Keeping Tabs October 2018

KEEPING TABS
The Advocates’ Society
October 2018

CONTENTS
04
09
10
13
16
18
Chair Chat
Victoria Creighton, Osler, Hoskin & Harcourt LLP
In The News
Legislation Update
Julie Mouris, Conway Baxter Wilson LLP/s.r.l.
YASC Report
Carlo Di Carlo, Stockwoods LLP Barristers
Interview
Compiled by Alexandra Shelley, Torys LLP
YouTube Series
Erin H. Durant, Borden Ladner Gervais LLP
Mastering the art and craft of advocacy is a career-long commitment and we are
here to help. The Advocates’ Society has been the premier provider of advocacy
skills training for over 30 years. We are proud to provide lawyers across Canada
with the training and the confidence they need to execute on their feet when it
counts. The Judge will notice…your clients will too.
Editor: Erin Pleet, Thornton Grout Finnigan LLP | EPleet@tgf.ca
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a voice for young advocates
(advocates who are ten years of call or fewer) within the Society and within the profession. We do this through networking/mentoring events, by
publishing articles by and for young advocates, and by raising issues of concern to young advocates as we work with the Society’s Board of Directors.
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.
3

THE NEXT TEN
(Click on the program to learn more)
CHAIR CHAT
OCT 30
OCT 31
NOV 1
Chair Chat
Victoria Creighton, Osler, Hoskin & Harcourt LLP
The Big Mingle
Vancouver
Defamation
Law
Toronto Mentoring
Dinner Series
4
Throughout August and September,
Toronto was gripped with constitutional
fever. You couldn’t go
to any legal party without everyone
showing off their newly rediscovered
expertise on sections
2, 15 and unwritten constitutional
principles. The notwithstanding
clause was trending on Twitter.
And young advocates were deeply
involved. Current and former
YASC members, TAS members,
and even my legal-aid office mate’s
lovely wife – young advocates all –
argued the issues in the Superior
Court and the Court of Appeal. It
was a real pleasure watching so
many young advocates contribute
with skill and passion.
It was wonderful to meet so many
young advocates at Fall Forum in
Blue Mountain last weekend. The
CPD programming was great, the
keynote from The Hon. Justice Suzanne
Côté of the Supreme Court
of Canada was both informative
and hilarious, and the social events
were as fun as always. All in all, it
was a great time to catch up with
friends from across Canada.
In this issue of Keeping Tabs, Carlo
Di Carlo highlights the speaking
opportunities for young advocates
at The Advocates’ Society’s
Securities Symposium, we interview
young advocate Tony Paciocco
from Ottawa, Julie Mouris
provides an overview of the Ontario
Court of Appeal’s first wave
of rulings on anti-SLAPP legislation,
and, as always, we celebrate
young advocates in the news.
YASC is always looking for member
contributions for Keeping Tabs.
On a happy note, we wish our editor,
Caroline Youdan, a safe and
wonderful early parental leave! If
you have something to say about
a case, your life as an advocate or
a great experience at a TAS event,
please tell our interim editor, Erin
Pleet at epleet@tgf.ca. If you’re
looking to get involved more generally,
join our Volunteer Roster
by emailing Alexandra Shelley at
ashelley@torys.com.
NOV 5
Class Actions Practice
Group Bench and
Bar Reception
NOV 21
Credibility for
Litigators
NOV 14
Kingston
Pub Night
DEC 13
President’s Festive
Reception
NOV 15
Estates Litigation
Bench & Bar
Reception
NOV 14
Young Advocates’
Pub Night
NOV 18
Santa Claus
Parade

AWARDS
Civility Award
Recipient: Myriam Seers, Torys LLP
Accepted by: Alexandra Shelley, Torys LLP
This award recognizes a young advocate
who epitomizes the Principles of Civility
and Professionalism. This is the only
award that proceeds by nomination.
Candidates for this award can only be
nominated by a fellow young advocate
practicing in a different firm or organization
from them. Calls for nominations
are made via Twitter and mass email to
TAS members.
Photographed from left to right: John Russo, Pallett Valo
LLP; Scott Maidment, McMillan LLP; Alexandra Shelley,
Torys LLP; Victoria Creighton, Osler, Hoskin & Harcourt LLP.
YASC Award Sponsored by
Outstanding
Participation
Award
Recipient: Christopher J. Somerville,
Affleck Greene McMurtry LLP
This award is given to the individual who
has participated in the most TAS activities
(CPD programs, events, practice groups)
in the preceding 24 months. The data
regarding participant activity is extracted
from the Society’s database.
Photographed from left to right: Victoria Creighton, Osler,
Hoskin & Harcourt LLP; Christopher J. Somerville, Affleck
Greene McMurtry LLP; Scott Maidment, McMillan LLP.
Commitment
to Pro Bono
Award
Recipient: Cameron Fiske,
Milosevic Fiske LLP
This award recognizes exceptional participation
in TAS and TAS/PBO joint initiatives
such as the Child Advocacy Project, Law
Help Centres at the Superior Court of Justice
and Small Claims Court, the Appeals
Assistance Program, Law Society Tribunal
Duty Counsel Program as well as the Law
Society of Upper Canada Duty Counsel
Program and the Ontario Securities Commission
Litigation Assistance Program. The
award is based on a combination of number
of appearances and outstanding work,
either cumulatively or on a single case.
Writer’s Award
Recipient: Sabrina A. Lucenti,
Dooley Lucenti Barristers & Solicitors
This award recognizes outstanding
contribution to TAS publications. It is
measured by articles written for Keeping
Tabs, Advocacy Matters, Practice Group
blogs and/or the Advocates’ Journal.
Photographed from left to right: Victoria Creighton,
Osler, Hoskin & Harcourt LLP; Sabrina A. Lucenti,
Dooley Lucenti Barristers & Solicitors; Scott Maidment,
McMillan LLP.
Photographed from left to right: Victoria Creighton,
Osler, Hoskin & Harcourt LLP; Cameron Fiske, Milosevic
Fiske LLP; Scott Maidment, McMillan LLP.
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IN THE NEWS
Young Advocates in the News
In this feature, we highlight TAS young advocate members in the news. All of the lawyers profiled
have been called to the bar in the last ten years.
If you or a fellow young advocate has had a recent brush with the media about your/their work on
a case, please forward the news story link to:
Andrew Eckart, andrew@eckartmediation.com; or
Thomas Milne, tmilne@nncfirm.ca
• Regina Bypass engineer defends Capital Pointe’s safety at hearing. Regina Leader-Post, August
2, 2018. Sahil Shoor, associate at Gowling WLG, is representing a developer on appeal of an Order to
Comply issued by the City of Regina.
Your Next
Challenge Is Here
The Advocates’ Society Career Board is the only legal
job board created just for the litigation bar. Access
notices for litigation, ADR and judicial vacancies that
are exclusively listed for advocates across Canada.
To find your next position visit www.advocates.ca
• Landlords beware: Insurance won’t cover damages caused by tenant drug operations.
The Globe and Mail, July 9, 2018. Gord McGuire, partner at Adair Goldblatt Bieber, writes about
the implications of Carteri v Saskatchewan Mutual Insurance Company, 2018 SKQB 150, in which
the court found that the landlords’ insurer was not liable to pay damages caused by the tenants’
drug operations.
• Ontario Court of Appeal decision answers ‘big legal questions’ on SLAPP suits. Canadian
Lawyer, August 30, 2018. Ben Kates, former YASC Chair and associate at Stockwoods LLP Barristers,
comments on six new rulings regarding the Province’s anti-SLAPP legislation, their significance, and
a plaintiff’s onus in responding to a defendant’s anti-SLAPP motion in the context of litigation.
• Court hears arguments on both sides of Alberta’s gay-straight alliance law. The Globe and
Mail, June 20, 2018. Brendan MacArthur-Stevens, associate at Blakes, Cassels & Graydon LLP’s
Calgary office, represented an intervenor to oppose an injunction application seeking to restrain
a law facilitating the creation of gay-straight alliances (“GSAs”) and banning schools from advising
parents that their children have joined a GSA. The application was eventually dismissed. The
appeal will be heard in the fall.
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LEGISLATION UPDATE
First wave of Ontario Court
of Appeal rulings on
anti-SLAPP legislation
Julie Mouris, Conway Baxter Wilson LLP/s.r.l.
Introduction
On August 30, 2018, the Court of Appeal for Ontario released six
highly-anticipated decisions interpreting Ontario’s anti-SLAPP [Strategic
Litigation Against Public Participation] legislation. 1 Section
137.1 of the Courts of Justice Act, in force since the fall of 2015, allows
a defendant in a proceeding to bring a motion, at any time after the
proceeding has been commenced, to have the action dismissed. This
tool is commonly used in defamation cases. The Court of Appeal has
clarified the application of the two-part test under s. 137.1(3) and (4).
The Two-Part Test: sections 137.1(3) and (4)
First, under s. 137.1(3), a defendant must satisfy
the judge that the proceeding arises from
an expression that is a matter of public interest.
Second, if the defendant succeeds, the
onus shifts to the plaintiff under s. 137.1(4) to
satisfy the judge that:
(a) there are grounds to believe that,
(i) the proceeding has substantial
merit, and
(ii) the moving party has no valid defence
in the proceeding; and
(b) the harm likely to be or have been suffered
by the responding party as a result
of the moving party’s expression is sufficiently
serious that the public interest in
permitting the proceeding to continue
outweighs the public interest in protecting
that expression.
The Court of Appeal held that in assessing
the “merits-based hurdle” (s.
137.1(4)(a)), a judge must avoid taking
a deep dive into the ultimate merits of
the claim and the defences. Rather, the
judge must determine in a preliminary
way whether a trier of fact could reasonably
conclude that the claim has a
real chance of success, and that none
of the defences advanced would succeed.
The applicable standard of proof
for both inquiries is the balance of
probabilities.
Of particular interest is the Court’s
interpretation of the “public interest
hurdle” (s. 137.1(4)(b)), which involves a
balancing test of harm. Justice Doherty
described that provision as “the heart
of Ontario’s Anti-SLAPP legislation. The
section declares that some claims that
target expression on matters of public
interest are properly terminated on a s.
137.1 motion, even though they could
succeed on their merits at trial.” 2 The
Court held that to demonstrate harm,
a plaintiff must show a causal link between
the impugned expression and
the alleged damages, and that bald allegations
of damages in pleadings or
affidavits will not be sufficient.
Overall, the Court has given effect to
the purpose of the anti-SLAPP legislation,
which is to encourage expression
on matters of public interest while balancing
the protection of reputation.
Justice Doherty captured the spirit of
the legislation well: “not every foot over
the defamatory foul line warrants dragging
the offender through the litigation
process. By enacting s. 137.1, the Legislature
acknowledged that, in some
circumstances, permitting the wronged
party to seek vindication through litigation
comes at too high a cost to freedom
of expression.” 3
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The Broad Trend Toward
Amending Defamation Laws
Ontario’s anti-SLAPP legislation
is part of a broader trend
in various jurisdictions to modernize
defamation laws. For
instance, in 2013, the United
Kingdom enacted the Defamation
Act, 2013 which, among
other things, sets a serious
harm threshold. On November
13-14, 2018, the UK Supreme
Court will be hearing the appeal
of Lachaux v Independent
Print Ltd to determine the circumstances
in which serious
harm can be inferred in the absence
of evidence of harm. 4
Aside from the anti-SLAPP legislation,
more change could be
coming to Ontario’s defamation
laws. The Law Commission of
Ontario (LCO) is currently undertaking
a comprehensive review
of the province’s defamation
law. As the LCO explains, “the
Defamation in the Internet Age
project considers whether or
how defamation law should be
reformed in light of fast-moving
and far-reaching developments
in law, technology and social values.”
5 The project’s first phase
of consultation is now over and
the LCO is preparing an interim
report with draft law reform
recommendations. The release
of the interim report will be followed
by further consultations.
In the coming months, defamation
law junkies will have lots
to watch for: more anti-SLAPP
appeals being heard at the
Court of Appeal on February 11-
15, 2019, the Lachaux appeal at
the UK Supreme Court, and the
LCO’s draft law reform recommendations.
Stay tuned!
YASC REPORT
Endnotes
1. 1704604 Ontario Ltd. v. Pointes
Protection Association, 2018
ONCA 685 [Pointes]; Able
Translations Ltd. v. Express
International Translation Inc.,
2018 ONCA 690; Armstrong v.
Corus Entertainment Inc., 2018
ONCA 689 [Corus]; Fortress
Real Developments Inc. v.
Rabidoux, 2018 ONCA 686;
Platnick v. Bent, 2018 ONCA
687; Veneruzzo v. Storey, 2018
ONCA 688.
2. Pointes, supra note 1 at para.
86.
3. Corus, supra note 1 at para.
90.
4. See UK Supreme Court,
Lachaux (Respondent) v.
Independent Print Limited
and another (Appellant), Case
Details, online: .
5. Law Commission of Ontario,
“Defamation in the Internet
Age: Consultation Paper”
(November 2017) at p. 1,
online: .
The Advocates’ Society’s
Securities Symposium
Gives Young Advocates
a Chance to Shine
Carlo Di Carlo, Stockwoods LLP Barristers
The Advocates’ Society’s 8 th Annual Securities Symposium took place on
September 5, 2018. The event—a significant one in the calendars of securities
litigators—provides a platform for presenters, including staff lawyers from securities
regulators, representatives from insurers, and defence counsel, to discuss
emerging issues relevant to the practice of securities litigation. This year was no
exception, as speakers presented on a broad range of topics, including changes in
the law regarding the scope of privilege in the internal investigation context; issues
12 13

surrounding cryptocurrencies;
foreign corrupt practices legislation
in the US and Canada; and
issues related to the legalization
of cannabis. The different backgrounds
of the speakers led to
unique perspectives on the issues
as well as interesting panel
discussions and debates.
What really separates the Securities
Symposium from other
CPD programs, however, is
What really separates the
Securities Symposium
from other CPD programs,
however, is its focus
on providing speaking
opportunities for
younger advocates.
its focus on providing speaking
opportunities for younger advocates.
In organizing the program
for the Symposium, the
Securities Litigation Practice
Group places an emphasis on
selecting lawyers at the outset
of their careers. Given that
CPD programs tend to feature
more senior members of
the bar, the Symposium gives
younger lawyers a rare chance
to build their profiles, as well
as get experience speaking in
front of their colleagues.
For many of this year’s presenters,
the Symposium was
their first opportunity to
speak at a conference. Alexandra
Matushenko, from the
Ontario Securities Commission
, was one of the first-time
speakers. Ms. Matushenko,
who presented on the internal
investigation panel, appreciated
the experience.
“There aren’t a lot of speaking
opportunities available to
Left to right: Carlo Di Carlo, Stockwoods LLP,
Alexandra Matushenko, Ontario Securities Commission,
and Sandeep J. Joshi, BMO Financial Group
young lawyers, especially ones where senior members
of the bar are present and engaged. It was
great to get the practice of presenting my views on
a challenging topic before a large audience”.
Joseph Blinick, an associate at Bennett Jones LLP,
was another first-time speaker. He also found the
experience to be “invaluable, especially for young
advocates who welcome the opportunity to get
on their feet to speak about a topic they are passionate
about”. Mr. Blinick also commented that
it was “great to get to meet with members of Enforcement
Staff in a more social setting. It gives
you the chance to build a bit of a rapport outside
the more adversarial confines of interactions on
regulatory investigations and inquiries”.
Evan Thomas, a litigation associate at Osler, Hoskin
& Harcourt LLP who presented on cryptocurrencies,
agrees. “The event gives lawyers who might not have
a lot of experience in the securities field a chance to
get to know some of the ‘regulars’ a bit better.”
As the experiences of these speakers make clear,
the Symposium provides young advocates with a
platform that they don’t typically get early on in their
practice. It also allows them to meet different lawyers
practicing in the area and develop their networks.
Young advocates should be on the lookout for these
types of opportunities—they’re an invaluable way to
start profile-building early.
14 15

Q. Which talent would you
most like to have?
A. The ability to read a judge’s mind, particularly
at that critical juncture when they ask
me if I’m calling any evidence.
Q. What is your greatest extravagance
in your everyday life?
A. Probably Lunch #2, especially if Lunch
#1 is a salad.
Q. From whom have you learned the most about the practice of law?
A. My mother. My father and sister are lawyers; my mother is not. Still, my mother taught me
how to understand and sympathize with people, and therefore much about the practice of law.
Q. What is your
favourite drink?
A. Diet Pepsi. And whiskey.
Drunk separately,
of course.
Q. What is the latest
non-legal book
you’ve read?
A. The Hunters, by
James Salter.
Q. Who or what is the
greatest love of your life?
A. Cheese. Yes, my family
came second to cheese.
INTERVIEW
Interview with
Anthony (Tony) Paciocco
Edelson & Friedman Barristers LLP
Ottawa, Ontario
Compiled by Alexandra Shelley, Torys LLP
Q. Which living lawyer do
you most admire?
A. Michael Edelson, and not
just because he signs my
pay cheque. He owns every
courtroom he walks into.
Q. How would your colleagues
describe you?
A. Diligent. Committed.
And allergic to peanuts.
Q. What unique knowledge have you gleaned in your practice
that you can share with other
A. The paradox of advocacy is exactly this—you are at once doing
better and worse than you think. That you are speaking for those
who lack the training to say it themselves matters, but that you
continue to find ways to say it better yourself matters too.
Q. If you weren’t a lawyer
what would you be?
A. A struggling sports journalist
or travel writer.
Q. What is your most
distinctive characteristic?
A. My last name.
And my socks.
Q. Why did you become a litigator or advocate?
A. I spent twenty-odd years losing arguments at home and
figured if I stuck at it long enough after leaving the nest,
things would swing my way. On occasion, they now do.
Q. What is your year of
call?
A. 2015.
Q. What do you like most
about your practice?
A. The people I work with,
and more than I would
have thought, the people
I work for.
Q. Which word do you
prefer: litigator or
advocate?
A. Advocate. Try saying
“The Litigators’ Society”
five times fast.
Q. What would you
consider your greatest
achievement?
A. That one’s easy. Convincing
my girlfriend to move
from Toronto to Ottawa.
Q. What is your favourite case?
A. R. v. Stinchcombe (1991, SCC). The fruits of an investigation
are not the property of the Crown for use in securing
a conviction but the property of the public to be
used to ensure that justice is done (para. 12).
Q. What is your
greatest fear in practice?
A. That I will do a
competent job, but just
that and not more.
Q. What should people know about the life of a criminal defence lawyer in Ottawa?
A. The work is interesting and diverse. Most of your caseload is at one courthouse, which
is nice, as you won’t spend your entire practice in your car. While the local bar is warm and
collegial, the winter is cold and inhumane.
16 17

YASC PHOTO GALLERY
The Big Mingle
October 10, 2018
Windsor
YOUTUBE SERIES
TAS Legends of the Bar
Erin H. Durant, Borden Ladner Gervais LLP
The Young Advocates’ Standing
Committee is pleased to announce
the launch of the TAS
Legends of the Bar YouTube
Series. TAS has a rich, archived
catalogue of historic lectures
and speeches from legends of
the litigation bar. YASC has been
reviewing these archives and
will be releasing the videos on
YouTube bi-monthly.
Our first video is the 1998 Dubin
Lecture by the Edward L.
Greenspan, Q.C. We hope you
will enjoy his wit, charm and
well-thought remarks.
Fall Forum 2018
October 19 & 20, 2018
Blue Mountains
Fall Forum 2018
October 19, 2018
Blue Mountains
The Hon. Justice
Suzanne Côté,
Supreme Court
of Canada
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Fall Forum 2018
October 19 & 20, 2018
Blue Mountains
Panel: Practice and
Procedure from
Coast to Coast
Ottawa Fireside Chat
October 15, 2018
Ottawa
Left to right: Marc-André
Roy, Senate of Canada
and The Hon. Thomas A.
Cromwell, C.C., Borden
Ladner Gervais LLP
Fall Forum 2018
October 19 & 20, 2018
Blue Mountains
Toronto Fireside Chat
October 4, 2018
Toronto
Left to right: Sandra
Barton, Gowling WLG
Canada LLP and The
Honourable Justice
Cynthia Petersen,
Superior Court of Justice
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www.advocates.ca