Keeping-Tabs-Winter-2023

KEEPING TABS
The Advocates’ Society
WINTER 2023

What the TWEET is this?
When you see this icon, throughout the publication,
click on it to see what members are tweeting about.
CONTENTS
The Advocates’ Society is proud to announce a
new online mentoring program exclusively for TAS members.
A key goal of this new mentoring program is to create a simple way for our Junior Members to
feel more connected to their professional community and obtain some career advice from more
experienced members of the bar. This program model is convenient, efficient and effective:
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√
√
No long-term commitments.
No extensive questionnaires or matching.
No heavy agendas, minute taking or long-term planning.
NEW TAS
MENTORING
PORTAL
Just simple connection and conversation for junior lawyers to get some tips and connect with
someone new.
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Chair Chat
Claudia Cappuccitti, Dyer Brown LLP
Trial Advocacy For Junior Litigators
Flora Yu, Waddell Phillips
The Law of Trolling: Publication Bans in
Regulatory Proceedings
Evan Rankin, Singleton Urquhart Reynolds Vogel LLP
Fit to practice: Four tips for keeping in shape,
even when busy
Byron Taylor-Conboy, Borden Ladner Gervais LLP
The Litigator’s Guide to Transfer Pricing Trials
Nicole Lynx, Deloitte Legal Canada LLP
Interview with Sarah Strathopolous
Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP
More information is available on
the TAS mentoring
website page.
Mentee registration for TAS Junior Members
is now open! Click here!
****At this time, the program is only available in English but we are working with Mentorship Rocket to build a bilingual (English and French) site for later in 2023.
Editor: Khrystina McMillan, Ontario Securities Commission | kmcmillan@osc.gov.on.ca
Deputy Editor: Sania Chaudhry, Forte Workplace Law | sania@fortelaw.ca
Keeping Tabs Editorial Team: Eric Blay, Pallett Valo LLP, Nina Butz, Bennett Jones LLP, Michael Ding, WeirFoulds LLP, Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP, and Sean
Petrou, McCarthy Tétrault LLP
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.
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CHAIR CHAT
Chair Chat
Claudia Cappuccitti, Dyer Brown LLP
Traditionally the start of the new year is a
time for reflection and self-improvement.
In this edition of Keeping Tabs we have
some inspiration to kick-start your year.
Flora Yu provides her top trial advocacy
tips for junior litigators. We have an interview
with the ever-inspiring Sarah Strathopolous,
winner of the inaugural Patrick D.
Schmidt Future of Family Law Award. Byron
Taylor-Conboy has unlocked the secret to
finding both more time in the day and the
energy to get everything done. Evan Rankin
walks us through publication bans in regulatory
proceedings. Finally, Nicole Lynx
gives us a run-down of the TAS event, The
Litigator’s Guide to Transfer Pricing Trials.
If, after making it though this edition of
Keeping Tabs, you’re hungry for more inspiration
and self-improvement, please
consider applying for a spot on the Young
Advocates’ Standing Committee (YASC).
YASC is the voice of young advocates within
The Advocates’ Society and in the profession
at large. We are a community dedicated
to providing young advocates with a
platform and opportunities for mentoring,
networking, and skills-improvement. We
are committed to improving diversity and
equity within profession, across the country.
YASC is also, simply, a lot of fun. Applications
open late January at advocates.ca
to those within their first ten years of practice.
Please do not hesitate to reach out to
me at cc@dyerbrownlaw.com for more information.
You can also continue you journey to
self-improvement by contributing to an
upcoming edition of Keeping Tabs. Please
email our editor, Khrystina McMillan, at
kmcmillan@osc.gov.on.ca for more details.
If you’re looking to get involved, you
can join our Volunteer Roster by reaching
out to Katrina Crocker at katrina.crocker@
queensu.ca.
Be sure to check your inboxes or follow
The Advocates’ Society on Twitter, LinkedIn,
and Facebook for the latest on our events
and initiatives.
LINK TO SIGN-UP FORM
PBO HOTLINE
Key YASC contact: Nina Butz, 416-777-5521, butzn@bennettjones.com
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TRIAL ADVOCACY
Trial Advocacy for Junior
Litigators
Flora Yu, Waddell Phillips
Despite being in my first year of call, I have
had the opportunity to act as second chair in
three major civil trials. Trials are a “final exam”
of sorts, testing nearly every major lesson in
advocacy learned in law school and our day-today
practice as litigators. In this article I would
like to share some of the insights I have gained
through trial and error (mind the pun) on how
to support your team through this gruelling
process, and come out as a better litigator.
Plan, but not too far in advance
Time is a precious commodity in civil trials. Planning
in advance helps ease the pressure, but trials
are unpredictable: preparing too much and
too far in advance may result in otherwise excellent
work becoming obsolete and the client
being billed unnecessarily. This is why it is important
to work backwards from a big-picture
timeline with direction from senior lawyers who
can fill you in on the overall trial strategy, the
core arguments on which to focus your efforts,
and the areas that will most likely be subject to
significant change.
With that guidance from senior counsel, you
should prepare an outline of closing submissions
in advance. A helpful outline should contain
the legal arguments and excerpts of the
documentary evidence on which you are most
likely to rely, with clearly demarcated spaces
where you require more research or evidentiary
support. It is important to identify gaps in
your case early and communicate them to senior
lawyers, as these gaps may impact their
strategy at trial.
You should also brush up on key evidentiary
issues that may come up at trial including
hearsay, other anticipated objections (and responses
to anticipated objections), impeaching
witnesses, expert qualifications, and business
records. Investing in the latest edition of Sopinka’s
Law of Evidence in Canada (or other similar
resource) will yield guaranteed returns at trial.
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Discovery will come back to haunt
(or reward) you
Procedural mistakes and sharp practice at
the discovery stage can resurface at trial
resulting in real consequences to your client’s
case. Improper questions, as well as
incomplete answers and productions, can
result in sanctions by the court such as adverse
costs, an inability to tender favourable
evidence, or the striking out of pleadings.
It is important both as advocates and
officers of the court to take our responsibilities
seriously, and ensure fulsome, proper
examinations and documentary production
in advance of trial.
Carve out your role and take ownership
Being second chair can be a valuable opportunity
to establish yourself as the trusted
“right hand” to the senior counsel on
your team and venture outside your comfort
zone to develop new skills. As a junior
litigator, you are in an ideal position to proactively
coordinate with your colleagues
to ensure that there is no duplication of
work or confusion of responsibilities. The
time required for essential tasks such as
inserting footnotes, swearing affidavits, or
uploading documents to Caselines is often
underestimated. Exercising leadership by
managing these details may be one of the
best ways in which you can contribute to
the team and prevent last-minute disasters.
Aside from providing timely high-quality
work product, you may also be able to
carve out smaller, discrete aspects of the
case over which you can take ownership.
For example, you can become an “expert”
in key legal issues of the case and prepare
case summaries or bench briefs (see below)
for quick reference when the need arises.
There may be an opportunity for you to argue
a motion or prepare and/or examine
a witness. It is a good practice to express
your interest well in advance and schedule
time for senior counsel to supervise and review
your work.
Set up a system for in-trial
communication
Prior to trial, you will need to coordinate
with your teammates to find a minimally
intrusive system for conveying real-time information.
For example, imagine that you
notice a mistake that needs prompt correction
as another member of your team is
making submissions to court, or you have
a case or document that is helpful to the
point being made. Whether it is a tug on
the robe, post-its, emails, or messaging
platforms, you should devise a system that
will quickly get the message across with
minimal disturbance.
Brief the bench
I credit my mentor, John Kingman Phillips,
for introducing me to the concept of “bench
briefs” – minimalistic memos on a discrete
issue. These documents are designed to be
digested in seconds and can be submitted to
court in a moment’s notice. Because bench
briefs lay out discrete issues in an intuitive,
user-friendly way, they can be indispensable
tools for counsel and court alike.
No rest for the wicked
It probably comes as no surprise that trials
are fast-paced, labour-intensive, and highly
unpredictable. There never seems to be
enough time to accomplish all the tasks to
the exacting standards that we set for ourselves.
A few times I have had to turn in a
factum, on unfamiliar topics that must be
served within 24 hours.
Despite all the positive developments
in our industry when it comes to mental
health and self-care and the best efforts
of our colleagues to share our burdens,
trials are still undeniably taxing. Even if
you manage to find downtime, you may
not be able to summon the mental or
emotional energy to be a good partner,
parent, child, sibling, or friend. It is important
to give your loved ones a headsup
prior to entering this tough period and
to give yourself lots of grace for not accomplishing
everything to a standard of
perfection. It may be tempting to forego
sleep, nutrition, and exercise in favour of
short-term productivity. However, your
physical health is vital to your ability to
undergo a long trial. Try to find opportunities
to recharge and reward yourself
whenever you can.
Ed: Looking for more tips on being second chair? The Advocates’ Society’s Second Chair not Second Fiddle program is
available on-demand here.
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CASE BRIEF
The Law of Trolling:
Publication Bans in
Regulatory Proceedings
Evan Rankin, 1 Singleton Urquhart Reynolds Vogel LLP
Where regulatory personnel and potential witnesses might face aggressive online trolling as a result
of their involvement in an investigation, can a publication ban be obtained over their names?
According to a recent decision by the Ontario Superior Court of Justice the answer is that witnesses’
identities may be protected, but not those of “public officials.”
Background
In College of Physicians and Surgeons of Ontario v O’Connor, Ontario’s regulator of physicians
sought publication bans over the name of a Medical Officer of Health (“Dr X”) who had reported
concerns about another physician to the College, the names of two other physicians who had provided
information to the College (the “Potential Witnesses”), as well as the names of the College’s
investigators (the “Investigators”). The motion occurred in the context of several applications for
statutory injunctions which were heard together.
The request was prompted in part by a concern that if the names of these individuals became
public, they would be subjected to intense online harassment. This concern was not baseless. The
physician being investigated, Dr. Phillips, maintained a substantial Twitter following and had earlier
disclosed the names of the Potential Witnesses in a tweet. Several Twitter users began tagging
the Potential Witnesses in Tweets featuring statements such as “You’re complicit in Nuremberg
code violations. The trials will come for you. I will make sure of it” and “Murderer.”
The Decision
Publication bans are only granted in Canada if: (1) court openness poses a serious risk to an important
public interest; (2) the order sought is necessary to prevent this serious risk to the iden-
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tified interest because reasonably alternative
measures will not prevent this risk; and, (3) as
a matter of proportionality, the benefits of the
order outweigh its negative effects. 2
With respect to Dr. X and the Potential Witnesses,
the College argued the important public interests
at stake were (i) encouraging the reporting
of misconduct, (ii) fostering witness candour,
and (iii) ensuring the integrity of the College’s
investigation. With respect to its Investigators,
the College argued that the important public
interest at stake was ensuring the efficiency of
the College’s enforcement function.
With respect to the Potential Witnesses, Justice
Morgan accepted that there is a public interest
in encouraging the identification and reporting
of misconduct. He held that fostering
witness candour was also an important public
interest which could justify a limitation on court
openness, and noted that “[p]atients and physicians
alike require some assurance that they
can register complaints and report to the [College]
without public exposure.” 3 Of significance,
Justice Morgan noted that “even the spectre
of harassment” could have a chilling effect on
witness candour. 4 The “spectre of harassment”
language suggests that a publication ban may be available where online harassment has not yet
occurred, but is reasonably anticipated.
However, insofar as Dr. X and the Investigators were concerned, the examples of Twitter trolling
provided by the College did not fit the bill because Dr. X and the College’s investigators were
public officials who “must bear a higher level of public accountability in carrying out their duties.” 5
Weighed against this interest, the trolling in evidence should be dismissed as mere name calling: 6
“The social media name calling identified by the Applicant is excessive
and insulting, but it is not fear-inducing. Without some perspective
on such hyperbole, “the inflation of language…detracts from
precise consideration of what is involved here”: […] If being called a
“Nazi” on Twitter could actually paralyze regulatory officials in the
course of their duties, one can only imagine what it would do to a
Prime Minister or provincial Premier who are targeted non-stop. In
the current social media-dominated world, all of government would
have to operate in secret in order to avoid such language.”
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Using a publication ban to shield the identities of Dr. X and the Investigators was too great a cost to free
expression because anonymizing their names prevented public scrutiny of their performance. 7
Takeaways
It appears that the identities of witnesses in regulatory proceedings can now be made subject to publication
bans where online trolling and harassment is occurring, and perhaps even where it is just reasonably
anticipated. Though the O’Connor decision appears to be the first time that an Ontario Court
has found that “encouraging the reporting of misconduct” and “fostering witness candour” justified imposing
a publication ban in the context of a regulatory proceeding, 8 the Divisional Court has recently
accepted Justice Morgan’s approach in another case involving the College. 9
On the other hand, even severe online trolling directed at regulatory participants – including accusations
of Nazism – may be insufficient to warrant a publication ban if those individuals are “public officials”,
a term which will need to be fleshed out in future cases.
Notes
1. Evan Rankin together with his colleague Peter Wardle served as counsel to the College in this case.
2. Sherman Estate v Donovan, 2021 SCC 25 at para 38.
3. College of Physicians and Surgeons of Ontario v O’Connor, 2022 ONSC 195 at para 59 [O’Connor].
4. O’Connor at para 60.
5. O’Connor at para 62.
6. O’Connor at paras 71-72.
7. O’Connor at para 62.
8. Although the Divisional Court has previously been willing to entertain “fostering witness candour” as a “theoretical” important public interest in Turner
v Death Investigation Council, 2021 ONSC 6625 (Div Ct) at para 56.
9. Kilian v College of Physicians and Surgeons of Ontario, 2022 ONSC 5931 (Div Ct) at para 94.
14 15

PHYSICAL HEALTH
Fit to practice: Four tips for
keeping in shape, even
when busy
Byron Taylor-Conboy, Borden Ladner Gervais LLP
We get it, physical exercise is important. But finding time and energy for it
can be a real challenge, especially for us young advocates. Here are four
concrete steps you can take right now to become more physically active:
Focus on small gains
Some exercise is better than no exercise.
Remember this when you’re tempted to skip
the gym or that yoga class because you don’t
have a full hour for it. Instead, try going to
the gym for 30 minutes or going for a brisk
walk around the office—you’d be surprised
how beneficial that little bit of exercise can
be.
Early bird gets the worm
Yes, it’s cold, it’s dark, the bed is warm. But
for most of us the early morning is the only
time when life and work won’t get in the way.
If you’re serious about carving out time for
taking care of your body—at least 2.5 hours
of moderate-to-strenuous activity a week,
say the experts—consider moving up your
alarm.
Develop your routine
It’s one thing to get 2.5 hours of exercise
one week; it’s another thing to get it week
after week. What you need is a routine that
aligns with your practice and lifestyle. Try
experimenting to find what works best. I
love running at lunch or after work, but I find
it hard to do so consistently on weekdays.
And while I’m not exactly thrilled about my
morning routine, it works—and that’s what
counts.
Create microhabits
According to the Harvard Business Review,
one of the keys to forging a new habit is to
develop “microhabits,” which are incremental
adjustments that get you closer to your
goals. These microhabits have worked for
me:
1. Setting out my running gear at bedtime
the night before a morning run;
2. Programming my smart speakers to command
me to go to bed earlier; and
3. Making friends with the regulars at the
gym.
Kick off 2023 with YOU being your priority.
Share your tips for fitting fitness into your
week @Advocates_Soc using #TASLawTips
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EVENT REPORT
The Litigator’s Guide to
Transfer Pricing Trials
Nicole Lynx, Deloitte Legal Canada LLP
On November 17, 2022, the TAS TAX Litigation
Practice Group held a vibrant session
devoted to the intricacies of transfer pricing
litigation. “The Litigator’s Guide to Transfer
Pricing Trials” featured speakers from both
private practice and the bench who discussed
the nuances of conducting transfer
pricing trials as well as tips for effective advocacy.
The session was moderated by Marie-Claude
Marcil of EY Law LLP.
The first portion of the session focused
on top tips for litigators conducting transfer
pricing trials and Osler’s Amanda Heale provided
a helpful recap of the transfer pricing
rules and their operation.
The dispute resolution process for resolving
transfer pricing matters can be confusing
as there are multiple resolution options
that are available which have competing
timelines. A taxpayer can opt for relief under
an applicable tax treaty, utilize the traditional
domestic appeals and tax litigation
processes or both. However, if a practitioner
is not aware of how these different
regimes operate, certain deadlines may be
missed. Daniel Sandler of EY Law LLP delved
into the different dispute resolution processes,
clarifying the different options that
are available to taxpayers as well as their
pros and cons.
Of particular interest was a group discussion
on timely issues such as litigation
of hybrid debt matters, the benefits of case
management and whether there should be
mandatory mediation in transfer pricing appeals.
Expert witnesses often play a significant
role in transfer pricing litigation. When
choosing an expert witness, it is particularly
important to properly vet potential candidates
in order to ensure that they have
relevant credentials and experience, strong
communication skills and an appropriate
demeanor.
BLG’s Laurie Goldbach engaged in a lively
discussion with the Honourable former
Justice D’auray regarding the role of expert
witnesses in consideration of the Tax Court
Rules, and in practice, as well as the effectiveness
of expert witnesses in the context
of transfer pricing appeals. Of note was the
commentary regarding best practices for
managing expert witnesses and the degree
of assistance that counsel can provide in
drafting expert reports and witness preparation.
The second portion of the session featured
another special guest, the Honorable
Justice Boyle. During a convivial fireside
chat with Olivier Fournier of Deloitte Legal
LLP, J. Boyle provided his thoughts on topics
such as the role of counsel in designing
questions to ask experts, the use of expert
evidence to encourage out of court resolution
and principled bases for settlement in
transfer pricing cases.
Get Involved!
Interested in getting more involved with TAS?
Applications are now being accepted for
our Young Advocates’ Standing Committee
(YASC).
The Young Advocates’ Standing Committee
seeks engaged, hard-working volunteers to
promote the interests of young advocates
(within their first ten years of practice) by
planning and implementing mentoring/
networking programs, administering YASC’s
publication (Keeping Tabs) and participating
in the work of The Advocates’ Society.
The Society welcomes applications to YASC
from Society members who are in their first
ten years of practice. Successful applicants
will serve a two-year term starting June 2023.
Parental leave will be accommodated.
Deadline to apply: March 3, 2023.
APPLY FOR YASC 2023/24 TERM
CLICK HERE
Questions? Please contact Chris Hunter at
ckhunter@torys.com
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INTERVIEW
Sarah Strathopolous, Recipient
of the Patrick D. Schmidt
Future of Family Law Award
Q. How did your practice in family law begin, and how has it evolved?
A. I began my family law practice in a boutique family law firm that focused on intense litigation. I was
immersed in my practice, working very long hours. The experience I gained was immeasurable. As
my practice has evolved, I am also now able to act as a parenting coordinator, mediator, or arbitrator
to help families resolve disputes in a cost-effective and thoughtful way. This has provided a nice balance
with the continued litigation side of my practice.
Compiled by Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP
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Sarah Strathopolous is a Partner at Epstein Cole LLP, where she practises in all areas of family law. Sarah
was the inaugural recipient of The Advocates’ Society’s Patrick D. Schmidt Future of Family Law Award
in 2022. This award honours the legacy of Patrick D. Schmidt and promotes excellence in the profession
by supporting junior lawyers in their first ten years of practice who have chosen to dedicate their practice
to family law, and have demonstrated excellence advocacy, civility and giving back to the profession
through teaching and/or mentoring.
Q. What drew you to family law?
A. As cliché as it sounds, like many young lawyers coming out of law school, I was drawn to family law as
a way of making an observable impact in clients’ lives. And, frankly, family law files are just so interesting.
Every case is different. Every day is different.
Q. As a family lawyer, what challenges do you face in your practice and how do you manage them?
A. Three main challenges come to mind: For me, perhaps the most challenging aspect of practicing
family law has been working on files where I represent the spouse that is acting badly. However,
I have come to realize that, in these cases, I can make just as much of a positive impact –
and perhaps more – by working with my client to minimize, or even prevent, this type of conduct
from continuing.
Second, family law is one of the areas of law most impacted by emotions. I have found that
keeping advocacy focused on long-term goals, not getting bogged down with irrelevant drama or
positioning, and carefully crafting arguments in a way that does not immediately set off defensive-
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ness from the opposing side, greatly help to de-escalate the emotion.
Finally, family law files are not just about one incident or one transaction: they involve all aspects
of a family’s life and are ever-evolving as children age, market conditions vary, etc. This
makes family law interesting, but it also requires an immense amount of organization and planning
to ensure that advocacy strategies are constantly being reassessed and updated.
Q. What can young advocates do to help improve access to justice?
A. I believe it is important for young advocates to devote even a small amount of their time towards
access to justice initiatives – whether that is pro bono work, or “low-bono” work, volunteering at legal
clinics, etc. I, myself, volunteer with the Family Justice Center and Luke’s Place, and that experience
has highlighted how much of a need there is for these programs. Even a few hours a month can have
a profound impact.
Q. What role has mentorship played in your career?
A. I have been incredibly fortunate to have worked under, and been mentored by, some of the
best practitioners in this area, who were willing to devote the time to helping me grow professionally
and personally including Alfred Mamo, Harold Niman, Philip Epstein, Ken Cole and many
others. I have also found mentorship through opposing counsel on certain files. Patrick Schmidt
was one of these mentors and I had the great fortune of being challenged by him and being able
to learn from him on files. I am extremely humbled to be the inaugural recipient of the “Patrick D.
Schmidt Future of Family Law Award” and I view it as a responsibility to practice law in a manner
that carry on even a small part of the tremendous contributions Pat made to our profession.
Q. What advocacy tips do you have for young advocates?
A. The difference between a good lawyer and a great lawyer is preparation and practice. Hard
work pays off, and your knowledge will be your greatest source of confidence and persuasion.
You need to be confident in your advocacy before you can gain other people’s confidence in you.
Q. What do you feel are the most important traits of a good mentor to a young advocate?
A. I think there are two important traits: First, mentors should go beyond helping their mentees succeed.
They should also encourage their mentees to pay it forward by helping to develop the next generation
of young advocates to ensure the profession continues to flourish long-term.
Second, experience and knowledge of not only substantive law, but also legal processes and advocacy
techniques. This is important because practicing law requires not just ability to quickly assess
challenges and to develop and adapt strategies to address them.
Q. What have been some memorable high and low points of your career? What learnings
did you take from these experiences and how have they led you to this milestone?
A. My most memorable high point was reading the decision following my first contested motion, where
a controlling husband was attempting to use the justice system to continue his control. The decision
had a profound impact on the wife and the children and was my first experience with how rewarding
this job can be.
The most memorable low point happened early in my practice. I returned from my honeymoon to an
arbitration that was not properly prepared. The stress of feeling unprepared was significant, as was the
intensity of preparing an entire arbitration in a short time period. This experience, however, made me
acutely aware of the need to be prepared; to prepare early and to prepare more than might be necessary.
This is a lesson I have not forgotten and has served me well.
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