The-Advocates'-Journal-Fall-2023

Vol. 42, No. 2. | FALL 2023

The Advocates’ Journal
Vol. 42, No. 2; Fall 2023
33
Kevin Lo
CISSP, CCE, CFI, PMP, EnCE
Branko Vranesh
SENIOR ANALYST
The Sherlock Holmes
& Dr. Watson of
digital forensics.
From the Editor
The SCOTUS of Canada
The Honourable Justice Mahmud Jamal
3 32
6
Stay in your lane? Recent appellate
scrutiny of interveners
Jennifer McAleer, Kimberly Potter,
and Daniella Murynka
Enter Kevin Lo and Branko Vranesh. The Hounds of Bay Street. Digital detectives
whose sleuthing skills will make or break your case. Well recognized forensic pioneers,
Kevin and Branko lead the legal industry in evidence gathering and analysis. Together,
they have more than 40 years of investigative experience, with the deep technical expertise
needed to sniff out the smouldering email amidst terabytes of data. No matter where it
resides. So, before you head into any critical legal proceeding, make sure Kevin and
Branko are working on your side. MT>3 Digital Forensics. | Uncover Everything.
Kevin Lo: klo@mt3.ca | Branko Vranesh: bvranesh@mt3.ca
LTDigital Forensics
A DI V ISI O N OF McCAR THY TÉTR A U
Annals of Law: Lac Minerals v Corona –
the new trial that wasn’t
Ronald G. Slaght, KC, ASM, LSM
Judicial notice
in the misinformation age
Erin Pleet and Mary Paterson
Gaining the edge in
multi-dimensional litigation
Gerald Chan and Carlo Di Carlo
10
20
30
36
40
44
11 things common law lawyers
should know about the civil law
Doug Mitchell
Coulter Osborne: A tribute
The Honourable John I. Laskin
Patronage returns in Ontario
Stephen Grant, LSM, ASM
THE ADVOCATES’ JOURNAL | FALL 2023 | 1

FROM THE EDITOR
THE ADVOCATES’ SOCIETY
The ones that stay with us
PAST PRESIDENTS
Fall 2023; Vol. 42, No. 2.
Editor
Linda Rothstein, LSM, ASM | Linda.Rothstein@paliareroland.com
Managing Editor
Andrea Gonsalves | andreag@stockwoods.ca
The Advocates’ Journal: cite as Adv J
Production Editor
Sonia Holiad | sholiad@rogers.com
Editorial Correspondence
Linda Rothstein, LSM, Paliare Roland Barristers
155 Wellington St West 35th Floor
Toronto, ON, M5V 3H1
Linda.Rothstein@paliareroland.com | 416-646-4327
Advertising and Subscription Correspondence
Robin Black
robin@advocates.ca | 1-888-597-0243 x.108
Creative Director
Jessica Lim | jessical@advocates.ca
Kim Burton | jkburton64@gmail.com
Cover
Abby at the Perth County Courthouse
in Stratford, Ontario.
Paintings, Illustrations, and Photography
Delaney Cox: p. 36
Ryan Little: cover, p. 40
Anna Macquistan: pp. 6, 20
Scott Shields: pp. 30, 33
The opinions expressed by individual authors are their own
and do not necessarily reflect the policies of The Advocates’
Society.
Publications Mail Commercial Sales Agreement No. 40019079
The Advocates’ Journal is printed in Canada and is published four
times a year by The Advocates’ Society, 250 Yonge St, Suite 2700,
Toronto, Ontario, M5B 2L7. Distributed free to all members of the
Society. Contents copyright © 2023 by The Advocates’ Society.
Second class registration number 5941, paid at Scarborough.
Contents may be reproduced only with written authorization of
the authors and acknowledgment of The Advocates’ Journal. The
editors do not assume responsibility for the loss or return of
manuscripts, photographs, or illustrations.
1965-66 J. J. Robinette, QC, ASM
1966-67 The Hon. R. F. Reid
1967-68 The Hon. Justice R. S. Montgomery
1968-69 The Hon. Justice P. Cory
1969-71 W. B. Williston, QC, ASM
1971-72 The Hon. Justice W. D. Griffiths
1972-73 C. F. McKeon, QC, ASM
1973-74 A. E. M. Maloney, QC, ASM
1974-76 P. B. C. Pepper, QC, LSM
1976-77 H. G. Chappell, QC
1977-78 W. S. Wigle, QC
1978-79 The Hon. Justice J. J. Fitzpatrick
1979-80 E. A. Cherniak, KC, LSM, ASM
1980-81 The Hon. Justice J. W. O’Brien
1981-82 T. H. Rachlin, QC
1982-83 K. E. Howie, QC, ASM
1983-84 J. P. Nelligan, QC, LSM, ASM
1984-85 Peter Webb, KC, LSM
1985-86 Bert Raphael, QC, LSM
1986-87 A. D. Houston, KC
1987-88 The Hon. Justice J. R. R. Jennings
1988-89 R. A. Stradiotto, KC, LSM
1989-90 The Hon. Justice Peter G. Jarvis
1990-91 John F. Evans, KC, LSM
1991-92 Terrence J. O’Sullivan, LSM
1992-93 The Hon. Justice Eleanore A. Cronk
1993-94 Roger Oatley
1994-95 The Hon. Justice Mary Anne Sanderson
Caroline Abela
Mark Abradjian
Lisa Belcourt
Simon Bieber
Caroline Biron
Hilary Book
Sean Boyle
Melissa Burkett
Frank Cesario
President: Dominique T. Hussey
Vice-President: Darryl A. Cruz
Treasurer: Sheree Conlon, KC
Secretary: Sheila Gibb
Chief Executive Officer: Vicki White
Shantona Chaudhury
David D. Conklin
Kirsten Crain
Joni Dobson
James Doris
Craig Ferris, KC
Jon Foreman
Linda Fuerst
Peter Henein
OFFICERS
DIRECTORS
1995-96 C. Clifford Lax, KC, LSM
1996-97 Margaret A. Ross, LSM
1997-98 The Hon. Justice Harriet Sachs
1998-99 Michael F. Head
1999-00 James A. Hodgson
2000-01 Ronald G. Slaght, KC, LSM, ASM
2001-02 J. Bruce Carr-Harris, LSM
2002-03 Philippa G. Samworth, ASM
2003-04 Jeffrey S. Leon, LSM
2004-05 The Hon. Justice Benjamin Zarnett
2005-06 Linda Rothstein, LSM, ASM
2006-07 Michael E. Barrack
2007-08 Michael Eizenga, LSM
2008-09 Peter J. E. Cronyn
2009-10 Sandra A. Forbes
2010-11 Marie T. Henein, LSM
2011-12 Mark D. Lerner
2012-13 Peter H. Griffin, LSM
2013-14 Alan H. Mark
2014-15 Peter J. Lukasiewicz
2015-16 Martha A. McCarthy, LSM
2016-17 Bradley E. Berg
2017-18 Sonia Bjorkquist
2018-19 Brian J. Gover, LSM
2019-20 Scott Maidment
2020-21 Guy J. Pratte, AdE, LSM
2021-22 Deborah E. Palter
2022-23 Peter W. Kryworuk
Scott C. Hutchison
Lara Jackson
Najma Jamaldin
Cynthia Kuehl
Troy Lehman
Robin Lepere
Craig Lockwood
Jennifer McAleer
Christine Mohr
PAST EDITORS OF THE JOURNAL
1982-90 Moishe Reiter, QC
1991-2008 David Stockwood, QC, LSM
2008-20 Stephen Grant, LSM, ASM
Ira Nishisato
Tamara Prince
Tamara Ramsey
Luisa Ritacca
Scott Robertson
Sylvie Rodrigue, AdE
Jeff Saikaley
John Sorensen
Cynthia Spry
Linda Rothstein, LSM, ASM
Some of you will remember 1988. Brian
Mulroney was our prime minister and
Brian Dickson our chief justice. In January
of that year, the Supreme Court of Canada
struck down Canada’s abortion laws. In February,
Calgary hosted the Winter Olympics. In
July, the War Measures Act was replaced by the
Emergencies Act. In late September, Ben Johnson
was stripped of his Olympic gold medal and
world record when he tested positive for steroids.
In October 1988, the Supreme Court of
Canada was scheduled to hear the appeal in
Lac Minerals v Corona from the decision of the
Ontario Court of Appeal which gave Corona
a constructive trust over a gold mine in the
Hemlo area of northern Ontario. It’s no exaggeration
to say that court watchers, academics,
law geeks, and most of Bay Street were
abuzz about the case. The Court of Appeal
had endorsed the trial judge’s findings that
Lac Minerals, a senior mining company, had
breached a fiduciary duty it owed to Corona,
a junior mining company, when Lac secured
the property for itself after Corona’s geologist
had shared valuable confidential information
– assay results, sections, maps, and drill
plans – with Lac’s geologists. The court
had also upheld the constructive trust in
favour of Corona.
It was a captivating, hard-fought, David
and Goliath victory. It was also a potential
legal turning point. Business leaders and
some academics had argued that the Court
of Appeal’s decision extended the meaning
of a fiduciary relationship between commercial
parties to require good faith in the
negotiation and performance of business
contracts; imagine that. And many claimed
“It is simply not the case that business and accepted
morality are mutually exclusive domains.”
~ Justice Gérard La Forest, Lac Minerals v Corona
that Canadian law was drifting too far from
its British moorings because the English jurisprudence
restricted the remedy of a constructive
trust to the law of trusts and saw no place for
it in business relationships.
Of course, we know how it all turned out:
Corona won the day. The Supreme Court of
Canada agreed that Lac had exploited Corona’s
confidential information for its own advantage
and thus breached a duty of confidence, and
that this justified imposing a constructive trust
on the gold mine in favour of Corona. The
majority also held that no fiduciary duty arose
on the facts, but the Court defined the doctrinal
parameters of the fiduciary relationship in
a way that has governed a wide spectrum of
relationships ever since.
A case like that one stays with you, winner
or loser. Same for the counsel. Ronald Slaght
and Alan Lenczner remember well the summer
of 1988. Together they had shepherded the
case for Corona from 1984 all the way to
the SCC. They say it shaped their careers in
large and small ways.
As part of our Annals of Law series, Slaght
has dug into the files long stored at Iron
Mountain and reconstructed one of the case’s
still untold chapters – the last-ditch attempt
by Lac Minerals to head off the Supreme Court
of Canada appeal by seeking a ruling that
Corona had won the trial by fraud. Slaght
brings to life the intense litigation that followed:
the strategies and tactics, the production
of previously privileged documents, the
twists and turns that cleared the path for the
SCC victory. Certain aspects of the 1988 legal
culture Slaght describes are obvious relics of
a smaller, chummier bench and bar (spoiler
2 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 3

CONTRIBUTORS
alert: counsel could get in-person meetings with
the chief justice of Canada), but most of the
moves and countermoves could have happened
last week, or so it seems to me.
The Honourable Coulter Osborne, who has
a starring role in Slaght’s story, passed away in
April. The Honourable John I. Laskin has written
a heartfelt tribute to this giant of the bench and bar.
And there is much more to savour in this issue.
Justice Mahmud Jamal will make you laugh as you
imagine him explaining to a room of American
trial lawyers what the Supreme Court of Canada
does. There are also articles on the scope of judicial
notice and on the role of interveners in the
Supreme Court of Canada, plus tips for common
law counsel on the civil law of Quebec. For our
meta-thinkers, two authors describe how advocates
must harness the work of counsel who
practise in very different settings to meet the
challenges of modern, complex litigation. And
former Journal editor Stephen Grant gets the last
word on the Ontario government’s reinstitution
of the King’s Counsel designation.
Dear readers: Prospective Journal writers often
ask me to suggest topics that would be of interest
to you, but I don’t hear from many of you
about what you like to read (and what you
don’t). I am aware of the wealth of law firm
and law association blogs and posts that provide
up-to-the-minute reactions and comments on
new laws and cases. We can’t compete with that
– our pieces need to have a longer shelf life. But
there is surely a mountain of interesting takes
and ideas out there that would be of interest to
our national readership. Please don’t be shy; we
would love to hear from you. And we always
welcome your articles.
GO GREEN!
Did you know TAS Members have the
option of digital-only delivery of The
Advocates’ Journal? Simply log on to
your TAS Member profile at
www.advocates.ca and opt-in for the
Digital Journal.
Need help? Email us at
membership@advocates.ca and we are
happy to assist. #GoGreen
THE ADVOCATES’ JOURNAL
SUBMISSION GUIDELINES
• Authorship: Include your name and email address at
the top of your article. Be sure to list any co-authors.
• Content: We value articles about advocacy and advocates
that are topical and crackle with currency.
• File format: We accept submissions only in Microsoft
Word format.
• Length: Although we appreciate concision, there is no
maximum or minimum length for Journal articles. The
majority of our articles are between 1,500 and 3,500
words (excluding notes), but we will consider articles
outside this range.
• Notes: We prefer articles without notes, but whether to
include notes is at the author’s discretion. (All direct
quotations should be referenced, however, whether
in the body of the article or in notes.) If you include
notes with your submission, we prefer endnotes to
footnotes. When reviewing notes after completing the
final draft, double-check that cross-references (“ibid.,”
“supra”) haven’t changed because of late additions or
deletions of text.
• Citation format: We do not insist on a particular citation
style. If you include citations, we trust that you will
ensure they are accurate, complete, current and internally
consistent. In particular, check that citations to Internet
sources refer to web addresses that are valid as of the
date of the submission. If a cited web address is no longer
valid, we expect you to make note of this in the citation.
Thank you,
Linda Rothstein, Editor
Andrea Gonsalves, Managing Editor
Sonia Holiad, Production Editor
Gerald Chan
Gerald Chan is a partner at Stockwoods LLP
in Toronto, practising criminal, constitutional,
regulatory, and select civil litigation. He still
has not accepted that his days as a freestyle
rapper are over.
Carlo Di Carlo
Carlo is a partner at Stockwoods with a broad
practice that covers various areas of civil
and regulatory litigation. He is routinely
involved in matters dealing with director/
officer liability, shareholder disputes, the
oppression remedy, and contractual disputes.
Carlo has particular expertise dealing with
securities law issues.
Stephen Grant, LSM, ASM
Stephen Grant is a retired lawyer and a
former editor of this Journal. He now spends
his time writing about art and poetry.
The Honourable Justice Mahmud Jamal
Mahmud Jamal is a justice of the Supreme
Court of Canada. In accordance with section
8 of the Supreme Court Act, RSC 1985, c S-26,
he resides in the National Capital Region.
The Honourable John I. Laskin
The Honourable John I. Laskin was appointed
to the Court of Appeal for Ontario in January
1994 directly from the bar, retiring in 2018.
His litigation practice, beginning in 1971,
spanned all aspects of civil and public law.
Since becoming a judge he has written and
taught extensively on written and oral
advocacy.
Jennifer McAleer
Jennifer McAleer is a partner at Fasken in
Toronto, where she practises administrative
and corporate commercial litigation.
Doug Mitchell
Doug Mitchell is one of the founding partners
of IMK LLP, a litigation boutique in Montreal.
He acts in all areas of civil, commercial, and
public law at all levels of courts in Canada,
and also as an arbitrator and arbitration
counsel. He loves the civil law of Quebec.
Daniella Murynka
Daniella Murynka is a knowledge and
practice innovation litigation lawyer at
Fasken. She is creative and versatile in this
role, tracking legal developments, drafting
bespoke resources, and maximizing shared
knowledge. She’s thought about it and still
prefers in-text citations, the winter months,
and instant coffee.
Mary Paterson
Mary is a litigation partner with Osler, Hoskin
& Harcourt, where she specializes in tax,
insolvency, and other fascinating subjects.
She is a board member of Pro Bono Ontario
and an amateur but enthusiastic gardener.
Erin Pleet
Erin Pleet is a partner at Ross Nasseri LLP
in Toronto, where she practises commercial,
civil, and estates litigation as well as
administrative law and appeals. She builds
successful cases and (with her kids) LEGO®
Ninjago creations.
Kimberly Potter
Kimberly Potter is a partner in the Litigation
and Dispute Resolution Department at
Fasken. Her practice focuses on complex
commercial disputes and administrative
law, and she has expertise in professional
regulation.
Ronald G. Slaght, KC, ASM, LSM
When Ronald Slaght decided to write about a
little-known chapter in Lac Minerals v Corona,
he was thrilled to learn that Will McDowell
had put in a marker to preserve the case
records at McCarthys, “just in case.” With a
72-page box list and hundreds of boxes, Ron
may just be getting started.
4 | FALL 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2023 | 5

VIEW FROM THE BENCH
The SCOTUS of Canada
This is a transcript of an address given to the American
College of Trial Lawyers in Florida on February 25, 2023. The
author thanks his law clerk, Siobhan Quigg, for her invaluable
research assistance and wicked sense of humour.
Introduction
I would like to thank Jeff Leon for that kind introduction.
I would also like to thank the American College of Trial
Lawyers for granting me the great privilege of becoming an
honorary fellow.
Jeff mentioned to you that we are both proud alumni of the
Ross Sheppard Composite High School in Edmonton, Alberta.
What he did not tell you is that that school’s most famous
The Honourable Justice Mahmud Jamal
alumnus is not a nerd like Jeff or me, but a jock, and that this
person’s most significant accomplishment was not becoming
the second Canadian president of the American College of
Trial Lawyers or a justice of the Supreme Court of Canada but,
rather, winning the Stanley Cup four times – an ice skater by
the name of Wayne Gretzky. Life’s not fair.
Chief Justice Richard Wagner and I are delighted to bring
greetings from the Supreme Court of Canada. Understandably,
our Supreme Court is rarely top of mind for lawyers in the
United States. I was reminded of this recently when a recruiter
for a Wall Street law firm saw the “Supreme Court of Canada”
on the résumé of one of my law clerks and asked her, “What
kind of trials do you help with up there?” She answered politely,
“Oh, it’s Canada’s apex court … it’s like your SCOTUS. It’s
the SCOTUS of Canada.”
The SCOTUS of Canada has much in common with your
SCOTUS. Both courts hear appeals of national importance,
both share common ideals about the importance of the rule of
law, and both are respected around the world. Today, I’d like to
tell you a little about our SCOTUS – the SCOTUS of Canada –
and to compare our respective apex courts. I will touch briefly
on seven points.
The first six
First, both courts originally had six justices and only gradually
worked up to the current complement of nine. 1 Eventually,
people realized that an even number of judges can lead to
deadlocked decisions. It appears that an ignorance of basic
arithmetic is shared by lawyers on both sides of the 49th parallel.
In 1789, President George Washington selected the first six
justices for the Supreme Court of the United States. These men
were so honoured by the nomination that the first chief justice,
John Jay, spent most of his tenure abroad and resigned
after just six years to become the governor of New York, after
describing the Court as “intolerable”; another justice, John
Rutledge, never attended a formal session of the Court; and a
third, Robert Hanson Harrison, declined the honour completely. 2
The first justices of our Court were also a motley crew. Justice
Henry Strong was known for his “opinionated criticisms
of his colleagues, outbursts of temper, and discourteous treatment
of counsel” and has been described as lazy and irresponsible.
3 He was to grace our Court for almost 30 years. 4 In a similar
vein, Justice William Henry was said to be “not too bright”
and was known for judgments that were
“long, windy, incoherent masses of verbiage,
interspersed with ungrammatical
expressions, slang and the veriest legal
platitudes inappropriately applied.” 5
Humble facilities
A second similarity between our respective
apex courts is that both had
humble facilities. For the first 145 years
of its existence, the US Supreme Court
sat in various government buildings and
in at least two taverns. Historians have
described the Court’s early premises as
“mean and dingy” and as only a “little
better than a dungeon.” 6 The premises
were understandably not a priority because,
during the first two terms, the
Court heard a grand total of zero cases.
The justices spent their time appointing
a Court crier and admitting lawyers to
the bar. 7
The Supreme Court of Canada likewise
lacked a dedicated building at first. In its
early years, the Court sat in the Railway
Committee room of Parliament. 8 Historians
have remarked that the physical
facilities were extremely poor, noting
that “[h]ere was a beggarly institution.
No offices were planned for the justices;
all the staff were to share just one room;
and there was to be no separate permanent
library.” 9
The Supreme Court of Canada’s first
session, in 1876, also had zero cases.
But the next year, things picked up. A
landmark case argued over three full days
in January 1877 involved a pew holder’s
claim for damages for interference with
his right to occupy pew #68 in a Montreal
church. The ejected pew holder won
and was awarded $300 in damages. 10
Later that month, the Court heard another
important case, in which it decided
that several parish priests breached the
Elections Act by giving sermons threatening
their parishioners with eternal damnation
if they voted for candidates of
the federal Liberal party. 11 The Supreme
Court of Canada’s golden age had begun.
With this uptick in interesting work,
our Court also upgraded its building.
In 1882, the Court moved from the Railway
Committee room to a two-storey
Gothic revival structure that had, until
then, served as a stable for horses. 12 The
previous tenants had left the building
filthy and unfit for human habitation. 13
Fortunately, the justices had an easier time
than the horses did climbing the stairs.
Eventually, in 1937, the Canadian government
commissioned the renowned
Canadian architect Ernest Cormier to
build the dedicated art deco courthouse
that we use today. Cormier originally intended
the building to have a flat roof,
but Prime Minister Mackenzie King had
other ideas. Legend has it that while the
building was under construction, Prime
Minister King frequently walked by the
building with his dog, an Irish terrier
named Pat, from whom he often sought
advice, including by séance after Pat’s
death. 14 Perhaps on Pat’s advice, the
prime minister insisted that the building
should have a Gothic peaked dome
to match the surrounding Parliament
Buildings. Cormier grudgingly complied
but, in a small act of defiance, would always
refer to the new roof as the “dunce-cap.” 15
Rumour has it that in 1945 the Canadian
government hid a Soviet defector,
Igor Gouzenko, in the damp and lonely
attic of the “dunce-cap.” Besides this one
valuable use of the dome, it has otherwise
caused only trouble. Maintenance
staff have determined that the vaulted,
uninsulated roof creates its “own weather
systems” and “cause[s] mini-rain
storms that leak into the library below.” 16
On the plus side, it is, I suppose, better
for an apex court to have a leaky roof
than leaky judgments.
The court today
The US Supreme Court does not have a
“dunce-cap” roof but, as my third point,
I note that it shares several interior features
with our Court. For example, both
courts have courts within the court. The
Supreme Court of Canada has an outdoor
badminton court in a central quadrangle
at the ground level, while the US
Supreme Court has a basketball court in
its top-floor gym, known to the cognoscenti
as the “highest court in the land.”
I am confident that my colleagues and I
could handily take SCOTUS in a game of
badminton.
Another similarity is that the justices’
offices are generally assigned by seniority.
In Canada, our cavernous offices
line a long marble corridor that wraps
around three sides of the building. One
former justice compared our offices rather
unflatteringly to “gopher holes,” into
which we, the gophers, periodically vanish. 17
Both our courts also have public
cafeterias. This is important because
there aren’t any restaurants near either
court. The Supreme Court of Canada’s
cafeteria used to serve hot meals, but it has
now been replaced with vending machines
selling high-quality junk food, where, I
should add, I am a regular customer.
By contrast, SCOTUS has retained its
cafeteria, which by tradition falls under
the supervision of the newest justice.
There have been advances and setbacks
over the years. As the Wall Street Journal
reported, Justice Stephen Breyer’s great
contribution was to introduce a salad
bar. He was eclipsed by Justice Elena
Kagan, who became wildly popular with
a frozen yogurt machine. Justice Samuel
Alito said he thought the cafeteria was
pretty good under his watch, proudly
recounting how he had received compliments
about the shrimp bisque and the
hummus and broccoli, although the Wall
Street Journal highlighted that his tenure
also “saw disaffection over slow service
and unhappiness about the removal of
the pudding parfait,” as well as regular
complaints that there was too much salt
in the oatmeal and not enough mayonnaise
in the turkey wrap. 18 A Washington
Post correspondent decried the “fallingapart
mushy” veggie burger of Justice
Sonia Sotomayor’s tenure, along with a
salmon rice bowl that bore “no resemblance
to any salmon I’ve tasted before.”
The Post even declared that the
cafeteria food under Justice Sotomayor
“should be [declared] unconstitutional.”
19 After this investigative bombshell,
Chief Justice John Roberts sent Justice
Sotomayor a note advising her, “You’re
fired.” 20 More recently, Justice Brett
Kavanaugh said that when he arrived,
he thought it was an “outrage” that the
cafeteria did not serve pizza. He soon
remedied that situation, noting that his
“legacy is secure” and that henceforth he
will be known “as the pizza justice.” 21
Location
My fourth point is about our respective
courts’ locations. Both are in capital
cities, although SCOTUS originally sat
in New York and then in Philadelphia,
before moving to its permanent home in
Washington, DC. 22 You all know about
Washington, so let me tell you a little bit
about Ottawa.
Ottawa is famously rumoured to have
been chosen as Canada’s capital in 1857
by Queen Victoria during a game of
“pin the tail on the donkey” on a map of
Canada. After Her Majesty’s selection,
6 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 7

the American press reported that Ottawa
was impossible to capture because even
the most courageous soldiers would get
lost in the woods trying to find it. 23 You
may be interested in knowing that on a
January day in 2019, Ottawa earned the
distinction of being named the “coldest
capital city” in the world. 24
Perhaps you now understand why it
was necessary for the Parliament of Canada
to legislate a residency requirement
for its Supreme Court judges. Section 8
of the Supreme Court Act stipulates that
all Supreme Court of Canada justices
must live in the National Capital Region
or within 40 kilometres thereof. So when
people ask me where I live, I say that I am
required by law to live in Ottawa.
This statutory residency requirement
has met with mixed reactions. One of the
first Supreme Court justices flouted it
and refused to move to Ottawa. 25 Others
have turned down the job because they
felt that the disadvantages of living in
Ottawa outweighed the benefits of serving
on Canada’s highest court. 26 One retired
judge noted that even when the justices
do make the move, most take “every
opportunity to leave Ottawa.” 27 Let me
pause here to sincerely thank you once
again for inviting me to Florida.
Appointment
My fifth point concerns our respective
nomination and appointment processes.
In Canada, appointments fall along
regional lines. Three justices must be
from the Province of Quebec, and, by
convention, two are from the Western
provinces, one is from Atlantic Canada,
and three are from Ontario.
I understand that SCOTUS has similar
regional requirements. Each of your
justices must have lived at some point
in either Cambridge, Massachusetts, or
New Haven, Connecticut. Some think
this leads to a certain narrowness of
perspective. In 2009, Chief Justice Roberts
defended the status quo, noting that
“Not all justices went to elite institutions.
Some of them went to Yale.” 28
As is well known, the process for being
appointed to the US Supreme Court
is long and invasive. The Senate spends
about a month gathering information
about the nominee. The nominee is then
grilled by the Senate Judiciary Committee
on their qualifications, judgments, and
judicial philosophy, before the Senate
votes on the nomination.
The parliamentary hearing for a Supreme
Court of Canada nominee is much less
onerous. Indeed, it is a quintessentially
Canadian affair. A couple of days after the
prime minister announces the nominee,
a group of senators and members of
Parliament hold a hearing to politely ask
the nominee questions for four minutes
each. Parliament does not vote on the
nominee, whose appointment remains
the sole prerogative of the prime minister.
After a couple of hours of this process,
which is akin to speed-dating with a bipartisan
group of senators and MPs,
you’re handed a gift bag, pointed toward
the Court, and sent on your merry way.
Our press coverage of Supreme Court
appointments is also not as perceptive
as yours. For example, when last year
the prime minister appointed our new
colleague, Justice Michelle O’Bonsawin,
as the first Indigenous justice to the
Court, the press noted that this was
the second historic appointment in as
many years, after my appointment to
the Court the previous year as “the first
black woman.” 29
The hearings
Sixth, our courts share some aspects of
hearing procedure.
On both courts, the justices enter the
courtroom and sit in order of seniority.
The US Supreme Court conveniently has
three doors to the courtroom. The chief
justice and two most senior justices enter
through the centre door, three justices
enter through the left door, and three
through the right. 30
In Canada, all the justices enter together
through a single central door and
alternate by crossing to the left and to the
right in order of seniority. Because we sit
in panels of five, seven, or nine, both the
order and direction of entry can vary, depending
on who is sitting on a particular
case. As a result, the justices sometimes
crash into each other. After one such
collision, former Justice Gérard La Forest
explained to counsel apologetically, “You
know, this is harder than it looks.” 31
Today, parties have 30 minutes each
for oral argument before SCOTUS, and
one hour each before our Court. But this
was not always so. Hearings before the
US Supreme Court used to last several
days. Apparently, to avoid wasting
time, Justice William O. Douglas would
multi-task by writing opinions or articles
during oral argument. At least once, a
hearing was adjourned to permit counsel
time to sober up. And when arguments
were particularly long and inconsequential,
the justices would retire to have
lunch behind a curtain behind the bench,
while counsel continued to make submissions
amid the clatter of china. 32
The COVID-19 pandemic forced both
our courts to adapt their hearing procedures.
The US Supreme Court opted to
conduct remote hearings by telephone.
As is well known, during one hearing in
2020, a toilet flush could be heard during
oral argument. 33 I greatly appreciate
that this hasn’t happened in our Court,
especially since we conduct our hearings
by Zoom.
Law clerks
Finally, let me conclude with a brief comment
on the role of law clerks in our respective
courts. In both countries, law
clerks attract considerable suspicion.
A Canadian newspaper, the National
Post, once described our law clerks as
“recently graduated twentysomething
law students weaned on an ideological
soup of radical feminism, multiculturalism
and moral relativism – who see
the law as a means to translate these
doctrines into public policy without the
intervening necessity of election and
legislation.” 34
In a similar vein, former Chief Justice
William Rehnquist once said that most
law clerks tend to show “extreme solicitude
for the claims of communists and
other criminal defendants, expansion
of federal power at the expense of state
power, [and] great sympathy toward any
government regulation of business.” 35
And Justice Douglas once described his
law clerks, no doubt affectionately, as
“the lowest form of human life.” 36
I don’t share these perspectives. In my
view, our law clerks are brilliant young
lawyers who are utterly devoted to their
judges and to public service. They are
paragons of excellence and virtue. And
I should know: I was once a Supreme
Court clerk myself.
At our court, most clerks research
points of law, prepare memoranda, and
generally assist their judge with their
judicial and extra-judicial duties, including
by preparing speeches for the American
College of Trial Lawyers. The late
Justice John Sopinka often had his law
clerks draft his speeches. He noted that it
backfired only once. On a Friday before
the Canadian Thanksgiving weekend, Sopinka realized that he
had forgotten to delegate a speech that he was to give the following
Tuesday. He had planned a weekend away and wasn’t
able to write the speech himself, so he called in the only law
clerk who was still at the office. 37
“Geoffrey,” Sopinka said, “I am giving a speech on Tuesday.
I want you to draft it and have it for me on Tuesday morning.”
Geoffrey protested that he was attending a family reunion in
Vancouver. “Never mind that,” Sopinka said, “On my desk on
Tuesday morning.”
When Sopinka returned on Tuesday morning, the draft was
sitting on his desk – typed beautifully. He glanced over the
draft and decided that it looked very good. In the taxi to the
speech venue, Sopinka began to read it carefully. The quality
was excellent: It raised some fascinating questions to be
Notes
1. Philip Slayton, Mighty Judgment (Toronto: Penguin, 2011), 24.
2. Joan Diskupic and Elder Witt, The Supreme Court at Work, 2d ed
(Washington DC: Congressional Quarterly, 1997), 3–4.
3. Slayton, supra note 1, 24.
4. Ibid.
5. Ibid, 25.
6. Diskupic and Witt, supra note 2, 115–19.
7. Ibid, 115.
8. Slayton, supra note 1, 25.
9. Ibid, 25.
10. James Johnston v The Minister and Trustees of St. Andrew’s Church,
Montreal, [1877] SCR 235.
11. Brassard v Langevin, [1877] SCR 145.
12. Slayton, supra note 1, 26.
13. Ibid.
14. See, e.g., Allan Levine, William Lyon Mackenzie King: A Life Guided by
the Hand of Destiny (Madeira Park, BC: Harbour Publishing, 2005), 402;
Christopher Dummitt, Unbuttoned: A History of Mackenzie King’s Secret
Life (Montreal and Kingston: McGill-Queen’s University Press, 2017),
66–67.
15. Chief Justice Beverley McLachlin, “Remarks of the Right Honourable
16. Ibid.
Beverley McLachlin, P.C.,” at the Mayor’s Breakfast Series” (Ottawa:
25 November 2014); online at https://www.scc-csc.ca/judges-juges/
spe-dis/bm-2014-11-25-eng.aspx.
17. Constance Backhouse, Claire L’Heureux-Dubé: A Life (Vancouver: UBC
Press, 2017), 335.
18. Jess Bravin, “Supreme Court’s Junior Justice Has to Run the Cafeteria.
Don’t Eat There,” Wall Street Journal (20 July 2017).
19. Tommy Tobin, “Brett Kavanaugh, the ‘Pizza Justice’: The Latest Chapter
in the Supreme Court’s Food History,” Forbes (19 November 2019);
online at https://www.forbes.com/sites/tommytobin/2019/11/19/
a-pizza-justice--food-at-the-supreme-court/?sh=6ae76f1e7707.
20. Bravin, supra note 18.
21. Tobin, supra note 19.
22. Diskupic and Witt, supra note 2, 4–6.
answered in the conclusion. Sopinka arrived at his destination
before he could read the conclusion, but he was confident that
it would not disappoint.
Sopinka rushed inside the lecture hall. He was already being
introduced as he entered. The speech turned out to be even
better when delivered live. The rapt audience listened attentively
as Sopinka began to read the conclusion: “In conclusion,
as promised, here are my answers to the perplexing problems
which I have raised ...” The text of the speech then continued,
in block capitals: “NOW IMPROVISE, YOU S.O.B.”
Conclusion
Thank you again for conferring on me the privilege of becoming
an honorary fellow of the American College of Trial
Lawyers. And thank you for your attention.
23. Britannica (online),“Know the Reason Why Queen Victoria Chose
Ottawa as the Canadian Capital”; https://www.britannica.com/
video/187528/Victoria-capital-Ottawa-Canadian.
24. CBC News, “Ottawa Freezes Its Way to Coldest Capital City in the
World” (19 January 2019); online at https://www.cbc.ca/news/
canada/ottawa/coldest-capital-city-in-world-1.4985296.
25. Slayton, supra note 1, 24–25.
26. Ibid, 219.
27. Ibid, 214.
28. Adam Liptak, “The Road to a Supreme Court Clerkship Starts at
Three Ivy League Colleges,” New York Times (6 February 2023); online
at
29. “Canada Nominates O’Bonsawin as First Native Supreme Court
Justice, TopWireNews.com; online at https://news.topwirenews.
https://www.nytimes.com/2023/02/06/us/supreme-court-ivyleague-harvard-yale.html.
com/2022/08/19/canada-nominates-obonsawin-as-first-nativesupreme-court-justice/.
30. Supreme Court of the United States, “Visitor’s Guide to Oral
Argument”; online at
visitorsguidetooralargument.aspx.
https://www.supremecourt.gov/visiting/
31. Kirk Makin, “Justice Ian Binnie’s Exit Interview,” Globe and Mail (23
September 2011); online at https://www.theglobeandmail.com/
news/national/justice-ian-binnies-exit-interview/article555452/.
32. Diskupic & Witt, supra note 2, 73–77.
33. “US Supreme Court Hears Toilet Flush During Oral Arguments – A
First,” BBC (7 May 2020); online at https://www.bbc.com/news/
world-us-canada-52572986.
34. Slayton, supra note 1, 236–37.
35. Jeffrey Toobin, The Nine: Inside the Secret World of the Supreme Court
(New York: Knopf Doubleday, 2008), 55.
36. Diskupic and Witt, supra note 2, 108; Slayton, supra note 1, 235.
37. John Sopinka, “The Many Faces of Advocacy,” in David Stockwood
and David E Spiro, eds, Ethos, Pathos, and Logos: The Best of the
Advocates’ Society Journal 1982–2004 (Toronto: Irwin Law, 2005), 7–8.
The anecdote actually relates to when Sopinka was in practice.
8 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 9

FEATURE
Annals of law: Lac Minerals v Corona –
the new trial that wasn’t
Ronald G. Slaght, KC, ASM, LSM
It all began in mid-August 1988. I’d had an enjoyable summer,
pleasant and productive enough, with plenty of time to
manage my hurly-burly practice, contemplate a holiday, and
still finish the one major task at hand. The fall was shaping up
to be a different story.
We had a few weeks yet to complete and deliver our factum
to the Supreme Court of Canada for our client, International
Corona, responding to Lac Minerals’ appeal to that Court
from the dismissal of its appeal by the Ontario Court of Appeal
in October 1987, following a 10-day hearing in November
1986. Lac was appealing from the decision of the trial judge,
R.E. Holland J, whose reasons were released in March 1986,
following a five-month trial.
Justice Holland had awarded our client on remedial constructive
trust principles the prize it had pursued in the litigation
– the Williams property, a gold field of significant potential
located in the Hemlo area of northern Ontario. The trial
decision deprived Lac of the lands it had snapped up out from
under Corona while the parties had been negotiating toward
some form of joint enterprise.
Consistent with the outsized nature of this litigation, the
Supreme Court had made an order permitting the parties to
deliver factums of 60 pages. Lac delivered its tome on June
30, 1988. Ours was due two months later, on August 31.
The argument was to proceed over two days, commencing
October 11, 1988.
For Alan Lenczner and for me, this was the best of times in
this high-stakes, all-consuming litigation that had occupied a
good deal of our minds and bodies for a few years. 1 We had
succeeded below, in two courts, by advancing pared-down
basic principles of fiduciary law and the law of confidence,
both well established in niche sectors but now imported by
these decisions into the world of mainstream commerce. We
had clothed these principles within the framework of the compelling
facts we had established at trial and admissions we had
secured at discovery. We had succeeded in establishing that
the law would protect a vulnerable commercial party in circumstances
like these and that the only appropriate remedy in
this case was disgorgement. Our argument was founded on the
uniquely Canadian law of the constructive trust as a remedy.
We now had the approval of two strong courts – a healthy
foundation for the upcoming appeal where the novelty of our
arguments was going to be put against us once again.
So it was enjoyable working through the facts and the law
one more time, countering the arguments from the other side,
which were all rooted essentially in “floodgates fears” – that
if this decision were to stand and these principles were loosed
upon the world of commerce, business relations would become
an uncertain place, without the necessary certainty and predictability,
and ultimately would devolve into an after-the-fact
second-guessing exercise by courts as they entertained each
new set of facts coming before them.
Alan and I were certainly very much alive to the risks we
faced in the upcoming appeal. We had succeeded below in extending
the reach of fiduciary duties, drawing from the special
relationship cases (lawyer-client, trust) and from other areas,
such as government duties owed to Indigenous Peoples. We
had moved those principles into the world of commercial and
business relations in circumstances like ours where the parties
had no contract, no partnership, no joint venture, and no
debating, refining, and putting down our arguments in antici-
In any event, this is where we stood in mid-August 1988,
confidentiality agreement, and where very little was reduced
pation of the last go-round in October.
to writing, but where a junior mining company, as was commonplace
in Canadian mining affairs, was negotiating toward
The gathering storm
a relationship with a senior mining company to develop what
An inkling of trouble for my vision of how the rest of that summer
might unfold surfaced on August 8. Alan came around to
appeared to be a new ore body with great potential.
As to the law of confidence, we had established new ground
say he had just had a call from J.L. McDougall, one of Lac’s
there as well, relying on principles that were well accepted
counsel, to say that Lac had obtained some kind of appointment
before the Supreme Court to speak to the matter on
in special circumstances; for example, where courts would
impose obligations on parties in intellectual property cases,
August 11. Alan had been unable to extract from J.L. what
trade-secrets matters, and patent disputes, and also where it
this was all about. All that was said was we would find out
was understood that obligations of confidence would arise,
when we got there. A call to Reg Boudreau, our contact at the
such as in tax cases between governments and taxpayers.
Supreme Court registry, confirmed there was indeed an appointment,
and we were expected to attend.
I have reflected often enough over the question why, after
more than 30 years, Lac Minerals v Corona continues to strike
Adding to the atmosphere of strange goings on, August
a note in the memories and imaginations of lawyers, young
11, 1988, was no typical summer day. It was cold and rainy,
and old. Alan and I still field questions and comments about
a low of 9 degrees and miserable. As we got ourselves to
the case, and it is still cited frequently for one proposition or
Ottawa that morning and duly showed up on Wellington Street
another.
in anticipation of who knows what, little did I realize I was
Of course, it was the classic underdog-beats-bully tale, with
about to experience one of the more memorable encounters in
enormous value at stake. And if we’d lost, maybe a fade into
my years at the bar. Alan and I were ushered into a relatively
history would have been its path.
small conference room, windowless as I recall, where already
But, too, there were significant issues of law with future
gathered around the table were not only J.L. McDougall
consequences decided here. And as the matter moved along,
and Earl Cherniak, Lac’s counsel in the upcoming appeal, but
everyone had an opinion: academics, the media, the stock
also someone completely new to the scene, Bill Sasso from
market. And this didn’t end with the final result. Serious
McMillan Binch, with junior counsel. Alan and I had known
issues of extra-contractual commercial law and the boundaries
of business behaviours were decided and not revised in a
case and his presence was of course a surprise to an almost
Bill for years but he had never had anything to do with this
comprehensive manner until Bhasin v Hrynew in 2014. 2 shocking degree.
Counsel gather for a photograph after arguing a motion on the deck of the Honourable Justice Holland’s country home in Caledon, Ontario.
Left to right, standing: Alan Lenczner, Thomas Dunne; seated: Ronald Slaght, Peter Atkinson, Fred Cass.
I remember the circumstances well. There we all were,
dressed in our finest blue suits and white shirts, and high tension
filled the room, apparent from the body language between
Bill on the one hand and Earl and J.L. on the other.
Bill pushed across the table a thin record, which appeared
to contain a notice of motion but without any supporting
material. No one spoke. We waited.
In a short time, the door opened and in strode the chief justice
of Canada, Brian Dickson. He evinced a pleasant demeanour
and, quite remarkably, was kitted out in Bermuda shorts and
a golf shirt. He gave the room a quick glance, looking inquiringly
for someone to speak up with the introductions and then
asking, “So what’s this all about?”
Bill Sasso started into his explanation of things. He began
by saying that he represented Lac Minerals and that Lac was
bringing a motion to set aside the trial judgment on the grounds
of fraud and perjury. He was there to seek directions from the
Court about the upcoming appeal. Although Alan and I were
unaware of it, apparently rumours had recently been circulating
in the mining media that Lac was bringing such a motion.
As we learned later that day, Lac had obtained a one-day motion
date in weekly court for October 27, 1988, apparently in
the belief that the whole matter could be dealt with in one day
in motions court.
Bill was barely launched into this further description when
the chief justice interrupted and said, “But what has this got
to do with us?” Bill then attempted to explain further, but the
chief made it quite clear by body language and his next words
that the Court was not in the slightest interested in hearing
anything more, that the date, October 11, 1988, for this appeal
10 | FALL 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2023 | 11

had been long established, and that the
Court would be proceeding with the
arguments on that date.
The chief justice then looked around
the room and queried, “Is there anything
else?” And before anyone had a chance
to say anything else, he was out of the
chair and out the door with a friendly
“have a good summer.”
That was that. We caught the next
shuttle back to Toronto.
Before continuing, I should back up a
bit and explain what the Corona/Lac case
was really all about. We had a five-month
trial concluding with reasons in March
1986. Many issues were ventilated, but
in essence the claims we advanced on
behalf of Corona had become by the end
of the trial quite straightforward. (In the
last of many frustrations for our worthy
adversaries, we delivered our final statement
of claim at the argument.)
In 1980, Corona was a junior mining
company listed on the Vancouver Stock
Exchange (VSX) whose principal was
Murray Pezim, a well-known Vancouver
stock promoter. Corona optioned 17
mining claims at Hemlo, an area near
Marathon in northern Ontario. These
claims, and about 150 in total, had been
staked by two prospectors, Donald
McKinnon and John Larche, beginning
in 1979 and continuing into July 1980.
Corona’s 17 claims and other claims
staked by McKinnon and Larche surrounded
a property known as the Williams
property, which consisted of 11
mining claims that were not open for
staking because they had become patented
or fee-simple claims in the 1940s.
There were gold showings, sporadic earlier
shallow drilling, and some assays,
including from the Williams property,
known to exist at Hemlo for a long period.
These staked claims and the Williams
patented claims ultimately resulted in
three producing gold mines with extraordinary
value, operating only a stone’s
throw from the Trans-Canada Highway.
Corona began to drill its claims in
1980, in the hands of David Bell, a young
geologist who was following his own
theory of where and how gold might be
found on these lands. Some results were
being published, and the promoters were
doing their thing on the VSX.
The evidence was that, at Bell’s urging,
Corona wanted to purchase the
neighbouring Williams property and in
dramatic, contested evidence at trial,
both Murray Pezim and Donald McKinnon
gave evidence that they had had a
telephone conversation in which Pezim
had instructed McKinnon and McKinnon
had agreed to try to obtain the Williams
property for Corona from the widow
Williams.
Lac heard about the developments at
Hemlo, and its chief geologist, Dennis
Sheehan, visited the Corona property
and met with David Bell. In some dramatic
evidence, Bell described the drilling
program and walking with Lac’s
chief geologist to the Corona property
boundary overlooking the Williams
property. He told Mr. Sheehan his view
that gold in this area would be found in
pods, and he believed a pod would be
found on the Williams land in an area to
which he pointed and, further, that Corona
had someone out there looking to
obtain that patented ground.
There were other dealings plus exchanges
of information and documents
between the parties, and the trial judge
found that Corona and Lac were negotiating
together toward a joint venture.
In the meantime, Lac both staked its own
claims in the area and set about to try to
find the widow Williams and purchase
the Williams property for itself. McKinnon
found Mrs. Williams and was in the
course of making a proposal when Lac
appeared on the scene with its own proposal.
Mrs. Williams opted for the senior
company, Lac, rather than the untested
junior, Corona.
Relations came to an end and Corona
sued Lac, seeking a transfer of the
Williams property or, in the alternative,
damages (which were assessed by the
trial judge at a much undervalued $700
million). After a few fits and starts, the
action got seriously underway in 1983,
resulting in a trial in October 1985, a trial
decision in March 1986, a 10-day appeal
before a five-judge court in November
1986 with reasons almost a year later in
October 1987, and, ultimately, a Supreme
Court of Canada appeal in October 1988.
First, the trial judge found that the
parties were engaged in negotiations,
and fiduciary duties, obligations of good
faith, and industry practice resulted in
obligations in law owed by Lac to Corona
not to act to Corona’s detriment and
secure property that it knew Corona was
seeking to obtain while the parties were
negotiating. Second, Lac owed Corona
an obligation of confidence arising out
There were several affidavits filed, including one from a private
investigator, Bruce Dunne, who became the central figure
in this drama. Another was from one Edward Bonaventure
O’Neill, who described himself as a licensed prospector and
whose evidence dealt with the staking of 12 specific claims at
Hemlo, which were the subject of an application to record, purportedly
signed by him, filed in the mining recorder’s office in
Thunder Bay and recording that O’Neill had staked these 12
claims by proper practice in December 1979. In his affidavit,
Mr. O’Neill swore that he had not in fact staked these claims,
had not affixed proper tags, and did not believe that he had
signed the application to record. Further, he was not in the
Hemlo area on the dates that the application stated the staking
had occurred. He swore that the application to record was a
false record and that he had no knowledge of the recording of
these 12 mining claims in his name or any subsequent transfers
that had occurred.
This evidence was certainly startling on its face. Our difficulty,
however, was that the motion record did not tie any of
what Mr. O’Neill was saying into any evidence that Donald
McKinnon had given at trial. There were no particulars of the
alleged false and perjured evidence to be found anywhere in
the motion record. A copy of McKinnon’s two days of trial evidence
had been included as a separate filing but without any
specificity relating any of it to Mr. O’Neill’s statements.
There was also an affidavit from one Michael Pickens. Mr
Pickens went on at some length about how he ran a contract-staking
outfit in Timmins and had hired John Larche, the
other prospector who had been active at Hemlo and ultimateof
the disclosure of information including
that Corona was seeking to obtain
the Williams property for itself. The
trial judge made a specific finding that
but for the actions of Lac, Corona would
have obtained the Williams property,
and this formed the foundation for the
remedy which Justice Holland imposed:
the disgorgement to Corona of the
Williams property upon which at that
point stood a producing mine. The trial
judge, as the Court of Appeal affirmed,
specifically accepted the evidence of
Pezim and McKinnon that Corona had
intended to acquire the Williams property
and that McKinnon was intending
to acquire that property on Corona’s
behalf. Other evidence supported both
propositions as well.
On our return to the office on August
11, we learned we had been served that
morning with Lac’s motion record – two
thin volumes. As we pawed our way
through it for the first time, the gist of
the allegations seemed to be that one of
our trial witnesses, Donald McKinnon,
had committed perjury and fraud and
given intentionally misleading evidence
related to material facts on which the
Court had relied. The motion asserted
that this discovery of perjured testimony
had not been made by Lac until after the
trial and after Lac’s appeal to the Ontario
Court of Appeal.
The motion was founded upon rule
59, the omnibus rule dealing with orders
and judgments, particularly subrule
59.6(2)(a), which I don’t believe I’d even
read before and which established a procedure
for a party moving to set aside
a judgment or order on the grounds
of fraud. McMillan Binch was counsel
of record for the motion. Neither J.L.
McDougall’s firm, Fraser & Beatty, nor
Earl Cherniak was to be found anywhere
on the motion record.
As we came to learn shortly, yet another
firm, Torys, had been deeply
involved managing an investigation on
behalf of Lac Minerals that had led to
this discovery of allegedly false evidence
– an investigation that had begun as
early as April 1986, or just about one
month following the release of R.E.
Holland J’s trial decision. As we learned
in our subsequent examinations of witnesses
on this motion, the purpose of this
exercise had been to seek out and obtain
evidence that could lead to overturning
the trial judgment.
Legal Accounting & Billing
Microsoft 365 Integration
Support & Training
BOOK A CONSULTATION
ly became Don McKinnon’s partner, to stake these same 12
claims. Larche had returned the instructions, advising Pickens
that the claims had already been staked and were not available.
The allegation seemed to be that McKinnon and Larche, who
was not a witness at trial, had colluded in the staking of these
claims, cutting out Pickens’s client, identified as Robert Schaaf,
and covering up what they had done.
Again, there was nothing in the record relating these allegations
specifically to McKinnon. As we subsequently learned,
these allegations were already the subject of an entirely separate
lawsuit brought by a company called Scintilore Explorations,
with which Schaaf was connected. Scintilore was seeking
the proceeds of all of Larche and McKinnon’s staking at Hemlo,
staking that had made them wealthy men.
There was no affidavit from anyone at Lac Minerals. There
was no affidavit from any of Lac’s many trial and appeal counsel
attesting to the significance and materiality of any of this
alleged false evidence of McKinnon.
Even at this early stage, we were having considerable difficulty
identifying the significance of these allegations in the
overall scheme of what the case had actually been about. We
did know that the 12 claims raised in O’Neill’s evidence were
not the claims that constituted Corona’s own property. Corona’s
claims, ultimately 17 of them, were acquired through
various agents from the original stakers, McKinnon and
Larche, and tied on to the east end of the Williams property.
The 12 claims raised in O’Neill’s evidence tied on to the west
end of the Williams property, ground that had no relevance or
particular significance to anything in our lawsuit.
Everything you need to run a law firm
Details & Correspondence Calendar & Tasks Financial Summary Time & Fees General Account Trust Funds Safe Custody
Save &
Close
DETAILS
180025
James Stevenson
Applicant
Ms Sally Penfold
Matter type
Property Division
Respondent
Mr Paul Penfold
New
Document
Respondent's lawyer
Harris & Jacobs Solicitors
Mr Joshua Harris
Client correspondence
181 University Ave, Toronto, ON M5H 3M7
Critical fam law details
New
Email
Forms &
Templates
IN PROGRESS
New
Comment
Import
Share
Document
Matter New Correspondence
LawConnect Mobile
Microsoft Teams
CORRESPONDENCE
TYPE ITEM STAFF MODIFIED
Correspondence
James Stevenson
Sally Penfold and Paul Penfold Property..
James Stevenson
jharris@email.com
Financial Statement
James Stevenson
Your Settlement/Property Affairs
jharris@email.com
Trust Statement
Costs agreement - Property Settlement
Letter to Mr Penfold
James Stevenson
Search correspondence
leaplegalsoftware.ca | 1-437-900-2140 | sales@leaplegalsoftware.ca | 88 Queens Quay West, 25 th Floor, Toronto ON, M5J 0B6
eSignature
Message
Send
Document
JS
JS
JS
JS
JS
JS
JS
Timesheet
Time & Fees
9:36 AM
9:32 AM
Apr 2, 2020
Mar 29, 2021
Mar 29, 2021
Mar 28, 2021
Mar 27, 2021
Secure Document Management
Cloud Solution & Mobility
Automated Court Forms & Precedents
12 | FALL 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2023 | 13

Bruce Dunne’s affidavit evidence
Bruce Dunne described himself as a private investigator, with
a business centred in Alberta. He had been retained by Kroll
Associates, the well-known private investigation firm in New
York, which he said was in turn employed directly by Lac Minerals.
This retainer had begun in April 1986, or just about one
month after Justice Holland had released his trial decision.
Nowhere in the affidavit did he say exactly what he was employed
to do in this investigation although, as we learned from
him in cross-examination, his instructions and those of Kroll
were to find evidence to set aside the trial judgment. The facts
that O’Neill and Pickens swore to in their affidavits on the motion
were dug up by Bruce Dunne in the course of his investigations.
As early as the summer of 1986, he had received a tip
that there were discrepancies relating to the staking of certain
claims by McKinnon and Larche.
Dunne took some trouble in his affidavit to emphasize that he
had had no discussions about these claims-staking allegations
with J.L. McDougall or Earl Cherniak or any other counsel involved
in prosecuting Lac’s case. This effort seemed peculiar
at the time, and it came back to haunt Lac in the course of our
subsequent work unravelling what had actually happened.
Dunne went on to say that he had interviewed Pickens in
October 1986 and Robert Schaaf, Pickens’s client, in November
1986. Dunne and his associates continued their investigations
and first interviewed O’Neill in January 1987. We noted that
all of this was occurring around the same time the Court of
Appeal was hearing Lac’s appeal.
What was of particular interest is that Dunne swore in his affidavit
that by February 1987, or about a year and a half before
Lac launched this motion, he had completed his investigations
and had reported the findings set out in his affidavit and contained
in the O’Neill and Pickens affidavits to “his employer.”
Dunne concluded by saying that after reporting to Lac and its
agents, he had been granted permission by Lac to continue investigating
on behalf of Scintilore and that thereafter he had
been assisting Scintilore in its case proceeding in the High
Court of Justice against McKinnon, Larche, and others.
Particulars and production
All in all, on first impression, this looked like pretty thin gruel as
grounds to overturn what was then, and may still be today, the
most valuable award ever made in the annals of Canadian law.
Alan and I made a number of quick decisions that August
afternoon. First, there was no way we were going to have this
matter determined as a motion in weekly court. We wanted the
trial of an issue and the evidence to be heard in open court. We
set a goal to have the case heard before the October Supreme
Court of Canada hearing date.
I’ve never been a big fan of demands for particulars; they
are a recipe for delay and conflict between counsel, and most
end up with precious little value added. In this case, however,
we needed particulars to understand what it was McKinnon
was supposed to have said about these matters but also to pin
Lac down to the specifics of what was being alleged to be perjury,
what was said to be fraud, and what were the boundaries
of McKinnon’s evidence that we had to deal with. We served
McMillan, Binch with a demand for particulars that afternoon.
Bill Sasso was reasonably quick to respond, and by August
15 we had a reply. It was helpful. Apart from a lot of argument,
there was very little actual evidence to examine. McKinnon
had given quite a bit of background evidence-in-chief at trial
about how he had come to stake more than 150 claims in the
Hemlo area, some with John Larche when they became handshake
partners rather than competitors.
McKinnon, as part of this background, said in his evidence
that he had staked the 12 claims in issue in December 1979.
We now knew that the application to record that was filed recited
that O’Neill did the staking – and the tags were those of
O’Neill, not McKinnon.
The allegation appeared to be that McKinnon had lied about
staking those claims and had intentionally misled the Court in
failing to explain O’Neill’s role in all this.
There were no excerpts of evidence from J.L. McDougall’s
cross-examination in the reply.
A second allegation was that McKinnon had lied about the
formation of his partnership with John Larche when he told the
Court that he had met Larche after staking these claims. The
truth was allegedly that he and Larche had met and agreed to
stake the claims that Larche had been contracted to stake for
Pickens, thus depriving Pickens’s client, Schaaf (Scintilore), of
those claims.
Of course, all this needed some serious work by us, but these
allegations were strangely reassuring. It was clear that whatever
had gone on in the bush, McKinnon’s evidence had nothing
whatsoever to do with the issues in the main action. In fact,
back in the day, Alan and I had debated whether we would
even call McKinnon as a witness. We certainly were not calling
him to establish anything about the staking that he, Larche,
and others had done in the Hemlo area. By the time of the trial,
all this was ancient history and there were three working mines
on the properties that the prospectors had staked or located.
Why we called McKinnon in the end was because he had important
evidence to give – not the only evidence on the point,
but nonetheless significant evidence – about Corona’s intent
to secure the Williams property. McKinnon gave evidence, as
did Murray Pezim, of a conversation they had in which Pezim
asked McKinnon to locate Mrs. Williams and, if he could, obtain
the Williams property for Corona, and McKinnon said he
would do so. This evidence had significance in the event that
we had to meet a but-for test, which Justice Holland found that
we needed to, that without the actions of Lac, Corona would
have obtained the Williams property. That was why we called
Don McKinnon, and that was the only McKinnon evidence
found relevant by the trial judge as he made his findings in
the case.
We also had an initial look at the law. There were surprisingly
few relevant cases, but we did realize that the trial judge,
R.E. Holland J, had jurisdiction to determine the issues on this
motion. Our first thought was to seek the trial of an issue before
him. Justice Holland of course had familiarity with all the
evidence, the background, the parties, and the nature of the
issues that mattered, and he was an obvious choice particularly
with the limited time we had given ourselves.
The leading decision was a 1937 case from the Supreme
Court of Canada, Glatt v Glatt. 3 In Glatt, the Supreme Court
established a due diligence test, that a judgment would not
be set aside on the grounds of fraud, even if the fraud were
proved, unless it was also proved that the evidence relied
upon could not have been discovered by the party complaining
through the exercise of reasonable diligence. This reflects the
fundamental principle that finality of judgments is paramount
in our system of law. This bedrock principle would be imperilled
unless this rule were applied with the utmost strictness.
I noted specifically that in Glatt, the Court had drawn an
adverse inference against the applicant for its failure to call its
trial counsel to give evidence about what was material about
the alleged fraudulent evidence in that case.
A second case, 100 Main Street East, 4 held that a fraud or perjury,
in order to be actionable, need only be material to the
decision sought to be impugned. The applicant did not have
to meet a but-for test in order for a judgment to be set aside.
With these principles now understood, the next immediate
step we took was to demand full production from Lac of all its
documents and records prepared in contemplation of, during,
and after the course of the trial down to the date it launched
this motion in August 1988. And we wanted the complete record
of its investigation. And we wanted all of Lac’s privileged
documents. We believed the latter should flow from the
due diligence test established in Glatt. It seemed logical to us
that to test the proposition that Lac had itself asserted in its
Motion Record – that it did not know of the impugned evidence
until shortly before the materials were filed on the motion – we
should be entitled to production of all Lac’s trial documents,
and its investigation, including its privileged documents.
If Lac knew or could have known about this impugned evidence,
quite apart from the issue of materiality, the proof of
that would be found in its records, which on the basis of what
we had seen to date, we speculated no one on the other side
had even looked at in anticipation of bringing this motion.
Bill Sasso rejected our production demands out of hand,
arguing that production should come only in the course of the
litigation, when all parties had taken their positions and filed
their affidavits upon which they intended to rely. This was unacceptable
to us and we needed to get before a court to establish
the ground rules under which this motion would proceed.
After our initial review of the materials, and sending off our
particulars and production demand, our goal was to obtain an
order and directions that the matter would proceed by way of
a trial of an issue, and to obtain a schedule and a date for that
trial. Bill Sasso was cooperative in these scheduling matters,
and we secured an appearance before Chief Justice William
Parker of the High Court for August 15. 5
We told Chief Justice Parker that Justice Holland, who had
jurisdiction to hear the matter, was the ideal judge in view of
the seriousness of the allegations, the necessary speed with
which the matter had to be dealt, and of course the deep background
that the trial judge would have about the trial evidence
and its materiality to the issues at hand. Shortly afterward,
we received word from the chief justice that he had spoken
with Justice Holland, who would see us in his chambers to discuss
what this was all about. We obtained an appointment for
August 17, 1988.
Counsel trooped up to see Justice Holland on August 17, and
he made two highly significant orders on that date, consistent
with his well-known no-nonsense approach to civil disputes.
First, he decided that he would not hear the merits of the motion.
He would secure a judge for us who would meet with
counsel to establish the rules, timetables, and schedules for the
proceeding. Justice Holland went on to direct, however, that
because of his knowledge and the obvious need for expedition
in the process, he would assume control of the interlocutory
matters arising during the pre-trial period and make himself
available to deal with them as they arose. This was a very significant
step taken in ensuring that we could get through the
matter in a timely way.
Most importantly, however, after argument on the issues of
both materiality and due diligence, Justice Holland made a
far-reaching production order that essentially pierced the veil
of Lac’s entire trial preparation and its investigation, including
its privileged materials for both.
Justice Holland directed as follows:
Lac Minerals Ltd. shall produce all documents, memoranda,
statements and recording in its possession, control or power
with respect to the question on when the information
which is the subject matter of the Motion Record came
to the attention of Lac, its authorized representatives or
counsel.
One can readily appreciate the game-changing significance
of this direction. It was, of course, highly ironic that Fraser &
Beatty, who had fought long, hard, and well over many years
in this litigation, was not present at this motion and, according
to Bruce Dunne’s affidavit evidence, had never been consulted
about the issues that Lac had raised in this proceeding.
This order and others that followed set off a tumultuous
and chaotic two-month race to get to the finish line before our
October date in the Supreme Court of Canada.
The pre-trial period: August 17–September 18, 1988
Justice Holland soon advised counsel that Justice Coulter
Osborne had agreed to hear the matter. We met with Justice
Osborne, who ordered the motion to proceed as a trial of an
issue and set September 8 for commencement of the hearing.
This date proved impossible in the circumstances, and
Justice Osborne ultimately adjourned the trial to commence
September 19, 1988.
The following month of all-out activity from our perspective
was in pursuit of two intertwined strategies. First, we needed
to review quickly and get our heads around the production of
documents that had been ordered on August 17, and particularly
Lac’s files lodged at Fraser & Beatty, and all the records of
the investigation to be found in many places – an investigation
that had now been ongoing for more than two years. Second,
we intended to and did conduct multiple examinations of
witnesses on the pending motion over the course of this onemonth
timeframe.
To give some perspective on this task, over that next 30 days
or so Justice Holland heard at least eight motions for directions
and issued many orders arising out of the events that
were transpiring in real time.
In addition, 10 witnesses were examined; these included
Edward O’Neill; Lac’s in-house counsel; Lac’s trial counsel;
and Lac’s lawyer in charge of the investigation. Bruce Dunne,
the detective, gave evidence over three days. He and other
witnesses returned to answer questions following motions in
respect of refusals and production issues that arose during the
examinations. Don McKinnon and John Larche were examined
by Bill Sasso.
And then there was the small matter of our Supreme Court
of Canada factum. We managed to get that completed, barely.
14 | FALL 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2023 | 15

An articling student flew to Ottawa with
the requisite copies and related materials,
which were filed in the registry in
the afternoon of August 31, 1988.
What became clear as we got deeper
into the weeds was that Lac Minerals
had actually parked its investigation into
these alleged wrongdoings as early as
November 1986 and finally by February
1987. Bruce Dunne’s investigative activities
had continued after that point, not
for Lac but rather on behalf of Scintilore,
the company that had emerged as the alleged
undisclosed principal for the staking
Pickens had retained John Larche
to carry out in December 1979. Messrs.
McKinnon and Larche were represented
by counsel in the Scintilore claim: Tom
Dunne for Don McKinnon and Peter Atkinson
for John Larche.
As we began to receive the productions
that had been ordered, we moved
before Justice Holland to require Scintilore
to produce the continued investigation
material that Bruce Dunne had
generated on its behalf and all materials
that it had received from Lac Minerals,
including the earlier investigations.
Justice Holland made this order
on August 31, 1988, and on the same
day upon motion by them, Messrs. Mc-
Kinnon and Larche were added as parties
to the main action, limited strictly,
however, to the issues to be litigated in
the motion to set aside the trial judgment.
The result of all this was that Bill Sasso
was now facing three sets of counsel and
massive production obligations on a realtime
basis, as the examinations got
underway in early September and continued
down to September 18, the day
before the trial started.
What was of particular significance to
us was that Edward O’Neill, who was
the main witness put against McKinnon,
was also deeply involved in the Scintilore
case. He had given at least three
affidavits in that case, and a couple of
formal statements. We obtained those
affidavits in the course of production,
and it became perfectly obvious that
Edward O’Neill was not a witness who
had any reliability about much at all. For
example, in an affidavit dated April 24,
1987, O’Neill, contrary to what he swore
in his affidavit in this proceeding, swore
that he did in fact stake the 12 claims at
issue in the winter of 1979.
In a subsequent affidavit, just months
later, July 24, 1987, O’Neill swore that he
had not staked those claims. In various
places in his interviews and affidavits,
he said that he had in fact signed the application
to record and that he had given
Don McKinnon his authority to register
the claims in the Thunder Bay mining recorder’s
office.
One amusing episode that emerged
was an interview of Ed O’Neill by Jennifer
Wells, a business reporter who had
followed the Lac-Corona trial closely
and had written many articles about the
case. She had learned of the claims being
made by Scintilore and interviewed Edward
Bonaventure O’Neill for an article
in the Financial Times that began:
The trouble with O’Neill is that when
he tells his story straight-out, he
doesn’t stay on track. He admits to
scamming mining companies in the
past; he relishes being a “natural-born
expander of the truth.” 6
Mr. O’Neill described himself in this
article as “Edward B**********, that’s B for
Bullshitter, O’Neill.” There were other
such admissions (and contradictions)
sprinkled throughout the article. We
subpoenaed Jennifer Wells to come
to the trial, but in the end that proved
unnecessary.
The real difficulty we encountered
during this period was that although
Justice Holland had made production
orders in the broadest terms, including
production of what would otherwise be
privileged documents in the hands of
Lac, its lawyers, and its investigators,
Bill Sasso continued to take the position,
including in the cross-examinations and
in respect of production, that Lac was
entitled to review the documents first
and exclude privileged materials that it
considered irrelevant. As a result, we
were getting only partial production.
This matter came to a head before Justice
Holland in a motion on September
12, 1988. Adding to the other-worldly
nature of this entire proceeding, this
motion was argued on the deck of Justice
Holland’s country property in Caledon,
where he was on holiday. Counsel
drove to Caledon, outfitted in our suits,
to deal with these important issues. It
was a beautiful summer morning, the
sun was shining, the coffee and muffins
were delicious, and the views from the
deck marvellous. Justice Holland on that
occasion reiterated that his production
orders were to be interpreted broadly
and that questions of privilege and
relevance were not to be predetermined
by Lac or its counsel.
Lac sought an expedited leave to appeal
from this order, which was dismissed
by Justice Douglas Carruthers.
To deal with this explosive material,
Justice Holland next volunteered to attend
in person to review documents over
which claims of privilege and relevance
were being made by Lac. On two occasions
in mid-September he did exactly
that, convening counsel in a boardroom
at Fraser & Beatty and going through
documents that had been gathered up
pursuant to his production orders and
determining, on a document-by-document
basis, what documents – including
from the files and from the wide
ranging investigations undertaken by
Lac – should be produced. With that
added assistance, we managed to get
through the pre-trial proceedings, as I
have said, with the last examination occurring
on the day before the trial started.
The trial of the issue
The trial began on September 19, 1988.
There were 10 days of evidence, and the
argument concluded on October 7, just a
few days before the appeal was to start in
Ottawa. At the conclusion of the argument,
Justice Osborne reserved his decision. 7
As we look back at it now, the result
may seem inevitable. But at the time,
nothing appeared certain. We were just
trying to get through the case, dealing
with witnesses and still trying to digest
and understand the massive production
that followed from the orders Justice
Holland had issued.
As its witnesses at the trial, Lac called
Bruce Dunne, the detective; Michael
Pickens, who ran the contract-staking
outfit; and Ian Hamilton, Lac’s in-house
counsel. None of them fared well.
Edward O’Neill did not appear as a
witness at this trial. Neither did any of
Lac’s many counsel. O’Neill’s affidavit
was struck from the record.
Mr. Hamilton confirmed in crossexamination
that Bruce Dunne had
brought evidence that Lac was now
relying upon to claim fraud, perjury,
and collusion to Lac’s attention as early
as November 1986 and with increasing
detail in January and February 1987.
Hamilton confirmed that they found this
all interesting but not particularly relevant,
since they were looking to turn
up evidence with respect to the Williams
property and that this evidence fell well short of that.
Dunne was crystal clear in his cross-examination that in
January 1987 he had reviewed with Lac and its agents the
evidence contained in Lac’s affidavits on this motion, that
O’Neill’s evidence conflicted with that of McKinnon, that the
documents on their face supported O’Neill’s version of the
facts, and that Lac was not really interested in the information.
Moreover, a month later, in February 1987, Dunne brought
additional documents and further information from O’Neill
to the attention of Kroll (the private investigation firm), Lac,
and Torys, essentially that the documents supported O’Neill’s
version of the story and not McKinnon’s, and not only was he
instructed not to do anything further but also that his retainer
with Lac was terminated in February 1987, as was Torys’.
It was at that time that Lac handed over its $8 million investigation
to Scintilore, and Bruce Dunne took up the cudgels on
behalf of Scintilore over the following years. Although Justice
Osborne made a finding, no rational explanation was ever provided
as to why nothing was done between February 1987 and
August 1988, when this motion was instituted.
There was a lot of evidence, which I will not review, about
a dirty tricks campaign that Dunne had orchestrated on his
own account, anonymous letter writing to the Ontario Provincial
Police, destruction of records, and attempts to influence
journalists with false information, to provide just a sampling.
Bruce Dunne had developed his own theory about what had
happened in the bush, and, with a virtually unlimited budget
and limited supervision, he was determined to make his theory
into the truth.
On the defence side, the main evidence was given by Donald
McKinnon and John Larche. As I noted earlier, they had been
made parties for the limited purpose of this mini-proceeding.
They had also been cross-examined as witnesses on the pending
motion. At the trial, their evidence was led in chief by
their counsel, Tom Dunne (for McKinnon) and Peter Atkinson
(for Larche).
They were impressive witnesses, straightforward and with
evidence by and large consistent with what McKinnon had
said at the original trial, which was not very much at all about
the issues now being ventilated.
McKinnon’s evidence was that he had staked the 12 claims
as he said he had in his evidence-in-chief at the Corona trial.
When he had gone down to Hemlo to stake before Christmas,
he had Ed O’Neill with him, but O’Neill could not keep up on
account of the rugged terrain and his poor health. McKinnon
had to take O’Neill back to Timmins, and he returned to complete
that staking on three days, December 15, 16, and 17, with
another helper.
McKinnon testified it was not unusual for him to record his
staking in the names of others, including Ed O’Neill. He had
O’Neill’s permission to do this, and he had paid for the tags
that were in O’Neill’s name on the stakes.
Whatever the technicalities and legalities, this was a common
practice, designed to cover his tracks from those who
would otherwise monitor and follow his activities.
McKinnon said that in this instance, he believed O’Neill had
signed the application to record, with the details of the staking,
but he could not remember with certainty. Forensic evidence
obtained in the lead-up to this trial showed that the signature
likely was O’Neill’s.
All this was gone into in great detail in chief and in
cross-examination here, but none of it had been the subject of
cross-examination at the actual Corona trial.
As for John Larche, he confirmed what he had reported to
Pickens in January 1980. He travelled to Hemlo to stake the 12
claims, met McKinnon there, satisfied himself that McKinnon
had in fact staked those claims, and reported all that to Pickens.
He and McKinnon made a subsequent agreement to stake
additional claims in the area together, rather than competing.
None of this had been a secret. There were some differences in
the details between the recollections of McKinnon and Larche,
but their evidence was more or less consistent on the major
points that had been brought into question by Lac.
And then there was the matter of the documents, surfacing
from our rummaging around in Fraser & Beatty’s files and
those of all participants, the detectives, Torys, Lac itself, Bruce
Dunne of course, all those who had been involved in putting
Lac’s case together for the original trial, and those involved in
the protracted investigation down to the commencement of the
motion in August 1988.
This cache was a treasure trove, as we had anticipated.
Fraser & Beatty had done exactly what we expected they
would. They prepared their defence in a logical, ordered fashion,
kept good records, and assessed the strengths and weaknesses
of their case as the years went by. Fraser & Beatty had
interviewed Donald McKinnon on no fewer than four occasions.
That was three more times than we had done. Memoranda
were prepared.
They had also interviewed John Larche and Michael Pickens.
The memoranda showed that both McKinnon and Larche were
straightforward and open in their responses to Lac and its
lawyers and held nothing back.
The decision
In dramatic fashion, on October 11, 1988, just a few minutes before
the argument was to get underway in the Supreme Court
of Canada, the parties received word that Justice Osborne had
released an endorsement, dismissing Lac’s motion. We were
told that Justice Osborne would provide oral reasons in court
in Toronto on October 14, 1988, two days following the conclusion
of Lac’s appeal.
On that day Justice Osborne, in his usual crisp and understated
manner, went through the facts and law in a spare but
powerful narrative. 8 He started with the position that Lac
had taken in argument before him at the conclusion of the
evidence, that there was a single issue at hand: the credibility
of Donald McKinnon, and that the fresh evidence Lac was
relying upon brought McKinnon’s credibility into disrepute,
affecting the outcome in the original trial.
In dealing with this, Justice Osborne made reference to Lac’s
reply to the demand for particulars, which had raised the two
specific issues about the staking of the 12 claims and the alleged
collusion of the two prospectors. Osborne J observed that
his task as the judge in this matter was more specific than simply
determining an issue about McKinnon’s credibility. Rather,
he had to decide if the specific allegations raised by Lac in its
reply were material and had been made out, and what, if anything,
had Lac known about them, and when.
He concluded that McKinnon was not a witness who could be
said to have been crucial to the trial judge’s liability conclusions
16 | FALL 2023 | THE ADVOCATES’ JOURNAL THE ADVOCATES’ JOURNAL | FALL 2023 | 17

at the trial and that McKinnon had nothing whatsoever to do
with the crucial meetings between Lac and Corona that had led
to the trial judge’s findings.
McKinnon’s relevant evidence at trial was his involvement
in seeking out Mrs. Williams and that he had made an offer
to purchase, and that the trial judge had concluded that the
offer resulted in the finding that Corona would have acquired
the Williams property but for the actions of Lac. Against that
backdrop, Justice Osborne then reviewed the applicable test
and the law related to the motion. His reasons made a lasting
contribution to the jurisprudence by reducing the underlying
principles to a series of seven enumerated propositions.
Particularly important were his propositions that the onus
is on the moving party to establish due diligence and that evidence
cannot be stockpiled during the litigation process to
be taken from inventory after an unsuccessful trial or appeal.
Further, the test imposed upon the unsuccessful trial party is
objective: What did the moving party know? and what ought
the moving party to have known?
He articulated a specific principle that delay will defeat a
motion to set aside a trial judgment and that the conduct of the
moving party is a relevant consideration. 9
Justice Osborne then made his findings. These included that
McKinnon did not perjure himself in his examination-in-chief
at trial, nor did he mislead the Court in failing to expand upon
his evidence and thereby answer questions he was not asked
with respect to the staking activities west of the Williams
property. In that regard, the approach taken by Lac’s counsel
in cross-examination at trial “led to the issues that are now
before me being left twisting in the wind.” Justice Osborne made
clear, however, that this decision of trial counsel was one that
should not be criticized, having regard to the general lack of relevance
of those inquiries to the actual issues at large in the trial.
Justice Osborne placed considerable reliance on documents
that existed in Fraser & Beatty’s files, including a memorandum
of September 20, 1984, which in its detail showed that
in interviews with Mr. McKinnon, many of the specific issues
raised in this motion had been raised by McKinnon openly
with Lac’s trial lawyers and could easily have been followed up.
As to the later period, Lac had all the evidence it needed
around the time of its appeal to the Ontario Court of Appeal.
Justice Osborne made a finding that Lac was optimistic that
it would succeed on its appeal and that it was only after the
Court of Appeal’s reasons were released that Lac seized on
the issues it now put forward. Lac’s approach and eventual
actions did not conform to any reasonable definition of due
diligence, the delay was excessive, and Lac had failed the
due diligence test.
Finally, Justice Osborne drew an adverse inference against
Lac for its failure to call either Lac’s counsel at trial or Lac’s
counsel in charge of its investigations related to this case and
drew the inference that the evidence of these lawyers would
not have been of assistance to Lac’s position.
Perhaps the strongest statement made by Justice Osborne in
the matter, one most indicative of his view of the case, was
what he said subsequently in awarding the responding parties
costs on a solicitor-client basis:
The conduct of LAC and, more importantly, those retained
by LAC; the failure of LAC, and those retained
by LAC, to comply with production orders; the substance of
18 | FALL 2023 | THE ADVOCATES’ JOURNAL
the allegations made, but not proved (particularly as related
to McKinnon and Larche); and finally, LAC’s complete
failure to establish the position it asserted on this motion,
cause me to conclude that all responding parties are
entitled to costs on a solicitor-and-client basis. 10
The aftermath
The Supreme Court of Canada released its decision on August
11, 1989. Lac Minerals’ appeal failed. The Court reversed the
courts below on the fiduciary issue and found that no fiduciary
duty was owed by Lac to Corona in the circumstances of this
case (3:2) but upheld the findings of the trial judge and the
Court of Appeal that Lac had breached an obligation of confidence
owed to Corona and reaffirmed that disgorgement was
the appropriate remedy (3:2).
The Williams property remained in Corona’s possession.
This satisfying result brought the Lac and Corona saga to a
conclusion for Alan and me. It was a case for the ages.
For some of the parties central to this motion, however, litigation
continued. The Scintilore action was not heard until 1999.
In a scathing decision, 11 Justice Robert Sharpe dismissed all
claims and allegations against Messrs. Larche and McKinnon.
Justice Sharpe reviewed the McKinnon/Larche staking
saga in great detail. He found both men highly credible and
remarked on the consistency of their evidence in the face of
multiple examinations and cross-examinations on the issues
over many years.
Don McKinnon continued with his interesting life during
this long period of litigation. He explored and prospected
using his own well-tested methods, researching and accumulating
information about an area before launching what was
often a massive staking program. He was a vocal advocate for
the north and the northern economy and was philanthropic.
He was awarded the Order of Canada in 1996. He died in
Timmins on August 9, 2012, at age 82.
Their personalities were as different as night and day, but
John Larche and Don McKinnon shared many traits. Larche
also continued to prospect, although he and McKinnon had
become wealthy from their staking of the Hemlo gold camp.
Larche was a pilot and, when he could afford to do so in days
past, flew small aircraft to locate areas and carry out quick
strike-staking. Larche bought a refurbished iconic de Havilland
Beaver aircraft with the purpose of extending his prospecting
throughout Canada. In 1991, during a flight from Timmins
to British Columbia, the plane struck a mountain in Alberta.
Tragically, a long-time companion and fellow prospector was
killed and Larche severely injured. Larche had a long recovery
but lived to make substantial philanthropic contributions to
northern Ontario and the town of Timmins, particularly in the
health field. He was invested into the Order of Canada in 2003
and died at age 84 in 2012.
Justice Richard Holland retired from the bench in 1990. For
years, he had managed the Toronto non-jury list from his perch
in Courtroom 4-6 at 361. He needed one tool only, which he
wielded mercilessly: no adjournments. There was a moment in
any trial presided over by Justice Holland, a moment of high
drama, when he would swivel his chair and face his considerable
presence fully into the witness. (He actually did this because
he had a surgically fused neck.) This was credibility
time: taking the measure of a key witness. With Murray Pezim
in the box, it was a memorable moment.
Dick Holland became an early advocate
for mediation, was a founder of ADR
Chambers, and was in great demand as
a mediator over many years. He suffered
from chronic health issues and passed
away in 2002.
Murray Pezim was the stereotypical
stock promoter: a telephone on each ear
and touting his latest can’t miss opportunity
– which is exactly what he was
doing when I first met him. But of course
there was more to it. It was said about
Murray that the worst thing that ever
happened to him was that he found a
gold mine, and that was true in a way.
He had lost his stake in Corona long
before the case was concluded. But from
the start, he felt deeply betrayed by Lac
Notes
1. McCarthy & McCarthy’s Douglas Laidlaw had been retained in March
1983, on the eve of a second motion for summary judgment Lac Minerals
was bringing. Doug asked me to help. There were five or six of us who
worked with Doug on the many briefs that came to him at the firm. While
we were all busy developing our own practices, we leapt at these chances
to work with Doug. I was 39 when the case first came in the door. Doug
was killed in August 1984 by a doped-up driver in a horrible accident. I
asked my friend and squash partner Alan Lenczner to team up, and the
client stuck with us. Alan was three years my senior at the bar, but we’re
about the same age. And on we went.
2. It should be remembered that these arguments were playing out more than
35 years ago. The Supreme Court of Canada in Bhasin v Hrynew, 2014
SCC 71, resolved the debate almost 25 years later by importing duties of
good faith into contract negotiations and the performance of contractual
obligations. It is certainly arguable on the basis of the jurisprudence that
has followed Bhasin that introducing these broad duties into contractual
relations has brought with it many of the uncertainties and lack of
predictability that the courts heard about in the arguments in Lac Minerals
v Corona.
3. Glatt v Glatt, [1937] SCR 347.
4. 100 Main Street East Ltd. v Sakas (1975), 8 OR (2d) 385 (CA).
5. This attendance had an eerie similarity to an earlier one before Parker
CJC in the fall of 1985 by us and Lac’s trial counsel when the parties
were seeking the appointment of a trial judge. Chief Justice Parker on that
occasion said he would make no promises, but he invited the parties to
each submit a list of six trial judges with whom they’d be content, and he
would take it from there. As it turned out, Justice R.E. Holland was on both
lists and was duly appointed the trial judge. The psychology and reasoning
behind these choices is a fascinating story in itself, for another day.
Minerals’ conduct, in the handshake
world of those times, and he was the
force that kept us going while we developed
the equitable arguments that
eventually carried the day.
I got to know Murray well over those
years, and it was no surprise to me that
Justice Holland found him to be a credible
witness. Murray had many health
issues in subsequent years and died of a
heart attack in November 1998.
Lac Minerals soldiered on, much
diminished, following its defeat and
was eventually acquired by Barrick Gold
Corporation in 1995.
In 1992, during a period of low gold
prices and rising costs, International
Corona was acquired by Homestake
Mining Company, the US gold-mining
6. The Financial Times, week of May 8, 1988.
giant. Homestake secured ownership of
Corona’s Hemlo gold property and the
Williams mine.
In 2001, Homestake merged with Barrick
Gold Corporation, and Barrick took
over Homestake’s Hemlo assets, including
the Williams mine. Barrick continues
to operate the Williams mine, which has
to date produced more than 20 million
ounces of gold and is still going strong.
In 1992, Alan and I, with our friends
and colleagues Michael Royce, Glenn
Smith, and Peter Griffin, founded our
firm. We continued to practise in harmony
and with immense enjoyment for
almost 30 more years. Corona, and one
other case, were the only two briefs
where Alan and I worked together over
all the years.
7. As I was drafting this article, the news of Coulter Osborne’s death at age
88 rocketed around the profession. Over the course of a long and varied
career, Coulter asserted a deep and lasting influence over the administration
of justice in Ontario, from the inquiries and reform initiatives he led to the
jurisprudence he authored. To me, however, his greatest quality was as a
listener. He listened. And it was clear to counsel, and most importantly to
clients, that he was listening and that he heard the pleas being made. He
showed that quality in this case, maintaining an even hand and demeanour
(with only one or two notes of incredulity). As well as listening, he also
understood and, ultimately, expressed his opinions – in decisions, at
mediation, and in reports – in straightforward language: logical, clear, and
always very difficult to argue with, just as he did here.
8. International Corona Resources Ltd. v Lac Minerals Ltd. (1988), 1988
CarswellOnt 870, 66 OR (2d) 610, 54 DLR (4th) 647 (HCJ).
9. This principle has stood the test of time. In 2008, Monique Jilesen and I
succeeded for our client, the Government of Canada, following a lengthy
trial, in setting aside the decision of a trial judge on the grounds of the
fraud and perjury of the plaintiff. In that case, fraudulent letters were
introduced into the record over a period of years, supporting the liability of
the government to the tune of many millions in damages. The trial judge,
Lederer J, applied the seven principles laid down by Justice Osborne. See
Canada v Granitile Inc. (2008), [2008] OJ No. 4934, 172 ACWS (3d)
1047, 302 DLR (4th) 40 (SCJ).
10. International Corona Resources Ltd. v Lac Minerals Ltd. (1988),
1988 CarswellOnt 870, 66 OR (2d) 610, 54 DLR (4th) 647 (HCJ),
Supplementary Reasons, November 8, 1988.
11. Scintilore Explorations Ltd. v Larche (1999), [1999] OJ No 2847, 48 BLR
(2d) 248 (SCJ).
THE ADVOCATES’ JOURNAL | FALL 2023 | 19

EVIDENCE AND ADVOCACY
Judicial notice
in the misinformation age
“My friend submits that we have not proven
that COVID-19 is a pandemic.”
The authors thank Sneha Ajai, an articling student at Osler,
Hoskin & Harcourt LLP, for her able assistance.
Judicial notice is a rule of evidence that was developed long
before the typewriter; 1 it allows a judge to make a finding of
fact without any evidence of that fact. It is a powerful rule
and the “only exception to the general rule that cases must be decided
on the evidence presented by the parties in open court.” 2
Judicial notice is justified, particularly as we emerge from a
pandemic that has increased backlogs in the courts. 3 Judicial
notice “expedites the process of the courts, creates uniformity
in decision-making and keeps the courts receptive to societal
change.” 4 It is “a functional doctrine designed to promote an
efficient and sensible trial process.” 5
Erin Pleet and Mary Paterson
Judicial notice is a powerful rule because it permits findings
of fact that are not grounded in admissions, nor proven through
testimony provided under oath, nor tested by cross-examination. 6
The very power of judicial notice has two consequences:
1. The threshold for judicially noticing a fact is “strict” 7 or
“high”; 8 and
2. The parties should have the opportunity to make
submissions on whether it is appropriate for the judge to
judicially notice the fact. 9
The doctrine of judicial notice has had to grapple with the
“democratization” of information. Once more limited and
homogeneous, there is now a plurality of reliable sources for
information as well as a plurality of voices in the judiciary and
legislative branches of government, each contributing to and
relying on “notorious” knowledge. The number of sources
properly considered “indisputable” has grown, and these
sources are now readily available online to any interested person.
However, as in any democratic system, while many voices
may provide comfort, the majority is not always right, and we
must vigilantly protect against misinformation.
At its core, judicial notice is appropriate only for facts that
are beyond controversy. In this article, we explore how the
traditional doctrine of judicial notice withstands the age of
fake news and misinformation in which we now live courtesy
of the internet. We then consider how courts have handled
judicial notice of the developing science of COVID-19.
Traditional judicial notice
The courts have translated the first requirement for judicial
notice – a strict/high threshold – into a more tangible test by
identifying two types of facts that can properly be judicially
noticed because they are likely to be beyond controversy:
1. notorious facts that are “so notorious or generally accepted
as not to be the subject of debate among reasonable
persons”; and
2. immediately demonstrable facts that are “capable of immediate
and accurate demonstration by resort to readily accessible
sources of indisputable accuracy.” 10
The courts have then qualified these two categories by explaining
that questions of fact are on “a spectrum that runs
from those that are central to or dispositive of an issue, at
one end, to those that ‘merely paint the background to a
specific issue.’” 11 As the fact becomes more central to the case,
the test for judicial notice becomes more
“pressing” or strict. 12
Notorious facts
The case law demonstrates that determining
whether a fact is sufficiently notorious
to be judicially noticed is not an
easy task and, as we explore below, has
become even more complex in the age
of the internet. Ignoring the internet for
the moment, determining which facts are
sufficiently notorious requires the judge
to consider:
1. whether the fact is merely within
the judge’s personal knowledge or
is actually notorious and widely
known; 13
2. whether the fact is notorious within
the parties’ industry (in a business
dispute 14 ), geography (if location
matters 15 ), community (i.e., general
farming facts in a rural community 16 ),
or other similar context; 17 and
3. whether the “fact” remains subject
to dispute among reasonable persons
(i.e., certain investment strategies
that were generally, but not universally,
accepted 18 ).
Given the high bar for taking judicial
notice, courts and counsel should look
to other rules of evidence to prove facts
before resorting to judicial notice. For
example, the public documents exception
to the hearsay rule (that a public document
may be proffered for the truth of its
contents, as it is impractical to otherwise
present this evidence, and public servants
are expected to perform their duties with a
degree of diligence and care), 19 or section
25 of the Ontario Evidence Act (which
states that official government documents
“shall be admitted in evidence to
prove the contents thereof”), 20 may lead
to the desired factual conclusion with
less controversy.
Immediately demonstrable facts
Similarly, as the case law shows, determining
whether a fact is immediately
demonstrable enough to be judicially noticed
bumps up against expert evidence
and the expansion of scientific knowledge.
Conceptually, a fact that must be proven
through expert evidence “is by definition
neither notorious nor capable of immediate
and accurate demonstration.” 21
But as the scientific process transforms
hypotheses to theories to indisputable
facts, the amount of information contained
in readily accessible sources of
indisputable accuracy that we can immediately
access and accurately understand
grows. This growth also leads to
changes, even reversals, of what we previously
thought of as fact. For decades,
a judge could have judicially noticed
that Pluto is the ninth planet orbiting the
sun; now, she cannot. 22
As with notorious facts, the internet
complicates how we think about immediately
demonstrable facts. Determining
which facts are immediately demonstrable
requires the judge to consider:
1. whether the source is of indisputable
accuracy (traditionally reputable
dictionaries, almanacs, reference
texts); 23 and
2. whether the “fact” is objective and
knowable with certainty (i.e., a geographic
fact such as the location of
an intersection). 24 If the “fact” is
more subjective, for example, hockey
strategy, it should not be judicially
noticed unless it is peripheral to the
issues in the case. 25
All these indicia are complicated by
the fact that, as the Supreme Court of
Canada pointed out, “what ‘everybody
knows’ may be wrong.” 26 As we continue
to understand how unconscious bias and
other neural shortcuts impact our thinking,
counsel must be rigorous in how we
approach judicial notice. That said, from
a procedural fairness perspective, many
(maybe all) of the dangers associated
with judicial notice are mitigated by the
courts, giving the parties the opportunity
to make submissions on whether the
judge can or should judicially notice a
particular fact.
Judicial notice and the internet
These days, courts are more willing to
take judicial notice of scientific and technical
facts, considering such facts to be
more ubiquitous knowledge than even
a few years ago. 27 This willingness goes
hand in hand with an increased comfort
with the internet. As our society has become
used to settling our dinner-table
debates with our smartphones, judges
have become comfortable with accessing
the wealth of scientific and technical
knowledge available online from the
comfort of their chambers. 28 And just
as those dinner-table debates can show,
the quality of information found in the
corners of the internet runs the gamut.
It is now accepted that judges can take
judicial notice of facts found on certain
websites. In both traditional and internet
cases, the focus is on whether the fact is
truly indisputable. However, unlike the
Encyclopedia Britannica (now available
exclusively online 29 ), the information on
the internet ranges from the carefully
validated to fake news. Some courts have
considered:
1. whether the information comes from
an official website of a well-known
organization;
2. whether the information is capable
of being verified; and
3. whether the source is disclosed so
that the objectivity of the person or
organization posting the material
can be assessed. 30
Even if we apply this rubric, judicial
notice using the internet leads to a
heightened concern about trial fairness,
such that the best practice is to give the
parties the chance to make submissions.
This heightened concern applies even
to what we might consider one of the
most indisputable facts in this era of internet
and technology: maps of Earth.
Though doing so may meet the test set
out above, whether it is appropriate to
use Google Maps or Google Earth for
geographic facts depends on the indisputability
and importance of the fact.
For example, the Superior Court has
used Google Earth to take judicial notice
of the location of an intersection. 31 In another
decision, the Court of Appeal for
Ontario saw no error in the trial judge
using Google Maps to ascertain the
travel time between locations. 32 A more
aggressive use of geographic judicial
notice saw a judge using Google Maps,
along with the judge’s long history of
living in Ottawa, to find facts relating
to the general frequency of swimming
pools in the neighbourhood. 33
Interestingly, these cases do not discuss
for what facts Google Maps is an indisputably
accurate source. We accept
that it is indisputably rare for an intersection
to move. But the travel time
between locations depends on traffic
conditions. Travel times in rush hour are
usually (but we can’t say always) longer
than travel times early Sunday morning.
Even adjusting for the time, 34 traffic patterns
are impacted by construction and
accidents. Google Maps does not record
travel times for particular days at particular
times. Nonetheless, in Calvert,
the Court of Appeal suggests that it was
appropriate to use Google Maps to
20 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 21

Expedite scheduling with the most respected mediators & arbitrators from across the province, free at
www.OntarioMediators.org
Bruce Ally
Leanne Andree Deborah Anschell Todd Archibald Harold Arkin Steven Atkinson Larry Banack Rohan Bansie Louise Barrington
Bruce Lee Paul Lo Presti Ivan Luxenberg Barbara Martyn Hon. Colin McKinnon Hon. Beverly McLachlin Richard McLaren Derry Millar
Marcel Mongeon
Roger Beaudry
Elizabeth Bennett-Martin
Colm Brannigan John Burnes
Esther Cantor Harold Cares Bryan Carroll
Earl Cherniak
Kevin Cleghorn
Jeff Morris
Warren Morris Bernard Morrow Paul Muirhead Judy Neger
Joy Noonan
Shari Novick Hon. Dennis O’Connor Brian Parnega
Jonathan Cooper
Vance Cooper
Hon. Doug Cunningham Ronald Dash Scott Densem Andrew Diamond Jon Fidler
Barry Fisher
Gary Furlong
Kathryn Podrebarac
Donna Ranger
Leslie Reaume
Connie Reeve Mitchell Rose Dan Rosenkrantz Jay Rudolph Richard Sadowski Marcela Saitua
Steve Gaon
Hon. Richard Gates
Lyon Gilbert
Duncan Glaholt
Frank Gomberg
Brian Grant
Charles Harnick
Cliff Hendler
Lawrence Herman
Philippa Samworth Eric Schjerning Michael Schmidt Marshall Schnapp Linda Schneider Jarvis Scott
Ian Stauffer Albert Suissa Joseph Sullivan
Dana Hirsh
Marvin Huberman
Ian Hull Paul Iacono Peter Israel Kumail Karimjee Kathleen Kelly Stephen Kelly Lisa Langevin
Sidney Troister
Greg Wade Helen Walt Allyson Webster Rick Weiler Kimberly Whaley Tony Zuber
Reserve appointments in seconds, or search for the ideal neutral for
your case by case expertise, qualifications or preferred date availability
Our association website is entirely FREE to law firms, funding provided by our membership.
CADN is affiliated with NADN.org, the premier invite-only ADR association in the U.S.
Outside of Ontario? Please visit our national directory of over
170 160 top litigator-rated Mediators & Arbitrators at
www.Mediators.ca

estimate travel time because the issue of judicial notice was put
to the parties. 35
However, in R v Ghaleenovee, the judge took judicial notice
too far. The judge used an image from Google Street View to
make an adverse credibility finding against the accused. The
accused said that he had cut his hand on a fence outside a
club, not in the assault as alleged by the Crown. The trial judge
searched for the Street View of the club, which showed a fence.
Based on that image, the judge concluded that it would not
be easy to get a cut from that type of fence. The image was
not put to the accused. 36 The appeal court concluded that the
trial judge had erred, explaining: “Checking indisputable facts
[on the internet] is one thing. Conducting an investigation and
drawing inferences – especially without giving the parties an
opportunity to respond – is another.” 37
As an aside, Google Street View shows the most recent image
that was captured, 38 although you can look at earlier images
through Street View history. 39 Did the image of the fence outside
the nightclub the date of the Street View image show the
same fence as the night of the altercation? This question could
have been canvassed had the image been put to the parties.
Courts have also taken judicial notice of geographic facts
using GPS technology. In R v Snache, 40 the court took judicial
notice of cellphone GPS location data. The defence argued that
the Crown must establish the reliability of the GPS location
data before it could have any evidentiary value. The court disagreed,
citing the everyday use of GPS, including using Waze
to find the quickest route and using AirTags to track luggage.
The court held:
In my view, the accuracy and reliability of GPS location
data is now so notorious and accepted that it is not seriously
disputed among reasonable people. That is not
to say that it is capable of pinpointing the exact location
of a cell phone. It has its limitations and may, of course,
be impacted by atmospheric conditions and signal
blockage. It may also be impacted if the receiver in use is
malfunctioning. 41
That said, the GPS data was not the only location evidence on
which the court relied to convict the accused. There was other
evidence of the accused’s location, such that the judge was comfortable
taking judicial notice of the cellphone GPS data.
Perhaps one step further than the everyday uses of GPS, in
Telus Communications Inc v Vidéotron Ltée, 42 though the parties
did not tender evidence regarding what electromagnetic waves
are or exactly how they are used by mobile phones, the court
found it was a notorious fact among the general public that
mobile phone technology requires the use of electromagnetic
waves of various frequencies. 43 While we wonder whether the
general public could explain that mobile phones use electromagnetic
waves, we note that the parties in Telus (telecommunications
companies) no doubt found it notorious, and a
quick online search confirms this is true. 44
What are the limits on the web-sleuthing a trial judge can
do? Although the internet has given us more examples of inappropriate
judicial notice, 45 the core limits remain true: Is the
fact sufficiently notorious or immediately demonstrable to be
indisputably true?
In R v Balen, 46 a key witness to a car accident described the
driver’s tracksuit as “K-way.” 47 The trial judge used Google
to confirm that K-way manufactured tracksuits, writing in her
reasons: “K-way manufactures tracksuits. (Note: Google search
June 15, 2011).” 48 This Google research was not put to the parties.
The appeal court allowed the appeal because the tracksuit
was critical in identifying the accused, the fact judicially noticed
was not indisputably accurate, and it was not clear if
the judge’s online research considered Canadian distribution,
types of fabric, or colours of the tracksuit. Further, the defence
was not given the opportunity to respond to the “extra-curial
evidence.” 49
Similarly, in R v J.M., 50 the Court of Appeal for Ontario overturned
a sexual assault conviction based on improper taking
of judicial notice. The defence argued that the complainant
was not credible because she did not distance herself from her
abuser and she did not fight back. The trial judge rejected this
argument in part based on social science research described in
a Scientific American magazine article that the trial judge found
online. The article was not provided to either party.
The Court of Appeal noted that Scientific American is a popular
science magazine. The 2017 article at issue was written by a
journalist who specialized in psychology and behaviour, summarizing
a 2017 Swedish study of female rape survivors who
reported that they did not fight back. The Court of Appeal
found that using the article exceeded the proper limits of judicial
notice: “[The trial judge’s] reasons disclose that he relied
on the article as a source of expert evidence that was not properly
before the court to assess the veracity of the complainant.”
51 The fact was therefore not immediately demonstrable.
In addition, the Crown conceded that it was an error for the
trial judge to refer to this article without canvassing counsel,
as it breached procedural fairness.
As these cases show, it is fair game for a judge to take judicial
notice of information on the internet, so long as the accuracy
of the source is rigorously considered and the parties have
the chance to make submissions on the appropriateness of
judicial notice.
The threshold for taking judicial notice can and should be
high. As alluded to in J.M., there is an analogy to be drawn
to expert evidence. For a while, courts showed extraordinary
deference to expert evidence. It took the revelations of Dr.
Charles Smith’s problematic expert testimony and the consequent
Goudge Inquiry to remind us that an adversarial system
requires a skeptical approach to evidence, even (especially)
expert evidence. 52 Taking judicial notice of online information
runs the risk of circumventing the now more rigorous rules relating
to expert evidence. Judicial notice can be a door through
which inadmissible evidence sneaks into the record. A strict
threshold for judicial notice is the best safeguard.
As set out below, the COVID-19 pandemic gave us many examples
in which courts took (or failed to take) a strict approach
to judicial notice, highlighting the risks of misinformation on
the internet.
Judicial notice and COVID-19
The COVID-19 pandemic put the law of judicial notice under
a spotlight. Courts were not being asked to take judicial notice
of historical facts; 53 rather, the judiciary was living the
COVID-19 pandemic along with the parties appearing before
it. COVID-19 became immediately relevant to many areas of
law, including civil liberties, 54 commercial law, 55 labour and
Because judicial notice “keeps the
courts receptive to societal change,” 59
courts were asked to take judicial notice
of COVID-19 facts almost immediately.
In a criminal law appeal heard in
April 2020 (one month after lockdown),
the incarcerated appellant argued that
the pandemic had rendered his sentence
unfit, as jails were not designed
to maintain inmates’ safety during
the pandemic. 60 The Crown argued that
the appellant did not provide evidence
of the pandemic’s effect in jails.
While the Court of Appeal determined
that it did not need to go so far as to judicially
notice the pandemic’s impact on
jails to decide the appeal, the court “[did]
believe that it falls within the accepted
bounds of judicial notice for us to take
into account the fact of the COVID-19
pandemic, its impact on Canadians generally,
and the current state of medical
knowledge of the virus, including its
mode of transmission and recommended
methods to avoid its transmission.” 61
This decision set the stage for a slew of
cases where courts took judicial notice
of COVID-19–related facts.
In a November 2020 family law case,
L.M.S. v J.D.S., 62 the parties agreed the
IN FUTURE CARE COSTING,
EXPERIENCE
MATTERS
For over 25 years, Carol Bierbrier & Associates’
(CBA) primary focus has been life care
planning. Our large team of Certified Life
Care Planners have unique and diverse
clinical backgrounds. Our collective experience
and adherence to high standards of practice
ensure the highest quality report for a variety
of diagnoses and circumstances.
mother and children could move to
Arizona, with the father remaining in
Alberta. The father wanted them to wait
to move until after the pandemic had
passed. The Court held that it could judicially
notice that COVID-19 was a global
pandemic, and that “our own public
health officials have provided us with
commonly-accepted precautions to avoid
contracting COVID (wearing a mask,
keeping distanced whenever possible,
reducing contacts, washing hands).” But
the father also asked the judge to judicially
notice that Cochrane, Alberta, was
safer than Phoenix or Scottsdale, Arizona,
from the perspective of COVID-19
risk. The judge refused, saying: “I am
not accepting or rejecting any particular
theory about the virus or its spread but
I cannot take judicial notice of anything
that is not so widely accepted as fact so
as to be beyond discussion.” 63
COVID-19 vaccines also became a
battleground for judicial notice. In
Khodeir v Canada (Attorney General), 64 the
applicant sought judicial review of the
federal government’s requirement that
all its employees be vaccinated against
COVID-19. The Attorney General sought
to have the application struck at an
1-866-314-7335 cbafuturecare.com
employment law, 56 criminal law, 57 and family law. 58 THE ADVOCATES’ JOURNAL | FALL 2023 | 25
early stage, as the applicant’s central
thesis was that the COVID-19 virus did
not exist. The Attorney General asked
that the court take judicial notice that
COVID-19 exists.
Even though this fact was central to
the dispute, the Federal Court agreed to
take judicial notice that COVID-19 exists.
It was January 2022, almost two years
into the pandemic. In considering the
notoriety of the information, the Federal
Court noted that a fact does not become
indisputable by mere repetition: “One
must consider channels through which
the information is conveyed, scrutinized
and exposed to criticism, and the fact
that these channels operate in a society
based on freedom of discussion.” 65 Here,
the scientific knowledge of COVID-19
was subject to intense public scrutiny.
Given this thorough public debate, “it
is unimaginable that any actual scientific
debate about these basic facts would
have escaped public attention.” 66
COVID-19 vaccines were hotly contested
in family law cases, as parents disagreed
about whether their children
should receive the vaccine. The courts
took judicial notice of the COVID-19
pandemic, that the COVID-19 virus kills,
24 | FALL 2023 | THE ADVOCATES’ JOURNAL

Time & Fees
and that the Pfizer vaccine was not experimental and was
deemed safe and effective for children 5–11 and 12–17. 67 Some
lower courts even took judicial notice of the fact that being
vaccinated against COVID-19 is in the best interests of a child,
unless there is a compelling reason not to be 68 (although this
appears to be a legal conclusion rather than a fact).
The Court of Appeal for Ontario addressed judicial notice
and pediatric vaccination in J.N. v C.G. 69 The parents were
unable to resolve whether their two younger children should
be vaccinated against COVID-19. Neither parent retained an
expert. Rather, the father, who sought vaccination, filed printouts
from Health Canada and the Canadian Paediatric Society’s
websites, both recommending children be vaccinated against
COVID-19. The mother filed printouts from the websites “Total
Health” and “Contagion Live,” which contained references
to various supposed doctors and other “experts” who were
skeptical of the COVID-19 vaccine.
The lower court motion judge sided with the mother. He refused
to take judicial notice of the safety and efficacy of the vaccine
because, in his view, the available information was a “moving
target” and because there was “no consensus or consistency”
as to safety and effectiveness. He reasoned that given Canada’s
history of forced sterilization of Inuit women, residential schools,
Japanese internment camps during World War II, Motherisk, and
the Thalidomide tragedy, courts should be reluctant to “take judicial
notice that the government is always right.” 70
On appeal, the Court of Appeal for Ontario noted that
while the motion judge did not expressly qualify the mother’s
printouts as expert evidence, he essentially treated them
Everything you need to run a law firm
Details & Correspondence Calendar & Tasks Financial Summary Time & Fees General Account Trust Funds Safe Custody
Save &
Close
DETAILS
180025
Applicant
Ms Sally Penfold
Matter type
Property Division
Respondent
Mr Paul Penfold
New
Document
James Stevenson
Respondent's lawyer
Harris & Jacobs Solicitors
Mr Joshua Harris
Client correspondence
181 University Ave, Toronto, ON M5H 3M7
Critical fam law details
Legal Accounting & Billing
Microsoft 365 Integration
Support & Training
Secure Document Management
Cloud Solution & Mobility
New
Email
Matter New Correspondence
LawConnect Mobile
Microsoft Teams
IN PROGRESS
CORRESPONDENCE
TYPE ITEM STAFF MODIFIED
Correspondence
James Stevenson
Sally Penfold and Paul Penfold Property..
James Stevenson
jharris@email.com
Financial Statement
James Stevenson
Your Settlement/Property Affairs
jharris@email.com
Trust Statement
Costs agreement - Property Settlement
Letter to Mr Penfold
James Stevenson
Search correspondence
Automated Court Forms & Precedents
leaplegalsoftware.ca | sales@leaplegalsoftware.ca | 437-900-2140
88 Queens Quay West, 25 th Floor, Toronto ON, M5J 0B6
Forms &
Templates
New
Comment
Import
Share
Document
eSignature
Message
Send
Document
JS
JS
JS
JS
JS
JS
JS
Timesheet
9:36 AM
9:32 AM
Apr 2, 2020
Mar 29, 2021
Mar 29, 2021
Mar 28, 2021
Mar 27, 2021
as such. For example, the motion judge referred to a doctor
quoted in one article as an “equally competent and credible
medical professional.” 71 The Court of Appeal concluded that
the mother’s evidence was insufficient to cast doubt on certain
indisputable facts of COVID-19, and that judicial notice
provides needed efficiencies in resolving family law vaccination
disputes:
I would also note that there is no question that: 1) there is
a COVID-19 pandemic; 2) this disease kills people, including
children; and 3) the vaccines available to Canadians,
including children ages 5 and older, have received regulatory
approval. The problem, apart from the question of
judicial notice, is that it is simply unrealistic to expect parties
to relitigate the science of vaccination, and legitimacy
of public health recommendations, every time there is a
disagreement over vaccination. 72
The motion judge had relied on some of the lower court case
law which had refused to take judicial notice of Health Canada’s
recommendations, on the basis that “[j]udicial notice
cannot be taken of expert opinion evidence.” 73 The Court of Appeal
had two responses. First, the court pointed out alternative
evidentiary routes besides taking judicial notice, to support
the finding that the vaccine was approved, and that approval
indicated its safety and effectiveness. The public documents
exception to the hearsay rule could permit the court to accept
Health Canada’s approval as proof of the fact that the vaccine
was approved (along with other statements made by Health
Canada). 74 The Court of Appeal also referenced section 25 of
the Evidence Act to support that official government documents
are admissible for proof of their contents. 75
As neither of those routes had been pursued by the parties
before the motion judge, the Court of Appeal focused on judicial
notice, highlighting the power of judicial notice and its
limits. The Court of Appeal was careful not to find as a fact
that the vaccine is safe and effective. Rather, the court said:
“[J]udicial notice should be taken of regulatory approval, and
regulatory approval is a strong indicator of safety and effectiveness.”
The consequence, the court explained, was to put the
onus “on the objecting party to show why the child should
not receive that medication.” 76 In this case, the objecting party
had not provided any admissible evidence showing why, from
a medical perspective, the two younger children should not
receive the vaccines. 77
Plus ça change, plus c’est la même chose
The principles limiting judicial notice, as a rule of evidence,
have remained the same despite the proliferation of easyto-access
information (and misinformation) at our fingertips.
The case law reviewed above shows that judges’ decisions are
being overturned for improperly taking judicial notice of facts
sourced from the internet. In our view, we do not need to overhaul
judicial notice as a rule of evidence if we remember the
strict and high threshold that limits judicial notice to facts that
are truly notorious or immediately demonstrable.
Done properly, judicial notice fosters efficiency and promotes
confidence in the administration of justice, especially
by allowing courts to react to real-time pervasive events such
as the COVID-19 pandemic. The public may have difficulty
trusting courts if courts require litigants to prove notorious
facts or if the courts prefer the parties’ inadmissible evidence to
notorious or indisputable facts. 78 Given the wholesale change
in our collective access to and attitude toward information,
Notes
1. The oldest case on CanLII to reference judicial notice is Hasluck v McMaster,
1835 CanLII 62 (NB KB); according to Google, the typewriter was first patented
in the US 33 years later, in 1868. We can make this factual statement
because, at least in the endnotes, we choose not to be bound by the strict
parameters for judicial notice.
2. R v J.M., 2021 ONCA 150 at para 31(i) (J.M.).
3. George R Strathy, Chief Justice of Ontario, “Ontario Has One of the Best
Justice Systems in the World … and We Can Make It Even Better” (31
August 2022) (https://www.ontariocourts.ca/coa/about-the-court/
publications-speeches/cjo-strathy-speech-justice-system/).
4. John Sopinka, Sidney N Lederman, and Alan W Bryant, The Law of Evidence
in Canada, 6th ed (Toronto: LexisNexis, 2022), § 19.02 at para 19.25 (Sopinka).
5. David M Paciocco, “Proof and Progress: Coping with the Law of Evidence
in a Technological Age” (2013) 11 Can. J. L. & Tech. 181 at 188.
6. J.M., supra note 2 at para 31(iii); R v Find, 2001 SCC 32 at para 48 (Find).
7. J.M., supra note 2 at para 31(iv); Find, supra note 6 at para 48.
8. Sopinka, supra note 4,§ 19.02 at para 19.25.
9. Sopinka, supra note 4, § 19.02 at para 19.78; J.M., supra note 2 at para 38.
For brevity, we will not explore the concept of ‘tacit judicial notice’ (i.e.,
when a judge draws on “common sense” to interpret or understand the
evidence presented at trial. Nor will we explore “contextual judicial notice”
(i.e., when a judge considers the background or frame of reference in which
the facts of the case are situated). We will instead pretend that the parties
receive the opportunity to make submissions on whether it is appropriate
for the judge to judicially notice the fact, moving the judicial notice out of
the world of the tacit or contextual.
10. Find, supra note 6 at para 48; J.M., supra note 2 at para 31(v).
11. R v Spence, 2005 SCC 71 at para 61 (Spence); J.M., supra note 2 at para 33.
12. J.M., supra note 2 at para 33. The literature makes a distinction between
“adjudicative facts,” which relate to the immediate parties; “legislative
facts,” which relate to the policy that drives interpreting and developing
the common law; and “social facts,” which relate to current social realities
that should inform the legislative facts: Elizabeth F Judge, “Curious Judge:
Judicial Notice of Facts, Independent Judicial Research, and the Impact of
the Internet,” in Todd L Archibald et al., eds, Annual Review of Civil Litigation
(Toronto: Thomson Reuters, 2012), 325 at 334–36 (Judge). The analysis for
judicial notice applies to all types of facts although legislative and social
facts are less likely to be central to the disposition of the case.
13. J.M., supra note 2 at para 34; Sopinka, supra note 4, § 19.02 at para 19.59.
14. See, e.g., Telus Communications Inc v Vidéotron Ltée, 2021 FC 1127 at para 5
(Telus).
15. The City of Edmonton is located in the Province of Alberta: R v Korah, 2011
ABPC 344 at para 8.
16. In Saskatchewan, “grain farming is a six month engagement, saving hauling
grain and farm repairs”: Olfert v Olfert, 2012 SKQB 301 at para 74.
17. Sopinka, supra note 4, § 19.02 at para 19.28.
18. Authorson (Litigation Administrator of) v Canada (Attorney General) 2007
ONCA 501 at para 153, leave to appeal dismissed 2008 CanLII 1388 (SCC).
19. See R v A.P., 1996 CanLII 871 (ONCA).
20. Evidence Act, RSO 1990, c E.23, s 25.
21. Find, supra note 6 at para 49; Sopinka, supra note 4, § 19.02 at para 19.54.
22. Sopinka, supra note 4, § 19.02 at para 19.28: “Also, what facts are judicially
noticeable may change over time.” See also Khodeir, infra note 43 at para 26:
“Courts are nevertheless mindful that there is disagreement about some
aspects of scientific knowledge. They are careful not to take judicial notice
of matters on which science has not reached consensus or which are laden
with value judgments.”
applying the principles of judicial notice with rigour is
increasingly important to maintaining this confidence.
23. Find, supra note 6 at para 48; Spence, supra note 11 at para 53.
24. Sopinka, supra note 4 at § 19.02 at para 19.35.
25. Sopinka, supra note 4 at § 19.02 at para 19.37.
26. Spence, supra note 11 at para 51.
27. For excellent discussions, see E Judge, supra note 12 at 326–27, discussing
the case of U.S. v Bari, 599 F.3d 176 (2d Cir, 2010) and Stephen GA Pitel and
Liam Ledgerwood, “Judicial Notice and the Internet” in Todd L Archibald
et al, eds, Annual Review of Civil Litigation (Toronto: Thomson Reuters, 2018)
25 at 28–30.
28. See Jeffrey Bellin and Andrew Guthrie Ferguson, “Trial by Google: Judicial
Notice in the Information Age” 108 Nw. U. L. Rev. 1137 (2014). (https://
scholarlycommons.law.northwestern.edu/nulr/vol108/iss4/1).
29. “Encyclopedia Britannica Ends Print, Goes Digital,” Reuters, 12 March 2012
30. See, e.g., Sutton v Sutton, 2017 ONSC 3181 (citing ITV Technologies Inc. v WIC
Television Ltd., 2003 FC 1056, aff’d. 2005 FCA 96), providing a common law
test for assessing an internet source.
31. R v Robinson, 2010 ONCJ 576 at paras 25–30.
32. R v Calvert, 2011 ONCA 379 at paras 5, 8 (Calvert).
33. Yates v Fedirchuk, 2011 ONSC 5549 at para 37.
34. See the plan future trips feature, allowing users to select “Depart at” or
“Arrive by” to better estimate the travel time of their specific trip.
35. Calvert, supra note 32 at paras 4, 5, 8.
36. R v Ghaleenovee, 2015 ONSC 1707 (Ghaleenovee) at para 2.
37. Ibid at para 21.
38. See the “image capture” date at the bottom of the Street View image.
39. See “See more dates” in the upper-right-hand corner of the Street View image.
40. R v Snache, 2023 ONSC 2255 at para 329.
41. Ibid at para 327.
42. Telus, supra note 14 at para 5.
43. These comments are found in Khodeir v Canada (Attorney General), 2022 FC
44 at para 25 (Khodeir), referencing the Telus decision.
44. See, e.g., Health Canada, “5G Technology, Cell Phones, Cell Phone
Towers and Antennas” (20 October 20 2022) (https://www.canada.
(available at https://www.reuters.com/article/net-us-encyclopediabritannica-idUSBRE82C1FS20120314).
ca/en/health-canada/services/health-risks-safety/radiation/everyday-things-emit-radiation/cell-phones-towers.html).
45. Another example: Baptiste c R, 2021 QCCA 1064 at para 61: “With respect
to the case at bar, we do not expect judges to surf the Internet in order to establish
or confirm the latest upward or downward crime trends, especially
when they do not notify the parties of their intention to do so.”
46. R v Balen, 2012 ONSC 2209 (Balen).
47. Ibid at para 10.
48. Ibid at para 41.
49. Ibid at para 62. In another case of judicial internet sleuthing, in R v C.D.H.,
2015 ONCA 102, before sentencing, the trial judge “out of curiosity” created
a fake profile on match.com, then accessed a website that contained personal
information of the complainant. The trial judge told a police officer that
there was enough information on the site for defence counsel to “hang the
victim.” The Court of Appeal for Ontario set aside the acquittals based on
apprehension of bias and lack of impartiality and ordered a new trial.
50. J.M., supra note 2.
51. J.M., supra note 2 at para 76.
52. See, e.g., The Advocates’ Society’s Position Paper on Communications
with Testifying Experts and Principles Governing Communications with
Testifying Experts (June 2014), cited with approval in Moore v Getahun, 2015
ONCA 55.
26 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 27

53. See, e.g., the discussion regarding judicial notice of historical facts
in R v Zundel, 1987 CanLII 121 (ONCA) (cited in Spence, supra note 11 at
para 55).
54. Spencer v Canada (Health), 2021 FC 621 (appeal dismissed as moot in 2023
FCA 8) (regarding travel quarantine requirements); R v James Ralph Bauder,
2023 ONSC 996 at para 11 (the court reviewed media reports provided
by the parties and took judicial notice that the “Freedom Convoy” was
covered by media in Canada and internationally. “Further, there was a
massive amount of communication and internet postings online. This coverage
reflected a broad cross-section of viewpoints about the convoy.”);
Gateway Bible Baptist Church v Manitoba, 2021 MBQB 218 and 2021 MBQB
219 (whether various Manitoba public health orders limited fundamental
rights and freedoms in a constitutionally defensible manner).
55. Consolidated Fastfrate Inc. v 2516295 Ontario Ltd., 2023 ONSC 1005 (the court
was not prepared to take judicial notice that the pandemic caused any inability
of the defendants to pay for services rendered).
56. Milwid v IBM Canada Ltd., 2023 ONSC 490 at para 28 (the effect of the
pandemic on wrongful terminations and on reasonable notice periods);
Watson v Canadian Union of Public Employees, 2023 FCA 48 (failure to grieve
Air Canada’s mandatory vaccination employment policy); Croke v VuPoint
Systems Ltd., 2023 ONSC 1234 (employee terminated for failure to comply
with mandatory vaccine policy).
57. In R v Ivarone, 2023 ONCJ 69, the Ontario Court of Justice reviewed case
law regarding the effect of COVID-19 shutdowns on delays to criminal
trials.
58. See, e.g., R.S.P. v H.L.C., 2021 ONSC 8362; L.B. v I.L., 2020 ONCJ 336;
Ribeiro v Wright, 2020 ONSC 1829.
59. Sopinka, supra note 4, § 19.02 at para 19.25.
60. R v Morgan, 2020 ONCA 279 (heard April 27, 2020).
61. Ibid at para 8.
62. L.M.S. v J.D.S., 2020 ABQB 726.
63. Ibid at para 19.
64. Khodeir, supra note 43 at para 1.
65. Khodeir, supra note 43 at para 37.
66. Ibid.
67. Davies v Todd, 2022 ONCJ 178 at paras 39–44 (at the time the only approved
pediatric age groups for COVID-19 vaccinations).
68. Dyquiangco Jr. v Tipay, 2022 ONSC 1441; Rashid v Ayanesov, 2022
ONSC 3401.
69. J.N. v C.G., 2023 ONCA 77 (J.N.). (Co-author Erin Pleet was co-counsel to
the father C.G. for this appeal).
70. J.N. v C.G., 2022 ONSC 1198 at para 67.
71. J.N. supra note 69 at para 16, citing the motion judge at para 79.
72. Ibid at para 29.
73. Citing the Supreme Court in R v Find, supra note 6 at para 49.
74. See R v A.P., 1996 CanLII 871 (ONCA).
75. Evidence Act, RSO 1990, c E.23, s 25.
76. J.N., supra note 69 at para 45.
77. Conversely, the Saskatchewan Court of Appeal in O.M.S. v E.J.S., 2023
SKCA 8, noted that in that specific case, notwithstanding that the mother
did not accept that the vaccine was safe and efficacious, the Court of Appeal
sided with the mother because in this instance, relating to this specific
child, there was evidence of a risk of self-harm and harm to her mental
health if she was required to be vaccinated.
78. For example, “A finding on the evidence led by the parties, for example,
that the Newfoundland deficit in 1988 was $5 million whereas anyone
could ascertain from the public accounts that it was $120 million would
create a serious anomaly.” Newfoundland (Treasury Board) v NAPE, 2004
SCC 66 at para 57.
UNPARALLELED
EXPERIENCE.
At Lawson Lundell, our Litigation & Dispute Resolution Group stands as a
beacon of trust and excellence in the industry. With deep-rooted commitment
to providing exceptional client-centric services, we navigate complex legal
challenges to deliver successful outcomes for our clients.
This is why the group is consistently recognized for its unparalleled experience
and capabilities by leading legal publications, including
Benchmark Litigation, Chambers Canada, Best Lawyers, and Lexpert.
Bringing experience to both sides of the table.
To find out more, or book a mediation, visit briangrantmediation.com
brian@briangrantmediation.com | 416.792.7772
lawsonlundell.com
28 | FALL 2023 | THE ADVOCATES’ JOURNAL
Vancouver | Kelowna | Calgary | Yellowknife
@lawsonlundell

THE ART OF ADVOCACY
Gaining the edge in
multi-dimensional litigation
In ecology, the “edge effect” describes the change in population
at the boundary of two ecosystems. Along the border
of these differing worlds lies a richness of biodiversity. Each
living organism can draw from the core of the neighbouring
habitats. New life forms emerge.
The cellist Yo-Yo Ma has talked about the edge effect in the
context of the arts. We see breakthroughs in creativity when
artists travel across borders – geographical, cultural, or musical
– and interact with those steeped in different genres and traditions.
Just as they exist in ecology and the arts, edge effects exist
in the law – to a greater extent than we often appreciate. As
lawyers, we tend to concentrate our efforts within narrow
practice areas. We are solicitors – tax, securities, competition,
intellectual property – or barristers. If we are barristers, we
are criminal or civil litigators; trial lawyers or appellate
advocates. Within criminal law, we focus on impaired-driving
cases, drug prosecutions, sexual assault trials, or whitecollar
crime. As civil litigators, we may handle only securities
or professional negligence or corporate disputes. Specialization
drives us into silos.
Our clients, however, don’t come to us with such neatly
packaged problems. They don’t always show up at our office
with a criminal law problem, a civil litigation problem, or an
administrative law problem. They show up with a problem.
Often that problem has multiple dimensions. Our ability
to solve such problems depends on our exposure and openness
to the ideas of those who inhabit different professional
ecosystems.
Together with our partner Paul Le Vay, we recently defended
the former CEO and chair of CannTrust against charges of
insider trading, securities fraud, and making materially
misleading statements/omissions under the Securities Act. This
case perfectly illustrates the multi-faceted nature of the controversies
in which our clients are often embroiled.
Our client’s challenges were multi-dimensional in both procedure
and substance. The charges concerned securities law – a
specialized and complex regulatory regime. The alleged undisclosed
material fact was unlicensed growing under the Cannabis
30 | FALL 2023 | THE ADVOCATES’ JOURNAL
Gerald Chan and Carlo Di Carlo
Regulations (which allegation was completely disproven at
trial). This concerned a different area of regulation altogether.
The case then moved through different procedural worlds. It
originated in the employment context as our client confronted
an internal investigation conducted by a special committee of
the board of directors. From there, it evolved into a class action
when the affected investors sued under the secondary market
liability provisions of the Securities Act. The company then
sought protection under the Companies’
Creditors Arrangement Act, which forced
the parties to resolve their disputes as an
insolvency matter on the Commercial List.
Eventually, after a lengthy investigation
by the Ontario Securities Commission’s
Joint Serious Offences Team and
the RCMP Integrated Market Enforcement
Team, the OSC laid charges under
section 122 of the Securities
Act. This moved the case into
the Ontario Court of Justice,
where 95 percent of the criminal
cases in the province
are completed. The rules of
criminal procedure governed.
A proper defence required
a legal team well versed in
the rules of evidence and the
protections in the Charter of
Rights and Freedoms, as well
as the underlying securities
and regulatory issues. Each
of the three defendants had the benefit
of such a team – each equipped with a
diversity of expertise.
The benefits of having a multi-varied
team revealed themselves early in the
life of the case. The OSC’s disclosure
consisted of hundreds of thousands of
documents and millions of pages. To
process everything efficiently, the defence
had to master e-discovery – specifically,
the data management platform Relativity.
This is more often the domain of civil
and commercial litigators, whose cases
tend to be more document intensive,
than criminal defence counsel.
Meanwhile, the charges related to the
alleged non-disclosure of a material fact.
Defending these charges properly required
a thorough understanding of materiality
as a concept in securities regulation –
and how expert evidence (e.g., from
economists and event studies) could establish
its existence (or absence). This is
the stock in trade of securities litigators.
To the surprise of the criminal defence
lawyer on the team, materiality had not
been defined uniformly in the Securities
Act. In some provisions, it had been interpreted
to mean a fact that would “reasonably
be expected to have a significant
effect on the market price or value of the
securities” (the “market impact” test). In
other provisions, it had been interpreted
to mean a fact that might influence a reasonable
investor in their decision making
(the “reasonable investor” test) – a lower
standard than the market impact test.
Remarkably … the average person
recalls 87 percent of information
presented visually, but only 10 percent
of information presented with words.
The lack of uniformity had long troubled
securities lawyers (as well as class
action lawyers dealing with the concept
of materiality in shareholder class
actions brought under Part XXIII.1 of the
Securities Act 1 ).
The criminal lawyer viewed the issue
of materiality through the lens of section
7 of the Charter and was able to give constitutional
expression to this problematic
distinction between the market impact
and reasonable investor standards.
Section 7 is engaged any time liberty is
at stake, as is nearly always the case in
criminal proceedings. The “principles
of fundamental justice” under section 7
demand that laws – including the distinctions
they draw – not be arbitrary in
light of their statutory purpose.
Does it make sense that the market impact
test would apply to tell reporting
issuers when to disclose material facts
(s 56(1)) and material changes (s 75(1)),
and yet quasi-criminal liability could be
imposed for making a statement that is
misleading in a material respect (s 122(1))
on the lower reasonable investor standard?
If not, the statutory distinction is
arbitrary and constitutionally flawed.
That became one of the critical planks
in our client’s defence at trial, although
fortunately we never had to rely on it
because all defendants were acquitted
before it got to that stage.
This was just one example of how different
members of the defence team were
able to bring different perspectives to
bear on an issue that enhanced the overall
defence position. No one lawyer can
master all universes. Litigation is a team
sport. Multi-dimensional cases of this
sort are best tackled by groups composed
of lawyers with varied backgrounds –
each curious and humble enough to listen
to and learn from their colleagues.
One may be an expert in the culture of
the forum and the procedural rules; another
an expert in the substantive area of
the law. Both play critical roles in the devising
and execution of the trial strategy.
This sort of lawyering not only serves
the client better but also makes for a
more enriching professional experience.
Civil and criminal litigators have much
to learn from one another, given their
respective advantages in different
aspects of advocacy.
In the preparation of our
defence, we relied on criminal
case law (R v Handy 2 on
propensity evidence) just
as we relied on civil case
law (Bruno v Dacosta 3 on the
rules governing joint books
of documents). The rules of
evidence are nearly always
propounded in criminal cases
because of the frequency with
which the latter go to trial.
But too often criminal lawyers read only
cases that begin with “R v,” leading them
to overlook important jurisprudential
developments in other areas that may
affect their practice.
In our firm, we had the luxury of being
able to assemble a team with criminal,
securities, and commercial litigation experience
in house. But there are other
ways of achieving the same goal across
different firms. Volunteering for legal
associations outside your narrow practice
bubble, cultivating your curiosity
in areas of the law other than your own,
and reading widely so you can issue spot
enough to identify the known unknowns
are just a few ways to escape the trap of
siloed specialization.
We don’t live in entirely separate
worlds. We come together at events organized
by groups such as The Advocates’
Society and run into one another
at Osgoode Hall. But the more opportunities
we can find to do cases together, the
better we will all be for it; the more creative
our advocacy will become, and the more
we will be able to gain the edge for our
clients in multi-dimensional litigation.
Notes
1. See Miller v FSD Pharma Inc, 2020 ONSC 4054 at
paras 53ff.
2. 2002 SCC 56.
3. 2020 ONCA 602.
THE ADVOCATES’ JOURNAL | FALL 2023 | 31

APPELLATE ADVOCACY
Stay in your lane?
Recent appellate scrutiny of interveners
Jennifer McAleer, Kimberly Potter, and Daniella Murynka
Recent decisions from the Supreme Court of Canada and
the Federal Court of Appeal have sparked conversation
in the legal community about the role of interveners on
appeal, as well as how the role of interveners intersects with the
role of the judiciary.
Background to intervention at the Supreme Court of Canada
The rise of interventions at the Supreme Court coincides with
the coming into force of the Charter in the 1980s. Before that
time, it was rare to receive leave to intervene. 1 Intervention
then became “routine.” In a paper published in 2020, Geoffrey
D. Callaghan wrote that, since 2000, “the percentage of appeals
featuring at least one intervenor factum has not dropped below
35 per cent (in 2001), and was on average 55 per cent.” 2 In our
review of reported Supreme Court decisions from 2021 to 2023,
total intervention rates have been above that average, with
particularly high rates of intervention in civil matters.
83
Percentage of cases
with at least one intervener
82
100
Total Criminal Civil
61
56
2023 – Jan. 2022 2021
to May
Motions for intervention at the Supreme Court of Canada
are governed by Rules 55–59 of the Rules of the Supreme Court of
Canada. 3 These rules require prospective interveners to identify
the submissions they propose to make with respect to the issues
on appeal, including how those submissions will be “useful to
the Court and different from those of the other parties.” The
rules are supplemented by two Supreme Court notices to the
profession, which reiterate that the purpose of an intervention
is to provide views different from those of the parties. 4 An
77
59
42
75
intervener is not permitted to raise “new issues” on appeal, unless
a judge orders otherwise – the focus of the Supreme Court’s
recent comments on interveners, discussed below.
The Supreme Court’s recent comments on interveners
Our starting point is R v Sharma, a case involving the unavailability
of conditional sentences for certain criminal offences. 5
The respondent, Cheyenne Sharma, challenged the constitutionality
of certain Criminal Code provisions under sections
7 and 15 of the Charter. With respect to section 15, Ms. Sharma
argued that the impugned provisions contributed to increased
imprisonment of Indigenous offenders relative to
non-Indigenous offenders. The appeal involved 21 interveners,
many representing Indigenous interests.
A majority of the Court concluded that the impugned provisions
were Charter-compliant, with Karakatsanis, Martin, and
Jamal JJ dissenting. In allowing the appeal, and writing for
the majority, Brown and Rowe JJ concluded that the Court of
Appeal for Ontario had failed to “clearly delineate” Ms. Sharma’s
evidentiary burden at each step of the section 15 analysis – and
that, in particular, Ms. Sharma had not demonstrated a causal
connection between the impugned provisions and a disproportionate
impact on Indigenous offenders.
As part of this discussion, Brown and Rowe JJ criticized the
interveners, who had adduced “fresh evidence” before the
Court of Appeal, writing, “We note here, in passing, our serious
concern with interveners supplementing the record at the
appellate level … Interveners creating a new evidentiary record
at the appellate level undermines the trial process. That is
not how our system of justice, including constitutional adjudication,
is designed to work.” 6
Writing for the dissent, Karakatsanis J was critical of the majority’s
section 15 analysis, writing that the “thrust” of it was
to “raise the bars at each step of the test,” including by “diminishing
the roles of interveners …, critiquing their use of social
science and other legislative fact evidence that this Court has
regularly relied upon.” 7
A few months later, the Court released reasons in R v McGregor,
a case where it was invited to consider the extraterritorial application
of the Charter. 8 The appellant, Corporal McGregor,
a non-commissioned member of the Canadian Armed Forces,
was posted in Washington, DC, living in Alexandria, Virginia.
Corporal McGregor was the subject of an investigation
by the Canadian Forces National Investigation Service (CFNIS)
in relation to the offences of voyeurism and possession of a
device for surreptitious interception of private communications.
Subsequently, the CFNIS sought the help of the
Alexandria Police Department to obtain a warrant under
Virginia law to search Corporal McGregor’s residence. The
CFNIS and Alexandria police members then searched Corporal
McGregor’s home, discovering, among other things, evidence
relating to sexual assault.
Subsequently, a military judge concluded that the Charter
did not apply extraterritorially, and he admitted the evidence
relating to sexual assault. The judge convicted Corporal
McGregor of two counts of voyeurism, one count of possession
of a device for surreptitious interception of private communications,
one count of sexual assault, and one count of
disgraceful conduct. The Court Martial Appeal Court agreed
with these conclusions.
The Supreme Court dismissed Corporal McGregor’s appeal
but released three sets of reasons. Côté J, writing for the majority
of the Court, stated that the appeal raised two main issues
– whether the Charter applied extraterritorially, and, if so,
whether Corporal McGregor’s Charter rights were infringed.
In setting the context for these issues, Côté J observed that R v
Hape 9 governs “the territorial reach and limits of the Charter”;
under Hape, the Charter generally cannot apply to Canadian
authorities engaged in an investigation outside of Canada,
subject to certain exceptions. 10
In McGregor, both parties relied on Hape but disagreed on its
effect when applied to the facts of the case. Corporal McGregor
argued that Hape’s exceptions applied, such that the Charter did
also; the Crown argued that this case was a “straightforward
application of Hape,” and that the Charter did not apply to the
search. 11 As described in Côté J’s reasons, the interveners focused
“on whether the Hape framework should be reaffirmed,
modified, or overruled.” 12
Despite framing the first issue on appeal as “Did the Charter
apply extraterritorially to the CFNIS investigators in the search
of Cpl. McGregor’s residence in Alexandria, Virginia?” 13 Côté
J ultimately concluded that it was unnecessary to deal with
the issue of extraterritoriality; this is because, even if the
Charter did apply, the service’s actions “conformed to it.” 14 In
so holding, Côté J was critical of those interveners that asked
the Court to overturn Hape, agreeing with the earlier comments
of Brown and Rowe JJ in Sharma:
In this instance, only some interveners ask us to overturn
Hape; in doing so, they go beyond their proper role. Doing
what they are asking would mean deciding an issue
that is not properly before us … I would add that, as my
colleagues Brown and Rowe JJ. noted in R. v. Sharma, 2022
SCC 39, at para. 75, it is inappropriate for interveners to
supplement the evidentiary record at the appellate level. 15
In concurring reasons, Karakatsanis and Martin JJ agreed
that the appeal should be dismissed but also “comment[ed] on
the central question directly at issue in [the] appeal,” the extraterritorial
application of the Charter in the circumstances:
This was clearly the primary and threshold issue argued
by the parties and multiple interveners, it was the reason
leave to appeal was sought, and we received full submissions
on both constitutional and international law. The extraterritorial
application of the Charter is squarely before
32 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 33

the Court and it is an issue that arises
infrequently, may easily escape
judicial review, and has been subject
to significant and sustained criticism
by experts in international law. 16
In their reasons, Karakatsanis and
Martin JJ also disagreed with their colleagues’
views that the interveners in this
case overstepped their “proper role,” 17
characterizing the interveners’ positions
not as raising new issues but as proposing
a “different view of the core legal
issue of whether the Charter applied to
the conduct of the CFNIS officers”: 18
Indeed, these interveners were
granted leave to intervene on this
basis: when seeking leave, they all
clearly signaled their intent to criticize
Hape and suggest revisions to
its framework, with the Canadian
Constitution Foundation specifically
stating Hape must be revisited …
To hold that we cannot engage with
this different view, simply because
the parties themselves did not propose
it, ignores the purpose of
intervener submissions as set out
in the Notice to the Profession and
runs contrary to this Court’s past
practice in decisions that have relied
on the frameworks proposed by
interveners. 19
Justice Rowe authored concurring
reasons primarily to disagree with the
analysis of Karakatsanis and Martin JJ
and discuss the proper scope of an intervener’s
role, writing:
[I]nterveners can often make important
contributions. In order to do so,
however, interveners must operate
within recognized limits. The Rules
of the Supreme Court of Canada clearly
state these limits, and this Court has
issued practice directions, more than
once, to remind potential interveners
of the boundaries they must respect
…. [An intervener] exceeds its
role when it seeks to alter the nature
of the litigation by usurping the role
of the parties, expanding the issues
before the Court, or presenting new
evidence. 20
Reaction from the legal community
Following the release of McGregor, some
participants in Canada’s legal community
spoke out about the decision’s comments
on interveners. In a press release
titled “Supreme Court Dodges Key Issue
in R. v. McGregor,” the Canadian Civil
Liberties Association wrote:
The CCLA is concerned about some
of the comments the majority and
one concurring opinion made about
interveners, particularly since the interveners
had made their intentions
and the scope of their arguments
known when seeking leave to intervene.
In being granted leave to intervene,
CCLA and others assumed
that there was nothing the Court
considered to be “off-side” about
their interventions. Interveners can
play a significant role by providing
valuable and different submissions
to bring a broader perspective before
the Court. 21
People also took to Twitter to discuss
the case. Stephen Aylward, a partner at
Stockwoods LLP, tweeted, “Twice in the
last 4 months the @SCC_eng has taken
swipes at interveners. Interveners go
beyond the issues framed by the parties
because the Court itself does so. SCC
appeals are tough. The Court should be
encouraging lawyers who offer assistance
(for free).” 22 In a similar vein, Paul-Erik
Veel, partner at Lenczner Slaght LLP,
tweeted, “Who cares if interveners expand
the issues? The court can ignore
them if they want, and highlighting different
issues can help contextual [sic].” 23
Response from the
Federal Court of Appeal
In March of this year, Stratas JA sat as motions
judge in Le-Vel Brands, LLC v Canada
(Attorney General), a motion by the
Canadian Health Food Association and
the Direct Sellers Association of Canada
for leave to intervene in an appeal
considering the reasonableness of the
Minister of Health’s interpretation of the
meaning of “natural health product.” 24
Justice Stratas dismissed the motion;
however, he included “[c]oncluding observations”
that were “not directed” at
the proposed interveners: 25 “The Court
is aware of recent criticism concerning
recent judicial comments about the proper
limits to intervention: see, e.g., R. v.
McGregor, 2023 SCC 4 at paras. 98–115,”
Stratas JA wrote. “This criticism is misplaced.
It calls for response.” 26
Justice Stratas used these concluding
remarks to link the proper scope of intervention
to what he sees as the proper
role of the judiciary in deciding cases.
Justice Stratas has written on the proper
role of the judiciary in the past. For
example, in the 2018 case Sharif v Canada
(Attorney General), he wrote for the court:
“We apply the real meaning of laws to
the facts before us, neutrally and objectively,
logically and dispassionately,
without fear or favour, and come to a
result; we do not skew the result to fit
what we think is right or best, to advance
values we prefer, or to meet the wishes
and expectations of others.” 27
This time, Stratas JA reiterated these
comments, tying them to the proper purposes
of intervention:
[S]ome see legislative interpretation
as an open-ended task where courts
are free to do “the right thing,” adopt
the “good ideas” of academics and
experts, and express what “most”
would think is “right” or “reasonable.”
Others feel that interveners,
with their “valuable perspectives,”
should be able to place before the
Court academic articles full of untested
social science assertions that
are “right.” Still others think that
courts should wade in where legislatures
fear to tread in order to correct
“injustices.”
…
Interveners admitted into our proceedings
usually are those who have
shown an understanding of the judiciary’s
proper role. They advocate
legal positions consistent with that
role. The key is to understand the
nature of that role. 28
It is noteworthy that Stratas JA took
the opportunity in Le-Vel to respond to
popular criticism of McGregor. Although
Stratas JA did not reference the source of
the criticism at issue, Mark Rubenstein
of Shepherd Rubenstein tweeted, “Justice
Stratas is reading #lawtwitter.” 29
Justice Stratas’s comments are also noteworthy
in that they were not, it appears,
directly grounded in the submissions of
the parties before the court on that motion.
In this case, Conway Baxter Wilson
LLP/s.r.l. acted for the proposed interveners.
In a tweet, Natalia Rodriguez, a
partner at that firm, wrote as follows, replying
to Mr. Rubenstein’s earlier tweet:
This was my colleague’s motion. He
said criticism of judicial comments
re intervention did not come up at
the hearing or in the submissions at
all. It seems to have come out of left
field ... an odd place to respond to
public perception unrelated to the
case at bar … 30
Notes
1. Amanda Jane Burgess, “Intervenors Before the Supreme Court
of Canada, 1997–1999: A Content Analysis” (master’s thesis,
University of Windsor, 2000).
2. Geoffrey D Callaghan, “Intervenors at the Supreme Court of
Canada” (2020) 43:1 Dal LJ at 34.
3. SOR/2002-156.
4. March 2017 – Allotting Time for Oral Argument; November 2021
– Interventions.
5. 2022 SCC 39.
6. Sharma at para 75.
7. Sharma at para 205.
8. 2023 SCC 4.
9. 2007 SCC 26.
10. McGregor at para 18.
11. Appeal Factum of the Respondent, Her Majesty the Queen at para
51; online at https://www.scc-csc.ca/case-dossier/info/af-maeng.aspx?cas=39543.
12. McGregor at para 3.
13. McGregor at para 17.
14. McGregor at para 5.
15. McGregor at paras 23–24.
16. McGregor at para 47.
17. McGregor at para 81.
18. McGregor at para 81.
19. McGregor at para 81.
20. McGregor at paras 96–115.
best practices. bespoke service.
better results.
As Canada’s eDiscovery Law Firm,
we combine legal analysis with technical expertise
to provide end-to-end solutions
that save you and your clients time and money.
We Do Discovery Differently. Learn How.
1-833-435-4321 | info@discoverycounsel.ca | heuristica.ca
Toronto | Calgary
21. Online at https://ccla.org/criminal-justice/supreme-court-dodgeskey-issue-in-r-v-mcgregor/.
22. Stephen Aylward (@SGAylward), Twitter, February 19, 2023, 2:36 p.m.
23. Paul-Erik Veel (@PaulErikVeel), “Controversial(?) take: 1) Who
cares if interveners expand the issues? The court can ignore them
if they want, and highlighting different issues can help contextual.
2) Most interveners should only be permitted to file written
argument, but intervention should be almost automatic.” Twitter,
February 20, 2023, 11:06 a.m.
24. 2023 FCA 66 [Le-Vel].
25. Le-Vel at para 30.
26. Le-Vel at para 31.
27. 2018 FCA 205 at para 51.
28. Le-Vel at paras 33, 35.
29. Mark Rubenstein, (@mrubenst), “Justice Stratas is reading
#lawtwitter. decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/
521139/index.do.” Twitter, March 24, 2023, 8:13 p.m.
30. Natalia Rodriguez (@nurodrig19), Twitter, March 24, 2023, 10:48 p.m.
34 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 35

CIVIL LAW ADVOCACY
11 things common law lawyers
should know about the civil law
The author thanks Andrew Hamilton for translating his
ideas clearly.
Although lawyers outside the Province of Quebec know
that the judicial system works differently here, that
doesn’t always mean they have any real appreciation
of the differences. While the two systems share a number
of traits, continue to move closer together, and influence each
other through Supreme Court jurisprudence (see, for example,
the continued expansion of good faith between contracting parties
in the common law 1 ), a number of important differences
between the common law system and Quebec civil law remain.
Doug Mitchell
In this article, we present a number of concrete examples
that lawyers may regularly come across which illustrate these
differences.
1. There is no common law in the civil law system
The Civil Code of Quebec is a statute that provides the substantive
law of the province, governing core principles of private
law (both contractual and extra-contractual obligations),
law of successions, trust law, family law, property law, certain
rules of evidence, and private international law, among other
topics. Although decisions that interpret the code are cited before
the court, they are not seen to “create law” in the same
way that common law decisions do.
Prior decisions are also not the sole authority on interpretation
of the Civil Code (or other laws). Authors’ commentary,
known as “doctrine,” is significantly more authoritative in the
civil law. Prior decisions of higher courts are also not seen as
binding a court in the same way that they do in the common
law, though judges are still generally reluctant to disagree with
higher courts and risk being summarily overturned. That said,
disagreements among trial court judges are not especially rare
– there have even been cases of disagreements over the interpretation
of a single provision between two judgments by the
same judge. 2
2. Specific performance is not an exceptional remedy in Quebec
Although the articles that authorize it – articles 1590 and 1601
of the Civil Code – refer only to obligations which are not met,
in practice specific performance is most commonly demanded
or ordered in cases where there have been problems in the execution
of a contract. Article 1601 narrows the applicability of
specific performance to “cases which admit of it,” 3 giving judges
some discretion in deciding whether to order it, but it is typically
viewed as the default remedy for contractual obligations
that have not been fully executed.
Quebec courts are aware of this difference between juridical
systems. In a 1997 Superior Court decision, the court wrote
that “[i]n British and American common law, despite recent
developments, the specific performance recourse is still an
exceptional remedy and the claim for damages is the general
rule. In Quebec … the role of the two remedies for contractual
breach is the reverse: specific performance
is now the rule while damages is
the exception.” 4 As such, this is one of a
limited number of areas where Quebec
courts will not even consider jurisprudence
from other Canadian jurisdictions.
3. A right exercised under a contract can
be considered a fault or can be considered
to be tortious conduct even if the conduct
is specifically authorized within
the contract
Quebec law requires that rights under a
contract are exercised in good faith. The
exercise of a right can therefore be found
to be abusive, and to attract liability. This
is the case even with specifically authorized
conduct.
This principle was most famously
enunciated in the 1990 Supreme Court
of Canada decision in Houle v Canadian
National Bank. 5 In that case, the bank
was aware that the plaintiffs were in the
process of selling their shares of their
privately held company but decided to
immediately call for the company’s line
of credit to be repaid on one hour’s notice
and liquidated substantially all the
company’s assets within three hours.
Although the Supreme Court recognized
that the contract between the bank and
the company allowed for the bank to
realize on its securities without notice, it
held that “this seemingly absolute right
must be tempered by the principle of reasonable
delay, and what constitutes the
abuse of contractual rights in this case
is the absence of such reasonable delay
to allow the company to pay after it was
put in default.” 6
4. In defamation, the truth of the statement
is not an absolute defence
Consistent with the law that all acts must
be undertaken in good faith, defamation
can be found in Quebec even where the
content of the statement is true if it was
motivated by bad faith intentions. In
particular, if the motivation for spreading
truthful information was to damage
the reputation of another, then the transmitter
can be held liable for the damage
that the victim’s reputation suffered.
For example, in Srivastava c Hindu
Mission of Canada (Quebec) Inc., 7 certain
individual defendants who were directors
of a Hindu temple came to believe
that a priest employed at the temple was
having an affair with a member of the
temple. Their repeated statements to this
effect to other members as well as their
repeated offers to play a wiretapped
phone call were found to be defamatory
without the court ruling on the veracity
of the allegations.
5. An employee or an agent owes a duty
of loyalty to their employer or principal,
and everything received in the context of
their mandate or employment must be
given over to the employer
This principle is clear in articles 2138
and 2146 of the Civil Code. 8 This duty of
loyalty means that the mandatary must
always act in the best interest of the mandator,
and not in their own best interests.
Therefore, irrespective of whether
damages were suffered by the employer
or principal, the victim, employer, or
principal is entitled to disgorgement.
All profits derived from the mandate are
the property of the mandator, as the
mandatary was only acting to collect
profits for them – not for themselves.
This principle applies equally to an
employment relationship and the author’s
firm is currently awaiting a judgment
from the Supreme Court in a case that
raises the question of whether this principle
should be applied to directors of
a corporation. 9
6. In employment matters, the employee
cannot renounce in advance the right to
any amounts due upon severance
Even if an employment contract provides
for a specific severance in the context of
dismissal without cause, the employee
is not bound by this amount and can request
more. 10 This provision of the Civil
Code is a “public order” provision, meaning
parties cannot contract out of it. 11
That said, this provision does not prevent
an employer and employee from
coming to an agreement at the time of
dismissal on the amount of notice that
is due. Severance agreements remain
possible under Quebec law 12 but the law
simply requires that the conditions of the
dismissal, the amount of time worked
before dismissal, and other relevant factors
be known before a notice period is calculated
or agreed upon.
7. In contracts of insurance, defence
costs do not erode the policy limits
The Civil Code explicitly provides that
“[l]egal costs and expenses resulting
from actions against the insured, including
those of the defence, and interest on
the proceeds of the insurance are borne
by the insurer over and above the proceeds
of the insurance.” 13 This has obvious
effects on the incentives of insurance
companies to have long, expensive
procedures.
As a general rule, found in the same
article of the Civil Code, the insurer is
required to take up the insured’s defence
for any act or omission covered by their
insurance. If the insurer does not take up
the insured’s defence when asked to do
so and when it is legally obligated to do
so, the insurer must reimburse the fees
that the insured paid in support of their
own defence, but not fees that the insured
paid pursuing the insurer for their
fees or to try to force the insurer to take
up their defence. 14
8. If there is a contractual regime in play,
a plaintiff may not invoke a claim based
on extra-contractual liability
Article 1458 of the Civil Code provides
that no party to a contract “may … avoid
the rules governing contractual liability
by opting for rules that would be more
favourable to them.” 15 The parties must
instead proceed through the realm of
contractual liability in deciding the damages
owed between them.
That said, a fault in the pre-contracting
phase (i.e., after an offer has been made
or negotiations have been entered into)
gives rise only to extra-contractual liability,
since the contract was not yet formed
at the time of the fault. 16 Similarly, a fault
to a third party, which is discussed in the
following paragraph, is founded on extra-contractual
liability because the contract
cannot bind parties which are not
party to it. The third party is therefore
entitled to seek extra-contractual relief
and to ignore any clauses in the contract
that generally limit the liability of one of
the contracting parties.
9. A violation of a contractual obligation
to a co-contracting party can constitute
a tort to a third party if that conduct
causes damage to the third party
Observant readers will have noticed in
the description of Houle above that the
plaintiffs were not the company that had
borrowed from the bank, but its shareholders.
The plaintiffs were only parties
to the contract in that they had provided
personal surety on a part of the loan,
which was not called when the banks
realized on their security. As such, any
36 | FALL 2023 | THE ADVOCATES’ JOURNAL
THE ADVOCATES’ JOURNAL | FALL 2023 | 37

theory of damages must instead rest on
extra-contractual liability. In this case,
the Supreme Court found that the bank
had violated “a general legal obligation
… that a person not prejudice, by his or
her actions, the parties to a sale, when
such sale, to his or her knowledge, is
imminent.” 17
As Justice Rowe reminded me in Brunette
v Legault Joly Thiffault, s.e.n.c.r.l.,
the Court did not create a generalized
exception allowing shareholders to sue
for damages suffered by a company, but
“simply reiterated the essential elements
of civil liability in Quebec civil law –
fault, injury, and causation – and held
that shareholders can have an independent
right of action where they establish
the existence of each element in a way
that is distinct from the fault and injury
caused to the corporation.” 18 This same
test applies to third parties to a contract
more broadly, sometimes allowing them
to sue for the damages they suffer as a
result of a party to a contract failing to
meet its obligations.
10. Service contracts can be terminated
at will
Where a contract is “resiliated” (terminated
on a going-forward basis) and not
“nullified,” some payment is still due by
the client. Under article 2129, the amount
due is a portion of the overall payments
due under the contract based on the
proportion of the work that has been
completed and the costs incurred by the
contractor, among other minor factors,
with the weighing of these factors left
to the judge’s determination. In short,
a “fair” payment representing the work
done is to be paid. If the contractor was
paid in advance, they are bound to return
any excess amount, as determined
by the judge. 19
The right to terminate, however, is
not of “public order” and can therefore
be contracted out of or renounced. This
renunciation must, in most cases, be explicit
– setting a fixed term for the contract
is not enough to conclude that the
right has been renounced, and neither
is setting out in the contract that the
client has a right to terminate the contract
under certain circumstances. 20 The
clause must instead say that the client
only has that right under certain circumstances,
or that the client has renounced
that right.
11. In matters of contractual interpretation,
the document is evidence of the
meeting of the minds but is not necessarily
taken as the complete and accurate
contract
Instead, per article 1425 of the Civil
Code, “[t]he common intention of the
parties rather than adherence to the
literal meaning of the words shall be
sought in interpreting a contract.” 21 Although
there is a significant burden on
the party wishing to displace the words
of a contract, especially when they are
relatively unambiguous, courts have
shown themselves open to “reading in”
clauses on which the contract is otherwise
silent. 22
This principle of interpretation can
even be used to benefit sophisticated
commercial parties, who are generally
presumed to have received adequate, appropriate
legal advice on documents before
signing them. In Sobeys Québec inc.
c Coopérative des consommateurs de Ste-
Foy, 23 a national grocery chain was successfully
able to argue that a second sublease
with the same sublessor should be
interpreted to include certain clauses
that were present in the first sub-lease
but absent in the second.
Notes
1. See, e.g., Bhasin v Hrynew, 2014 SCC 71;
C.M. Callow Inc. v Zollinger, 2020 SCC 45.
2. Arrangement relatif à Bloom Lake, 2017 QCCS
4057 at paras 101–102.
3. Article 1601 CCQ.
4. Avi Financial Corporation (1985) Inc. v
Novergaz Inc., 1997 CanLII 8864 (QC CS).
5. [1990] 3 SCR 122.
6. Ibid at 176.
7. 2001 CanLII 27966 (QC CA).
8. Arts 2138, 2146 CCQ.
9. Antoine Ponce, et al. v Société d’investissements
Rhéaume ltée, et al., 2022 CanLII 38772
(SCC).
10. Art 2092 CCQ.
11. Quebec (Commission des normes du travail)
v Asphalte Desjardins inc., 2014 SCC 51 at
para 53.
12. Tanase c Commission des normes du travail,
2015 QCCS 4199.
13. Art 2503 CCQ.
14. Compagnie canadienne d’assurances générales
Lombard c Roc-Teck Coatings Inc., 2007 QCCA
986.
15. Art 1458 CCQ.
16. Infineon Technologies AG v Option
consommateurs, 2013 SCC 59 at para 23.
17. Ibid at 184. Emphasis in original.
18. Brunette v Legault Joly Thiffault, s.e.n.c.r.l.,
2018 SCC 55 at para 30.
19. Art 2129 CCQ.
20. Steve Brown Machineries Solutions (SBMS)
inc. c Groupe Sutton Excellence inc., 2021
QCCA 302.
21. Art 1425 CCQ.
22. Sobeys Québec inc. c Coopérative des
consommateurs de Ste-Foy, 2005 QCCA 1172
at paras 50–53.
23. 2005 QCCA 1172.
Arbitration Place is proud to celebrate our globally
recognized roster of arbitrators and mediators
Hon. Robert Armstrong
K.C.
Hon. Douglas Cunningham
O.C., O.Ont, K.C.
Hon. Russell Juriansz
Hon. Michael J. Moldaver
K.C.
Louise Barrington
FCIArb
Robin Dodokin
FCIArb
Megan Keenberg
Lisa Munro
FCIArb
Marshall Rothstein
K.C.
Pierre Bienvenu
Ad. E.
Alan D’Silva
Hon. Barry Leon
FCIArb
Hon. Frank Newbould
K.C.
J. William Rowley
K.C.
Hon. Ian Binnie
K.C.
Hon. Gloria Epstein
K.C., L.L.D.
Jeffrey Leon
L.S.M., FCIArb
Hon. Dennis O’Connor
O.C., O.Ont, K.C.
Peter Ruby
FCIArb
Hon. Robert Blair
K.C.
Stanley Fisher
K.C.
Gavin MacKenzie
Neils Ortved
Q. Arb
Hon. Robert Sharpe
Hon. Edward Chiasson
K.C., FCIArb
L. Yves Fortier
C.C., O.Q., K.C., L.L.D.
David McCutcheon
C.Arb
Hon. Laurence Pattillo
Hon. George Strathy
Tina Cicchetti
Douglas Harrison
FCIArb
John Lorn McDougall
K.C., FCIArb
Dancia Penn
O.B.E, K.C.
Anne Marie Whitesell
Farley Cohen
FCIArb
Patricia Jackson
L.S.M.
Hon. Colin McKinnon
K.C.
Harry B. Radomski
Hon. Warren Winkler
O.C., O.Ont., K.C.
Hon. Thomas Cromwell
C.C.
John Judge
The Rt Hon. Beverley McLachlin
P.C., C.C., CStJ, FCIArb
Joel Richler
FCIArb
To learn more about our rosters, please contact us at
arbitrationplace.com/our-roster
An all-encompassing approach
To inquire for roster member availability for arbitration, mediation
or mock trials please contact bookings@arbitrationplace.com
NEW CONTENT
Free Member Resource Library
Only TAS Members enjoy exclusive access to this selection
of archived TAS content 24/7
VIRTUAL • HYBRID • IN-PERSON
Come experience our world-class service
Appointing Authority • Court Reporting • Translation and Interpretation • Document Management Systems
Enhanced, Secure Videoconferencing • Flexible, Modern, Hearing and Breakout Rooms • Virtual Case Managers • Arbitral Secretaries
Fundholding • Administrative Services • Catering • Complimentary Technology Advisory Services
38 | FALL 2023 | THE ADVOCATES’ JOURNAL

TRIBUTE
Coulter Osborne: A tribute
I
have had at most two or three heroes in my life. Coulter Osborne
was one of my heroes. In April of this year Coulter
passed away, just shy of his 89th birthday. He was a great
advocate, a great judge, a great athlete, a great husband, father,
and grandfather, and perhaps most important, a great person.
The mere listing of Coulter’s achievements attests to an
extraordinary life. He was a star student and athlete at high
school, Hillfield College in Hamilton and St. Andrew’s College
in Aurora; a terrific basketball player at Western and a member
40 | FALL 2023 | THE ADVOCATES’ JOURNAL
The Honourable John I. Laskin
of three intercollegiate championship teams, for which he was
inducted into the university’s hall of fame; and the starting forward
on Canada’s basketball team at the 1956 Summer Olympics
in Melbourne, Australia.
After graduating from Osgoode Hall Law School, Coulter
became an outstanding advocate. In his magnificent speech
about Coulter at the celebration of his life, his long-time friend
Chris Speyer described Coulter as “The Man to See” in Waterloo
County. And Chris added: “Was Coulter a good lawyer? He
was better than good – he was fabulous. Picture this in your
mind’s eye – Coulter in front of a Waterloo County jury: a Gary
Cooper–like figure – tall, blond, blessed with good looks, endowed
with unassailable natural ability dispensing his unique
brand of quiet persuasion. Juries loved him, judges liked him,
and his legal opponents respected him.” Coulter was so highly
regarded in Waterloo County that the region’s law association
established the Coulter A. Osborne Award given for integrity,
comity, and beneficence in the practice of law and in public life.
In 1978 Coulter began his judicial life: 12 years as one of the
most admired trial judges in Ontario and another 11 years as
a Court of Appeal judge, which included three years of extraordinary
leadership as associate chief justice of Ontario.
He left the Court of Appeal in early 2001, but, as he said, “I
found it hard to retire.” Indeed, his post-judicial life was as
rich as his previous life: a “go to” arbitrator, who put Arbitration
Place on the map, integrity commissioner for Ontario,
lobbyist registrar of Ontario, chair of the Holland Group (composed
of the leading medical malpractice litigators in Ontario),
and author of the still influential Civil Justice Review report.
What I have just recounted are little more than the bare facts
of Coulter’s remarkable life. What I will remember most about
Coulter, however, are his personal qualities that made him
such a beloved human being and that set him apart from virtually
anyone I have ever known.
We first met in the mid-1970s, on the opposite sides of a
messy piece of commercial litigation out of Kitchener. I was
a young advocate, trying to make my way in the litigation
world. Coulter was already an established star, not just in
Waterloo County, but across the province. And of course he
had been an Olympic athlete. The first
things that struck me about Coulter were
his warmth, his kindness, his modesty,
his humility. I was and still am a huge
basketball fan, and here I was dealing
with a man who had played at the same
Olympics as the future legendary star of
the Boston Celtics, Bill Russell. I wanted
to ask him about what it was like. But
Coulter had no interest in talking about
his past accomplishments. “The statute
of limitations passed on that event a long
time ago,” he told me. When we came
to discuss the case, he treated me as an
equal – no hubris, no ego, no arrogance.
We settled the case before it went to trial.
A decade passed – Coulter was now
a trial judge – when out of the blue he
telephoned me. There was an automobile
insurance crisis in Ontario. Premiums
were sky high, some drivers couldn’t
even get insurance, and the NDP was
clamouring for no-fault auto insurance.
Ian Scott, then the attorney general for
the governing Liberals, had wisely appointed
Coulter to head an inquiry into
motor vehicle accident compensation in
Ontario. Coulter was a natural choice. He
had both the experience and the expertise.
On the phone call, Coulter asked me
to be his counsel. “But,” I stammered, “I
don’t know anything about personal injury
litigation.” “That’s the whole point,”
he replied. I was somewhat taken aback
until he added, “If you knew anything
you would be on one side or the other
and have a bias, and I don’t want that.”
I couldn’t believe my good fortune. I accepted
his offer immediately. We worked
closely together for 18 months. We travelled
across Canada, to the United States,
and even to Switzerland (where the head
offices of some of the Ontario auto insurers
were located), studying the auto
insurance industry and various compensation
schemes.
Coulter hired a very small staff, just
five people. He showed respect for each
of us and treated us as his peers, despite
our differences in age and experience.
He made us feel we were his friends and
genuinely valued our views. In turn,
we always wanted to do our best for
him. One of our staff, a young research
assistant, Saskia Matheson, recently reminded
me of something I said to her
during the inquiry. I took her aside one
day and said, “You know you have made
Picture yourself here...
Premier Sponsors:
Technology Sponsor:
a terrible mistake.” For a second or two,
Saskia had an awful feeling she had done
something horribly wrong. But I quickly
added, “You don’t start your career with
a job like this. You finish it, because now
no job will ever feel like it measures up.” 1
Our colleague Justice David Doherty
described Coulter as “a natural born
leader.” And so he was. I saw that first
during the inquiry and later on at the
Court of Appeal. Coulter never demanded,
never dictated, never shouted.
He never bragged or boasted. He led by
an amalgam of exceptional qualities: He
was so likeable; he had such good judgment
and common sense; he always came
across as reasonable; and he was laidback
and unflappable, even in stressful
situations, and he faced plenty of those
during the inquiry. Even if you initially
held a contrary view on some issue, after
listening to Coulter’s calm voice and
sensible words, invariably you discarded
your view and agreed with him.
And you would drop everything to
try to help him. Toward the end of the
inquiry Coulter was under enormous
pressure to complete his report and deliver
it to the government. Two assistants
Fall Convention 2023
The Four Seasons, Punta Mita
November 1/2 - 5, 2023
THE ADVOCATES’ JOURNAL | FALL 2023 | 41

at the law firm where I worked pitched
in. They hardly knew Coulter, but in
those last few, frenetic days they worked
virtually ’round the clock to help him
finish his report. He never asked them
to do so. They just wanted to. His leadership
was inspirational.
Coulter let me draft part of his report,
but his editorial pen hovered over every
word I wrote. Economy and precision of
language were hallmarks of his writing.
And he always ensured he explained
clearly why he had decided
the way he did. He produced
a two-volume report of nearly
900 pages. He believed in the
tort system, rejected no-fault
as cost inefficient, but recommended
enhanced no-fault
benefits, a recommendation
(among many) that the government
implemented.
Every judge who has sat on
the Court of Appeal for Ontario
in the past 35 years knows that
internally the associate chief
justice oversees the day-to-day running
of the court. Coulter was an exceptional
associate chief. His door was always
open. He was there for us, no matter
what our problem, big or small. He took
time to listen to us, encouraged us when
we were down, and always dispensed
the good advice we needed. He and
Chief Justice McMurtry were a formidable
team. We all considered ourselves
so lucky to have these two giants of our
profession as our leaders.
If you look at the law reports during
the years Coulter was a judge, you will
find he wrote very few jurisprudential
landmarks. Coulter had no interest in
writing for his legacy. His focus was on
resolving the dispute before him. But his
wisdom, common sense, and good judgment
shone through in every judgment
he wrote. Indeed, of all the judges I sat
with no one had better judgment than
Coulter. When I had a difficult issue on
an appeal often I would trek down to
Coulter’s office, and by the time I left
invariably he had helped me resolve the
issue. I echo the words of our colleague
Jim MacPherson: “In my 24 years on the
Court of Appeal, I can safely say that
Coulter Osborne was, universally, the
most respected judge on the Court.”
Coulter also had a way with words and
a wry sense of humour. In one case, a real
property dispute, he started his reasons
42 | FALL 2023 | THE ADVOCATES’ JOURNAL
with the following: “The plaintiff and the
defendant have at least one thing in common.
They both think they own a small
five-sided parcel of land at Mallorytown
Landing.” In a civil appeal I sat on with
Coulter, he gave an oral judgment and
began with: “In this appeal neither party
occupies the moral high ground.”
In a summary judgment appeal, which
has been cited nearly 600 times, Coulter
wrote his famous line, “A respondent
on a summary judgment appeal must
The respect, admiration, and affection for
Coulter ran throughout the legal profession
and the judiciary. He had an easy charm
and an unfailing kindness, which
endeared him to everyone he met.
lead trump or risk losing.” And in the
highly publicized Gwen Jacob case, he
overturned Ms. Jacob’s conviction for
committing an indecent act by walking
topless in downtown Guelph on a hot
and humid summer day, noting that “no
one who was offended was forced to continue
looking at her.”
And then there were the inmate sittings
in Kingston that Michael Moldaver
and I will never forget. After a jury trial,
a fellow had been convicted of manslaughter
and sentenced to nine years
in jail. He was appealing his conviction.
After hearing the oral argument, we
went into our retiring room to decide
what to do. The jury charge was pretty
bad and we quickly agreed we had to
allow the appeal, set aside the conviction,
and order a new trial. “But,” Mike
asked, “what should we say?” “Yeah,” I
chimed in, “what should we say?” Coulter
thought for a few seconds and then
said, “How about this: For brevity’s sake
we will record those parts of the charge
the trial judge got correct.” (Of course
we didn’t actually record that.)
Coulter loved to work with law clerks,
and they loved to work with him. He
used them as a sounding board to work
through a problem. “Apply your fertile
mind to this issue and get back to me”
was one of his favourite lines. An early
law clerk whom he later persuaded to
leave practice and join the court as a
staff lawyer was Alison Warner. I sometimes
teased Coulter that the best thing
he ever did for the court was to hire Alison.
Coulter and Alison became life-long
friends, and in some ways he regarded
her as a “fourth” daughter.
Coulter was one of the least pretentious
people I have ever known. Despite
his high office he treated everyone the
same, no matter their station in life. The
staff of the Court of Appeal adored him
because he was genuinely
interested in how they were
and in finding out what
they were doing. Their talks
often revolved around dogs,
basketball, and family.
Coulter left the court
several years before his
mandatory retirement age.
I and many of his colleagues
pleaded with him
to stay, but he had made
up his mind to leave. As I
have mentioned, Coulter
had an enormously active post-judicial
life. I missed him terribly on the court. I
could no longer walk down the hall and
ask him what to do on a tough problem.
So instead I would ask myself, “What
would Coulter do?”
There is a wonderful story about how
Coulter became an Olympian. In 1956,
after finishing first-year law school,
Coulter had a summer job loading empty
cans onto a freight car for the American
Can Company. He came home from work
one day and found a letter addressed to
him from the Canadian Olympic Association:
“Be in Vancouver the day after
Labour Day.” Unsure what to do, he
went to his law school dean for advice.
Coulter said to him, “I’d like to go but if
I do I won’t be at any classes in the first
term.” The dean looked down at the papers
on his desk and replied, “We don’t
take attendance.” And so Coulter went
to Melbourne.
Forty-four years later, in 2000, on the
eve of his departure from the Court of
Appeal, Coulter returned to Australia,
this time to Sydney, for the Summer
Games, as a member of the Olympic
torch relay. He trained for the relay. In
the months leading up to it, he was a fixture
every evening at the North Toronto
Collegiate Institute track. He would
jump over the fence and run. He said, “I
wanted to be able to do the relay without
embarrassing myself.” Christie Blatchford wrote a touching piece
about Coulter’s participation:
It was both the run, and the stuff, of Coulter Osborne’s
honourable life. It took him along Railway Street in this
unpretentious, working-class western suburb – so like his
Hamilton hometown – of the glittering Olympic city just
an hour away …
It was probably not the glamorous route Judge
Osborne’s friends on the bench at the Ontario Court of
Appeal … imagined for him when, in his self-effacing and
diffident way, he mentioned in passing, and this is how he
would have done it, that he would be taking part in the
2000 Olympic Torch Relay …
Judge Osborne wore No. 209 … [He] would be handing
off to, and lighting the torch of, No. 210, Harry Harris, a
53-year-old from the Sydney suburb of Concord … Then it
was go time …
Suddenly, Judge Osborne came into view, a tall, slender,
ever-so-slightly jug-eared man with silver blond hair.
He was smiling hugely, until he handed off to Mr. Harris,
gave him a gentle push of encouragement on the back, and
found [his wife] Barbara, and then he cried, just a little. 2
The last several years of Coulter’s life were difficult ones as
he suffered the ravages of Parkinson’s disease. But he bore his
illness with grace, with good humour, and without a hint of
complaint. Alison and I visited him from time to time. He was
invariably alert, upbeat, and engaged for those visits, as we
discussed among many topics the latest high-profile decision
from the Court of Appeal and the current sorry state of the
Toronto Raptors.
Fairmont Château Laurier | February 1-3, 2024
The respect, admiration, and affection for Coulter ran
throughout the legal profession and the judiciary. He had an
easy charm and an unfailing kindness, which endeared him to
everyone he met. I knew him for more than 45 years, and in all
those years I never heard him say a mean word about anyone
and I never heard anyone say an unkind word about him. I
don’t think I can say that about any other person I have known.
As much as Coulter enjoyed being with the members of the
bar and his judicial colleagues, first and foremost for him was
his family: Barbara, his wife and life partner for 64 years, and
their wonderful daughters, Mary, Julie, and Katie, of whom
he and Barbara were immensely proud. I doubt I have met a
family as close knit as the Osborne family. Coulter and Barbara
were inseparable to the end. He was an outsized presence
in the lives of his daughters and his grandchildren, and just
before his death he welcomed a great-granddaughter into the
family.
This piece, so personal in many ways, is my tribute to Coulter
Osborne. He was my mentor and my friend. I will always
treasure my good fortune in knowing him and working with
him. My memory of him will remain forever green.
Notes
1. Happily, Saskia has gone on to a wonderful career in the auto insurance
industry. She is now the president and CEO of the Facility Association.
2. Christie Blatchford, “Ontario Judge Carries the Torch,” National Post
(13 September 2000) 1.
WINTER SUMMIT:
THE BIG CHILL OTTAWA
Our national conference for mid-career advocates is finally
here! Join us in Ottawa for extraordinary collegiality and CLE.
Spaces are limited!
SCAN FOR DETAILS!
THE ADVOCATES’ JOURNAL | FALL 2023 | 43

THE LAST WORD
Patronage returns in Ontario
In the early spring of 1985, I found myself campaigning for
the best counsel I ever saw in court and a personal hero,
Ian G. Scott. He was running as a Liberal in the 1985
Ontario election as the tides were turning against the long-ruling
Progressive Conservatives.
My partners Chris Paliare and Ian Roland were also actively
campaigning for Ian, despite their different political affiliations.
I remember laughing when I heard that each of them
had extracted a promise from Ian that if he were elected and
became the next attorney general (almost inevitable if the
Liberals won), he would ensure that both would be bestowed
with the much-coveted designation of Queen’s Counsel – QC,
now KC with the new monarch. I can say with confidence, it
never occurred to me to ask, although it may well have been
lack of initiative.
As happened, the Liberals formed the government under
Premier David Peterson, and Ian Scott became attorney general.
My partners were convinced that QCs (taking “silk,” as it is
called in the UK) were imminent.
Scott told us repeatedly, as he quickly learned from the civil
servants, that there were rules against appointing two lawyers
as QCs from one firm. He would have to choose between my
partners. Ian then chortled in his infectious way, waiting for
his audience to catch up, and added the punchline, “So I decided
to abolish QCs.” A related anecdote has it that he said that
to redress the political imbalance after 40 or so years of Tory
governance, he would have to name 10,000 Liberals as QCs and
had neither the time nor the inclination to do so.
These bons mots were classic Ian. He loved a good story and
would go far for a laugh, but for him the reality was more
serious. Ian was never self-righteous, but he was deeply principled.
He had no time for honours that had long been overtaken
by cronyism and patronage, and he was fearless in stopping
this practice although he didn’t abolish the designation outright
and allowed those lawyers who had one to keep using it.
Premier Peterson offered five reasons for this decision:
(1) QCs were originally meant for leading courtroom advocates
but had been diluted to any lawyer of good standing;
(2) the designation had become misleading and was
based on whom one knew more than on what one knew;
(3) it was unfair to lawyers who weren’t named a QC, calling
into question their competence in the public mind; (4)
no other profession received governmental awards of this
kind; and (5) the designation was a blatant (my word) form
Stephen Grant, LSM, ASM
of political patronage. David Peterson’s rationale is equally if
not more valid today, especially with the growth of lawyerpermitted
advertising – in its infancy in 1985.
Despite this background, and with seemingly little or no
consultation with the various interested groups such as The
Advocates’ Society, the Ontario Bar Association, and the Law
Society of Ontario – the Treasurer of the Law Society declined
the invitation (if that’s what it was) to receive one – the Ford
government has recently awarded a spate of KCs, many to
political cronies or operatives. I didn’t count the number but,
among other self-aggrandizements, the attorney general appears
to have awarded one to himself, and a former attorney
general seems suddenly to have been called to the Ontario bar
despite being a lawyer for many years.
Although there are at least two counsel on the list who
would be eminently qualified to be awarded this honorific
on any criteria, especially reflecting its original intent to
acknowledge the finest of advocates, it appears that most on
the list must have other unrecognizable attributes, save political
affiliation. One of the recipients of this now-hollow
honour, although having worked in the government for several
years, is not the experienced counsel for whom the designation
was originally meant, even in its later years of transparent
political patronage.
As opposition parliamentarians used to say (and may still,
for all I know), “For shame.”
Advocates in Action
Our Advocates in Action digital newsletter keeps
TAS members informed about and engaged with
the Society's important advocacy work.
Scan here for past issues.
Anna Wong | Patrick Healy Fraser Dickson
44 | FALL 2023 | THE ADVOCATES’ JOURNAL