Advocacy Matters Winter 2020

ADVOCACY MATTERS
The Advocates’ Society
WINTER 2020

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07
10
What the TWEET is this?
When you see this icon, throughout the publication,
click on it to see what members are tweeting about.
CONTENTS
Chair Chat
Hilary Book, Book Law
Equality In The Profession
Yola S. Ventresca and Debbie Boswell, Lerners LLP (London)
10+ Events
Cynthia Spry, Babin Bessner Spry LLP
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Mentoring
Sayeh Hassan, Walter Fox & Associates
Journal Review: Then and Now
Christine Vanderschoot, Vanderschoot Family Law
Quirky Case
Tamara Ramsey, Dale & Lessmann LLP
Criminal Bar (Alberta)
Tamara Prince, Osler, Hoskin & Harcourt LLP
Interview
Compiled by Andrew Gibbs, Department of Justice Canada
Editor: Brent J. Arnold, Gowling WLG (Canada) LLP
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
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COMING UP
(Click on the program to learn more)
CHAIR CHAT
MAR 10
Thunder Bay
Courthouse:
Getting To the Point
(Thunder Bay)
MAR 11
Barrie Courthouse:
Getting To the Point
(Barrie)
MAR 12
Trivia Challenge
for Charity
(Toronto)
Chair Chat
Hilary Book, Book Law
MAR 25
Young Advocates’
Peel Social
(Brampton)
MAR 27
Business
Development for
Litigators Part 2
(Toronto)
MAR 25
Troisième Édition
Du Pub Night
Montreal
(Montreal)
MAR 31
Defamation Law:
What Litigators
Need To Know
(Toronto)
MAR 26
Waterloo Region
Social
(Kitchener)
MAR 26
Windsor
Courthouse:
Getting To the Point
(Windsor)
MAR 26
Young Advocates’
Windsor Social
(Windsor)
The days are getting longer, the sun is getting
warmer. Some day soon, the robins will return,
the flowers will come out (quiet those of you in
B.C. who have already been enjoying them for
weeks), and it will be time to do our taxes. Ah,
the return of spring!
Taxes – payroll remittances, partnership instalments,
T4s, HST returns – are just some of
the business issues that many mid-career litigators
have to deal with. Knowing how to run a
business (and how to deal with the business aspects
of partnership) is critical to the success of
all of us in private practice, and can be a major
source of stress, but it’s an area where we often
get little training or mentoring.
This term, the 10+ Committee is putting on a
series on the business of law (chaired by Steve
Frankel) that aims to educate and provide a forum
for discussion on all of those sexy topics
like cash flow, collections, partnership structures,
etc. that we so rarely talk about outside
the confines of our offices. Our last event on
February 12 focused on whether or not to incorporate,
and it was great to see so many of
you come out and really engage with the panel.
10+ has lots more in store for this year, and planning
is already underway on some exciting new
initiatives for next year. Please continue to come
out to our events, contribute articles to Advocacy
Matters, and send us your ideas for how we can
continue to develop programs and initiatives to
better serve the needs of mid-career advocates.
Our Advocacy Matters team continues to do
an excellent job putting this publication together
every quarter. This issue includes Andrew
Gibbs’ interview with litigation superstar Audrey
Boctor, Yola Ventresca on pay equity and Sayeh
Hassan on the importance of mentoring. Also
in this issue are reports on Calgary’s Advocacy
on the Front Lines and Ottawa’s President’s Reception.
Last but not least, this issue includes
a new feature that takes a look back to an old
TAS article to see how things have changed,
and how they remain the same. This month,
Christine Vanderschoot takes a look at Franklin
Moskoff, Q.C.’s 1994 article on the right to trial
within a reasonable time.
We are always looking for new contributors
to Advocacy Matters so that we can continue
to bring you interesting articles from diverse
perspectives. Please contact Editor Brent Arnold at
Brent.Arnold@gowlingwlg.com or Assistant Editor
Tamara Ramsey at tramsey@dalelessmann.com
to learn more!
5

Get Involved
with YASC
The Young Advocates’ Standing Committee
seeks engaged, hard-working volunteers to
promote the interests of young advocates
(lawyers ten years of call or fewer) through
planning and implementing mentoring/
networking programs, administering YASC’s
publication by and for young advocates
(Keeping Tabs) and participating in the work
of The Advocates’ Society.
The Society welcomes applications to YASC
from Society members who are ten years of
call or fewer. Successful applicants will serve
a two-year term starting May 2020 (subject
to re-application). Parental leave will be
accommodated. DEADLINE EXTENDED TO
MARCH 6, 2020.
To apply for YASC 2020/21 term click here.
Questions? Please contact Christopher Horkins
at chorkins@casselsbrock.com
EQUALITY IN THE PROFESSION
Unfortunately, the obvious
needs to be stated (again):
pay equity and the
practice of law.
Yola S. Ventresca and Debbie Boswell,
Lerners LLP (London)
Facts, the saying goes, are stubborn things. And the facts make clear that, for all the seeming
advances made in recent decades by women in law, serious pay inequities remain between
men and women lawyers. Not surprisingly, pay inequities emerge at the very start of practice.
According to Ronit Dinovitzer, an Associate Professor of Sociology at the University of Toronto,
a national study of recent Canadian law graduates found that across all legal settings, women
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working full-time earn 93% of men’s salaries
(median earnings of $75,000 for women compared
with $80,500 for men).
Some of this difference can be explained by
the legal settings in which men and women
tend to work. Women outnumber men in the
public sector, where base salaries tend to be
lower. By contrast, there are more men than
women in the largest private law firms, where
salaries are highest.
But the setting in which new lawyers practise
does not, in itself, account for gender-based pay
inequities in law. Even in large private law firms,
women’s earnings are only 91% of their male
colleagues. In an interview with Precedent magazine,
Professor Dinovitzer suggests that this
gender disparity at large law firms likely comes
from bonuses rather than base salaries. If partners
put their male junior associates on more lucrative
files, those male associates may bill more
hours or be making other contributions that are
privileged and valorized by prevailing firm culture.
This results in higher compensation in the
form of higher bonuses, not to mention future,
ever-more lucrative opportunities for professional
advancement and increased earnings.
“If women are systematically kept off these
files,” Dinovitzer concludes, “they’ll earn smaller
bonuses.”
We need a serious, frank conversation
about the reasons why male junior associates
often enjoy privileged access to the
most lucrative opportunities. Some of
these reasons are obvious enough, if rarely
acknowledged. The assumption, for instance,
that female junior associates will be
on maternity leave, or could be, potentially
for lengthy periods of time; or that women
lawyers will prioritize their roles as caregivers
over the demands of the most challenging
and lucrative files.
It goes without saying – or it should – that
such assumptions are sexist and anachronistic,
and yet also powerful attitudinal forces
that create and sustain pay inequities across
the profession.
Indeed, a look at the situation in the wider
legal profession reveals that glaring gender
gaps remain. Again, these speak to the persistence
of stubborn structural and attitudinal
barriers to women in law – barriers that
account for, and help to sustain, systemic disparities
in pay equity.
Women are underrepresented at senior
levels in the legal profession – positions that
bring with them the most lucrative salaries. According
to a recent study by the Toronto Star,
women make up 30% or less of the partnership
at large law firms in Ontario. By contrast,
women comprise nearly 50-60% of associates
at the same law firms. Even for those women
who do become partners, gender differences
remain. A 2002 study found male partners
earned $296,830 on average, compared with
$263,549 for female partners.
Gender wage disparity exists elsewhere in the
legal profession. The 2018 In-House Counsel
Compensation & Career Survey Report found
that for in-house counsel, the average salary
for women is 11% lower than men in 2018
($173,000 on average for men, compared with
$154,000 for women).
Gender pay disparities are often interconnected
with other issues that impact female lawyers,
such as opportunities for advancement,
attrition from large law firms, and the inequitable
division of childcare responsibilities. These
are broad, systemic issues that the profession
needs to address.
The persistence of pay inequity should be
front-of-mind in our own practice and career
trajectories. For positions where salaries are
negotiable, research salaries, talk with your
colleagues, and be prepared to negotiate.
Our role as lawyers is to be advocates for
our clients, but we also need to ensure we’re
being advocates for ourselves and what we
bring to the table.
What is more, the recognition that pay inequities
persist, and a commitment to remedy gender
disparities once and for all ought to be a
priority for the whole of the profession.
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10+ EVENTS
Business for Litigators
Cynthia Spry, Babin Bessner Spry LLP
On November 20, 2019, the 10+ Standing Committee hosted its first “Management for Litigators”
event. This series is intended to address business issues faced by mid-career advocates,
whether developing our own practices within a larger firm, running our own small firms, participating
in management as a partner in a law firm, or hoping to become one. Sean Bailey (PwC),
Ranjan Agarwal (Bennett Jones), and I (Babin Bessner Spry) formed the panel, which was skillfully
moderated by Steven Frankel (Davies).
We had a great turnout, and an interesting and frank discussion about the inner workings of
our firms, both large and small. We discussed
the challenges in transitioning from associate
to partner, the importance of financial literacy,
how to ensure the financial health of our practices,
how to fund a law firm (accounts receivable,
capital injection, line of credit, or a combination
of these), best practices for taking new matters,
and signs that it is time to fire the client.
Key takeaways from the event included:
- Set up the file properly in the first place,
with a comprehensive retainer letter and
sufficient monetary retainer to cover the
first month or stage of the file (don’t get
stiffed on injunctions);
- When running a business, large or small,
cash flow matters, so docket your time daily,
bill monthly, and follow up regularly on accounts
receivable;
- Build your networks – sometimes it can be
easier or more effective to ask for input from
outside your firm, and your contacts will be
happy to help you;
- When building your own book of business,
don’t be afraid to turn down work
you don’t want, or clients who don’t seem
prepared to pay;
- Think carefully about taking files on contingency
– there may be an emotional, social,
or moral reason to do so, but taking all the
risk on a file means you usually have to double
or triple your time spent at your hourly
rate to make it pay;
- Look at your book of business on at least
a yearly basis, and don’t be afraid to fire the
clients who are making you miserable.
The event was generously sponsored by Arbitration
Place. The second event took place on
February 12, 2020, where panelists discussed
the pros and cons of practising through a professional
corporation (report on that in the
next issue) and a final session is being planned
for May 2020.
10 11

Get Involved
with 10+
The 10+ Standing Committee seeks engaged
and committed volunteers to promote the
interests of mid-career advocates through
planning and implementing information
and networking events, administering the
Advocacy Matters newsletter and participating
in the work of The Advocates’ Society.
The Society welcomes applications to the
10+ SC from Society members who are in
the range of 8 to 17 years of call. Successful
applicants will serve a two-year term starting
May 2020 (subject to re-application). Parental
leave will be accommodated.
Deadline: March 11, 2020.
To apply for the 10+ Standing Committee
2020/21 term click here.
Questions? Please contact Yola Ventresca at
yventresca@lerners.ca
MENTORING
Mentorship:
A View from the Criminal Bar
Sayeh Hassan, Walter Fox & Associates
I have practised criminal defence law for over
12 years, and from the very beginning was fortunate
to have an incredible mentor who supported
my growth and development both as a
lawyer and as a person by encouraging me every
step of the way.
Being a criminal defence lawyer can be extremely
difficult and very lonely at times. Having
a mentor to rely on both in good times and bad
times has been a blessing which has motivated
me to do the same for other law students and
newly called lawyers. I do this by participating in
various mentorship and coaching programs, including
the LPP Mentorship & Work Placement
Program, LSO’s CanCoach program, mentoring
students who article for our firm, and speaking
at law schools to aspiring lawyers.
My experiences have helped me gain new
insight into the world of mentorship and have
taught me two important lessons.
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1) Mentorship relationships are like a circle
where mentors and mentees are connected
in a mutually beneficial relationship supporting
and learning from each other.
For many years my mentor told me that I was
“mentoring” him as well, but I never understood
how this could be; how could I be mentoring
someone with over 50 years of experience in
criminal law, who in my eyes already knew everything
there was to know? However, over the
years I have come to realize that mentorship is
a lot more than talking about the law or career
development.
Sometimes, mentorship is about having someone
to talk to when you’ve had a terrible day in
court and you need to vent, or talk about what
didn’t go your way, or even just when you want
to be miserable and sulk in that moment.
As defence lawyers we are constantly in the
trenches, fighting for the rights of our clients
against a powerful and resourceful state. Despite
our best efforts, sometimes we lose and
our clients are convicted and go to prison. That’s
a heavy burden to bear for any lawyer, but especially
for a newly called lawyer who may feel
responsible for the outcome of the case.
That has certainly been the case for me. I remember
a particular sexual assault case where
my client was convicted in the Superior Court in
a case where I believed there was ample doubt
and my client would be acquitted. My client was
sentenced to 20 months in jail. I was devastated
and blamed myself.
After the conviction and sentencing I talked to
my mentor about how I felt. He listened attentively;
he told me that I was a good lawyer and
that it wasn’t my fault. He even took the time to
review the transcripts and point out the strong
points I had made during the trial. Most importantly,
he refused to let me blame myself. In
return, there have been times when I’ve “mentored”
my mentor by listening to his frustrations
about a case, and helping him calm down and
deal with the situation at hand.
2) A mentor is someone who encourages
you, believes in you, and helps you step out
of your comfort zone.
This is a less talked-about aspect of mentorship
because so much of mentorship focuses
on either on specifics aspect of the law or of
career development. But, in my experience as
a mentee and a mentor, sometimes all a mentee
needs is some encouragement, someone
to believe in them and encourage them to follow
their dreams.
When I started my career in criminal defence
I was extremely shy and at times insecure. I
struggled with wanting my work to be “good”
but being unsure if it actually was.
I was finally able to overcome both my shyness
and doubts through the encouragement
of my mentor who kept telling me “Sayeh you’re
a good lawyer.” In fact, he often made me repeat
it after him. Eventually, it started to sink in.
The legal profession is highly competitive and
while one may be able to find a senior lawyer to
provide legal guidance on a specific issue, many
people just starting to get into the profession
are faced with negativity and a doom and gloom
mentality. I see the same insecurities I had early
on in my career in many law students and newly
called lawyers who are just starting out.
In my mentorship/mentee relationships I do
my best to encourage them and help them see
their own potential. I have seen people’s faces
light up when I point out things they’ve accomplished
that for some reason they didn’t think
were important or significant. I’ve seen my mentees
significantly improve their advocacy skills
through encouragement and positive feedback.
Through mentorship I’ve gained support and
encouragement, learned from different people
and their wide variety of experiences and have
developed life long relationships with many
wonderful people. This is why I would highly
recommend becoming a mentor to anyone who
is in a position to offer support, help and encouragement
to colleagues.
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The Advocates’
Society
Annual Gala
Thursday, April 2, 2020
The Fairmont Palliser,
133 9th Avenue SW, Calgary, AB
Trade your tabs for fancy frocks and join
members of the bench and bar for an exclusive
evening of collegiality for the litigation bar.
Keynote Speaker:
The Honourable Marshall E. Rothstein, C.C., Q.C.,
Osler, Hoskin & Harcourt LLP
To learn more or register visit
www.advocates.ca
JOURNAL REVIEW: THEN AND NOW
An Advocate’s Perspective
20 years before R. v. Jordan
Christine Vanderschoot, Vanderschoot Family Law
In this feature, I will select and review an article from The Advocates’
Journal from 20 years ago. In this issue, I have selected an article by
Franklin Moskoff, Q.C. from the Summer 1994 edition.
Signature Sponsors:
Supporters:
In the Summer ’94 edition of the Advocates’ Society Journal, the issue of an accused’s right to trial
within a reasonable time was the main topic in the feature article by Franklin Moskoff, Q.C. While
the article, titled Section 11(b) 1 of the Canadian Charter of Rights and Freedoms and Problems
in the Application of the Doctrine of Abuse of Process, was written 22 years before the Supreme
Court of Canada’s transformative decision in R. v. Jordan 2 , Moskoff was prescient in anticipating
that section 11 (b) Charter decisions would lead to uncertainty in how the doctrine of abuse of
process would be applied.
The Charter had an almost immediately perceptible impact on the court’s ability to overcome any
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lack of statutory provisions when making a finding
on whether or not there had been an abuse
of process. But even with the Charter in place,
problems continued, as Moskoff illustrates. He
focuses on specific examples of cases that were
still being decided on a largely ad hoc basis, with
judges choosing to use or not use their discretion
to find an abuse of process where the pace
of proceedings was at issue.
For example, Moskoff compares the decision in
Regina v. Young to the outcome in Regina v. Miles
of Music Ltd. for a particularly stark contrast in the
judicial definition and application of the doctrine
of abuse of process. In Young, Moskoff informs
us that the court found in favour of the existence
of the power to stay a prosecution by reason of
abuse of process, but in Miles, he notes that despite
“obvious unfairness of the proceedings and
the unconscionable result to the accused,” the
majority ruled against the defendant. Moskoff
notes of Mr. Justice Blair’s minority position in
Miles of Music Ltd. that “it appears that abuse of
process was to be recognized but with a narrow
scope.” Blair J.’s view was that “Whether an abuse
of process has occurred depends upon an objective
judicial assessment of the total effect or
result of the proceedings...” It was not necessary
to establish, in addition, any impropriety or improper
motive on the part of the police or the
prosecutor. Blair J.’s comment may offer a path
forward that is somewhere between R. v. Jordan
and R. v. Young; or, it could lead back to the ad
hoc judgment situation Jordan was meant to address.
How were the rights and obligations of
both the accused and the public to be interpreted
in this new and vague legal landscape, and
how were criminal lawyers to advise their clients
in this uncharted territory?
The 2016 Jordan decision ended that uncertainty.
The case was meant to finally provide
a resolution that considered both the rights of
the accused, including their right to a fair and
reasonably speedy trial date, and society’s interest
in having laws enforced to ensure public
safety. What Moskoff could not have predicted
in 1994, but I believe would have supported
based on his article, are the sweeping changes
that came with Jordan. Moskoff pulls no punches
and advocates for changes to how the courts
determine whether or not an abuse of process
has occurred; he states of the decision in Miles
“…Unfortunately for the respondent, an unduly
restrictive interpretation was adopted by the
majority, so no remedy was provided.” But Jordan
did not happen in a legal vacuum and, as it
turns out, it was not a panacea either.
Moskoff’s article describes the developments
to the law post-Charter; he mentions Askov 3 and
Morin 4 , two cases that Moskoff may agree helped
“set the stage” for the 2016 Supreme Court case
by focusing the crown and the judiciary on the
application of s. 11(b) in the context of the doctrine
of abuse of process. Moskoff’s detailed descriptions
of both Askov and Morin are a valuable
addition to understanding how those cases provided
focus and set the groundwork for Jordan
(Cory J.’s finding in Askov that it is “virtually irrebuttable”
that an abuse of process must be found
under certain delay conditions is definitely compelling
reading), and demonstrate how the law
was developing, with some back and forth from
the judiciary in terms of how the issue of abuse
of process was handled, post-Charter. Moskoff’s
article demonstrates how these early cases were
recognizing the need for radical changes to the
court system, including examining institutional
and court delays caused in part by a scarcity of
resources in many jurisdictions.
R. v. Jordan has provided a concrete new framework
for the judiciary to follow, prosecutors to
be mindful of, and defence lawyers to rely upon
in the service of their clients, at the very least
leading to a more reasonable and predictable
legal system. Don’t get me wrong, the system
is far from perfect, but a general trend toward
efficiency and reasonableness is measurable.
And Moskoff was not in a position pre-Jordan
to consider how that case may impact corporate
defendants in quasi-criminal and regulatory
proceedings. The new framework following
Jordan would extend to these types of cases,
removing litigants’ prior requirement to prove
“prejudice” as a result of the delay, thereby continuing
the trend toward creating a framework
to reduce abuse of process instances.
Moskoff points out the dilemma that continues
to plague the criminal justice system post-Jordan;
he writes “Victims, however, are also devastated
when their rights to a hearing …are not
merely delayed…but extinguished in favour of
the person whom they allege did them harm. Is
public confidence in the administration of justice
shaken more or less by inordinate delay resulting
in the extinguishment of the rights of the victim
or simply a hearing taking place after the passage
of an unreasonable time?” Jordan answers
that question, coming down on the side of the
former, with a 5-4 majority determining that an
accused must be tried within 18 months in provincial
court and 30 months in superior court
criminal cases. These observations are proof
that Moskoff, writing in 1994 without the benefit
of such far-reaching common law changes as we
see in Jordan, was still asking the right questions.
Notes
1. 11. Any person charged with an office has the right: b. to be
tried within a reasonable time;
2. 2016 SCC 27
3. [1990] 2 S.C.R. 1199
4. [1992] 1 S.C.R. 771
18 19

19 th Annual
Spring
Symposium
Wednesday, April 29, 2020
9:00 am - 4:00 pm
The Carlu (College Park), 444 Yonge Street,
7th Floor, Toronto
The Advocates’ Society and the American College
of Trial Lawyers invite you to attend the
19th Annual Spring Symposium, the premier
continuing professional development and networking
event for litigators. This practical program
features the latest developments, strategies,
tools and tips for success in your practice.
If you are a litigator, this is one program you
cannot afford to miss.
A joint program with the
American College of Trial Lawyers
Eligible CPD Hours: 6.0 CPD Hours
To learn more or register visit
www.advocates.ca
QUIRKY CASE
Beware the Blog
(Do your Research),
Blake v. Blake,
2019 ONSC 4062
Tamara Ramsey, Dale & Lessmann LLP
This column features a case that is interesting because of its quirkiness. This can include unusual
facts, a novel legal issue, or something else that makes it quirky.
It is unusual for a cost decision to get much attention from lawyers who are not currently working
on their own cost submissions. However, Blake v. Blake, 2019 ONSC 4062 is an important reminder
to lawyers to (a) do their research well, (b) be aware of recent cases that are featured on
their firm blog, and ultimately (c) provide the court with binding authority that is directly on point
with an issue before the court.
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This led Justice Daley to conclude that the lawyer
for the moving party purposefully did not
bring the binding authority to the attention of
the court during submissions or while the decision
was under reserve.
The factual inference and conclusion may instill
fear among lawyers with prolific colleagues,
among lawyers who are not in the habit of reading
items posted by their colleagues and among
lawyers at small specialized firms. While many
of us may not be aware of much of the content
on our firm blogs, many of us appreciate that
blog posts are an important source of information
when we read posts from other firms as
part of our research.
In a summary judgment motion in an estates
case, Regional Senior Justice Peter A. Daley took
it upon himself to review the law on a certain issue
because there was a lack of helpful authority.
During his Honour’s review of the law, and
“without any ingenious or in-depth research”,
the trial and appellate decisions in an authority
that was directly on point came to his attention.
This case immediately disposed of the moving
parties’ submissions on that issue.
Neither party had brought the binding authority
to Justice Daley’s attention during their submissions
or at any time prior to the release of
his decision. The moving parties were penalized
for their failure to disclose the case and the responding
parties must have felt quite lucky that
his Honour found the case on his own.
Do your research
We have no insight as to why the parties did not
put the binding authority before his Honour.
It is well-known that lawyers have a positive
duty to make full disclosure of all the binding
authorities relevant to a case. The duty is
grounded in the Rules of Professional Conduct.
Justice Daley explains that ignorance is “no excuse”
and that lawyers “have a duty to conduct
reasonable research on points of law that are
known in advance to be contentious.”
Justice Daley notes that in determining whether
the lawyer ought to have known about the
authority, the court may ask whether the authority
was easy to find. For example, the lawyer
might not be in breach their duty to provide
the authority if a missed case is unique and
involves a narrow and specialized area of law.
Lawyers who practice in specialized areas, like
estates litigation, cannot avoid their duty to the
court by failing to conduct reasonable research
in their areas of expertise.
If a judge can find binding authority “without
any ingenious or in-depth research”, then lawyers
should be able to find the same binding
authority with some basic research. One of the
lawyers in this case would have found the same
binding authority as the judge, if he/she had
done the same research as the judge.
Be aware of content on your Firm’s Blog
Even worse, the lawyer for the moving parties
would have found the same binding authority
as the judge if he had done research on his
firm’s blog. While the motion was under reserve,
another lawyer at the firm posted a blog
about the trial level decision in the binding
authority that Justice Daley found through his
own research.
The lawyer for the moving parties practised
at a small specialized firm in the area of estate
litigation. Based on the blog and the moving
parties’ lawyer’s “close professional association
with” the lawyer who authored the blog post,
Justice Daley easily drew the factual inference
that the trial level decision was known to the
lawyer for the responding parties at least by the
date the blog post was published, if not earlier.
Provide the Court with Binding Authority
Justice Daley provides a useful summary of lawyers’
professional obligations and duty to the
court to provide the court with binding authority.
Among others, including the reasonable research
discussed above, the following factors
are relevant to a lawyer’s duty to the court:
a) Binding decisions, in particular, must be
raised if relevant;
b) Cases that are not binding but are persuasive
need not necessarily be provided
to the court, however lawyers should nonetheless
raise a case if it is on point and from
the same jurisdiction. Decisions from courts
of the same level may be binding under the
rule of horizontal stare decisis; and
c) If a case is relevant and on point, lawyers
must bring the case to the attention of
the court and allow the judge to determine
whether or not the case can be distinguished.
Conclusion
Justice Daley decided to increase the costs
award against the moving party for their lawyer’s
failure to comply with his duty to the
court. Instead of awarding costs against the
moving party on a partial indemnity basis,
Justice Daley awarded costs on a substantial
indemnity basis.
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CRIMINAL BAR (ALBERTA)
Learning from
Alberta’s Criminal Bar
Tamara Prince, Osler LLP
2020
End of Term
Dinner TM
On January 14, 2020, TAS held a Bench and Bar
event in Calgary entitled “Advocacy on the Front
Lines: What All Litigators Can Learn from Criminal
Advocacy”. This unique event included a
panel of two judges, Chief Justice Mary Moreau
of the Alberta Court of Queen’s Bench and Judge
Sean Dunnigan of the Provincial Court of Alberta,
both of whom regularly preside over criminal
trials in Alberta. To offer a perspective from
the other side of the Bench, the panel was moderated
by Alain Hepner, Q.C., one of the most
experienced and respected criminal defence
lawyers in Canada.
A clear indication of the star power headlining
this Bench and Bar event is that it attracted nearly
60 members of the local litigation bar (on a snowy
day with temperatures below minus 30 degrees).
The lively panel discussion that ensued captivated
the entire room, and audience engagement
was easily measured by the lengthy Q and A that
followed. Advice and anecdotes centered on the
importance of opening statements through to
streamlining evidence at trial, all the way to accurately
closing one’s case. Two recurring themes
throughout the evening were the importance of
distilling your case (and having the courage to
do so), and the necessity for professional civility
both inside and outside the courtroom. It was
an informative evening that offered members of
the civil litigation bar a rare opportunity to learn
from and celebrate our colleagues who practise
in the criminal litigation space.
Thursday, June 11, 2020
North Building
Metro Toronto Convention Centre
255 Front Street West
Toronto, ON
Save the date and plan to join us for Canada’s
largest gathering of advocates. 1,300 TAS
Members can’t be wrong.
To learn more visit www.advocates.ca
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Q. What was the last
show you binge watched?
A. M’entends-tu? Brilliant
show, written and produced
right here in Montreal.
Q. How does one get appointed as amicus, or how did you
get appointed as amicus?
A. That’s a great question! I don’t have an answer to the second part,
but I can tell you that there is no formal process. The Chief Justice
makes the appointment, after consultation with the other judges.
INTERVIEW
Adminlaw-lapalooza:
Vavilov at the SCC
Interview with Audrey Boctor,
IMK s.e.n.c.r.l./LLP (Montreal)
Compiled by Andrew Gibbs,
Department of Justice Canada
Q. Did you find the approach/role different from when you represent a particular party?
A. Yes, definitely. An amicus can fulfil different roles. Most often, the Court appoints an amicus
to represent a position that may otherwise be unrepresented, or insufficiently represented.
Two examples are where a party is no longer participating in the appeal, or a litigant is
self-represented.
Vavilov was different: there was no shortage of positions or counsel! Our mandate was simply
“to assist the Court”. As in the 2014 Senate Reference, the Court appointed two amici – an
academic (Professor Daniel Jutras) and a practitioner – and required us to file a single factum.
I was extremely lucky to work with Daniel, and we ended up agreeing on almost everything.
This was undoubtedly the most challenging mandate I’ve ever had – in part because of the
subject matter, but also because as advocates, our job is to represent our clients’ interests.
Those parameters can sometimes be difficult, but they give us direction, and we do our best
within them. Not having those parameters was daunting but getting to simply advance a
framework that I thought would best assist the Court was an immeasurable privilege.
Q. Favourite TV/ movie lawyer and why?
A.I love Luka Quinn’s character in The Good Fight, spinoff of
The Good Wife. She is unstoppable.
Q. Any pre-game rituals
before court?
A. Writing SLOW DOWN at
the top of every page of
my notes!
With 41 counsel named in the Chief Justice’s roll call on day one of the three-day hearing, Bell, NFL
and Vavilov at the Supreme Court of Canada may have been the biggest administrative law hearing
in over a decade. Following the release of the decision in December, Advocacy Matters caught
up with amicus curiae, Audrey Boctor, Partner at IMK in Montreal, to ask her a few questions.
Q. In keeping with our focus on 10+ members, what tips can you offer the “sandwich
generation” of lawyers – ensuring knowledge transfer and succession planning from
senior partners and mentoring junior counsel while managing your own expanding
high-profile case load?
A. I try to involve junior counsel at every step of the file, and if I need to adjust the bill at the end
of the day, so be it. There is no substitute for being present and for learning by doing, and I see
it as an investment in the future. If we want to expand our practices, we need competent and
motivated colleagues on our team.
Knowledge transfer from senior partners is more challenging. Given IMK’s structure, I
rarely work with anyone more senior than myself anymore. But it has always been a core
IMK value that any lawyer can walk into any other lawyer’s office and talk strategy. Having
access to all of that knowledge and experience is incredibly valuable.
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Q. Based on your factum, it appears almost all of your points were accepted by the majority.
Given the number of parties, interveners, etc., how did you make yourself heard – in writing
and at the hearing?
A. We really strived to put forward something rigorous and balanced and just do our job to assist
the Court. I am just happy that it was useful!
Class Actions Bench and Bar Reception
November 14, 2019 | The Advocates’ Society, Toronto, ON
Q. Most embarrassing moment as a litigator?
A. I have a tendency to speak quickly. The very first time I argued anything in court, I was beyond
nervous. I was the last one to speak after several experienced counsel. It was right before lunch
and the judge was already losing patience. I stood up, launched in at lighting speed, and the judge
yelled, “Maître Boctor, you’re driving me crazy!” Everyone else found it funny; I was mortified.
There was probably a nicer way to say it, but he was right. I needed to slow down if I wanted to be
effective.
Q. Having read through your website, the editorial panel wanted to ask, “what have you
not done”?
A. Ha! That’s very kind. One thing I’d like to do is to be involved in more cases in other provinces.
I’ve had some exposure to this, and I think we can learn a lot by observing different styles and
ways of doing things, both in terms of advocacy and court administration.
Q.How long from the time you wake up in the morning
before you check your phone?
A. I’m very bad at this. I use my phone as a clock, so I check
it almost immediately. I should probably get an alarm clock.
Q.What word or phrase
do you most overuse?
A. Actually.
Q. A person in the profession you look up to?
A. There are many, but Chief Justice McLachlin will always be the first who comes to my mind. If
you haven’t read her memoir, you really should!
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Ottawa President’s Reception
Thursday, January 20, 2020 The Rideau Club, Ottawa
Tricks of the Trade
January 31, 2020 | The Carlu, Toronto
Lois Warren, Lois Warren & Associates and Stephen G. Ross,
Rogers Partners LLP
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TAS President Scott Maidment, McMillan LLP

FACL (Federation of Asian Canadian Lawyers) Conference
February 8, 2020 | Toronto Region Board of Trade, First Canadian Place, Toronto
The Litigator’s Guide to the Business of Law
February 12, 2020 | Arbitration Place, Toronto
Webnesh Haile, Singleton Urquhart Reynolds Vogel LLP and
Leona Kung, Koskie Minsky LLP
Webnesh Haile, Singleton Urquhart Reynolds Vogel LLP and
Clarence Lui, Reain Lui Stock LLP
Dal Deol, KPMG LLP, Daniel Schwartz, Thornton Grout Finnigan LLP, Deborah Templer, McCarthy Tétrault LLP
Andrea Gonsalves, Stockwoods LLP

1st Annual Vancouver Gala Dinner
Thursday, February 20, 2020 | Terminal City Club, Vancouver
The Hon. Chief Justice Robert J. Bauman
Karey Brooks, JFK Law
Jacklyn Davies, MNP
Simon Coval, Q.C. , Fasken
The Hon. Chief Justice Robert J. Bauman
TAS President Scott Maidment, McMillan LLP
Miranda Lam, McCarthy Tétrault LLP

A Cure for the February Blues
February 26, 2020 | The Mercantile Social, Halifax
10+ Mid-Career Women’s Social
March 3, 2020 | Lena Restaurante, Toronto

www.advocates.ca