Keeping Tabs February 2019
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KEEPING TABS<br />
The Advocates’ Society<br />
<strong>February</strong> <strong>2019</strong>
CONTENTS<br />
04<br />
06<br />
08<br />
12<br />
15<br />
16<br />
20<br />
22<br />
Chair Chat<br />
Victoria Creighton, Osler, Hoskin & Harcourt LLP<br />
Young Advocates In The News<br />
Compiled by Andrew Eckart, Eckart Mediation and Thomas Milne,<br />
Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors<br />
Diversity In The Profession:<br />
On The Basis Of Sex<br />
Erin Durant, Borden Ladner Gervais LLP<br />
Access To Justice: YASC At The Pro Bono Hotline<br />
Alexandra Shelley, Torys LLP<br />
YASC Report: Simcoe Fireside Chat<br />
Thomas Milne, Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors<br />
Diversity of Counsel at the SCC: R. v. Le<br />
Louis Century and Geetha Philipupillai, Goldblatt Partners LLP<br />
Case Comment: Heller v. Uber<br />
David Campbell, The Law Office of David Campbell<br />
Interview: Kyle Ferguson<br />
Compiled by Carlo di Carlo, Stockwoods LLP<br />
Mastering the art and craft of advocacy is a career-long commitment and we are<br />
here to help. The Advocates’ Society has been the premier provider of advocacy<br />
skills training for over 30 years. We are proud to provide lawyers across Canada<br />
with the training and the confidence they need to execute on their feet when it<br />
counts. The Judge will notice…your clients will too.<br />
Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.<br />
25<br />
YouTube Series: Laurie Pawlitza<br />
Erin Durant, Borden Ladner Gervais LLP<br />
Editor: Erin Pleet, Thornton Grout Finnigan LLP | EPleet@tgf.ca<br />
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a<br />
voice for young advocates (advocates who are ten years of call or fewer) within the Society and within the profession. We do this<br />
through networking/mentoring events, by publishing articles by and for young advocates, and by raising issues of concern to<br />
young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual authors are their own<br />
and do not necessarily reflect the policies of The Advocates’ Society.<br />
3
COMING UP<br />
(Click on the program to learn more)<br />
CHAIR CHAT<br />
4<br />
Chair Chat<br />
Victoria Creighton, Osler, Hoskin & Harcourt LLP<br />
Last month, I travelled to Ottawa for the President’s Reception and<br />
met with many great Ottawa-based advocates. For the very young advocates<br />
out there, I offer this story for you. This is my seventh year on<br />
YASC and I’m practically a professional event attendee, averaging one or<br />
two events a week. At most events, I spend my time making sure everyone<br />
is chatting in groups. If someone is standing alone, I try my best to<br />
chat with them and find them a group they might find interesting.<br />
At the President’s Reception, I saw a man standing alone, so I walked up and introduced myself.<br />
We chatted for a bit, I told him some silly story about myself, and I then walked with him to a group<br />
of other lawyers, introduced my new friend to the group, then walked on. Walking away, I thought<br />
to myself, “I hope he finds a good conversation. He seems really nice.” I perhaps took another two<br />
steps, only to think, man, that person seems familiar. And then realized it was our new Minister of<br />
Justice. In a room full of lawyers, I was worried that no one was talking to the Attorney General of<br />
Canada. For the record, he was a delight to talk to and, obviously, a kind, patient man.<br />
I offer this story to young advocates everywhere, because, some nights you’re on, you remember<br />
everyone’s name, and all your interactions are smooth. And other nights, well, not so much.<br />
But keep coming out. The profession is largely kind and welcoming. The more you come out, the<br />
easier it gets. My favourite part of being part of TAS is meeting new people, then getting to know<br />
them better event after event. Case in point, I had friends in the room who I could immediately<br />
laugh with about the clumsiness of my own interaction with my new friend David.<br />
In this issue of <strong>Keeping</strong> <strong>Tabs</strong>, you will find an interview with young advocate Kyle Ferguson, a recap<br />
of the Heller decision at the Ontario Court of Appeal, a piece on what lawyers can learn from On The<br />
Basis of Sex to improve diversity in law firms, a feature on our talented young advocate colleagues<br />
already appearing before the Supreme Court of Canada, recaps of YASC events from across Canada,<br />
young advocates in the news, and our continuing TAS “Legends of Bar” video series featuring<br />
former Law Society of Ontario Treasurer Laurie Pawlitza discussing strategies to deal with “imposter<br />
syndrome” in your practice. YASC is always looking for contributions to <strong>Keeping</strong> <strong>Tabs</strong>. If you have<br />
something to say about a case, your life as an advocate, or a great experience at a TAS event, please<br />
tell our acting editor, Erin Pleet at epleet@tgf.ca. If you’re looking to get involved with YASC more<br />
generally, join our Volunteer Roster by emailing Alexandra Shelley at ashelley@torys.com.<br />
MAR 26<br />
Motions Advocacy<br />
Toronto<br />
APR 9<br />
Women in<br />
Litigation<br />
Symposium<br />
Calgary<br />
MAR 6<br />
Peel Pub Night<br />
Mississauga<br />
MAR 29<br />
Leadership Skills<br />
for Litigators<br />
Toronto<br />
APR 10<br />
Women in<br />
Litigation<br />
Symposium<br />
Edmonton<br />
MAR 7<br />
Women in Litigation<br />
Symposium<br />
Ottawa<br />
APR 8<br />
Women in<br />
Litigation<br />
Symposium<br />
Vancouver<br />
MAR 21<br />
Trivia Challenge<br />
for Charity<br />
Toronto<br />
APR 4<br />
Find your Hook:<br />
How To Develop a<br />
Winning Case<br />
Toronto<br />
APR 9<br />
License Appeal<br />
Tribunal (LAT)<br />
Advocacy
IN THE NEWS<br />
Young Advocates in the News<br />
In this feature, we highlight TAS young advocate members in the news. All of the lawyers profiled<br />
have been called to the bar in the last ten years.<br />
If you or a fellow young advocate has had a recent brush with the media about your/their work on<br />
a case, please forward the news story link to:<br />
Andrew Eckart, andrew@eckartmediation.com; or<br />
Thomas Milne, tmilne@nncfirm.ca<br />
• ‘He’s capable of killing me’: PhD student alleges sexual assault by Dominican Republican<br />
official - CBC, October 1, 2018. Megan Savard of Addario Law Group LLP comments on her<br />
client’s sexual assault allegations and ‘powerful’ case against a former member of the Dominican<br />
Republican government.<br />
• Rules on Weed in the Workplace – CBC News Network, October 10, 2018. Jacqueline Luksha,<br />
associate at Hicks Morley Hamilton Stewart Storie LLP, speaks to CBC News Network host John<br />
Northcott about the workplace implications of cannabis legalization.<br />
• City of Regina wants court to quash ruling that allowed Westgate Properties more time to<br />
build – CBC News, October 23, 2018. TAS member and associate at Gowling WLG, Sahil Shoor,<br />
represents Westgate Properties in response to a judicial review launched by the City of Regina.<br />
• POC’s in underrepresented workplaces pressured to speak for entire communities: Global<br />
News, December 26, 2018. TAS member and associate at Nahwegahbow, Corbiere Genoodmagejig<br />
Barristers & Solicitors, Thomas Milne, participates in a panel discussion regarding employment<br />
on Living in Colour.<br />
• Court upholds NPCA board appointments – St. Catharines Standard, December 21, 2018.<br />
Erin Pleet of Thornton Grout Finnigan LLP successfully represented her clients in a dispute<br />
over the governance of the Niagara Peninsula Conservation Authority.<br />
We are #TASProud of our Young Advocates who worked so diligently in raising awareness of<br />
the impending closure of Pro Bono Ontario’s Law Help Centre. The collective effort of many<br />
of our members has helped to ensure that the Law Help Centres will remain in operation<br />
throughout <strong>2019</strong>. The following are some of the news stories that highlight our members’<br />
advocacy efforts:<br />
• Lawyers says loss of Pro Bono Ontario help centres will make justice more difficult and<br />
expensive – The Star, November 6, 2018. TAS member Lindsay Scott, Paliare Roland Rosenberg<br />
Rothstein LLP, discusses the impact of closures of the Law Help Centres.<br />
• Funding pro bono legal services a no-brainer for Ford government – The Star, November<br />
13, 2018. TAS member and associate at Stockwoods LLP, Pam Hrick, provided an opinion<br />
piece encouraging the Ontario government to fund Pro Bono Ontario to prevent the closure<br />
of the Law Help Centres.<br />
• Free civil legal service to close, despite study showing it saves Ontario $5M a year –<br />
CBC News, November 7, 2018. Paliare Roland Rosenberg Rothstein LLP associate Alysha Shore<br />
shares her experiences of volunteering with Pro Bono Ontario over the past 10 years.<br />
TAS Member Erin Durant, associate at Borden Ladner Gervais LLP, was interviewed for several<br />
publications:<br />
• Group trying to keep free legal help centre afloat in Ottawa – CBC Radio (Ottawa Morning),<br />
November 8, 2018.<br />
• ‘You don’t have justice if you don’t have access to a lawyer’: Legal Help Centre to close<br />
– Ottawa Citizen, November 8, 2018.<br />
• Bencher hopefuls push LSO on pro bono funds – Law Times, November 12, 2018.<br />
6 7
DIVERSITY IN THE PROFESSION<br />
A Little Less Conversation,<br />
a Little More Action:<br />
What Lawyers in <strong>2019</strong><br />
Can Learn From On<br />
The Basis of Sex to Improve<br />
Diversity in Law Firms<br />
Erin H. Durant, Borden Ladner Gervais LLP<br />
**Warning: Some Spoilers for the film and some unfiltered thoughts to follow**<br />
On the Basis of Sex is worth the price of admission<br />
both as an entertaining movie and for the lessons<br />
that it teaches the next generation of lawyers<br />
about diversity, advocacy and change.<br />
The film hits its stride when a young Justice Ruth<br />
Bader Ginsburg hears about a case of gender discrimination<br />
against a man. The client was a never<br />
married man whose status and gender made him<br />
ineligible to deduct caregiving expenses for the<br />
care of his ailing mother from his income taxes.<br />
Ruth (as she then was) knew a male litigant would<br />
garner more support from the judiciary than in<br />
prior gender discrimination cases unsuccessfully<br />
advanced by women. The movie covers the<br />
preparation and argument of the case and concludes<br />
with a touching moment which I will not<br />
disclose here (bring tissues).<br />
Other than being an inspiring story, there are<br />
three lessons from the film which I hope will inspire<br />
lawyers to make our workplaces better for<br />
everyone. Here are the lessons.<br />
1. Do Not Make Assumptions Based<br />
On Gender<br />
Ruth is interviewed for many jobs in New<br />
York City. She was top of her class and<br />
a law review leader at Harvard and Columbia.<br />
Yet she was not offered a job at<br />
a private firm. In the film she reflects on<br />
her interview experience, including one<br />
lawyer’s concern that the partners’ wives<br />
might be jealous of a female lawyer.<br />
Unfortunately, these types of gender<br />
related comments are still made<br />
today. During an OCI interview I was<br />
asked about my intentions about having<br />
children. One firm told me “women<br />
had children and did not come back.”<br />
I lost interest in that firm and I expect<br />
they never had interest in me. There<br />
are stories of women lawyers with busy<br />
starts to their career who return from<br />
maternity leave to find they have no<br />
files. Some people assume women with<br />
children do not want to attend certain<br />
client networking opportunities outside<br />
of office hours – yet are quick to invite<br />
men with children to the same events.<br />
All of these experiences have an impact<br />
on women lawyers and their ability to<br />
succeed in the profession.<br />
The “traditional” gender roles that<br />
were changing when RBG started her<br />
career have largely changed now. We<br />
cannot let preconceived notions about<br />
an individual’s responsibilities outside<br />
of the office impact how we treat those<br />
people in the office and what opportunities<br />
we give them. Those notions<br />
should have ended decades ago.<br />
2. Don’t Just be Part of a Support Group<br />
Ruth’s inspiring daughter Jane had a<br />
number of memorable moments in the<br />
film. The highlight for me was when<br />
Jane says: “It’s not a movement if every-<br />
8 9
one’s sitting down. It’s a support<br />
group.”<br />
In 2016 in Ontario women<br />
made up 54.3% of lawyers under<br />
the age of 35 and 52% of<br />
lawyers between the ages of<br />
35 and 44. The increase in the<br />
number of women in the profession<br />
is not resulting in a<br />
corresponding increase in the<br />
number of women admitted to<br />
partnership. While it is difficult<br />
to secure accurate data on the<br />
number of women partners<br />
in Canadian law firms, in the<br />
United States the latest NALP<br />
diversity report indicates that<br />
women accounted for 23.36%<br />
of partners in law firms they<br />
surveyed in 2018 (slightly up<br />
from 22.7% in 2017) even<br />
though women have made<br />
up approximately half of law<br />
school graduates over the past<br />
20 years and made up approximately<br />
45.5% of associates as<br />
of 2017. The percentage of visible<br />
minority partners is even<br />
lower – at less than 10%. These<br />
figures suggest that law firms<br />
are not promoting diverse candidates<br />
in equal proportion to<br />
the number of diverse candidates<br />
in the profession. Some<br />
law firms are recognizing that<br />
this is a problem and are taking<br />
steps to address the diversity<br />
in their partnership.<br />
Women and minorities talk<br />
privately when there is a perceived<br />
lack of diversity in promotions.<br />
It bothers them. These<br />
concerns are often raised at<br />
events and conferences designed<br />
for and attended by<br />
them. But law firm leaders and<br />
decision makers are not always<br />
there. I worry that these<br />
events are support groups, not<br />
movements. Until key decision<br />
makers are brought into the<br />
discussion, little will change.<br />
The statistics show that we<br />
need a movement, not a support<br />
group.<br />
3. Be Strategic<br />
Ruth Bader Ginsberg created<br />
the Women’s Rights Project to<br />
increase the pace on improving<br />
equality in America for<br />
women. The Project systematically<br />
targeted laws which<br />
discriminated on the basis<br />
of sex and approached their<br />
work one case at a time. It was<br />
a tremendous success as the<br />
project pushed forward 300<br />
sex discrimination cases in the<br />
1970s and had numerous victories<br />
in the Supreme Court.<br />
The Women’s Rights Project<br />
continues to this day with focuses<br />
on women in education,<br />
violence against women,<br />
women in criminal justice and<br />
women’s rights in the workplace.<br />
Law firm culture will not<br />
change overnight. Concrete<br />
strategies are required to improve<br />
diversity and inclusion.<br />
Many steps that are required<br />
are outside of the control of<br />
the young lawyers who read<br />
<strong>Keeping</strong> <strong>Tabs</strong>. Research shows<br />
that leadership on diversity<br />
and inclusion must come from<br />
the top. I agree.<br />
However, Ruth Bader Ginsberg<br />
did not wait for change<br />
to come. She strategically<br />
forced the issue. Here are<br />
some of my strategies which<br />
young lawyers can use to help<br />
improve diversity and inclusion<br />
in their firms:<br />
1. Speak Up: Voice concerns<br />
about diversity and inclusion<br />
in your workplace. Ask what<br />
is being done. Ask for the<br />
deadlines. Follow up. Volunteer<br />
to help.<br />
2. Create Diverse Teams<br />
Around You: When you are<br />
in a position to delegate work –<br />
create your own diverse teams.<br />
Give diverse students opportunities.<br />
Be mindful of your own<br />
unconscious biases. Make an<br />
effort to work with people who<br />
are not like yourself.<br />
3. Insert Yourself and be an<br />
Advocate for Others: Be vocal<br />
about wanting to be included<br />
in client and networking opportunities.<br />
Do not wait to be<br />
approached. Voice interest in<br />
being involved in the next big<br />
file that matches your skill set.<br />
Be an advocate for others if<br />
you notice diverse lawyers are<br />
not considered for opportunities<br />
and if client teams are not diverse.<br />
Not everyone notices a<br />
lack of diversity (yet). Constant<br />
reminders help.<br />
4. Push the Marketing Department:<br />
Advise your marketing<br />
department of your<br />
interest in being included in<br />
RFPs, marketing materials and<br />
lawyer rankings. When reviewing<br />
marketing materials, advise<br />
when there is a lack of diversity<br />
in the materials.<br />
5. Do Not Tolerate Discrimination:<br />
Law firms are required<br />
to have non-discrimination policies.<br />
If you notice discrimination,<br />
report it. If you do not feel<br />
comfortable reporting it, have<br />
your mentor do it.<br />
After watching On the Basis of<br />
Sex I was motivated to do more<br />
to promote diversity within the<br />
legal profession. I hope that<br />
you watch the film and it inspires<br />
you to do the same.<br />
Disclaimer: The above thoughts<br />
are my personal suggestions<br />
on how to help create change.<br />
They are not a solution; there<br />
is no one single, right way that<br />
any of us can make the profession<br />
and law firms more inclusive<br />
alone. It will take time<br />
for firms, the legal profession,<br />
and biases of society-at-large<br />
to catch up. What we can do,<br />
in the interim, is keep these<br />
issues in the forefront and do<br />
what we can as individuals<br />
along the way.<br />
10 11
ACCESS TO JUSTICE<br />
YASC Answers the<br />
Call at the Pro Bono<br />
Ontario Hotline<br />
Alexandra Shelley, Torys LLP<br />
Courthouse Series <strong>2019</strong><br />
The Effective Witness<br />
Cases stand and fall on witness credibility. Attend this year's Courthouse Series and learn<br />
how to get the most out of all witnesses. This year's series will feature an outstanding<br />
cast of experienced advocates sharing practical strategies for preparing, controlling and<br />
examining different types of witnesses.<br />
Kingston<br />
<strong>February</strong> 28, <strong>2019</strong><br />
Barrie<br />
March 7, <strong>2019</strong><br />
Sudbury<br />
March 21, <strong>2019</strong><br />
Hamilton<br />
May 8, <strong>2019</strong><br />
In furtherance of YASC’s mandate to increase access to justice, during the week of<br />
December 3, 2018, members of YASC, their colleagues, and members of the YASC<br />
Volunteer Roster volunteered with the Pro Bono Ontario Hotline. The volunteers each<br />
spent a day at the PBO Hotline answering calls from Ontarians and providing summary<br />
legal advice on a range of topics from landlord tenant issues to intellectual property<br />
infringements.<br />
The Hotline currently receives over 350 calls a day and each YASC volunteer was able<br />
to help as many as 10 clients per day. Since its launch in September 2018, the Hotline<br />
has provided access to legal advice for thousands of Ontarians with everyday civil legal<br />
problems. PBO volunteers filled 864 shifts at the Hotline in 2018 and helped nearly<br />
15,000 callers.<br />
If you’re interested in getting involved with the Hotline, please contact Nicole<br />
Kellow at hotlineschedules@probonoontario.org or 416-977-4448 ext. 926.<br />
Windsor<br />
<strong>February</strong> 28, <strong>2019</strong><br />
Owen Sound<br />
March 5, <strong>2019</strong><br />
London<br />
March 7, <strong>2019</strong><br />
Thunder Bay<br />
March 7, <strong>2019</strong><br />
Milton<br />
April 29, <strong>2019</strong><br />
Ottawa<br />
April 29, <strong>2019</strong><br />
LEARN MORE OR REGISTER<br />
Kitchener<br />
May 9, <strong>2019</strong><br />
Kitchener<br />
May 16, <strong>2019</strong><br />
12 13
YASC REPORT<br />
YASC’s First Simcoe<br />
County Fireside Chat<br />
Thomas Milne,<br />
Nahwegahbow Corbiere Genoodmagejig<br />
Barristers & Solicitors<br />
Your Next<br />
Challenge Is Here<br />
The Advocates’ Society Career Board is the only legal<br />
job board created just for the litigation bar. Access<br />
notices for litigation, ADR and judicial vacancies that<br />
are exclusively listed for advocates across Canada.<br />
To find your next position visit www.advocates.ca<br />
On December 12, 2018, a Fireside Chat on Advocacy<br />
was held in Simcoe County featuring Mr.<br />
David C. Nahwegahbow. The event took place<br />
at Casino Rama and was generously sponsored<br />
by Nahwegahbow, Corbiere Genoodmagejig,<br />
Barristers & Solicitors, Oatley Vigmond Personal<br />
Injury Lawyers LLP, and Carroll Heyd Chown<br />
LLP. Mr. Nahwegahbow was interviewed by<br />
Professor Jeffery Hewitt from the University of<br />
Windsor, Faculty of Law.<br />
It was a very special evening. Mr. Nahwegahbow<br />
is widely recognized as an expert in<br />
Indigenous law and has long been an outstanding<br />
role model for Indigenous lawyers<br />
throughout Canada. He spoke about his<br />
background, his early beginnings as a legal<br />
advocate, his work on a Child Welfare case<br />
currently before the Canadian Human Rights<br />
Tribunal, and his work on a treaty interpretation<br />
case involving the Robinson-Huron<br />
Treaty of 1850 currently before the Ontario<br />
Superior Court of Justice.<br />
YASC looks forward to hosting more events<br />
in Simcoe County.<br />
15
DIVERSITY OF COUNSEL AT THE SCC: R. v. Le<br />
Disrupting unspoken<br />
notions about who ‘belongs’<br />
at the Supreme Court<br />
Louis Century and Geetha Philipupillai,<br />
Goldblatt Partners LLP<br />
At the hearing of R. v. Le in October 2018, the Supreme Court of<br />
Canada considered the question of whether a reasonable expectation<br />
of privacy extends to social visits in a friend’s backyard. The<br />
backyard in question was at a downtown Toronto Housing Co-operative<br />
where the appellant Tom Le and his friends, all young men<br />
of colour, had grown up and where the police have an active presence.<br />
On the night of Mr. Le’s arrest, he was socializing in his friend’s<br />
backyard when three police officers entered the backyard, uninvited,<br />
and questioned Mr. Le and the group, leading to Mr. Le’s arrest<br />
and the seizure of a firearm, currency and drugs.<br />
Mr. Le was represented by Emily Lam (Kastner<br />
Law, 2008) and Samara Secter (Addario<br />
Law, 2014), who urged the Court to account<br />
for the lived experience of racialized youth<br />
when approaching the question of an expectation<br />
of privacy in this context. The judgment,<br />
which is under reserve, could change<br />
the law of search and seizure in Canada. Yet<br />
regardless of the outcome, the case already<br />
stands out for another reason.<br />
The hearing itself was both younger and<br />
more diverse than any Supreme Court hearing<br />
in the recollection of these authors. Thirteen<br />
out of the 23 listed counsel were ‘young<br />
advocates’ (within their first ten years of practice),<br />
including five out of 11 speaking lawyers.<br />
Fifteen out of 23 counsel were women.<br />
And for a case that concerned the experience<br />
of young racialized people with law enforcement,<br />
many of the lawyers before the Court<br />
were themselves racialized. Some, like<br />
Mr. Le’s lawyer Emily Lam, grew up in<br />
the same neighbourhood where Mr. Le<br />
and his friends were socializing when<br />
this case began.<br />
Counsel at Supreme Court hearings<br />
are disproportionately senior, white and<br />
male, but not this time. We decided to<br />
speak with some of the all-star young<br />
advocates in this case about why a representative<br />
courtroom matters to them.<br />
#Womeninlaw at the Supreme Court<br />
Danielle Glatt (Lenczner Slaght Royce<br />
Smith Griffin LLP, 2014), co-counsel for<br />
the Canadian Civil Liberties Association,<br />
recalled that the robing room was full<br />
of women in the morning before the<br />
case. “In appellate litigation, that was a<br />
first for me, for it to be majority women,”<br />
she said. Lindsay Board (Stockwoods<br />
LLP, 2016), co-counsel for the<br />
Federation of Asian Canadian Lawyers<br />
and the Chinese and Southeast Asian<br />
Legal Clinic, concurred: “As someone<br />
relatively early in her career, it definitely<br />
made a difference for me to see so<br />
many women doing an incredible job.”<br />
Dayna Steinfeld (Fillmore Riley LLP,<br />
2013), co-counsel for Canada Without<br />
Poverty et al, said, “Participating in the<br />
Le case as an advocate made me feel<br />
hopeful that there is space for lawyers<br />
who are different. Watching two young<br />
female advocates [Emily Lam and Samara<br />
Secter] argue the entire case for<br />
the Appellant was incredibly meaningful<br />
for me as a young female advocate<br />
myself.” Similarly, Tina Lie (Paliare Roland<br />
Rosenberg Rothstein LLP, 2007),<br />
co-counsel for Scadding Court Community<br />
Centre, said the case was a “reminder<br />
to young, female and racialized<br />
litigators that we are not imposters or<br />
intruders; we can and do belong in a<br />
16 17
space like the Supreme Court<br />
of Canada.”<br />
Racial representation of<br />
counsel<br />
For Anthony Morgan (then at<br />
Falconers LLP and now with the<br />
City of Toronto, 2013), who represented<br />
the Urban Alliance on<br />
Race Relations, “The roster of<br />
counsel in this case positively<br />
disrupts the unspoken notion<br />
that young and/or racialized<br />
people and perspectives don’t<br />
belong among the highest<br />
rungs of our profession.”<br />
Mr. Morgan contrasted this<br />
case to his previous experience<br />
at the Supreme Court in<br />
R. v. Nur, which concerned a<br />
mandatory minimum sentence<br />
involving a Black accused. Besides<br />
the accused, Mr. Morgan<br />
was the “the only Black person”<br />
there and, besides his co-counsel<br />
Faisal Mirza, counsel did not<br />
even “[use] the word ‘Black’ or<br />
‘African-Canadian’ in their oral<br />
submissions.” Mr. Morgan felt<br />
“an unsettling mix of great joy<br />
and emotional pain at reaching<br />
a professional pinnacle” and<br />
said, “I can’t think of a time that<br />
I felt more simultaneously visible<br />
and invisible as a lawyer.”<br />
In contrast, Mr. Morgan said<br />
about R. v. Le, “I am heartened<br />
and hopeful about how different<br />
the composition and<br />
character of the submissions<br />
were in R. v. Le than in R. v. Nur.<br />
While there’s still a long way to<br />
go, the change gives me some<br />
hope that we, as a legal profession<br />
are steadily headed in the<br />
right direction.”<br />
The courtroom is for<br />
the people<br />
Tina Lie similarly said, “In this<br />
case, the appellant and many<br />
of the interveners were able<br />
to advance their diverse perspectives<br />
through counsel who<br />
looked and sounded like them,<br />
in some cases grew up in neighbourhoods<br />
close to or similar to<br />
the one in which the appellant<br />
was arrested and, importantly,<br />
understand what it is like to<br />
navigate our society as a member<br />
of a minority group.”<br />
Ms. Lie’s co-counsel Lauren<br />
Pearce (2016) continued, “This<br />
not only gives important context<br />
to counsel’s legal arguments,<br />
it also helps to provide<br />
a perspective that might otherwise<br />
not be voiced, and hopefully<br />
leaves litigants feeling like<br />
they were meaningfully heard<br />
(regardless of the outcome).”<br />
Emily Lam said, “The courtroom<br />
is for the people, and<br />
should represent those who<br />
come before the law. If judges<br />
and courtrooms don’t reflect<br />
the people they serve, trust<br />
and faith in the system is diminished.<br />
A diversity of experience<br />
makes the system better<br />
and opens the door to different<br />
perspectives and ways of<br />
considering issues that we<br />
might not otherwise think of if<br />
the courtroom and bench were<br />
more homogenous.”<br />
Diversity on the bench<br />
In contrast to the diverse composition<br />
of counsel in this case,<br />
the judges who will decide the<br />
case are all white, as has been<br />
the case since 1875 when the<br />
Supreme Court was founded.<br />
When asked why a representative<br />
bench matters, Ms. Secter<br />
said, “it is difficult to understand<br />
the humiliation of being<br />
‘othered’ by the police, or<br />
asked if you belong in a certain<br />
place, unless you have lived it.<br />
If you are always in the majority,<br />
being on the outside is a<br />
completely unknowable experience.”<br />
Several counsel recalled an<br />
exchange in which Faisal Mirza<br />
asked the Court to imagine the<br />
police walking into the backyard<br />
of “some of the icons of<br />
criminal law…Greenspan, Moldaver,<br />
Rosenberg and Gold.”<br />
Justice Moldaver interjected,<br />
“I’d invite them to have a<br />
drink.” Mr. Mirza later said this<br />
exchange “crystallized the difference”<br />
between how different<br />
members of society experience<br />
police interactions.<br />
Gerald Chan (Stockwoods<br />
LLP, 2008) also reflected on the<br />
importance of a diverse bench:<br />
“Judges approach cases with an<br />
open mind, but not an empty<br />
mind. They are all informed, and<br />
to some extent limited, by their<br />
own experiences. The more<br />
diverse the judiciary – and, on<br />
appeals, the hearing panel –<br />
the better their judgments will<br />
be. That’s over and above the<br />
benefits to public confidence of<br />
having a judiciary that reflects<br />
the population it serves.”<br />
All-star appellate duo<br />
For Ms. Lam and Ms. Secter,<br />
this was a ‘dream opportunity’<br />
to work together on such an<br />
important case. Ms. Lam called<br />
Ms. Secter “one of the funniest<br />
and brightest lawyers I<br />
know” and said, “I believe I had<br />
an opportunity many lawyers<br />
dream about: I got to work on<br />
a case involving issues that I<br />
deeply care about with people<br />
who share the same personal<br />
and professional principles<br />
I do.” Ms. Secter agreed that<br />
working with Ms. Lam made<br />
the case special and unforgettable:<br />
“She is a smart and dedicated<br />
advocate. She knows<br />
how to connect with people<br />
from all walks of life.”<br />
For Ms. Lam, who represented<br />
Mr. Le at the lower courts<br />
as well, a favourable decision<br />
would have personal resonance.<br />
She said, “I grew up in the same<br />
neighbourhood as Mr. Le many,<br />
many years ago. It’s a pretty<br />
unique experience to be able<br />
to personally understand some<br />
of the challenges people in the<br />
community face, and to be able<br />
to advocate for changes to the<br />
way the constitutional rights<br />
of marginalized and racialized<br />
groups are understood. If we’re<br />
successful in this case, the law<br />
as it would have applied to me<br />
when I was growing up in the<br />
community…will have changed<br />
for the better!”<br />
Judgment was reserved at<br />
the Supreme Court and a decision<br />
is pending.<br />
18 19
CASE COMMENT<br />
One Heller of an<br />
Arbitration Agreement<br />
David Campbell,<br />
The Law Office of David Campbell<br />
Arbitration is becoming ever-more important for those who practise civil litigation,<br />
since an ever-increasing number of contracts contain arbitration agreements.<br />
For those interested in arbitration, the Ontario Court of Appeal started <strong>2019</strong> with a<br />
bang. Heller v. Uber Technologies Inc. is one of those rare cases where the arbitration<br />
agreement was held to be unconscionable. The case also held that the arbitration<br />
agreement was invalid because it violates s. 5(1) of the Employment Standards Act,<br />
2000 (ESA). The Court’s unconscionability findings should bolster public confidence in<br />
arbitration by refusing to enforce an ADR clause that would effectively prevent the<br />
dispute from being decided independently and beyond judicial overview.<br />
Heller is a 35-year-old, high-school-educated UberEATS driver who earns $400–$600<br />
a week—or $20,800–$31,200 a year—working<br />
40–50 hours a week. This income is before<br />
taxes and expenses, like his vehicle.<br />
He commenced a proposed class action on<br />
behalf of all Uber drivers seeking a declaration<br />
that they are employees under the ESA,<br />
and $400 million in damages.<br />
Uber’s contracts with their drivers have<br />
arbitration agreements. Uber moved under<br />
s. 7(1) of the Arbitration Act, 1991 and<br />
Article 8(1) of the International Arbitration<br />
Act, 2017 (ICAA) to stay Heller’s action.<br />
Both provisions mandate a stay, absent<br />
certain exceptions. The Court of Appeal’s<br />
analysis focuses on s. 7(2)(2.): “The arbitration<br />
agreement is invalid.”<br />
At the heart of this case is Uber’s ADR<br />
system. If a driver has dispute with Uber,<br />
then there are several steps:<br />
• The driver starts by calling an Uber<br />
CSR in the Philippines;<br />
• The dispute may then be referred to<br />
an Uber CSR in Chicago;<br />
• Uber’s legal team may then take over<br />
the dispute from the Chicago CSR;<br />
• The driver may also go to an Uber<br />
Greenlight Hub in Ontario to ask Uber<br />
staff for help;<br />
• If still dissatisfied, the driver may commence<br />
a mediation with the International<br />
Chamber of Commerce (ICC) in<br />
the Netherlands under Dutch law; and<br />
• If the mediation fails, the driver may then<br />
commence an ICC arbitration, again in<br />
the Netherlands under Dutch law.<br />
Aside from travel and counsel fees, the<br />
driver would have to pay $14,500 (USD) in<br />
ICC filing fees to reach arbitration, along<br />
with his or her share of the mediator’s<br />
and arbitrator’s fees.<br />
The Court found that this arbitration<br />
agreement was unconscionable, because<br />
“it operates to defeat the very claims it purports<br />
to resolve.” The Court held that the<br />
facts were sufficient to meet both the twopart<br />
test for unconscionability and the fourpart<br />
test. A driver with a claim of a few hundred<br />
dollars must fly to the Netherlands to<br />
have his or her claim decided independently,<br />
rather than by Uber employees.<br />
In a separate holding, the Court also held<br />
that the arbitration agreement violates s.<br />
5(1) of the ESA and is thus unenforceable.<br />
Section 5(1) of the ESA voids provisions that<br />
force an employee to contract out or waive<br />
an employment standard. Not only does<br />
Uber’s arbitration agreement extinguish<br />
an employee’s right under s. 96 to report a<br />
dispute to the Ministry of Labour and have<br />
an Employment Services Office investigate,<br />
but it also eliminates an employee’s s. 98<br />
right to commence a civil action. According<br />
to the Court, arbitration does not fall within<br />
the definition of a civil action.<br />
However, the ESA analysis has a tricky<br />
component. It presumes that Heller’s allegation<br />
that he is an employee is capable<br />
of proof. This presumption is based<br />
on the Supreme Court of Canada’s decision<br />
in Seidel v. TELUS Communications Inc.<br />
Although Seidel certainly makes the same<br />
presumption, this is the first case following<br />
Seidel that uses the presumption in<br />
the context of a stay motion. It does seem<br />
to leave open the possibility that future<br />
plaintiffs could make questionable allegations<br />
to defeat s. 7(1).<br />
Generally, arbitration agreements<br />
must be enforced, even in contracts of<br />
adhesion, unless one of the exceptions<br />
in s. 7(2) or Article 8(1) is met, the dispute<br />
is outside the scope of the arbitration<br />
agreement, or there is a legislative<br />
override to the arbitration. In promoting<br />
arbitration as an alternative, we must<br />
not allow ourselves to enforce unconscionable<br />
arbitration agreements that<br />
may undermine public confidence in arbitration<br />
as a fair and legitimate form of<br />
dispute resolution.<br />
20 21
Do you know a young advocate who we<br />
should feature in an upcoming Interview?<br />
Click here to email us with your suggestion.<br />
Q. What is your year of call?<br />
A. 2012 in Ontario and<br />
2014 in B.C.<br />
Q. What is your greatest fear in practice?<br />
A. The spectre of missing a deadline or limitation<br />
period is something that I think we all fear.<br />
Q. Which word do you prefer: litigator or advocate?<br />
A. The term litigator is certainly used more often, but I think advocate best captures the work that<br />
we do inside and outside the courtroom to organize, refine and present our clients’ cases.<br />
Q. What is your favourite take out cuisine?<br />
A. Pizza and beer.<br />
Q. If you weren’t a lawyer<br />
what would you be?<br />
A. I think I would have wanted to<br />
be a professor or teacher.<br />
INTERVIEW<br />
In conversation<br />
with Kyle Ferguson,<br />
Gudmundseth Mickelson LLP, Vancouver<br />
Compiled by Carlo di Carlo, Stockwoods LLP<br />
Q. Which living lawyer do you most admire?<br />
A. There are so many lawyers that I work alongside or against that I admire, so rather than singling<br />
out one of them, I will go a different route and pick Beverley McLachlin. She was the face of the<br />
Supreme Court for a generation, and the clarity of her jurisprudence from all levels of court on<br />
which she served continues to resonate here in B.C.<br />
Q. What is your favourite case?<br />
A. Whenever I revisit Roncarelli v. Duplessis, I am struck by Justice Rand’s eloquent articulation of<br />
the limits on government action and the exercise of discretion. His cogent explanation of the rule<br />
of law continues to apply to situations faced by our clients.<br />
Q. Why did you become a litigator or advocate?<br />
A. I didn’t go into law school with a fixed idea of my intended area of practice, but after being<br />
exposed to litigation while summering at a law firm after my first year of law school, I was hooked.<br />
Q. What is the latest non-legal book<br />
you’ve read?<br />
A. Tommy Orange’s There There.<br />
Q. Which talent would you most like to<br />
have?<br />
A. I wish I could sleep on planes!<br />
Q. What do you like most about your practice?<br />
A. I enjoy the process of learning the ins and outs of our clients’ businesses or circumstances,<br />
organizing their sometimes complicated facts in a way that can be presented to<br />
the court, and figuring out how the law responds to their legal issues.<br />
Q. From whom have you learned the most about the practice of law?<br />
A. The senior lawyers that I work with, Stein Gudmundseth, Q.C., Howard Mickelson,<br />
Q.C., Andrew Gay, Q.C. and Lisa Martz. They are incredibly generous with their time<br />
and are a daily source of wisdom, advice and opportunities.<br />
22 23
Q. What unique knowledge have you gleaned in your practice that you can share with<br />
other young advocates?<br />
A. There is a famous quote from Robert Jackson about the three arguments he made in every<br />
case as Solicitor General of the United States: the one he planned for, the one he actually presented,<br />
and the “utterly devastating” argument that he thought of after going to bed that night.<br />
Whether it’s an examination of a witness or an oral submission, in the hours, days or weeks that<br />
follow you might think of an answer that you wish you had given, or a further question that you<br />
wish you had asked a witness. This doesn’t happen only to young advocates so you shouldn’t be<br />
too hard on yourself. Instead, use these as opportunities to learn.<br />
Q. What is your greatest extravagance<br />
in your everyday life?<br />
A. I like to pick up a decent bottle of wine<br />
every now and then. Another “extravagance”,<br />
though certainly not an everyday<br />
one, is collecting works by emerging artists.<br />
Our artists tend to be underappreciated<br />
in this country, and I encourage<br />
everyone to support these folks in their<br />
regions and beyond. They promote curiosity,<br />
inspire debate, and encourage dialogue<br />
in ways concrete and abstract, and<br />
they certainly deserve our support.<br />
Q. You practised in both Toronto and<br />
Vancouver. What is the difference in<br />
the practice between the two cities?<br />
A. For me, the biggest difference was the<br />
change in subject matter. In Toronto, my<br />
practice involved primarily patent and<br />
trademark disputes, whereas my practice<br />
now is much more general. Aside from<br />
that, there is certainly a difference in the<br />
size of the bar, but both are collegial and<br />
filled with talent.<br />
YOUTUBE SERIES<br />
TAS Legends of the Bar<br />
Erin H. Durant, Borden Ladner Gervais LLP<br />
Pawlitza Discusses Imposter Syndrome in the Practice of Law<br />
and How to Believe in Yourself<br />
Q. What should advocates in the rest of Canada know about the life of a litigator in Vancouver?<br />
A. There are a lot of great opportunities for young lawyers in Vancouver. The breadth of files, big<br />
and small, allow young lawyers here to gain courtroom experience and develop their skills early<br />
on in their careers. The bar is small enough that you will regularly run into the same lawyers, and<br />
so your reputation is especially important.<br />
The TAS archives contain footage<br />
from a number of CPD conferences,<br />
including the 2011<br />
Women in Litigation Conference.<br />
Laurie Pawlitza gave a significant<br />
speech at this event - a portion<br />
of which focused on imposter<br />
syndrome and strategies to get<br />
over the feeling that you do not<br />
belong or are not good enough<br />
to accomplish your goals. Imposter<br />
syndrome impacts many<br />
in the practice of law including<br />
women, minorities and first<br />
generation lawyers. Watch Ms.<br />
Pawlitza discuss her own battle<br />
with imposture syndrome and<br />
her suggestions on how to silence<br />
the negative voice that can<br />
hold you back.<br />
24<br />
25
Toronto Pub Night<br />
Wednesday, January 16, <strong>2019</strong> | Irish Embassy Pub & Grill, Toronto<br />
OTTAWA PRESIDENT’S RECEPTION<br />
Thursday, January 31, <strong>2019</strong> | The Rideau Club, Ottawa<br />
The Honourable David Lametti, Minister of Justice and Attorney General of Canada<br />
Anne M. Turley, Department of Justice<br />
The Honourable David Lametti,<br />
Minister of Justice and Attorney General of Canada<br />
26 27
FIRESIDE CHAT: MENTAL RESILIENCE IN LITIGATION<br />
Thursday, January 31, <strong>2019</strong> | The Vancouver Club, Vancouver<br />
The 5th Annual Kingston Trivia Challenge<br />
Thursday, <strong>February</strong> 7, <strong>2019</strong> | The Kingston Brewing Company, Kingston<br />
Allison Wolf, Lawyer Coach, Shift Works Strategic Inc, Kaitlyn Meyer, Hakemi Ridgedale LLP, and Brook Greenberg,<br />
Bencher of the Law Society of British Columbia, Partner at Fasken Martineau DuMoulin LLP<br />
28 29
ARNUP CUP<br />
<strong>February</strong> 8-9, <strong>2019</strong> | TAS Education Centre, Toronto<br />
CARTOON<br />
OH NO!<br />
What’s<br />
happening?<br />
Oh man! I have no<br />
idea what’s going on.<br />
LEGENDARY<br />
GENIUS!!!<br />
Um …Ob-objection?<br />
Sustained.<br />
Arnup Cup Winner: Lakehead University - (From left to right) Witness Eric Blay, Austin Nix, Phaedra Olinyk,<br />
Oralist Nathan Wainwright, Oralist Amanda Gallo.<br />
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