The-Advocates'-Journal-Fall-2023
An institution within The Advocates' Society and the profession since 1982, The Advocates’ Journal features articles on law and practice, in-depth interviews with leading advocates, thought-provoking commentary, tributes, and much more.
An institution within The Advocates' Society and the profession since 1982, The Advocates’ Journal features articles on law and practice, in-depth interviews with leading advocates, thought-provoking commentary, tributes, and much more.
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Vol. 42, No. 2. | FALL <strong>2023</strong>
<strong>The</strong> Advocates’ <strong>Journal</strong><br />
Vol. 42, No. 2; <strong>Fall</strong> <strong>2023</strong><br />
33<br />
Kevin Lo<br />
CISSP, CCE, CFI, PMP, EnCE<br />
Branko Vranesh<br />
SENIOR ANALYST<br />
<strong>The</strong> Sherlock Holmes<br />
& Dr. Watson of<br />
digital forensics.<br />
From the Editor<br />
<strong>The</strong> SCOTUS of Canada<br />
<strong>The</strong> Honourable Justice Mahmud Jamal<br />
3 32<br />
6<br />
Stay in your lane? Recent appellate<br />
scrutiny of interveners<br />
Jennifer McAleer, Kimberly Potter,<br />
and Daniella Murynka<br />
Enter Kevin Lo and Branko Vranesh. <strong>The</strong> Hounds of Bay Street. Digital detectives<br />
whose sleuthing skills will make or break your case. Well recognized forensic pioneers,<br />
Kevin and Branko lead the legal industry in evidence gathering and analysis. Together,<br />
they have more than 40 years of investigative experience, with the deep technical expertise<br />
needed to sniff out the smouldering email amidst terabytes of data. No matter where it<br />
resides. So, before you head into any critical legal proceeding, make sure Kevin and<br />
Branko are working on your side. MT>3 Digital Forensics. | Uncover Everything.<br />
Kevin Lo: klo@mt3.ca | Branko Vranesh: bvranesh@mt3.ca<br />
LTDigital Forensics<br />
A DI V ISI O N OF McCAR THY TÉTR A U<br />
Annals of Law: Lac Minerals v Corona –<br />
the new trial that wasn’t<br />
Ronald G. Slaght, KC, ASM, LSM<br />
Judicial notice<br />
in the misinformation age<br />
Erin Pleet and Mary Paterson<br />
Gaining the edge in<br />
multi-dimensional litigation<br />
Gerald Chan and Carlo Di Carlo<br />
10<br />
20<br />
30<br />
36<br />
40<br />
44<br />
11 things common law lawyers<br />
should know about the civil law<br />
Doug Mitchell<br />
Coulter Osborne: A tribute<br />
<strong>The</strong> Honourable John I. Laskin<br />
Patronage returns in Ontario<br />
Stephen Grant, LSM, ASM<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 1
FROM THE EDITOR<br />
THE ADVOCATES’ SOCIETY<br />
<strong>The</strong> ones that stay with us<br />
PAST PRESIDENTS<br />
<strong>Fall</strong> <strong>2023</strong>; Vol. 42, No. 2.<br />
Editor<br />
Linda Rothstein, LSM, ASM | Linda.Rothstein@paliareroland.com<br />
Managing Editor<br />
Andrea Gonsalves | andreag@stockwoods.ca<br />
<strong>The</strong> Advocates’ <strong>Journal</strong>: cite as Adv J<br />
Production Editor<br />
Sonia Holiad | sholiad@rogers.com<br />
Editorial Correspondence<br />
Linda Rothstein, LSM, Paliare Roland Barristers<br />
155 Wellington St West 35th Floor<br />
Toronto, ON, M5V 3H1<br />
Linda.Rothstein@paliareroland.com | 416-646-4327<br />
Advertising and Subscription Correspondence<br />
Robin Black<br />
robin@advocates.ca | 1-888-597-0243 x.108<br />
Creative Director<br />
Jessica Lim | jessical@advocates.ca<br />
Kim Burton | jkburton64@gmail.com<br />
Cover<br />
Abby at the Perth County Courthouse<br />
in Stratford, Ontario.<br />
Paintings, Illustrations, and Photography<br />
Delaney Cox: p. 36<br />
Ryan Little: cover, p. 40<br />
Anna Macquistan: pp. 6, 20<br />
Scott Shields: pp. 30, 33<br />
<strong>The</strong> opinions expressed by individual authors are their own<br />
and do not necessarily reflect the policies of <strong>The</strong> Advocates’<br />
Society.<br />
Publications Mail Commercial Sales Agreement No. 40019079<br />
<strong>The</strong> Advocates’ <strong>Journal</strong> is printed in Canada and is published four<br />
times a year by <strong>The</strong> Advocates’ Society, 250 Yonge St, Suite 2700,<br />
Toronto, Ontario, M5B 2L7. Distributed free to all members of the<br />
Society. Contents copyright © <strong>2023</strong> by <strong>The</strong> Advocates’ Society.<br />
Second class registration number 5941, paid at Scarborough.<br />
Contents may be reproduced only with written authorization of<br />
the authors and acknowledgment of <strong>The</strong> Advocates’ <strong>Journal</strong>. <strong>The</strong><br />
editors do not assume responsibility for the loss or return of<br />
manuscripts, photographs, or illustrations.<br />
1965-66 J. J. Robinette, QC, ASM<br />
1966-67 <strong>The</strong> Hon. R. F. Reid<br />
1967-68 <strong>The</strong> Hon. Justice R. S. Montgomery<br />
1968-69 <strong>The</strong> Hon. Justice P. Cory<br />
1969-71 W. B. Williston, QC, ASM<br />
1971-72 <strong>The</strong> Hon. Justice W. D. Griffiths<br />
1972-73 C. F. McKeon, QC, ASM<br />
1973-74 A. E. M. Maloney, QC, ASM<br />
1974-76 P. B. C. Pepper, QC, LSM<br />
1976-77 H. G. Chappell, QC<br />
1977-78 W. S. Wigle, QC<br />
1978-79 <strong>The</strong> Hon. Justice J. J. Fitzpatrick<br />
1979-80 E. A. Cherniak, KC, LSM, ASM<br />
1980-81 <strong>The</strong> Hon. Justice J. W. O’Brien<br />
1981-82 T. H. Rachlin, QC<br />
1982-83 K. E. Howie, QC, ASM<br />
1983-84 J. P. Nelligan, QC, LSM, ASM<br />
1984-85 Peter Webb, KC, LSM<br />
1985-86 Bert Raphael, QC, LSM<br />
1986-87 A. D. Houston, KC<br />
1987-88 <strong>The</strong> Hon. Justice J. R. R. Jennings<br />
1988-89 R. A. Stradiotto, KC, LSM<br />
1989-90 <strong>The</strong> Hon. Justice Peter G. Jarvis<br />
1990-91 John F. Evans, KC, LSM<br />
1991-92 Terrence J. O’Sullivan, LSM<br />
1992-93 <strong>The</strong> Hon. Justice Eleanore A. Cronk<br />
1993-94 Roger Oatley<br />
1994-95 <strong>The</strong> Hon. Justice Mary Anne Sanderson<br />
Caroline Abela<br />
Mark Abradjian<br />
Lisa Belcourt<br />
Simon Bieber<br />
Caroline Biron<br />
Hilary Book<br />
Sean Boyle<br />
Melissa Burkett<br />
Frank Cesario<br />
President: Dominique T. Hussey<br />
Vice-President: Darryl A. Cruz<br />
Treasurer: Sheree Conlon, KC<br />
Secretary: Sheila Gibb<br />
Chief Executive Officer: Vicki White<br />
Shantona Chaudhury<br />
David D. Conklin<br />
Kirsten Crain<br />
Joni Dobson<br />
James Doris<br />
Craig Ferris, KC<br />
Jon Foreman<br />
Linda Fuerst<br />
Peter Henein<br />
OFFICERS<br />
DIRECTORS<br />
1995-96 C. Clifford Lax, KC, LSM<br />
1996-97 Margaret A. Ross, LSM<br />
1997-98 <strong>The</strong> Hon. Justice Harriet Sachs<br />
1998-99 Michael F. Head<br />
1999-00 James A. Hodgson<br />
2000-01 Ronald G. Slaght, KC, LSM, ASM<br />
2001-02 J. Bruce Carr-Harris, LSM<br />
2002-03 Philippa G. Samworth, ASM<br />
2003-04 Jeffrey S. Leon, LSM<br />
2004-05 <strong>The</strong> Hon. Justice Benjamin Zarnett<br />
2005-06 Linda Rothstein, LSM, ASM<br />
2006-07 Michael E. Barrack<br />
2007-08 Michael Eizenga, LSM<br />
2008-09 Peter J. E. Cronyn<br />
2009-10 Sandra A. Forbes<br />
2010-11 Marie T. Henein, LSM<br />
2011-12 Mark D. Lerner<br />
2012-13 Peter H. Griffin, LSM<br />
2013-14 Alan H. Mark<br />
2014-15 Peter J. Lukasiewicz<br />
2015-16 Martha A. McCarthy, LSM<br />
2016-17 Bradley E. Berg<br />
2017-18 Sonia Bjorkquist<br />
2018-19 Brian J. Gover, LSM<br />
2019-20 Scott Maidment<br />
2020-21 Guy J. Pratte, AdE, LSM<br />
2021-22 Deborah E. Palter<br />
2022-23 Peter W. Kryworuk<br />
Scott C. Hutchison<br />
Lara Jackson<br />
Najma Jamaldin<br />
Cynthia Kuehl<br />
Troy Lehman<br />
Robin Lepere<br />
Craig Lockwood<br />
Jennifer McAleer<br />
Christine Mohr<br />
PAST EDITORS OF THE JOURNAL<br />
1982-90 Moishe Reiter, QC<br />
1991-2008 David Stockwood, QC, LSM<br />
2008-20 Stephen Grant, LSM, ASM<br />
Ira Nishisato<br />
Tamara Prince<br />
Tamara Ramsey<br />
Luisa Ritacca<br />
Scott Robertson<br />
Sylvie Rodrigue, AdE<br />
Jeff Saikaley<br />
John Sorensen<br />
Cynthia Spry<br />
Linda Rothstein, LSM, ASM<br />
Some of you will remember 1988. Brian<br />
Mulroney was our prime minister and<br />
Brian Dickson our chief justice. In January<br />
of that year, the Supreme Court of Canada<br />
struck down Canada’s abortion laws. In February,<br />
Calgary hosted the Winter Olympics. In<br />
July, the War Measures Act was replaced by the<br />
Emergencies Act. In late September, Ben Johnson<br />
was stripped of his Olympic gold medal and<br />
world record when he tested positive for steroids.<br />
In October 1988, the Supreme Court of<br />
Canada was scheduled to hear the appeal in<br />
Lac Minerals v Corona from the decision of the<br />
Ontario Court of Appeal which gave Corona<br />
a constructive trust over a gold mine in the<br />
Hemlo area of northern Ontario. It’s no exaggeration<br />
to say that court watchers, academics,<br />
law geeks, and most of Bay Street were<br />
abuzz about the case. <strong>The</strong> Court of Appeal<br />
had endorsed the trial judge’s findings that<br />
Lac Minerals, a senior mining company, had<br />
breached a fiduciary duty it owed to Corona,<br />
a junior mining company, when Lac secured<br />
the property for itself after Corona’s geologist<br />
had shared valuable confidential information<br />
– assay results, sections, maps, and drill<br />
plans – with Lac’s geologists. <strong>The</strong> court<br />
had also upheld the constructive trust in<br />
favour of Corona.<br />
It was a captivating, hard-fought, David<br />
and Goliath victory. It was also a potential<br />
legal turning point. Business leaders and<br />
some academics had argued that the Court<br />
of Appeal’s decision extended the meaning<br />
of a fiduciary relationship between commercial<br />
parties to require good faith in the<br />
negotiation and performance of business<br />
contracts; imagine that. And many claimed<br />
“It is simply not the case that business and accepted<br />
morality are mutually exclusive domains.”<br />
~ Justice Gérard La Forest, Lac Minerals v Corona<br />
that Canadian law was drifting too far from<br />
its British moorings because the English jurisprudence<br />
restricted the remedy of a constructive<br />
trust to the law of trusts and saw no place for<br />
it in business relationships.<br />
Of course, we know how it all turned out:<br />
Corona won the day. <strong>The</strong> Supreme Court of<br />
Canada agreed that Lac had exploited Corona’s<br />
confidential information for its own advantage<br />
and thus breached a duty of confidence, and<br />
that this justified imposing a constructive trust<br />
on the gold mine in favour of Corona. <strong>The</strong><br />
majority also held that no fiduciary duty arose<br />
on the facts, but the Court defined the doctrinal<br />
parameters of the fiduciary relationship in<br />
a way that has governed a wide spectrum of<br />
relationships ever since.<br />
A case like that one stays with you, winner<br />
or loser. Same for the counsel. Ronald Slaght<br />
and Alan Lenczner remember well the summer<br />
of 1988. Together they had shepherded the<br />
case for Corona from 1984 all the way to<br />
the SCC. <strong>The</strong>y say it shaped their careers in<br />
large and small ways.<br />
As part of our Annals of Law series, Slaght<br />
has dug into the files long stored at Iron<br />
Mountain and reconstructed one of the case’s<br />
still untold chapters – the last-ditch attempt<br />
by Lac Minerals to head off the Supreme Court<br />
of Canada appeal by seeking a ruling that<br />
Corona had won the trial by fraud. Slaght<br />
brings to life the intense litigation that followed:<br />
the strategies and tactics, the production<br />
of previously privileged documents, the<br />
twists and turns that cleared the path for the<br />
SCC victory. Certain aspects of the 1988 legal<br />
culture Slaght describes are obvious relics of<br />
a smaller, chummier bench and bar (spoiler<br />
2 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 3
CONTRIBUTORS<br />
alert: counsel could get in-person meetings with<br />
the chief justice of Canada), but most of the<br />
moves and countermoves could have happened<br />
last week, or so it seems to me.<br />
<strong>The</strong> Honourable Coulter Osborne, who has<br />
a starring role in Slaght’s story, passed away in<br />
April. <strong>The</strong> Honourable John I. Laskin has written<br />
a heartfelt tribute to this giant of the bench and bar.<br />
And there is much more to savour in this issue.<br />
Justice Mahmud Jamal will make you laugh as you<br />
imagine him explaining to a room of American<br />
trial lawyers what the Supreme Court of Canada<br />
does. <strong>The</strong>re are also articles on the scope of judicial<br />
notice and on the role of interveners in the<br />
Supreme Court of Canada, plus tips for common<br />
law counsel on the civil law of Quebec. For our<br />
meta-thinkers, two authors describe how advocates<br />
must harness the work of counsel who<br />
practise in very different settings to meet the<br />
challenges of modern, complex litigation. And<br />
former <strong>Journal</strong> editor Stephen Grant gets the last<br />
word on the Ontario government’s reinstitution<br />
of the King’s Counsel designation.<br />
Dear readers: Prospective <strong>Journal</strong> writers often<br />
ask me to suggest topics that would be of interest<br />
to you, but I don’t hear from many of you<br />
about what you like to read (and what you<br />
don’t). I am aware of the wealth of law firm<br />
and law association blogs and posts that provide<br />
up-to-the-minute reactions and comments on<br />
new laws and cases. We can’t compete with that<br />
– our pieces need to have a longer shelf life. But<br />
there is surely a mountain of interesting takes<br />
and ideas out there that would be of interest to<br />
our national readership. Please don’t be shy; we<br />
would love to hear from you. And we always<br />
welcome your articles.<br />
GO GREEN!<br />
Did you know TAS Members have the<br />
option of digital-only delivery of <strong>The</strong><br />
Advocates’ <strong>Journal</strong>? Simply log on to<br />
your TAS Member profile at<br />
www.advocates.ca and opt-in for the<br />
Digital <strong>Journal</strong>.<br />
Need help? Email us at<br />
membership@advocates.ca and we are<br />
happy to assist. #GoGreen<br />
THE ADVOCATES’ JOURNAL<br />
SUBMISSION GUIDELINES<br />
• Authorship: Include your name and email address at<br />
the top of your article. Be sure to list any co-authors.<br />
• Content: We value articles about advocacy and advocates<br />
that are topical and crackle with currency.<br />
• File format: We accept submissions only in Microsoft<br />
Word format.<br />
• Length: Although we appreciate concision, there is no<br />
maximum or minimum length for <strong>Journal</strong> articles. <strong>The</strong><br />
majority of our articles are between 1,500 and 3,500<br />
words (excluding notes), but we will consider articles<br />
outside this range.<br />
• Notes: We prefer articles without notes, but whether to<br />
include notes is at the author’s discretion. (All direct<br />
quotations should be referenced, however, whether<br />
in the body of the article or in notes.) If you include<br />
notes with your submission, we prefer endnotes to<br />
footnotes. When reviewing notes after completing the<br />
final draft, double-check that cross-references (“ibid.,”<br />
“supra”) haven’t changed because of late additions or<br />
deletions of text.<br />
• Citation format: We do not insist on a particular citation<br />
style. If you include citations, we trust that you will<br />
ensure they are accurate, complete, current and internally<br />
consistent. In particular, check that citations to Internet<br />
sources refer to web addresses that are valid as of the<br />
date of the submission. If a cited web address is no longer<br />
valid, we expect you to make note of this in the citation.<br />
Thank you,<br />
Linda Rothstein, Editor<br />
Andrea Gonsalves, Managing Editor<br />
Sonia Holiad, Production Editor<br />
Gerald Chan<br />
Gerald Chan is a partner at Stockwoods LLP<br />
in Toronto, practising criminal, constitutional,<br />
regulatory, and select civil litigation. He still<br />
has not accepted that his days as a freestyle<br />
rapper are over.<br />
Carlo Di Carlo<br />
Carlo is a partner at Stockwoods with a broad<br />
practice that covers various areas of civil<br />
and regulatory litigation. He is routinely<br />
involved in matters dealing with director/<br />
officer liability, shareholder disputes, the<br />
oppression remedy, and contractual disputes.<br />
Carlo has particular expertise dealing with<br />
securities law issues.<br />
Stephen Grant, LSM, ASM<br />
Stephen Grant is a retired lawyer and a<br />
former editor of this <strong>Journal</strong>. He now spends<br />
his time writing about art and poetry.<br />
<strong>The</strong> Honourable Justice Mahmud Jamal<br />
Mahmud Jamal is a justice of the Supreme<br />
Court of Canada. In accordance with section<br />
8 of the Supreme Court Act, RSC 1985, c S-26,<br />
he resides in the National Capital Region.<br />
<strong>The</strong> Honourable John I. Laskin<br />
<strong>The</strong> Honourable John I. Laskin was appointed<br />
to the Court of Appeal for Ontario in January<br />
1994 directly from the bar, retiring in 2018.<br />
His litigation practice, beginning in 1971,<br />
spanned all aspects of civil and public law.<br />
Since becoming a judge he has written and<br />
taught extensively on written and oral<br />
advocacy.<br />
Jennifer McAleer<br />
Jennifer McAleer is a partner at Fasken in<br />
Toronto, where she practises administrative<br />
and corporate commercial litigation.<br />
Doug Mitchell<br />
Doug Mitchell is one of the founding partners<br />
of IMK LLP, a litigation boutique in Montreal.<br />
He acts in all areas of civil, commercial, and<br />
public law at all levels of courts in Canada,<br />
and also as an arbitrator and arbitration<br />
counsel. He loves the civil law of Quebec.<br />
Daniella Murynka<br />
Daniella Murynka is a knowledge and<br />
practice innovation litigation lawyer at<br />
Fasken. She is creative and versatile in this<br />
role, tracking legal developments, drafting<br />
bespoke resources, and maximizing shared<br />
knowledge. She’s thought about it and still<br />
prefers in-text citations, the winter months,<br />
and instant coffee.<br />
Mary Paterson<br />
Mary is a litigation partner with Osler, Hoskin<br />
& Harcourt, where she specializes in tax,<br />
insolvency, and other fascinating subjects.<br />
She is a board member of Pro Bono Ontario<br />
and an amateur but enthusiastic gardener.<br />
Erin Pleet<br />
Erin Pleet is a partner at Ross Nasseri LLP<br />
in Toronto, where she practises commercial,<br />
civil, and estates litigation as well as<br />
administrative law and appeals. She builds<br />
successful cases and (with her kids) LEGO®<br />
Ninjago creations.<br />
Kimberly Potter<br />
Kimberly Potter is a partner in the Litigation<br />
and Dispute Resolution Department at<br />
Fasken. Her practice focuses on complex<br />
commercial disputes and administrative<br />
law, and she has expertise in professional<br />
regulation.<br />
Ronald G. Slaght, KC, ASM, LSM<br />
When Ronald Slaght decided to write about a<br />
little-known chapter in Lac Minerals v Corona,<br />
he was thrilled to learn that Will McDowell<br />
had put in a marker to preserve the case<br />
records at McCarthys, “just in case.” With a<br />
72-page box list and hundreds of boxes, Ron<br />
may just be getting started.<br />
4 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 5
VIEW FROM THE BENCH<br />
<strong>The</strong> SCOTUS of Canada<br />
This is a transcript of an address given to the American<br />
College of Trial Lawyers in Florida on February 25, <strong>2023</strong>. <strong>The</strong><br />
author thanks his law clerk, Siobhan Quigg, for her invaluable<br />
research assistance and wicked sense of humour.<br />
Introduction<br />
I would like to thank Jeff Leon for that kind introduction.<br />
I would also like to thank the American College of Trial<br />
Lawyers for granting me the great privilege of becoming an<br />
honorary fellow.<br />
Jeff mentioned to you that we are both proud alumni of the<br />
Ross Sheppard Composite High School in Edmonton, Alberta.<br />
What he did not tell you is that that school’s most famous<br />
<strong>The</strong> Honourable Justice Mahmud Jamal<br />
alumnus is not a nerd like Jeff or me, but a jock, and that this<br />
person’s most significant accomplishment was not becoming<br />
the second Canadian president of the American College of<br />
Trial Lawyers or a justice of the Supreme Court of Canada but,<br />
rather, winning the Stanley Cup four times – an ice skater by<br />
the name of Wayne Gretzky. Life’s not fair.<br />
Chief Justice Richard Wagner and I are delighted to bring<br />
greetings from the Supreme Court of Canada. Understandably,<br />
our Supreme Court is rarely top of mind for lawyers in the<br />
United States. I was reminded of this recently when a recruiter<br />
for a Wall Street law firm saw the “Supreme Court of Canada”<br />
on the résumé of one of my law clerks and asked her, “What<br />
kind of trials do you help with up there?” She answered politely,<br />
“Oh, it’s Canada’s apex court … it’s like your SCOTUS. It’s<br />
the SCOTUS of Canada.”<br />
<strong>The</strong> SCOTUS of Canada has much in common with your<br />
SCOTUS. Both courts hear appeals of national importance,<br />
both share common ideals about the importance of the rule of<br />
law, and both are respected around the world. Today, I’d like to<br />
tell you a little about our SCOTUS – the SCOTUS of Canada –<br />
and to compare our respective apex courts. I will touch briefly<br />
on seven points.<br />
<strong>The</strong> first six<br />
First, both courts originally had six justices and only gradually<br />
worked up to the current complement of nine. 1 Eventually,<br />
people realized that an even number of judges can lead to<br />
deadlocked decisions. It appears that an ignorance of basic<br />
arithmetic is shared by lawyers on both sides of the 49th parallel.<br />
In 1789, President George Washington selected the first six<br />
justices for the Supreme Court of the United States. <strong>The</strong>se men<br />
were so honoured by the nomination that the first chief justice,<br />
John Jay, spent most of his tenure abroad and resigned<br />
after just six years to become the governor of New York, after<br />
describing the Court as “intolerable”; another justice, John<br />
Rutledge, never attended a formal session of the Court; and a<br />
third, Robert Hanson Harrison, declined the honour completely. 2<br />
<strong>The</strong> first justices of our Court were also a motley crew. Justice<br />
Henry Strong was known for his “opinionated criticisms<br />
of his colleagues, outbursts of temper, and discourteous treatment<br />
of counsel” and has been described as lazy and irresponsible.<br />
3 He was to grace our Court for almost 30 years. 4 In a similar<br />
vein, Justice William Henry was said to be “not too bright”<br />
and was known for judgments that were<br />
“long, windy, incoherent masses of verbiage,<br />
interspersed with ungrammatical<br />
expressions, slang and the veriest legal<br />
platitudes inappropriately applied.” 5<br />
Humble facilities<br />
A second similarity between our respective<br />
apex courts is that both had<br />
humble facilities. For the first 145 years<br />
of its existence, the US Supreme Court<br />
sat in various government buildings and<br />
in at least two taverns. Historians have<br />
described the Court’s early premises as<br />
“mean and dingy” and as only a “little<br />
better than a dungeon.” 6 <strong>The</strong> premises<br />
were understandably not a priority because,<br />
during the first two terms, the<br />
Court heard a grand total of zero cases.<br />
<strong>The</strong> justices spent their time appointing<br />
a Court crier and admitting lawyers to<br />
the bar. 7<br />
<strong>The</strong> Supreme Court of Canada likewise<br />
lacked a dedicated building at first. In its<br />
early years, the Court sat in the Railway<br />
Committee room of Parliament. 8 Historians<br />
have remarked that the physical<br />
facilities were extremely poor, noting<br />
that “[h]ere was a beggarly institution.<br />
No offices were planned for the justices;<br />
all the staff were to share just one room;<br />
and there was to be no separate permanent<br />
library.” 9<br />
<strong>The</strong> Supreme Court of Canada’s first<br />
session, in 1876, also had zero cases.<br />
But the next year, things picked up. A<br />
landmark case argued over three full days<br />
in January 1877 involved a pew holder’s<br />
claim for damages for interference with<br />
his right to occupy pew #68 in a Montreal<br />
church. <strong>The</strong> ejected pew holder won<br />
and was awarded $300 in damages. 10<br />
Later that month, the Court heard another<br />
important case, in which it decided<br />
that several parish priests breached the<br />
Elections Act by giving sermons threatening<br />
their parishioners with eternal damnation<br />
if they voted for candidates of<br />
the federal Liberal party. 11 <strong>The</strong> Supreme<br />
Court of Canada’s golden age had begun.<br />
With this uptick in interesting work,<br />
our Court also upgraded its building.<br />
In 1882, the Court moved from the Railway<br />
Committee room to a two-storey<br />
Gothic revival structure that had, until<br />
then, served as a stable for horses. 12 <strong>The</strong><br />
previous tenants had left the building<br />
filthy and unfit for human habitation. 13<br />
Fortunately, the justices had an easier time<br />
than the horses did climbing the stairs.<br />
Eventually, in 1937, the Canadian government<br />
commissioned the renowned<br />
Canadian architect Ernest Cormier to<br />
build the dedicated art deco courthouse<br />
that we use today. Cormier originally intended<br />
the building to have a flat roof,<br />
but Prime Minister Mackenzie King had<br />
other ideas. Legend has it that while the<br />
building was under construction, Prime<br />
Minister King frequently walked by the<br />
building with his dog, an Irish terrier<br />
named Pat, from whom he often sought<br />
advice, including by séance after Pat’s<br />
death. 14 Perhaps on Pat’s advice, the<br />
prime minister insisted that the building<br />
should have a Gothic peaked dome<br />
to match the surrounding Parliament<br />
Buildings. Cormier grudgingly complied<br />
but, in a small act of defiance, would always<br />
refer to the new roof as the “dunce-cap.” 15<br />
Rumour has it that in 1945 the Canadian<br />
government hid a Soviet defector,<br />
Igor Gouzenko, in the damp and lonely<br />
attic of the “dunce-cap.” Besides this one<br />
valuable use of the dome, it has otherwise<br />
caused only trouble. Maintenance<br />
staff have determined that the vaulted,<br />
uninsulated roof creates its “own weather<br />
systems” and “cause[s] mini-rain<br />
storms that leak into the library below.” 16<br />
On the plus side, it is, I suppose, better<br />
for an apex court to have a leaky roof<br />
than leaky judgments.<br />
<strong>The</strong> court today<br />
<strong>The</strong> US Supreme Court does not have a<br />
“dunce-cap” roof but, as my third point,<br />
I note that it shares several interior features<br />
with our Court. For example, both<br />
courts have courts within the court. <strong>The</strong><br />
Supreme Court of Canada has an outdoor<br />
badminton court in a central quadrangle<br />
at the ground level, while the US<br />
Supreme Court has a basketball court in<br />
its top-floor gym, known to the cognoscenti<br />
as the “highest court in the land.”<br />
I am confident that my colleagues and I<br />
could handily take SCOTUS in a game of<br />
badminton.<br />
Another similarity is that the justices’<br />
offices are generally assigned by seniority.<br />
In Canada, our cavernous offices<br />
line a long marble corridor that wraps<br />
around three sides of the building. One<br />
former justice compared our offices rather<br />
unflatteringly to “gopher holes,” into<br />
which we, the gophers, periodically vanish. 17<br />
Both our courts also have public<br />
cafeterias. This is important because<br />
there aren’t any restaurants near either<br />
court. <strong>The</strong> Supreme Court of Canada’s<br />
cafeteria used to serve hot meals, but it has<br />
now been replaced with vending machines<br />
selling high-quality junk food, where, I<br />
should add, I am a regular customer.<br />
By contrast, SCOTUS has retained its<br />
cafeteria, which by tradition falls under<br />
the supervision of the newest justice.<br />
<strong>The</strong>re have been advances and setbacks<br />
over the years. As the Wall Street <strong>Journal</strong><br />
reported, Justice Stephen Breyer’s great<br />
contribution was to introduce a salad<br />
bar. He was eclipsed by Justice Elena<br />
Kagan, who became wildly popular with<br />
a frozen yogurt machine. Justice Samuel<br />
Alito said he thought the cafeteria was<br />
pretty good under his watch, proudly<br />
recounting how he had received compliments<br />
about the shrimp bisque and the<br />
hummus and broccoli, although the Wall<br />
Street <strong>Journal</strong> highlighted that his tenure<br />
also “saw disaffection over slow service<br />
and unhappiness about the removal of<br />
the pudding parfait,” as well as regular<br />
complaints that there was too much salt<br />
in the oatmeal and not enough mayonnaise<br />
in the turkey wrap. 18 A Washington<br />
Post correspondent decried the “fallingapart<br />
mushy” veggie burger of Justice<br />
Sonia Sotomayor’s tenure, along with a<br />
salmon rice bowl that bore “no resemblance<br />
to any salmon I’ve tasted before.”<br />
<strong>The</strong> Post even declared that the<br />
cafeteria food under Justice Sotomayor<br />
“should be [declared] unconstitutional.”<br />
19 After this investigative bombshell,<br />
Chief Justice John Roberts sent Justice<br />
Sotomayor a note advising her, “You’re<br />
fired.” 20 More recently, Justice Brett<br />
Kavanaugh said that when he arrived,<br />
he thought it was an “outrage” that the<br />
cafeteria did not serve pizza. He soon<br />
remedied that situation, noting that his<br />
“legacy is secure” and that henceforth he<br />
will be known “as the pizza justice.” 21<br />
Location<br />
My fourth point is about our respective<br />
courts’ locations. Both are in capital<br />
cities, although SCOTUS originally sat<br />
in New York and then in Philadelphia,<br />
before moving to its permanent home in<br />
Washington, DC. 22 You all know about<br />
Washington, so let me tell you a little bit<br />
about Ottawa.<br />
Ottawa is famously rumoured to have<br />
been chosen as Canada’s capital in 1857<br />
by Queen Victoria during a game of<br />
“pin the tail on the donkey” on a map of<br />
Canada. After Her Majesty’s selection,<br />
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THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 7
the American press reported that Ottawa<br />
was impossible to capture because even<br />
the most courageous soldiers would get<br />
lost in the woods trying to find it. 23 You<br />
may be interested in knowing that on a<br />
January day in 2019, Ottawa earned the<br />
distinction of being named the “coldest<br />
capital city” in the world. 24<br />
Perhaps you now understand why it<br />
was necessary for the Parliament of Canada<br />
to legislate a residency requirement<br />
for its Supreme Court judges. Section 8<br />
of the Supreme Court Act stipulates that<br />
all Supreme Court of Canada justices<br />
must live in the National Capital Region<br />
or within 40 kilometres thereof. So when<br />
people ask me where I live, I say that I am<br />
required by law to live in Ottawa.<br />
This statutory residency requirement<br />
has met with mixed reactions. One of the<br />
first Supreme Court justices flouted it<br />
and refused to move to Ottawa. 25 Others<br />
have turned down the job because they<br />
felt that the disadvantages of living in<br />
Ottawa outweighed the benefits of serving<br />
on Canada’s highest court. 26 One retired<br />
judge noted that even when the justices<br />
do make the move, most take “every<br />
opportunity to leave Ottawa.” 27 Let me<br />
pause here to sincerely thank you once<br />
again for inviting me to Florida.<br />
Appointment<br />
My fifth point concerns our respective<br />
nomination and appointment processes.<br />
In Canada, appointments fall along<br />
regional lines. Three justices must be<br />
from the Province of Quebec, and, by<br />
convention, two are from the Western<br />
provinces, one is from Atlantic Canada,<br />
and three are from Ontario.<br />
I understand that SCOTUS has similar<br />
regional requirements. Each of your<br />
justices must have lived at some point<br />
in either Cambridge, Massachusetts, or<br />
New Haven, Connecticut. Some think<br />
this leads to a certain narrowness of<br />
perspective. In 2009, Chief Justice Roberts<br />
defended the status quo, noting that<br />
“Not all justices went to elite institutions.<br />
Some of them went to Yale.” 28<br />
As is well known, the process for being<br />
appointed to the US Supreme Court<br />
is long and invasive. <strong>The</strong> Senate spends<br />
about a month gathering information<br />
about the nominee. <strong>The</strong> nominee is then<br />
grilled by the Senate Judiciary Committee<br />
on their qualifications, judgments, and<br />
judicial philosophy, before the Senate<br />
votes on the nomination.<br />
<strong>The</strong> parliamentary hearing for a Supreme<br />
Court of Canada nominee is much less<br />
onerous. Indeed, it is a quintessentially<br />
Canadian affair. A couple of days after the<br />
prime minister announces the nominee,<br />
a group of senators and members of<br />
Parliament hold a hearing to politely ask<br />
the nominee questions for four minutes<br />
each. Parliament does not vote on the<br />
nominee, whose appointment remains<br />
the sole prerogative of the prime minister.<br />
After a couple of hours of this process,<br />
which is akin to speed-dating with a bipartisan<br />
group of senators and MPs,<br />
you’re handed a gift bag, pointed toward<br />
the Court, and sent on your merry way.<br />
Our press coverage of Supreme Court<br />
appointments is also not as perceptive<br />
as yours. For example, when last year<br />
the prime minister appointed our new<br />
colleague, Justice Michelle O’Bonsawin,<br />
as the first Indigenous justice to the<br />
Court, the press noted that this was<br />
the second historic appointment in as<br />
many years, after my appointment to<br />
the Court the previous year as “the first<br />
black woman.” 29<br />
<strong>The</strong> hearings<br />
Sixth, our courts share some aspects of<br />
hearing procedure.<br />
On both courts, the justices enter the<br />
courtroom and sit in order of seniority.<br />
<strong>The</strong> US Supreme Court conveniently has<br />
three doors to the courtroom. <strong>The</strong> chief<br />
justice and two most senior justices enter<br />
through the centre door, three justices<br />
enter through the left door, and three<br />
through the right. 30<br />
In Canada, all the justices enter together<br />
through a single central door and<br />
alternate by crossing to the left and to the<br />
right in order of seniority. Because we sit<br />
in panels of five, seven, or nine, both the<br />
order and direction of entry can vary, depending<br />
on who is sitting on a particular<br />
case. As a result, the justices sometimes<br />
crash into each other. After one such<br />
collision, former Justice Gérard La Forest<br />
explained to counsel apologetically, “You<br />
know, this is harder than it looks.” 31<br />
Today, parties have 30 minutes each<br />
for oral argument before SCOTUS, and<br />
one hour each before our Court. But this<br />
was not always so. Hearings before the<br />
US Supreme Court used to last several<br />
days. Apparently, to avoid wasting<br />
time, Justice William O. Douglas would<br />
multi-task by writing opinions or articles<br />
during oral argument. At least once, a<br />
hearing was adjourned to permit counsel<br />
time to sober up. And when arguments<br />
were particularly long and inconsequential,<br />
the justices would retire to have<br />
lunch behind a curtain behind the bench,<br />
while counsel continued to make submissions<br />
amid the clatter of china. 32<br />
<strong>The</strong> COVID-19 pandemic forced both<br />
our courts to adapt their hearing procedures.<br />
<strong>The</strong> US Supreme Court opted to<br />
conduct remote hearings by telephone.<br />
As is well known, during one hearing in<br />
2020, a toilet flush could be heard during<br />
oral argument. 33 I greatly appreciate<br />
that this hasn’t happened in our Court,<br />
especially since we conduct our hearings<br />
by Zoom.<br />
Law clerks<br />
Finally, let me conclude with a brief comment<br />
on the role of law clerks in our respective<br />
courts. In both countries, law<br />
clerks attract considerable suspicion.<br />
A Canadian newspaper, the National<br />
Post, once described our law clerks as<br />
“recently graduated twentysomething<br />
law students weaned on an ideological<br />
soup of radical feminism, multiculturalism<br />
and moral relativism – who see<br />
the law as a means to translate these<br />
doctrines into public policy without the<br />
intervening necessity of election and<br />
legislation.” 34<br />
In a similar vein, former Chief Justice<br />
William Rehnquist once said that most<br />
law clerks tend to show “extreme solicitude<br />
for the claims of communists and<br />
other criminal defendants, expansion<br />
of federal power at the expense of state<br />
power, [and] great sympathy toward any<br />
government regulation of business.” 35<br />
And Justice Douglas once described his<br />
law clerks, no doubt affectionately, as<br />
“the lowest form of human life.” 36<br />
I don’t share these perspectives. In my<br />
view, our law clerks are brilliant young<br />
lawyers who are utterly devoted to their<br />
judges and to public service. <strong>The</strong>y are<br />
paragons of excellence and virtue. And<br />
I should know: I was once a Supreme<br />
Court clerk myself.<br />
At our court, most clerks research<br />
points of law, prepare memoranda, and<br />
generally assist their judge with their<br />
judicial and extra-judicial duties, including<br />
by preparing speeches for the American<br />
College of Trial Lawyers. <strong>The</strong> late<br />
Justice John Sopinka often had his law<br />
clerks draft his speeches. He noted that it<br />
backfired only once. On a Friday before<br />
the Canadian Thanksgiving weekend, Sopinka realized that he<br />
had forgotten to delegate a speech that he was to give the following<br />
Tuesday. He had planned a weekend away and wasn’t<br />
able to write the speech himself, so he called in the only law<br />
clerk who was still at the office. 37<br />
“Geoffrey,” Sopinka said, “I am giving a speech on Tuesday.<br />
I want you to draft it and have it for me on Tuesday morning.”<br />
Geoffrey protested that he was attending a family reunion in<br />
Vancouver. “Never mind that,” Sopinka said, “On my desk on<br />
Tuesday morning.”<br />
When Sopinka returned on Tuesday morning, the draft was<br />
sitting on his desk – typed beautifully. He glanced over the<br />
draft and decided that it looked very good. In the taxi to the<br />
speech venue, Sopinka began to read it carefully. <strong>The</strong> quality<br />
was excellent: It raised some fascinating questions to be<br />
Notes<br />
1. Philip Slayton, Mighty Judgment (Toronto: Penguin, 2011), 24.<br />
2. Joan Diskupic and Elder Witt, <strong>The</strong> Supreme Court at Work, 2d ed<br />
(Washington DC: Congressional Quarterly, 1997), 3–4.<br />
3. Slayton, supra note 1, 24.<br />
4. Ibid.<br />
5. Ibid, 25.<br />
6. Diskupic and Witt, supra note 2, 115–19.<br />
7. Ibid, 115.<br />
8. Slayton, supra note 1, 25.<br />
9. Ibid, 25.<br />
10. James Johnston v <strong>The</strong> Minister and Trustees of St. Andrew’s Church,<br />
Montreal, [1877] SCR 235.<br />
11. Brassard v Langevin, [1877] SCR 145.<br />
12. Slayton, supra note 1, 26.<br />
13. Ibid.<br />
14. See, e.g., Allan Levine, William Lyon Mackenzie King: A Life Guided by<br />
the Hand of Destiny (Madeira Park, BC: Harbour Publishing, 2005), 402;<br />
Christopher Dummitt, Unbuttoned: A History of Mackenzie King’s Secret<br />
Life (Montreal and Kingston: McGill-Queen’s University Press, 2017),<br />
66–67.<br />
15. Chief Justice Beverley McLachlin, “Remarks of the Right Honourable<br />
16. Ibid.<br />
Beverley McLachlin, P.C.,” at the Mayor’s Breakfast Series” (Ottawa:<br />
25 November 2014); online at https://www.scc-csc.ca/judges-juges/<br />
spe-dis/bm-2014-11-25-eng.aspx.<br />
17. Constance Backhouse, Claire L’Heureux-Dubé: A Life (Vancouver: UBC<br />
Press, 2017), 335.<br />
18. Jess Bravin, “Supreme Court’s Junior Justice Has to Run the Cafeteria.<br />
Don’t Eat <strong>The</strong>re,” Wall Street <strong>Journal</strong> (20 July 2017).<br />
19. Tommy Tobin, “Brett Kavanaugh, the ‘Pizza Justice’: <strong>The</strong> Latest Chapter<br />
in the Supreme Court’s Food History,” Forbes (19 November 2019);<br />
online at https://www.forbes.com/sites/tommytobin/2019/11/19/<br />
a-pizza-justice--food-at-the-supreme-court/?sh=6ae76f1e7707.<br />
20. Bravin, supra note 18.<br />
21. Tobin, supra note 19.<br />
22. Diskupic and Witt, supra note 2, 4–6.<br />
answered in the conclusion. Sopinka arrived at his destination<br />
before he could read the conclusion, but he was confident that<br />
it would not disappoint.<br />
Sopinka rushed inside the lecture hall. He was already being<br />
introduced as he entered. <strong>The</strong> speech turned out to be even<br />
better when delivered live. <strong>The</strong> rapt audience listened attentively<br />
as Sopinka began to read the conclusion: “In conclusion,<br />
as promised, here are my answers to the perplexing problems<br />
which I have raised ...” <strong>The</strong> text of the speech then continued,<br />
in block capitals: “NOW IMPROVISE, YOU S.O.B.”<br />
Conclusion<br />
Thank you again for conferring on me the privilege of becoming<br />
an honorary fellow of the American College of Trial<br />
Lawyers. And thank you for your attention.<br />
23. Britannica (online),“Know the Reason Why Queen Victoria Chose<br />
Ottawa as the Canadian Capital”; https://www.britannica.com/<br />
video/187528/Victoria-capital-Ottawa-Canadian.<br />
24. CBC News, “Ottawa Freezes Its Way to Coldest Capital City in the<br />
World” (19 January 2019); online at https://www.cbc.ca/news/<br />
canada/ottawa/coldest-capital-city-in-world-1.4985296.<br />
25. Slayton, supra note 1, 24–25.<br />
26. Ibid, 219.<br />
27. Ibid, 214.<br />
28. Adam Liptak, “<strong>The</strong> Road to a Supreme Court Clerkship Starts at<br />
Three Ivy League Colleges,” New York Times (6 February <strong>2023</strong>); online<br />
at<br />
29. “Canada Nominates O’Bonsawin as First Native Supreme Court<br />
Justice, TopWireNews.com; online at https://news.topwirenews.<br />
https://www.nytimes.com/<strong>2023</strong>/02/06/us/supreme-court-ivyleague-harvard-yale.html.<br />
com/2022/08/19/canada-nominates-obonsawin-as-first-nativesupreme-court-justice/.<br />
30. Supreme Court of the United States, “Visitor’s Guide to Oral<br />
Argument”; online at<br />
visitorsguidetooralargument.aspx.<br />
https://www.supremecourt.gov/visiting/<br />
31. Kirk Makin, “Justice Ian Binnie’s Exit Interview,” Globe and Mail (23<br />
September 2011); online at https://www.theglobeandmail.com/<br />
news/national/justice-ian-binnies-exit-interview/article555452/.<br />
32. Diskupic & Witt, supra note 2, 73–77.<br />
33. “US Supreme Court Hears Toilet Flush During Oral Arguments – A<br />
First,” BBC (7 May 2020); online at https://www.bbc.com/news/<br />
world-us-canada-52572986.<br />
34. Slayton, supra note 1, 236–37.<br />
35. Jeffrey Toobin, <strong>The</strong> Nine: Inside the Secret World of the Supreme Court<br />
(New York: Knopf Doubleday, 2008), 55.<br />
36. Diskupic and Witt, supra note 2, 108; Slayton, supra note 1, 235.<br />
37. John Sopinka, “<strong>The</strong> Many Faces of Advocacy,” in David Stockwood<br />
and David E Spiro, eds, Ethos, Pathos, and Logos: <strong>The</strong> Best of the<br />
Advocates’ Society <strong>Journal</strong> 1982–2004 (Toronto: Irwin Law, 2005), 7–8.<br />
<strong>The</strong> anecdote actually relates to when Sopinka was in practice.<br />
8 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
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FEATURE<br />
Annals of law: Lac Minerals v Corona –<br />
the new trial that wasn’t<br />
Ronald G. Slaght, KC, ASM, LSM<br />
It all began in mid-August 1988. I’d had an enjoyable summer,<br />
pleasant and productive enough, with plenty of time to<br />
manage my hurly-burly practice, contemplate a holiday, and<br />
still finish the one major task at hand. <strong>The</strong> fall was shaping up<br />
to be a different story.<br />
We had a few weeks yet to complete and deliver our factum<br />
to the Supreme Court of Canada for our client, International<br />
Corona, responding to Lac Minerals’ appeal to that Court<br />
from the dismissal of its appeal by the Ontario Court of Appeal<br />
in October 1987, following a 10-day hearing in November<br />
1986. Lac was appealing from the decision of the trial judge,<br />
R.E. Holland J, whose reasons were released in March 1986,<br />
following a five-month trial.<br />
Justice Holland had awarded our client on remedial constructive<br />
trust principles the prize it had pursued in the litigation<br />
– the Williams property, a gold field of significant potential<br />
located in the Hemlo area of northern Ontario. <strong>The</strong> trial<br />
decision deprived Lac of the lands it had snapped up out from<br />
under Corona while the parties had been negotiating toward<br />
some form of joint enterprise.<br />
Consistent with the outsized nature of this litigation, the<br />
Supreme Court had made an order permitting the parties to<br />
deliver factums of 60 pages. Lac delivered its tome on June<br />
30, 1988. Ours was due two months later, on August 31.<br />
<strong>The</strong> argument was to proceed over two days, commencing<br />
October 11, 1988.<br />
For Alan Lenczner and for me, this was the best of times in<br />
this high-stakes, all-consuming litigation that had occupied a<br />
good deal of our minds and bodies for a few years. 1 We had<br />
succeeded below, in two courts, by advancing pared-down<br />
basic principles of fiduciary law and the law of confidence,<br />
both well established in niche sectors but now imported by<br />
these decisions into the world of mainstream commerce. We<br />
had clothed these principles within the framework of the compelling<br />
facts we had established at trial and admissions we had<br />
secured at discovery. We had succeeded in establishing that<br />
the law would protect a vulnerable commercial party in circumstances<br />
like these and that the only appropriate remedy in<br />
this case was disgorgement. Our argument was founded on the<br />
uniquely Canadian law of the constructive trust as a remedy.<br />
We now had the approval of two strong courts – a healthy<br />
foundation for the upcoming appeal where the novelty of our<br />
arguments was going to be put against us once again.<br />
So it was enjoyable working through the facts and the law<br />
one more time, countering the arguments from the other side,<br />
which were all rooted essentially in “floodgates fears” – that<br />
if this decision were to stand and these principles were loosed<br />
upon the world of commerce, business relations would become<br />
an uncertain place, without the necessary certainty and predictability,<br />
and ultimately would devolve into an after-the-fact<br />
second-guessing exercise by courts as they entertained each<br />
new set of facts coming before them.<br />
Alan and I were certainly very much alive to the risks we<br />
faced in the upcoming appeal. We had succeeded below in extending<br />
the reach of fiduciary duties, drawing from the special<br />
relationship cases (lawyer-client, trust) and from other areas,<br />
such as government duties owed to Indigenous Peoples. We<br />
had moved those principles into the world of commercial and<br />
business relations in circumstances like ours where the parties<br />
had no contract, no partnership, no joint venture, and no<br />
debating, refining, and putting down our arguments in antici-<br />
In any event, this is where we stood in mid-August 1988,<br />
confidentiality agreement, and where very little was reduced<br />
pation of the last go-round in October.<br />
to writing, but where a junior mining company, as was commonplace<br />
in Canadian mining affairs, was negotiating toward<br />
<strong>The</strong> gathering storm<br />
a relationship with a senior mining company to develop what<br />
An inkling of trouble for my vision of how the rest of that summer<br />
might unfold surfaced on August 8. Alan came around to<br />
appeared to be a new ore body with great potential.<br />
As to the law of confidence, we had established new ground<br />
say he had just had a call from J.L. McDougall, one of Lac’s<br />
there as well, relying on principles that were well accepted<br />
counsel, to say that Lac had obtained some kind of appointment<br />
before the Supreme Court to speak to the matter on<br />
in special circumstances; for example, where courts would<br />
impose obligations on parties in intellectual property cases,<br />
August 11. Alan had been unable to extract from J.L. what<br />
trade-secrets matters, and patent disputes, and also where it<br />
this was all about. All that was said was we would find out<br />
was understood that obligations of confidence would arise,<br />
when we got there. A call to Reg Boudreau, our contact at the<br />
such as in tax cases between governments and taxpayers.<br />
Supreme Court registry, confirmed there was indeed an appointment,<br />
and we were expected to attend.<br />
I have reflected often enough over the question why, after<br />
more than 30 years, Lac Minerals v Corona continues to strike<br />
Adding to the atmosphere of strange goings on, August<br />
a note in the memories and imaginations of lawyers, young<br />
11, 1988, was no typical summer day. It was cold and rainy,<br />
and old. Alan and I still field questions and comments about<br />
a low of 9 degrees and miserable. As we got ourselves to<br />
the case, and it is still cited frequently for one proposition or<br />
Ottawa that morning and duly showed up on Wellington Street<br />
another.<br />
in anticipation of who knows what, little did I realize I was<br />
Of course, it was the classic underdog-beats-bully tale, with<br />
about to experience one of the more memorable encounters in<br />
enormous value at stake. And if we’d lost, maybe a fade into<br />
my years at the bar. Alan and I were ushered into a relatively<br />
history would have been its path.<br />
small conference room, windowless as I recall, where already<br />
But, too, there were significant issues of law with future<br />
gathered around the table were not only J.L. McDougall<br />
consequences decided here. And as the matter moved along,<br />
and Earl Cherniak, Lac’s counsel in the upcoming appeal, but<br />
everyone had an opinion: academics, the media, the stock<br />
also someone completely new to the scene, Bill Sasso from<br />
market. And this didn’t end with the final result. Serious<br />
McMillan Binch, with junior counsel. Alan and I had known<br />
issues of extra-contractual commercial law and the boundaries<br />
of business behaviours were decided and not revised in a<br />
case and his presence was of course a surprise to an almost<br />
Bill for years but he had never had anything to do with this<br />
comprehensive manner until Bhasin v Hrynew in 2014. 2 shocking degree.<br />
Counsel gather for a photograph after arguing a motion on the deck of the Honourable Justice Holland’s country home in Caledon, Ontario.<br />
Left to right, standing: Alan Lenczner, Thomas Dunne; seated: Ronald Slaght, Peter Atkinson, Fred Cass.<br />
I remember the circumstances well. <strong>The</strong>re we all were,<br />
dressed in our finest blue suits and white shirts, and high tension<br />
filled the room, apparent from the body language between<br />
Bill on the one hand and Earl and J.L. on the other.<br />
Bill pushed across the table a thin record, which appeared<br />
to contain a notice of motion but without any supporting<br />
material. No one spoke. We waited.<br />
In a short time, the door opened and in strode the chief justice<br />
of Canada, Brian Dickson. He evinced a pleasant demeanour<br />
and, quite remarkably, was kitted out in Bermuda shorts and<br />
a golf shirt. He gave the room a quick glance, looking inquiringly<br />
for someone to speak up with the introductions and then<br />
asking, “So what’s this all about?”<br />
Bill Sasso started into his explanation of things. He began<br />
by saying that he represented Lac Minerals and that Lac was<br />
bringing a motion to set aside the trial judgment on the grounds<br />
of fraud and perjury. He was there to seek directions from the<br />
Court about the upcoming appeal. Although Alan and I were<br />
unaware of it, apparently rumours had recently been circulating<br />
in the mining media that Lac was bringing such a motion.<br />
As we learned later that day, Lac had obtained a one-day motion<br />
date in weekly court for October 27, 1988, apparently in<br />
the belief that the whole matter could be dealt with in one day<br />
in motions court.<br />
Bill was barely launched into this further description when<br />
the chief justice interrupted and said, “But what has this got<br />
to do with us?” Bill then attempted to explain further, but the<br />
chief made it quite clear by body language and his next words<br />
that the Court was not in the slightest interested in hearing<br />
anything more, that the date, October 11, 1988, for this appeal<br />
10 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 11
had been long established, and that the<br />
Court would be proceeding with the<br />
arguments on that date.<br />
<strong>The</strong> chief justice then looked around<br />
the room and queried, “Is there anything<br />
else?” And before anyone had a chance<br />
to say anything else, he was out of the<br />
chair and out the door with a friendly<br />
“have a good summer.”<br />
That was that. We caught the next<br />
shuttle back to Toronto.<br />
Before continuing, I should back up a<br />
bit and explain what the Corona/Lac case<br />
was really all about. We had a five-month<br />
trial concluding with reasons in March<br />
1986. Many issues were ventilated, but<br />
in essence the claims we advanced on<br />
behalf of Corona had become by the end<br />
of the trial quite straightforward. (In the<br />
last of many frustrations for our worthy<br />
adversaries, we delivered our final statement<br />
of claim at the argument.)<br />
In 1980, Corona was a junior mining<br />
company listed on the Vancouver Stock<br />
Exchange (VSX) whose principal was<br />
Murray Pezim, a well-known Vancouver<br />
stock promoter. Corona optioned 17<br />
mining claims at Hemlo, an area near<br />
Marathon in northern Ontario. <strong>The</strong>se<br />
claims, and about 150 in total, had been<br />
staked by two prospectors, Donald<br />
McKinnon and John Larche, beginning<br />
in 1979 and continuing into July 1980.<br />
Corona’s 17 claims and other claims<br />
staked by McKinnon and Larche surrounded<br />
a property known as the Williams<br />
property, which consisted of 11<br />
mining claims that were not open for<br />
staking because they had become patented<br />
or fee-simple claims in the 1940s.<br />
<strong>The</strong>re were gold showings, sporadic earlier<br />
shallow drilling, and some assays,<br />
including from the Williams property,<br />
known to exist at Hemlo for a long period.<br />
<strong>The</strong>se staked claims and the Williams<br />
patented claims ultimately resulted in<br />
three producing gold mines with extraordinary<br />
value, operating only a stone’s<br />
throw from the Trans-Canada Highway.<br />
Corona began to drill its claims in<br />
1980, in the hands of David Bell, a young<br />
geologist who was following his own<br />
theory of where and how gold might be<br />
found on these lands. Some results were<br />
being published, and the promoters were<br />
doing their thing on the VSX.<br />
<strong>The</strong> evidence was that, at Bell’s urging,<br />
Corona wanted to purchase the<br />
neighbouring Williams property and in<br />
dramatic, contested evidence at trial,<br />
both Murray Pezim and Donald McKinnon<br />
gave evidence that they had had a<br />
telephone conversation in which Pezim<br />
had instructed McKinnon and McKinnon<br />
had agreed to try to obtain the Williams<br />
property for Corona from the widow<br />
Williams.<br />
Lac heard about the developments at<br />
Hemlo, and its chief geologist, Dennis<br />
Sheehan, visited the Corona property<br />
and met with David Bell. In some dramatic<br />
evidence, Bell described the drilling<br />
program and walking with Lac’s<br />
chief geologist to the Corona property<br />
boundary overlooking the Williams<br />
property. He told Mr. Sheehan his view<br />
that gold in this area would be found in<br />
pods, and he believed a pod would be<br />
found on the Williams land in an area to<br />
which he pointed and, further, that Corona<br />
had someone out there looking to<br />
obtain that patented ground.<br />
<strong>The</strong>re were other dealings plus exchanges<br />
of information and documents<br />
between the parties, and the trial judge<br />
found that Corona and Lac were negotiating<br />
together toward a joint venture.<br />
In the meantime, Lac both staked its own<br />
claims in the area and set about to try to<br />
find the widow Williams and purchase<br />
the Williams property for itself. McKinnon<br />
found Mrs. Williams and was in the<br />
course of making a proposal when Lac<br />
appeared on the scene with its own proposal.<br />
Mrs. Williams opted for the senior<br />
company, Lac, rather than the untested<br />
junior, Corona.<br />
Relations came to an end and Corona<br />
sued Lac, seeking a transfer of the<br />
Williams property or, in the alternative,<br />
damages (which were assessed by the<br />
trial judge at a much undervalued $700<br />
million). After a few fits and starts, the<br />
action got seriously underway in 1983,<br />
resulting in a trial in October 1985, a trial<br />
decision in March 1986, a 10-day appeal<br />
before a five-judge court in November<br />
1986 with reasons almost a year later in<br />
October 1987, and, ultimately, a Supreme<br />
Court of Canada appeal in October 1988.<br />
First, the trial judge found that the<br />
parties were engaged in negotiations,<br />
and fiduciary duties, obligations of good<br />
faith, and industry practice resulted in<br />
obligations in law owed by Lac to Corona<br />
not to act to Corona’s detriment and<br />
secure property that it knew Corona was<br />
seeking to obtain while the parties were<br />
negotiating. Second, Lac owed Corona<br />
an obligation of confidence arising out<br />
<strong>The</strong>re were several affidavits filed, including one from a private<br />
investigator, Bruce Dunne, who became the central figure<br />
in this drama. Another was from one Edward Bonaventure<br />
O’Neill, who described himself as a licensed prospector and<br />
whose evidence dealt with the staking of 12 specific claims at<br />
Hemlo, which were the subject of an application to record, purportedly<br />
signed by him, filed in the mining recorder’s office in<br />
Thunder Bay and recording that O’Neill had staked these 12<br />
claims by proper practice in December 1979. In his affidavit,<br />
Mr. O’Neill swore that he had not in fact staked these claims,<br />
had not affixed proper tags, and did not believe that he had<br />
signed the application to record. Further, he was not in the<br />
Hemlo area on the dates that the application stated the staking<br />
had occurred. He swore that the application to record was a<br />
false record and that he had no knowledge of the recording of<br />
these 12 mining claims in his name or any subsequent transfers<br />
that had occurred.<br />
This evidence was certainly startling on its face. Our difficulty,<br />
however, was that the motion record did not tie any of<br />
what Mr. O’Neill was saying into any evidence that Donald<br />
McKinnon had given at trial. <strong>The</strong>re were no particulars of the<br />
alleged false and perjured evidence to be found anywhere in<br />
the motion record. A copy of McKinnon’s two days of trial evidence<br />
had been included as a separate filing but without any<br />
specificity relating any of it to Mr. O’Neill’s statements.<br />
<strong>The</strong>re was also an affidavit from one Michael Pickens. Mr<br />
Pickens went on at some length about how he ran a contract-staking<br />
outfit in Timmins and had hired John Larche, the<br />
other prospector who had been active at Hemlo and ultimateof<br />
the disclosure of information including<br />
that Corona was seeking to obtain<br />
the Williams property for itself. <strong>The</strong><br />
trial judge made a specific finding that<br />
but for the actions of Lac, Corona would<br />
have obtained the Williams property,<br />
and this formed the foundation for the<br />
remedy which Justice Holland imposed:<br />
the disgorgement to Corona of the<br />
Williams property upon which at that<br />
point stood a producing mine. <strong>The</strong> trial<br />
judge, as the Court of Appeal affirmed,<br />
specifically accepted the evidence of<br />
Pezim and McKinnon that Corona had<br />
intended to acquire the Williams property<br />
and that McKinnon was intending<br />
to acquire that property on Corona’s<br />
behalf. Other evidence supported both<br />
propositions as well.<br />
On our return to the office on August<br />
11, we learned we had been served that<br />
morning with Lac’s motion record – two<br />
thin volumes. As we pawed our way<br />
through it for the first time, the gist of<br />
the allegations seemed to be that one of<br />
our trial witnesses, Donald McKinnon,<br />
had committed perjury and fraud and<br />
given intentionally misleading evidence<br />
related to material facts on which the<br />
Court had relied. <strong>The</strong> motion asserted<br />
that this discovery of perjured testimony<br />
had not been made by Lac until after the<br />
trial and after Lac’s appeal to the Ontario<br />
Court of Appeal.<br />
<strong>The</strong> motion was founded upon rule<br />
59, the omnibus rule dealing with orders<br />
and judgments, particularly subrule<br />
59.6(2)(a), which I don’t believe I’d even<br />
read before and which established a procedure<br />
for a party moving to set aside<br />
a judgment or order on the grounds<br />
of fraud. McMillan Binch was counsel<br />
of record for the motion. Neither J.L.<br />
McDougall’s firm, Fraser & Beatty, nor<br />
Earl Cherniak was to be found anywhere<br />
on the motion record.<br />
As we came to learn shortly, yet another<br />
firm, Torys, had been deeply<br />
involved managing an investigation on<br />
behalf of Lac Minerals that had led to<br />
this discovery of allegedly false evidence<br />
– an investigation that had begun as<br />
early as April 1986, or just about one<br />
month following the release of R.E.<br />
Holland J’s trial decision. As we learned<br />
in our subsequent examinations of witnesses<br />
on this motion, the purpose of this<br />
exercise had been to seek out and obtain<br />
evidence that could lead to overturning<br />
the trial judgment.<br />
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ly became Don McKinnon’s partner, to stake these same 12<br />
claims. Larche had returned the instructions, advising Pickens<br />
that the claims had already been staked and were not available.<br />
<strong>The</strong> allegation seemed to be that McKinnon and Larche, who<br />
was not a witness at trial, had colluded in the staking of these<br />
claims, cutting out Pickens’s client, identified as Robert Schaaf,<br />
and covering up what they had done.<br />
Again, there was nothing in the record relating these allegations<br />
specifically to McKinnon. As we subsequently learned,<br />
these allegations were already the subject of an entirely separate<br />
lawsuit brought by a company called Scintilore Explorations,<br />
with which Schaaf was connected. Scintilore was seeking<br />
the proceeds of all of Larche and McKinnon’s staking at Hemlo,<br />
staking that had made them wealthy men.<br />
<strong>The</strong>re was no affidavit from anyone at Lac Minerals. <strong>The</strong>re<br />
was no affidavit from any of Lac’s many trial and appeal counsel<br />
attesting to the significance and materiality of any of this<br />
alleged false evidence of McKinnon.<br />
Even at this early stage, we were having considerable difficulty<br />
identifying the significance of these allegations in the<br />
overall scheme of what the case had actually been about. We<br />
did know that the 12 claims raised in O’Neill’s evidence were<br />
not the claims that constituted Corona’s own property. Corona’s<br />
claims, ultimately 17 of them, were acquired through<br />
various agents from the original stakers, McKinnon and<br />
Larche, and tied on to the east end of the Williams property.<br />
<strong>The</strong> 12 claims raised in O’Neill’s evidence tied on to the west<br />
end of the Williams property, ground that had no relevance or<br />
particular significance to anything in our lawsuit.<br />
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12 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 13
Bruce Dunne’s affidavit evidence<br />
Bruce Dunne described himself as a private investigator, with<br />
a business centred in Alberta. He had been retained by Kroll<br />
Associates, the well-known private investigation firm in New<br />
York, which he said was in turn employed directly by Lac Minerals.<br />
This retainer had begun in April 1986, or just about one<br />
month after Justice Holland had released his trial decision.<br />
Nowhere in the affidavit did he say exactly what he was employed<br />
to do in this investigation although, as we learned from<br />
him in cross-examination, his instructions and those of Kroll<br />
were to find evidence to set aside the trial judgment. <strong>The</strong> facts<br />
that O’Neill and Pickens swore to in their affidavits on the motion<br />
were dug up by Bruce Dunne in the course of his investigations.<br />
As early as the summer of 1986, he had received a tip<br />
that there were discrepancies relating to the staking of certain<br />
claims by McKinnon and Larche.<br />
Dunne took some trouble in his affidavit to emphasize that he<br />
had had no discussions about these claims-staking allegations<br />
with J.L. McDougall or Earl Cherniak or any other counsel involved<br />
in prosecuting Lac’s case. This effort seemed peculiar<br />
at the time, and it came back to haunt Lac in the course of our<br />
subsequent work unravelling what had actually happened.<br />
Dunne went on to say that he had interviewed Pickens in<br />
October 1986 and Robert Schaaf, Pickens’s client, in November<br />
1986. Dunne and his associates continued their investigations<br />
and first interviewed O’Neill in January 1987. We noted that<br />
all of this was occurring around the same time the Court of<br />
Appeal was hearing Lac’s appeal.<br />
What was of particular interest is that Dunne swore in his affidavit<br />
that by February 1987, or about a year and a half before<br />
Lac launched this motion, he had completed his investigations<br />
and had reported the findings set out in his affidavit and contained<br />
in the O’Neill and Pickens affidavits to “his employer.”<br />
Dunne concluded by saying that after reporting to Lac and its<br />
agents, he had been granted permission by Lac to continue investigating<br />
on behalf of Scintilore and that thereafter he had<br />
been assisting Scintilore in its case proceeding in the High<br />
Court of Justice against McKinnon, Larche, and others.<br />
Particulars and production<br />
All in all, on first impression, this looked like pretty thin gruel as<br />
grounds to overturn what was then, and may still be today, the<br />
most valuable award ever made in the annals of Canadian law.<br />
Alan and I made a number of quick decisions that August<br />
afternoon. First, there was no way we were going to have this<br />
matter determined as a motion in weekly court. We wanted the<br />
trial of an issue and the evidence to be heard in open court. We<br />
set a goal to have the case heard before the October Supreme<br />
Court of Canada hearing date.<br />
I’ve never been a big fan of demands for particulars; they<br />
are a recipe for delay and conflict between counsel, and most<br />
end up with precious little value added. In this case, however,<br />
we needed particulars to understand what it was McKinnon<br />
was supposed to have said about these matters but also to pin<br />
Lac down to the specifics of what was being alleged to be perjury,<br />
what was said to be fraud, and what were the boundaries<br />
of McKinnon’s evidence that we had to deal with. We served<br />
McMillan, Binch with a demand for particulars that afternoon.<br />
Bill Sasso was reasonably quick to respond, and by August<br />
15 we had a reply. It was helpful. Apart from a lot of argument,<br />
there was very little actual evidence to examine. McKinnon<br />
had given quite a bit of background evidence-in-chief at trial<br />
about how he had come to stake more than 150 claims in the<br />
Hemlo area, some with John Larche when they became handshake<br />
partners rather than competitors.<br />
McKinnon, as part of this background, said in his evidence<br />
that he had staked the 12 claims in issue in December 1979.<br />
We now knew that the application to record that was filed recited<br />
that O’Neill did the staking – and the tags were those of<br />
O’Neill, not McKinnon.<br />
<strong>The</strong> allegation appeared to be that McKinnon had lied about<br />
staking those claims and had intentionally misled the Court in<br />
failing to explain O’Neill’s role in all this.<br />
<strong>The</strong>re were no excerpts of evidence from J.L. McDougall’s<br />
cross-examination in the reply.<br />
A second allegation was that McKinnon had lied about the<br />
formation of his partnership with John Larche when he told the<br />
Court that he had met Larche after staking these claims. <strong>The</strong><br />
truth was allegedly that he and Larche had met and agreed to<br />
stake the claims that Larche had been contracted to stake for<br />
Pickens, thus depriving Pickens’s client, Schaaf (Scintilore), of<br />
those claims.<br />
Of course, all this needed some serious work by us, but these<br />
allegations were strangely reassuring. It was clear that whatever<br />
had gone on in the bush, McKinnon’s evidence had nothing<br />
whatsoever to do with the issues in the main action. In fact,<br />
back in the day, Alan and I had debated whether we would<br />
even call McKinnon as a witness. We certainly were not calling<br />
him to establish anything about the staking that he, Larche,<br />
and others had done in the Hemlo area. By the time of the trial,<br />
all this was ancient history and there were three working mines<br />
on the properties that the prospectors had staked or located.<br />
Why we called McKinnon in the end was because he had important<br />
evidence to give – not the only evidence on the point,<br />
but nonetheless significant evidence – about Corona’s intent<br />
to secure the Williams property. McKinnon gave evidence, as<br />
did Murray Pezim, of a conversation they had in which Pezim<br />
asked McKinnon to locate Mrs. Williams and, if he could, obtain<br />
the Williams property for Corona, and McKinnon said he<br />
would do so. This evidence had significance in the event that<br />
we had to meet a but-for test, which Justice Holland found that<br />
we needed to, that without the actions of Lac, Corona would<br />
have obtained the Williams property. That was why we called<br />
Don McKinnon, and that was the only McKinnon evidence<br />
found relevant by the trial judge as he made his findings in<br />
the case.<br />
We also had an initial look at the law. <strong>The</strong>re were surprisingly<br />
few relevant cases, but we did realize that the trial judge,<br />
R.E. Holland J, had jurisdiction to determine the issues on this<br />
motion. Our first thought was to seek the trial of an issue before<br />
him. Justice Holland of course had familiarity with all the<br />
evidence, the background, the parties, and the nature of the<br />
issues that mattered, and he was an obvious choice particularly<br />
with the limited time we had given ourselves.<br />
<strong>The</strong> leading decision was a 1937 case from the Supreme<br />
Court of Canada, Glatt v Glatt. 3 In Glatt, the Supreme Court<br />
established a due diligence test, that a judgment would not<br />
be set aside on the grounds of fraud, even if the fraud were<br />
proved, unless it was also proved that the evidence relied<br />
upon could not have been discovered by the party complaining<br />
through the exercise of reasonable diligence. This reflects the<br />
fundamental principle that finality of judgments is paramount<br />
in our system of law. This bedrock principle would be imperilled<br />
unless this rule were applied with the utmost strictness.<br />
I noted specifically that in Glatt, the Court had drawn an<br />
adverse inference against the applicant for its failure to call its<br />
trial counsel to give evidence about what was material about<br />
the alleged fraudulent evidence in that case.<br />
A second case, 100 Main Street East, 4 held that a fraud or perjury,<br />
in order to be actionable, need only be material to the<br />
decision sought to be impugned. <strong>The</strong> applicant did not have<br />
to meet a but-for test in order for a judgment to be set aside.<br />
With these principles now understood, the next immediate<br />
step we took was to demand full production from Lac of all its<br />
documents and records prepared in contemplation of, during,<br />
and after the course of the trial down to the date it launched<br />
this motion in August 1988. And we wanted the complete record<br />
of its investigation. And we wanted all of Lac’s privileged<br />
documents. We believed the latter should flow from the<br />
due diligence test established in Glatt. It seemed logical to us<br />
that to test the proposition that Lac had itself asserted in its<br />
Motion Record – that it did not know of the impugned evidence<br />
until shortly before the materials were filed on the motion – we<br />
should be entitled to production of all Lac’s trial documents,<br />
and its investigation, including its privileged documents.<br />
If Lac knew or could have known about this impugned evidence,<br />
quite apart from the issue of materiality, the proof of<br />
that would be found in its records, which on the basis of what<br />
we had seen to date, we speculated no one on the other side<br />
had even looked at in anticipation of bringing this motion.<br />
Bill Sasso rejected our production demands out of hand,<br />
arguing that production should come only in the course of the<br />
litigation, when all parties had taken their positions and filed<br />
their affidavits upon which they intended to rely. This was unacceptable<br />
to us and we needed to get before a court to establish<br />
the ground rules under which this motion would proceed.<br />
After our initial review of the materials, and sending off our<br />
particulars and production demand, our goal was to obtain an<br />
order and directions that the matter would proceed by way of<br />
a trial of an issue, and to obtain a schedule and a date for that<br />
trial. Bill Sasso was cooperative in these scheduling matters,<br />
and we secured an appearance before Chief Justice William<br />
Parker of the High Court for August 15. 5<br />
We told Chief Justice Parker that Justice Holland, who had<br />
jurisdiction to hear the matter, was the ideal judge in view of<br />
the seriousness of the allegations, the necessary speed with<br />
which the matter had to be dealt, and of course the deep background<br />
that the trial judge would have about the trial evidence<br />
and its materiality to the issues at hand. Shortly afterward,<br />
we received word from the chief justice that he had spoken<br />
with Justice Holland, who would see us in his chambers to discuss<br />
what this was all about. We obtained an appointment for<br />
August 17, 1988.<br />
Counsel trooped up to see Justice Holland on August 17, and<br />
he made two highly significant orders on that date, consistent<br />
with his well-known no-nonsense approach to civil disputes.<br />
First, he decided that he would not hear the merits of the motion.<br />
He would secure a judge for us who would meet with<br />
counsel to establish the rules, timetables, and schedules for the<br />
proceeding. Justice Holland went on to direct, however, that<br />
because of his knowledge and the obvious need for expedition<br />
in the process, he would assume control of the interlocutory<br />
matters arising during the pre-trial period and make himself<br />
available to deal with them as they arose. This was a very significant<br />
step taken in ensuring that we could get through the<br />
matter in a timely way.<br />
Most importantly, however, after argument on the issues of<br />
both materiality and due diligence, Justice Holland made a<br />
far-reaching production order that essentially pierced the veil<br />
of Lac’s entire trial preparation and its investigation, including<br />
its privileged materials for both.<br />
Justice Holland directed as follows:<br />
Lac Minerals Ltd. shall produce all documents, memoranda,<br />
statements and recording in its possession, control or power<br />
with respect to the question on when the information<br />
which is the subject matter of the Motion Record came<br />
to the attention of Lac, its authorized representatives or<br />
counsel.<br />
One can readily appreciate the game-changing significance<br />
of this direction. It was, of course, highly ironic that Fraser &<br />
Beatty, who had fought long, hard, and well over many years<br />
in this litigation, was not present at this motion and, according<br />
to Bruce Dunne’s affidavit evidence, had never been consulted<br />
about the issues that Lac had raised in this proceeding.<br />
This order and others that followed set off a tumultuous<br />
and chaotic two-month race to get to the finish line before our<br />
October date in the Supreme Court of Canada.<br />
<strong>The</strong> pre-trial period: August 17–September 18, 1988<br />
Justice Holland soon advised counsel that Justice Coulter<br />
Osborne had agreed to hear the matter. We met with Justice<br />
Osborne, who ordered the motion to proceed as a trial of an<br />
issue and set September 8 for commencement of the hearing.<br />
This date proved impossible in the circumstances, and<br />
Justice Osborne ultimately adjourned the trial to commence<br />
September 19, 1988.<br />
<strong>The</strong> following month of all-out activity from our perspective<br />
was in pursuit of two intertwined strategies. First, we needed<br />
to review quickly and get our heads around the production of<br />
documents that had been ordered on August 17, and particularly<br />
Lac’s files lodged at Fraser & Beatty, and all the records of<br />
the investigation to be found in many places – an investigation<br />
that had now been ongoing for more than two years. Second,<br />
we intended to and did conduct multiple examinations of<br />
witnesses on the pending motion over the course of this onemonth<br />
timeframe.<br />
To give some perspective on this task, over that next 30 days<br />
or so Justice Holland heard at least eight motions for directions<br />
and issued many orders arising out of the events that<br />
were transpiring in real time.<br />
In addition, 10 witnesses were examined; these included<br />
Edward O’Neill; Lac’s in-house counsel; Lac’s trial counsel;<br />
and Lac’s lawyer in charge of the investigation. Bruce Dunne,<br />
the detective, gave evidence over three days. He and other<br />
witnesses returned to answer questions following motions in<br />
respect of refusals and production issues that arose during the<br />
examinations. Don McKinnon and John Larche were examined<br />
by Bill Sasso.<br />
And then there was the small matter of our Supreme Court<br />
of Canada factum. We managed to get that completed, barely.<br />
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An articling student flew to Ottawa with<br />
the requisite copies and related materials,<br />
which were filed in the registry in<br />
the afternoon of August 31, 1988.<br />
What became clear as we got deeper<br />
into the weeds was that Lac Minerals<br />
had actually parked its investigation into<br />
these alleged wrongdoings as early as<br />
November 1986 and finally by February<br />
1987. Bruce Dunne’s investigative activities<br />
had continued after that point, not<br />
for Lac but rather on behalf of Scintilore,<br />
the company that had emerged as the alleged<br />
undisclosed principal for the staking<br />
Pickens had retained John Larche<br />
to carry out in December 1979. Messrs.<br />
McKinnon and Larche were represented<br />
by counsel in the Scintilore claim: Tom<br />
Dunne for Don McKinnon and Peter Atkinson<br />
for John Larche.<br />
As we began to receive the productions<br />
that had been ordered, we moved<br />
before Justice Holland to require Scintilore<br />
to produce the continued investigation<br />
material that Bruce Dunne had<br />
generated on its behalf and all materials<br />
that it had received from Lac Minerals,<br />
including the earlier investigations.<br />
Justice Holland made this order<br />
on August 31, 1988, and on the same<br />
day upon motion by them, Messrs. Mc-<br />
Kinnon and Larche were added as parties<br />
to the main action, limited strictly,<br />
however, to the issues to be litigated in<br />
the motion to set aside the trial judgment.<br />
<strong>The</strong> result of all this was that Bill Sasso<br />
was now facing three sets of counsel and<br />
massive production obligations on a realtime<br />
basis, as the examinations got<br />
underway in early September and continued<br />
down to September 18, the day<br />
before the trial started.<br />
What was of particular significance to<br />
us was that Edward O’Neill, who was<br />
the main witness put against McKinnon,<br />
was also deeply involved in the Scintilore<br />
case. He had given at least three<br />
affidavits in that case, and a couple of<br />
formal statements. We obtained those<br />
affidavits in the course of production,<br />
and it became perfectly obvious that<br />
Edward O’Neill was not a witness who<br />
had any reliability about much at all. For<br />
example, in an affidavit dated April 24,<br />
1987, O’Neill, contrary to what he swore<br />
in his affidavit in this proceeding, swore<br />
that he did in fact stake the 12 claims at<br />
issue in the winter of 1979.<br />
In a subsequent affidavit, just months<br />
later, July 24, 1987, O’Neill swore that he<br />
had not staked those claims. In various<br />
places in his interviews and affidavits,<br />
he said that he had in fact signed the application<br />
to record and that he had given<br />
Don McKinnon his authority to register<br />
the claims in the Thunder Bay mining recorder’s<br />
office.<br />
One amusing episode that emerged<br />
was an interview of Ed O’Neill by Jennifer<br />
Wells, a business reporter who had<br />
followed the Lac-Corona trial closely<br />
and had written many articles about the<br />
case. She had learned of the claims being<br />
made by Scintilore and interviewed Edward<br />
Bonaventure O’Neill for an article<br />
in the Financial Times that began:<br />
<strong>The</strong> trouble with O’Neill is that when<br />
he tells his story straight-out, he<br />
doesn’t stay on track. He admits to<br />
scamming mining companies in the<br />
past; he relishes being a “natural-born<br />
expander of the truth.” 6<br />
Mr. O’Neill described himself in this<br />
article as “Edward B**********, that’s B for<br />
Bullshitter, O’Neill.” <strong>The</strong>re were other<br />
such admissions (and contradictions)<br />
sprinkled throughout the article. We<br />
subpoenaed Jennifer Wells to come<br />
to the trial, but in the end that proved<br />
unnecessary.<br />
<strong>The</strong> real difficulty we encountered<br />
during this period was that although<br />
Justice Holland had made production<br />
orders in the broadest terms, including<br />
production of what would otherwise be<br />
privileged documents in the hands of<br />
Lac, its lawyers, and its investigators,<br />
Bill Sasso continued to take the position,<br />
including in the cross-examinations and<br />
in respect of production, that Lac was<br />
entitled to review the documents first<br />
and exclude privileged materials that it<br />
considered irrelevant. As a result, we<br />
were getting only partial production.<br />
This matter came to a head before Justice<br />
Holland in a motion on September<br />
12, 1988. Adding to the other-worldly<br />
nature of this entire proceeding, this<br />
motion was argued on the deck of Justice<br />
Holland’s country property in Caledon,<br />
where he was on holiday. Counsel<br />
drove to Caledon, outfitted in our suits,<br />
to deal with these important issues. It<br />
was a beautiful summer morning, the<br />
sun was shining, the coffee and muffins<br />
were delicious, and the views from the<br />
deck marvellous. Justice Holland on that<br />
occasion reiterated that his production<br />
orders were to be interpreted broadly<br />
and that questions of privilege and<br />
relevance were not to be predetermined<br />
by Lac or its counsel.<br />
Lac sought an expedited leave to appeal<br />
from this order, which was dismissed<br />
by Justice Douglas Carruthers.<br />
To deal with this explosive material,<br />
Justice Holland next volunteered to attend<br />
in person to review documents over<br />
which claims of privilege and relevance<br />
were being made by Lac. On two occasions<br />
in mid-September he did exactly<br />
that, convening counsel in a boardroom<br />
at Fraser & Beatty and going through<br />
documents that had been gathered up<br />
pursuant to his production orders and<br />
determining, on a document-by-document<br />
basis, what documents – including<br />
from the files and from the wide<br />
ranging investigations undertaken by<br />
Lac – should be produced. With that<br />
added assistance, we managed to get<br />
through the pre-trial proceedings, as I<br />
have said, with the last examination occurring<br />
on the day before the trial started.<br />
<strong>The</strong> trial of the issue<br />
<strong>The</strong> trial began on September 19, 1988.<br />
<strong>The</strong>re were 10 days of evidence, and the<br />
argument concluded on October 7, just a<br />
few days before the appeal was to start in<br />
Ottawa. At the conclusion of the argument,<br />
Justice Osborne reserved his decision. 7<br />
As we look back at it now, the result<br />
may seem inevitable. But at the time,<br />
nothing appeared certain. We were just<br />
trying to get through the case, dealing<br />
with witnesses and still trying to digest<br />
and understand the massive production<br />
that followed from the orders Justice<br />
Holland had issued.<br />
As its witnesses at the trial, Lac called<br />
Bruce Dunne, the detective; Michael<br />
Pickens, who ran the contract-staking<br />
outfit; and Ian Hamilton, Lac’s in-house<br />
counsel. None of them fared well.<br />
Edward O’Neill did not appear as a<br />
witness at this trial. Neither did any of<br />
Lac’s many counsel. O’Neill’s affidavit<br />
was struck from the record.<br />
Mr. Hamilton confirmed in crossexamination<br />
that Bruce Dunne had<br />
brought evidence that Lac was now<br />
relying upon to claim fraud, perjury,<br />
and collusion to Lac’s attention as early<br />
as November 1986 and with increasing<br />
detail in January and February 1987.<br />
Hamilton confirmed that they found this<br />
all interesting but not particularly relevant,<br />
since they were looking to turn<br />
up evidence with respect to the Williams<br />
property and that this evidence fell well short of that.<br />
Dunne was crystal clear in his cross-examination that in<br />
January 1987 he had reviewed with Lac and its agents the<br />
evidence contained in Lac’s affidavits on this motion, that<br />
O’Neill’s evidence conflicted with that of McKinnon, that the<br />
documents on their face supported O’Neill’s version of the<br />
facts, and that Lac was not really interested in the information.<br />
Moreover, a month later, in February 1987, Dunne brought<br />
additional documents and further information from O’Neill<br />
to the attention of Kroll (the private investigation firm), Lac,<br />
and Torys, essentially that the documents supported O’Neill’s<br />
version of the story and not McKinnon’s, and not only was he<br />
instructed not to do anything further but also that his retainer<br />
with Lac was terminated in February 1987, as was Torys’.<br />
It was at that time that Lac handed over its $8 million investigation<br />
to Scintilore, and Bruce Dunne took up the cudgels on<br />
behalf of Scintilore over the following years. Although Justice<br />
Osborne made a finding, no rational explanation was ever provided<br />
as to why nothing was done between February 1987 and<br />
August 1988, when this motion was instituted.<br />
<strong>The</strong>re was a lot of evidence, which I will not review, about<br />
a dirty tricks campaign that Dunne had orchestrated on his<br />
own account, anonymous letter writing to the Ontario Provincial<br />
Police, destruction of records, and attempts to influence<br />
journalists with false information, to provide just a sampling.<br />
Bruce Dunne had developed his own theory about what had<br />
happened in the bush, and, with a virtually unlimited budget<br />
and limited supervision, he was determined to make his theory<br />
into the truth.<br />
On the defence side, the main evidence was given by Donald<br />
McKinnon and John Larche. As I noted earlier, they had been<br />
made parties for the limited purpose of this mini-proceeding.<br />
<strong>The</strong>y had also been cross-examined as witnesses on the pending<br />
motion. At the trial, their evidence was led in chief by<br />
their counsel, Tom Dunne (for McKinnon) and Peter Atkinson<br />
(for Larche).<br />
<strong>The</strong>y were impressive witnesses, straightforward and with<br />
evidence by and large consistent with what McKinnon had<br />
said at the original trial, which was not very much at all about<br />
the issues now being ventilated.<br />
McKinnon’s evidence was that he had staked the 12 claims<br />
as he said he had in his evidence-in-chief at the Corona trial.<br />
When he had gone down to Hemlo to stake before Christmas,<br />
he had Ed O’Neill with him, but O’Neill could not keep up on<br />
account of the rugged terrain and his poor health. McKinnon<br />
had to take O’Neill back to Timmins, and he returned to complete<br />
that staking on three days, December 15, 16, and 17, with<br />
another helper.<br />
McKinnon testified it was not unusual for him to record his<br />
staking in the names of others, including Ed O’Neill. He had<br />
O’Neill’s permission to do this, and he had paid for the tags<br />
that were in O’Neill’s name on the stakes.<br />
Whatever the technicalities and legalities, this was a common<br />
practice, designed to cover his tracks from those who<br />
would otherwise monitor and follow his activities.<br />
McKinnon said that in this instance, he believed O’Neill had<br />
signed the application to record, with the details of the staking,<br />
but he could not remember with certainty. Forensic evidence<br />
obtained in the lead-up to this trial showed that the signature<br />
likely was O’Neill’s.<br />
All this was gone into in great detail in chief and in<br />
cross-examination here, but none of it had been the subject of<br />
cross-examination at the actual Corona trial.<br />
As for John Larche, he confirmed what he had reported to<br />
Pickens in January 1980. He travelled to Hemlo to stake the 12<br />
claims, met McKinnon there, satisfied himself that McKinnon<br />
had in fact staked those claims, and reported all that to Pickens.<br />
He and McKinnon made a subsequent agreement to stake<br />
additional claims in the area together, rather than competing.<br />
None of this had been a secret. <strong>The</strong>re were some differences in<br />
the details between the recollections of McKinnon and Larche,<br />
but their evidence was more or less consistent on the major<br />
points that had been brought into question by Lac.<br />
And then there was the matter of the documents, surfacing<br />
from our rummaging around in Fraser & Beatty’s files and<br />
those of all participants, the detectives, Torys, Lac itself, Bruce<br />
Dunne of course, all those who had been involved in putting<br />
Lac’s case together for the original trial, and those involved in<br />
the protracted investigation down to the commencement of the<br />
motion in August 1988.<br />
This cache was a treasure trove, as we had anticipated.<br />
Fraser & Beatty had done exactly what we expected they<br />
would. <strong>The</strong>y prepared their defence in a logical, ordered fashion,<br />
kept good records, and assessed the strengths and weaknesses<br />
of their case as the years went by. Fraser & Beatty had<br />
interviewed Donald McKinnon on no fewer than four occasions.<br />
That was three more times than we had done. Memoranda<br />
were prepared.<br />
<strong>The</strong>y had also interviewed John Larche and Michael Pickens.<br />
<strong>The</strong> memoranda showed that both McKinnon and Larche were<br />
straightforward and open in their responses to Lac and its<br />
lawyers and held nothing back.<br />
<strong>The</strong> decision<br />
In dramatic fashion, on October 11, 1988, just a few minutes before<br />
the argument was to get underway in the Supreme Court<br />
of Canada, the parties received word that Justice Osborne had<br />
released an endorsement, dismissing Lac’s motion. We were<br />
told that Justice Osborne would provide oral reasons in court<br />
in Toronto on October 14, 1988, two days following the conclusion<br />
of Lac’s appeal.<br />
On that day Justice Osborne, in his usual crisp and understated<br />
manner, went through the facts and law in a spare but<br />
powerful narrative. 8 He started with the position that Lac<br />
had taken in argument before him at the conclusion of the<br />
evidence, that there was a single issue at hand: the credibility<br />
of Donald McKinnon, and that the fresh evidence Lac was<br />
relying upon brought McKinnon’s credibility into disrepute,<br />
affecting the outcome in the original trial.<br />
In dealing with this, Justice Osborne made reference to Lac’s<br />
reply to the demand for particulars, which had raised the two<br />
specific issues about the staking of the 12 claims and the alleged<br />
collusion of the two prospectors. Osborne J observed that<br />
his task as the judge in this matter was more specific than simply<br />
determining an issue about McKinnon’s credibility. Rather,<br />
he had to decide if the specific allegations raised by Lac in its<br />
reply were material and had been made out, and what, if anything,<br />
had Lac known about them, and when.<br />
He concluded that McKinnon was not a witness who could be<br />
said to have been crucial to the trial judge’s liability conclusions<br />
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at the trial and that McKinnon had nothing whatsoever to do<br />
with the crucial meetings between Lac and Corona that had led<br />
to the trial judge’s findings.<br />
McKinnon’s relevant evidence at trial was his involvement<br />
in seeking out Mrs. Williams and that he had made an offer<br />
to purchase, and that the trial judge had concluded that the<br />
offer resulted in the finding that Corona would have acquired<br />
the Williams property but for the actions of Lac. Against that<br />
backdrop, Justice Osborne then reviewed the applicable test<br />
and the law related to the motion. His reasons made a lasting<br />
contribution to the jurisprudence by reducing the underlying<br />
principles to a series of seven enumerated propositions.<br />
Particularly important were his propositions that the onus<br />
is on the moving party to establish due diligence and that evidence<br />
cannot be stockpiled during the litigation process to<br />
be taken from inventory after an unsuccessful trial or appeal.<br />
Further, the test imposed upon the unsuccessful trial party is<br />
objective: What did the moving party know? and what ought<br />
the moving party to have known?<br />
He articulated a specific principle that delay will defeat a<br />
motion to set aside a trial judgment and that the conduct of the<br />
moving party is a relevant consideration. 9<br />
Justice Osborne then made his findings. <strong>The</strong>se included that<br />
McKinnon did not perjure himself in his examination-in-chief<br />
at trial, nor did he mislead the Court in failing to expand upon<br />
his evidence and thereby answer questions he was not asked<br />
with respect to the staking activities west of the Williams<br />
property. In that regard, the approach taken by Lac’s counsel<br />
in cross-examination at trial “led to the issues that are now<br />
before me being left twisting in the wind.” Justice Osborne made<br />
clear, however, that this decision of trial counsel was one that<br />
should not be criticized, having regard to the general lack of relevance<br />
of those inquiries to the actual issues at large in the trial.<br />
Justice Osborne placed considerable reliance on documents<br />
that existed in Fraser & Beatty’s files, including a memorandum<br />
of September 20, 1984, which in its detail showed that<br />
in interviews with Mr. McKinnon, many of the specific issues<br />
raised in this motion had been raised by McKinnon openly<br />
with Lac’s trial lawyers and could easily have been followed up.<br />
As to the later period, Lac had all the evidence it needed<br />
around the time of its appeal to the Ontario Court of Appeal.<br />
Justice Osborne made a finding that Lac was optimistic that<br />
it would succeed on its appeal and that it was only after the<br />
Court of Appeal’s reasons were released that Lac seized on<br />
the issues it now put forward. Lac’s approach and eventual<br />
actions did not conform to any reasonable definition of due<br />
diligence, the delay was excessive, and Lac had failed the<br />
due diligence test.<br />
Finally, Justice Osborne drew an adverse inference against<br />
Lac for its failure to call either Lac’s counsel at trial or Lac’s<br />
counsel in charge of its investigations related to this case and<br />
drew the inference that the evidence of these lawyers would<br />
not have been of assistance to Lac’s position.<br />
Perhaps the strongest statement made by Justice Osborne in<br />
the matter, one most indicative of his view of the case, was<br />
what he said subsequently in awarding the responding parties<br />
costs on a solicitor-client basis:<br />
<strong>The</strong> conduct of LAC and, more importantly, those retained<br />
by LAC; the failure of LAC, and those retained<br />
by LAC, to comply with production orders; the substance of<br />
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the allegations made, but not proved (particularly as related<br />
to McKinnon and Larche); and finally, LAC’s complete<br />
failure to establish the position it asserted on this motion,<br />
cause me to conclude that all responding parties are<br />
entitled to costs on a solicitor-and-client basis. 10<br />
<strong>The</strong> aftermath<br />
<strong>The</strong> Supreme Court of Canada released its decision on August<br />
11, 1989. Lac Minerals’ appeal failed. <strong>The</strong> Court reversed the<br />
courts below on the fiduciary issue and found that no fiduciary<br />
duty was owed by Lac to Corona in the circumstances of this<br />
case (3:2) but upheld the findings of the trial judge and the<br />
Court of Appeal that Lac had breached an obligation of confidence<br />
owed to Corona and reaffirmed that disgorgement was<br />
the appropriate remedy (3:2).<br />
<strong>The</strong> Williams property remained in Corona’s possession.<br />
This satisfying result brought the Lac and Corona saga to a<br />
conclusion for Alan and me. It was a case for the ages.<br />
For some of the parties central to this motion, however, litigation<br />
continued. <strong>The</strong> Scintilore action was not heard until 1999.<br />
In a scathing decision, 11 Justice Robert Sharpe dismissed all<br />
claims and allegations against Messrs. Larche and McKinnon.<br />
Justice Sharpe reviewed the McKinnon/Larche staking<br />
saga in great detail. He found both men highly credible and<br />
remarked on the consistency of their evidence in the face of<br />
multiple examinations and cross-examinations on the issues<br />
over many years.<br />
Don McKinnon continued with his interesting life during<br />
this long period of litigation. He explored and prospected<br />
using his own well-tested methods, researching and accumulating<br />
information about an area before launching what was<br />
often a massive staking program. He was a vocal advocate for<br />
the north and the northern economy and was philanthropic.<br />
He was awarded the Order of Canada in 1996. He died in<br />
Timmins on August 9, 2012, at age 82.<br />
<strong>The</strong>ir personalities were as different as night and day, but<br />
John Larche and Don McKinnon shared many traits. Larche<br />
also continued to prospect, although he and McKinnon had<br />
become wealthy from their staking of the Hemlo gold camp.<br />
Larche was a pilot and, when he could afford to do so in days<br />
past, flew small aircraft to locate areas and carry out quick<br />
strike-staking. Larche bought a refurbished iconic de Havilland<br />
Beaver aircraft with the purpose of extending his prospecting<br />
throughout Canada. In 1991, during a flight from Timmins<br />
to British Columbia, the plane struck a mountain in Alberta.<br />
Tragically, a long-time companion and fellow prospector was<br />
killed and Larche severely injured. Larche had a long recovery<br />
but lived to make substantial philanthropic contributions to<br />
northern Ontario and the town of Timmins, particularly in the<br />
health field. He was invested into the Order of Canada in 2003<br />
and died at age 84 in 2012.<br />
Justice Richard Holland retired from the bench in 1990. For<br />
years, he had managed the Toronto non-jury list from his perch<br />
in Courtroom 4-6 at 361. He needed one tool only, which he<br />
wielded mercilessly: no adjournments. <strong>The</strong>re was a moment in<br />
any trial presided over by Justice Holland, a moment of high<br />
drama, when he would swivel his chair and face his considerable<br />
presence fully into the witness. (He actually did this because<br />
he had a surgically fused neck.) This was credibility<br />
time: taking the measure of a key witness. With Murray Pezim<br />
in the box, it was a memorable moment.<br />
Dick Holland became an early advocate<br />
for mediation, was a founder of ADR<br />
Chambers, and was in great demand as<br />
a mediator over many years. He suffered<br />
from chronic health issues and passed<br />
away in 2002.<br />
Murray Pezim was the stereotypical<br />
stock promoter: a telephone on each ear<br />
and touting his latest can’t miss opportunity<br />
– which is exactly what he was<br />
doing when I first met him. But of course<br />
there was more to it. It was said about<br />
Murray that the worst thing that ever<br />
happened to him was that he found a<br />
gold mine, and that was true in a way.<br />
He had lost his stake in Corona long<br />
before the case was concluded. But from<br />
the start, he felt deeply betrayed by Lac<br />
Notes<br />
1. McCarthy & McCarthy’s Douglas Laidlaw had been retained in March<br />
1983, on the eve of a second motion for summary judgment Lac Minerals<br />
was bringing. Doug asked me to help. <strong>The</strong>re were five or six of us who<br />
worked with Doug on the many briefs that came to him at the firm. While<br />
we were all busy developing our own practices, we leapt at these chances<br />
to work with Doug. I was 39 when the case first came in the door. Doug<br />
was killed in August 1984 by a doped-up driver in a horrible accident. I<br />
asked my friend and squash partner Alan Lenczner to team up, and the<br />
client stuck with us. Alan was three years my senior at the bar, but we’re<br />
about the same age. And on we went.<br />
2. It should be remembered that these arguments were playing out more than<br />
35 years ago. <strong>The</strong> Supreme Court of Canada in Bhasin v Hrynew, 2014<br />
SCC 71, resolved the debate almost 25 years later by importing duties of<br />
good faith into contract negotiations and the performance of contractual<br />
obligations. It is certainly arguable on the basis of the jurisprudence that<br />
has followed Bhasin that introducing these broad duties into contractual<br />
relations has brought with it many of the uncertainties and lack of<br />
predictability that the courts heard about in the arguments in Lac Minerals<br />
v Corona.<br />
3. Glatt v Glatt, [1937] SCR 347.<br />
4. 100 Main Street East Ltd. v Sakas (1975), 8 OR (2d) 385 (CA).<br />
5. This attendance had an eerie similarity to an earlier one before Parker<br />
CJC in the fall of 1985 by us and Lac’s trial counsel when the parties<br />
were seeking the appointment of a trial judge. Chief Justice Parker on that<br />
occasion said he would make no promises, but he invited the parties to<br />
each submit a list of six trial judges with whom they’d be content, and he<br />
would take it from there. As it turned out, Justice R.E. Holland was on both<br />
lists and was duly appointed the trial judge. <strong>The</strong> psychology and reasoning<br />
behind these choices is a fascinating story in itself, for another day.<br />
Minerals’ conduct, in the handshake<br />
world of those times, and he was the<br />
force that kept us going while we developed<br />
the equitable arguments that<br />
eventually carried the day.<br />
I got to know Murray well over those<br />
years, and it was no surprise to me that<br />
Justice Holland found him to be a credible<br />
witness. Murray had many health<br />
issues in subsequent years and died of a<br />
heart attack in November 1998.<br />
Lac Minerals soldiered on, much<br />
diminished, following its defeat and<br />
was eventually acquired by Barrick Gold<br />
Corporation in 1995.<br />
In 1992, during a period of low gold<br />
prices and rising costs, International<br />
Corona was acquired by Homestake<br />
Mining Company, the US gold-mining<br />
6. <strong>The</strong> Financial Times, week of May 8, 1988.<br />
giant. Homestake secured ownership of<br />
Corona’s Hemlo gold property and the<br />
Williams mine.<br />
In 2001, Homestake merged with Barrick<br />
Gold Corporation, and Barrick took<br />
over Homestake’s Hemlo assets, including<br />
the Williams mine. Barrick continues<br />
to operate the Williams mine, which has<br />
to date produced more than 20 million<br />
ounces of gold and is still going strong.<br />
In 1992, Alan and I, with our friends<br />
and colleagues Michael Royce, Glenn<br />
Smith, and Peter Griffin, founded our<br />
firm. We continued to practise in harmony<br />
and with immense enjoyment for<br />
almost 30 more years. Corona, and one<br />
other case, were the only two briefs<br />
where Alan and I worked together over<br />
all the years.<br />
7. As I was drafting this article, the news of Coulter Osborne’s death at age<br />
88 rocketed around the profession. Over the course of a long and varied<br />
career, Coulter asserted a deep and lasting influence over the administration<br />
of justice in Ontario, from the inquiries and reform initiatives he led to the<br />
jurisprudence he authored. To me, however, his greatest quality was as a<br />
listener. He listened. And it was clear to counsel, and most importantly to<br />
clients, that he was listening and that he heard the pleas being made. He<br />
showed that quality in this case, maintaining an even hand and demeanour<br />
(with only one or two notes of incredulity). As well as listening, he also<br />
understood and, ultimately, expressed his opinions – in decisions, at<br />
mediation, and in reports – in straightforward language: logical, clear, and<br />
always very difficult to argue with, just as he did here.<br />
8. International Corona Resources Ltd. v Lac Minerals Ltd. (1988), 1988<br />
CarswellOnt 870, 66 OR (2d) 610, 54 DLR (4th) 647 (HCJ).<br />
9. This principle has stood the test of time. In 2008, Monique Jilesen and I<br />
succeeded for our client, the Government of Canada, following a lengthy<br />
trial, in setting aside the decision of a trial judge on the grounds of the<br />
fraud and perjury of the plaintiff. In that case, fraudulent letters were<br />
introduced into the record over a period of years, supporting the liability of<br />
the government to the tune of many millions in damages. <strong>The</strong> trial judge,<br />
Lederer J, applied the seven principles laid down by Justice Osborne. See<br />
Canada v Granitile Inc. (2008), [2008] OJ No. 4934, 172 ACWS (3d)<br />
1047, 302 DLR (4th) 40 (SCJ).<br />
10. International Corona Resources Ltd. v Lac Minerals Ltd. (1988),<br />
1988 CarswellOnt 870, 66 OR (2d) 610, 54 DLR (4th) 647 (HCJ),<br />
Supplementary Reasons, November 8, 1988.<br />
11. Scintilore Explorations Ltd. v Larche (1999), [1999] OJ No 2847, 48 BLR<br />
(2d) 248 (SCJ).<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 19
EVIDENCE AND ADVOCACY<br />
Judicial notice<br />
in the misinformation age<br />
“My friend submits that we have not proven<br />
that COVID-19 is a pandemic.”<br />
<strong>The</strong> authors thank Sneha Ajai, an articling student at Osler,<br />
Hoskin & Harcourt LLP, for her able assistance.<br />
Judicial notice is a rule of evidence that was developed long<br />
before the typewriter; 1 it allows a judge to make a finding of<br />
fact without any evidence of that fact. It is a powerful rule<br />
and the “only exception to the general rule that cases must be decided<br />
on the evidence presented by the parties in open court.” 2<br />
Judicial notice is justified, particularly as we emerge from a<br />
pandemic that has increased backlogs in the courts. 3 Judicial<br />
notice “expedites the process of the courts, creates uniformity<br />
in decision-making and keeps the courts receptive to societal<br />
change.” 4 It is “a functional doctrine designed to promote an<br />
efficient and sensible trial process.” 5<br />
Erin Pleet and Mary Paterson<br />
Judicial notice is a powerful rule because it permits findings<br />
of fact that are not grounded in admissions, nor proven through<br />
testimony provided under oath, nor tested by cross-examination. 6<br />
<strong>The</strong> very power of judicial notice has two consequences:<br />
1. <strong>The</strong> threshold for judicially noticing a fact is “strict” 7 or<br />
“high”; 8 and<br />
2. <strong>The</strong> parties should have the opportunity to make<br />
submissions on whether it is appropriate for the judge to<br />
judicially notice the fact. 9<br />
<strong>The</strong> doctrine of judicial notice has had to grapple with the<br />
“democratization” of information. Once more limited and<br />
homogeneous, there is now a plurality of reliable sources for<br />
information as well as a plurality of voices in the judiciary and<br />
legislative branches of government, each contributing to and<br />
relying on “notorious” knowledge. <strong>The</strong> number of sources<br />
properly considered “indisputable” has grown, and these<br />
sources are now readily available online to any interested person.<br />
However, as in any democratic system, while many voices<br />
may provide comfort, the majority is not always right, and we<br />
must vigilantly protect against misinformation.<br />
At its core, judicial notice is appropriate only for facts that<br />
are beyond controversy. In this article, we explore how the<br />
traditional doctrine of judicial notice withstands the age of<br />
fake news and misinformation in which we now live courtesy<br />
of the internet. We then consider how courts have handled<br />
judicial notice of the developing science of COVID-19.<br />
Traditional judicial notice<br />
<strong>The</strong> courts have translated the first requirement for judicial<br />
notice – a strict/high threshold – into a more tangible test by<br />
identifying two types of facts that can properly be judicially<br />
noticed because they are likely to be beyond controversy:<br />
1. notorious facts that are “so notorious or generally accepted<br />
as not to be the subject of debate among reasonable<br />
persons”; and<br />
2. immediately demonstrable facts that are “capable of immediate<br />
and accurate demonstration by resort to readily accessible<br />
sources of indisputable accuracy.” 10<br />
<strong>The</strong> courts have then qualified these two categories by explaining<br />
that questions of fact are on “a spectrum that runs<br />
from those that are central to or dispositive of an issue, at<br />
one end, to those that ‘merely paint the background to a<br />
specific issue.’” 11 As the fact becomes more central to the case,<br />
the test for judicial notice becomes more<br />
“pressing” or strict. 12<br />
Notorious facts<br />
<strong>The</strong> case law demonstrates that determining<br />
whether a fact is sufficiently notorious<br />
to be judicially noticed is not an<br />
easy task and, as we explore below, has<br />
become even more complex in the age<br />
of the internet. Ignoring the internet for<br />
the moment, determining which facts are<br />
sufficiently notorious requires the judge<br />
to consider:<br />
1. whether the fact is merely within<br />
the judge’s personal knowledge or<br />
is actually notorious and widely<br />
known; 13<br />
2. whether the fact is notorious within<br />
the parties’ industry (in a business<br />
dispute 14 ), geography (if location<br />
matters 15 ), community (i.e., general<br />
farming facts in a rural community 16 ),<br />
or other similar context; 17 and<br />
3. whether the “fact” remains subject<br />
to dispute among reasonable persons<br />
(i.e., certain investment strategies<br />
that were generally, but not universally,<br />
accepted 18 ).<br />
Given the high bar for taking judicial<br />
notice, courts and counsel should look<br />
to other rules of evidence to prove facts<br />
before resorting to judicial notice. For<br />
example, the public documents exception<br />
to the hearsay rule (that a public document<br />
may be proffered for the truth of its<br />
contents, as it is impractical to otherwise<br />
present this evidence, and public servants<br />
are expected to perform their duties with a<br />
degree of diligence and care), 19 or section<br />
25 of the Ontario Evidence Act (which<br />
states that official government documents<br />
“shall be admitted in evidence to<br />
prove the contents thereof”), 20 may lead<br />
to the desired factual conclusion with<br />
less controversy.<br />
Immediately demonstrable facts<br />
Similarly, as the case law shows, determining<br />
whether a fact is immediately<br />
demonstrable enough to be judicially noticed<br />
bumps up against expert evidence<br />
and the expansion of scientific knowledge.<br />
Conceptually, a fact that must be proven<br />
through expert evidence “is by definition<br />
neither notorious nor capable of immediate<br />
and accurate demonstration.” 21<br />
But as the scientific process transforms<br />
hypotheses to theories to indisputable<br />
facts, the amount of information contained<br />
in readily accessible sources of<br />
indisputable accuracy that we can immediately<br />
access and accurately understand<br />
grows. This growth also leads to<br />
changes, even reversals, of what we previously<br />
thought of as fact. For decades,<br />
a judge could have judicially noticed<br />
that Pluto is the ninth planet orbiting the<br />
sun; now, she cannot. 22<br />
As with notorious facts, the internet<br />
complicates how we think about immediately<br />
demonstrable facts. Determining<br />
which facts are immediately demonstrable<br />
requires the judge to consider:<br />
1. whether the source is of indisputable<br />
accuracy (traditionally reputable<br />
dictionaries, almanacs, reference<br />
texts); 23 and<br />
2. whether the “fact” is objective and<br />
knowable with certainty (i.e., a geographic<br />
fact such as the location of<br />
an intersection). 24 If the “fact” is<br />
more subjective, for example, hockey<br />
strategy, it should not be judicially<br />
noticed unless it is peripheral to the<br />
issues in the case. 25<br />
All these indicia are complicated by<br />
the fact that, as the Supreme Court of<br />
Canada pointed out, “what ‘everybody<br />
knows’ may be wrong.” 26 As we continue<br />
to understand how unconscious bias and<br />
other neural shortcuts impact our thinking,<br />
counsel must be rigorous in how we<br />
approach judicial notice. That said, from<br />
a procedural fairness perspective, many<br />
(maybe all) of the dangers associated<br />
with judicial notice are mitigated by the<br />
courts, giving the parties the opportunity<br />
to make submissions on whether the<br />
judge can or should judicially notice a<br />
particular fact.<br />
Judicial notice and the internet<br />
<strong>The</strong>se days, courts are more willing to<br />
take judicial notice of scientific and technical<br />
facts, considering such facts to be<br />
more ubiquitous knowledge than even<br />
a few years ago. 27 This willingness goes<br />
hand in hand with an increased comfort<br />
with the internet. As our society has become<br />
used to settling our dinner-table<br />
debates with our smartphones, judges<br />
have become comfortable with accessing<br />
the wealth of scientific and technical<br />
knowledge available online from the<br />
comfort of their chambers. 28 And just<br />
as those dinner-table debates can show,<br />
the quality of information found in the<br />
corners of the internet runs the gamut.<br />
It is now accepted that judges can take<br />
judicial notice of facts found on certain<br />
websites. In both traditional and internet<br />
cases, the focus is on whether the fact is<br />
truly indisputable. However, unlike the<br />
Encyclopedia Britannica (now available<br />
exclusively online 29 ), the information on<br />
the internet ranges from the carefully<br />
validated to fake news. Some courts have<br />
considered:<br />
1. whether the information comes from<br />
an official website of a well-known<br />
organization;<br />
2. whether the information is capable<br />
of being verified; and<br />
3. whether the source is disclosed so<br />
that the objectivity of the person or<br />
organization posting the material<br />
can be assessed. 30<br />
Even if we apply this rubric, judicial<br />
notice using the internet leads to a<br />
heightened concern about trial fairness,<br />
such that the best practice is to give the<br />
parties the chance to make submissions.<br />
This heightened concern applies even<br />
to what we might consider one of the<br />
most indisputable facts in this era of internet<br />
and technology: maps of Earth.<br />
Though doing so may meet the test set<br />
out above, whether it is appropriate to<br />
use Google Maps or Google Earth for<br />
geographic facts depends on the indisputability<br />
and importance of the fact.<br />
For example, the Superior Court has<br />
used Google Earth to take judicial notice<br />
of the location of an intersection. 31 In another<br />
decision, the Court of Appeal for<br />
Ontario saw no error in the trial judge<br />
using Google Maps to ascertain the<br />
travel time between locations. 32 A more<br />
aggressive use of geographic judicial<br />
notice saw a judge using Google Maps,<br />
along with the judge’s long history of<br />
living in Ottawa, to find facts relating<br />
to the general frequency of swimming<br />
pools in the neighbourhood. 33<br />
Interestingly, these cases do not discuss<br />
for what facts Google Maps is an indisputably<br />
accurate source. We accept<br />
that it is indisputably rare for an intersection<br />
to move. But the travel time<br />
between locations depends on traffic<br />
conditions. Travel times in rush hour are<br />
usually (but we can’t say always) longer<br />
than travel times early Sunday morning.<br />
Even adjusting for the time, 34 traffic patterns<br />
are impacted by construction and<br />
accidents. Google Maps does not record<br />
travel times for particular days at particular<br />
times. Nonetheless, in Calvert,<br />
the Court of Appeal suggests that it was<br />
appropriate to use Google Maps to<br />
20 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 21
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estimate travel time because the issue of judicial notice was put<br />
to the parties. 35<br />
However, in R v Ghaleenovee, the judge took judicial notice<br />
too far. <strong>The</strong> judge used an image from Google Street View to<br />
make an adverse credibility finding against the accused. <strong>The</strong><br />
accused said that he had cut his hand on a fence outside a<br />
club, not in the assault as alleged by the Crown. <strong>The</strong> trial judge<br />
searched for the Street View of the club, which showed a fence.<br />
Based on that image, the judge concluded that it would not<br />
be easy to get a cut from that type of fence. <strong>The</strong> image was<br />
not put to the accused. 36 <strong>The</strong> appeal court concluded that the<br />
trial judge had erred, explaining: “Checking indisputable facts<br />
[on the internet] is one thing. Conducting an investigation and<br />
drawing inferences – especially without giving the parties an<br />
opportunity to respond – is another.” 37<br />
As an aside, Google Street View shows the most recent image<br />
that was captured, 38 although you can look at earlier images<br />
through Street View history. 39 Did the image of the fence outside<br />
the nightclub the date of the Street View image show the<br />
same fence as the night of the altercation? This question could<br />
have been canvassed had the image been put to the parties.<br />
Courts have also taken judicial notice of geographic facts<br />
using GPS technology. In R v Snache, 40 the court took judicial<br />
notice of cellphone GPS location data. <strong>The</strong> defence argued that<br />
the Crown must establish the reliability of the GPS location<br />
data before it could have any evidentiary value. <strong>The</strong> court disagreed,<br />
citing the everyday use of GPS, including using Waze<br />
to find the quickest route and using AirTags to track luggage.<br />
<strong>The</strong> court held:<br />
In my view, the accuracy and reliability of GPS location<br />
data is now so notorious and accepted that it is not seriously<br />
disputed among reasonable people. That is not<br />
to say that it is capable of pinpointing the exact location<br />
of a cell phone. It has its limitations and may, of course,<br />
be impacted by atmospheric conditions and signal<br />
blockage. It may also be impacted if the receiver in use is<br />
malfunctioning. 41<br />
That said, the GPS data was not the only location evidence on<br />
which the court relied to convict the accused. <strong>The</strong>re was other<br />
evidence of the accused’s location, such that the judge was comfortable<br />
taking judicial notice of the cellphone GPS data.<br />
Perhaps one step further than the everyday uses of GPS, in<br />
Telus Communications Inc v Vidéotron Ltée, 42 though the parties<br />
did not tender evidence regarding what electromagnetic waves<br />
are or exactly how they are used by mobile phones, the court<br />
found it was a notorious fact among the general public that<br />
mobile phone technology requires the use of electromagnetic<br />
waves of various frequencies. 43 While we wonder whether the<br />
general public could explain that mobile phones use electromagnetic<br />
waves, we note that the parties in Telus (telecommunications<br />
companies) no doubt found it notorious, and a<br />
quick online search confirms this is true. 44<br />
What are the limits on the web-sleuthing a trial judge can<br />
do? Although the internet has given us more examples of inappropriate<br />
judicial notice, 45 the core limits remain true: Is the<br />
fact sufficiently notorious or immediately demonstrable to be<br />
indisputably true?<br />
In R v Balen, 46 a key witness to a car accident described the<br />
driver’s tracksuit as “K-way.” 47 <strong>The</strong> trial judge used Google<br />
to confirm that K-way manufactured tracksuits, writing in her<br />
reasons: “K-way manufactures tracksuits. (Note: Google search<br />
June 15, 2011).” 48 This Google research was not put to the parties.<br />
<strong>The</strong> appeal court allowed the appeal because the tracksuit<br />
was critical in identifying the accused, the fact judicially noticed<br />
was not indisputably accurate, and it was not clear if<br />
the judge’s online research considered Canadian distribution,<br />
types of fabric, or colours of the tracksuit. Further, the defence<br />
was not given the opportunity to respond to the “extra-curial<br />
evidence.” 49<br />
Similarly, in R v J.M., 50 the Court of Appeal for Ontario overturned<br />
a sexual assault conviction based on improper taking<br />
of judicial notice. <strong>The</strong> defence argued that the complainant<br />
was not credible because she did not distance herself from her<br />
abuser and she did not fight back. <strong>The</strong> trial judge rejected this<br />
argument in part based on social science research described in<br />
a Scientific American magazine article that the trial judge found<br />
online. <strong>The</strong> article was not provided to either party.<br />
<strong>The</strong> Court of Appeal noted that Scientific American is a popular<br />
science magazine. <strong>The</strong> 2017 article at issue was written by a<br />
journalist who specialized in psychology and behaviour, summarizing<br />
a 2017 Swedish study of female rape survivors who<br />
reported that they did not fight back. <strong>The</strong> Court of Appeal<br />
found that using the article exceeded the proper limits of judicial<br />
notice: “[<strong>The</strong> trial judge’s] reasons disclose that he relied<br />
on the article as a source of expert evidence that was not properly<br />
before the court to assess the veracity of the complainant.”<br />
51 <strong>The</strong> fact was therefore not immediately demonstrable.<br />
In addition, the Crown conceded that it was an error for the<br />
trial judge to refer to this article without canvassing counsel,<br />
as it breached procedural fairness.<br />
As these cases show, it is fair game for a judge to take judicial<br />
notice of information on the internet, so long as the accuracy<br />
of the source is rigorously considered and the parties have<br />
the chance to make submissions on the appropriateness of<br />
judicial notice.<br />
<strong>The</strong> threshold for taking judicial notice can and should be<br />
high. As alluded to in J.M., there is an analogy to be drawn<br />
to expert evidence. For a while, courts showed extraordinary<br />
deference to expert evidence. It took the revelations of Dr.<br />
Charles Smith’s problematic expert testimony and the consequent<br />
Goudge Inquiry to remind us that an adversarial system<br />
requires a skeptical approach to evidence, even (especially)<br />
expert evidence. 52 Taking judicial notice of online information<br />
runs the risk of circumventing the now more rigorous rules relating<br />
to expert evidence. Judicial notice can be a door through<br />
which inadmissible evidence sneaks into the record. A strict<br />
threshold for judicial notice is the best safeguard.<br />
As set out below, the COVID-19 pandemic gave us many examples<br />
in which courts took (or failed to take) a strict approach<br />
to judicial notice, highlighting the risks of misinformation on<br />
the internet.<br />
Judicial notice and COVID-19<br />
<strong>The</strong> COVID-19 pandemic put the law of judicial notice under<br />
a spotlight. Courts were not being asked to take judicial notice<br />
of historical facts; 53 rather, the judiciary was living the<br />
COVID-19 pandemic along with the parties appearing before<br />
it. COVID-19 became immediately relevant to many areas of<br />
law, including civil liberties, 54 commercial law, 55 labour and<br />
Because judicial notice “keeps the<br />
courts receptive to societal change,” 59<br />
courts were asked to take judicial notice<br />
of COVID-19 facts almost immediately.<br />
In a criminal law appeal heard in<br />
April 2020 (one month after lockdown),<br />
the incarcerated appellant argued that<br />
the pandemic had rendered his sentence<br />
unfit, as jails were not designed<br />
to maintain inmates’ safety during<br />
the pandemic. 60 <strong>The</strong> Crown argued that<br />
the appellant did not provide evidence<br />
of the pandemic’s effect in jails.<br />
While the Court of Appeal determined<br />
that it did not need to go so far as to judicially<br />
notice the pandemic’s impact on<br />
jails to decide the appeal, the court “[did]<br />
believe that it falls within the accepted<br />
bounds of judicial notice for us to take<br />
into account the fact of the COVID-19<br />
pandemic, its impact on Canadians generally,<br />
and the current state of medical<br />
knowledge of the virus, including its<br />
mode of transmission and recommended<br />
methods to avoid its transmission.” 61<br />
This decision set the stage for a slew of<br />
cases where courts took judicial notice<br />
of COVID-19–related facts.<br />
In a November 2020 family law case,<br />
L.M.S. v J.D.S., 62 the parties agreed the<br />
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mother and children could move to<br />
Arizona, with the father remaining in<br />
Alberta. <strong>The</strong> father wanted them to wait<br />
to move until after the pandemic had<br />
passed. <strong>The</strong> Court held that it could judicially<br />
notice that COVID-19 was a global<br />
pandemic, and that “our own public<br />
health officials have provided us with<br />
commonly-accepted precautions to avoid<br />
contracting COVID (wearing a mask,<br />
keeping distanced whenever possible,<br />
reducing contacts, washing hands).” But<br />
the father also asked the judge to judicially<br />
notice that Cochrane, Alberta, was<br />
safer than Phoenix or Scottsdale, Arizona,<br />
from the perspective of COVID-19<br />
risk. <strong>The</strong> judge refused, saying: “I am<br />
not accepting or rejecting any particular<br />
theory about the virus or its spread but<br />
I cannot take judicial notice of anything<br />
that is not so widely accepted as fact so<br />
as to be beyond discussion.” 63<br />
COVID-19 vaccines also became a<br />
battleground for judicial notice. In<br />
Khodeir v Canada (Attorney General), 64 the<br />
applicant sought judicial review of the<br />
federal government’s requirement that<br />
all its employees be vaccinated against<br />
COVID-19. <strong>The</strong> Attorney General sought<br />
to have the application struck at an<br />
1-866-314-7335 cbafuturecare.com<br />
employment law, 56 criminal law, 57 and family law. 58 THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 25<br />
early stage, as the applicant’s central<br />
thesis was that the COVID-19 virus did<br />
not exist. <strong>The</strong> Attorney General asked<br />
that the court take judicial notice that<br />
COVID-19 exists.<br />
Even though this fact was central to<br />
the dispute, the Federal Court agreed to<br />
take judicial notice that COVID-19 exists.<br />
It was January 2022, almost two years<br />
into the pandemic. In considering the<br />
notoriety of the information, the Federal<br />
Court noted that a fact does not become<br />
indisputable by mere repetition: “One<br />
must consider channels through which<br />
the information is conveyed, scrutinized<br />
and exposed to criticism, and the fact<br />
that these channels operate in a society<br />
based on freedom of discussion.” 65 Here,<br />
the scientific knowledge of COVID-19<br />
was subject to intense public scrutiny.<br />
Given this thorough public debate, “it<br />
is unimaginable that any actual scientific<br />
debate about these basic facts would<br />
have escaped public attention.” 66<br />
COVID-19 vaccines were hotly contested<br />
in family law cases, as parents disagreed<br />
about whether their children<br />
should receive the vaccine. <strong>The</strong> courts<br />
took judicial notice of the COVID-19<br />
pandemic, that the COVID-19 virus kills,<br />
24 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL
Time & Fees<br />
and that the Pfizer vaccine was not experimental and was<br />
deemed safe and effective for children 5–11 and 12–17. 67 Some<br />
lower courts even took judicial notice of the fact that being<br />
vaccinated against COVID-19 is in the best interests of a child,<br />
unless there is a compelling reason not to be 68 (although this<br />
appears to be a legal conclusion rather than a fact).<br />
<strong>The</strong> Court of Appeal for Ontario addressed judicial notice<br />
and pediatric vaccination in J.N. v C.G. 69 <strong>The</strong> parents were<br />
unable to resolve whether their two younger children should<br />
be vaccinated against COVID-19. Neither parent retained an<br />
expert. Rather, the father, who sought vaccination, filed printouts<br />
from Health Canada and the Canadian Paediatric Society’s<br />
websites, both recommending children be vaccinated against<br />
COVID-19. <strong>The</strong> mother filed printouts from the websites “Total<br />
Health” and “Contagion Live,” which contained references<br />
to various supposed doctors and other “experts” who were<br />
skeptical of the COVID-19 vaccine.<br />
<strong>The</strong> lower court motion judge sided with the mother. He refused<br />
to take judicial notice of the safety and efficacy of the vaccine<br />
because, in his view, the available information was a “moving<br />
target” and because there was “no consensus or consistency”<br />
as to safety and effectiveness. He reasoned that given Canada’s<br />
history of forced sterilization of Inuit women, residential schools,<br />
Japanese internment camps during World War II, Motherisk, and<br />
the Thalidomide tragedy, courts should be reluctant to “take judicial<br />
notice that the government is always right.” 70<br />
On appeal, the Court of Appeal for Ontario noted that<br />
while the motion judge did not expressly qualify the mother’s<br />
printouts as expert evidence, he essentially treated them<br />
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as such. For example, the motion judge referred to a doctor<br />
quoted in one article as an “equally competent and credible<br />
medical professional.” 71 <strong>The</strong> Court of Appeal concluded that<br />
the mother’s evidence was insufficient to cast doubt on certain<br />
indisputable facts of COVID-19, and that judicial notice<br />
provides needed efficiencies in resolving family law vaccination<br />
disputes:<br />
I would also note that there is no question that: 1) there is<br />
a COVID-19 pandemic; 2) this disease kills people, including<br />
children; and 3) the vaccines available to Canadians,<br />
including children ages 5 and older, have received regulatory<br />
approval. <strong>The</strong> problem, apart from the question of<br />
judicial notice, is that it is simply unrealistic to expect parties<br />
to relitigate the science of vaccination, and legitimacy<br />
of public health recommendations, every time there is a<br />
disagreement over vaccination. 72<br />
<strong>The</strong> motion judge had relied on some of the lower court case<br />
law which had refused to take judicial notice of Health Canada’s<br />
recommendations, on the basis that “[j]udicial notice<br />
cannot be taken of expert opinion evidence.” 73 <strong>The</strong> Court of Appeal<br />
had two responses. First, the court pointed out alternative<br />
evidentiary routes besides taking judicial notice, to support<br />
the finding that the vaccine was approved, and that approval<br />
indicated its safety and effectiveness. <strong>The</strong> public documents<br />
exception to the hearsay rule could permit the court to accept<br />
Health Canada’s approval as proof of the fact that the vaccine<br />
was approved (along with other statements made by Health<br />
Canada). 74 <strong>The</strong> Court of Appeal also referenced section 25 of<br />
the Evidence Act to support that official government documents<br />
are admissible for proof of their contents. 75<br />
As neither of those routes had been pursued by the parties<br />
before the motion judge, the Court of Appeal focused on judicial<br />
notice, highlighting the power of judicial notice and its<br />
limits. <strong>The</strong> Court of Appeal was careful not to find as a fact<br />
that the vaccine is safe and effective. Rather, the court said:<br />
“[J]udicial notice should be taken of regulatory approval, and<br />
regulatory approval is a strong indicator of safety and effectiveness.”<br />
<strong>The</strong> consequence, the court explained, was to put the<br />
onus “on the objecting party to show why the child should<br />
not receive that medication.” 76 In this case, the objecting party<br />
had not provided any admissible evidence showing why, from<br />
a medical perspective, the two younger children should not<br />
receive the vaccines. 77<br />
Plus ça change, plus c’est la même chose<br />
<strong>The</strong> principles limiting judicial notice, as a rule of evidence,<br />
have remained the same despite the proliferation of easyto-access<br />
information (and misinformation) at our fingertips.<br />
<strong>The</strong> case law reviewed above shows that judges’ decisions are<br />
being overturned for improperly taking judicial notice of facts<br />
sourced from the internet. In our view, we do not need to overhaul<br />
judicial notice as a rule of evidence if we remember the<br />
strict and high threshold that limits judicial notice to facts that<br />
are truly notorious or immediately demonstrable.<br />
Done properly, judicial notice fosters efficiency and promotes<br />
confidence in the administration of justice, especially<br />
by allowing courts to react to real-time pervasive events such<br />
as the COVID-19 pandemic. <strong>The</strong> public may have difficulty<br />
trusting courts if courts require litigants to prove notorious<br />
facts or if the courts prefer the parties’ inadmissible evidence to<br />
notorious or indisputable facts. 78 Given the wholesale change<br />
in our collective access to and attitude toward information,<br />
Notes<br />
1. <strong>The</strong> oldest case on CanLII to reference judicial notice is Hasluck v McMaster,<br />
1835 CanLII 62 (NB KB); according to Google, the typewriter was first patented<br />
in the US 33 years later, in 1868. We can make this factual statement<br />
because, at least in the endnotes, we choose not to be bound by the strict<br />
parameters for judicial notice.<br />
2. R v J.M., 2021 ONCA 150 at para 31(i) (J.M.).<br />
3. George R Strathy, Chief Justice of Ontario, “Ontario Has One of the Best<br />
Justice Systems in the World … and We Can Make It Even Better” (31<br />
August 2022) (https://www.ontariocourts.ca/coa/about-the-court/<br />
publications-speeches/cjo-strathy-speech-justice-system/).<br />
4. John Sopinka, Sidney N Lederman, and Alan W Bryant, <strong>The</strong> Law of Evidence<br />
in Canada, 6th ed (Toronto: LexisNexis, 2022), § 19.02 at para 19.25 (Sopinka).<br />
5. David M Paciocco, “Proof and Progress: Coping with the Law of Evidence<br />
in a Technological Age” (2013) 11 Can. J. L. & Tech. 181 at 188.<br />
6. J.M., supra note 2 at para 31(iii); R v Find, 2001 SCC 32 at para 48 (Find).<br />
7. J.M., supra note 2 at para 31(iv); Find, supra note 6 at para 48.<br />
8. Sopinka, supra note 4,§ 19.02 at para 19.25.<br />
9. Sopinka, supra note 4, § 19.02 at para 19.78; J.M., supra note 2 at para 38.<br />
For brevity, we will not explore the concept of ‘tacit judicial notice’ (i.e.,<br />
when a judge draws on “common sense” to interpret or understand the<br />
evidence presented at trial. Nor will we explore “contextual judicial notice”<br />
(i.e., when a judge considers the background or frame of reference in which<br />
the facts of the case are situated). We will instead pretend that the parties<br />
receive the opportunity to make submissions on whether it is appropriate<br />
for the judge to judicially notice the fact, moving the judicial notice out of<br />
the world of the tacit or contextual.<br />
10. Find, supra note 6 at para 48; J.M., supra note 2 at para 31(v).<br />
11. R v Spence, 2005 SCC 71 at para 61 (Spence); J.M., supra note 2 at para 33.<br />
12. J.M., supra note 2 at para 33. <strong>The</strong> literature makes a distinction between<br />
“adjudicative facts,” which relate to the immediate parties; “legislative<br />
facts,” which relate to the policy that drives interpreting and developing<br />
the common law; and “social facts,” which relate to current social realities<br />
that should inform the legislative facts: Elizabeth F Judge, “Curious Judge:<br />
Judicial Notice of Facts, Independent Judicial Research, and the Impact of<br />
the Internet,” in Todd L Archibald et al., eds, Annual Review of Civil Litigation<br />
(Toronto: Thomson Reuters, 2012), 325 at 334–36 (Judge). <strong>The</strong> analysis for<br />
judicial notice applies to all types of facts although legislative and social<br />
facts are less likely to be central to the disposition of the case.<br />
13. J.M., supra note 2 at para 34; Sopinka, supra note 4, § 19.02 at para 19.59.<br />
14. See, e.g., Telus Communications Inc v Vidéotron Ltée, 2021 FC 1127 at para 5<br />
(Telus).<br />
15. <strong>The</strong> City of Edmonton is located in the Province of Alberta: R v Korah, 2011<br />
ABPC 344 at para 8.<br />
16. In Saskatchewan, “grain farming is a six month engagement, saving hauling<br />
grain and farm repairs”: Olfert v Olfert, 2012 SKQB 301 at para 74.<br />
17. Sopinka, supra note 4, § 19.02 at para 19.28.<br />
18. Authorson (Litigation Administrator of) v Canada (Attorney General) 2007<br />
ONCA 501 at para 153, leave to appeal dismissed 2008 CanLII 1388 (SCC).<br />
19. See R v A.P., 1996 CanLII 871 (ONCA).<br />
20. Evidence Act, RSO 1990, c E.23, s 25.<br />
21. Find, supra note 6 at para 49; Sopinka, supra note 4, § 19.02 at para 19.54.<br />
22. Sopinka, supra note 4, § 19.02 at para 19.28: “Also, what facts are judicially<br />
noticeable may change over time.” See also Khodeir, infra note 43 at para 26:<br />
“Courts are nevertheless mindful that there is disagreement about some<br />
aspects of scientific knowledge. <strong>The</strong>y are careful not to take judicial notice<br />
of matters on which science has not reached consensus or which are laden<br />
with value judgments.”<br />
applying the principles of judicial notice with rigour is<br />
increasingly important to maintaining this confidence.<br />
23. Find, supra note 6 at para 48; Spence, supra note 11 at para 53.<br />
24. Sopinka, supra note 4 at § 19.02 at para 19.35.<br />
25. Sopinka, supra note 4 at § 19.02 at para 19.37.<br />
26. Spence, supra note 11 at para 51.<br />
27. For excellent discussions, see E Judge, supra note 12 at 326–27, discussing<br />
the case of U.S. v Bari, 599 F.3d 176 (2d Cir, 2010) and Stephen GA Pitel and<br />
Liam Ledgerwood, “Judicial Notice and the Internet” in Todd L Archibald<br />
et al, eds, Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2018)<br />
25 at 28–30.<br />
28. See Jeffrey Bellin and Andrew Guthrie Ferguson, “Trial by Google: Judicial<br />
Notice in the Information Age” 108 Nw. U. L. Rev. 1137 (2014). (https://<br />
scholarlycommons.law.northwestern.edu/nulr/vol108/iss4/1).<br />
29. “Encyclopedia Britannica Ends Print, Goes Digital,” Reuters, 12 March 2012<br />
30. See, e.g., Sutton v Sutton, 2017 ONSC 3181 (citing ITV Technologies Inc. v WIC<br />
Television Ltd., 2003 FC 1056, aff’d. 2005 FCA 96), providing a common law<br />
test for assessing an internet source.<br />
31. R v Robinson, 2010 ONCJ 576 at paras 25–30.<br />
32. R v Calvert, 2011 ONCA 379 at paras 5, 8 (Calvert).<br />
33. Yates v Fedirchuk, 2011 ONSC 5549 at para 37.<br />
34. See the plan future trips feature, allowing users to select “Depart at” or<br />
“Arrive by” to better estimate the travel time of their specific trip.<br />
35. Calvert, supra note 32 at paras 4, 5, 8.<br />
36. R v Ghaleenovee, 2015 ONSC 1707 (Ghaleenovee) at para 2.<br />
37. Ibid at para 21.<br />
38. See the “image capture” date at the bottom of the Street View image.<br />
39. See “See more dates” in the upper-right-hand corner of the Street View image.<br />
40. R v Snache, <strong>2023</strong> ONSC 2255 at para 329.<br />
41. Ibid at para 327.<br />
42. Telus, supra note 14 at para 5.<br />
43. <strong>The</strong>se comments are found in Khodeir v Canada (Attorney General), 2022 FC<br />
44 at para 25 (Khodeir), referencing the Telus decision.<br />
44. See, e.g., Health Canada, “5G Technology, Cell Phones, Cell Phone<br />
Towers and Antennas” (20 October 20 2022) (https://www.canada.<br />
(available at https://www.reuters.com/article/net-us-encyclopediabritannica-idUSBRE82C1FS20120314).<br />
ca/en/health-canada/services/health-risks-safety/radiation/everyday-things-emit-radiation/cell-phones-towers.html).<br />
45. Another example: Baptiste c R, 2021 QCCA 1064 at para 61: “With respect<br />
to the case at bar, we do not expect judges to surf the Internet in order to establish<br />
or confirm the latest upward or downward crime trends, especially<br />
when they do not notify the parties of their intention to do so.”<br />
46. R v Balen, 2012 ONSC 2209 (Balen).<br />
47. Ibid at para 10.<br />
48. Ibid at para 41.<br />
49. Ibid at para 62. In another case of judicial internet sleuthing, in R v C.D.H.,<br />
2015 ONCA 102, before sentencing, the trial judge “out of curiosity” created<br />
a fake profile on match.com, then accessed a website that contained personal<br />
information of the complainant. <strong>The</strong> trial judge told a police officer that<br />
there was enough information on the site for defence counsel to “hang the<br />
victim.” <strong>The</strong> Court of Appeal for Ontario set aside the acquittals based on<br />
apprehension of bias and lack of impartiality and ordered a new trial.<br />
50. J.M., supra note 2.<br />
51. J.M., supra note 2 at para 76.<br />
52. See, e.g., <strong>The</strong> Advocates’ Society’s Position Paper on Communications<br />
with Testifying Experts and Principles Governing Communications with<br />
Testifying Experts (June 2014), cited with approval in Moore v Getahun, 2015<br />
ONCA 55.<br />
26 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 27
53. See, e.g., the discussion regarding judicial notice of historical facts<br />
in R v Zundel, 1987 CanLII 121 (ONCA) (cited in Spence, supra note 11 at<br />
para 55).<br />
54. Spencer v Canada (Health), 2021 FC 621 (appeal dismissed as moot in <strong>2023</strong><br />
FCA 8) (regarding travel quarantine requirements); R v James Ralph Bauder,<br />
<strong>2023</strong> ONSC 996 at para 11 (the court reviewed media reports provided<br />
by the parties and took judicial notice that the “Freedom Convoy” was<br />
covered by media in Canada and internationally. “Further, there was a<br />
massive amount of communication and internet postings online. This coverage<br />
reflected a broad cross-section of viewpoints about the convoy.”);<br />
Gateway Bible Baptist Church v Manitoba, 2021 MBQB 218 and 2021 MBQB<br />
219 (whether various Manitoba public health orders limited fundamental<br />
rights and freedoms in a constitutionally defensible manner).<br />
55. Consolidated Fastfrate Inc. v 2516295 Ontario Ltd., <strong>2023</strong> ONSC 1005 (the court<br />
was not prepared to take judicial notice that the pandemic caused any inability<br />
of the defendants to pay for services rendered).<br />
56. Milwid v IBM Canada Ltd., <strong>2023</strong> ONSC 490 at para 28 (the effect of the<br />
pandemic on wrongful terminations and on reasonable notice periods);<br />
Watson v Canadian Union of Public Employees, <strong>2023</strong> FCA 48 (failure to grieve<br />
Air Canada’s mandatory vaccination employment policy); Croke v VuPoint<br />
Systems Ltd., <strong>2023</strong> ONSC 1234 (employee terminated for failure to comply<br />
with mandatory vaccine policy).<br />
57. In R v Ivarone, <strong>2023</strong> ONCJ 69, the Ontario Court of Justice reviewed case<br />
law regarding the effect of COVID-19 shutdowns on delays to criminal<br />
trials.<br />
58. See, e.g., R.S.P. v H.L.C., 2021 ONSC 8362; L.B. v I.L., 2020 ONCJ 336;<br />
Ribeiro v Wright, 2020 ONSC 1829.<br />
59. Sopinka, supra note 4, § 19.02 at para 19.25.<br />
60. R v Morgan, 2020 ONCA 279 (heard April 27, 2020).<br />
61. Ibid at para 8.<br />
62. L.M.S. v J.D.S., 2020 ABQB 726.<br />
63. Ibid at para 19.<br />
64. Khodeir, supra note 43 at para 1.<br />
65. Khodeir, supra note 43 at para 37.<br />
66. Ibid.<br />
67. Davies v Todd, 2022 ONCJ 178 at paras 39–44 (at the time the only approved<br />
pediatric age groups for COVID-19 vaccinations).<br />
68. Dyquiangco Jr. v Tipay, 2022 ONSC 1441; Rashid v Ayanesov, 2022<br />
ONSC 3401.<br />
69. J.N. v C.G., <strong>2023</strong> ONCA 77 (J.N.). (Co-author Erin Pleet was co-counsel to<br />
the father C.G. for this appeal).<br />
70. J.N. v C.G., 2022 ONSC 1198 at para 67.<br />
71. J.N. supra note 69 at para 16, citing the motion judge at para 79.<br />
72. Ibid at para 29.<br />
73. Citing the Supreme Court in R v Find, supra note 6 at para 49.<br />
74. See R v A.P., 1996 CanLII 871 (ONCA).<br />
75. Evidence Act, RSO 1990, c E.23, s 25.<br />
76. J.N., supra note 69 at para 45.<br />
77. Conversely, the Saskatchewan Court of Appeal in O.M.S. v E.J.S., <strong>2023</strong><br />
SKCA 8, noted that in that specific case, notwithstanding that the mother<br />
did not accept that the vaccine was safe and efficacious, the Court of Appeal<br />
sided with the mother because in this instance, relating to this specific<br />
child, there was evidence of a risk of self-harm and harm to her mental<br />
health if she was required to be vaccinated.<br />
78. For example, “A finding on the evidence led by the parties, for example,<br />
that the Newfoundland deficit in 1988 was $5 million whereas anyone<br />
could ascertain from the public accounts that it was $120 million would<br />
create a serious anomaly.” Newfoundland (Treasury Board) v NAPE, 2004<br />
SCC 66 at para 57.<br />
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THE ART OF ADVOCACY<br />
Gaining the edge in<br />
multi-dimensional litigation<br />
In ecology, the “edge effect” describes the change in population<br />
at the boundary of two ecosystems. Along the border<br />
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living organism can draw from the core of the neighbouring<br />
habitats. New life forms emerge.<br />
<strong>The</strong> cellist Yo-Yo Ma has talked about the edge effect in the<br />
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Just as they exist in ecology and the arts, edge effects exist<br />
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intellectual property – or barristers. If we are barristers, we<br />
are criminal or civil litigators; trial lawyers or appellate<br />
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Often that problem has multiple dimensions. Our ability<br />
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Together with our partner Paul Le Vay, we recently defended<br />
the former CEO and chair of CannTrust against charges of<br />
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misleading statements/omissions under the Securities Act. This<br />
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Our client’s challenges were multi-dimensional in both procedure<br />
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specialized and complex regulatory regime. <strong>The</strong> alleged undisclosed<br />
material fact was unlicensed growing under the Cannabis<br />
30 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
Gerald Chan and Carlo Di Carlo<br />
Regulations (which allegation was completely disproven at<br />
trial). This concerned a different area of regulation altogether.<br />
<strong>The</strong> case then moved through different procedural worlds. It<br />
originated in the employment context as our client confronted<br />
an internal investigation conducted by a special committee of<br />
the board of directors. From there, it evolved into a class action<br />
when the affected investors sued under the secondary market<br />
liability provisions of the Securities Act. <strong>The</strong> company then<br />
sought protection under the Companies’<br />
Creditors Arrangement Act, which forced<br />
the parties to resolve their disputes as an<br />
insolvency matter on the Commercial List.<br />
Eventually, after a lengthy investigation<br />
by the Ontario Securities Commission’s<br />
Joint Serious Offences Team and<br />
the RCMP Integrated Market Enforcement<br />
Team, the OSC laid charges under<br />
section 122 of the Securities<br />
Act. This moved the case into<br />
the Ontario Court of Justice,<br />
where 95 percent of the criminal<br />
cases in the province<br />
are completed. <strong>The</strong> rules of<br />
criminal procedure governed.<br />
A proper defence required<br />
a legal team well versed in<br />
the rules of evidence and the<br />
protections in the Charter of<br />
Rights and Freedoms, as well<br />
as the underlying securities<br />
and regulatory issues. Each<br />
of the three defendants had the benefit<br />
of such a team – each equipped with a<br />
diversity of expertise.<br />
<strong>The</strong> benefits of having a multi-varied<br />
team revealed themselves early in the<br />
life of the case. <strong>The</strong> OSC’s disclosure<br />
consisted of hundreds of thousands of<br />
documents and millions of pages. To<br />
process everything efficiently, the defence<br />
had to master e-discovery – specifically,<br />
the data management platform Relativity.<br />
This is more often the domain of civil<br />
and commercial litigators, whose cases<br />
tend to be more document intensive,<br />
than criminal defence counsel.<br />
Meanwhile, the charges related to the<br />
alleged non-disclosure of a material fact.<br />
Defending these charges properly required<br />
a thorough understanding of materiality<br />
as a concept in securities regulation –<br />
and how expert evidence (e.g., from<br />
economists and event studies) could establish<br />
its existence (or absence). This is<br />
the stock in trade of securities litigators.<br />
To the surprise of the criminal defence<br />
lawyer on the team, materiality had not<br />
been defined uniformly in the Securities<br />
Act. In some provisions, it had been interpreted<br />
to mean a fact that would “reasonably<br />
be expected to have a significant<br />
effect on the market price or value of the<br />
securities” (the “market impact” test). In<br />
other provisions, it had been interpreted<br />
to mean a fact that might influence a reasonable<br />
investor in their decision making<br />
(the “reasonable investor” test) – a lower<br />
standard than the market impact test.<br />
Remarkably … the average person<br />
recalls 87 percent of information<br />
presented visually, but only 10 percent<br />
of information presented with words.<br />
<strong>The</strong> lack of uniformity had long troubled<br />
securities lawyers (as well as class<br />
action lawyers dealing with the concept<br />
of materiality in shareholder class<br />
actions brought under Part XXIII.1 of the<br />
Securities Act 1 ).<br />
<strong>The</strong> criminal lawyer viewed the issue<br />
of materiality through the lens of section<br />
7 of the Charter and was able to give constitutional<br />
expression to this problematic<br />
distinction between the market impact<br />
and reasonable investor standards.<br />
Section 7 is engaged any time liberty is<br />
at stake, as is nearly always the case in<br />
criminal proceedings. <strong>The</strong> “principles<br />
of fundamental justice” under section 7<br />
demand that laws – including the distinctions<br />
they draw – not be arbitrary in<br />
light of their statutory purpose.<br />
Does it make sense that the market impact<br />
test would apply to tell reporting<br />
issuers when to disclose material facts<br />
(s 56(1)) and material changes (s 75(1)),<br />
and yet quasi-criminal liability could be<br />
imposed for making a statement that is<br />
misleading in a material respect (s 122(1))<br />
on the lower reasonable investor standard?<br />
If not, the statutory distinction is<br />
arbitrary and constitutionally flawed.<br />
That became one of the critical planks<br />
in our client’s defence at trial, although<br />
fortunately we never had to rely on it<br />
because all defendants were acquitted<br />
before it got to that stage.<br />
This was just one example of how different<br />
members of the defence team were<br />
able to bring different perspectives to<br />
bear on an issue that enhanced the overall<br />
defence position. No one lawyer can<br />
master all universes. Litigation is a team<br />
sport. Multi-dimensional cases of this<br />
sort are best tackled by groups composed<br />
of lawyers with varied backgrounds –<br />
each curious and humble enough to listen<br />
to and learn from their colleagues.<br />
One may be an expert in the culture of<br />
the forum and the procedural rules; another<br />
an expert in the substantive area of<br />
the law. Both play critical roles in the devising<br />
and execution of the trial strategy.<br />
This sort of lawyering not only serves<br />
the client better but also makes for a<br />
more enriching professional experience.<br />
Civil and criminal litigators have much<br />
to learn from one another, given their<br />
respective advantages in different<br />
aspects of advocacy.<br />
In the preparation of our<br />
defence, we relied on criminal<br />
case law (R v Handy 2 on<br />
propensity evidence) just<br />
as we relied on civil case<br />
law (Bruno v Dacosta 3 on the<br />
rules governing joint books<br />
of documents). <strong>The</strong> rules of<br />
evidence are nearly always<br />
propounded in criminal cases<br />
because of the frequency with<br />
which the latter go to trial.<br />
But too often criminal lawyers read only<br />
cases that begin with “R v,” leading them<br />
to overlook important jurisprudential<br />
developments in other areas that may<br />
affect their practice.<br />
In our firm, we had the luxury of being<br />
able to assemble a team with criminal,<br />
securities, and commercial litigation experience<br />
in house. But there are other<br />
ways of achieving the same goal across<br />
different firms. Volunteering for legal<br />
associations outside your narrow practice<br />
bubble, cultivating your curiosity<br />
in areas of the law other than your own,<br />
and reading widely so you can issue spot<br />
enough to identify the known unknowns<br />
are just a few ways to escape the trap of<br />
siloed specialization.<br />
We don’t live in entirely separate<br />
worlds. We come together at events organized<br />
by groups such as <strong>The</strong> Advocates’<br />
Society and run into one another<br />
at Osgoode Hall. But the more opportunities<br />
we can find to do cases together, the<br />
better we will all be for it; the more creative<br />
our advocacy will become, and the more<br />
we will be able to gain the edge for our<br />
clients in multi-dimensional litigation.<br />
Notes<br />
1. See Miller v FSD Pharma Inc, 2020 ONSC 4054 at<br />
paras 53ff.<br />
2. 2002 SCC 56.<br />
3. 2020 ONCA 602.<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 31
APPELLATE ADVOCACY<br />
Stay in your lane?<br />
Recent appellate scrutiny of interveners<br />
Jennifer McAleer, Kimberly Potter, and Daniella Murynka<br />
Recent decisions from the Supreme Court of Canada and<br />
the Federal Court of Appeal have sparked conversation<br />
in the legal community about the role of interveners on<br />
appeal, as well as how the role of interveners intersects with the<br />
role of the judiciary.<br />
Background to intervention at the Supreme Court of Canada<br />
<strong>The</strong> rise of interventions at the Supreme Court coincides with<br />
the coming into force of the Charter in the 1980s. Before that<br />
time, it was rare to receive leave to intervene. 1 Intervention<br />
then became “routine.” In a paper published in 2020, Geoffrey<br />
D. Callaghan wrote that, since 2000, “the percentage of appeals<br />
featuring at least one intervenor factum has not dropped below<br />
35 per cent (in 2001), and was on average 55 per cent.” 2 In our<br />
review of reported Supreme Court decisions from 2021 to <strong>2023</strong>,<br />
total intervention rates have been above that average, with<br />
particularly high rates of intervention in civil matters.<br />
83<br />
Percentage of cases<br />
with at least one intervener<br />
82<br />
100<br />
Total Criminal Civil<br />
61<br />
56<br />
<strong>2023</strong> – Jan. 2022 2021<br />
to May<br />
Motions for intervention at the Supreme Court of Canada<br />
are governed by Rules 55–59 of the Rules of the Supreme Court of<br />
Canada. 3 <strong>The</strong>se rules require prospective interveners to identify<br />
the submissions they propose to make with respect to the issues<br />
on appeal, including how those submissions will be “useful to<br />
the Court and different from those of the other parties.” <strong>The</strong><br />
rules are supplemented by two Supreme Court notices to the<br />
profession, which reiterate that the purpose of an intervention<br />
is to provide views different from those of the parties. 4 An<br />
77<br />
59<br />
42<br />
75<br />
intervener is not permitted to raise “new issues” on appeal, unless<br />
a judge orders otherwise – the focus of the Supreme Court’s<br />
recent comments on interveners, discussed below.<br />
<strong>The</strong> Supreme Court’s recent comments on interveners<br />
Our starting point is R v Sharma, a case involving the unavailability<br />
of conditional sentences for certain criminal offences. 5<br />
<strong>The</strong> respondent, Cheyenne Sharma, challenged the constitutionality<br />
of certain Criminal Code provisions under sections<br />
7 and 15 of the Charter. With respect to section 15, Ms. Sharma<br />
argued that the impugned provisions contributed to increased<br />
imprisonment of Indigenous offenders relative to<br />
non-Indigenous offenders. <strong>The</strong> appeal involved 21 interveners,<br />
many representing Indigenous interests.<br />
A majority of the Court concluded that the impugned provisions<br />
were Charter-compliant, with Karakatsanis, Martin, and<br />
Jamal JJ dissenting. In allowing the appeal, and writing for<br />
the majority, Brown and Rowe JJ concluded that the Court of<br />
Appeal for Ontario had failed to “clearly delineate” Ms. Sharma’s<br />
evidentiary burden at each step of the section 15 analysis – and<br />
that, in particular, Ms. Sharma had not demonstrated a causal<br />
connection between the impugned provisions and a disproportionate<br />
impact on Indigenous offenders.<br />
As part of this discussion, Brown and Rowe JJ criticized the<br />
interveners, who had adduced “fresh evidence” before the<br />
Court of Appeal, writing, “We note here, in passing, our serious<br />
concern with interveners supplementing the record at the<br />
appellate level … Interveners creating a new evidentiary record<br />
at the appellate level undermines the trial process. That is<br />
not how our system of justice, including constitutional adjudication,<br />
is designed to work.” 6<br />
Writing for the dissent, Karakatsanis J was critical of the majority’s<br />
section 15 analysis, writing that the “thrust” of it was<br />
to “raise the bars at each step of the test,” including by “diminishing<br />
the roles of interveners …, critiquing their use of social<br />
science and other legislative fact evidence that this Court has<br />
regularly relied upon.” 7<br />
A few months later, the Court released reasons in R v McGregor,<br />
a case where it was invited to consider the extraterritorial application<br />
of the Charter. 8 <strong>The</strong> appellant, Corporal McGregor,<br />
a non-commissioned member of the Canadian Armed Forces,<br />
was posted in Washington, DC, living in Alexandria, Virginia.<br />
Corporal McGregor was the subject of an investigation<br />
by the Canadian Forces National Investigation Service (CFNIS)<br />
in relation to the offences of voyeurism and possession of a<br />
device for surreptitious interception of private communications.<br />
Subsequently, the CFNIS sought the help of the<br />
Alexandria Police Department to obtain a warrant under<br />
Virginia law to search Corporal McGregor’s residence. <strong>The</strong><br />
CFNIS and Alexandria police members then searched Corporal<br />
McGregor’s home, discovering, among other things, evidence<br />
relating to sexual assault.<br />
Subsequently, a military judge concluded that the Charter<br />
did not apply extraterritorially, and he admitted the evidence<br />
relating to sexual assault. <strong>The</strong> judge convicted Corporal<br />
McGregor of two counts of voyeurism, one count of possession<br />
of a device for surreptitious interception of private communications,<br />
one count of sexual assault, and one count of<br />
disgraceful conduct. <strong>The</strong> Court Martial Appeal Court agreed<br />
with these conclusions.<br />
<strong>The</strong> Supreme Court dismissed Corporal McGregor’s appeal<br />
but released three sets of reasons. Côté J, writing for the majority<br />
of the Court, stated that the appeal raised two main issues<br />
– whether the Charter applied extraterritorially, and, if so,<br />
whether Corporal McGregor’s Charter rights were infringed.<br />
In setting the context for these issues, Côté J observed that R v<br />
Hape 9 governs “the territorial reach and limits of the Charter”;<br />
under Hape, the Charter generally cannot apply to Canadian<br />
authorities engaged in an investigation outside of Canada,<br />
subject to certain exceptions. 10<br />
In McGregor, both parties relied on Hape but disagreed on its<br />
effect when applied to the facts of the case. Corporal McGregor<br />
argued that Hape’s exceptions applied, such that the Charter did<br />
also; the Crown argued that this case was a “straightforward<br />
application of Hape,” and that the Charter did not apply to the<br />
search. 11 As described in Côté J’s reasons, the interveners focused<br />
“on whether the Hape framework should be reaffirmed,<br />
modified, or overruled.” 12<br />
Despite framing the first issue on appeal as “Did the Charter<br />
apply extraterritorially to the CFNIS investigators in the search<br />
of Cpl. McGregor’s residence in Alexandria, Virginia?” 13 Côté<br />
J ultimately concluded that it was unnecessary to deal with<br />
the issue of extraterritoriality; this is because, even if the<br />
Charter did apply, the service’s actions “conformed to it.” 14 In<br />
so holding, Côté J was critical of those interveners that asked<br />
the Court to overturn Hape, agreeing with the earlier comments<br />
of Brown and Rowe JJ in Sharma:<br />
In this instance, only some interveners ask us to overturn<br />
Hape; in doing so, they go beyond their proper role. Doing<br />
what they are asking would mean deciding an issue<br />
that is not properly before us … I would add that, as my<br />
colleagues Brown and Rowe JJ. noted in R. v. Sharma, 2022<br />
SCC 39, at para. 75, it is inappropriate for interveners to<br />
supplement the evidentiary record at the appellate level. 15<br />
In concurring reasons, Karakatsanis and Martin JJ agreed<br />
that the appeal should be dismissed but also “comment[ed] on<br />
the central question directly at issue in [the] appeal,” the extraterritorial<br />
application of the Charter in the circumstances:<br />
This was clearly the primary and threshold issue argued<br />
by the parties and multiple interveners, it was the reason<br />
leave to appeal was sought, and we received full submissions<br />
on both constitutional and international law. <strong>The</strong> extraterritorial<br />
application of the Charter is squarely before<br />
32 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 33
the Court and it is an issue that arises<br />
infrequently, may easily escape<br />
judicial review, and has been subject<br />
to significant and sustained criticism<br />
by experts in international law. 16<br />
In their reasons, Karakatsanis and<br />
Martin JJ also disagreed with their colleagues’<br />
views that the interveners in this<br />
case overstepped their “proper role,” 17<br />
characterizing the interveners’ positions<br />
not as raising new issues but as proposing<br />
a “different view of the core legal<br />
issue of whether the Charter applied to<br />
the conduct of the CFNIS officers”: 18<br />
Indeed, these interveners were<br />
granted leave to intervene on this<br />
basis: when seeking leave, they all<br />
clearly signaled their intent to criticize<br />
Hape and suggest revisions to<br />
its framework, with the Canadian<br />
Constitution Foundation specifically<br />
stating Hape must be revisited …<br />
To hold that we cannot engage with<br />
this different view, simply because<br />
the parties themselves did not propose<br />
it, ignores the purpose of<br />
intervener submissions as set out<br />
in the Notice to the Profession and<br />
runs contrary to this Court’s past<br />
practice in decisions that have relied<br />
on the frameworks proposed by<br />
interveners. 19<br />
Justice Rowe authored concurring<br />
reasons primarily to disagree with the<br />
analysis of Karakatsanis and Martin JJ<br />
and discuss the proper scope of an intervener’s<br />
role, writing:<br />
[I]nterveners can often make important<br />
contributions. In order to do so,<br />
however, interveners must operate<br />
within recognized limits. <strong>The</strong> Rules<br />
of the Supreme Court of Canada clearly<br />
state these limits, and this Court has<br />
issued practice directions, more than<br />
once, to remind potential interveners<br />
of the boundaries they must respect<br />
…. [An intervener] exceeds its<br />
role when it seeks to alter the nature<br />
of the litigation by usurping the role<br />
of the parties, expanding the issues<br />
before the Court, or presenting new<br />
evidence. 20<br />
Reaction from the legal community<br />
Following the release of McGregor, some<br />
participants in Canada’s legal community<br />
spoke out about the decision’s comments<br />
on interveners. In a press release<br />
titled “Supreme Court Dodges Key Issue<br />
in R. v. McGregor,” the Canadian Civil<br />
Liberties Association wrote:<br />
<strong>The</strong> CCLA is concerned about some<br />
of the comments the majority and<br />
one concurring opinion made about<br />
interveners, particularly since the interveners<br />
had made their intentions<br />
and the scope of their arguments<br />
known when seeking leave to intervene.<br />
In being granted leave to intervene,<br />
CCLA and others assumed<br />
that there was nothing the Court<br />
considered to be “off-side” about<br />
their interventions. Interveners can<br />
play a significant role by providing<br />
valuable and different submissions<br />
to bring a broader perspective before<br />
the Court. 21<br />
People also took to Twitter to discuss<br />
the case. Stephen Aylward, a partner at<br />
Stockwoods LLP, tweeted, “Twice in the<br />
last 4 months the @SCC_eng has taken<br />
swipes at interveners. Interveners go<br />
beyond the issues framed by the parties<br />
because the Court itself does so. SCC<br />
appeals are tough. <strong>The</strong> Court should be<br />
encouraging lawyers who offer assistance<br />
(for free).” 22 In a similar vein, Paul-Erik<br />
Veel, partner at Lenczner Slaght LLP,<br />
tweeted, “Who cares if interveners expand<br />
the issues? <strong>The</strong> court can ignore<br />
them if they want, and highlighting different<br />
issues can help contextual [sic].” 23<br />
Response from the<br />
Federal Court of Appeal<br />
In March of this year, Stratas JA sat as motions<br />
judge in Le-Vel Brands, LLC v Canada<br />
(Attorney General), a motion by the<br />
Canadian Health Food Association and<br />
the Direct Sellers Association of Canada<br />
for leave to intervene in an appeal<br />
considering the reasonableness of the<br />
Minister of Health’s interpretation of the<br />
meaning of “natural health product.” 24<br />
Justice Stratas dismissed the motion;<br />
however, he included “[c]oncluding observations”<br />
that were “not directed” at<br />
the proposed interveners: 25 “<strong>The</strong> Court<br />
is aware of recent criticism concerning<br />
recent judicial comments about the proper<br />
limits to intervention: see, e.g., R. v.<br />
McGregor, <strong>2023</strong> SCC 4 at paras. 98–115,”<br />
Stratas JA wrote. “This criticism is misplaced.<br />
It calls for response.” 26<br />
Justice Stratas used these concluding<br />
remarks to link the proper scope of intervention<br />
to what he sees as the proper<br />
role of the judiciary in deciding cases.<br />
Justice Stratas has written on the proper<br />
role of the judiciary in the past. For<br />
example, in the 2018 case Sharif v Canada<br />
(Attorney General), he wrote for the court:<br />
“We apply the real meaning of laws to<br />
the facts before us, neutrally and objectively,<br />
logically and dispassionately,<br />
without fear or favour, and come to a<br />
result; we do not skew the result to fit<br />
what we think is right or best, to advance<br />
values we prefer, or to meet the wishes<br />
and expectations of others.” 27<br />
This time, Stratas JA reiterated these<br />
comments, tying them to the proper purposes<br />
of intervention:<br />
[S]ome see legislative interpretation<br />
as an open-ended task where courts<br />
are free to do “the right thing,” adopt<br />
the “good ideas” of academics and<br />
experts, and express what “most”<br />
would think is “right” or “reasonable.”<br />
Others feel that interveners,<br />
with their “valuable perspectives,”<br />
should be able to place before the<br />
Court academic articles full of untested<br />
social science assertions that<br />
are “right.” Still others think that<br />
courts should wade in where legislatures<br />
fear to tread in order to correct<br />
“injustices.”<br />
…<br />
Interveners admitted into our proceedings<br />
usually are those who have<br />
shown an understanding of the judiciary’s<br />
proper role. <strong>The</strong>y advocate<br />
legal positions consistent with that<br />
role. <strong>The</strong> key is to understand the<br />
nature of that role. 28<br />
It is noteworthy that Stratas JA took<br />
the opportunity in Le-Vel to respond to<br />
popular criticism of McGregor. Although<br />
Stratas JA did not reference the source of<br />
the criticism at issue, Mark Rubenstein<br />
of Shepherd Rubenstein tweeted, “Justice<br />
Stratas is reading #lawtwitter.” 29<br />
Justice Stratas’s comments are also noteworthy<br />
in that they were not, it appears,<br />
directly grounded in the submissions of<br />
the parties before the court on that motion.<br />
In this case, Conway Baxter Wilson<br />
LLP/s.r.l. acted for the proposed interveners.<br />
In a tweet, Natalia Rodriguez, a<br />
partner at that firm, wrote as follows, replying<br />
to Mr. Rubenstein’s earlier tweet:<br />
This was my colleague’s motion. He<br />
said criticism of judicial comments<br />
re intervention did not come up at<br />
the hearing or in the submissions at<br />
all. It seems to have come out of left<br />
field ... an odd place to respond to<br />
public perception unrelated to the<br />
case at bar … 30<br />
Notes<br />
1. Amanda Jane Burgess, “Intervenors Before the Supreme Court<br />
of Canada, 1997–1999: A Content Analysis” (master’s thesis,<br />
University of Windsor, 2000).<br />
2. Geoffrey D Callaghan, “Intervenors at the Supreme Court of<br />
Canada” (2020) 43:1 Dal LJ at 34.<br />
3. SOR/2002-156.<br />
4. March 2017 – Allotting Time for Oral Argument; November 2021<br />
– Interventions.<br />
5. 2022 SCC 39.<br />
6. Sharma at para 75.<br />
7. Sharma at para 205.<br />
8. <strong>2023</strong> SCC 4.<br />
9. 2007 SCC 26.<br />
10. McGregor at para 18.<br />
11. Appeal Factum of the Respondent, Her Majesty the Queen at para<br />
51; online at https://www.scc-csc.ca/case-dossier/info/af-maeng.aspx?cas=39543.<br />
12. McGregor at para 3.<br />
13. McGregor at para 17.<br />
14. McGregor at para 5.<br />
15. McGregor at paras 23–24.<br />
16. McGregor at para 47.<br />
17. McGregor at para 81.<br />
18. McGregor at para 81.<br />
19. McGregor at para 81.<br />
20. McGregor at paras 96–115.<br />
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21. Online at https://ccla.org/criminal-justice/supreme-court-dodgeskey-issue-in-r-v-mcgregor/.<br />
22. Stephen Aylward (@SGAylward), Twitter, February 19, <strong>2023</strong>, 2:36 p.m.<br />
23. Paul-Erik Veel (@PaulErikVeel), “Controversial(?) take: 1) Who<br />
cares if interveners expand the issues? <strong>The</strong> court can ignore them<br />
if they want, and highlighting different issues can help contextual.<br />
2) Most interveners should only be permitted to file written<br />
argument, but intervention should be almost automatic.” Twitter,<br />
February 20, <strong>2023</strong>, 11:06 a.m.<br />
24. <strong>2023</strong> FCA 66 [Le-Vel].<br />
25. Le-Vel at para 30.<br />
26. Le-Vel at para 31.<br />
27. 2018 FCA 205 at para 51.<br />
28. Le-Vel at paras 33, 35.<br />
29. Mark Rubenstein, (@mrubenst), “Justice Stratas is reading<br />
#lawtwitter. decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/<br />
521139/index.do.” Twitter, March 24, <strong>2023</strong>, 8:13 p.m.<br />
30. Natalia Rodriguez (@nurodrig19), Twitter, March 24, <strong>2023</strong>, 10:48 p.m.<br />
34 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 35
CIVIL LAW ADVOCACY<br />
11 things common law lawyers<br />
should know about the civil law<br />
<strong>The</strong> author thanks Andrew Hamilton for translating his<br />
ideas clearly.<br />
Although lawyers outside the Province of Quebec know<br />
that the judicial system works differently here, that<br />
doesn’t always mean they have any real appreciation<br />
of the differences. While the two systems share a number<br />
of traits, continue to move closer together, and influence each<br />
other through Supreme Court jurisprudence (see, for example,<br />
the continued expansion of good faith between contracting parties<br />
in the common law 1 ), a number of important differences<br />
between the common law system and Quebec civil law remain.<br />
Doug Mitchell<br />
In this article, we present a number of concrete examples<br />
that lawyers may regularly come across which illustrate these<br />
differences.<br />
1. <strong>The</strong>re is no common law in the civil law system<br />
<strong>The</strong> Civil Code of Quebec is a statute that provides the substantive<br />
law of the province, governing core principles of private<br />
law (both contractual and extra-contractual obligations),<br />
law of successions, trust law, family law, property law, certain<br />
rules of evidence, and private international law, among other<br />
topics. Although decisions that interpret the code are cited before<br />
the court, they are not seen to “create law” in the same<br />
way that common law decisions do.<br />
Prior decisions are also not the sole authority on interpretation<br />
of the Civil Code (or other laws). Authors’ commentary,<br />
known as “doctrine,” is significantly more authoritative in the<br />
civil law. Prior decisions of higher courts are also not seen as<br />
binding a court in the same way that they do in the common<br />
law, though judges are still generally reluctant to disagree with<br />
higher courts and risk being summarily overturned. That said,<br />
disagreements among trial court judges are not especially rare<br />
– there have even been cases of disagreements over the interpretation<br />
of a single provision between two judgments by the<br />
same judge. 2<br />
2. Specific performance is not an exceptional remedy in Quebec<br />
Although the articles that authorize it – articles 1590 and 1601<br />
of the Civil Code – refer only to obligations which are not met,<br />
in practice specific performance is most commonly demanded<br />
or ordered in cases where there have been problems in the execution<br />
of a contract. Article 1601 narrows the applicability of<br />
specific performance to “cases which admit of it,” 3 giving judges<br />
some discretion in deciding whether to order it, but it is typically<br />
viewed as the default remedy for contractual obligations<br />
that have not been fully executed.<br />
Quebec courts are aware of this difference between juridical<br />
systems. In a 1997 Superior Court decision, the court wrote<br />
that “[i]n British and American common law, despite recent<br />
developments, the specific performance recourse is still an<br />
exceptional remedy and the claim for damages is the general<br />
rule. In Quebec … the role of the two remedies for contractual<br />
breach is the reverse: specific performance<br />
is now the rule while damages is<br />
the exception.” 4 As such, this is one of a<br />
limited number of areas where Quebec<br />
courts will not even consider jurisprudence<br />
from other Canadian jurisdictions.<br />
3. A right exercised under a contract can<br />
be considered a fault or can be considered<br />
to be tortious conduct even if the conduct<br />
is specifically authorized within<br />
the contract<br />
Quebec law requires that rights under a<br />
contract are exercised in good faith. <strong>The</strong><br />
exercise of a right can therefore be found<br />
to be abusive, and to attract liability. This<br />
is the case even with specifically authorized<br />
conduct.<br />
This principle was most famously<br />
enunciated in the 1990 Supreme Court<br />
of Canada decision in Houle v Canadian<br />
National Bank. 5 In that case, the bank<br />
was aware that the plaintiffs were in the<br />
process of selling their shares of their<br />
privately held company but decided to<br />
immediately call for the company’s line<br />
of credit to be repaid on one hour’s notice<br />
and liquidated substantially all the<br />
company’s assets within three hours.<br />
Although the Supreme Court recognized<br />
that the contract between the bank and<br />
the company allowed for the bank to<br />
realize on its securities without notice, it<br />
held that “this seemingly absolute right<br />
must be tempered by the principle of reasonable<br />
delay, and what constitutes the<br />
abuse of contractual rights in this case<br />
is the absence of such reasonable delay<br />
to allow the company to pay after it was<br />
put in default.” 6<br />
4. In defamation, the truth of the statement<br />
is not an absolute defence<br />
Consistent with the law that all acts must<br />
be undertaken in good faith, defamation<br />
can be found in Quebec even where the<br />
content of the statement is true if it was<br />
motivated by bad faith intentions. In<br />
particular, if the motivation for spreading<br />
truthful information was to damage<br />
the reputation of another, then the transmitter<br />
can be held liable for the damage<br />
that the victim’s reputation suffered.<br />
For example, in Srivastava c Hindu<br />
Mission of Canada (Quebec) Inc., 7 certain<br />
individual defendants who were directors<br />
of a Hindu temple came to believe<br />
that a priest employed at the temple was<br />
having an affair with a member of the<br />
temple. <strong>The</strong>ir repeated statements to this<br />
effect to other members as well as their<br />
repeated offers to play a wiretapped<br />
phone call were found to be defamatory<br />
without the court ruling on the veracity<br />
of the allegations.<br />
5. An employee or an agent owes a duty<br />
of loyalty to their employer or principal,<br />
and everything received in the context of<br />
their mandate or employment must be<br />
given over to the employer<br />
This principle is clear in articles 2138<br />
and 2146 of the Civil Code. 8 This duty of<br />
loyalty means that the mandatary must<br />
always act in the best interest of the mandator,<br />
and not in their own best interests.<br />
<strong>The</strong>refore, irrespective of whether<br />
damages were suffered by the employer<br />
or principal, the victim, employer, or<br />
principal is entitled to disgorgement.<br />
All profits derived from the mandate are<br />
the property of the mandator, as the<br />
mandatary was only acting to collect<br />
profits for them – not for themselves.<br />
This principle applies equally to an<br />
employment relationship and the author’s<br />
firm is currently awaiting a judgment<br />
from the Supreme Court in a case that<br />
raises the question of whether this principle<br />
should be applied to directors of<br />
a corporation. 9<br />
6. In employment matters, the employee<br />
cannot renounce in advance the right to<br />
any amounts due upon severance<br />
Even if an employment contract provides<br />
for a specific severance in the context of<br />
dismissal without cause, the employee<br />
is not bound by this amount and can request<br />
more. 10 This provision of the Civil<br />
Code is a “public order” provision, meaning<br />
parties cannot contract out of it. 11<br />
That said, this provision does not prevent<br />
an employer and employee from<br />
coming to an agreement at the time of<br />
dismissal on the amount of notice that<br />
is due. Severance agreements remain<br />
possible under Quebec law 12 but the law<br />
simply requires that the conditions of the<br />
dismissal, the amount of time worked<br />
before dismissal, and other relevant factors<br />
be known before a notice period is calculated<br />
or agreed upon.<br />
7. In contracts of insurance, defence<br />
costs do not erode the policy limits<br />
<strong>The</strong> Civil Code explicitly provides that<br />
“[l]egal costs and expenses resulting<br />
from actions against the insured, including<br />
those of the defence, and interest on<br />
the proceeds of the insurance are borne<br />
by the insurer over and above the proceeds<br />
of the insurance.” 13 This has obvious<br />
effects on the incentives of insurance<br />
companies to have long, expensive<br />
procedures.<br />
As a general rule, found in the same<br />
article of the Civil Code, the insurer is<br />
required to take up the insured’s defence<br />
for any act or omission covered by their<br />
insurance. If the insurer does not take up<br />
the insured’s defence when asked to do<br />
so and when it is legally obligated to do<br />
so, the insurer must reimburse the fees<br />
that the insured paid in support of their<br />
own defence, but not fees that the insured<br />
paid pursuing the insurer for their<br />
fees or to try to force the insurer to take<br />
up their defence. 14<br />
8. If there is a contractual regime in play,<br />
a plaintiff may not invoke a claim based<br />
on extra-contractual liability<br />
Article 1458 of the Civil Code provides<br />
that no party to a contract “may … avoid<br />
the rules governing contractual liability<br />
by opting for rules that would be more<br />
favourable to them.” 15 <strong>The</strong> parties must<br />
instead proceed through the realm of<br />
contractual liability in deciding the damages<br />
owed between them.<br />
That said, a fault in the pre-contracting<br />
phase (i.e., after an offer has been made<br />
or negotiations have been entered into)<br />
gives rise only to extra-contractual liability,<br />
since the contract was not yet formed<br />
at the time of the fault. 16 Similarly, a fault<br />
to a third party, which is discussed in the<br />
following paragraph, is founded on extra-contractual<br />
liability because the contract<br />
cannot bind parties which are not<br />
party to it. <strong>The</strong> third party is therefore<br />
entitled to seek extra-contractual relief<br />
and to ignore any clauses in the contract<br />
that generally limit the liability of one of<br />
the contracting parties.<br />
9. A violation of a contractual obligation<br />
to a co-contracting party can constitute<br />
a tort to a third party if that conduct<br />
causes damage to the third party<br />
Observant readers will have noticed in<br />
the description of Houle above that the<br />
plaintiffs were not the company that had<br />
borrowed from the bank, but its shareholders.<br />
<strong>The</strong> plaintiffs were only parties<br />
to the contract in that they had provided<br />
personal surety on a part of the loan,<br />
which was not called when the banks<br />
realized on their security. As such, any<br />
36 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 37
theory of damages must instead rest on<br />
extra-contractual liability. In this case,<br />
the Supreme Court found that the bank<br />
had violated “a general legal obligation<br />
… that a person not prejudice, by his or<br />
her actions, the parties to a sale, when<br />
such sale, to his or her knowledge, is<br />
imminent.” 17<br />
As Justice Rowe reminded me in Brunette<br />
v Legault Joly Thiffault, s.e.n.c.r.l.,<br />
the Court did not create a generalized<br />
exception allowing shareholders to sue<br />
for damages suffered by a company, but<br />
“simply reiterated the essential elements<br />
of civil liability in Quebec civil law –<br />
fault, injury, and causation – and held<br />
that shareholders can have an independent<br />
right of action where they establish<br />
the existence of each element in a way<br />
that is distinct from the fault and injury<br />
caused to the corporation.” 18 This same<br />
test applies to third parties to a contract<br />
more broadly, sometimes allowing them<br />
to sue for the damages they suffer as a<br />
result of a party to a contract failing to<br />
meet its obligations.<br />
10. Service contracts can be terminated<br />
at will<br />
Where a contract is “resiliated” (terminated<br />
on a going-forward basis) and not<br />
“nullified,” some payment is still due by<br />
the client. Under article 2129, the amount<br />
due is a portion of the overall payments<br />
due under the contract based on the<br />
proportion of the work that has been<br />
completed and the costs incurred by the<br />
contractor, among other minor factors,<br />
with the weighing of these factors left<br />
to the judge’s determination. In short,<br />
a “fair” payment representing the work<br />
done is to be paid. If the contractor was<br />
paid in advance, they are bound to return<br />
any excess amount, as determined<br />
by the judge. 19<br />
<strong>The</strong> right to terminate, however, is<br />
not of “public order” and can therefore<br />
be contracted out of or renounced. This<br />
renunciation must, in most cases, be explicit<br />
– setting a fixed term for the contract<br />
is not enough to conclude that the<br />
right has been renounced, and neither<br />
is setting out in the contract that the<br />
client has a right to terminate the contract<br />
under certain circumstances. 20 <strong>The</strong><br />
clause must instead say that the client<br />
only has that right under certain circumstances,<br />
or that the client has renounced<br />
that right.<br />
11. In matters of contractual interpretation,<br />
the document is evidence of the<br />
meeting of the minds but is not necessarily<br />
taken as the complete and accurate<br />
contract<br />
Instead, per article 1425 of the Civil<br />
Code, “[t]he common intention of the<br />
parties rather than adherence to the<br />
literal meaning of the words shall be<br />
sought in interpreting a contract.” 21 Although<br />
there is a significant burden on<br />
the party wishing to displace the words<br />
of a contract, especially when they are<br />
relatively unambiguous, courts have<br />
shown themselves open to “reading in”<br />
clauses on which the contract is otherwise<br />
silent. 22<br />
This principle of interpretation can<br />
even be used to benefit sophisticated<br />
commercial parties, who are generally<br />
presumed to have received adequate, appropriate<br />
legal advice on documents before<br />
signing them. In Sobeys Québec inc.<br />
c Coopérative des consommateurs de Ste-<br />
Foy, 23 a national grocery chain was successfully<br />
able to argue that a second sublease<br />
with the same sublessor should be<br />
interpreted to include certain clauses<br />
that were present in the first sub-lease<br />
but absent in the second.<br />
Notes<br />
1. See, e.g., Bhasin v Hrynew, 2014 SCC 71;<br />
C.M. Callow Inc. v Zollinger, 2020 SCC 45.<br />
2. Arrangement relatif à Bloom Lake, 2017 QCCS<br />
4057 at paras 101–102.<br />
3. Article 1601 CCQ.<br />
4. Avi Financial Corporation (1985) Inc. v<br />
Novergaz Inc., 1997 CanLII 8864 (QC CS).<br />
5. [1990] 3 SCR 122.<br />
6. Ibid at 176.<br />
7. 2001 CanLII 27966 (QC CA).<br />
8. Arts 2138, 2146 CCQ.<br />
9. Antoine Ponce, et al. v Société d’investissements<br />
Rhéaume ltée, et al., 2022 CanLII 38772<br />
(SCC).<br />
10. Art 2092 CCQ.<br />
11. Quebec (Commission des normes du travail)<br />
v Asphalte Desjardins inc., 2014 SCC 51 at<br />
para 53.<br />
12. Tanase c Commission des normes du travail,<br />
2015 QCCS 4199.<br />
13. Art 2503 CCQ.<br />
14. Compagnie canadienne d’assurances générales<br />
Lombard c Roc-Teck Coatings Inc., 2007 QCCA<br />
986.<br />
15. Art 1458 CCQ.<br />
16. Infineon Technologies AG v Option<br />
consommateurs, 2013 SCC 59 at para 23.<br />
17. Ibid at 184. Emphasis in original.<br />
18. Brunette v Legault Joly Thiffault, s.e.n.c.r.l.,<br />
2018 SCC 55 at para 30.<br />
19. Art 2129 CCQ.<br />
20. Steve Brown Machineries Solutions (SBMS)<br />
inc. c Groupe Sutton Excellence inc., 2021<br />
QCCA 302.<br />
21. Art 1425 CCQ.<br />
22. Sobeys Québec inc. c Coopérative des<br />
consommateurs de Ste-Foy, 2005 QCCA 1172<br />
at paras 50–53.<br />
23. 2005 QCCA 1172.<br />
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38 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL
TRIBUTE<br />
Coulter Osborne: A tribute<br />
I<br />
have had at most two or three heroes in my life. Coulter Osborne<br />
was one of my heroes. In April of this year Coulter<br />
passed away, just shy of his 89th birthday. He was a great<br />
advocate, a great judge, a great athlete, a great husband, father,<br />
and grandfather, and perhaps most important, a great person.<br />
<strong>The</strong> mere listing of Coulter’s achievements attests to an<br />
extraordinary life. He was a star student and athlete at high<br />
school, Hillfield College in Hamilton and St. Andrew’s College<br />
in Aurora; a terrific basketball player at Western and a member<br />
40 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
<strong>The</strong> Honourable John I. Laskin<br />
of three intercollegiate championship teams, for which he was<br />
inducted into the university’s hall of fame; and the starting forward<br />
on Canada’s basketball team at the 1956 Summer Olympics<br />
in Melbourne, Australia.<br />
After graduating from Osgoode Hall Law School, Coulter<br />
became an outstanding advocate. In his magnificent speech<br />
about Coulter at the celebration of his life, his long-time friend<br />
Chris Speyer described Coulter as “<strong>The</strong> Man to See” in Waterloo<br />
County. And Chris added: “Was Coulter a good lawyer? He<br />
was better than good – he was fabulous. Picture this in your<br />
mind’s eye – Coulter in front of a Waterloo County jury: a Gary<br />
Cooper–like figure – tall, blond, blessed with good looks, endowed<br />
with unassailable natural ability dispensing his unique<br />
brand of quiet persuasion. Juries loved him, judges liked him,<br />
and his legal opponents respected him.” Coulter was so highly<br />
regarded in Waterloo County that the region’s law association<br />
established the Coulter A. Osborne Award given for integrity,<br />
comity, and beneficence in the practice of law and in public life.<br />
In 1978 Coulter began his judicial life: 12 years as one of the<br />
most admired trial judges in Ontario and another 11 years as<br />
a Court of Appeal judge, which included three years of extraordinary<br />
leadership as associate chief justice of Ontario.<br />
He left the Court of Appeal in early 2001, but, as he said, “I<br />
found it hard to retire.” Indeed, his post-judicial life was as<br />
rich as his previous life: a “go to” arbitrator, who put Arbitration<br />
Place on the map, integrity commissioner for Ontario,<br />
lobbyist registrar of Ontario, chair of the Holland Group (composed<br />
of the leading medical malpractice litigators in Ontario),<br />
and author of the still influential Civil Justice Review report.<br />
What I have just recounted are little more than the bare facts<br />
of Coulter’s remarkable life. What I will remember most about<br />
Coulter, however, are his personal qualities that made him<br />
such a beloved human being and that set him apart from virtually<br />
anyone I have ever known.<br />
We first met in the mid-1970s, on the opposite sides of a<br />
messy piece of commercial litigation out of Kitchener. I was<br />
a young advocate, trying to make my way in the litigation<br />
world. Coulter was already an established star, not just in<br />
Waterloo County, but across the province. And of course he<br />
had been an Olympic athlete. <strong>The</strong> first<br />
things that struck me about Coulter were<br />
his warmth, his kindness, his modesty,<br />
his humility. I was and still am a huge<br />
basketball fan, and here I was dealing<br />
with a man who had played at the same<br />
Olympics as the future legendary star of<br />
the Boston Celtics, Bill Russell. I wanted<br />
to ask him about what it was like. But<br />
Coulter had no interest in talking about<br />
his past accomplishments. “<strong>The</strong> statute<br />
of limitations passed on that event a long<br />
time ago,” he told me. When we came<br />
to discuss the case, he treated me as an<br />
equal – no hubris, no ego, no arrogance.<br />
We settled the case before it went to trial.<br />
A decade passed – Coulter was now<br />
a trial judge – when out of the blue he<br />
telephoned me. <strong>The</strong>re was an automobile<br />
insurance crisis in Ontario. Premiums<br />
were sky high, some drivers couldn’t<br />
even get insurance, and the NDP was<br />
clamouring for no-fault auto insurance.<br />
Ian Scott, then the attorney general for<br />
the governing Liberals, had wisely appointed<br />
Coulter to head an inquiry into<br />
motor vehicle accident compensation in<br />
Ontario. Coulter was a natural choice. He<br />
had both the experience and the expertise.<br />
On the phone call, Coulter asked me<br />
to be his counsel. “But,” I stammered, “I<br />
don’t know anything about personal injury<br />
litigation.” “That’s the whole point,”<br />
he replied. I was somewhat taken aback<br />
until he added, “If you knew anything<br />
you would be on one side or the other<br />
and have a bias, and I don’t want that.”<br />
I couldn’t believe my good fortune. I accepted<br />
his offer immediately. We worked<br />
closely together for 18 months. We travelled<br />
across Canada, to the United States,<br />
and even to Switzerland (where the head<br />
offices of some of the Ontario auto insurers<br />
were located), studying the auto<br />
insurance industry and various compensation<br />
schemes.<br />
Coulter hired a very small staff, just<br />
five people. He showed respect for each<br />
of us and treated us as his peers, despite<br />
our differences in age and experience.<br />
He made us feel we were his friends and<br />
genuinely valued our views. In turn,<br />
we always wanted to do our best for<br />
him. One of our staff, a young research<br />
assistant, Saskia Matheson, recently reminded<br />
me of something I said to her<br />
during the inquiry. I took her aside one<br />
day and said, “You know you have made<br />
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a terrible mistake.” For a second or two,<br />
Saskia had an awful feeling she had done<br />
something horribly wrong. But I quickly<br />
added, “You don’t start your career with<br />
a job like this. You finish it, because now<br />
no job will ever feel like it measures up.” 1<br />
Our colleague Justice David Doherty<br />
described Coulter as “a natural born<br />
leader.” And so he was. I saw that first<br />
during the inquiry and later on at the<br />
Court of Appeal. Coulter never demanded,<br />
never dictated, never shouted.<br />
He never bragged or boasted. He led by<br />
an amalgam of exceptional qualities: He<br />
was so likeable; he had such good judgment<br />
and common sense; he always came<br />
across as reasonable; and he was laidback<br />
and unflappable, even in stressful<br />
situations, and he faced plenty of those<br />
during the inquiry. Even if you initially<br />
held a contrary view on some issue, after<br />
listening to Coulter’s calm voice and<br />
sensible words, invariably you discarded<br />
your view and agreed with him.<br />
And you would drop everything to<br />
try to help him. Toward the end of the<br />
inquiry Coulter was under enormous<br />
pressure to complete his report and deliver<br />
it to the government. Two assistants<br />
<strong>Fall</strong> Convention <strong>2023</strong><br />
<strong>The</strong> Four Seasons, Punta Mita<br />
November 1/2 - 5, <strong>2023</strong><br />
THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 41
at the law firm where I worked pitched<br />
in. <strong>The</strong>y hardly knew Coulter, but in<br />
those last few, frenetic days they worked<br />
virtually ’round the clock to help him<br />
finish his report. He never asked them<br />
to do so. <strong>The</strong>y just wanted to. His leadership<br />
was inspirational.<br />
Coulter let me draft part of his report,<br />
but his editorial pen hovered over every<br />
word I wrote. Economy and precision of<br />
language were hallmarks of his writing.<br />
And he always ensured he explained<br />
clearly why he had decided<br />
the way he did. He produced<br />
a two-volume report of nearly<br />
900 pages. He believed in the<br />
tort system, rejected no-fault<br />
as cost inefficient, but recommended<br />
enhanced no-fault<br />
benefits, a recommendation<br />
(among many) that the government<br />
implemented.<br />
Every judge who has sat on<br />
the Court of Appeal for Ontario<br />
in the past 35 years knows that<br />
internally the associate chief<br />
justice oversees the day-to-day running<br />
of the court. Coulter was an exceptional<br />
associate chief. His door was always<br />
open. He was there for us, no matter<br />
what our problem, big or small. He took<br />
time to listen to us, encouraged us when<br />
we were down, and always dispensed<br />
the good advice we needed. He and<br />
Chief Justice McMurtry were a formidable<br />
team. We all considered ourselves<br />
so lucky to have these two giants of our<br />
profession as our leaders.<br />
If you look at the law reports during<br />
the years Coulter was a judge, you will<br />
find he wrote very few jurisprudential<br />
landmarks. Coulter had no interest in<br />
writing for his legacy. His focus was on<br />
resolving the dispute before him. But his<br />
wisdom, common sense, and good judgment<br />
shone through in every judgment<br />
he wrote. Indeed, of all the judges I sat<br />
with no one had better judgment than<br />
Coulter. When I had a difficult issue on<br />
an appeal often I would trek down to<br />
Coulter’s office, and by the time I left<br />
invariably he had helped me resolve the<br />
issue. I echo the words of our colleague<br />
Jim MacPherson: “In my 24 years on the<br />
Court of Appeal, I can safely say that<br />
Coulter Osborne was, universally, the<br />
most respected judge on the Court.”<br />
Coulter also had a way with words and<br />
a wry sense of humour. In one case, a real<br />
property dispute, he started his reasons<br />
42 | FALL <strong>2023</strong> | THE ADVOCATES’ JOURNAL<br />
with the following: “<strong>The</strong> plaintiff and the<br />
defendant have at least one thing in common.<br />
<strong>The</strong>y both think they own a small<br />
five-sided parcel of land at Mallorytown<br />
Landing.” In a civil appeal I sat on with<br />
Coulter, he gave an oral judgment and<br />
began with: “In this appeal neither party<br />
occupies the moral high ground.”<br />
In a summary judgment appeal, which<br />
has been cited nearly 600 times, Coulter<br />
wrote his famous line, “A respondent<br />
on a summary judgment appeal must<br />
<strong>The</strong> respect, admiration, and affection for<br />
Coulter ran throughout the legal profession<br />
and the judiciary. He had an easy charm<br />
and an unfailing kindness, which<br />
endeared him to everyone he met.<br />
lead trump or risk losing.” And in the<br />
highly publicized Gwen Jacob case, he<br />
overturned Ms. Jacob’s conviction for<br />
committing an indecent act by walking<br />
topless in downtown Guelph on a hot<br />
and humid summer day, noting that “no<br />
one who was offended was forced to continue<br />
looking at her.”<br />
And then there were the inmate sittings<br />
in Kingston that Michael Moldaver<br />
and I will never forget. After a jury trial,<br />
a fellow had been convicted of manslaughter<br />
and sentenced to nine years<br />
in jail. He was appealing his conviction.<br />
After hearing the oral argument, we<br />
went into our retiring room to decide<br />
what to do. <strong>The</strong> jury charge was pretty<br />
bad and we quickly agreed we had to<br />
allow the appeal, set aside the conviction,<br />
and order a new trial. “But,” Mike<br />
asked, “what should we say?” “Yeah,” I<br />
chimed in, “what should we say?” Coulter<br />
thought for a few seconds and then<br />
said, “How about this: For brevity’s sake<br />
we will record those parts of the charge<br />
the trial judge got correct.” (Of course<br />
we didn’t actually record that.)<br />
Coulter loved to work with law clerks,<br />
and they loved to work with him. He<br />
used them as a sounding board to work<br />
through a problem. “Apply your fertile<br />
mind to this issue and get back to me”<br />
was one of his favourite lines. An early<br />
law clerk whom he later persuaded to<br />
leave practice and join the court as a<br />
staff lawyer was Alison Warner. I sometimes<br />
teased Coulter that the best thing<br />
he ever did for the court was to hire Alison.<br />
Coulter and Alison became life-long<br />
friends, and in some ways he regarded<br />
her as a “fourth” daughter.<br />
Coulter was one of the least pretentious<br />
people I have ever known. Despite<br />
his high office he treated everyone the<br />
same, no matter their station in life. <strong>The</strong><br />
staff of the Court of Appeal adored him<br />
because he was genuinely<br />
interested in how they were<br />
and in finding out what<br />
they were doing. <strong>The</strong>ir talks<br />
often revolved around dogs,<br />
basketball, and family.<br />
Coulter left the court<br />
several years before his<br />
mandatory retirement age.<br />
I and many of his colleagues<br />
pleaded with him<br />
to stay, but he had made<br />
up his mind to leave. As I<br />
have mentioned, Coulter<br />
had an enormously active post-judicial<br />
life. I missed him terribly on the court. I<br />
could no longer walk down the hall and<br />
ask him what to do on a tough problem.<br />
So instead I would ask myself, “What<br />
would Coulter do?”<br />
<strong>The</strong>re is a wonderful story about how<br />
Coulter became an Olympian. In 1956,<br />
after finishing first-year law school,<br />
Coulter had a summer job loading empty<br />
cans onto a freight car for the American<br />
Can Company. He came home from work<br />
one day and found a letter addressed to<br />
him from the Canadian Olympic Association:<br />
“Be in Vancouver the day after<br />
Labour Day.” Unsure what to do, he<br />
went to his law school dean for advice.<br />
Coulter said to him, “I’d like to go but if<br />
I do I won’t be at any classes in the first<br />
term.” <strong>The</strong> dean looked down at the papers<br />
on his desk and replied, “We don’t<br />
take attendance.” And so Coulter went<br />
to Melbourne.<br />
Forty-four years later, in 2000, on the<br />
eve of his departure from the Court of<br />
Appeal, Coulter returned to Australia,<br />
this time to Sydney, for the Summer<br />
Games, as a member of the Olympic<br />
torch relay. He trained for the relay. In<br />
the months leading up to it, he was a fixture<br />
every evening at the North Toronto<br />
Collegiate Institute track. He would<br />
jump over the fence and run. He said, “I<br />
wanted to be able to do the relay without<br />
embarrassing myself.” Christie Blatchford wrote a touching piece<br />
about Coulter’s participation:<br />
It was both the run, and the stuff, of Coulter Osborne’s<br />
honourable life. It took him along Railway Street in this<br />
unpretentious, working-class western suburb – so like his<br />
Hamilton hometown – of the glittering Olympic city just<br />
an hour away …<br />
It was probably not the glamorous route Judge<br />
Osborne’s friends on the bench at the Ontario Court of<br />
Appeal … imagined for him when, in his self-effacing and<br />
diffident way, he mentioned in passing, and this is how he<br />
would have done it, that he would be taking part in the<br />
2000 Olympic Torch Relay …<br />
Judge Osborne wore No. 209 … [He] would be handing<br />
off to, and lighting the torch of, No. 210, Harry Harris, a<br />
53-year-old from the Sydney suburb of Concord … <strong>The</strong>n it<br />
was go time …<br />
Suddenly, Judge Osborne came into view, a tall, slender,<br />
ever-so-slightly jug-eared man with silver blond hair.<br />
He was smiling hugely, until he handed off to Mr. Harris,<br />
gave him a gentle push of encouragement on the back, and<br />
found [his wife] Barbara, and then he cried, just a little. 2<br />
<strong>The</strong> last several years of Coulter’s life were difficult ones as<br />
he suffered the ravages of Parkinson’s disease. But he bore his<br />
illness with grace, with good humour, and without a hint of<br />
complaint. Alison and I visited him from time to time. He was<br />
invariably alert, upbeat, and engaged for those visits, as we<br />
discussed among many topics the latest high-profile decision<br />
from the Court of Appeal and the current sorry state of the<br />
Toronto Raptors.<br />
Fairmont Château Laurier | February 1-3, 2024<br />
<strong>The</strong> respect, admiration, and affection for Coulter ran<br />
throughout the legal profession and the judiciary. He had an<br />
easy charm and an unfailing kindness, which endeared him to<br />
everyone he met. I knew him for more than 45 years, and in all<br />
those years I never heard him say a mean word about anyone<br />
and I never heard anyone say an unkind word about him. I<br />
don’t think I can say that about any other person I have known.<br />
As much as Coulter enjoyed being with the members of the<br />
bar and his judicial colleagues, first and foremost for him was<br />
his family: Barbara, his wife and life partner for 64 years, and<br />
their wonderful daughters, Mary, Julie, and Katie, of whom<br />
he and Barbara were immensely proud. I doubt I have met a<br />
family as close knit as the Osborne family. Coulter and Barbara<br />
were inseparable to the end. He was an outsized presence<br />
in the lives of his daughters and his grandchildren, and just<br />
before his death he welcomed a great-granddaughter into the<br />
family.<br />
This piece, so personal in many ways, is my tribute to Coulter<br />
Osborne. He was my mentor and my friend. I will always<br />
treasure my good fortune in knowing him and working with<br />
him. My memory of him will remain forever green.<br />
Notes<br />
1. Happily, Saskia has gone on to a wonderful career in the auto insurance<br />
industry. She is now the president and CEO of the Facility Association.<br />
2. Christie Blatchford, “Ontario Judge Carries the Torch,” National Post<br />
(13 September 2000) 1.<br />
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THE ADVOCATES’ JOURNAL | FALL <strong>2023</strong> | 43
THE LAST WORD<br />
Patronage returns in Ontario<br />
<br />
In the early spring of 1985, I found myself campaigning for<br />
the best counsel I ever saw in court and a personal hero,<br />
Ian G. Scott. He was running as a Liberal in the 1985<br />
Ontario election as the tides were turning against the long-ruling<br />
Progressive Conservatives.<br />
My partners Chris Paliare and Ian Roland were also actively<br />
campaigning for Ian, despite their different political affiliations.<br />
I remember laughing when I heard that each of them<br />
had extracted a promise from Ian that if he were elected and<br />
became the next attorney general (almost inevitable if the<br />
Liberals won), he would ensure that both would be bestowed<br />
with the much-coveted designation of Queen’s Counsel – QC,<br />
now KC with the new monarch. I can say with confidence, it<br />
never occurred to me to ask, although it may well have been<br />
lack of initiative.<br />
As happened, the Liberals formed the government under<br />
Premier David Peterson, and Ian Scott became attorney general.<br />
My partners were convinced that QCs (taking “silk,” as it is<br />
called in the UK) were imminent.<br />
Scott told us repeatedly, as he quickly learned from the civil<br />
servants, that there were rules against appointing two lawyers<br />
as QCs from one firm. He would have to choose between my<br />
partners. Ian then chortled in his infectious way, waiting for<br />
his audience to catch up, and added the punchline, “So I decided<br />
to abolish QCs.” A related anecdote has it that he said that<br />
to redress the political imbalance after 40 or so years of Tory<br />
governance, he would have to name 10,000 Liberals as QCs and<br />
had neither the time nor the inclination to do so.<br />
<strong>The</strong>se bons mots were classic Ian. He loved a good story and<br />
would go far for a laugh, but for him the reality was more<br />
serious. Ian was never self-righteous, but he was deeply principled.<br />
He had no time for honours that had long been overtaken<br />
by cronyism and patronage, and he was fearless in stopping<br />
this practice although he didn’t abolish the designation outright<br />
and allowed those lawyers who had one to keep using it.<br />
Premier Peterson offered five reasons for this decision:<br />
(1) QCs were originally meant for leading courtroom advocates<br />
but had been diluted to any lawyer of good standing;<br />
(2) the designation had become misleading and was<br />
based on whom one knew more than on what one knew;<br />
(3) it was unfair to lawyers who weren’t named a QC, calling<br />
into question their competence in the public mind; (4)<br />
no other profession received governmental awards of this<br />
kind; and (5) the designation was a blatant (my word) form<br />
Stephen Grant, LSM, ASM<br />
of political patronage. David Peterson’s rationale is equally if<br />
not more valid today, especially with the growth of lawyerpermitted<br />
advertising – in its infancy in 1985.<br />
Despite this background, and with seemingly little or no<br />
consultation with the various interested groups such as <strong>The</strong><br />
Advocates’ Society, the Ontario Bar Association, and the Law<br />
Society of Ontario – the Treasurer of the Law Society declined<br />
the invitation (if that’s what it was) to receive one – the Ford<br />
government has recently awarded a spate of KCs, many to<br />
political cronies or operatives. I didn’t count the number but,<br />
among other self-aggrandizements, the attorney general appears<br />
to have awarded one to himself, and a former attorney<br />
general seems suddenly to have been called to the Ontario bar<br />
despite being a lawyer for many years.<br />
Although there are at least two counsel on the list who<br />
would be eminently qualified to be awarded this honorific<br />
on any criteria, especially reflecting its original intent to<br />
acknowledge the finest of advocates, it appears that most on<br />
the list must have other unrecognizable attributes, save political<br />
affiliation. One of the recipients of this now-hollow<br />
honour, although having worked in the government for several<br />
years, is not the experienced counsel for whom the designation<br />
was originally meant, even in its later years of transparent<br />
political patronage.<br />
As opposition parliamentarians used to say (and may still,<br />
for all I know), “For shame.”<br />
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