Advocacy-Matters-Winter-2024

ADVOCACY MATTERS
The Advocates’ Society
WINTER 2024

CONTENTS
05
07
09
12
14
18
Chair Chat
Steve Frankel (he/him), Davies Ward Phillips & Vineberg LLP
The Happy Lawyer Project
Lisa Marie Buccella, Aviva Trial Lawyers
Justice Delayed (Part 1) – Getting on the Docket
Jeff Van Bakel (he/him), Scott Petrie LLP and Joe Thorne (he/him), Stewart McKelvey
Word to the Wise: Paying Your Dues
Megan Keenberg (she/her), Keenberg & Co
Inaugural MASC Winter Summit
Eric Morgan (he/him), Kushneryk Morgan LLP
Roundtable: The Fresh Perspectives of
Foreign -Trained Lawyers
Eric Morgan (he/him), Kushneryk Morgan LLP
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What Happens in the Boardroom, Doesn’t Stay in the
Boardroom: A Reminder that Civility Still Matters
Lisa Marie Buccella, Aviva Trial Lawyers
Interview with Shawn Richard, ASR Family and Estate Law
Compiled by Mana Khami (she/her), Borden Ladner Gervais LLP
Editor: Megan Keenberg (she/her), Keenberg & Co| mkeenberg@keenco.ca
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!
Want to mentor? Opt-in to be a mentor on your
TAS member profile.
Deputy Editor: Joe Thorne (he/him), Stewart McKelvey | joethorne@stewartmckelvey.com
The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
Advocacy Matters Editorial Team: Jeff Van Bakel, Scott Petrie LLP, Lisa-Marie Buccella, Aviva Trial Lawyers, Jordan Glick, Glick Law, Mana Khami, BLG,
Eric Morgan, Kushneryk Morgan LLP, and Wade Poziomka, Ross & McBride LLP.
3

CHOOSE FROM CANADA’S TOP
MEDIATORS AND ARBITRATORS
CHAIR CHAT
Chair Chat
Steve Frankel (he/him), Davies Ward Phillips &
Vineberg LLP
John A. Campion
In his more than 50 years of
arbitration, mediation and litigation
across Canada and internationally,
John has developed recognized
expertise in public law and private
law. John has experience resolving
disputes related to commercial,
securities, governance, energy, family
enterprise, class actions, real estate,
public issues, corporate, estates,
human rights and government issues.
Barry H. Bresner
Barry is an arbitrator, mediator and
investigator with over 40 years of
experience handling complex
commercial matters. He has
expertise in disputes related to
shareholder/partnership, contract
interpretation, environmental
liability, commercial insurance and
reinsurance, and franchising. Barry
is a Fellow of the Chartered
Institute of Arbitrators.
As I sit here writing this, approximately 150
mid-career advocates who are 10 to 20 years
out from their call to the bar are about to gather
together in Ottawa for our first-ever Winter
Summit. It is going to be an outstanding event,
and I have no doubt that that we will have a lot
to say about it in the next edition of Advocacy
Matters.
In preparing for the conference, it dawned on
me just how significant our cohort of not-quiteyoung
advocates is—not only to the future of
our profession but to its present. I may still like
to think of myself and my peers as young (even
though I just turned 40 and have my fair share
of grey hair, which I blame my children for), but
the reality is that we are already leaders within
the litigation bar. We act as lead counsel in
headline-making matters, department heads
within our firms, owners of our own firms and
leaders and important contributors to TAS. We
have a fair amount of influence in shaping the
justice system, and we should realize it and exercise
it.
In that regard, the civil justice system in Ontario
is at a major, once-in-a-generation crossroads.
The Government of Ontario has just announced
that it is conducting a full review of
the Rules of Civil Procedure as part of a plan
to modernize the administration of justice in
this province. This is not just a matter of minor
adjustments to a select handful of rules. Significant
reforms to fundamental elements of civil
litigation may be on the table.
As key participants in the civil justice system—now
and for the next 20 to 30 years—it is
imperative that we weigh in. We all know that
the civil justice system is plagued by delay; if
you have not already done so, read Delay No
Longer. The Time to Act is Now. And you should
also read this issue of Advocacy Matters, which
includes Part 1 of a two-part series from Joe
Thorne and Jeff Van Bakel on advancing cases
in the face of serious delay.
If we want to make changes to the way that
civil litigation works in order to improve access
to efficient and timely justice for our clients, we
need to say so. The Committee that is overseeing
the review process wants to hear from us.
So whether you think that the way we approach
pleadings should be overhauled, or discovery
rights and obligations need to be modified,
or motions practice needs to be re-evaluated,
or the simplified procedure threshold should
be increased—I encourage you to make your
voice heard. I expect that you will hear a lot
more from the Mid-career Advocates Standing
Committee on this incredibly important initiative
later this year and 2025.
4 5
416.362.8555 • 1.800.856.5154 • booking@adr.ca • adrchambers.com

THE BALANCED BREAK:
THE INSIGHTS BALANCED FOR BUILDING BREAK: INSIGHTS A MEANINGFUL FOR A WELL-LIVED LIFE LIFE
The Happy Lawyer Project
Lisa Marie Buccella, Aviva Trial Lawyers
Get a Life – Outside of Work
[H]obbies that oblige you to
concentrate are very healthy.
- Darryl Cruz
Mid-career lawyers are often pulled in many
directions: growing a career, raising a family,
maintaining a household, and potentially caring
for aging parents. Personal pursuits get pushed
to the back burner or saved for retirement.
Given their significant benefit to our wellbeing
and happiness, it’s short-sighted to delay or ignore
our hobbies and passions until we can find
more time. Time is never ‘found’; it’s made.
While hobbies are often viewed as activities
separate from work, they are better understood
as a form of cross-training: they serve as
a respite from lawyering while simultaneously
strengthening the muscles that make us better
lawyers. Darryl Cruz, a partner at McCarthy
Tétrault LLP in the Toronto Litigation Group,
says: “Motorcycling and chess have a commonality
in that they require a great deal of concentration.
I feel that hobbies that oblige you to
concentrate are very healthy. They give you an
opportunity to focus and to work on getting into
a zone that clears all other thoughts.”
“Boating is a bit different,” he adds. “When you
are on the water, you are separating yourself
from the regular world.”
Our profession is rife with dissatisfaction and
burnout, so if you’re waiting for retirement to
pursue your passions – reconsider. Recreational
pursuits are enriching, generally linked to better
physical and mental well-being and can help
build a sense of identity outside of work. Ongoing
investment in one’s self provides considerable
short and long-term returns, and is the
foundation for a thriving career and a meaningful
life. What do you have on your ‘one day’ list
that can move to your ‘today’ list?
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7

JUDICIAL REFORM
WE ARE
LCM ATTORNEYS.
WE SPEAK
LITIGATION.
In less than a decade since its founding in
2014, LCM Attorneys has established itself
as one of the most trusted litigation
boutiques in Montreal.
With wide-ranging expertise and true
commitment to understanding our clients’
needs, we can handle the most challenging
matters, providing skilful advocacy,
insightful advice and practical solutions.
To celebrate our 10th anniversary,
we decided to refresh our image.
New logo, new website.
Visit lcm.ca
Jeff Van Bakel
Joe Thorne
Civil court dockets across the country are
jammed. Whether as a result of the prioritization
of criminal proceedings post-Jordan,
COVID-related backlogs, lack of infrastructure,
or understaffed courts – court time for civil
matters is a vanishingly rare commodity.
Much has been said about the epidemic of
court delays – TAS published a call to action to
the profession, the courts, and governments
to address these delays in June 2023. You can
read it here.
Unfortunately, systemic issues are difficult
to fix. As litigation procedures become increasingly
complex, so too does the prospect for delay.
And as recently noted by Justice Koehnen
of the Ontario Superior Court of Justice, “delay
begets delay.”
What can we as advocates do to get into
court as soon as possible, when a motion date
Justice Delayed
(Part 1) – Getting on
the Docket
Jeff Van Bakel (he/him), Scott Petrie
LLP and Joe Thorne (he/him),
Stewart McKelvey
is 12, 18, or even 24 months out? We get creative.
Even if we can’t control court access, we can
control how we litigate and how we manage
client demands.
When we begin to head down the road of
unnecessary or overbroad motions, it is hard
to pull back. Trite as it may be to say, our first
consideration should be: do we need to be on
the docket at all? Does a motion or trial serve
our client’s interest, or is it just a rote response
to disagreement or resistance? How can we resolve
that disagreement without waiting a year
or more? Can we narrow the issues enough
that, even if we ultimately need a judge to make
the decision, the scope of the hearing is minimized
to ensure we get on the docket sooner
and that we use the court’s time efficiently?
We have found, through bitter experience,
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that many disagreements can be resolved if
there is collective acknowledgment that outof-court
agreement is best. Sometimes, all it
takes is a simple phone call.
Further, we have civil procedure tools at
our disposal to address these issues before
they reach the docket. Demands for particulars,
requests to admit, and interrogatories
are all great examples of underutilized tools
available under the rules that can efficiently
develop the evidentiary record and move cases
forward without lengthy hearings.
But if out-of-court efforts fail to resolve the
dispute entirely, there are other ways to get
before a judge outside the “normal” process
of scheduling a contested motion or trial:
• Though not available in all jurisdictions,
motions in writing are useful to get a decision
without scheduling an appearance.
In some courts, motions in writing are encouraged
or mandatory. Where facts or
credibility are not seriously disputed, a
motion in writing is an excellent resource
for litigants.
• We can also take advantage of resources
such as judicial mediations or settlement
conferences. In most provinces, such procedures
are available to address the proceeding
as a whole, or discrete contested
matters. In many jurisdictions, judicial mediations
and settlement conferences are
available much sooner than short or long
motion dates.
• In more complicated matters, consider
case management. Where case management
is available, disputes can be brought
before the case management judge in writing
or by case conference, usually much
more quickly than conventional hearings.
• Again, though not available in all jurisdictions,
in some provinces there is a “triage
list”, where matters that are set for a later
hearing date can be moved up if an earlier
date becomes available.
It is our collective responsibility, as advocates,
to find ways to effectively serve our clients’
needs within the limitations of our civil justice
system as well as to ensure the efficient use
of court resources. We encourage everyone
to get creative in that pursuit.
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11

WORD TO THE WISE
Word to the Wise:
Paying Your Dues
Megan Keenberg (she/her), Keenberg & Co
As Mid-Career Advocates, we’ve all paid our dues
in the profession. We’ve done mind-numbing
doc review and pulled all-nighters on countless
research memos. We’ve prepared court materials
for hearings that others get to argue. We’ve
gone cross-eyed editing 8-point font citations.
We’ve drafted articles and case comments that
others claim authorship over. We’ve brought
in clients without credit for origination. We’ve
been yelled at. We’ve been ignored. We’ve been
assigned cases that we didn’t want. We’ve had
meetings and court appearances put in our
calendar without a thought for our availability.
We’ve cancelled vacations. We’ve worked evenings
and weekends. We’ve dealt with overt
and insidious sexism, racism, ageism and other
-isms from our clients, opposing counsel and
even our own colleagues.
We’ve endured all this as a means of learning
the ropes and earning status in our firms and in
the profession.
So now here we are, near the top of the hill,
coming into positions of power after long and
gruelling years. It feels good. It’s a relief. We now
have greater autonomy over our time, the cases
we take on, the clients and colleagues we work
with, and the trajectory of our careers. We’ve
learned a lot, and we have the battle scars to
prove it.
Many of us credit our current success with the
lessons learned in the pits. From our suffering,
we say, skills and wisdom emerged. We grew
thick skins in response to harsh, personal criticism.
We developed resilience by being yelled
at. We have made an art of multitasking in order
to hit billing targets while remaining fed and
watered. We perfected our poker faces, laughing
off aggressions (both micro and macro). So
now that we are in leadership positions in our
firms, we think that the next generation needs
to go through the same hazing process we endured
to gain the wisdom and skills we now enjoy.
The next generation disagrees. In an open
letter to “Gen X Boss” on LinkedIn, a millennial
woman had this to say:
“What if we aren’t successful because of the suffering we
endured in our dues-paying years, but despite it?”
This sounds like something a Gen Xer would have said to a Boomer boss 20 years ago. Have we become
Boomers? Gasp!
Let’s ask ourselves: was the suffering we endured worth it? Was it necessary to develop the skills and
traits that led us to be successful advocates? What if we aren’t successful because of the suffering we
endured in our dues-paying years, but despite it? What if we could have been even better if we only had
to focus on the steep learning curve of the practice of law, instead of juggling abuse, political dynamics,
and inconsideration? What if we can continue expanding our skillsets by critically assessing what worked
- and what didn’t - from our own training experiences and finding new ways to impart wisdom and skills
to the next generation with kindness. The practice of law is hard enough. The workplace need not be.
12 13

The Hon. Justice Mahmud Jamal of the Supreme Court of Canada, and some delegates enjoyed
a private tour of the SCC hosted by The Hon. Justice Karakatsanis. The conference also offered
delegates a lot of social time to build new connections, including receptions, dine-arounds, and a
Friday night gala dinner that welcomed some members of the local judiciary and TAS Directors.
Below are some of the thoughts from some Big Chill participants:
Thanks to The Advocates’ Society for organizing this important space
for discussions about law firm and legal leadership, and especially important
were discussions about many of the challenges of mentoring
across generational divides.
-Tracy Brown (she/her), Brown Law Group, Edmonton
EVENT REPORT
[T]he behind the scenes, candid interviews with SCC judges on their
approach to leaves, factum reading and writing, and advocacy was
very useful indeed.
-Tom Posyniak (he/him), Fasken, Vancouver
Inaugural MASC Winter
Summit
Eric Morgan (he/him), Kushneryk Morgan LLP
MASC hosted its inaugural Winter Summit: The Big Chill in Ottawa from February 1 to 3, 2024.
Over three days at the Château Laurier, over 150 mid-career advocates from across the country
met to share ideas about giving and receiving mentorship; bridging generational differences;
taking on leadership positions; and focusing on mental health, for themselves and others.
The CPD sessions combined panel discussions with roundtable break out sessions for peer-topeer
learning. The program also featured a fireside chat with The Hon. Justice Suzanne Coté and
The roundtable discussions provided unique opportunities for candid
discussions and gaining a new perspective on some common leadership
challenges, all the while permitting an enjoyable networking
occasion.
-Jessica Harding (she/her), Osler, Montreal
14 15

Congratulations to everyone who supported this incredible first conference dedicated to mid-career
advocates. In particular, thanks to the conference co-chairs who worked diligently to create and execute
the program - Erin Durant of Durant Barristers, Brian Duong of Hunter Litigation Chambers, Jennifer Hunter
of Lerners LLP, and David Thompson of Carroll Heyd Chown.
Also thanks to our sponsors who supported the program - Premier Sponsor KPMG, Breakfast Sponsor
Conway Litigation, Networking Break Sponsors David & Sauvé LLP and Durant Barristers, and Supporting
Sponsors Caza, Saikaley, Gowling WLG, Soloway Wright, Olthuis Kleer Townsend LLP, and Richter
LLP.
Get Involved!
Interested in getting more involved with TAS?
Applications are now being accepted for the
Mid-Career Advocates’ Standing Committee
(MASC).
TAS welcomes applications to MASC
from Society members who are about 8
to 20 years of call.
MASC seeks engaged, hard-working volunteers
who are TAS members between 8 and
20 years of call to promote the interests of
mid-career advocates across Canada. MASC
members plan and implement programming
and networking events, and publish Advocacy
Matters newsletter with content tailored
to the mid-career demographic.
Successful candidates will serve a two-year
term starting in June 2024. Parental and
medical leaves will be accommodated. MASC
welcomes candidates from across Canada, in
diverse advocacy practices.
Deadline to apply: March 8, 2024.
APPLY FOR MASC 2024/25 TERM
CLICK HERE
Questions? Please contact the MASC incoming
Chair Sonu Dhanju-Dhillon at sdhanju-dhillon@
torkinmanes.com.
16 17

Internationally-trained lawyers bring a wealth of
much-needed diversity of experience, knowledge
and approaches to the legal industry.
Foreign-trained lawyers can face challenging paths toward practicing law
in Canada, including adapting to new legal systems and overcoming credential
recognition barriers. Despite these hurdles, their international legal
backgrounds offer a wealth of unique perspectives and distinctive problem-solving
approaches. This roundtable sparks the dialogue, examining
their contributions and challenges, and envisioning pathways to further integrate
and empower a diverse cohort of foreign-trained lawyers within Canada’s
legal community.
ROUNDTABLE
Roundtable: The Fresh
Perspectives of Foreign
-Trained Lawyers
Eric Morgan (he/him), Kushneryk Morgan LLP
Claudia Cappuccitti (she/her) is a partner at Dyer Brown LLP’s Insurance Claims Defence
group in Toronto. She vigorously advocates for her clients’ interests in tort matters involving
motor vehicle accidents. Claudia holds a Bachelor of Laws (LL.B.) from Queen Mary,
University of London in the UK.
Matthew Karabus (he/him) is a partner in the Commercial Litigation and Arbitration
groups of Gowling WLG’s Toronto office. He has a wide range of commercial dispute resolution
experience. Matthew holds a law degree from the University of Cape Town, South
Africa.
Omolara Oladipo (she/her) is a dual-qualified lawyer (Nigeria and Alberta) with almost
two decades of experience in a practice which spans administrative law, environmental
law, occupational health & safety law, municipal law and civil litigation.
Valarie Matthews (she/her) is a partner at McCarthy Hansen & Company LLP. Valarie represents
and advises clients on all issues related to divorce, parenting, spousal and child
support. Originally from Atlanta, Valarie has a law degree from Harvard University and
prior to joining MHC, Valarie practiced competition and antitrust law in Washington, D.C.
18 19

What were the main challenges you faced transitioning from a
foreign-trained lawyer to practicing in Canada?
MK: The main challenges I faced were (1) my own lack of knowledge about the local legal market; (2) my
own difficulties integrating into the local culture; and (3) the local community’s lack of familiarity with and
recognition of foreign credentials (at least where I was from).
CC: Getting my foot in the door was certainly the biggest challenge. If you weren’t attending one of the
schools from which a law firm recruited, you were ineligible for the first step in their process. Things have
changed over the last 10 years, but there’s still room for improvement.
VM: I found the entire NCA [National Committee on Accreditation] process, which assesses the legal education
and professional experience of individuals who obtained their legal credentials outside Canada,
to be a serious roadblock to practice as it took a long time to get through the exams and the cost was
also prohibitive. The timing of the NCA process is also not coordinated with the timing of provincial bar
exams.
Are there specific areas of law or legal skills where you believe
foreign-trained lawyers bring a unique perspective?
MK: A comparative legal perspective is very helpful both because the fundamentals of legal reasoning
might be more apparent to those with that perspective (because those fundamentals are the same
among different systems) and because one has a default alternative manner of addressing particular
legal problems.
OO: Internationally-trained lawyers bring a wealth of much-needed diversity of experience, knowledge
and approaches to the legal industry. On an academic level, most internationally-trained lawyers have
had to take core legal courses more than once to get where they are.
OO: It contributes to building a foundation for what is hopefully a life-long career. The more people appreciate
the diversity you bring to the industry and rely on it, the better a lawyer they will make and get.
Being merely “othered” with not much more helps no one.
CC: Diversity and inclusion, in my view, should be as important for foreign-trained lawyers as it is for
those trained in Canada—it enriches us all by bringing varied perspectives to the workplace and to the
work we do for our clients.
Have you encountered any misconceptions or stereotypes about foreign-trained
lawyers in Canada, and if so, how do you address or challenge
them?
VM: Yes! I think people assume that foreign-trained lawyers are not as qualified as lawyers trained in
Canada, which is so far from the truth. Especially when it comes to securing articling experiences, I have
heard stories of lawyers being passed over because people are worried about language challenges or
quality of the work, more generally. I have been extremely fortunate to have a degree from an internationally
recognized law school and to come from a country that most Canadians are very familiar with.
But for those who don’t have the same advantages, I have tried to assist on a personal level by mentoring
and assisting people with making contacts in the legal community.
OO: Most people bring their cultural competencies to the workplace, along with attendant biases and
misconceptions. I used to think if you didn’t address them, your life would be easier. I don’t necessarily
challenge; I educate. I need people to understand that being an internationally-trained lawyer doesn’t
mean you got a lower quality of education. Above all, I tell people: When in doubt, ask the person concerned
what works for them.
If you could time travel, what advice would you give your past self when
you were just starting your journey to practice law in Canada?
Why is diversity and inclusion important for foreign-trained lawyers in
Canada?
VM: How could it not be? Clients come from all different types of backgrounds and having lawyers who
can not only understand the differences, but may also have personal knowledge of significant cultural
practices or events, can be critical to ensuring appropriate representation in some cases. Especially as a
family lawyer, when we’re dealing with the substance of people’s most personal relationships, if there is
a cultural or other difference that may have an impact on a resolution or the ability to move the case forward,
then having lawyers who can navigate those issues with sensitivity can result in a better outcome
for the whole family.
CC: Is ‘stop and smell the roses’ too corny? It’s sometimes hard to appreciate how much fun this job is
when you’re working long hours in high-stress situations in your first few years, but this job really is a lot
of fun and it only gets better as time passes. But if you take a moment to reflect on what you’ve learned,
how much you’ve grown, the challenges you’ve overcome over the last year, month, day – some days
even the hour – it’s encouraging to see that progress and it pushes you through the tougher moments.
VM: I think my only advice would have been to give myself a bit more grace when it came to the culture
shock that I experienced. Although Toronto is very diverse, as a Black person moving from Washington,
D.C. to Toronto, it was also a shock to no longer see many people who looked like me.
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What advice would you give to other foreign-trained lawyers who are
considering pursuing a legal career in Canada? Are there particular steps
or resources that were especially helpful to you?
OO: Revisit the process of accepting articling students. There are obstacles to finding articling positions
for internationally-trained lawyers, many of whom are already practicing lawyers with life demands and
other familial and financial pressures. Law firms need to recognize and utilize the special and diverse
skills and views that internationally-trained lawyers bring by virtue of their previous experiences.
MK: (1) Canadian lawyers may be more prepared than you might expect to give up their time and speak
with you; (2) connect with the organization set up for Internationally Trained Lawyers and National Committee
on Accreditation lawyers to learn about the fundamentals of, and opportunities for, local legal
recruitment.
CC: Get involved. Getting involved in a local legal organization is a great way to build your network and
connect with other advocates. The Advocates’ Society is an incredible resource — for those within their
first 10 years of practice, I would encourage them to apply for a spot on the Society’s Young Advocates’
Standing Committee (YASC) when applications open up in late January. In the meantime, get out to
YASC events and consider joining YASC’s volunteer roster (details are all at advocates.ca).
OO: Seek out people with similar experiences for their knowledge, BUT don’t make associating with only
people of similar background or experience your main or only goal. You hopefully came to Canada for
its diversity. Find and approach mentors, lawyers and businesspeople alike.
VM: There are some groups, like the NCA Network, that have started to build communities for foreign-trained
lawyers, but my impression is that many foreign-trained lawyers end up working as law
clerks – if they can get into the legal job market – or are resigned to work in other completely unrelated
fields. There needs to be leadership from the top of the profession to educate themselves about the relative
strengths of lawyers trained in other jurisdictions so that there is less stigma attached to credentials
from other countries – especially non-Western countries.
Most people bring their cultural competencies to the workplace, along
with attendant biases and misconceptions. I used to think if you didn’t
address them, your life would be easier. I don’t necessarily challenge; I
educate.
22
VM: I think that the most important thing that any foreign-trained lawyer can do is to manage their expectations
and to take care of themselves – it will likely take longer than you are expecting and there will
be many times when you feel discouraged, but it only takes one person saying yes.
In what ways can the legal community better support foreign-trained
lawyers in their career journeys?
CC: Give them an opportunity. While it’s easy to bring in those candidates for interviews whose transcripts
you understand, whose previous employers you recognize, and who volunteer for the same organizations
you do, take a chance on someone that might not be the typical candidate on paper and grant
them an interview. You may find that the grit and determination they bring to the table outweighs the
fact that they went to school outside Canada.
MK: The legal community should recognize in their own self-interest (just as engineers, accountants, etc.
have done) that there is a vast pool of generally untapped talent overseas.
Looking ahead, what do you envision for the future of foreign-trained
lawyers in the Canadian legal landscape, and what steps can be taken to
further integrate and empower this diverse group within the profession?
VM: My hope is that lawyers trained in any country will feel that they can succeed in Canada and that
there will be lawyers in law firm leadership positions and in positions of authority who are not originally
from Canada and who did not earn their law degree in Canada. In terms of empowering foreign-trained
lawyers – as with any group, I think seeing people succeed in the profession who have a similar background
as you will go a long way to opening people’s minds to what’s possible, and I think that it’s important
for groups who are in a position to help foreign-trained lawyers – like The Advocates’ Society and
other legal associations– to start actively identifying and planning programs for foreign-trained lawyers
so that they feel supported by the profession.
OO: I think the legal profession is evolving and hopefully will only get better at absorbing this relatively
untapped well of lawyers. Involving internationally-trained lawyers in legal and management work at
their actual level of experience – as opposed to the assumption that every articling student should be
treated as equally junior – would be beneficial to both internationally-trained lawyers and to the law
firms that employ them.
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25

“When engaged in a disagreement with counsel,
simply state your position and move on. Don’t let
your emo tions get the best of you.”
According to Chapter 5 of the Ontario Rules of Professional Conduct,
advocates must “raise fearlessly every issue, advance every argument
and ask every question”, but they must also be civil and honest.
The incivility of counsel often arises during the discovery process,
where examinations proceed without judicial oversight. The
following are two examples of inappropriate conduct during discoveries
that were penalized by the courts.
Singh et al. v. Braich involved a personal injury discovery dispute between
a senior defence lawyer and a junior plaintiff lawyer. When
the junior lawyer limited the scope of questions twenty-two minutes
into an examination, the senior lawyer claimed that the refusal
hindered the flow of his discovery, refused to proceed with the discovery,
and refused to attempt to address the issue off the record.
He further sought, by way of motion, his costs under Rule 34.14(2)
(b), a rule which allows a lawyer to stop an examination if there are
improper objections or interruptions, or if the person is evasive,
non-responsive, or verbose.
CIVILITY IN ACTION
What Happens in the Boardroom,
Doesn’t Stay in the Boardroom: A
Reminder that Civility Still Matters
Lisa Marie Buccella, Aviva Trial Lawyers
In dismissing the 34.14(2)(b) motion, Justice Rahman was highly
critical of the senior defence lawyer for his “abuse of this Rule” and
for not following the junior lawyer’s suggestion to resolve the issue
off the record. Justice Rahman called out the senior lawyer’s behavior
as bullying, inconsistent with the spirit of co-operation between
counsel that is recommended and expected by the court. The motion
backfired on defence counsel and costs were awarded in favour
of the plaintiff.
In Neilson v. The Commonwealth Mutual Insurance Group et al., a fire
loss case, a senior lawyer for the plaintiffs acted rudely and disruptively
to opposing counsel, terminated the defendants’ discovery,
and then moved to compel the defendants to come back and answer
more questions. Justice Fraser denied the motion, blaming the
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senior lawyer for delay and interference at the examinations of the defendants. Since the plaintiffs’ lawyer
chose to end the examinations early even though the representatives were ready to continue and
answer questions, Justice Fraser rejected his request to make the defendants re-attend for discovery. In
his endorsement, Justice Fraser awarded substantial indemnity costs to the defendants in the amount
of $25,284.37. Justice Fraser accepted that costs on a substantial indemnity basis were warranted on
account of plaintiffs’ counsel’s conduct being a “marked and unacceptable departure from the standard
of reasonable conduct which is expected of a player in the judicial system.”
These decisions are an important reminder that the rules of civility will be enforced throughout the
discovery and litigation process and that there are consequences for ill-mannered behavior.
Unfortunately, opposing counsel sometimes engage in tactics to get under our skin and prompt an
uncivil response. Resist the temptation. As Craig Lockwood, litigation partner at Osler, advises: “When
engaged in a disagreement with counsel, simply state your position and move on. Don’t let your emotions
get the best of you. At the same time, if someone else is being unfair to you, stand your ground.”
Paul Barnes, senior legal counsel at Intact Insurance, agrees it’s important not to give into anger and
keep a normal tone of voice, “kind of how Luke Skywalker refused to give into the temptation of the dark
side of the force at the end of Return to the Jedi”. Barnes qualifies this advice by saying that sometimes
it is justified to terminate a discovery and obtain instructions from the court, but only in the clearest of
circumstances. The Singh case was not one of those circumstances.
At the end of the day, lawyers would be wise to heed Justice Rahman’s warning in Singh that, “the way
we behave inside a boardroom might make its way before a judge. And the judge might see things very
differently than they do”.
The Advocates’ Society has published Principles of Civility and Professionalism for Advocates to foster civil
and professional conduct in our adversarial justice system, and thereby improve the administration of
justice. The Principles include information about an advocate’s duty to opposing counsel and best practices
for examinations, cross-examinations, and questioning.
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Q. What is one thing that surprised you about the practice of law?
A. In the summer after high school, I sold shoes at the Eaton Centre. I found that people will tell
you a lot about themselves when buying shoes. One day, I sold a pair to a young lawyer who told
me never to enter the profession. He said it was the biggest regret of his life and that there was
nothing redeeming about the profession. I believe he described it as “soul-sucking”. I have been
surprised by how rewarding it can be.
Q. What was your first job?
A. Washing dishes at the Red Lobster until the manager found out that I was only 10 years old and
promptly, but politely, fired me.
Q. Do you consider yourself an introvert
or an extrovert?
A. Both, I think.
Q. Tell us one thing on your bucket list?
A. Renovate a house - involving contractors
only for the really deadly parts.
INTERVIEW
Interview with Shawn Richard
(he/him), ASR Family and Estate
Law
Compiled by Mana Khami (she/her), Borden Ladner
Gervais LLP
A. Shawn Richard practices family and estates litigation at ASR Family and Estate Law. Shawn is a full
member of STEP (Society of Trust and Estate Practitioners), a fellow of the International Academy of
Family Lawyers, and is Past President of the Canadian Association of Black Lawyers. He currently serves
on the Board of Directors for The Advocates’ Society.
Q. Tell us something about yourself
that is not on your resume?
A. I habitually take on physical projects that
I have no business doing, like building furniture
or renovating.
Q. Do you have any pets?
A. I have two of them: Spotty, a house cat,
and, Malcolm, a pandemic cockapoo
Q. What is something you have previously
done, which you will never do again?
A. That stays in the vault.
Q. What is something you
saw recently that made you
smile?
A. The look of horror when my
family realized that I had bought
us all matching cat sweaters. I
like them.
Q. What are your short-term goals for your career?
A. To continue to build my practice, serve my clients the best that I can, find ways to contribute to the
profession, and be a bit more curious and patient.
Q. Who is your favourite musical artist?
A. That’s a hard one. I don’t think that I have one, but “The Miseducation of Lauren Hill” (1998), Sade
whenever she’s in concert, “Body and Soul Billie Holiday” (1957), “Dummy Portishead,” David Bowie (most
iterations), “Hope She’ll Be Happier Live” at Carnegie Hall (October 1972) Bill Withers, Queen, Massive Attack,
Aretha Franklin, and “Kid A” by Radiohead are on the shortlist. Afrobeats is completely disrupting
the list, but it’s too early to say more at this point.
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Q. What is something you would want
to tell your 12-year-old self?
A. It’ll be ok. Be kinder to yourself. Listen
more, including to yourself.
Q. What is your best advice for someone
who is looking to enter the legal profession?
A. Find an issue or a cause, find something to
positively contribute to in the profession or
the broader community involving the law. Try
to be principled when dealing with people, especially
when it’s really difficult.
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Winter Summit: The Big Chill Ottawa
Februrary 1-3, 2024 | Fairmont Château Laurier
Name, Firm
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www.advocates.ca