The Advocates

To Question or Not To Question -That is the Question

By Benjamin Zarnett, Goodmans LLP

E-Brief
Vol. 16, No. 3, Spring 2005

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Benjamin Zarnett

On April 7, 2005, the federal government introduced a proposal for reforming the process of appointment of judges to the Supreme Court of Canada. The Advocates' Society is filing a submission with parliament's Standing Committee on Justice, commenting on that proposal. Both the government's proposal and the Society's comments address measures designed to ensure that only the highest calibre of candidates continue to be appointed to the Supreme Court, but with greater transparency of process than previously existed. One point on which the government's proposal and the Society's comments are completely ad idem is this: a nominee for appointment to the Supreme Court of Canada should not be required to appear for public questioning, as nominees in the United States must.

Public questioning of nominees to the Supreme Court of the United States often has focused on two areas -- personal matters and matters of judicial philosophy. Personal matters may of course provide a reason why an individual should not be a judge on a Supreme Court. Jon Stewart's depiction of John Rutledge as a 1795 nominee of George Washington who was rejected because he believed the CIA had implanted a mind-control chip in his brain 163 years before the invention of either, is a fictional but humorous case in point. 1 But assuming there already has been a diligent process leading up to a nomination, an attendance by the nominee for public questioning on personal matters may be apt only to encourage inquiries into personal habits, "quirks" or even more remote matters that would be irrelevant to fitness for office. 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 neighbourhood video store.2 While Douglas Ginsburg's nomination to that court was under consideration, he reportedly telephoned the White House to advise that his wife had once been a contestant in a beauty contest, and wondered whether, if that fact came to light, his chances of confirmation would be affected.3 Excesses such as these may be the reason why those who call in Canada for public questioning of Supreme Court nominees do not base the call on the utility of such a process to illuminate personal characteristics.4 The most common basis for asserting that a nominee to the Supreme Court should
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In This Issue
Techno-talk: Going Paperless . . . .4 New Members . . . . . . . . . . . . . . .4-6 Calendar of Events . . . . . . . . . . . .7 Whos Doing What . . . . . . . . . . . . .8 Litigation Tips & Traps . . . . . . . . . .9 Fee Waiver Legislation. . . . . . . . .11 The Expert Column . . . . . . . . . . . 15 Ethos, Pathos and Logos. . . . . . . 16 Surviving Personal Trauma . . . . . 18

VOLUME 16, NO. 3, SPRING 2005

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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 he or 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" were accepted, there would be a straight answer to the question "How will you decide a case in the future about the constitutionality of a partial prohibition on abortion?" The answer would be "According to my preconceived notions about abortion" (which could then be disclosed). An answer such as "I cannot comment on how I would vote on a specific case in the future" (frequently given in the United States) would be seen as a dodge. The answer of "That would depend on the precedents cited, the evidence, the arguments 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 by views 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 implementation by the judge of the view he or she held prior to considering the specific case. We recognize that judges hold views about important social questions, but when a legal issue is put before them, informed by evidence and by legal argument on the proper application 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 "traditional" definition of marriage what they thought of same-sex marriage, would their answers have been illuminating? Would one have been able to predict the result of the cases they subsequently decided by how the judges had years earlier answered the question "What is your view of same sex marriage?" Most surveys show a division in public opinion on this question. Yet the judicial decisions, rendered after evidence and legal argument, on what the Charter means for the definition of marriage, have been uniform. 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 come before the court? Little or none, if we accept that advocacy and judging involves a rational process and not the mere imposition or expression of a previously-held viewpoint. Asking someone, without the benefit of the facts, arguments and precedents that will be brought to bear on a matter, what they think of an issue is a question without legal context -- the legal equivalent of asking "How high is up?"
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THE ADVOCATES' SOCIETY 2004 - 2005 EXECUTIVE Benjamin Zarnett, President Linda R. Rothstein, First Vice-president Michael Eizenga, Second Vice-president Michael E. Barrack, Treasurer Peter J.E. Cronyn, Secretary DIRECTORS Kevin R. Aalto Raj Anand, LSM Stephen T. Bale Jack Braithwaite David Brown Fay K. Brunning Paul J.J. Cavalluzzo Domenic Crolla Elizabeth Cummins Seto Stephen E. Firestone Sandra A. Forbes Brian A. Foster Paul J. French Peter J. Griffin Julie K. Hannaford Marie T. Henein George B. Kilpatrick Alfred M. Kwinter Mark D. Lerner Shirley D. Linton Alan H. Mark Wendy Matheson Barbara A. McIsaac, Q.C. Wendy L. Miller Paul F. Monahan J. Patrick Moore David S. Morritt Barbara J. Murchie Brian J. Saunders James Scarfone Allan Sternberg Karen A. Thompson Bonnie A. Tough Margaret L. Waddell Peter C. Wardle Stephen J. Wojciechowski Paul H. Le Vay, Ex Officio EXECUTIVE DIRECTOR Alexandra M. Chyczij DIRECTOR of EDUCATION Jessica Grant DIRECTOR of MARKETING and COMMUNICATIONS Sonia Holiad

Some calls for reform in the United States have hit, in part, a similar note. Reacting to the divisive and unhelpful fall-out of confirmation battles plagued by arguments over whether a nominee should be answering or is avoiding questions as to how he or she will decide a future issue, one commentator has noted: "The most obvious way to avoid leaving blood on the floor is to name individuals of the highest calibre and experience, with much less attention paid to their likely votes." 5 The government should be encouraged to pursue the reform of the Supreme Court appointment process to ensure that individuals of the highest calibre and experience continue to be appointed, with increased transparency. Public questioning of the nominees need not be part of that process.
Notes: 1. Jon Stewart, Ben Karlin and David Javerbaum, America (The Book), (2004) (Warner Books) 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 beauty contests. 5. Carter, supra, note 2, p. 187.

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VOLUME 16, NO. 3, SPRING 2005

Welcome to Our New Members

Intermediate Shirline Apiou, Brown & Korte Jennifer Arrigo, Gowling Lafleur Henderson LLP Goldie Bassi, Gowling Lafleur Henderson LLP Lisa Bonin, McCarthy Ttrault LLP Jennifer A. Conroy, Torys LLP Charles Corlett, Osler, Hoskin & Harcourt LLP George Corsianos, Shiner Kent Joseph R. De Luca, Zuber and Company John Dent, McCarthy Ttrault LLP J. Adam Dewar, Roy Elliott Kim O'Connor LLP Donata Di Iorio, Aronovitch Macaulay Rollo LLP David R. Donnelly, Gilbert's LLP Dana L. Eichler, Rogers, Moore Sara Jane Erskine, McCarthy Ttrault LLP Peng Fu, Gilbert's LLP Beth Given, Fasken Martineau DuMoulin LLP Bryan G. Gleason, Baker & McKenzie LLP Jason Goodman, Laxton Glass LLP Reena Goyal, Lax O'Sullivan Scott LLP Helen Gray, McCarthy Ttrault LLP Stella Harmantas, Tough & Podrebarac LLP Christina Hill, Ogilvy Renault Laurie Jessome, Fraser Milner Casgrain LLP Anita Ann John, Brown & Korte Allison Kuntz, Ogilvy Renault Vaso Maric, Stikeman Elliott LLP Rita J. Maxwell, McCarthy Ttrault LLP Patricia I. McMahon, Osler, Hoskin & Harcourt LLP Megan B. McPhee, Roy Elliott Kim O'Connor LLP Pamela Miehls, Aird & Berlis LLP Jackie Bahar Missaghi, Laxton Glass LLP Catherine R. Moreau, Borden Ladner Gervais LLP Stacey Morrow, Laxton Glass LLP Jordan N. Nichols, Rueter Scargall Bennett LLP
Continued...

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

By Peter T. Henderson, Kramer Henderson Working without paper is now a real possibility for lawyers willing to make a relatively small investment in learning and using technology. For a small (and mostly recoverable) cost, lawyers can reduce the amount of paper they generate and store, and assimilate the information contained in paper documents with far more convenience, speed and precision than they could ever do manually. GETTING STARTED A. Hardware Peter T. Henderson i) The high speed scanner: The key piece of equipment in any paperless practice is the scanner. Running a document through a scanner creates a digital image of the document. The more documents you want to scan, the faster a scanner you require. In most law offices these days, the cost of photocopying and scanning (including the lease of the machine) is passed on to clients. So, if your cost recovery systems are set up properly, there will be 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. You will simply frustrate yourself. It is very slow, cumbersome and hard on the eyes. The traditional monitor may be fine for reviewing incoming correspondence or other short documents, but trying to review large numbers of documents in this way is counterproductive. There are several reasons why a traditional screen is the wrong choice. The most important is that most traditional monitors will not render a large, full size view of the document. In order to see the whole page, the user is required to scroll down. This is very tedious when viewing a large number of pages or documents. As well, traditional monitors do not produce an accurate representation of the actual document. LCD monitors 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 productive. Because managing paper electronically involves a number of different applications that will be open and in use simultaneously, using two screens avoids having to 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 paperless is mobility. There is no need to drag boxes of documents to the client's office, to court, or to the cottage. Virtually any number of documents can be transported on a laptop or on CD-ROM. Once digitized, the entire client file can be carried away on your laptop with the click of a button. B. Software Most of the software (not connected with the scanner) you need to move well into your journey toward being paperless you probably already have, unless your computers are very old. Once your documents are scanned and organized, all you really need to start working with them is a good viewer, like Acrobat Reader or Kodak Imaging, both of which have been provided with Windows operating systems for years. DEVELOPING A PROTOCOL At the outset, you will need to develop a protocol for digitizing paper in your office and
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Bradley Rafuli, Fraser Milner Casgrain LLP Jean-Claude Rioux, Rogers, Moore David M. Rogers, Rogers, Moore Alexander Rose, Stikeman Elliott LLP John Rowinski, Torkin Manes Cohen Arbus LLP Sameer Sandhu, Rogers, Moore Awanish Sinha, McCarthy Ttrault LLP Jason Tan, Roy Elliott Kim O'Connor LLP Janet L. Walker, Financial Services Commission of Ontario Sean Werger, Lax, O'Sullivan, Scott LLP Catherine M. Wiley, Fasken Martineau DuMoulin LLP McLean J. Wood, Osler, Hoskin & Harcourt LLP Cecillia Xiao, Rogers, Moore Judicial The Honourable Justice Edward 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, Barrister Lou Brzezinski, Blaney McMurtry LLP David Butt, Torkin Manes Cohen Arbus LLP Rod Byrnes, Byrnes Chan & Associates LLP Allan D. Coleman, Osler, Hoskin & Harcourt LLP Lisa M. Constantine, McCarthy Ttrault LLP Ronald Foerster, Borden Ladner Gervais LLP Reesa Heft, Rayson & Associates Rose Leto-Cundari, Neinstein & Associates LLP
Continued...

for dealing with it in that format. Most obviously, due regard must be had for the accuracy, reliability, storage and retrievability of records. Before any paper record is eliminated, a protocol should be in place for producing and storing in retrievable format an exact electronic replica of the record. As is currently the case, processes should 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, to varying degrees, a revolution in the way they work. Assistants and clerks who are used to filing, reproducing and working with documents in paper form will need precise and frequent direction on dealing with documents electronically, and having a protocol for them to refer to will make things easier for everyone. THE POWER OF PAPERLESS i) Searchable documents: One of the main benefits of digitizing documents is that they can be made searchable. The ability to search documents by word or phrase is created when the image of the document is put through a process called Optical Character Recognition ("OCR"). OCR simply creates a text version of an image document. That version can then be searched like any other text document. One of the problems that has been encountered in the process of becoming paperless is that digitized documents can appear as one of several different image file types. Historically, not all file types were susceptible to OCR, and then not all by the same OCR software. Dealing with all the different types of image files required a number of viewers as well as a number of different OCR applications, if one was even to attempt a paperless environment. There has been much standardization, and software has advanced dramatically in the last few years. It is now possible to purchase software for a couple of hundred dollars that can convert virtually any kind of image file into any kind of text file in seconds. The better of these applications permit batch processing, so that the operator simply points the application to a directory containing image files and it quickly creates text versions of the images. These files can then be saved any number of times as 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 imageover-text pdf file. An image-over-text pdf file is basically an image of the document with a text file "behind" the image. The document appears precisely as it does in paper form, and is searchable by text by virtue of the hidden information. ii) Case analysis and presentation: There are a number of computer applications commonly 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 automatically, rather than entered manually. Hyperlinks can be created automatically between the information contained in the application and its source, be it a digital image, movie clip, transcript or sound bite. Information is quickly and easily rationalized by source, issue, witness or some other legally relevant characteristic. The result can be a degree of mastery over information that is simply not achievable manually. In order to use these tools, documents must be available in digital format. CONCLUSION "Going paperless" is neither expensive nor complicated. It involves a modest investment in hardware that will shortly be considered standard in any event, and one or two 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 you get there. There is no shortage of choice when it comes to information management tools. Whichever you choose, starting with the right equipment and an effective protocol for dealing with and eliminating paper will make your use of these tools easier and more effective.

VOLUME 16, NO. 3, SPRING 2005

Elizabeth McIntyre, Cavalluzzo, Hayes Shilton, McIntyre & Cornish Peter A. Neumann, McCarthy Ttrault LLP Gerald P. Sadvari, McCarthy Ttrault LLP Peter A. Silverman, Barrister & Solicitor Lori Stoltz, Goodman and Carr LLP Gavin J. Tighe, Gardiner Roberts LLP David Waterhouse, Forbes Chochla LLP Peter Wilcox, Torys LLP Queens University was the winner of the 2005 Arnup Cup, the annual moot trial competition for law students in Ontario. Sponsored by WeirFoulds LLP and administered by The Advocates Society, the two-day event included an opening reception and a closing dinner at Campbell House for the six competing teams, their coaches and the trial assessors. Assessors were Stephen Bale, John M. Buhlman, Maureen Forestell, Alfred Kwinter, Barbara Murchie, Gregory Richards, Margaret Waddell and Benjamin Zarnett. Pictured, left to right: Arnup Cup recipients Robb MacDonald and Mariana Alves of Queens University; John M. Buhlman of WeirFoulds LLP; The Honourable Justice Mary Ann Sanderson of the Superior Court of Justice, who acted as the presiding judge, and Queens University coach Professor and Acting Dean Gary T. Trotter.

The Advocates Brief welcomes your comments, articles & announcements.

Please forward them to: sonia@advocates.ca
Fax: 416-597-1588 2020 - 438 University Avenue, Toronto, ON M5G 2K8

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VOLUME 16, NO. 3, SPRING 2005

Notice of New Rule 78

On Friday, May 6, 2005, O. Reg. 198/05 came into force. This regulation introduces new Rule 78 and other related amendments to the Rules of Civil Procedure. Rule 78 prescribes a procedure that applies to actions commenced in the City of Toronto on or after December 31, 2004. The key elements of the Practice Direction, issued by the Honourable Regional Senior Justice Warren Winkler on November 22, 2004, are incorporated in the new Rule 78. The Practice Direction provides commentary on how parties with civil cases in Toronto are expected to govern themselves and should be referred to and complied with by counsel. A copy of O. Reg. 198/05 may be accessed on our web site at http://www.advocates.ca/ pdf/New_Rule_78_reg.pdf Fri., May 20 Tues., May 24

Calendar of Events
Special Litigation Skills Certificate Program: Written and Oral Advocacy in the Tax Court of Canada Toronto: Tax Court of Canada Special Litigation Skills Certificate Progam: Estates Litigation Toronto: Federal Court of Canada Special Litigation Skills Certificate Program: Practice Before the Federal Court Toronto: Federal Court of Canada End of Term Dinner & AGM Keynote Speaker: His Excellency Mr. Allan Rock Toronto: Fairmont Royal York Hotel Fall Convention Great Exuma, Bahamas: Four Seasons Resort

Fri., June 3

Wed., June 22

Thurs., November 17 Sun., November 20

For further information, please call: Education: 416-597-0243 x.110 Events: 416-597-0243 x.113 Sir William Campbell Foundation: 416-597-0227 The J.J. Robinette Dining Room at Campbell House: 416-597-0542

VOLUME 16, NO. 3, SPRING 2005

WHOS DOING WHAT: Member News

Intervenor status was granted to The Advocates Society in Irving Bronfman v. Joel Richler and Blake, Cassels & Graydon LLP. Thanks are extended to J. Bruce CarrHarris and David W. Scott, Q.C., of Borden Ladner Gervais LLP, counsel for the Society. The matter was settled before argument of the appeal, resulting in the lost opportunity for precedence that would clarify the law on the issue regarding the duty of counsel to the opposing party. Thanks also to C. Clifford Lax, Q.C. of Lax OSullivan Scott LLP for bringing this case to the Societys attention. The Honourable Justice G. Normand Glaude of the Ontario Court of Justice has been appointed to lead an independent public inquiry into the events surrounding allegations of abuse of young people in Cornwall. LSUC Certified Specialist designations have been achieved by Peter E.J. Wells of Lang Michener LLP (Civil); Martha A. McCarthy of Epstein Cole LLP (Family), and Mark S. Hayes of Ogilvy Renault LLP (Copyright). The Honourable Justice Colin McKinnon of the Superior Court of Justice has been awarded the Carleton Medal for great diligence, high ideals and outstanding leadership in the practice of law. Board member Jack Braithwaite, a founding partner of Gatien Braithwaite in Sudbury, 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 Aid Ontario, and a number of other lawyers who make up the band called the Tokyo Giants performed during the pre-game and half-time breaks in the Toronto Raptors game on April 17. Henry and Peter play in another lawyer-heavy band called the Advocats Big Band, which performs on the first Monday of every month at the Chickn Deli. Leave to appeal as a friend of the court has been granted to The Advocates Society in the case of Thuan Duong v. Taalman Engineered Products Ltd., on the issue of whether the courts should cover the cost of interpreters for indigent litigants. Counsel for 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 and Logos: The Best of The Advocates Society Journal, 1982 - 2004, The Advocates Society will soon publish its showpiece, Learned Friends: A Tribute to Fifty Remarkable Ontario Advocates, 1950 - 2000. Comprising the Editorial Board are Kevin R. Aalto of Gowling Lafleur Henderson LLP - Chair; Sheila R. Block of Torys LLP; J. Bruce Carr-Harris of Borden Ladner Gervais LLP; The Honourable Justice Stephen T. Goudge of the Court of Appeal for Ontario, Brian H. Greenspan of Greenspan Humphrey Lavine; Marie T. Henein of Henein and Associate; George B. Kilpatrick of Dutton Brock LLP; The Honourable Justice Jean-Marc Labrosse of the 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 of Paliare Roland Rosenberg Rothstein LLP; C. Scott Ritchie, Q.C. of Siskind, Cromarty, Ivey & Dowler LLP; Charles F. Scott of Lax O'Sullivan Scott LLP; James C. 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 written by reknowned author and former lawyer Jack Batten, and features a foreword by the Honourable Chief Justice R. Roy McMurtry. Chile Eboe-Osuji will soon wrap up his work in Arusha, Tanzania, where he is Senior Legal Officer for the UN International Criminal Tribunal for Rwanda. In August, he will resume his practice with Borden Ladner Gervais LLP in Ottawa.

Spotlight On a Board Member

Please send announcements to sonia@advocates.ca

8

Alan H. Mark of Toronto is a partner with the firm of Ogilvy Renault LLP. He received his LL.B from Osgoode Hall Law School in 1980. Alan has extensive experience as a corporate-commercial litigator and regulatory counsel and has appeared at all levels of the Ontario and federal courts, including the Supreme Court of Canada, and before various administrative tribunals. His areas of litigation expertise include securities and M&A litigation, including contested takeover bids, plans of arrangement, shareholder rights plans, corporate reorganizations and issuer liability claims; shareholder and partnership litigation, including oppression claims, corporate governance matters, partnership disputes, corporate opportunity claims and fiduciary duty cases; class actions, including financial services, securities and mass tort claims; commercial litigation, including contract disputes, debtor-creditor litigation, fraud actions and asset recovery, and banking and insolvency, including restructurings, security enforcement and receiverships. Alan has been lead counsel on a number of high-profile cases, including representing Schneider Corp. in its takeover battle with Maple Leaf Foods and representing Mackenzie Financial Corporation in connection with its takeover by Investors Group. Alan is a frequent contributor to legal publications and continuing legal education programs, and is a regular instructor in trial advocacy for The Advocates Society and Osgoode Hall Law School. He is a member of the Law Society, the Canadian Bar Association and the Toronto Lawyers Association.

VOLUME 16, NO. 3, SPRING 2005

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 a partner with Woolgar VanWiechen Ketcheson Ducoffe LLP and enjoys a broad litigation and dispute resolution practice that includes estate litigation, a murky area of practice in which the unforeseen traps are legion. Kimberly has kindly agreed to share with us some of the traps she has navigated around and tips she has learned along the way in order to enlighten the estate litigation "newbies" out there to the perils they can look forward to encountering when proceeding 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, so to 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 different 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 sits only once a week each month and occasionally sits from time to time to hear urgent matters. Accordingly, when dealing with estate litigation matters it will be important to advise your client of the difficulties you may face in obtaining a hearing date on the Estates List. There is also a separate Estates List Office, which deals with all paperwork and documentation associated with hearings on the Estates List. Unfortunate timing issues aside, proceeding in the Estates List in Toronto offers the benefit of specialized judges who are usually well 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 to introducing 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 a process by which those issues will be determined. While it is possible in estate matters to have formal pleadings, an Order Giving Directions 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 become the 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 being taken 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 have some liability in the issues identified in the statement of claim. The parties in an estate proceeding, as identified in the Order Giving Directions, may include: (a) persons named in the will (the beneficiaries);
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(b) persons named in earlier will documents; and (c) possibly the Office of the Public Guardian and Trustee and/or the Office of the Children's Lawyer, if an incapable person or a minor is involved in the estate proceeding.

At Lerners, we look at referrals from your perspective. When you refer matters to us, you can trust us to help you achieve the best results - all the while respecting the relationship that is rightly yours.

Complete. Trust. 3. Describe the process by which the issues will be determined. Some features that must be included in the process in each case are: (a) Mandatory Mediation: Rule 75.1 provides for mandatory mediation in estates, trusts and substitute decisions matters. Although the process for mandatory mediation has been revised Lerners LLP with respect to general civil matters, Barristers & Solicitors mandatory mediation is still applicable Toronto Office 416.867.3076 in estate proceedings. An Order Giving London Office Directions often will specify the time519.672 .4131 frame for mandatory mediation (often www.lerners.ca within 90 days of the date of the Order Giving Directions), the issues to be mediated (usually those identified in the Order Giving Directions), the name of the mediator, who is required to be present at the mediation, what documentation is required for 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 have the authority to compel the production of mediation records and files relating to the deceased, all financial records and files relating to the assets of the deceased (whether held by the deceased personally or jointly with another person), and all medical and banking records. An Order Giving Directions also should identify that each party to the estate proceeding should serve an affidavit of documents in accordance with the Rules of Civil Procedure at the request of any other party. That way, if an affidavit of documents 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 discovery. It often will contain a blanket order that "each party shall upon the request of any other party attend and submit to the examinations for discovery in accordance with the Rules of Civil Procedure" and an order granting leave to the parties to examine for discovery non-parties in accordance with Rule 31.10. Witnesses examined pursuant to this order often include the solicitor who prepared 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 those items 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 the deemed undertaking rule (Rule 30.1). That order will facilitate a future negligence action against the solicitor who may have improperly drafted the will. A blanket clause such as "Rule 30.1.01(3) shall not apply with respect to the use of evidence or information by any of the parties relating to the issues in the within proceedings" is appropriate and should be included in an Order Giving Directions. Once the Order Giving Directions has been settled, by agreement or as a result of a hearing, the proceedings are advanced in accordance 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 further advice 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 to taking the stage on the Estates List a prudent litigator should review the most recent case law dealing with the issues of costs. In drafting an Order Giving Directions it is also prudent to specify that the costs of producing medical and banking records, which are for the benefit of all parties, shall be paid from the estate. Other more contentious matters, such as the costs of the examinations for discovery and the production of solicitors' notes and records can be left to the presiding trial judge.

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VOLUME 16, NO. 3, SPRING 2005

Polewsky and Fee Waiver Legislation in Small Claims Court

By Kim Mullin, WeirFoulds LLP On January 29, 2005, the prolonged litigation battle regarding the constitutionality of Small Claims Court fees finally came to an end, with the coming into force of amendments to the Administration of Justice Act and Ontario Regulation 2/05 made under that act, which provide a mechanism for the waiver of court fees for individuals who cannot afford to pay such fees. The fee waiver legislation is a direct response to the decision of the Divisional Court in 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 to provide for the waiver of court fees payable in Small Claims Court in cases of demonstrated financial inability to pay was unconstitutional. The appellant, Victor Polewsky, had asked the Court to find that the Small Claims Court fees violated sections 7 and 15 of the Canadian Charter of Rights and Freedoms and the Rule of Law. The Advocates' Society intervened in the appeal in support of Mr. Polewsky and urged the Court to find that the Rule of Law and the common law right of access to justice require unimpeded access to the courts. The Divisional Court found that "a citizen's right to unimpeded access to the courts to enforce his or her civil rights is a common law constitutional right that can only be abrogated by clear and expressed statutory language, subject to proof of indigence and a meritorious claim. In its reasons, the Court accepted the Society's arguments regarding 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 of Justice Act to allow for fee waiver in the Small Claims Court, the Superior Court of Justice and the Court of Appeal, rather than proceeding with the appeal. Under the amendments to the Administration of Justice Act, applications for fee waiver can be made either to the clerk of registrar of the court or to a judge, deputy judge or a case management master. The regulation provides that a person is entitled to have fees waived if the primary source of the person's gross monthly household income is one or We make forensic more of: information make sense. (i) income assistance under the Ontario Works Act, 1997, the Ontario Disability Support Program Act, 1997, or the Family Benefits Act; (ii) a pension under the Old Age Security Act; (iii) a benefit under the Canada Pension Plan Act; or (iv) an allowance under the War Veterans Allowance Act. Persons Collision Reconstruction whose gross monthly household Civil & Building Science Personal Injury income, household liquid assets and Fire & Explosion Investigation household net worth are less than the Equipment & Processes amounts set out in the Regulation are Industrial & Chemical also entitled to fee waiver. Product Liability We express our gratitude to Raj Anand and Kim Mullin of WeirFoulds LLP, who represented The Advocates Society in its intervention in the Polewsky appeal.
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Judicial Appointments
The Honourable Justice Russell Juriansz of Toronto has been appointed to the Court of Appeal for Ontario. The Honourable Justice Paul S. Rouleau of Toronto has been appointed to the Court of Appeal for Ontario. The Honourable Justice David R. Aston of London has been appointed Senior Judge of the Family Court Branch of the Superior Court of Justice. He replaces the Honourable Justice Mary Lou Benotto has resigned the position and has been reappointed to the Superior Court of Justice. Deena F. Baltman of Toronto has been appointed to the Superior Court of Justice, assigned to Milton. Edward P. Belobaba of Toronto has been appointed to the Superior Court. E. Eva Frank of Toronto has been appointed to the Superior Court. Geoffrey B. Morawetz of Toronto has been appointed to the Superior Court. Paul M. Perell of Toronto has been appointed to the Superior Court. Michael G. Quigley of Toronto has been appointed to the Superior Court, assigned to Milton. He replaces the Honourable Justice John F. McGarry, who has elected to become a supernumerary judge. Mary J. Nolan of Windsor has been appointed to the Superior Court. She replaces the Honourable Justice John H. Brockenshire, who has elected to become a supernumerary judge. Nancy J. Spies of Toronto has been appointed to the Superior Court. James R. H. Turnbull of Hamilton has been appointed to the Superior Court, assigned to Simcoe. C. Michael Harpur of Toronto has been appointed to the Ontario Court of Justice, assigned to Barrie. Robert F. McCreary of Newmarket has been appointed to the Ontario Court of Justice, assigned to Orillia.

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The Advocates Society Mission Statement

The Advocates Society is the professional organization for advocates in Ontario. As such, our mission is to: be the voice of advocates in Ontario; promote ethical and professional practice standards for advocates; expand our leadership role in teaching the skills of advocacy; protect the independence of the bar and the judiciary, and foster collegiality among members

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VOLUME 16, NO. 3, SPRING 2005

Tribute to Justices Rosalie Abella and Louise Charron

On March 29, The Advocates Society and the International Commission of Jurists (Canadian Section) hosted a dinner at the Four Seasons Hotel to celebrate the Supreme Court of Canada appointments of the Honourable Justices Rosalie Silberman Abella and Louise Charron. Special guests included the Honourable Justice Ian Binnie of the Supreme Court of Canada, the Honourable R. Roy McMurtry, Chief Justice of Ontario, the Honourable Brian W. Lennox, Chief Justice of the Ontario Court of Justice, and the Honourable J. David Wake, Associate Chief Justice of the Ontario Court of Justice. The Societys first vice president, Linda R. Rothstein of Paliare Roland Rosenberg Rothstein LLP, paid tribute to the honorees: Tonight we celebrate two remarkable Ontario jurists. It is not well known that Justice Charron began her career in civil litigation, in a small firm in Ottawa, Lalonde Chartrand and Gower. At the same time, she was also a part-time assistant Crown Attorney. She soon gained a reputation as an exceptional advocate with a surgically precise legal mind. By the time she became the Assistant Crown Attorney for Ottawa in 1980, she was renowned for her keen sense of fairness, the highest accolade for any prosecutor. Following an enthusiastic mutual embrace with the University of Ottawa's Faculty of Law as an assistant professor, she found her true calling as one of our finest jurists. Like Justice Charron, Justice Abella's extraordinary career as a jurist today seems inevitable, destined... Plucked from the ranks of the family law bar at the tender age of 29 -- before she had time to lose many cases -- she became a judge of the Ontario Family Court and the first to model judicial robes as maternity wear at a swearing-in ceremony. The chair of the Ontario Labour Relations Board, the sole author of the Federal Royal Commission on Employment Equity: Rosie did it all. She worked tirelessly, wrote beautifully, and advocated passionately for a just 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 English and French, and a deep love of the law, she is less well known for her sparkling wit, mischievous sense of humour and a rare ability to balance a brilliant career with both mothering, and even more difficult, step-mothering. Utterly devoid of pretension, Louise also has a streak of irreverence that she used to inoculate 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 is francophone or the other Yiddish-speaking for that matter. But because they are women and because in so many ways they symbolize the achievement of historically disadvantaged groups, we celebrate their appointment with the joy that reflects our shared acknowledgement that we are removing the barriers to justice for all.

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

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Jim OGrady Celebrated at Ottawa Advocate Honoree Dinner

On March 10, some 160 members of the legal community, family and friends gathered at the National Arts Centre in Ottawa to honour M. James OGrady, Q.C. of Burke-Robertson LLP. Among the speakers paying tribute was David W. Scott, Q.C., who said, ... Jim is the quintessential lawyer. His instinctive command of the law is intimidating, whatever the field may be ... And character Mr. O'Grady enjoys in the fullest measure. Three principal qualities come to mind. First, integrity ... Jim's reputation for integrity is extraordinary. Well-earned through his day-to-day practice as a professional, sullied by not a single incident in his over 40 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 most enviable of human characteristics, Jim is a good man. Good as in excellent; good as in decent; good as in unselfish; good as expressed in that sweetest of compliments, simply being very, very nice...
Seated, left to right: M. James OGrady, Q.C.; Helen Alexiade O'Grady; speaker Robert C. Morrow of Burke-Robertson LLP, and dinner chair Fay Brunning of Borden Ladner Gervais LLP. Standing, left to right: master of ceremonies Peter Cronyn of Nelligan OBrien Payne 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 Ladner Gervais LLP; speaker Joseph Power of RBC Dominion Securities, and the Honourable Allan Lutfy, Chief Justice of the Federal Court.

Thunder Bay Mentoring

Stephen Wojciechowski of Eryou Barristers, a director of The Advocates Society, has chaired to wellreceived Mentoring Dinners in Thunder Bay this year. Held at Giorg Ristorante, both evenings have been designed to give younger advocates an opportunity to benefit from the advice of members of the judiciary in a relaxed setting. Ben Zarnett, President of the Society, and Jessica Grant, the Societys Director of Education, attended the first event, and Kimberly Morris and Adrienne Woodyard, members of the Young Advocates Committee, travelled to the second dinner. Among the judiciary acting as mentors was the Honourable Regional Senior Justice Terrence A. Platana of the Superior Court of Justice, whose early enthusiasm helped to ensure the success of these dinners.

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

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VOLUME 16, NO. 3, SPRING 2005

THE EXPERT COLUMN - The Benefits of Relationship Building

By Bob Martin, PricewaterhouseCoopers Last summer, I was fortunate enough to have been part of PricewaterhouseCoopers third annual Ulysses Programme - a global leadership development programme designed to train partners in leadership, diversity and sustainability, and to demonstrate PwC's commitment to corporate responsibility. The firm partnered with development organizations active in six developing countries around the world, sending a team of three partners into each location to make a meaningful contribution over a two month period. In each project, the partners chosen represented different practice areas and cultural backgrounds, bringing unique perspectives 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 development in India and assisting war-torn East Timor with a recovery, employment and stability programme.

Bob Martin

PwC sent all participants to an intensive week-long foundation programme first, to develop our skills and provide us with tools to assist in maximizing the teams' potential, capitalizing on the diversity of our group. The 18 participants were from PwC offices all over 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 the entrepreneurial talents of Ecuadorians by supporting the development and growth of micro-enterprises (usually 10 employees or less). This growth would bring employment to the region and, in turn, help those in greatest need. The United Nations, with the support 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 services of these agencies. We explored training and support services, strategic financial consulting, legal consulting, business incubation services, and the provision of micro-finance assistance. Each of these potential services was considered in the context of what the entrepreneurs told us they needed, resources available through universities and government agencies, and what the 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 different time 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 ourselves 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 to think 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 greatest gift is demonstrated by the relationships I developed with my two PwC partners on the project. It was the power of these relationships that resulted in the strength of our team and our delivering sustainable benefits to the United Nations and the Business Development Agencies. Through an interactive feedback process, we learned about our own strengths and weaknesses, and about each other. In the end, we learned a great deal about ourselves, by opening our hearts and our minds, by listening hard to each other and by being open-minded to change. We genuinely appreciated each others perspectives, no matter how different they 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, and an 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 and colleagues, 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 to suit 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.

VOLUME 16, NO. 3, SPRING 2005

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Ethos, Pathos and Logos: The Society Publishes a Book

The Advocates Society launched the first of its two books at a reception at Campbell House in February. Ethos, Pathos and Logos: The Best of The Advocates Society Journal was published through Irwin Law and features a selection of the finest articles on advocacy published in the Societys 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 Societys Director of Marketing & Communications; The Honourable Brian W. Lennox, Chief Justice of the Ontario Court of Justice; Journal founder and former editor Brian J.E. Brock, Q.C. of Dutton Brock LLP, and the Societys immediate past president, Jeffrey S. Leon of Fasken Martineau DuMoulin LLP. Ethos, Pathos and Logos is available through Irwin Law at 416-862-7690 or 888-314-9014.

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VOLUME 16, NO. 3, SPRING 2005

Access for Persons with Disabilities

A committee to review the issue of accessability to courthouses for persons with disabilities held its first meeting in early April. The committee includes representatives of the Court of Appeal for Ontario (The Honourable Justice Karen Weiler), the Superior Court of Justice (The Honourable Justices Gloria Epstein and Anne Molloy), 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.), the Office of the Attorney General (Debra Paulseth) Crown Law Office (David M. Lepofsky) and The Advocates' Society (Alf Kwinter). The committee is seeking input from members of the profession. Comments may be forwarded to: disabilitybarriers@jus.gov.on.ca.

Sir Wm. Campbell Foundation Lottery

Draw date: June 22, 2005
All proceeds to the Sir William Campbell Foundation

Prizes:
1. Trip for two to the sunny south, all inclusive, seven days ($3,500$4,500) donated by itravel2000. 2. Two-night getaway at Deerhurst, including two dinners ($880) donated by Deerhurst Resort and Borden Ladner Gervais 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 Stillwater Spa ($232) donated by Debut Global Inc. 6. Gift certificate for Jamie Kennedy Wine Bar ($150) donated by Jamie Kennedy Wine Bar. 7. Two tickets, Toronto Symphony Orchestra concert and pass to their Maestro Club ($160) donated by TSO. 8. Two bottles of 1996 Ornellaia ($300) donated by Stephen Grant, McCarthy Ttrault LLP. 9. Historic dinner for eight cooked in winners home ($500) donated and cooked by 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) donated by SWCF Volunteer Committee. 13. Two nights at Fairmont Royal York Hotel ($1,000) donated by Fairmont Royal York Hotel. 14. Entertainment for four at Woodbine Raceway ($200) donated by Woodbine Raceway. 15. Oil painting by Mel Delija ($300) donated by the artist.

Tickets: $50 or 3/$125

For tickets, please contact a member of The Advocates Society Board of Directors or call 416-597-0227

VOLUME 16, NO. 3, SPRING 2005

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Maintaining Yourself & Your Practice Through Personal Trauma

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 following the 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 my world was shattered. My beautiful 18-year-old daughter, Stacey, was struck and killed that night by a car. What followed was a rapid 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 an option; how could I leave my other daughters, Marni and Jacqueline, and my wife, Cheryl, to cope with yet another loss? With the love and support of my amazing friends and family, I began the very long road to rebuilding my personal life. Returning to the office a 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 professional equilibrium. As I emerged from the depths of despair, I began to see, with brilliant clarity, how much our culture denies death and pain 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 own experience and theirs about the enormous obstacles facing the traumatized in our world. These obstacles are particularly daunting for traumatized lawyers, in part because we feel we must, as advisors, present a strong and unblemished image to our clients and colleagues and in part because we believe that we can solve any problem on our own. Asking for help seems to be the hardest thing of all. The problems, of course, are not just those of the lawyer experiencing the trauma. The well-being of the rest of the firm and the clients is also at risk at such a time. Add to those problems the moral dilemmas that present themselves -- Can he handle the files safely? How long should we support him? Can I trust him with my legal work? -- and you get a particularly challenging environment for everyone. For the one experiencing trauma, the first and most important thing to do is ask for help. Often that requires an enormous amount of 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 we were; but how much stronger you become after you get the support you need! Knowing your limits and working within them during the period of trauma is also important, not only for the sake of the clients and the firm, but for your own healing process. Nothing sets you back more, during trying times, than taking on too complex tasks or too heavy a workload. At the same time, completely severing yourself from professional work, unless it is clearly necessary, may complicate your return to full practice. Choosing a wise balance 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 our needs and the needs of those close to INTELLECTUAL PROPERTY us. These are lifestyles we can ill afford during a time of trauma. More than ever, we must be vigilant about our health, Patents Litigation both mental and physical, and take time for ourselves. Trade-marks Licensing For the colleagues of a lawyer experiencing personal trauma, I have the following advice to share: 1) Convey, in no uncertain terms, the unequivocal support that the firm will give to the lawyer who is experiencing trauma. 2) Assign the best person in the firm to mentor the lawyer through the trauma. This might be another lawyer who has had a similar experience or simply the person who has the best "people" skills for such a task. 3) Educate everyone in the firm about the origins of the trauma. The truths about addiction, mental illness and bereavement and their consequences
(Continued on page 19)

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(Continued from page 18)

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 back to 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 wonder about 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 the traumatic ones or maybe especially the traumatic ones. I did! Among the many gifts Stacey left me as she left this world is the knowledge 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 Leota Embleton, Program Manager, 416-241-7983 John G. Starzynski, Volunteer Executive Director, 1-877-6227 LINK Lawyers Assistance Program English: 1-866-261-6704 French: 1-866-261-6718

2005 Court House Series Expands to Six Cities

The Society held its long-running Court House Series in Hamilton, Kitchener, London, Ottawa, Toronto and Windsor this year. Barbara J. Murchie of Sim, Hughes, Ashton & McKay LLP chaired the series, titled Focus on Argument, which featured demonstrations and discussions by experienced judges and litigators of comparative approaches to different types of arguments. Post-program receptions or lunches gave attendees the opportunity to meet and mingle. In London, the final session coincided with a Wine & Cheese with the Bench, which was attended by the Societys president, Ben Zarnett.

Left to right, at the London session on Trial Argument, are the Honourable Justice Lynda C. Templeton, the Honourable Regional Senior Justice Lynn L.C. Leitch, and the Honourable Justice Helen Rady of the Superior Court of Justice. Visible on the video screen are Benjamin Zarnett of Goodmans LLP (seated) and T. David Little of McCarthy Ttrault LLP.

Left to right, at the Hamilton Court House Series session on Trial Argument, Jon-David Giacomelli of Ross & McBride; Jeffrey S. Leon of 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 the Honourable Justice John Cavarzan of the Superior Court of Justice.

VOLUME 16, NO. 3, SPRING 2005

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