canada, including those born

in the country. The Government of Canada mandated their

registration with local authorities and regulated their travel

outside of the country.

Head-tax payers and registrants received receipts as proof

of payment and identity documents (or head-tax certificates)

to demonstrate their status. They often carried their papers in

their jacket pockets in case they were questioned by authorities.

The Chinese Immigration Act was amended several times.

The $50 fee was not as effective a deterrent as the Canadian

government anticipated. By 1900, the Government of Canada

doubled the head tax to $100 in hopes that the higher fee would

dissuade newcomers. This amendment stipulated that any

Chinese leaving Canada had to return within a year of departure;

failing to do so would result in repaying the head tax.

By 1903, the head tax rose to $500 – the equivalent of two

years’ wages. This tax impoverished families struggling for reunification.

Still, Chinese immigration continued, albeit at a

slower pace.

It is estimated that $23 million was collected from more than

81,000 head-tax payers in the 38 years the tax was operational,

from 1885 to 1923. Ironically, the cost of building the western section

of the Canadian Pacific Railway was about $23 million. The

Chinese labourers not only built the railway, but also paid for it.

The Chinese Exclusion Act

Although the $500 head tax did reduce Chinese immigration,

the Canadian government sought to halt it completely. On

July 1, 1923, the government repealed the Chinese head tax and

replaced it with the Chinese Immigration Act, 1923 (otherwise

known as the Chinese Exclusion Act). The Act banned Chinese

immigration to Canada, with fewer than 50 entrants qualifying

under the narrow exemptions for diplomats, merchants,

and some students. Instead of celebrating Dominion Day (now

Canada Day) with the rest of the nation, Chinese Canadians

regarded the holiday as “Humiliation Day.”

The Chinese Exclusion Act was in force for 24 years, from 1923

to 1947. Chinese persons in Canada were permitted to leave

for up to two years and then return; otherwise, they were

prohibited from coming back. The Act’s enforcement stretched

beyond World War II. Despite the blatant anti-Chinese sentiment

prevalent in government action and broader society,

more than 600 soldiers of Chinese origin fought for Canada

in the war. Many wanted to prove their loyalty in hopes of

gaining full citizenship rights. Chinese in Canada were finally

granted the ability to become Canadian citizens in 1947 and

permitted to vote in 1949.

Numbers and dates tell only part of the story. The impact of

these discriminatory laws is deeply personal and harrowing,

and still felt by thousands of Chinese Canadians today, like

Gary Yee and his family.

A search for belonging

Gary Yee’s grandfather pays the head tax

Gary Yee describes his experience in Canada as a search for

belonging. He left Hong Kong at the age of four and grew up

in Toronto. Now semi-retired, he spent his career as a successful

lawyer and the chair of several tribunals, so it may be hard

to picture him feeling out of place. But Gary’s experience is

not unique. His family, like thousands of others, has been in

Canada for generations and is still grappling with the impact

of 62 years of legislated racism.

Gary’s grandfather, Paul Chong, arrived in Canada at the

age of 20 from a small village in southern China’s Guangdong

province. It was 1917, and he was subject to the $500 head tax.

Mr. Chong made his home in Toronto, working at a meatprocessing

plant in the city’s Junction area before opening a

laundromat on Roncesvalles Avenue.

Life under the Chinese head tax and the Chinese Exclusion

Act was isolating. Mr. Chong’s wife had to stay in China while

he sent his earnings back home. The couple hoped to start a

life together in Canada once they had saved enough money.

Because of the discriminatory laws in place, that dream was

put on pause for decades.

During the years of exclusion, Mr. Chong journeyed back to

China twice. These two trips resulted in three children – the

first child being Gary’s mother. Mr. Chong’s wife remained in

China with their children during the years of forced exclusion.

She learned how to read and write solely to communicate with

her husband. The couple exchanged letters to keep in touch, but

they remained apart for 35 years.

The pair realized their dream of living in Canada together in

1952. By that time, Mr. Chong was 55 years old. He missed seeing

his children grow up, and they missed their father. His wife

came with their two youngest children, who were adults by the

time they immigrated. The remaining child, Gary’s mother, did

not join them until 1964, when she moved from Hong Kong

with her husband and their eight children, including fouryear-old

Gary. They arrived at a port in Vancouver and rode

the train to Toronto, not knowing the tracks had been laid by

Chinese labourers.

Gary becomes an advocate

Gary’s family settled in Toronto’s Bloor West neighbourhood.

He was one of only a handful of racialized students in school.

He never felt “Canadian enough” or accepted, despite becoming

his high school’s student council president and valedictorian.

He yearned for a sense of belonging, and he

excelled academically as a way to gain greater recognition and

social acceptance.


Paul Chong’s head-tax certificate, November 1917.

Following his graduation from high school, Gary became

involved in a Chinese Canadian community organization that

focused on multiculturalism and race relations. He started law

school in 1979 at the University of Toronto following two years

of undergraduate studies. There, Gary developed a heightened

appreciation for the rule of law and expanded his awareness of

injustices and human rights.

During his early years of community activism, Gary was inspired

by the efforts and successes of the Chinese Canadian

activists in the Toronto Ad Hoc Committee Against W5. In

1979, this group lobbied the CTV network for an apology for its

W5 episode “Campus Giveaway,” which depicted Chinese

Canadian students as foreign students taking places away from

“Canadian” university students. The W5 episode furthered the

“foreigner” trope and undermined the legitimacy and belonging

of Chinese Canadians within the education system and

broader Canadian society.

As a result of the anti-W5 campaign, the Chinese Canadian

National Council (CCNC), a national umbrella organization

with local chapters across the country, was formed in 1980.

Gary joined the council’s board of directors in the mid-1980s,

and it was there that he learned about the Chinese head tax

and the Chinese Exclusion Act. In 1984, in the early days of the

Canadian Charter of Rights and Freedoms, CCNC launched a

campaign seeking redress for Chinese head-tax payers and

their families. The organization began collecting head-tax

certificates, eventually registering more than 4,000 of them.

Gary’s grandfather, Mr. Chong, was one of those registrants.

Until that point, Gary was unaware that his grandfather had

paid the head tax.

Growing up, Gary knew little about his family’s journey to

Canada. Nobody discussed his mother’s decades of separation

from her father. And Gary’s limited Chinese language skills

prevented him from delving into his grandfather’s history

with any depth. Life under the discriminatory laws was a hardship

no one wanted to bring up. Gary now understands that

his family’s stoicism was a survival tactic that shielded them

from generations of trauma.

The CCNC redress campaign begins

Gary was called to the Ontario bar in 1985. Two years later, he

became CCNC’s national president, a volunteer role he took

on just after starting his new job as the founding executive director

of the Metro Toronto Chinese and Southeast Asian Legal


Clinic, now known as the Chinese and

Southeast Asian Legal Clinic (CSALC).

CSALC was established after years of

the community lobbying Legal Aid Ontario

for a speciality clinic to properly

serve the growing needs of Chinese and

Southeast Asian communities. Their efforts

came to fruition in 1987 after Ian

Scott, as the province’s attorney general,

agreed to increase governmental funding

to Legal Aid Ontario to create CSALC.

The redress campaign for Chinese

head-tax payers was one of CCNC’s top

priorities during Gary’s leadership from

1987 to 1991. On behalf of the thousands

of head-tax payers who registered with

CCNC, the organization demanded a

parliamentary apology and the symbolic

repayment of the $23 million paid in

head taxes. The initial redress campaign

was promising. It came about on the

heels of the 1988 federal election and

the historic negotiated settlement with

the National Association of Japanese

Canadians, which awarded a compensation

package of $300 million including

$21 thousand to each survivor of

the Japanese internment during World

War II, established a $12 million

community fund for educational,

cultural, and social programs, provided

$24 million to create a Canadian

race relations foundation, and included

an apology from Prime Minister Brian

Mulroney. Unfortunately, any momentum

gathered from these events did not

lead to meaningful progress for CCNC’s

redress campaign, especially with a recession

in the early 1990s and the government’s

concern that redress would

open the floodgates to claims from

other communities.

Despite the setbacks, CCNC continued

its campaign for redress, organizing

numerous meetings with government

officials, including ministers responsible

for multiculturalism, as well as holding

countless community meetings, forming

coalitions with trade unions and other

equity-seeking groups, collecting on

election promises, making school presentations,

and publishing materials. All

without the internet. Gary and his fellow

activists had no access to e-mail communications

until the late 1990s.

Gary learned that a successful redress

campaign needed more than a good case

and hard work. Timing, as well as gaining

access to those with political power

– which could take many years – would

prove paramount. After four years as

CCNC’s volunteer national president,

which overlapped his five years of running

the legal clinic (CSALC), Gary

switched career paths: from social justice

advocate to neutral arbiter. He left

CSALC in 1992 to manage legal services

at the Ombudsman of Ontario, remaining

there until his appointment in 1993

to the first of three full-time tribunal

chair positions – this one with the Police

Complaints Board of Inquiry. He continued

offering guidance and support

to the redress campaign in a reduced

capacity for years to come, and he found

himself working with the young lawyer

who was his successor at CSALC – Avvy

Yao-Yao Go.

Avvy Yao-Yao Go: A summer student

and the start of a movement

In the summer of 1988, a young law student

(now the first Chinese Canadian

appointed to the Federal Court) named

Avvy Yao-Yao Go walked into the office

of CCNC’s Toronto chapter for what

was meant to be an ordinary summer

placement. Within two weeks of Avvy’s

placement, the Toronto executive director

quit, and Avvy, barely past her

second year of law school, found herself

as acting executive director. A year later,

she was president of the CCNC Toronto

chapter. During this short time, Avvy

had become a key player in the campaign

for head-tax redress.

Fortunately for Avvy, she had the

support and guidance of leading Asian

Canadian advocates and lawyers such

as Gary Yee, Susan Eng, and Lilian Ma,

as well as Maryka Omatsu (who would

become the first East Asian woman appointed

a judge in Canada) and Art Miki,

both of whom had secured the redress

agreement for Japanese Canadians.

From a moral claim to a legal claim

Despite CCNC’s lobbying efforts, it was

clear that the official government policy

had all but stymied hope of redress from

the government, tying the hands of even

the most sympathetic members of Parliament.

The redress campaign needed

to find a new tactic. At this point, CCNC

began to consider legal action.

Avvy, who had become the clinic director

of CSALC in 1992, approached the

Court Challenges Program, where she

had sat on the equality rights panel and

later acted as vice-chair. She reasoned

that since the program had a history

of funding equality rights test cases,

the head-tax case, though concerning a

historical injustice, was fundamentally

an equality rights issue with present-day

consequences.

She was right. Through the Court Challenges

Program, Avvy secured $5,000 in

case development funding, which she

used to retain Phillip Pike of the African

Canadian Legal Clinic to produce a working

paper on how to frame a viable legal

argument for redress for the head tax. The

working paper was sent to leading constitutional

experts, including Peter Hogg,

Joanne St. Lewis, and Mary Eberts. Most

experts provided helpful comments and

encouragement, but the general message

was clear: Do the case because it’s the

right thing to do, but you won’t win.

Mary Eberts, however, disagreed with

that outlook and wrote a 20-page memorandum

setting out potential legal arguments.

The legal hurdles were steep: Yes,

the Canadian government had collected

millions from head-tax payers, setting

back the Chinese Canadian community’s

development, and never returned a cent.

But the legal theory needed to stand up

through the passage of time, notwithstanding

that the legislation predated

the Charter and had since been repealed.

As Mary put it, the task was “to bridge

the gulf of the age of the head tax and the

age of the Charter.”

Mary would go on to be lead counsel

on the head-tax case. With further input

and development from redress campaigners

and their allies, among them

esteemed academics like David Dyzenhaus

and Mayo Moran, Mary developed

the legal argument to support the claim

for damages and disgorgement of the

revenues raised under the head-tax

legislation. That argument was based on

three grounds:

l unjust enrichment (which required

proof of enrichment, a corresponding

deprivation, and a lack of juristic

reason for the enrichment);

l that the legislation breached equality

rights under section 15 of the

Charter; and

l that the legislation breached customary

international law that prohibited

racial discrimination, rendering it of

no force and effect.

Mary also identified that the class

action procedure, still relatively new for

discrimination claims, was well suited


to the case. There was clearly a defined

class – people who paid the head tax in

order to enter Canada, their spouses,

and their descendants who continued

to suffer from the consequences of the

discriminatory tax that had stunted the

development of the Chinese Canadian

community.

Yew Lee and the bus-stop breakthrough

A viable argument and a strategy were

now in hand. But a new problem had

arisen. Who could sue?

Fortunately, Yew Lee, former president

of the Ontario Council of Agencies Serving

Immigrants (OCASI) and a descendant

of a head-tax payer, also was looking

to pursue a legal challenge to address the

head tax. As Yew describes it, it was a

“fortuitous meeting of minds.” Yew had

known Avvy and her sister Teng-Teng

Amy Go (who was also heavily involved

with CCNC as its national president)

through his work at OCASI. Yew and his

mother, Quen Ying Lee, were ready for a

fight, later agreeing to act as representative

plaintiffs for the spouses and descendants

of head-tax payers. Finding an

actual head-tax payer, however, would

prove a far greater challenge. So much

time had passed that few head-tax payers

were still alive.

The solution came to Avvy one day, as

she rode the bus to work. On her regular

commute from the Finch subway station,

Avvy observed an elderly Chinese

Canadian man who walked with two

canes and dressed modestly. “I bet he’s

a head-tax payer,” Avvy recalls thinking

to herself. “The next time I see him, I’ll

walk up and ask him if he wants to join

the lawsuit.”

As fate would have it, before Avvy had

a chance to approach the elderly man,

she met Sharon Lem, a reporter who

was interested in the head-tax case. After

Avvy shared her plan to approach the

elderly man, Sharon said, to everyone’s

surprise, “I think that’s my grandfather.”

Indeed, her grandfather was Shack Jang

Mack, who Sharon would later convince

to be the lead plaintiff in the lawsuit.

The redress movement now had its

plaintiffs.

The motion to strike

The statement of claim for Mack v Canada

(Attorney General) was filed in December

2000 on behalf of a class of 4,000 headtax

payers and their spouses, widows,

and children. In response, the Attorney

General of Canada moved to strike the

claim on the basis that it disclosed no

reasonable cause of action.

The matter came before Justice Peter

Cumming. Given Justice Cumming’s

background as a law professor and his

familiarity with human rights issues,

this was as good a chance as any to secure

a win, or at least to open the gate for

redress. Mary Eberts recalled the courtroom

that day. It was filled with head-tax

payers, their spouses and descendants,

and members of the redress movement

who attended as observers in solidarity.

Their presence told Mary she had

the support of her clients, who would

give the court a visible reminder of the

importance of the issues.

Justice Cumming was respectful and

understanding, but ultimately he granted

the motion to strike. He held that the

Charter could not be applied retroactively.

There was no “contemporary application”

of a law that was repealed in 1947.

As well, redress granted to one group (in

particular, Japanese Canadians) did not

create a legal basis for redress to another.

International treaties and conventions,

the court further noted, were not part of

Canadian law unless implemented by statute,

and even if they were, there was no

clear principle of accepted international

law which holds that governments owe a

positive legal duty to provide redress for

violations of human rights.

With respect to the unjust enrichment

argument, Justice Cumming did acknowledge

that the Canadian government had

been enriched and that the payers of the

head tax had suffered a corresponding

deprivation. However, he held that the

Chinese Immigration Act in its various

forms, which were valid statutes at the

time, constituted a juristic reason for

the enrichment.

Justice Cumming nonetheless issued

a scathing rebuke of the head-tax legislation,

noting that “the legislation in its

various forms was patently discriminatory

against persons of Chinese origin,”

was racist, and was “repugnant and reprehensible.”

Crucially, he further held

that “Parliament should consider providing

redress for Chinese Canadians

who paid the Head Tax or were adversely

affected by the various Chinese Immigration

Acts.” Under the circumstances,

he found that an award of costs was

not appropriate.

Justice Cumming’s decision was appealed

to, and ultimately upheld by,

the Court of Appeal for Ontario, which

concluded that the courts lacked jurisdiction

to “reach back almost a century

and remedy the consequences of laws

enacted by a democratic government

that were valid at the time.” The hearing

at the Court of Appeal was regrettably

a painful experience for many

of the observers who were affected by

the decisions.

Nonetheless, the panel of the court also

denounced the head tax, condemning the

impugned laws as “racist and discriminatory.”

The court also agreed with Justice

Cumming that an award of costs was not

appropriate in the circumstances.

On April 24, 2003, the Supreme Court

of Canada dismissed the plaintiffs’ application

for leave to appeal the decisions of

the courts below, thus putting an end to

the court challenge.

A good loss and a sore loser

Although both the Superior Court and

the Court of Appeal had ruled against the

redress campaign on the law, they had

unreservedly condemned the head tax,

giving the campaign, and the exhausted

advocates behind it, renewed vigour.

Additionally, the case had generated

widespread media coverage, which significantly

increased public awareness of

the injustice of the head tax. In particular,

immediately after the release of Justice

Cumming’s decision at the Superior

Court, a Globe and Mail editorial stating

that the government should provide redress

for the head tax ushered in a wave

of mainstream media and national attention.

Yew fondly recalls that even when

he was as far away as Nunavut, he was

recognized and supported for his efforts

in the head-tax redress campaign.

The decision was therefore, as Mary

describes it, “a good loss.”

But Avvy, in her own words, was “a

sore loser.” She could not accept only a

judicial recognition of Canada’s racist

past. Avvy continued to seek allies,

and she eventually connected with author

and social activist June Callwood,

who in turn connected Avvy with Pierre

Berton for an interview. Pierre was a

distinguished historian and the author

of The Last Spike (1971), one of the first

books to recognize the contribution of

Chinese labour to the construction of the

Canadian Pacific Railway and its effect


on the development of Canada.

After the interview, Pierre donated one

of his two railway spikes (spikes that

were driven into the Canadian Pacific

Railway track) to the redress activists.

Later sealed in a glass case for protection,

the spike was shepherded across

the country by Avvy to raise awareness

of the head tax and redress campaign. It

would become a symbol of the redress

movement – and a rallying cry.

At the same time, Susan Eng and the

Ontario Coalition of Head Tax Payers

and Families (OCHTPF), which Susan

had co-founded, lobbied senior members

of the Conservative Party, who had been

seeking support from equity-deserving

communities, to ensure that proper redress

and negotiations with CCNC

would continue.

The redress campaigners finally caught

a break. On November 28, 2005, the federal

government under Liberal Paul

Martin was defeated on a motion of

non-confidence, forcing the dissolution

of Parliament and a general election on

January 23, 2006. In the lead-up to the

election, extensive media coverage ushered

in by the redress activists’ coordinated

media campaign and widespread

support from Chinese Canadians, including

new immigrants, forced politicians

to acknowledge the need for redress. In

the face of mounting public pressure,

Stephen Harper promised to compensate

direct victims of the head tax if elected to

form a government.

Apology and redress

On January 23, 2006, Canadians elected

a minority Conservative government

under Prime Minister Harper. The general

promise of redress had been made,

but no details were shared or negotiated.

Unlike the National Association of

Japanese Canadians in 1988, the CCNC

representatives did not know what, if

anything, the government would offer

with its apology.

Susan Eng was instrumental in pushing

the government’s promise of an

apology to fruition. Along with Brad

Lee, a fellow redress advocate with connections

to the new federal government,

Susan brought the issue forward to Jason

Kenney, then parliamentary secretary for

multiculturalism.

On June 22, 2006, Prime Minister Harper

made good on his promise of redress. After

being presented with the ceremonial

spike by head-tax payer James Pon, the

prime minister stood in the House of

Commons to deliver a formal apology

to head-tax payers and their families.

Survivors and their spouses and descendants

from across Canada watched

from the gallery, many of them able to

attend after Susan persuaded VIA Rail to

facilitate the “Redress Express” through

a donation of more than 100 rides. Gary

and Avvy rode the express from Toronto

to the capital. The head-tax apology

marked the first time the government listened,

in an official capacity, to the stories

of head-tax payers and their families.

Prime Minister Harper acknowledged

the head tax as “a grave injustice” and

declared “Gaan-na-dai doe-heep,” Cantonese

for “Canada apologizes.” He announced

symbolic payments to surviving

head-tax payers and their spouses.

The apology was an unparalleled political

milestone for the redress campaign,

the culmination of decades of organizing,

lobbying, and litigation.

Regrettably, for many it was too little,

too late. By then, few head-tax payers

were alive. The Canadian government

had made 785 symbolic payments

of $20 thousand by March 31, 2008, of

which only 100 were to head-tax payers.

Even Mr. Mack, who had played so

instrumental a role in the campaign,

had passed away before he could see

justice done.

Gary Yee’s grandparents had also

passed away long before the apology.

His family did not receive any redress

from the government. Gary recalled a

sense of “numbness” in response to the

apology. The delay left him with mixed

feelings: no joy, but no bitterness either;

only a partial sense of closure.

The government also established a

fund for community and educational

projects, the Community Historical Recognition

Fund. One initiative created

under it was the CSALC-driven website

Road to Justice: The legal struggle for equal

rights of Chinese Canadians. This website

explores early laws of anti-Chinese

discrimination in Canada through summarized

cases, biographical sketches,

and interviews with community activists.

The web link is http://www.roadto

justice.ca.

The legacy of Mack lives on

Mack’s legacy lives on in the strategies it

tested: the now-widespread use of class

actions to address historic wrongs and

create legislative and societal reform;

the incorporation of international law

arguments and private law principles

to ground civil rights actions; and the

willingness to turn a “good loss” into a

political win.

On July 29, 2025, the Chinese Canadian

National Council, now CCNC for Social

Justice (CCNC-SJ), led by Amy Go, and

the Chinese and Southeast Asian Legal

Clinic (the coalition), received leave

to intervene at the Supreme Court of

Canada in English Montreal School Board,

et al. v Attorney General of Quebec, et al.,

in part by relying on the decision in

Mack. The appeal in English Montreal

School Board concerns the Quebec Court

of Appeal (QCCA) finding that section

33 of the Charter permits the Quebec

legislature to immunize discriminatory

legislation from judicial review, effectively

preventing numerous members of

certain religious communities, many of

whom were also racialized minorities,

from holding key public positions.

The coalition is represented by Raj

Anand, Ryan Chan, Christine Dang,

and Simon Kuan. The motion seeking

leave to intervene pointed to the outcome

in Mack, identifying that racialized

groups were now left in a double bind.

The courts in Mack held that minority

groups could be subject to discrimination

by validly passed laws because the

Charter had not yet come into force; but

today, according to the QCCA in English

Montreal School Board, minority groups

can still be lawfully subjected to discrimination

in the Charter era by invoking

section 33 of the Charter.

The coalition will be arguing at the

Supreme Court that the QCCA misinterpreted

section 33. According to the coalition,

the purpose of section 33, properly

interpreted in a manner consistent with

the preservation of the multicultural

heritage of Canada as required under

section 27 of the Charter, is to facilitate

accountability and a dialogue between

the courts and legislature to produce

rights-sensitive legislation. Section 33

may therefore be used only to insert the

legislature’s interpretation of rights, not

to fundamentally abrogate them.

The legacies of Mack and the head-tax redress

campaign live on today. They are

models for bringing justice to historical

and present-day injustices, and, hopefully,

for bringing a sense of belonging to all.


CONTEMPORARY ADVOCACY

Litigation firms and the imperative

for transformational change

Samantha M. Green

What’s needed could be a transformation. Transformational

change redefines how an organization creates value, how work

gets done, and how people engage. It challenges core assumptions.

Critically, transformational change demands leadership.

John P. Kotter, Harvard Business School professor and

best-selling author, has long argued that successful organizational

change depends on recognizing that change is not a

single decision, but a structured process. His eight-step framework

– from creating a sense of urgency to making change

stick 1 – offers a roadmap. Yet for many litigators, applying this

model will feel like unfamiliar terrain.

Lawyers can be wary of risk and change. Many firms approach

change reactively, adjusting only when market pressures

become unavoidable.

But what if litigators led change rather than followed? What

if they chose to get ahead of the change curve?

Reimagining workflows, rethinking training models, modernizing

the tech stack – these are no longer fringe initiatives.

They are strategic imperatives. So too is re-examining fundamental

assumptions about staffing structures, service delivery

models, and pricing strategies.

Transformation in law doesn’t have to mean abandoning

what works. As disruption accelerates, litigators and their

firms that act with foresight may not just adapt more effectively.

They may emerge stronger, more agile, and better equipped

to thrive.

The author is grateful to Ron Davis and Alex Sinclair for

reviewing and providing feedback on this article.

By training and tradition, lawyers are stewards of stability.

By tradition, lawyers tend to favour incrementalism –

measured, deliberate adjustments that reinforce predictability.

But the context in which firms operate is shifting rapidly.

Technological disruption, significant procedural changes, and

evolving client needs are reshaping the landscape. In this climate,

incrementalism may not suffice.

Artificial intelligence and the rapidly changing

litigation landscape

A 2025 Thomson Reuters survey report, Future of Professionals,

reported that “77% of respondents believe AI will have a high

or transformational impact on their work over the next five

years.” 2 Every litigator has heard the words of warning about

AI and the risks of hallucinations. While such cautions may

breed a desire to avoid AI entirely, the rules of professional

conduct in many provinces/territories now require some level

of technological competence by lawyers. 3 AI use in legal research

and e-discovery is increasingly common; in 2024, the

Canadian Bar Association published a use-of-AI toolkit and

cited examples. 4 Nonetheless, many firms have not planned

AI’s integration into the practice of litigation. Perhaps your


firm has already adopted a use of AI policy. Is it sufficient?

Has the firm considered how it could integrate this change in

a way that doesn’t just control for risk but maximizes its use to

improve litigation services? If not, now is the time.

Revamping civil litigation

By now, most litigators in Ontario will have at least heard

about the sweeping changes being proposed by the Ontario

Civil Rules Review (CRR) committee. The CRR’s consultation

paper doesn’t just tweak the Rules of Civil Procedure – it proposes

a full rewrite. Everything – from how litigators structure

retainers to how they train staff, handle production requests,

and prep for trial – will change. It’s no exaggeration to say

this overhaul would be the biggest shakeup in Ontario litigation

in more than a generation. Ontario’s CRR may well spur

change in other provinces. In July, the Supreme Court of British

Columbia’s Civil and Family Chambers Practice Working

Group launched a consultation to gather input on how to improve

the timeliness and efficiency of the chambers process. 5

Litigation firms and departments will need to get ahead of these

changes and make the most of the time they now have to plan.

Changing client needs

A familiar catalyst for change is changing client needs. Think

of the large client who, for any number of reasons, moves their

litigation work or decides to take it in-house. Or consider that

a large litigation file assigned to a number of lawyers has come

to an end.

What happens to the lawyers and staff who don’t have a new

file waiting for them? In his book Heenan Blaikie: The Making

and Unmaking of a Great Canadian Law Firm, Professor Adam

Dodek wrote:

Law firms are notoriously amateurish when it comes to

project management. Teams are often put together haphazardly

based on the personal preferences of the lead

lawyer, the immediate availability of other lawyers, and so

on. If additional support is needed, lawyers may be hired

into full-time, permanent positions without much thought

about the long-term staffing needs of the group or department

after the big case or the big transaction is over. 6

While the practice of ad hoc staffing may be changing at larger

firms, it is still a familiar experience at mid-sized or small firms

which rely more heavily on a particular practice area or client

and have little plan for what to do in the event of a change.

Leading change in litigation firms and departments

Businesses are often unsuccessful at managing transformational

change. Professor Kotter has found that businesses often fail

to recognize that change is a process that can take time. 7 Law

firms are no different. The time it takes to plan for the kinds of

transformational change described above is exactly why litigators

need to start early. 8

Of the experience at Heenan Blaikie, Professor Dodek found:

There was precious little planning: no strategic planning,

no succession planning, no planning for the end of big cases,

and no planning for an economic slump … [L]awyers

were practising their profession, but the lesson here is that

law is both a profession and a business. 9

Planning for change is the key to succeeding at it, rather than

being dragged along (or worse, left behind). Professor Kotter

identified eight steps to leading transformational change: 10

1. establishing a sense of urgency;

2. forming a powerful guiding coalition;

3. creating a vision;

4. communicating the vision;

5. empowering others to act on the vision;

6. planning for and creating short-term wins;

7. consolidating improvements and producing still more

change; and

8. institutionalizing new approaches.

How can the eight steps be applied to transformational

change in a litigation firm or department? What are easy ways

to get started and create change that lasts?

Appoint a point person

If you haven’t appointed someone on your legal team to be the

point person for the change you are planning, now is the time.

That person can dig deep into the proposed changes and identify

how to interpret them and their impact. This individual

can help to create the sense of urgency among the rest of your

litigation team that can propel change forward.

Start a working group

Litigation firms and departments, of any size, can establish a

working group of professionals who are focused on planning

for the future. In bigger firms, this can be an internal group;

smaller firms or sole practitioners can reach out to their network

and establish groups of lawyers who agree to work

together to figure out how they will address the changes.

These working groups can include lawyers of varying levels

of seniority along with students, paralegals, and clerks whose

work will be directly impacted by the changes. For a group to

succeed and to ensure that its recommendations have weight

and are implemented, it needs to be empowered by whatever

higher authority exists in your institution, or by the agreement

of the participants.

Set a mandate

What does your working group want to achieve from this

transformation process? The vision for your working group

may be as simple as ensuring the successful implementation of

the changes to your practice. However, it could be more. The

key, according to Professor Kotter, is to ensure that the vision

you set can be succinctly communicated in five minutes.

Consider how your mandate fits within your firm’s overall

strategy. Is there an alignment? If your firm doesn’t have a

strategy, perhaps now is the time to set one up.

Map out the phases of your working group’s mandate. You

may want to focus first on educating the firm on the changes,

which will come in different forms. The non-litigation departments

of your firm will need to be brought up to speed on the

impact that changes are having on the practice of litigation.

Convince others

Under-communicating the vision and plans is an error that

can lead a change process to fail. 11 Communication of how the

change will impact the practice of litigation is key. It is important

to communicate early and often, internal to your organization

but also externally. Clients need to know that their lawyers


understand the changes that are coming and will be able to

expertly guide them.

Identify barriers to change and how to overcome them

There could be any number of barriers to implementing transformational

change. Identifying and addressing them will be

key to a successful transition. Does your firm’s tech stack support

the changes you are implementing? Legal-tech companies

already offer a host of AI tools and, undoubtedly, are working

on solutions to address the proposed changes to the Rules

in Ontario. No matter what transformational change you are

planning for, you are retraining your team; so now is an opportune

time to consider the tech changes that can help ease

that transition. Staffing may present another barrier. Do you

have the right staff to support the transformational change?

Consider how your legal support needs will change under the

new system.

Empower through training and mentorship

Transformational change in litigation practice will require

more than new tools or processes – it will demand a fundamental

shift in mindset. Shifting away from any part of how

we currently deliver litigation services will require deliberate,

sustained investment in learning and development.

The profession has already demonstrated its ability to adapt.

The swift normalization of virtual hearings and e-filing during

the pandemic proved that legal teams could absorb significant

change when the need is clear and the support structures are

in place. The question now is how to build on that momentum.

Which procedural innovations embedded in the updated

Rules or AI tools can be leveraged to drive efficiency, enhance

client outcomes, or improve case strategy? What firm-level

processes should be standardized to turn these changes into

durable advantages?

Equally important is recognizing that support needs will

vary across the organization. Mid-career litigators – often

assumed to be self-sufficient – may be among those in need

of targeted support. Balancing active caseloads, business development,

and personal obligations, they may find it especially

challenging to absorb new technologies or procedural

frameworks. Mentorship, peer support, and just-in-time resources

such as best-practice guides can make the difference

between adaptation and attrition.

The responsibility for building this infrastructure cannot rest

with individual firms alone. Legal institutions, including professional

bodies and regulators, have a role to play in scaling

access to training and support. These organizations can help

ensure that transformational change doesn’t deepen inequities

in access to resources but, instead, strengthens the profession

as a whole.

Create opportunities for short-term wins

Short-term wins will give your working group and larger organization

the feeling of success, before a full transformation

happens. Already, we can see that the Ontario Superior Court

is starting to implement some of the concepts the CRR has

proposed. 12 There is no reason why legal departments can’t do

the same.

You might consider what service standards you can implement

now, across your team, to ensure you are complying with

current deadlines. How will you track whether you’re succeeding

and consider what success would look like?

Putting pen to paper and writing out tip sheets or checklists

that can serve as resources when the time comes will help your

group feel better prepared.

Think long-term

Finally, transformational change offers more than a response

to disruption – it presents a rare opportunity to fundamentally

reset how litigation services are delivered. For forward-looking

firms, this is a moment to embed the business-minded,

client-centric tools and processes that may currently feel aspirational.

An intentional effort to plan and implement transformational

change can build a culture of continual improvement.

Firms that don’t intentionally plan for change will not necessarily

self-destruct. As change is implemented by the industry,

firms will likely be forced into it. Not planning for change

means relinquishing the opportunity to lead. Firms that act

now – deliberately, strategically, and ahead of the curve – can

shape not only how they adapt, but also how they differentiate.

This is not just about managing change; it’s about using it as a

catalyst to build a better version of the practice of litigation.

Notes

1. John P Kotter, Leading Change (Boston: Harvard Business School Press, 1996).

2. Marjorie Richter, “How AI Is Transforming the Legal Profession,” Thomson

Reuters Legal, August 18, 2025; https://legal.thomsonreuters.com/blog/

how-ai-is-transforming-the-legal-profession/.

3. Alberta Code of Conduct, Rule 3.1-2, Commentary [5]; British Columbia Code

of Professional Conduct, Section 3.1-2, Commentary [4.1]; Manitoba Code of

Professional Conduct, Section 3.1-2, Commentary [4A]; New Brunswick Code

of Professional Conduct, Section 3.1-2, Commentary [4A]; Newfoundland &

Labrador Code of Professional Conduct, Chapter 3.2, Commentary [4A]; Northwest

Territories Code of Professional Conduct Section 3.1-2, Commentary [4A]; Nova

Scotia Code of Professional Conduct, Section, 3.1-2, Commentary [4A]; Ontario

Rules of Professional Conduct, Rule 3.1-2, Commentary [4A]; Saskatchewan Code

of Professional Conduct for Lawyers, Section 3.1-2, Commentary [4A]; Yukon Code

of Conduct, Section 3.1-2, Commentary [4A].

4. Canadian Bar Association, “Use of AI in Legal Practice”; https://cba.org/

resources/practice-tools/ethics-of-artificial-intelligence-for-the-legalpractitioner/2-use-of-ai-in-legal-practice-an-overview/.

5. See https://www.advocates.ca/TAS/Advocacy_Pages/Advocacy_Pages/

Select_Submissions.aspx.

6. Adam Dodek, Heenan Blaikie: The Making and Unmaking of a Great Canadian Law

Firm (Vancouver: UBC Press, 2024), p 207.

7. John P Kotter, “Leading Change: Why Transformational Change Efforts Fail”

(Harvard Business Review, January 2007), p 3; https://irp-cdn.multiscreensite.

com/6e5efd05/files/uploaded/Leading%20Change.pdf.

8. Ibid, p 4.

9. Dodek, Heenan Blaikie, supra note 6, p 273.

10. Kotter, supra note 7, p 4.

11. Ibid, p 6.

12. Region Senior Justice Firestone, Memorandum to Civil Bar Associations and

Legal Organizations, dated April 7, 2025; https://www.ontariocourts.ca/scj/

files/notices/RSJ-Firestone-memo-civil-list-matters.pdf.


Tricks of the Trade 2026

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

January 30, 2026 | 9:20 am to 4:30 pm (ET) | Live at Arcadian Court in Toronto

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

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

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

2026 Co-Chairs:

Lisa Belcourt,

Ferguson Deacon Taws LLP

Brenda Hollingsworth,

Auger Hollingsworth

Professional Corporation

Sudevi Mukherjee-Gothi,

Pallett Valo LLP

Brian Sunohara,

Rogers Partners LLP

Topics Include:

Tort Law Update

Sharu Ratnajothy, Dolden Wallace Folick LLP

Fireside Chat:

The Hon. Doug Downey, Attorney General of Ontario

In Conversation With: Brian Sunohara, Rogers Partners LLP

Developments around eScooters and eBikes

Nainesh Kotak, Kotak Law

The Practical Impact of Civil Rules Reform

Barbara L. Legate, Legate Injury Lawyers

D. Keith Smockum, Smockum Zarnett LLP

Accident Benefits Update

Laura Emmett, SBA Lawyers LLP

Bringing and Defending a Civil Sexual Assault Action

Simona Jellinek, Jellinek Ellis Gluckstein Lawyers

Linda C. Phillips-Smith, Stieber Berlach LLP

Demonstration and Commentary: Dis/Qualifying Experts

The Hon. Justice Audrey Ramsay, Superior Court of Justice

Oneal Banerjee, Dolden Wallace Folick LLP

Deanna S. Gilbert, Thomson Rogers

Exploring Damage Assessment using Realistic Scenarios

The Hon. Justice Lucille Shaw, Superior Court of Justice

Ashlee Barber, Williams Litigation Lawyers LLP

Ryan S. Breedon, Breedon Mor LLP

What’s New in Waivers and Sports Liability?

Edward (Ted) J. Chadderton, Carroll Heyd Chown

Best Practices for Using AI in Litigation

Katherine Kolnhofer, Bell Temple LLP

Rose Leto, Neinstein LLP

For up to date topics and agenda visit

www.advocates.ca

WRITTEN ADVOCACY

Legal submissions need visuals:

Here’s how to create them

Jennifer Brevorka

The author thanks William McMillan for his help in the drafting

of this article, and Jeanne Seeds and David Friedrich for

their research assistance.

Effective legal submissions are persuasive and clear, meeting

audiences on their terms. Those terms, however, are

evolving: Our increasingly digital world sees us absorbing

information via screens more often than ever before. Still

images are now videos, we use our fingers to zoom in on details,

and we layer graphics on top of digital maps. Counsel have

noted the pervasive trend and are adjusting their strategies,

turning to visual aids as part of their advocacy. Whether using

emojis and pictures in a LinkedIn post, TikTok videos with case

analysis, or bookmarked PDFs for Case Center, sharp lawyers

know that modern-day audiences analyze much of our legal

analysis on screens. “Thanks to a range of technological and

cultural transformations,” Professor of Law Elizabeth Porter explains,

“images are moving out of the evidentiary margins and

are driving argument in litigation documents from pleadings to

judicial opinions.” 1

In its Summer 2021 issue, The Advocates Journal published

an article in which I discussed analytical visuals 2 –

images that organize, interpret, or represent data and

arguments. That article contained information about the different

types of analytical visuals and when to use them.

For advocates comfortable with artificial intelligence, graphic

design, and computer editing programs, creating images for

use with prose is cinchy. Other lawyers, however, are starting to

strengthen this muscle and may want to stay within their comfort

zone with programs we all use, such as Microsoft Word,

Google Earth (great maps and street images), and Adobe.

This article is for both camps, with illustrations and discussions

on how to create them using Word and additional information

about advanced programs, details, and approaches to

making images more sophisticated. My hope is that the article

advances analytical visuals into mainstream legal thinking.

WHAT PROGRAMS CAN I USE OTHER THAN WORD?

Graphic Creation

l Canva

l Vector

l Adobe Photoshop or Adobe Illustrator

A.I. Programs for Editing Images

l Google Gemini

l Canva

l Lensa

l Adobe Photoshop

From paper to pixels: The digital reading brain

We are still learning about what some writers have termed the

“digital reading brain,” with findings on how a greater volume

of readily available digital information is shifting attention

spans and changing brain circuitry. 3

Research, however, suggests that we understand and retain a

significantly greater proportion of information when it is presented

to us visually as well as orally – roughly 50 percent more

information after one day, and 55 percent more after three days.

As one lawyer puts it, “Vision trumps all other senses.” 4

In “Using Visuals to Better Communicate Logic in Legal Reasoning,”

administrative law judge John H. Larsen writes of the

tendency of visual aids not only to expedite but even to increase

our understanding of an argument or concept based on

our innate preference for signs and symbols:

As we think, visual images serve as signs and symbols we

use to form abstract concepts. Such concepts include our

depth perception and logic, which may be visualized.

Similarly, images can help thinkers to focus on what is

most relevant by dismissing from visibility the signals from

the noise. In such a way, concepts are formed by visually


perceiving their relevant features.

An effective visual can be as simple

as a group of shapes that are labelled

in a way to put them into the context

in which they arise. Appropriate

shapes combined with text serve

to clearly present complex information

and to symbolize concepts.

Concepts can more persuasively

guide us in figuratively drawing

conclusions when we understand

the logic of how arguments combine

to form reasonable conclusions. 5

Images work better for digital reading

because studies show that when we

read on screens, as opposed to the printed

page, we scan and browse prose as

opposed to the traditional left-to-right

reading on the printed page, where we

may highlight and annotate important

text. 6 Visuals help serve as guideposts

for the scanning eye, breaking up the

bright white screen.

Practical uses of visuals in legal arguments

include images that

l simplify complex concepts;

l enhance clarity and credibility;

l increase emotional appeal;

l improve engagement and retention;

l make numerical data digestible; and

l facilitate an understanding of spatial

and procedural relationships. 7

A review of Canadian and US decisions

demonstrates these points. It also

shows that there is no shortage of examples

where effective visuals should

be used more frequently in case law, 8 or

where judges plead with lawyers to use

pictures more often. 9

legal storytelling. Additionally, Microsoft Word offers a diverse number of choices

for table design and layout once you opt to insert a table into your prose.

If you are a Crown or criminal defence counsel, you have likely included a table

(or perhaps you should have) when summarizing dates and delay reasons for an

application pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms. 10

Rather than pages of text, a table in, or responding to, a “Jordan challenge” 11 allows

counsel to list dates, summarize who delayed and when, and count days from when

charges were laid until the end of trial.

An effective table should

l possess clear labels, with clearly defined rows, columns, or axes;

l avoid clutter and ambiguous words;

l use colour to enhance readability (because it can contrast actions or emphasize

the difference between groupings of numbers); and

l preserve the context of data.

Use a table for

l a cast of characters or names and identifying facts about parties;

l visual representation of key information;

l comparing and contrasting positions or detailed lists of numbers;

l highlighting costs submissions; and

l points of agreement and disagreement.

One example of an excellent use of tables, shown below, is this re-created table from

a Toronto Local Appeal Body (TLAB) decision in which that administrative board reviewed

the Toronto Committee of Adjustment’s denial of request for severance of a

land parcel and building variances. The decision relied on several tables. The first

compared two different data points while also including images in the table: 12

Clutter to clarity: Tables make the point

Tables in legal submissions help to

organize complex information into a

digestible format that enhances readability

and comprehension. Tables can

highlight key patterns, discrepancies, or

relationships lost in dense narrative text,

making it easier for judges, arbitrators,

or opposing counsel to quickly grasp

essential points. A common purpose of

tables is to inform the reader quickly

about a cast of characters – or about parties

in the proceedings – and their roles.

I presented that example in my Summer

2021 Journal article.

Tables lend professionalism to a submission,

reinforcing the credibility of the

advocate’s legal argument. When used

strategically, tables streamline evidence

presentation and support persuasive


The second table, below, included shading to incorporate the data used above as

a third comparison point. To orient readers, I have included the lead-in text before

the table. 13

Mr. Rendl summarized his findings in a table below. The shaded column to the right sets out the

required/permitted numbers from Table 2.

Rendl summary of Minor Variance Approvals

Bylaw

Variance Approvals Minimum Maximum

Floor Space Index 32 0.70 1.4 0.60

Rear Yard Setback 2 4.56 m 7.0 m 7.5 m

Parking Space Width 2 2.09 m 2.44 m m

Lot Area 2 166.8 m 2 239.6 m 2 180 m 2

TLAB decisions and opinions issued by the Ontario Land Tribunal 14 include a cornucopia

of tables and clarifying images such as marked-up photos, multi-layered

maps, and 3-D artist renderings from which to draw inspiration for any pleading or

correspondence involving a dispute about land or building dimensions. 15

Timelines tell the story

Visual timelines are used when a chronology of events is central to the argument or

when a case involves a complex chronological sequence difficult to follow in text

alone. Timelines should be used when explaining chronological events is essential to

a judge’s comprehension of the facts. Timelines help distill dense factual narratives

into a clear, linear format, allowing judges and opposing counsel to quickly grasp the

progression of key actions, decisions, or incidents.

Timelines differ from chronologies, which I frequently use and almost always

include as an appendix with an initial pleading (e.g., a statement of claim, statement

of defence, or dismissal motion). Consider always appending a chronology with

your initial statement of claim or statement of defence as an appendix. If clerks and

judges come into a case cold, why not help them out with a succinct list of key dates

and events? A simple chronology in table form allows you to “Inception” 16 your

audience by planting a seed in their subconscious about the facts to which they

should pay attention.

Chronologies are often simple tables or bullet lists that present key events and the

dates on which they occurred to orient a reader to what events came first and whether

events occurred repeatedly. Timelines, on the other hand, merge chronological

events with an analysis about the import or significance of certain listed events,

(sic)

sometimes layering a second set of facts

on the picture.

For example, a timeline can distinguish

between similar cases by highlighting factual

differences – such as the number of

individuals involved or the duration of

events – making it easier for the court to

grasp the relevance of those distinctions.

Timelines can contrast actions of two parties

along a horizontal axis, with the steps

one party takes placed above the horizontal

line, and the actions of the other party

detailed below that line. Use timelines

when the narrative is complex or when a

visual representation can reinforce the

logic of the argument. 17

An effective timeline should

l reside near the relevant written

analysis;

l possess clear labels of parties,

events, dates, or times; and

l use neutral design elements to avoid

distraction or clutter.

Use a timeline for

l demonstrations of statutes of limitations;

l claims involving multiple stages;

l demonstrations of complicated procedural

history;

l establishing causation (by showing

the progression of events); and

l cases involving multiple parties

or events (with one party’s actions

above a horizontal line and the other

party’s actions below it).

The following timeline is from a US

bankruptcy proceeding in which the

reader is oriented to events preceding

the bankruptcy, the declining value

of the company, and the acts of a third

party that played a role in the company’s

financial demise. 18


The devil is in the details … with clarifying images

showing key facts

Effective legal arguments about complex information contain

clarifying images. These visuals include photographs of key

aspects of a case, maps of relevant geographic areas, or enhanced

visual representations of space and dimensions. These

pictures help contextualize dense concepts.

Lawyers should consider how best to use their image to improve

the communication of the message they are trying to

convey. For example: What will the framing of the image be

(how will it be centred)? What level of detail will it include?

And what will not be captured? This final consideration is especially

important for a manually created image such as a map,

where the designer has determined the legend, scale, and additional

elements included (or not included).

The Court of Appeal for Ontario opinion by Justice John

Laskin in R v Hamilton contains an excellent example of a clarifying

image – a map marrying critical details about a defendant’s

cell phone pings with the location of where each ping

occurred. 19 The image on page 44 takes what would have been

a laundry list of dates, times, and street names and contextualizes

each ping in a picture for the reader to see.

An effective clarifying image should

l be high resolution and easy to see or read;

l be clearly labelled, where appropriate;

l be directly relevant to the argument at hand;

l be captioned or inclusive of scale or directional markers

where appropriate; and

l use colour to evoke emotion or concepts.

Examples of when to use a clarifying image:

l labelled photographs that simplify a complex machine or

process;

l visual representation of space and images;

l map of a physical space relevant to a case; and

l evidencing the condition of someone or something, or the

damage at stake.

Considering colour

Electronically dispersed court decisions are now in technicolour,

with judges no longer inhibited by the simple black and

white of a typewriter. If you don’t feel comfortable including

clarifying images or multi-layered maps, consider using colour

in textual visuals (e.g., tables, chronologies) to emphasize


a position.

Colours are associated with a range

of feelings: red represents anger, yellow

shows happiness, and blue connects

with feeling sad or down. The use of colour

in an image or table may help evoke

an emotional response from your reader.

Colours presented in a sequential

palate or an ombre can represent a progression

of events over time. Remember

those colour-coded COVID-19 maps

showing us in red and purple the extent

of the virus outbreak across Canada?

That was an effective use of colour

as opposed to myriad data points on

a map. Colour may also guide the

reader’s eyes – especially when they

scan a screen – to a particular part of

a page. Think about the red squiggles

under a word in Microsoft Word when

you have misspelled something. That

makes the point: Colour draws the eye to

what you want the reader to see.

Picture the winning case

Strategic use of visual aids in legal

submissions is a necessity. Effective

analytical visuals distill complex facts,

clarify legal arguments, and enhance

persuasiveness before courts or tribunals.

Used in correspondence to clients or opposing parties, such images advance your

point more effectively. Images are critical tools at a lawyer’s disposal. Today, thanks

to technological advances, they are more accessible to every advocate.

Notes

1. Elizabeth G Porter, “Taking Images Seriously,” 114(7) Colum L Rev (2014),

1687, 1721.

2. Jennifer Brevorka, “Visuals Matter,” The Advocates’ Journal (Summer 2021) 40:1,

23. The term “analytical visuals” was coined by Johansen and Robbins in an

excellent article about the use of visuals in legal writing. See Steve J Johansen

and Ruth Anne Robbins, “Art-Iculating the Analysis: Systemizing the Decision

to Use Visuals as Legal Reasoning,” 20 Legal Writing 57 (2015).

3. Maryanne Wolf, “Our ‘Deep Reading’ Brain: Its Digital Evolution Poses Questions”

Nieman Reports, June 29, 2010. Maryanne Wolf, “Skim Reading Is the New

Normal: The Effect on Society Is Profound,” Guardian, August 25, 2018: https://

www.theguardian.com/commentisfree/2018/aug/25/skim-reading-new-normal-maryanne-wolf.

4. Kerri L Ruttenberg, Images with Impact: Design and Use of Winning Trial Visuals

(Chicago: American Bar Association, 2018) at 10.

5. John H Larsen, “Using Visuals to Better Communicate Logic in Legal Reasoning,”

25 Legal Writing 285 (2021), 290–91.

6. Ziming Liu, “Reading Behavior in the Digital Environment: Changes in Reading

Behavior Over the Past Ten Years,” 61(6) Journal of Documentation (2005),

700, 707–8.

7. Kato Nabirye H, “The Use of Visual Aids in Legal Presentations,” 4(1) Research

Invention Journal of Current Research in Humanities and Social Sciences (2025),

49–54.

8. See, e.g., Reed v Town of Gilbert, 134 S. Ct. 2900 (2014) (Petitioner’s brief for a writ of

certiorari); Sandifer v U.S. Steel Corp., 678 F.3d 590, 594 (7th Cir. 201), aff’d 134 S.

Ct. 870 (2014); Moreira et al v Ontario Lottery and Gaming Corp. et al, 2012 ONSC

2304 at 2, n1.

9. Coffey v Northeast Illinois Regional Commuter RR Corp. (METRA), 479 F.3d 472, 478

(7th Cir. 2007) (“[This] case illustrated the curious and deplorable aversion of

many lawyers to visual evidence and exact measurements (feet, inches, pounds,

etc.) even when vastly more informative than a verbal description. We have

noted this aversion in previous cases … once remarking that some lawyers think

a word is worth a thousand pictures.”)

10. See, e.g., R v Oyeniyi, 2016 ONCJ 581 at para 3.

11. R v Jordan, 2016 SCC 27.

12. Martin Rendl Associates (Re), 2024 ONTLAB 190 at para 5.

13. Ibid at para. 23.

14. See, e.g., St. Pierre v Tay Valley, 2025 CanLII 18346 at para 9.

15. See, e.g., 1254 Davenport Inc. (Re), 2023 ONTLAB 152.

16. Inception is an excellent 2010 movie by Christopher Nolan starring Leonardo Di-

Caprio as a professional thief who steals information by infiltrating his targets’

subconscious. One can do the same in legal pleadings by putting forth the most

important facts in a visually appealing manner.

17. Timeline image from Adam L Rosman, “Visualizing the Law: Using Charts, Diagrams,

and Other Images to Improve Legal Briefs” (August 2013) 63(1) J Legal

Educ, 74.

18. Doc. No. 1250, In re GWG Holdings, Inc., et al., No. 22-90032 (Bankr. S.D. Tex. Dec.

15, 2022).

19. R v Hamilton, 2011 ONCA 399 at para 241.


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