e-brief spring 05

By Benjamin Zarnett, Goodmans LLP

On April 7, 2005, the federal government intro-duced a proposal for reforming the process ofappointment of judges to the Supreme Court ofCanada. The Advocates' Society is filing a sub-mission with parliament's Standing Committeeon Justice, commenting on that proposal. Boththe government's proposal and the Society'scomments address measures designed toensure that only the highest calibre of candi-dates continue to be appointed to the SupremeCourt, but with greater transparency of processthan previously existed. One point on which thegovernment's proposal and the Society's com-ments are completely ad idem is this: a nomi-nee for appointment to the Supreme Court ofCanada should not be required to appear forpublic questioning, as nominees in the UnitedStates must.

Public questioning of nominees to the SupremeCourt of the United States often has focused on two areas -- personal matters andmatters of judicial philosophy.

Personal matters may of course provide a reason why an individual should not be ajudge on a Supreme Court. Jon Stewart's depiction of John Rutledge as a 1795 nomi-nee of George Washington who was rejected because he believed the CIA hadimplanted a mind-control chip in his brain 163 years before the invention of either, is afictional but humorous case in point.1 But assuming there already has been a diligentprocess leading up to a nomination, an attendance by the nominee for public ques-tioning on personal matters may be apt only to encourage inquiries into personalhabits, "quirks" or even more remote matters that would be irrelevant to fitness foroffice. During the public hearings on the nomination of Robert Bork to the U.S.Supreme Court, a list was published of the films Bork had rented from his neighbour-hood video store.2 While Douglas Ginsburg's nomination to that court was under con-sideration, he reportedly telephoned the White House to advise that his wife had oncebeen a contestant in a beauty contest, and wondered whether, if that fact came tolight, his chances of confirmation would be affected.3 Excesses such as these may bethe reason why those who call in Canada for public questioning of Supreme Courtnominees do not base the call on the utility of such a process to illuminate personalcharacteristics.4

The most common basis for asserting that a nominee to the Supreme Court should

The Advocates’E-Brief

To Question or Not To Question -- That is the Question

The Advocates' E-BriefA publication of The Advocates' Society

1VOLUME 16, NO. 3, SPRING 2005

“The Advocates’ E-Brief” is intended tobe a forum in which members of TheAdvocates' Society can communicatewith the board of directors and with eachother. Submissions on subjects that areof widespread interest to the membershipare welcome. Please contact the Editor:

Sonia HoliadDirector of Marketing & CommunicationsThe Advocates’ Society2020 - 438 University AvenueToronto, ON M5G 2K8Tel: 416-597-0243 x.112 Fax: 416-597-1588E-mail: [email protected] site: www.advocates.ca

For advertising information, please con-tact Middleton &Associates, 1-800-710-9396 or [email protected]

Change of address notices may be for-warded to The Advocates’ Society at theaddress above.

“The Advocates’ E-Brief” is published periodical-ly in electronic format, distributed to members ofThe Advocates’ Society, and posted to our website. Opinions expressed within are not neces-sarily those of the Society, and the publicationof advertisements does not imply endorsement.Contents may not be reproduced without writtenpermission.

In This IssueTechno-talk: Going Paperless . . . .4New Members . . . . . . . . . . . . . . .4-6Calendar of Events . . . . . . . . . . . .7Who’s Doing What . . . . . . . . . . . . .8Litigation Tips & Traps . . . . . . . . . .9Fee Waiver Legislation. . . . . . . . .11The Expert Column . . . . . . . . . . . 15Ethos, Pathos and Logos. . . . . . . 16

Surviving Personal Trauma . . . . . 18(Continued on page 2)

Benjamin Zarnett

Vol. 16, No. 3, Spring 2005

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The Advocates’ Society

events & programs.

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VOLUME 16, NO. 3, SPRING 20052

(Continued from page 1)

first be publicly questioned is the claim that it will allow the prospective judge to be asked what he or she thinks about the issues heor she will in the future have to decide, especially hot-button social issues. But in many cases that claim is underlain by a particular"philosophy," namely that a judge decides cases largely based on his or her preconceived notions. If that "philosophy" wereaccepted, there would be a straight answer to the question "How will you decide a case in the future about the constitutionality of apartial prohibition on abortion?" The answer would be "According to my preconceived notions about abortion" (which could then bedisclosed). An answer such as "I cannot comment on how I would vote on a specific case in the future" (frequently given in theUnited States) would be seen as a dodge. The answer of "That would depend on the precedents cited, the evidence, the argu-ments made, the wording of the legislation, etc …" would be seen as even more evasive.

But the problem is that we, as advocates, do not accept the "philosophy" that our judges' future decisions are ineluctably driven byviews they may now hold on social issues. We don't accept that the precedents cited, the arguments made, the evidence led, etc.,are some kind of elaborate ruse, incapable of changing or affecting a judge's mind and simply providing cover for the implementa-tion by the judge of the view he or she held prior to considering the specific case. We recognize that judges hold views aboutimportant social questions, but when a legal issue is put before them, informed by evidence and by legal argument on the properapplication of principle and precedent, those previously held views do not preordain the ultimate legal result.

If fifteen years ago one had asked all of the Canadian judges who have subsequently considered the constitutionality of the "tradi-tional" definition of marriage what they thought of same-sex marriage, would their answers have been illuminating? Would onehave been able to predict the result of the cases they subsequently decided by how the judges had years earlier answered thequestion "What is your view of same sex marriage?" Most surveys show a division in public opinion on this question. Yet the judi-cial decisions, rendered after evidence and legal argument, on what the Charter means for the definition of marriage, have beenuniform. A judicial decision is by definition the product of something more than previously-held personal viewpoints.

What light would be shed by asking judicial nominees how they will decide, or how they view, issues that may in the future comebefore the court? Little or none, if we accept that advocacy and judging involves a rational process and not the mere imposition orexpression of a previously-held viewpoint. Asking someone, without the benefit of the facts, arguments and precedents that will bebrought to bear on a matter, what they think of an issue is a question without legal context -- the legal equivalent of asking "Howhigh is up?"

(Continued on page 3)

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Some calls for reform in the United States have hit, in part, a similar note. Reactingto the divisive and unhelpful fall-out of confirmation battles plagued by argumentsover whether a nominee should be answering or is avoiding questions as to how heor she will decide a future issue, one commentator has noted:

"The most obvious way to avoid leaving blood on the floor is to name individu-als of the highest calibre and experience, with much less attention paid totheir likely votes." 5

The government should be encouraged to pursue the reform of the Supreme Courtappointment process to ensure that individuals of the highest calibre and experiencecontinue to be appointed, with increased transparency. Public questioning of thenominees need not be part of that process.

Notes:1. Jon Stewart, Ben Karlin and David Javerbaum, America (The Book), (2004) (WarnerBooks) p. 86.2. Stephen Carter, The Confirmation Mess, (1994) (Basic Books) p.6.3. Carter, supra, note 2, p.7.4. Neither Bork nor Ginsburg were confirmed for reasons unrelated to videos or beautycontests.5. Carter, supra, note 2, p. 187.�

THE ADVOCATES' SOCIETY2004 - 2005

EXECUTIVE

Benjamin Zarnett, PresidentLinda R. Rothstein,First Vice-presidentMichael Eizenga,

Second Vice-presidentMichael E. Barrack, TreasurerPeter J.E. Cronyn, Secretary

DIRECTORS

Kevin R. AaltoRaj Anand, LSMStephen T. BaleJack Braithwaite

David BrownFay K. Brunning

Paul J.J. CavalluzzoDomenic Crolla

Elizabeth Cummins SetoStephen E. Firestone

Sandra A. ForbesBrian A. FosterPaul J. FrenchPeter J. Griffin

Julie K. HannafordMarie T. Henein

George B. KilpatrickAlfred M. KwinterMark D. Lerner

Shirley D. LintonAlan H. Mark

Wendy MathesonBarbara A. McIsaac, Q.C.

Wendy L. MillerPaul F. MonahanJ. Patrick MooreDavid S. Morritt

Barbara J. MurchieBrian J. SaundersJames ScarfoneAllan Sternberg

Karen A. ThompsonBonnie A. Tough

Margaret L. WaddellPeter C. Wardle

Stephen J. WojciechowskiPaul H. Le Vay, Ex Officio

EXECUTIVE DIRECTORAlexandra M. Chyczij

DIRECTOR of EDUCATIONJessica Grant

DIRECTOR of MARKETING andCOMMUNICATIONS

Sonia Holiad

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The Power of Original Thought


4 VOLUME 16, NO. 3, SPRING 2005

By Peter T. Henderson, Kramer Henderson

Working without paper is now a real possibility for lawyerswilling to make a relatively small investment in learningand using technology. For a small (and mostly recover-able) cost, lawyers can reduce the amount of paper theygenerate and store, and assimilate the information con-tained in paper documents with far more convenience,speed and precision than they could ever do manually.

GETTING STARTEDA. Hardwarei) The high speed scanner: The key piece of equipmentin any paperless practice is the scanner. Running a docu-ment through a scanner creates a digital image of the document. The more docu-ments you want to scan, the faster a scanner you require. In most law offices thesedays, the cost of photocopying and scanning (including the lease of the machine) ispassed on to clients. So, if your cost recovery systems are set up properly, there willbe little or no cost to obtaining a high-quality scanner.

ii) B Don't try to work with digital documents on a traditional computer monitor. Youwill simply frustrate yourself. It is very slow, cumbersome and hard on the eyes. Thetraditional monitor may be fine for reviewing incoming correspondence or other shortdocuments, but trying to review large numbers of documents in this way is counter-productive.

There are several reasons why a traditional screen is the wrong choice. The mostimportant is that most traditional monitors will not render a large, full size view of thedocument. In order to see the whole page, the user is required to scroll down. This isvery tedious when viewing a large number of pages or documents. As well, tradition-al monitors do not produce an accurate representation of the actual document. LCDmonitors are generally capable of higher resolution and produce a more "lifelike"image of paper documents.

Don't discard your old monitor -- working with two monitors is easy and far more pro-ductive. Because managing paper electronically involves a number of different appli-cations that will be open and in use simultaneously, using two screens avoids havingto continuously switch between applications.

iii) Laptop computer: There is no good reason not to work on a laptop computer.Concerns about the size of the keyboard and monitor, and about processing power,have been addressed by manufacturers. One of the main benefits of being paperlessis mobility. There is no need to drag boxes of documents to the client's office, tocourt, or to the cottage. Virtually any number of documents can be transported on alaptop or on CD-ROM. Once digitized, the entire client file can be carried away onyour laptop with the click of a button.

B. SoftwareMost of the software (not connected with the scanner) you need to move well into yourjourney toward being paperless you probably already have, unless your computers arevery old. Once your documents are scanned and organized, all you really need to startworking with them is a good viewer, like Acrobat Reader or Kodak Imaging, both ofwhich have been provided with Windows operating systems for years.

DEVELOPING A PROTOCOLAt the outset, you will need to develop a protocol for digitizing paper in your office and

Welcome to Our New Members

Intermediate

Shirline Apiou, Brown & KorteJennifer Arrigo,

Gowling Lafleur Henderson LLPGoldie Bassi,

Gowling Lafleur Henderson LLPLisa Bonin, McCarthy Tétrault LLP

Jennifer A. Conroy, Torys LLPCharles Corlett,

Osler, Hoskin & Harcourt LLPGeorge Corsianos, Shiner Kent

Joseph R. De Luca,Zuber and Company

John Dent, McCarthy Tétrault LLPJ. Adam Dewar,

Roy Elliott Kim O'Connor LLPDonata Di Iorio,

Aronovitch Macaulay Rollo LLPDavid R. Donnelly, Gilbert's LLPDana L. Eichler, Rogers, Moore

Sara Jane Erskine,McCarthy Tétrault LLPPeng Fu, Gilbert's LLP

Beth Given,Fasken Martineau DuMoulin LLP

Bryan G. Gleason,Baker & McKenzie LLP

Jason Goodman, Laxton Glass LLPReena Goyal,

Lax O'Sullivan Scott LLPHelen Gray, McCarthy Tétrault LLP

Stella Harmantas,Tough & Podrebarac LLP

Christina Hill, Ogilvy Renault Laurie Jessome,

Fraser Milner Casgrain LLPAnita Ann John, Brown & KorteAllison Kuntz, Ogilvy Renault

Vaso Maric, Stikeman Elliott LLPRita J. Maxwell,

McCarthy Tétrault LLPPatricia I. McMahon,

Osler, Hoskin & Harcourt LLPMegan B. McPhee,

Roy Elliott Kim O'Connor LLPPamela Miehls, Aird & Berlis LLP

Jackie Bahar Missaghi,Laxton Glass LLP

Catherine R. Moreau,Borden Ladner Gervais LLP

Stacey Morrow, Laxton Glass LLPJordan N. Nichols,

Rueter Scargall Bennett LLP

Continued...

TECHNO-TALK: Going Paperless (No,Seriously!)

Peter T. Henderson


for dealing with it in that format. Most obviously, due regard must be had for theaccuracy, reliability, storage and retrievability of records. Before any paper record iseliminated, a protocol should be in place for producing and storing in retrievable for-mat an exact electronic replica of the record. As is currently the case, processesshould be in place for the automatic back up and archiving of all electronic records.

From a practical standpoint, a protocol will assist staff in coping with what will be, tovarying degrees, a revolution in the way they work. Assistants and clerks who areused to filing, reproducing and working with documents in paper form will need pre-cise and frequent direction on dealing with documents electronically, and having aprotocol for them to refer to will make things easier for everyone.

THE POWER OF PAPERLESSi) Searchable documents: One of the main benefits of digitizing documents is thatthey can be made searchable. The ability to search documents by word or phraseis created when the image of the document is put through a process called OpticalCharacter Recognition ("OCR"). OCR simply creates a text version of an imagedocument. That version can then be searched like any other text document.

One of the problems that has been encountered in the process of becoming paper-less is that digitized documents can appear as one of several different image filetypes. Historically, not all file types were susceptible to OCR, and then not all by thesame OCR software. Dealing with all the different types of image files required anumber of viewers as well as a number of different OCR applications, if one waseven to attempt a paperless environment.

There has been much standardization, and software has advanced dramatically inthe last few years. It is now possible to purchase software for a couple of hundreddollars that can convert virtually any kind of image file into any kind of text file in sec-onds. The better of these applications permit batch processing, so that the operatorsimply points the application to a directory containing image files and it quickly cre-ates text versions of the images. These files can then be saved any number of timesas any number of file types, including the recommended type, image-over-text pdf.

The foundation of the paperless law office is the pdf file, and in particular the image-over-text pdf file. An image-over-text pdf file is basically an image of the documentwith a text file "behind" the image. The document appears precisely as it does inpaper form, and is searchable by text by virtue of the hidden information.

ii) Case analysis and presentation: There are a number of computer applicationscommonly in use today that allow lawyers to assimilate and rationalize information.They are information management tools, and their foundation is digital information.Text that is already in digital format can be imported into these applications auto-matically, rather than entered manually. Hyperlinks can be created automaticallybetween the information contained in the application and its source, be it a digitalimage, movie clip, transcript or sound bite. Information is quickly and easily ratio-nalized by source, issue, witness or some other legally relevant characteristic. Theresult can be a degree of mastery over information that is simply not achievablemanually. In order to use these tools, documents must be available in digital for-mat.

CONCLUSION"Going paperless" is neither expensive nor complicated. It involves a modest invest-ment in hardware that will shortly be considered standard in any event, and one ortwo applications that can be purchased for a few hundred dollars.

The question is no longer whether to go paperless, but rather what to do once youget there. There is no shortage of choice when it comes to information managementtools. Whichever you choose, starting with the right equipment and an effective pro-tocol for dealing with and eliminating paper will make your use of these tools easierand more effective.�


Bradley Rafuli,Fraser Milner Casgrain LLP

Jean-Claude Rioux, Rogers, MooreDavid M. Rogers, Rogers, Moore

Alexander Rose,Stikeman Elliott LLP

John Rowinski,Torkin Manes Cohen Arbus LLPSameer Sandhu, Rogers, Moore

Awanish Sinha,McCarthy Tétrault LLP

Jason Tan,Roy Elliott Kim O'Connor LLP

Janet L. Walker, Financial ServicesCommission of Ontario

Sean Werger,Lax, O'Sullivan, Scott LLP

Catherine M. Wiley,Fasken Martineau DuMoulin LLP

McLean J. Wood,Osler, Hoskin & Harcourt LLPCecillia Xiao, Rogers, Moore

Judicial

The Honourable JusticeEdward Then,

Superior Court of Justice

Regular - Outside of Toronto

Leigh Ann Kirby,Fraser Milner Casgrain LLP

Peter R. Sheppard,Daniel & Partners LLP

Y. Monica Song,Fraser Milner Casgrain LLP

Shelley Trewin,Weiler, Maloney, Nelson

Regular - Toronto

Douglas F. Best,Miller Thomson LLP

Anthony G. Bryant, BarristerLou Brzezinski,

Blaney McMurtry LLPDavid Butt,

Torkin Manes Cohen Arbus LLPRod Byrnes,

Byrnes Chan & Associates LLPAllan D. Coleman,

Osler, Hoskin & Harcourt LLPLisa M. Constantine,McCarthy Tétrault LLP

Ronald Foerster,Borden Ladner Gervais LLP

Reesa Heft, Rayson & AssociatesRose Leto-Cundari,

Neinstein & Associates LLPContinued...


Elizabeth McIntyre, Cavalluzzo,Hayes Shilton, McIntyre & Cornish

Peter A. Neumann,McCarthy Tétrault LLP

Gerald P. Sadvari,McCarthy Tétrault LLPPeter A. Silverman,Barrister & Solicitor

Lori Stoltz, Goodman and Carr LLPGavin J. Tighe,

Gardiner Roberts LLPDavid Waterhouse,Forbes Chochla LLP

Peter Wilcox, Torys LLP

Queen’s University was the winner of the 2005 Arnup Cup, the annual moot trial com-petition for law students in Ontario. Sponsored by WeirFoulds LLP and administeredby The Advocates’ Society, the two-day event included an opening reception and aclosing dinner at Campbell House for the six competing teams, their coaches and thetrial assessors. Assessors were Stephen Bale, John M. Buhlman, MaureenForestell, Alfred Kwinter, Barbara Murchie, Gregory Richards, Margaret Waddelland Benjamin Zarnett.

Pictured, left to right: Arnup Cup recipients Robb MacDonald and Mariana Alves ofQueen’s University; John M. Buhlman of WeirFoulds LLP; The Honourable JusticeMary Ann Sanderson of the Superior Court of Justice, who acted as the presidingjudge, and Queen’s University coach Professor and Acting Dean Gary T. Trotter.

The Advocates’ Briefwelcomes your comments, articles & announcements.

Please forward them to:[email protected]

Fax: 416-597-15882020 - 438 University Avenue,

Toronto, ON M5G 2K8

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VOLUME 16, NO. 3, SPRING 2005 7

Calendar of EventsFri., May 20 Special Litigation Skills Certificate Program:

Written and Oral Advocacy in the Tax Court of CanadaToronto: Tax Court of Canada

Tues., May 24 Special Litigation Skills Certificate Progam:Estates LitigationToronto: Federal Court of Canada

Fri., June 3 Special Litigation Skills Certificate Program:Practice Before the Federal CourtToronto: Federal Court of Canada

Wed., June 22 End of Term Dinner & AGMKeynote Speaker: His Excellency Mr. Allan RockToronto: Fairmont Royal York Hotel

Thurs., November 17 - Fall Convention Sun., November 20 Great Exuma, Bahamas: Four Seasons Resort

For further information, please call:Education: 416-597-0243 x.110

Events: 416-597-0243 x.113Sir William Campbell Foundation: 416-597-0227

The J.J. Robinette Dining Room at Campbell House: 416-597-0542

On Friday, May 6, 2005, O. Reg.198/05 came into force. This regulationintroduces new Rule 78 and other relat-ed amendments to the Rules of CivilProcedure. Rule 78 prescribes a pro-cedure that applies to actions com-menced in the City of Toronto on orafter December 31, 2004. The key ele-ments of the Practice Direction, issuedby the Honourable Regional SeniorJustice Warren Winkler on November22, 2004, are incorporated in the newRule 78. The Practice Direction pro-vides commentary on how parties withcivil cases in Toronto are expected togovern themselves and should bereferred to and complied with by coun-sel.

A copy of O. Reg. 198/05 may beaccessed on our web site at

http://www.advocates.ca/pdf/New_Rule_78_reg.pdf

Notice of NewRule 78


WHO’S DOING WHAT: Member NewsIntervenor status was granted to The Advocates’ Society in Irving Bronfman v. JoelRichler and Blake, Cassels & Graydon LLP. Thanks are extended to J. Bruce Carr-Harris and David W. Scott, Q.C., of Borden Ladner Gervais LLP, counsel for theSociety. The matter was settled before argument of the appeal, resulting in the lostopportunity for precedence that would clarify the law on the issue regarding the dutyof counsel to the opposing party. Thanks also to C. Clifford Lax, Q.C. of LaxO’Sullivan Scott LLP for bringing this case to the Society’s attention.

The Honourable Justice G. Normand Glaude of the Ontario Court of Justice hasbeen appointed to lead an independent public inquiry into the events surroundingallegations of abuse of young people in Cornwall.

LSUC Certified Specialist designations have been achieved by Peter E.J. Wells ofLang Michener LLP (Civil); Martha A. McCarthy of Epstein Cole LLP (Family), andMark S. Hayes of Ogilvy Renault LLP (Copyright).

The Honourable Justice Colin McKinnon of the Superior Court of Justice hasbeen awarded the Carleton Medal “for great diligence, high ideals and outstandingleadership in the practice of law.”

Board member Jack Braithwaite, a founding partner of Gatien Braithwaite inSudbury, has joined the firm of Weaver, Simmons LLP as counsel.

Scott C. Hutchison has joined the firm of Stockwoods LLP.

Henry A. Gluch of the Department of Justice, Peter A. Chapin of Legal AidOntario, and a number of other lawyers who make up the band called the TokyoGiants performed during the pre-game and half-time breaks in the Toronto Raptorsgame on April 17. Henry and Peter play in another lawyer-heavy band called theAdvocats Big Band, which performs on the first Monday of every month at theChick’n Deli.

Leave to appeal as a friend of the court has been granted to The Advocates’ Societyin the case of Thuan Duong v. Taalman Engineered Products Ltd., on the issue ofwhether the courts should cover the cost of interpreters for indigent litigants. Counselfor the Society will be Raj Anand, LSM and Kim Mullin of WeirFoulds LLP.

Following up on its recently-released and well-received book Ethos, Pathos andLogos: The Best of The Advocates’ Society Journal, 1982 - 2004, The Advocates’Society will soon publish its showpiece, Learned Friends: A Tribute to FiftyRemarkable Ontario Advocates, 1950 - 2000. Comprising the Editorial Board areKevin R. Aalto of Gowling Lafleur Henderson LLP - Chair; Sheila R. Block of TorysLLP; J. Bruce Carr-Harris of Borden Ladner Gervais LLP; The Honourable JusticeStephen T. Goudge of the Court of Appeal for Ontario, Brian H. Greenspan ofGreenspan Humphrey Lavine; Marie T. Henein of Henein and Associate; George B.Kilpatrick of Dutton Brock LLP; The Honourable Justice Jean-Marc Labrosse ofthe Court of Appeal for Ontario; Jeffrey S. Leon of Fasken Martineau DuMoulin LLP;Paul F. Monahan of Fasken Martineau DuMoulin LLP, Chris G. Paliare, LSM ofPaliare Roland Rosenberg Rothstein LLP; C. Scott Ritchie, Q.C. of Siskind,Cromarty, Ivey & Dowler LLP; Charles F. Scott of Lax O'Sullivan Scott LLP; JamesC. Simmons, Q.C. of Weaver Simmons LLP; Harvey T. Strosberg, Q.C. of Sutts,Strosberg LLP, and Benjamin Zarnett of Goodmans LLP. The book has been writtenby reknowned author and former lawyer Jack Batten, and features a foreword by theHonourable Chief Justice R. Roy McMurtry.

Chile Eboe-Osuji will soon wrap up his work in Arusha, Tanzania, where he isSenior Legal Officer for the UN International Criminal Tribunal for Rwanda. InAugust, he will resume his practice with Borden Ladner Gervais LLP in Ottawa.

Please send announcements to [email protected]

Spotlight On aBoard Member

Alan H. Mark of Toronto is a partnerwith the firm of Ogilvy Renault LLP. Hereceived his LL.B from Osgoode HallLaw School in 1980. Alan has extensiveexperience as a corporate-commerciallitigator and regulatory counsel and hasappeared at all levels of the Ontario andfederal courts, including the SupremeCourt of Canada, and before variousadministrative tribunals. His areas of liti-gation expertise include securities andM&A litigation, including contested take-over bids, plans of arrangement, share-holder rights plans, corporate reorgani-zations and issuer liability claims; share-holder and partnership litigation, includ-ing oppression claims, corporate gover-nance matters, partnership disputes,corporate opportunity claims and fidu-ciary duty cases; class actions, includ-ing financial services, securities andmass tort claims; commercial litigation,including contract disputes, debtor-cred-itor litigation, fraud actions and assetrecovery, and banking and insolvency,including restructurings, securityenforcement and receiverships. Alanhas been lead counsel on a number ofhigh-profile cases, including represent-ing Schneider Corp. in its takeover bat-tle with Maple Leaf Foods and repre-senting Mackenzie Financial Corporationin connection with its takeover byInvestors Group. Alan is a frequent con-tributor to legal publications and contin-uing legal education programs, and is aregular instructor in trial advocacy forThe Advocates’ Society and OsgoodeHall Law School. He is a member of theLaw Society, the Canadian BarAssociation and the Toronto Lawyers’Association.�


LITIGATION TIPS & TRAPS: “Southren” Style

By Jane Southren, Lerners LLP

This edition of Tips and Traps is brought to you by Kimberly Morris. Kimberly is apartner with Woolgar VanWiechen Ketcheson Ducoffe LLP and enjoys a broad litiga-tion and dispute resolution practice that includes estate litigation, a murky area ofpractice in which the unforeseen traps are legion.

Kimberly has kindly agreed to share with us some of the traps she has navigatedaround and tips she has learned along the way in order to enlighten the estate litiga-tion "newbies" out there to the perils they can look forward to encountering when pro-ceeding on the Estates List.

A DIFFERENT STAGE WITH A DIFFERENT SCRIPT

By Kimberly T. Morris, Woolgar Van Wiechen Ketcheson Ducoffe LLP


Kimberly T. Morris

Most advocates appear in what we know as the regular civil courts: the Superior Court of Justice -- the main and center stage, soto speak. Even those who appear on the Commercial List are familiar with the main and centre stage, the players and the scripts:pleadings, discovery transcripts and ultimately the trial.

Those who appear occasionally on the Estates List may be surprised to find themselves on a somewhat different stage, with differ-ent players and with different scripts.

In Toronto there is a separate Estates List which, like the Commercial List in Toronto, is a specialized court. The Estates List sitsonly once a week each month and occasionally sits from time to time to hear urgent matters. Accordingly, when dealing with estatelitigation matters it will be important to advise your client of the difficulties you may face in obtaining a hearing date on the EstatesList. There is also a separate Estates List Office, which deals with all paperwork and documentation associated with hearings onthe Estates List.

Unfortunate timing issues aside, proceeding in the Estates List in Toronto offers the benefit of specialized judges who are usuallywell versed in estates matters and in particular with the Rules of Civil Procedure that govern estates matters -- Rules 74 and 75.

While there are many documents that are drafted and used in furtherance of an Estates List matter, this article will be devoted tointroducing Estates List novices to the first and foremost document in any estate proceeding: the Order Giving Directions.

An Order Giving Directions identifies in detail the issues to be determined by a court, the parties who will be involved, and aprocess by which those issues will be determined. While it is possible in estate matters to have formal pleadings, an Order GivingDirections is often used in place of these documents to set parameters of the proceeding.

The form and content of an Order Giving Directions can be agreed to among counsel and the parties in advance, or may becomethe subject matter of a court hearing.

Whatever the means of settling the form, an Order Giving Directions should include the following information:

1. Identify the question(s) the court is being asked to decide. For example, if the issue is the validity of the will document itself, the Order Giving Directions should identify the position beingtaken by each party with respect to the will document:(a) which party alleges that the will was validly executed;(b) which party takes the position that the deceased had testamentary capacity at the time the will was executed, and(c) which party takes the position that the making of the will was procured by undue influence.

2. Identify those persons and entities who will be parties to the estate proceedings. The parties to a civil proceeding are generally limited to the plaintiff, the defendant and any subsequent parties who may havesome liability in the issues identified in the statement of claim. The parties in an estate proceeding, as identified in the Order GivingDirections, may include:(a) persons named in the will (the beneficiaries);



(b) persons named in earlier will docu-ments; and (c) possibly the Office of the PublicGuardian and Trustee and/or the Officeof the Children's Lawyer, if an incapableperson or a minor is involved in theestate proceeding.

3. Describe the process by which theissues will be determined. Some features that must be included inthe process in each case are: (a) Mandatory Mediation: Rule 75.1 pro-vides for mandatory mediation inestates, trusts and substitute decisionsmatters. Although the process formandatory mediation has been revisedwith respect to general civil matters,mandatory mediation is still applicablein estate proceedings. An Order GivingDirections often will specify the time-frame for mandatory mediation (oftenwithin 90 days of the date of the OrderGiving Directions), the issues to bemediated (usually those identified in theOrder Giving Directions), the name of the mediator, who is required to be present at the mediation, what documentation is requiredfor the mediation and who will pay for the mediation.

(b) Discovery Process - Documentary Discovery: Those parties who are identified in an Order Giving Directions will equally havethe authority to compel the production of mediation records and files relating to the deceased, all financial records and files relatingto the assets of the deceased (whether held by the deceased personally or jointly with another person), and all medical and bank-ing records. An Order Giving Directions also should identify that each party to the estate proceeding should serve an affidavit ofdocuments in accordance with the Rules of Civil Procedure at the request of any other party. That way, if an affidavit of docu-ments is not requested, there is no obligation to produce it.

(c) Discovery Process - Oral Discovery: An Order Giving Directions should identify who will be subject to examination for discov-ery. It often will contain a blanket order that "each party shall upon the request of any other party attend and submit to the exami-nations for discovery in accordance with the Rules of Civil Procedure" and an order granting leave to the parties to examine for dis-covery non-parties in accordance with Rule 31.10. Witnesses examined pursuant to this order often include the solicitor who pre-pared the last will and testament of the deceased and any other solicitor who prepared any prior will document of the deceased.

(d) Production of Solicitors Records and Notes: An Order Giving Directions should require the production of all solicitors' records,notes, files or communication relating to the deceased and specify that no solicitor and client privilege will attach to any of thoseitems as between the solicitor and the deceased.

(e) Waiver of the Deemed Undertaking Rule: An Order Giving Directions should contain a paragraph ordering the waiver of thedeemed undertaking rule (Rule 30.1). That order will facilitate a future negligence action against the solicitor who may haveimproperly drafted the will. A blanket clause such as "Rule 30.1.01(3) shall not apply with respect to the use of evidence or infor-mation by any of the parties relating to the issues in the within proceedings" is appropriate and should be included in an OrderGiving Directions.

Once the Order Giving Directions has been settled, by agreement or as a result of a hearing, the proceedings are advanced inaccordance with it. Generally an Order Giving Directions covers all events up to and including the issues to be determined at trial.However an Order Giving Directions often includes an order that the parties can at any time return to the Estates List for furtheradvice and direction.

A final word about costs: The old adage that all costs will be paid from the coffers of the estate is not always applicable. Prior totaking the stage on the Estates List a prudent litigator should review the most recent case law dealing with the issues of costs. Indrafting an Order Giving Directions it is also prudent to specify that the costs of producing medical and banking records, which arefor the benefit of all parties, shall be paid from the estate. Other more contentious matters, such as the costs of the examinationsfor discovery and the production of solicitors' notes and records can be left to the presiding trial judge.�

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By Kim Mullin, WeirFoulds LLP

On January 29, 2005, the prolonged litigation battle regarding the constitutionality ofSmall Claims Court fees finally came to an end, with the coming into force of amend-ments to the Administration of Justice Act and Ontario Regulation 2/05 made underthat act, which provide a mechanism for the waiver of court fees for individuals whocannot afford to pay such fees.

The fee waiver legislation is a direct response to the decision of the Divisional Courtin Polewsky v. Home Hardware Stores Ltd. et. al. (2003), 66 O.R. (3rd) 600 (Div. Ct.),in which the Divisional Court found that the absence of the statutory mechanism toprovide for the waiver of court fees payable in Small Claims Court in cases of demon-strated financial inability to pay was unconstitutional.

The appellant, Victor Polewsky, had asked the Court to find that the Small ClaimsCourt fees violated sections 7 and 15 of the Canadian Charter of Rights andFreedoms and the Rule of Law. The Advocates' Society intervened in the appeal insupport of Mr. Polewsky and urged the Court to find that the Rule of Law and thecommon law right of access to justice require unimpeded access to the courts. TheDivisional Court found that "a citizen's right to unimpeded access to the courts toenforce his or her civil rights is a common law constitutional right that can only beabrogated by clear and expressed statutory language,” subject to proof of indigenceand a meritorious claim. In its reasons, the Court accepted the Society's argumentsregarding the Rule of Law and the common law right of access to justice.

The Attorney General of Ontario, who also intervened before the Divisional Court,sought leave to appeal to the Court of Appeal, which was granted on January 13,2004. Ultimately, the government introduced the amendments to the Administration ofJustice Act to allow for fee waiver in the Small Claims Court, the Superior Court ofJustice and the Court of Appeal, rather than proceeding with the appeal.

Under the amendments to the Administration of Justice Act, applications for fee waiv-er can be made either to the clerk of registrar of the court or to a judge, deputy judgeor a case management master. Theregulation provides that a person isentitled to have fees waived if the pri-mary source of the person's grossmonthly household income is one ormore of:(i) income assistance under the OntarioWorks Act, 1997, the Ontario DisabilitySupport Program Act, 1997, or theFamily Benefits Act;(i i) a pension under the Old AgeSecurity Act;(iii) a benefit under the Canada PensionPlan Act; or(iv) an allowance under the WarVeterans Allowance Act. Personswhose gross monthly householdincome, household liquid assets andhousehold net worth are less than theamounts set out in the Regulation arealso entitled to fee waiver.�

We express our gratitude to RajAnand and Kim Mullin of WeirFouldsLLP, who represented TheAdvocates’ Society in its interven-tion in the Polewsky appeal.

Polewsky and Fee Waiver Legislation in Small Claims Court

Raj Anand, LSM

Kim Mullin

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The Honourable Justice RussellJuriansz of Toronto has been appointedto the Court of Appeal for Ontario.

The Honourable Justice Paul S.Rouleau of Toronto has been appointedto the Court of Appeal for Ontario.

The Honourable Justice David R.Aston of London has been appointedSenior Judge of the Family Court Branchof the Superior Court of Justice. Hereplaces the Honourable Justice MaryLou Benotto has resigned the positionand has been reappointed to theSuperior Court of Justice.

Deena F. Baltman of Toronto has beenappointed to the Superior Court ofJustice, assigned to Milton.

Edward P. Belobaba of Toronto hasbeen appointed to the Superior Court.

E. Eva Frank of Toronto has beenappointed to the Superior Court.

Geoffrey B. Morawetz of Toronto hasbeen appointed to the Superior Court.

Paul M. Perell of Toronto has beenappointed to the Superior Court.

Michael G. Quigley of Toronto has beenappointed to the Superior Court,assigned to Milton. He replaces theHonourable Justice John F. McGarry,who has elected to become a supernu-merary judge.

Mary J. Nolan of Windsor has beenappointed to the Superior Court. Shereplaces the Honourable Justice JohnH. Brockenshire, who has elected tobecome a supernumerary judge.

Nancy J. Spies of Toronto has beenappointed to the Superior Court.

James R. H. Turnbull of Hamilton hasbeen appointed to the Superior Court,assigned to Simcoe.

C. Michael Harpur of Toronto has beenappointed to the Ontario Court of Justice,assigned to Barrie.

Robert F. McCreary of Newmarket hasbeen appointed to the Ontario Court ofJustice, assigned to Orillia.�

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The Advocates’ Society Mission StatementThe Advocates’ Society is the professional organization for advocates

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On March 29, The Advocates’ Society and the InternationalCommission of Jurists (Canadian Section) hosted a dinner atthe Four Seasons Hotel to celebrate the Supreme Court ofCanada appointments of the Honourable Justices RosalieSilberman Abella and Louise Charron.

Special guests included the Honourable Justice Ian Binnie ofthe Supreme Court of Canada, the Honourable R. RoyMcMurtry, Chief Justice of Ontario, the Honourable Brian W.Lennox, Chief Justice of the Ontario Court of Justice, and theHonourable J. David Wake, Associate Chief Justice of theOntario Court of Justice.

The Society’s first vice president, Linda R. Rothstein of PaliareRoland Rosenberg Rothstein LLP, paid tribute to the honorees:

Tonight we celebrate two remarkable Ontario jurists. It is notwell known that Justice Charron began her career in civil litiga-tion, in a small firm in Ottawa, Lalonde Chartrand and Gower. Atthe same time, she was also a part-time assistant CrownAttorney. She soon gained a reputation as an exceptional advo-cate with a surgically precise legal mind. By the time shebecame the Assistant Crown Attorney for Ottawa in 1980, shewas renowned for her keen sense of fairness, the highest acco-lade for any prosecutor. Following an enthusiastic mutualembrace with the University of Ottawa's Faculty of Law as anassistant professor, she found her true calling as one of ourfinest jurists.

Like Justice Charron, Justice Abella's extraordinary career as ajurist today seems inevitable, destined... Plucked from the ranksof the family law bar at the tender age of 29 -- before she hadtime to lose many cases -- she became a judge of the OntarioFamily Court and the first to model judicial robes as maternitywear at a swearing-in ceremony. The chair of the OntarioLabour Relations Board, the sole author of the Federal RoyalCommission on Employment Equity: Rosie did it all. She workedtirelessly, wrote beautifully, and advocated passionately for ajust society.

Rosie's children are her biggest fans. It is easy to understand:she adores them. To her family and to the world Rosie is warm,charismatic, eloquent, and brimming with intellectual curiosity.At just the right moments, she tweaks her nose at convention --pink flamingos on her lawn, neon tights under judicial robes.

Louise is, by contrast with her sister judge, reserved and private.Well known for her exceptional gift for writing in both Englishand French, and a deep love of the law, she is less well knownfor her sparkling wit, mischievous sense of humour and a rareability to balance a brilliant career with both mothering, and evenmore difficult, step-mothering. Utterly devoid of pretension,Louise also has a streak of irreverence that she used to inocu-late her colleagues on the Court of Appeal against “judgitis.” ...

Justices Charron and Abella were not appointed to the Supreme Court of Canada because they are women or because one isfrancophone or the other Yiddish-speaking for that matter. But because they are women and because in so many ways they sym-bolize the achievement of historically disadvantaged groups, we celebrate their appointment with the joy that reflects our sharedacknowledgement that we are removing the barriers to justice for all.�

Tribute to Justices Rosalie Abella and Louise Charron

The Honourable Justice Louise Charron and Bill Blake.

Below: The Honourable Justice Rosalie Silberman Abella,Professor Irving Abella and their sons, Jacob and Zachary.


On March 10, some 160 members of the legal community, family and friends gathered at the National Arts Centre in Ottawa tohonour M. James O’Grady, Q.C. of Burke-Robertson LLP. Among the speakers paying tribute was David W. Scott, Q.C., whosaid, “... Jim is the quintessential lawyer. His instinctive command of the law is intimidating, whatever the field may be ... And char-acter Mr. O'Grady enjoys in the fullest measure. Three principal qualities come to mind. First, integrity ... Jim's reputation forintegrity is extraordinary. Well-earned through his day-to-day practice as a professional, sullied by not a single incident in his over40 years at the bar ... Every young lawyer should seize on Jim's example and make his integrity their own ... Second, strength …strength as in power; strength as in substance; strength as in tenacity; strength as in tirelessness ... Third, and finally, that mostenviable of human characteristics, Jim is a good man. Good as in excellent; good as in decent; good as in unselfish; good asexpressed in that sweetest of compliments, simply being very, very nice...”

Seated, left to right: M. James O’Grady, Q.C.; Helen Alexiade O'Grady; speaker Robert C. Morrow of Burke-Robertson LLP, and din-ner chair Fay Brunning of Borden Ladner Gervais LLP. Standing, left to right: master of ceremonies Peter Cronyn of Nelligan O’BrienPayne LLP; speaker Eric R. Williams of Williams, McEnery; Benjamin Zarnett of Goodmans LLP, president of The Advocates’ Society;The Honourable Brian W. Lennox, Chief Justice of the Ontario Court of Justice; speaker David W. Scott, Q.C. of Borden LadnerGervais LLP; speaker Joseph Power of RBC Dominion Securities, and the Honourable Allan Lutfy, Chief Justice of the FederalCourt.�

Jim O’Grady Celebrated at Ottawa Advocate Honoree Dinner

At left and at centre, the Honourable Justice Dino DiGiuseppe and theHonourable Justice Roderick D. Clarke of the Ontario Court of Justice,with Nick Melchiorre of Weiler, Maloney Nelson at right.

Thunder Bay Mentoring Stephen Wojciechowski of Eryou Barristers, a direc-tor of The Advocates’ Society, has chaired to well-received Mentoring Dinners in Thunder Bay thisyear. Held at Giorg Ristorante, both evenings havebeen designed to give younger advocates an oppor-tunity to benefit from the advice of members of thejudiciary in a relaxed setting. Ben Zarnett,President of the Society, and Jessica Grant, theSociety’s Director of Education, attended the firstevent, and Kimberly Morris and AdrienneWoodyard, members of the Young Advocates’Committee, travelled to the second dinner. Amongthe judiciary acting as mentors was the HonourableRegional Senior Justice Terrence A. Platana of theSuperior Court of Justice, whose early enthusiasmhelped to ensure the success of these dinners.�


THE EXPERT COLUMN - The Benefitsof Relationship BuildingBy Bob Martin, PricewaterhouseCoopers

Last summer, I was fortunate enough to have been part ofPricewaterhouseCoopers’ third annual Ulysses Programme - a global leadershipdevelopment programme designed to train partners in leadership, diversity and sus-tainability, and to demonstrate PwC's commitment to corporate responsibility. Thefirm partnered with development organizations active in six developing countriesaround the world, sending a team of three partners into each location to make ameaningful contribution over a two month period. In each project, the partners cho-sen represented different practice areas and cultural backgrounds, bringing uniqueperspectives together to tackle the local issues.

The projects themselves were equally diverse. Solid waste management in Peru,small business development in Ecuador, a strategic landmine action plan in Eritrea,an AIDS communication network in Uganda, communication technology develop-ment in India and assisting war-torn East Timor with a recovery, employment andstability programme.

PwC sent all participants to an intensive week-long foundation programme first, to develop our skills and provide us with tools toassist in maximizing the teams' potential, capitalizing on the diversity of our group. The 18 participants were from PwC offices allover the world; we came out of that week invigorated with what we had learned and the bonds we had developed.

My own project in Ecuador focused on poverty reduction in the border provinces. The United Nations sought to capitalize on theentrepreneurial talents of Ecuadorians by supporting the development and growth of micro-enterprises (usually 10 employees orless). This growth would bring employment to the region and, in turn, help those in greatest need. The United Nations, with thesupport of foreign donors, had recently set up local Business Development Agencies to serve the local entrepreneurs.

Along with Catherine Rueckel from Luxembourg and Humphrey Choi from Hong Kong, my job was to advise on the role and ser-vices of these agencies. We explored training and support services, strategic financial consulting, legal consulting, businessincubation services, and the provision of micro-finance assistance. Each of these potential services was considered in the con-text of what the entrepreneurs told us they needed, resources available through universities and government agencies, and whatthe micro-finance organizations required to provide funding to these entrepreneurs.

We definitely were thrown outside of our own respective comfort zones with this role. Physically, we were adjusting to differenttime zones and a 9,000-foot elevation, and we also had to carefully monitor food and water quality as well as personal safety.Mentally, our families were far away, we often were conversing in a foreign language and we were under pressure from our-selves to make the project a success.

After our two months in the field, all global participants reunited for another week to share and reflect on our experiences, and tothink about how to bring our learning back for the benefit of the firm in our respective countries.

The benefits I personally experienced were really too numerous and complex to do justice in a short article. Perhaps the greatestgift is demonstrated by the relationships I developed with my two PwC partners on the project. It was the power of these relation-ships that resulted in the strength of our team and our delivering sustainable benefits to the United Nations and the BusinessDevelopment Agencies. Through an interactive feedback process, we learned about our own strengths and weaknesses, andabout each other. In the end, we learned a great deal about ourselves, by opening our hearts and our minds, by listening hard toeach other and by being open-minded to change. We genuinely appreciated each other’s perspectives, no matter how differentthey were from our own.

The result? A strong and deep relationship between the three of us, a new level of trust that did not exist in the beginning, andan effective team that capitalized on our individual strengths.

How does this relate to my work at home? Now, I appreciate much more the importance of deeper relationships with clients andcolleagues, and the ensuing trust makes for an even stronger team that understands each other and enjoys working together.Clients sense this trust and teamwork and feel comfortable calling for advice, knowing you will help them find the best solution tosuit their needs -- not because you are trying to sell them services, but because you care about them and about your relationship.

Bob Martin is a Dispute Analysis & Valuations partner in PricewaterhouseCoopers' Toronto office.�

Bob Martin


The Advocates’ Society launched the first of its two books at a reception at Campbell House in February. Ethos, Pathos andLogos: The Best of The Advocates’ Society Journal was published through Irwin Law and features a selection of the finest articleson advocacy published in the Society’s Journal from 1982 - 2004. Pictured, left to right: book co-editor David E. Spiro of Blake,Cassels & Graydon LLP; Jeffrey Miller, Publisher, Irwin Law Inc.; book co-editor and current Journal editor David Stockwood,Q.C. of Stockwoods LLP; book distributor Helen Rentis of Helaine Distributors; Sonia Holiad, the Society’s Director of Marketing& Communications; The Honourable Brian W. Lennox, Chief Justice of the Ontario Court of Justice; Journal founder and formereditor Brian J.E. Brock, Q.C. of Dutton Brock LLP, and the Society’s immediate past president, Jeffrey S. Leon of FaskenMartineau DuMoulin LLP. Ethos, Pathos and Logos is available through Irwin Law at 416-862-7690 or 888-314-9014.

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Access for Persons with DisabilitiesA committee to review the issue of accessability to courthouses for persons with dis-abilities held its first meeting in early April. The committee includes representatives ofthe Court of Appeal for Ontario (The Honourable Justice Karen Weiler), theSuperior Court of Justice (The Honourable Justices Gloria Epstein and AnneMolloy), and the Ontario Court of Justice (The Honourable Justice Brent Knazan).Also represented are the Law Society of Upper Canada (Earl A. Cherniak, Q.C.), theOffice of the Attorney General (Debra Paulseth) Crown Law Office (David M.Lepofsky) and The Advocates' Society (Alf Kwinter). The committee is seekinginput from members of the profession. Comments may be forwarded to:[email protected].�

Sir Wm. CampbellFoundation Lottery

Draw date: June 22, 2005

All proceeds to theSir William Campbell Foundation

Prizes:1. Trip for two to the sunny south, allinclusive, seven days ($3,500–$4,500)donated by itravel2000.2. Two-night getaway at Deerhurst,including two dinners ($880) donated byDeerhurst Resort and Borden LadnerGervais LLP.3. Four day-passes for Mansfield Ski Club($200) donated by George B. Kilpatrick,Dutton Brock LLP.4. Fly-fishing guided trip for two ($428)donated by Wardle Daley LLP.5. Express Day Spa Package at StillwaterSpa ($232) donated by Debut Global Inc.6. Gift certificate for Jamie Kennedy WineBar ($150) donated by Jamie KennedyWine Bar.7. Two tickets, Toronto SymphonyOrchestra concert and pass to theirMaestro Club ($160) donated by TSO.8. Two bottles of 1996 Ornellaia ($300)donated by Stephen Grant, McCarthyTétrault LLP.9. Historic dinner for eight cooked in win-ner’s home ($500) donated and cookedby Dorothy Duncan.10. Two sculptures by Irene Blogg ($800)donated by the artist.11. Painting by Jocelyn Shaw ($1,000)donated by the artist.12. Two “Spy” prints ($300/pair) donatedby SWCF Volunteer Committee.13. Two nights at Fairmont Royal YorkHotel ($1,000) donated by FairmontRoyal York Hotel.14. Entertainment for four at Woodbine Raceway ($200) donated by WoodbineRaceway.15. Oil painting by Mel Delija ($300)donated by the artist.

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By Edward N. Levitt, Levitt, Hoffman

Ned Levitt is actively involved in Bereaved Families of Ontario, a volunteer organization that helps parents with the grief followingthe death a child. He presented the following address at the OBA Annual Institute OBAP Breakfast on Feb 4, 2005.

August 30, 1995 was hot and sunny. I was aglow with good health, a thriving practice, and a wonderful family. By midnight myworld was shattered. My beautiful 18-year-old daughter, Stacey, was struck and killed that night by a car. What followed was arapid descent into excruciating pain, self-doubt, depression and thoughts of suicide.

I wondered how I would survive, let alone continue to practise law. It did not take long for me to realize that suicide was not anoption; how could I leave my other daughters, Marni and Jacqueline, and my wife, Cheryl, to cope with yet another loss? With thelove and support of my amazing friends and family, I began the very long road to rebuilding my personal life. Returning to the officea mere week after the accident was more about needing to feel human than about trying to provide legal services to my clients.Gradually, over time, with the understanding and support of my firm and professional help, I was able to regain my professionalequilibrium. As I emerged from the depths of despair, I began to see, with brilliant clarity, how much our culture denies death andpain and clings to myths about human suffering and human need.

I found much solace in helping others through their bereavements and grew as a person in the process. I learned from my ownexperience and theirs about the enormous obstacles facing the traumatized in our world. These obstacles are particularly dauntingfor traumatized lawyers, in part because we feel we must, as advisors, present a strong and unblemished image to our clients andcolleagues and in part because we believe that we can solve any problem on our own. Asking for help seems to be the hardestthing of all. The problems, of course, are not just those of the lawyer experiencing the trauma. The well-being of the rest of the firmand the clients is also at risk at such a time. Add to those problems the moral dilemmas that present themselves -- Can he handlethe files safely? How long should we support him? Can I trust him with my legal work? -- and you get a particularly challengingenvironment for everyone.

For the one experiencing trauma, the first and most important thing to do is ask for help. Often that requires an enormous amountof soul searching and the strength to admit to ourselves and the world that we may not, at the time, be as strong as we thought wewere; but how much stronger you become after you get the support you need! Knowing your limits and working within them duringthe period of trauma is also important, not only for the sake of the clients and the firm, but for your own healing process. Nothingsets you back more, during trying times, than taking on too complex tasks or too heavy a workload. At the same time, completelysevering yourself from professional work, unless it is clearly necessary, may complicate your return to full practice. Choosing a wisebalance is so important. As we build our fortunes, skills and reputations, we lawyers have a terrible habit of ignoring our health,working to exhaustion and denying ourneeds and the needs of those close tous. These are lifestyles we can ill affordduring a time of trauma. More than ever,we must be vigilant about our health,both mental and physical, and take timefor ourselves.

For the colleagues of a lawyer experi-encing personal trauma, I have the fol-lowing advice to share:1) Convey, in no uncertain terms, theunequivocal support that the firm willgive to the lawyer who is experiencingtrauma.2) Assign the best person in the firm tomentor the lawyer through the trauma.This might be another lawyer who hashad a similar experience or simply theperson who has the best "people" skillsfor such a task.3) Educate everyone in the firm aboutthe origins of the trauma. The truthsabout addiction, mental illness andbereavement and their consequences

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are often at odds with common beliefs.4) Do not be afraid to engage the lawyer and do not deny their pain and the reality of their "new world."5) Consider wisely the value of the lawyer before the trauma and what it might mean to them and the firm if they can be helped backto full health.6) Be firm but fair about all productivity and remuneration issues. It is easier to cope with clear goals and objectives than to wonderabout your livelihood while you are struggling with trauma.

I personally have seen, time and time again, that individuals can grow stronger and wiser from the challenges in their lives, even thetraumatic ones or maybe especially the traumatic ones. I did! Among the many gifts Stacey left me as she left this world is theknowledge that I heal myself when I help others.

Confidential help and information are available for lawyers and their families. Ontario Bar Assistance Program - Lawyers helping lawyers since 1978 www.obap.ca 24-hour Line: 1-800-667-5722

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2005 Court House Series Expands to Six Cities

Left to right, at the Hamilton Court House Series session on “Trial Argument,” Jon-David Giacomelli of Ross & McBride; Jeffrey S. Leonof Fasken Martineau DuMoulin LLP; Court House Series regional chair Barbara J. Murchie of Sim, Hughes, Ashton & McKay LLP;Hamilton series co-chair Adrian Nurse of Gerald A. Swaye & Associates; co-chair James Scarfone of Scarfone Hawkins LLP, and theHonourable Justice John Cavarzan of the Superior Court of Justice.

Left to right, at the London session on “Trial Argument,” are the Honourable JusticeLynda C. Templeton, the Honourable Regional Senior Justice Lynn L.C. Leitch, andthe Honourable Justice Helen Rady of the Superior Court of Justice. Visible on thevideo screen are Benjamin Zarnett of Goodmans LLP (seated) and T. David Little ofMcCarthy Tétrault LLP.

The Society held its long-running CourtHouse Series in Hamilton, Kitchener,London, Ottawa, Toronto and Windsorthis year. Barbara J. Murchie of Sim,Hughes, Ashton & McKay LLP chairedthe series, titled “Focus on Argument,”which featured demonstrations and dis-cussions by experienced judges and liti-gators of comparative approaches todifferent types of arguments.

Post-program receptions or lunchesgave attendees the opportunity to meetand mingle. In London, the final sessioncoincided with a Wine & Cheese withthe Bench, which was attended by theSociety’s president, Ben Zarnett.�

e-brief spring 05

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