KEEPING TABS

The Advocates’ Society

October 2018
 CONTENTS

04 Chair Chat
Victoria Creighton, Osler, Hoskin & Harcourt LLP

09 In The News

10 Legislation Update
Julie Mouris, Conway Baxter Wilson LLP/s.r.l.

13 YASC Report
Carlo Di Carlo, Stockwoods LLP Barristers

16 Interview
Compiled by Alexandra Shelley, Torys LLP

18 YouTube Series
Erin H. Durant, Borden Ladner Gervais LLP
Mastering the art and craft of advocacy is a career-long commitment and we are
here to help. The Advocates’ Society has been the premier provider of advocacy
skills training for over 30 years. We are proud to provide lawyers across Canada
Editor: Erin Pleet, Thornton Grout Finnigan LLP | [email protected]
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a voice for young advo-
with the training and the confidence they need to execute on their feet when it cates (advocates who are ten years of call or fewer) within the Society and within the profession. We do this through networking/mentoring events, by
publishing articles by and for young advocates, and by raising issues of concern to young advocates as we work with the Society’s Board of Directors.
counts. The Judge will notice…your clients will too. The opinions expressed by individual authors are their own and do not necessarily reflect the policies of The Advocates’ Society.

Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.

3
 THE NEXT TEN
(Click on the program to learn more)

CHAIR CHAT
OCT 30 OCT 31 NOV 1
The Big Mingle Defamation Toronto Mentoring
Chair Chat Vancouver Law Dinner Series
Victoria Creighton, Osler, Hoskin & Harcourt LLP
Throughout August and Septem- was a great time to catch up with
ber, Toronto was gripped with con- friends from across Canada.
stitutional fever. You couldn’t go In this issue of Keeping Tabs, Car-
to any legal party without every-
one showing off their newly re-
lo Di Carlo highlights the speaking
opportunities for young advo- NOV 5 NOV 14 NOV 14
discovered expertise on sections cates at The Advocates’ Society’s Class Actions Practice Kingston Young Advocates’
2, 15 and unwritten constitutional Securities Symposium, we inter- Group Bench and
principles. The notwithstanding view young advocate Tony Pa- Bar Reception Pub Night Pub Night
clause was trending on Twitter. ciocco from Ottawa, Julie Mouris
And young advocates were deep- provides an overview of the On-
ly involved. Current and former tario Court of Appeal’s first wave
YASC members, TAS members, of rulings on anti-SLAPP legisla-
and even my legal-aid office mate’s tion, and, as always, we celebrate
lovely wife – young advocates all – young advocates in the news.
argued the issues in the Superior
Court and the Court of Appeal. It
YASC is always looking for mem-
ber contributions for Keeping Tabs.
NOV 15 NOV 18
was a real pleasure watching so On a happy note, we wish our ed-
Estates Litigation Santa Claus
many young advocates contribute itor, Caroline Youdan, a safe and Bench & Bar
with skill and passion. wonderful early parental leave! If Reception Parade
It was wonderful to meet so many you have something to say about
young advocates at Fall Forum in a case, your life as an advocate or
Blue Mountain last weekend. The a great experience at a TAS event,
CPD programming was great, the please tell our interim editor, Erin
keynote from The Hon. Justice Su- Pleet at [email protected]. If you’re
zanne Côté of the Supreme Court
of Canada was both informative
looking to get involved more gen-
erally, join our Volunteer Roster NOV 21 DEC 13
and hilarious, and the social events by emailing Alexandra Shelley at Credibility for President’s Festive
were as fun as always. All in all, it [email protected].
Litigators Reception
4
 AWARDS

Civility Award Commitment

Recipient: Myriam Seers, Torys LLP
Accepted by: Alexandra Shelley, Torys LLP Outstanding to Pro Bono Writer’s Award
This award recognizes a young advocate Participation Award Recipient: Sabrina A. Lucenti,

Award
who epitomizes the Principles of Civili- Recipient: Cameron Fiske, Dooley Lucenti Barristers & Solicitors
ty and Professionalism. This is the only Milosevic Fiske LLP
award that proceeds by nomination. This award recognizes outstanding
Candidates for this award can only be Recipient: Christopher J. Somerville, This award recognizes exceptional partici- contribution to TAS publications. It is
nominated by a fellow young advocate Affleck Greene McMurtry LLP pation in TAS and TAS/PBO joint initiatives measured by articles written for Keeping
practicing in a different firm or organi- such as the Child Advocacy Project, Law Tabs, Advocacy Matters, Practice Group
zation from them. Calls for nominations This award is given to the individual who Help Centres at the Superior Court of Jus- blogs and/or the Advocates’ Journal.
are made via Twitter and mass email to has participated in the most TAS activities tice and Small Claims Court, the Appeals
TAS members. (CPD programs, events, practice groups) Assistance Program, Law Society Tribunal Photographed from left to right: Victoria Creighton,
in the preceding 24 months. The data Duty Counsel Program as well as the Law Osler, Hoskin & Harcourt LLP; Sabrina A. Lucenti,

Photographed from left to right: John Russo, Pallett Valo

regarding participant activity is extracted Society of Upper Canada Duty Counsel Dooley Lucenti Barristers & Solicitors; Scott Maidment,

LLP; Scott Maidment, McMillan LLP; Alexandra Shelley,

from the Society’s database. Program and the Ontario Securities Com- McMillan LLP.

Torys LLP; Victoria Creighton, Osler, Hoskin & Harcourt LLP. mission Litigation Assistance Program. The
Photographed from left to right: Victoria Creighton, Osler,
award is based on a combination of num-
Hoskin & Harcourt LLP; Christopher J. Somerville, Affleck
YASC Award Sponsored by ber of appearances and outstanding work,
Greene McMurtry LLP; Scott Maidment, McMillan LLP.
either cumulatively or on a single case.

Photographed from left to right: Victoria Creighton,

Osler, Hoskin & Harcourt LLP; Cameron Fiske, Milosevic
Fiske LLP; Scott Maidment, McMillan LLP.

6 7
 IN THE NEWS

Young Advocates in the News

In this feature, we highlight TAS young advocate members in the news. All of the lawyers profiled
have been called to the bar in the last ten years.

If you or a fellow young advocate has had a recent brush with the media about your/their work on
a case, please forward the news story link to:
Andrew Eckart, [email protected]; or
Thomas Milne, [email protected]

• Regina Bypass engineer defends Capital Pointe’s safety at hearing. Regina Leader-Post, August
2, 2018. Sahil Shoor, associate at Gowling WLG, is representing a developer on appeal of an Order to
Comply issued by the City of Regina.

• Landlords beware: Insurance won’t cover damages caused by tenant drug operations.

Your Next
The Globe and Mail, July 9, 2018. Gord McGuire, partner at Adair Goldblatt Bieber, writes about
the implications of Carteri v Saskatchewan Mutual Insurance Company, 2018 SKQB 150, in which
the court found that the landlords’ insurer was not liable to pay damages caused by the tenants’
drug operations.

Challenge Is Here • Ontario Court of Appeal decision answers ‘big legal questions’ on SLAPP suits. Canadian
Lawyer, August 30, 2018. Ben Kates, former YASC Chair and associate at Stockwoods LLP Barristers,
comments on six new rulings regarding the Province’s anti-SLAPP legislation, their significance, and
a plaintiff’s onus in responding to a defendant’s anti-SLAPP motion in the context of litigation.

The Advocates’ Society Career Board is the only legal • Court hears arguments on both sides of Alberta’s gay-straight alliance law. The Globe and
job board created just for the litigation bar. Access Mail, June 20, 2018. Brendan MacArthur-Stevens, associate at Blakes, Cassels & Graydon LLP’s
Calgary office, represented an intervenor to oppose an injunction application seeking to restrain
notices for litigation, ADR and judicial vacancies that a law facilitating the creation of gay-straight alliances (“GSAs”) and banning schools from advising
are exclusively listed for advocates across Canada. parents that their children have joined a GSA. The application was eventually dismissed. The
To find your next position visit www.advocates.ca appeal will be heard in the fall.

9
 The Court of Appeal held that in as-
sessing the “merits-based hurdle” (s.
137.1(4)(a)), a judge must avoid taking
a deep dive into the ultimate merits of
the claim and the defences. Rather, the
judge must determine in a preliminary
way whether a trier of fact could rea-
sonably conclude that the claim has a
real chance of success, and that none
of the defences advanced would suc-
ceed. The applicable standard of proof
for both inquiries is the balance of
probabilities.
Of particular interest is the Court’s
interpretation of the “public interest
hurdle” (s. 137.1(4)(b)), which involves a
balancing test of harm. Justice Doherty
described that provision as “the heart
of Ontario’s Anti-SLAPP legislation. The
LEGISLATION UPDATE section declares that some claims that
target expression on matters of public
interest are properly terminated on a s.
137.1 motion, even though they could
succeed on their merits at trial.”2 The

First wave of Ontario Court

Court held that to demonstrate harm,
The Two-Part Test: sections 137.1(3) and (4) a plaintiff must show a causal link be-
First, under s. 137.1(3), a defendant must sat- tween the impugned expression and

of Appeal rulings on isfy the judge that the proceeding arises from
an expression that is a matter of public inter-
the alleged damages, and that bald al-
legations of damages in pleadings or

anti-SLAPP legislation
est. Second, if the defendant succeeds, the affidavits will not be sufficient.
onus shifts to the plaintiff under s. 137.1(4) to Overall, the Court has given effect to
satisfy the judge that: the purpose of the anti-SLAPP legisla-
Julie Mouris, Conway Baxter Wilson LLP/s.r.l. (a) there are grounds to believe that, tion, which is to encourage expression
(i) the proceeding has substantial on matters of public interest while bal-
merit, and ancing the protection of reputation.
Introduction (ii) the moving party has no valid de- Justice Doherty captured the spirit of
On August 30, 2018, the Court of Appeal for Ontario released six fence in the proceeding; and the legislation well: “not every foot over
highly-anticipated decisions interpreting Ontario’s anti-SLAPP [Stra- (b) the harm likely to be or have been suf- the defamatory foul line warrants drag-
tegic Litigation Against Public Participation] legislation.1 Section fered by the responding party as a result ging the offender through the litigation
137.1 of the Courts of Justice Act, in force since the fall of 2015, allows of the moving party’s expression is suffi- process. By enacting s. 137.1, the Leg-
a defendant in a proceeding to bring a motion, at any time after the ciently serious that the public interest in islature acknowledged that, in some
proceeding has been commenced, to have the action dismissed. This permitting the proceeding to continue circumstances, permitting the wronged
tool is commonly used in defamation cases. The Court of Appeal has outweighs the public interest in protecting party to seek vindication through litiga-
clarified the application of the two-part test under s. 137.1(3) and (4). that expression. tion comes at too high a cost to free-
dom of expression.”3

10 11
 The Broad Trend Toward harm can be inferred in the ab- ues.”5 The project’s first phase
Amending Defamation Laws sence of evidence of harm.4 of consultation is now over and
Ontario’s anti-SLAPP legisla- Aside from the anti-SLAPP leg- the LCO is preparing an inter-
tion is part of a broader trend islation, more change could be im report with draft law reform
in various jurisdictions to mod- coming to Ontario’s defamation recommendations. The release
ernize defamation laws. For laws. The Law Commission of of the interim report will be fol-
instance, in 2013, the United Ontario (LCO) is currently under- lowed by further consultations.
Kingdom enacted the Defama- taking a comprehensive review In the coming months, defa-
tion Act, 2013 which, among of the province’s defamation mation law junkies will have lots
other things, sets a serious law. As the LCO explains, “the to watch for: more anti-SLAPP
harm threshold. On November Defamation in the Internet Age appeals being heard at the
13-14, 2018, the UK Supreme project considers whether or Court of Appeal on February 11-
Court will be hearing the ap- how defamation law should be 15, 2019, the Lachaux appeal at
peal of Lachaux v Independent reformed in light of fast-moving the UK Supreme Court, and the
Print Ltd to determine the cir- and far-reaching developments LCO’s draft law reform recom-
cumstances in which serious in law, technology and social val- mendations. Stay tuned!

YASC REPORT
Endnotes
1. 1704604 Ontario Ltd. v. Pointes
Protection Association, 2018

The Advocates’ Society’s

ONCA 685 [Pointes]; Able
Translations Ltd. v. Express
International Translation Inc.,
2018 ONCA 690; Armstrong v.
Corus Entertainment Inc., 2018
ONCA 689 [Corus]; Fortress
Real Developments Inc. v.
Securities Symposium
Gives Young Advocates
Rabidoux, 2018 ONCA 686;
Platnick v. Bent, 2018 ONCA
687; Veneruzzo v. Storey, 2018

a Chance to Shine
ONCA 688.
2. Pointes, supra note 1 at para.
86.
3. Corus, supra note 1 at para.
90.
4. See UK Supreme Court,
Lachaux (Respondent) v.
Carlo Di Carlo, Stockwoods LLP Barristers
Independent Print Limited
and another (Appellant), Case
Details, online: <https://www.
supremecourt.uk/cases/uksc-
2017-0175.html>.
5. Law Commission of Ontario, The Advocates’ Society’s 8 th Annual Securities Symposium took place on
“Defamation in the Internet September 5, 2018. The event—a significant one in the calendars of securities
Age: Consultation Paper”
(November 2017) at p. 1, litigators—provides a platform for presenters, including staff lawyers from secu-
online: <https://www.lco-cdo. rities regulators, representatives from insurers, and defence counsel, to discuss
org/en/our-current-projects/
defamation-law-in-the-internet-
emerging issues relevant to the practice of securities litigation. This year was no
age/consultation-paper/>. exception, as speakers presented on a broad range of topics, including changes in
the law regarding the scope of privilege in the internal investigation context; issues

12 13
 Left to right: Carlo Di Carlo, Stockwoods LLP,
Alexandra Matushenko, Ontario Securities Commission,
and Sandeep J. Joshi, BMO Financial Group
surrounding cryptocurrencies; its focus on providing speaking
foreign corrupt practices legisla- opportunities for younger ad-
tion in the US and Canada; and vocates. In organizing the pro-
issues related to the legalization gram for the Symposium, the
of cannabis. The different back- Securities Litigation Practice
grounds of the speakers led to Group places an emphasis on
unique perspectives on the is- selecting lawyers at the outset
sues as well as interesting panel of their careers. Given that
discussions and debates. CPD programs tend to fea-
What really separates the Se- ture more senior members of
curities Symposium from oth- the bar, the Symposium gives
er CPD programs, however, is younger lawyers a rare chance
to build their profiles, as well
as get experience speaking in
front of their colleagues.
For many of this year’s pre-
What really separates the senters, the Symposium was
Securities Symposium their first opportunity to young lawyers, especially ones where senior mem-
speak at a conference. Alex- bers of the bar are present and engaged. It was
from other CPD programs, andra Matushenko, from the great to get the practice of presenting my views on
however, is its focus Ontario Securities Commis- a challenging topic before a large audience”.
sion , was one of the first-time Joseph Blinick, an associate at Bennett Jones LLP,
on providing speaking speakers. Ms. Matushenko, was another first-time speaker. He also found the
opportunities for who presented on the inter- experience to be “invaluable, especially for young
nal investigation panel, ap- advocates who welcome the opportunity to get
younger advocates. preciated the experience. on their feet to speak about a topic they are pas-
“There aren’t a lot of speak- sionate about”. Mr. Blinick also commented that
ing opportunities available to it was “great to get to meet with members of En-
forcement Staff in a more social setting. It gives
you the chance to build a bit of a rapport outside
the more adversarial confines of interactions on
regulatory investigations and inquiries”.
Evan Thomas, a litigation associate at Osler, Hoskin
& Harcourt LLP who presented on cryptocurrencies,
agrees. “The event gives lawyers who might not have
a lot of experience in the securities field a chance to
get to know some of the ‘regulars’ a bit better.”
As the experiences of these speakers make clear,
the Symposium provides young advocates with a
platform that they don’t typically get early on in their
practice. It also allows them to meet different lawyers
practicing in the area and develop their networks.
Young advocates should be on the lookout for these
types of opportunities—they’re an invaluable way to
start profile-building early.

14 15
 Q. Which talent would you Q. What is your greatest extravagance
most like to have? in your everyday life?
A. The ability to read a judge’s mind, partic- A. Probably Lunch #2, especially if Lunch
ularly at that critical juncture when they ask #1 is a salad.
me if I’m calling any evidence.

Q. From whom have you learned the most about the practice of law?
A. My mother. My father and sister are lawyers; my mother is not. Still, my mother taught me
how to understand and sympathize with people, and therefore much about the practice of law.

Q. What is your Q. What is the latest Q. Who or what is the

favourite drink? non-legal book greatest love of your life?
A. Diet Pepsi. And whis- you’ve read? A. Cheese. Yes, my family
key. Drunk separately, A. The Hunters, by came second to cheese.
of course. James Salter.

INTERVIEW
Q. Which living lawyer do Q. What unique knowledge have you gleaned in your prac-
you most admire? tice that you can share with other

Interview with
A. Michael Edelson, and not A. The paradox of advocacy is exactly this—you are at once doing
just because he signs my better and worse than you think. That you are speaking for those
pay cheque. He owns every who lack the training to say it themselves matters, but that you

Anthony (Tony) Paciocco courtroom he walks into. continue to find ways to say it better yourself matters too.

Edelson & Friedman Barristers LLP

Q. How would your col- Q. If you weren’t a law- Q. What is your most
Ottawa, Ontario leagues describe you? yer what would you be? distinctive characteristic?
A. Diligent. Committed. A. A struggling sports jour- A. My last name.
Compiled by Alexandra Shelley, Torys LLP And allergic to peanuts. nalist or travel writer. And my socks.

Q. What do you like most Q. Which word do you Q. What would you
Q. Why did you become a litigator or advocate? Q. What is your year of about your practice? prefer: litigator or
A. I spent twenty-odd years losing arguments at home and consider your greatest
call? A. The people I work with, advocate? achievement?
figured if I stuck at it long enough after leaving the nest, A. 2015. and more than I would A. Advocate. Try saying
things would swing my way. On occasion, they now do. A. That one’s easy. Convinc-
have thought, the people “The Litigators’ Society” ing my girlfriend to move
I work for. five times fast. from Toronto to Ottawa.

Q. What is your favourite case? Q. What is your Q. What should people know about the life of a criminal defence lawyer in Ottawa?
A. R. v. Stinchcombe (1991, SCC). The fruits of an inves- greatest fear in practice? A. The work is interesting and diverse. Most of your caseload is at one courthouse, which
tigation are not the property of the Crown for use in se- A. That I will do a is nice, as you won’t spend your entire practice in your car. While the local bar is warm and
curing a conviction but the property of the public to be competent job, but just collegial, the winter is cold and inhumane.
16 used to ensure that justice is done (para. 12). that and not more. 17
 YASC PHOTO GALLERY

The Big Mingle

October 10, 2018
Windsor

YOUTUBE SERIES

TAS Legends of the Bar

Erin H. Durant, Borden Ladner Gervais LLP
The Young Advocates’ Standing reviewing these archives and
Committee is pleased to an- will be releasing the videos on
nounce the launch of the TAS YouTube bi-monthly.
Legends of the Bar YouTube Our first video is the 1998 Du- Fall Forum 2018
Series. TAS has a rich, archived bin Lecture by the Edward L. Fall Forum 2018 October 19, 2018
catalogue of historic lectures Greenspan, Q.C. We hope you October 19 & 20, 2018 Blue Mountains
and speeches from legends of will enjoy his wit, charm and Blue Mountains The Hon. Justice
the litigation bar. YASC has been well-thought remarks. Suzanne Côté,
Supreme Court
of Canada

18 19
 Fall Forum 2018
October 19 & 20, 2018 Ottawa Fireside Chat
Blue Mountains October 15, 2018
Panel: Practice and Ottawa
Procedure from Left to right: Marc-André
Coast to Coast Roy, Senate of Canada
and The Hon. Thomas A.
Cromwell, C.C., Borden
Ladner Gervais LLP

Toronto Fireside Chat

October 4, 2018
Fall Forum 2018 Toronto
October 19 & 20, 2018 Left to right: Sandra
Blue Mountains Barton, Gowling WLG
Canada LLP and The
Honourable Justice
Cynthia Petersen,
20 Superior Court of Justice
21
www.advocates.ca