Keeping-Tabs-Summer-2023

KEEPING TABS
The Advocates’ Society
SUMMER 2023

CONTENTS
05
06
Chair Chat
Chris Kinnear Hunter, Torys LLP
Court of Appeal tells Regulators to Pony Up
for Disciplinary Proceedings
Brynne Harding, and Tyler McDonough, Bennett Jones LLP
08
Health and Wellness Initiatives to Support
Longevity in the Legal Practice
Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP, Melissa Pike, Pink
Larkin, Sarah Strban, Henein Hutchison Robitaille LLP
Our national conference for mid-career advocates is finally here! Join
us in Ottawa for extraordinary collegiality and learning. Spaces are
limited! Book today!
14
Interview with Theresa Donkor, Rudnicki &
Company
Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP
February 1 - 3, 2024
Editor: Khrystina McMillan, Ontario Securities Commission | kmcmillan@osc.gov.on.ca
Deputy Editor: Eric Blay, Pallet Valo LLP| eblay@pallettvalo.com
Keeping Tabs Editorial Team: 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.
Fairmont Château Laurier
2 3

WHAT’S COMING UP @ TAS
(Click on the program to learn more)
CHAIR CHAT
CHAIR CHAT
SEP 14
This Is How We Do
It: Lessons from the
Senior Family Law Bar
(TORONTO, ON)
SEP 22
Pozner on Cross-Examination:
Advanced
Techniques
(TORONTO, ON)
SEP 23
Do A Trial
(TORONTO, ON)
SEP 26 - 27
Summary Judgment
Motions
(TORONTO, ON)
Chair Chat
Chris Kinnear Hunter, Torys LLP
“Deep summer is when laziness finds respectability.”
– Sam Keen
SEP 28
13th Annual Securities
Symposium
(TORONTO, ON)
OCT 12
L’interrogatoire et le
contre-interrogatoire
des experts
(Québec, QC)
OCT 20
Class Actions
Advocacy
(VIA ZOOM)
SEP 28
5e Gala Annuel de La
Société des plaideurs
(Montréal,QC)
OCT 13
Advanced Negotiation
Strategies for Lawyers
with Marty Latz
(TORONTO, ON)
OCT 05
Equity, Diversity
and Inclusion
(VIA ZOOM)
OCT 17
Commissions
Advocacy
(VIA ZOOM)
OCT
24 - 25
Evidence for
Litigators
(TORONTO, ON)
OCT 11
Examinations for
Discovery:
Building Block One
(VIA ZOOM)
OCT 19
Atlantic Advocacy
Symposium: Elevating
Your Advocacy
(Halifax, NS)
OCT 27
Women in Litigation
Symposium: Forging
Your Own Path
(TORONTO)
The dog days of summer have arrived.
A time to throw on the out-of-office in favour
of cottages, barbeques and outdoor patios;
boating and camping; golf and baseball. 1
And yet, for many of us, doing “nothing” doesn’t
come easy. It’s antithetical to our M.O. during
the rest of the year – the next file, next client,
next goal.
If that rings true for you, consider a different
perspective: Olympic athletes train single-mindedly
for the year leading up to their event, but
not with singular intensity. They understand
that peak performance is achieved not through
maximal exertion at all times, but by periodizing
and tapering their training to climax at the
right time.
The fall will be on us soon enough, with all
that comes with it. If you want to get a head
start now, do yourself a favour and carve out
some ‘me time’ to recharge. If nothing else,
you’ll have something cool to say when people
ask how your summer was.
And if you are taking a little time to yourself,
I hope you’ll enjoy this summertime edition of
Keeping Tabs, which features a discussion on a
recent decision of the Alberta Court of Appeal
on the role of costs in administrative proceedings
that could serve as a model for the rest of
1 Or insert such other summertime cliché as may apply.
the country; a thought-provoking interview with
Theresa Donkor on her transition from corporate
lawyer to criminal appeals specialist and
the pursuit of racial justice in the legal system;
and a survey of health and wellness initiatives
instituted by some firms that may provide a
model for the future and meet Justice O’Bonsawin’s
call at End of Term Dinner to improve
mental health in the profession.
Last but not least, I want to take a moment to
thank Keeping Tabs’ outgoing editor, Khrystina
McMillan, on this, her last edition of KT. Khrystina
infused each edition of Keeping Tabs with
the energy and enthusiasm so characteristic of
her, and we are as sad to see her go as we are
excited to see what Eric Blay and the incoming
editorial team does with the publication.
As always, Eric would love to hear from you;
if you’d like to contribute a piece to a future edition,
please reach out to Eric at eblay@pallettvalo.com
for more details. If you’re looking to
get involved in YASC, you can join our Volunteer
Roster by reaching out to Katrina Crocker at
kcrocker@hhllp.ca.
Be sure to check your inboxes or follow The
Advocates’ Society on Twitter, LinkedIn, and
Facebook for the latest on YASC events and initiatives.
Until then, see you in the Fall.
5

CASE BRIEF
Court of Appeal tells Regulators to
Pony Up for Disciplinary Proceedings
The new cost of self-regulation after Jinnah v
Alberta Dental Association and College
Brynne Harding, Bennett Jones LLP, and Tyler Mc-
Donough, Bennett Jones LLP
duct; (ii) is a serial offender; (iii) has failed to cooperate
with investigators; or (iv) has engaged
in hearing misconduct.
In establishing the presumption, the Court
took notice of publicly available financial statements
of the College, concluding that the new
rule would have “marginal, if any” impact on
the College’s financial position. Of interest, this
evidence had not formed part of the appeal record
and the parties had not been invited to
make submissions on the financial impacts. As
Alberta’s professional colleges vary in size and
financial means, the new presumption may affect
some more than others.
The Supreme Court of Canada denied the
College’s application for leave to appeal.
Impacts on Self-Regulated Professional
Organizations
The breadth of Jinnah’s application to professional
regulators in Alberta and beyond is unsettled.
The Court indicated that its framework
applies to all professionals regulated by the Alberta
Health Professions Act. Outside of healthcare,
some regulators have rejected the decision,
contending that it does not govern their
statutory mandate (e.g., Law Society of Alberta
v Beaver).
With its holding that the profession as a whole
should presumptively bear the cost of misconduct
proceedings, except where one of the four
categories of “compelling reasons” applies, the
Jinnah decision may discourage regulators
from pursuing disciplinary proceedings. This
may, in turn, encourage informal resolution of
complaints, which would be less costly, but can
also create a prejudicial disciplinary history for
professionals. Fewer or smaller costs awards
may also mean fewer appeals by professionals
from hearing decisions against them.
Regulators should stay up to date on the
evolution of the four categories of “compelling
reasons” to award costs, and how the decision
is interpreted and applied.
In Alberta, punitive cost awards in administrative
proceedings may be a thing of the past. In
Jinnah v Alberta Dental Association and College,
Alberta’s top court established a new presumption
that the profession as a whole – and not individual
members - should bear the costs of all
but the most serious disciplinary proceedings.
Overview
One of Dr. Jinnah’s patients complained about
her collection efforts on a $444.46 invoice for
dental services. A Hearing Tribunal of the College
held that the collection efforts amounted
to professional misconduct and ordered Dr. Jinnah
to stop practising dentistry for one month,
complete a philosophy course in ethics, and
pay $50,000 in costs.
Dr. Jinnah sought an administrative appeal,
through which the Appeal Panel quashed the
one-month suspension and reduced the hearing
tribunal costs award to $37,500, covering
just 20% of the College’s hearing costs. Pursuant
to a statutory right of appeal, Dr. Jinnah appealed
to the Alberta Court of Appeal.
The Decision
The Court of Appeal set aside the $37,500 costs
award and held that it was so large as to have
become the primary sanction for Dr. Jinnah’s
misconduct. This was a reviewable error, applying
the longstanding principle that costs
awards are designed to indemnify and not to
punish. The Court had counseled restraint in
past cases, but had stopped short of establishing
a rule.
Curtailing the discretion to award costs, the
Court created the new presumption that “the
profession as a whole should bear the costs in
most cases of unprofessional conduct”. Four
types of “compelling reasons” could justify a
departure from the presumption: a member
(i) has committed serious unprofessional con-
6 7

hours. Rather than establishing a specific hours target, associates are assigned a moderate annual
budget, which they manage with a mentor. This approach seeks to help empower associates,
promote discretion over when and how they work, while also teaching the business realities of
practice.
To nurture this moderate hours culture, partners are cautious about the number of files and
projects associates take on, closely monitor associate hours and capacity, and regularly involve
associates in file management and work delegation decisions. The goal for this firm is to work
slightly under capacity so that each file gets the attention it needs and so that there is enough
slack to handle work emergencies when they arise. In this law firm’s experience, taking associate
work/life balance seriously helps establish a healthy and sustainable pace for the firm as a whole.
ALY HÁJI MELISSA PIKE SARAH STRBAN
MENTAL HEALTH
Health and Wellness Initiatives to support
Longevity in the Legal Practice
Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP, Melissa Pike, Pink Larkin, Sarah Strban,
Henein Hutchison Robitaille LLP
The importance of prioritizing health and wellness is becoming a more commonplace conversation
in the legal profession. While traditional approaches to health and wellness such
as allowances and reimbursements, offer important benefits, many firms are also implementing
innovative policies to foster longevity in their workplaces. The YASC Health and
Wellness Working Group canvased YASC members regarding such initiatives and highlight
three below.
Reframing the Billable Target
The billable hour is often raised as a hot-button issue in
relation to health and wellness.
We spoke with a Toronto employment and labour law
firm that has implemented an innovative approach to
the billable hour to promote health and wellness. This
approach is a product of believing that managing hours
and giving associates a high degree of autonomy are
essential factors in avoiding burnout and fostering longevity
in litigation. From the top down, the firm has intentionally
adopted a moderate hours culture. Lawyer
hours typically sit around 1250 a year, with a meaningful
portion of that being made up of pro bono and low bono
Substansive Parental Leave
With respect to pregnancy and parental leaves, some firms are providing greater top-ups so that
associates who choose to take these leaves can do so without financial strain. We spoke with one
such firm, a Nova Scotia and New Brunswick-based labour and employment law and litigation
firm. Under their policy, associate maternity/parental EI benefits are topped up by the firm to 95%
of their salaries for the entirety of a 12-month leave or the pro-rated equivalent for an 18-month
leave. Such leaves also do not impact partnership considerations or delay eligibility.
We spoke with one lawyer at this firm who took a one-year pregnancy and parental leave in
her sixth year of practice and returned from her leave as a partner in her seventh year who said:
“Working at a firm that encourages life outside of work, including family priorities, and not having
a parental leave impact one’s career progression, is a testament to [our firm]’s commitment to its
associates’ longevity in the legal practice and at the firm. Our firm’s collaborative approach also
effectively provides coverage while associates are on leave and for their reintegration into their
work when they return. It is the firm’s view that the practice of law is a marathon – not a sprint. And
we’re very proud of the work environment we’ve created to support that marathon.”
8 9

Mental Health Supports
A Toronto litigation boutique has taken a cutting-edge approach to mental health by offering its
lawyers a comprehensive wellness policy, which includes paid mental health days, an annual wellness
stipend, and active engagement in Well-Being Week in Law. This firm also covers the costs of
individualized counseling for each of its associates in partnership with a leading clinic specializing
in lawyer-related stress and mental health services, to support their associates in navigating the
early years of practice.
The managing partner’s view is that mental health supports are essential for a modern practice:
“We train our lawyers to be best-in-class litigators, negotiators, and investigators. There is no way
to achieve long-term success in this profession without paying careful attention to your health.
Mental health is health.”
Paid counseling allows juniors to develop healthy habits and manage their stress levels, all with
the support of an experienced professional. It also provides an avenue to manage the unique
stress of litigation, as explained by the same managing partner: “We are only now coming to understand
the impact that secondary or vicarious trauma can have on litigators. We want our lawyers
to have long and fulfilling careers. That can’t happen if they don’t develop the tools to avoid
burnout and to productively process all the turmoil and emotion that comes up when you spend
your days fighting for people’s companies, livelihoods, and liberty.”
Takeaways
Each of these policies aims to promote longevity in the legal practice, and firms such as these
three are seeing the benefits. Ensuring that associates are mentally healthy, and able to perform
to their full capacity just makes sense from both a personal and business perspective.
NEW TAS
MENTORING
PORTAL
Did you know The Advocates’ Society has 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:
√
√
√
No long-term commitments.
No extensive questionnaires or matching.
No heavy agendas, minute taking or long-term planning.
Just simple connection and conversation for junior lawyers to get some tips and connect with
someone new.
More information is available on the
TAS mentoring website page.
TAS Junior Members are automatically signed
up. Click here to set up your profile today!
10 11
****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.

Q. Could you describe your practice in a few sentences?
A. I am a criminal defence lawyer with a focus on racial justice. Because of my interest in systemic
issues, I specialize in criminal appeals. Most of my litigation takes place before the Ontario Court
of Appeal. I also defend clients at trial, advise complainants in sexual assault proceedings, and
represent lawyers and paralegals in disciplinary proceedings before the Law Society of Ontario.
INTERVIEW
Q. Your career trajectory is fascinating, going from practising corporate law on Bay Street
to your current practice in criminal law. Was it always your intention to practise criminal
law?
A. It was always my intention to do something social justice-oriented with my law degree, but I
didn’t initially know what that would look like in reality. In law school, I was really interested in
criminal law and employment law but there weren’t a lot of jobs available in the 2L recruit in those
areas. It wasn’t until the pandemic, when I started to do a lot of self-reflection and have conversations
with friends, family, and mentors, that I realized that criminal law was 100% what I wanted
to do.
Interview with Theresa
Donkor, Rudnicki & Company
Aly Háji, Lax O’Sullivan Lisus Gottlieb LLP
Q. Why did you become a lawyer?
A. I’ve wanted to be a lawyer since I was a kid. I don’t have any lawyers in my family and didn’t
know any lawyers growing up, but I think I’ve been interested in advocacy since even before I really
understood what the word ‘advocate’ meant.
I remember when I was nine or ten, I wrote a long and comprehensive letter to my parents on why
we should get a family dog. I guess that letter was my first ever written submission. I didn’t get the
dog, but it was the beginning of people telling me that I should be a lawyer one day and that idea
stuck with me.
Q. Why did you start your career by practicing corporate law?
A. To be honest, I kind of stumbled upon corporate law because I wasn’t brave enough to go off
the beaten path in law school, despite my interest in social justice. There was a lot of pressure in
law school to get a job during the 2L recruit and I felt like I would be a failure if I didn’t.
Jobs outside of Bay Street or government weren’t really advertised, and I didn’t want to risk not
finding a job, especially given the large amount of law school debt I had at the time. So, I ended
up applying broadly to firms in the recruit with the goal of just finding a job – any job. Ultimately, I
accepted a summer student position at a full-service corporate law firm on Bay Street, and I later
returned there as an articling student and associate.
While it may have been ideal to practise criminal law right from the beginning, I have no regrets
starting off my career in corporate law. I have a lot of great memories from my previous firm. I
met some of my closest friends there, gained a lot of excellent mentors, and received top quality
training and resources that shaped me into the lawyer I am today.
14 15

Q. What was it like transitioning into your current practice, not only in the sense of going
from corporate law to criminal law, but also from a huge firm to a smaller boutique?
A. There was a learning curve in switching practice areas but the foundational skills that I learned in law
school and in the early stages of my legal career helped me to get up to speed quickly. My boss was also
very supportive and patient, which made the transition easier.
I feel like I dove right into the deep end though – I second chaired my first jury trial in my first month
practising criminal law; I made submissions on racial bias in jury selection within my first week. It was
difficult, but it was an invaluable experience. I also started practising criminal law during the pandemic,
so I was able to watch proceedings over Zoom, which helped me learn a lot.
The most noticeable difference in the transition was the discrepancy in resources. At big corporate firms,
there are dozens of different departments that help you with whatever you need – printing services, IT
services, assistants, kitchen staff, human resources, client services, the list goes on. Most small criminal
law firms don’t have any of that. I think a large part of the reason for this is because most criminal law
firms take on a lot of clients supported by Legal Aid Ontario, which is tremendously underfunded.
By virtue of that, criminal defence lawyers typically make a lot less money than corporate or civil lawyers.
But at the end of the day, it’s not about the money for me, and I’m sure most of my colleagues
would say the same. We do the work we do because we’re passionate about it. And thankfully, the
criminal defence bar is extremely collegial – we help each other out as much as possible, even if we’re
not part of the same firm.
Q. What spurred the transition from corporate
law to criminal law?
A. I didn’t plan on practising corporate law forever,
but I started to feel compelled to make the transition
around 2020. Not only were we facing an unprecedented
global pandemic, but we were also
witnessing a major socio-political uprising with the
Black Lives Matter movement.
To be clear, police brutality against Black folks and
anti-Black racism existed long before 2020 but that
year there was an incredible amount of public attention
towards it. And seeing people who looked
like me being murdered on the news and on social
media every day was devastating.. George Floyd,
Breonna Taylor, and Ahmaud Arbery are just a few
of the names on the ever-growing list of Black individuals
who needlessly lost their lives. And they
are more than just names. They are human beings
who had families, friends, and bright futures
ahead of them. This wasn’t just happening in the
United States. In 2022, the Toronto police released
a report entitled “Race & Identity Based Data Collection Strategy Understanding Use of Force & Strip
Searches in 2020” which showed that Toronto police officers used proportionately more force against
Black people, more often. 1 It is clear that racism and bias play a significant role in these use of force
outcomes that must be addressed.
At some point I decided that I couldn’t stand on the sidelines anymore without taking action. Being
a lawyer is a privilege that equips you with tools and resources that so many other people don’t
have. I wanted to use my tools and resources to more directly help people that looked like me and
came from communities similar to my own.
1. https://www.thestar.com/news/gta/2022/06/15/officers-use-more-force-against-black-people-with-no-good-explanation-why-toronto-police-data.html;
See also: https://www.thestar.com/news/gta/toronto-police-chief-apologizes-to-black-community-as-race-based-data-released/article_43071ae0-8c28-5a67-a27d-be4ed3b9e37d.html?
Q. Your practice is unique because of your focus on racial justice. How does racial justice
inform your practice? Why is racial justice important to the practice of criminal law more
generally?
A. Racial justice is a core part of my practice because racism is a core part of the criminal justice
system. Courts have recognized that systemic racism, and in particular anti-Black racism, continues
to be a reality in our society and justice system, and that it must be acknowledged, confronted,
and erased.
As a Black woman, I’ve experienced the profound impact of racism in my own life, and I have seen
the insidious impact of racism in our communities, institutions, and justice system. Most of my clients
are racialized. The undeniable fact is that Black and Indigenous people are grossly overrepresented
in our criminal justice system and are over-policed, over-punished, and over-incarcerated.
This is what drives me to educate, advocate, and litigate against oppressive systems, practices,
and laws. I have advocated for lower sentences to account for systemic anti-Black racism, the
need to account for disproportionately harsh jail conditions faced by racialized prisoners, and
the importance of cultural competence when representing Black defendants. Ultimately, I have
a deeply-rooted interest in not only achieving just results for my clients, but also in transforming
justice so that no future clients face these same issues.
14 15

Souper de Mentorat
May 24, 2023 | Auberge Le Saint-Gabriel | Montreal, QC
Atlantic Summer Social
June 6, 2023 | Arms Public House | Halifax, NS
Wine & Cheese with the Bench
May 31, 2023 | The Advocates’ Society
Wine & Cheese with the Bench
May 31, 2023 | The Advocates’ Society
16 17

www.advocates.ca