KEEPING TABS

The Advocates’ Society

February 2019
 CONTENTS

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

06 Young Advocates In The News

Compiled by Andrew Eckart, Eckart Mediation and Thomas Milne,
Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors

08 Diversity In The Profession:

On The Basis Of Sex
Erin Durant, Borden Ladner Gervais LLP

12 Access To Justice: YASC At The Pro Bono Hotline

Alexandra Shelley, Torys LLP

15 YASC Report: Simcoe Fireside Chat

Thomas Milne, Nahwegahbow Corbiere Genoodmagejig Barristers & Solicitors

16 Diversity of Counsel at the SCC: R. v. Le

Louis Century and Geetha Philipupillai, Goldblatt Partners LLP

20 Case Comment: Heller v. Uber

David Campbell, The Law Office of David Campbell

22 Interview: Kyle Ferguson

Compiled by Carlo di Carlo, Stockwoods 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
with the training and the confidence they need to execute on their feet when it
counts. The Judge will notice…your clients will too.
Visit www.advocates.ca. Be part of the legacy of extraordinary advocates.
25 YouTube Series: Laurie Pawlitza
Erin Durant, Borden Ladner Gervais LLP
Editor: Erin Pleet, Thornton Grout Finnigan LLP | EPleet@tgf.ca
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a
voice for young advocates (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. The opinions expressed by individual authors are their own
and do not necessarily reflect the policies of The Advocates’ Society.

3
 COMING UP
(Click on the program to learn more)

CHAIR CHAT

Chair Chat MAR 6 MAR 7 MAR 21

Peel Pub Night Women in Litigation Trivia Challenge
Victoria Creighton, Osler, Hoskin & Harcourt LLP Symposium for Charity
Mississauga Ottawa Toronto
Last month, I travelled to Ottawa for the President’s Reception and
met with many great Ottawa-based advocates. For the very young ad-
vocates out there, I offer this story for you. This is my seventh year on
YASC and I’m practically a professional event attendee, averaging one or
two events a week. At most events, I spend my time making sure every-

MAR 26 MAR 29 APR 4

one is chatting in groups. If someone is standing alone, I try my best to
chat with them and find them a group they might find interesting.
At the President’s Reception, I saw a man standing alone, so I walked up and introduced myself.
Motions Advocacy Leadership Skills Find your Hook:
We chatted for a bit, I told him some silly story about myself, and I then walked with him to a group
of other lawyers, introduced my new friend to the group, then walked on. Walking away, I thought
for Litigators How To Develop a
Toronto Toronto
to myself, “I hope he finds a good conversation. He seems really nice.” I perhaps took another two Winning Case
steps, only to think, man, that person seems familiar. And then realized it was our new Minister of Toronto
Justice. In a room full of lawyers, I was worried that no one was talking to the Attorney General of
Canada. For the record, he was a delight to talk to and, obviously, a kind, patient man.
I offer this story to young advocates everywhere, because, some nights you’re on, you remem-
ber everyone’s name, and all your interactions are smooth. And other nights, well, not so much.
But keep coming out. The profession is largely kind and welcoming. The more you come out, the
easier it gets. My favourite part of being part of TAS is meeting new people, then getting to know
APR 8 APR 9
them better event after event. Case in point, I had friends in the room who I could immediately Women in License Appeal
laugh with about the clumsiness of my own interaction with my new friend David. Litigation Tribunal (LAT)
In this issue of Keeping Tabs, you will find an interview with young advocate Kyle Ferguson, a recap Symposium Advocacy
of the Heller decision at the Ontario Court of Appeal, a piece on what lawyers can learn from On The Vancouver
Basis of Sex to improve diversity in law firms, a feature on our talented young advocate colleagues
already appearing before the Supreme Court of Canada, recaps of YASC events from across Can-
ada, young advocates in the news, and our continuing TAS “Legends of Bar” video series featuring
former Law Society of Ontario Treasurer Laurie Pawlitza discussing strategies to deal with “imposter
syndrome” in your practice. YASC is always looking for contributions to Keeping Tabs. If you have
something to say about a case, your life as an advocate, or a great experience at a TAS event, please APR 9 APR 10
tell our acting editor, Erin Pleet at epleet@tgf.ca. If you’re looking to get involved with YASC more Women in Women in
generally, join our Volunteer Roster by emailing Alexandra Shelley at ashelley@torys.com. Litigation Litigation
Symposium Symposium
Calgary Edmonton
4
 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, andrew@eckartmediation.com; or
Thomas Milne, tmilne@nncfirm.ca
• ‘He’s capable of killing me’: PhD student alleges sexual assault by Dominican Republican
official - CBC, October 1, 2018. Megan Savard of Addario Law Group LLP comments on her
client’s sexual assault allegations and ‘powerful’ case against a former member of the Dominican
Republican government.
• Rules on Weed in the Workplace – CBC News Network, October 10, 2018. Jacqueline Luksha,
associate at Hicks Morley Hamilton Stewart Storie LLP, speaks to CBC News Network host John
Northcott about the workplace implications of cannabis legalization.
We are #TASProud of our Young Advocates who worked so diligently in raising awareness of
the impending closure of Pro Bono Ontario’s Law Help Centre. The collective effort of many
of our members has helped to ensure that the Law Help Centres will remain in operation
throughout 2019. The following are some of the news stories that highlight our members’
advocacy efforts:
• Lawyers says loss of Pro Bono Ontario help centres will make justice more difficult and
expensive – The Star, November 6, 2018. TAS member Lindsay Scott, Paliare Roland Rosenberg
Rothstein LLP, discusses the impact of closures of the Law Help Centres.
• Funding pro bono legal services a no-brainer for Ford government – The Star, November
13, 2018. TAS member and associate at Stockwoods LLP, Pam Hrick, provided an opinion
piece encouraging the Ontario government to fund Pro Bono Ontario to prevent the closure
of the Law Help Centres.
• Free civil legal service to close, despite study showing it saves Ontario $5M a year –
CBC News, November 7, 2018. Paliare Roland Rosenberg Rothstein LLP associate Alysha Shore
shares her experiences of volunteering with Pro Bono Ontario over the past 10 years.

• City of Regina wants court to quash ruling that allowed Westgate Properties more time to
build – CBC News, October 23, 2018. TAS member and associate at Gowling WLG, Sahil Shoor, TAS Member Erin Durant, associate at Borden Ladner Gervais LLP, was interviewed for several
represents Westgate Properties in response to a judicial review launched by the City of Regina.  publications:
• POC’s in underrepresented workplaces pressured to speak for entire communities: Global
• Group trying to keep free legal help centre afloat in Ottawa – CBC Radio (Ottawa Morning),
News, December 26, 2018. TAS member and associate at Nahwegahbow, Corbiere Genoodmagejig
November 8, 2018.
Barristers & Solicitors, Thomas Milne, participates in a panel discussion regarding employment
on Living in Colour.
• ‘You don’t have justice if you don’t have access to a lawyer’: Legal Help Centre to close
• Court upholds NPCA board appointments – St. Catharines Standard, December 21, 2018. – Ottawa Citizen, November 8, 2018.
Erin Pleet of Thornton Grout Finnigan LLP successfully represented her clients in a dispute
over the governance of the Niagara Peninsula Conservation Authority. • Bencher hopefuls push LSO on pro bono funds – Law Times, November 12, 2018.

6 7

DIVERSITY IN THE PROFESSION
On the Basis of Sex is worth the price of admission
A Little Less Conversation, both as an entertaining movie and for the lessons
that it teaches the next generation of lawyers
a Little More Action:
about diversity, advocacy and change.
The film hits its stride when a young Justice Ruth
Bader Ginsburg hears about a case of gender dis-
What Lawyers in 2019 crimination against a man. The client was a never
married man whose status and gender made him
Can Learn From On
ineligible to deduct caregiving expenses for the
care of his ailing mother from his income taxes.
Ruth (as she then was) knew a male litigant would
The Basis of Sex to Improve garner more support from the judiciary than in
prior gender discrimination cases unsuccessful-
Diversity in Law Firms ly advanced by women. The movie covers the
preparation and argument of the case and con-
cludes with a touching moment which I will not
Erin H. Durant, Borden Ladner Gervais LLP disclose here (bring tissues).
Other than being an inspiring story, there are
**Warning: Some Spoilers for the film and some unfiltered thoughts to follow** three lessons from the film which I hope will in-
spire lawyers to make our workplaces better for
everyone. Here are the lessons.
8 9
1. Do Not Make Assumptions Based
On Gender
Ruth is interviewed for many jobs in New
York City. She was top of her class and
a law review leader at Harvard and Co-
lumbia. Yet she was not offered a job at
a private firm. In the film she reflects on
her interview experience, including one
lawyer’s concern that the partners’ wives
might be jealous of a female lawyer.
Unfortunately, these types of gen-
der related comments are still made
today. During an OCI interview I was
asked about my intentions about hav-
ing children. One firm told me “women
had children and did not come back.”
I lost interest in that firm and I expect
they never had interest in me. There
are stories of women lawyers with busy
starts to their career who return from
maternity leave to find they have no
files. Some people assume women with
children do not want to attend certain
client networking opportunities outside
of office hours – yet are quick to invite
men with children to the same events.
All of these experiences have an impact
on women lawyers and their ability to
succeed in the profession.
The “traditional” gender roles that
were changing when RBG started her
career have largely changed now. We
cannot let preconceived notions about
an individual’s responsibilities outside
of the office impact how we treat those
people in the office and what oppor-
tunities we give them. Those notions
should have ended decades ago.
2. Don’t Just be Part of a Support Group
Ruth’s inspiring daughter Jane had a
number of memorable moments in the
film. The highlight for me was when
Jane says: “It’s not a movement if every-
 one’s sitting down. It’s a sup-
port group.”
In 2016 in Ontario women
made up 54.3% of lawyers un-
der the age of 35 and 52% of
lawyers between the ages of
35 and 44. The increase in the
number of women in the pro-
fession is not resulting in a
corresponding increase in the
number of women admitted to
partnership. While it is difficult
to secure accurate data on the
number of women partners
in Canadian law firms, in the
United States the latest NALP
diversity report indicates that
women accounted for 23.36%
of partners in law firms they
surveyed in 2018 (slightly up
from 22.7% in 2017) even
though women have made
up approximately half of law
school graduates over the past
20 years and made up approx-
imately 45.5% of associates as
of 2017. The percentage of vis-
ible minority partners is even
lower – at less than 10%. These
figures suggest that law firms
are not promoting diverse can-
didates in equal proportion to
the number of diverse candi-
dates in the profession. Some
law firms are recognizing that
this is a problem and are tak-
ing steps to address the diver-
sity in their partnership.
Women and minorities talk
privately when there is a per-
ceived lack of diversity in pro-
motions. It bothers them. These
10
concerns are often raised at
events and conferences de-
signed for and attended by
them. But law firm leaders and
decision makers are not al-
ways there. I worry that these
events are support groups, not
movements. Until key decision
makers are brought into the
discussion, little will change.
The statistics show that we
need a movement, not a sup-
port group.
3. Be Strategic
Ruth Bader Ginsberg created
the Women’s Rights Project to
increase the pace on improv-
ing equality in America for
women. The Project system-
atically targeted laws which
discriminated on the basis the young lawyers who read Around You: When you are verse. Not everyone notices a After watching On the Basis of
of sex and approached their Keeping Tabs. Research shows in a position to delegate work – lack of diversity (yet). Constant Sex I was motivated to do more
work one case at a time. It was that leadership on diversity create your own diverse teams. reminders help. to promote diversity within the
a tremendous success as the and inclusion must come from Give diverse students opportu- legal profession. I hope that
project pushed forward 300 the top. I agree. nities. Be mindful of your own 4. Push the Marketing De- you watch the film and it in-
sex discrimination cases in the However, Ruth Bader Gins- unconscious biases. Make an partment: Advise your mar- spires you to do the same.
1970s and had numerous vic- berg did not wait for change effort to work with people who keting department of your Disclaimer: The above thoughts
tories in the Supreme Court. to come. She strategically are not like yourself. interest in being included in are my personal suggestions
The Women’s Rights Project forced the issue. Here are RFPs, marketing materials and on how to help create change.
continues to this day with fo- some of my strategies which 3. Insert Yourself and be an lawyer rankings. When review- They are not a solution; there
cuses on women in educa- young lawyers can use to help Advocate for Others: Be vocal ing marketing materials, advise is no one single, right way that
tion, violence against women, improve diversity and inclu- about wanting to be included when there is a lack of diversity any of us can make the pro-
women in criminal justice and sion in their firms: in client and networking op- in the materials. fession and law firms more in-
women’s rights in the work- portunities. Do not wait to be clusive alone. It will take time
place. 1. Speak Up: Voice concerns approached. Voice interest in 5. Do Not Tolerate Discrimi- for firms, the legal profession,
Law firm culture will not about diversity and inclusion being involved in the next big nation: Law firms are required and biases of society-at-large
change overnight. Concrete in your workplace. Ask what file that matches your skill set. to have non-discrimination pol- to catch up. What we can do,
strategies are required to im- is being done. Ask for the Be an advocate for others if icies. If you notice discrimina- in the interim, is keep these
prove diversity and inclusion. deadlines. Follow up. Volun- you notice diverse lawyers are tion, report it. If you do not feel issues in the forefront and do
Many steps that are required teer to help. not considered for opportunities comfortable reporting it, have what we can as individuals
are outside of the control of 2. Create Diverse Teams and if client teams are not di- your mentor do it. along the way.
11
 ACCESS TO JUSTICE

YASC Answers the Courthouse Series 2019

Call at the Pro Bono The Effective Witness
Ontario Hotline Cases stand and fall on witness credibility. Attend this year's Courthouse Series and learn
how to get the most out of all witnesses. This year's series will feature an outstanding
cast of experienced advocates sharing practical strategies for preparing, controlling and
Alexandra Shelley, Torys LLP examining different types of witnesses.

Kingston Barrie Sudbury Hamilton

February 28, 2019 March 7, 2019 March 21, 2019 May 8, 2019
In furtherance of YASC’s mandate to increase access to justice, during the week of Windsor London Milton Kitchener
December 3, 2018, members of YASC, their colleagues, and members of the YASC February 28, 2019 March 7, 2019 April 29, 2019 May 9, 2019
Volunteer Roster volunteered with the Pro Bono Ontario Hotline. The volunteers each
spent a day at the PBO Hotline answering calls from Ontarians and providing summary Owen Sound Thunder Bay Ottawa Kitchener
March 5, 2019 March 7, 2019 April 29, 2019 May 16, 2019
legal advice on a range of topics from landlord tenant issues to intellectual property
infringements.
The Hotline currently receives over 350 calls a day and each YASC volunteer was able
to help as many as 10 clients per day. Since its launch in September 2018, the Hotline LEARN MORE OR REGISTER
has provided access to legal advice for thousands of Ontarians with everyday civil legal
problems. PBO volunteers filled 864 shifts at the Hotline in 2018 and helped nearly
15,000 callers.
If you’re interested in getting involved with the Hotline, please contact Nicole
Kellow at hotlineschedules@probonoontario.org or 416-977-4448 ext. 926.

12 13

Your Next
Challenge Is Here
The Advocates’ Society Career Board is the only legal
job board created just for the litigation bar. Access
notices for litigation, ADR and judicial vacancies that
are exclusively listed for advocates across Canada.
To find your next position visit www.advocates.ca
YASC REPORT
YASC’s First Simcoe
County Fireside Chat
Thomas Milne,
Nahwegahbow Corbiere Genoodmagejig
Barristers & Solicitors
On December 12, 2018, a Fireside Chat on Ad-
vocacy was held in Simcoe County featuring Mr.
David C. Nahwegahbow. The event took place
at Casino Rama and was generously sponsored
by Nahwegahbow, Corbiere Genoodmagejig,
Barristers & Solicitors, Oatley Vigmond Person-
al Injury Lawyers LLP, and Carroll Heyd Chown
LLP. Mr. Nahwegahbow was interviewed by
Professor Jeffery Hewitt from the University of
Windsor, Faculty of Law.
It was a very special evening. Mr. Nahwe-
gahbow is widely recognized as an expert in
Indigenous law and has long been an out-
standing role model for Indigenous lawyers
throughout Canada. He spoke about his
background, his early beginnings as a legal
advocate, his work on a Child Welfare case
currently before the Canadian Human Rights
Tribunal, and his work on a treaty interpre-
tation case involving the Robinson-Huron
Treaty of 1850 currently before the Ontario
Superior Court of Justice.
YASC looks forward to hosting more events
in Simcoe County.
15

DIVERSITY OF COUNSEL AT THE SCC: R. v. Le
Disrupting unspoken
notions about who ‘belongs’
at the Supreme Court
Louis Century and Geetha Philipupillai,
Goldblatt Partners LLP
At the hearing of R. v. Le in October 2018, the Supreme Court of
Canada considered the question of whether a reasonable expec-
tation of privacy extends to social visits in a friend’s backyard. The
backyard in question was at a downtown Toronto Housing Co-op-
erative where the appellant Tom Le and his friends, all young men
of colour, had grown up and where the police have an active pres-
ence. On the night of Mr. Le’s arrest, he was socializing in his friend’s
backyard when three police officers entered the backyard, uninvit-
ed, and questioned Mr. Le and the group, leading to Mr. Le’s arrest
and the seizure of a firearm, currency and drugs.
16
Mr. Le was represented by Emily Lam (Kast-
ner Law, 2008) and Samara Secter (Addario
Law, 2014), who urged the Court to account
for the lived experience of racialized youth
when approaching the question of an expec-
tation of privacy in this context. The judg-
ment, which is under reserve, could change
the law of search and seizure in Canada. Yet
regardless of the outcome, the case already
stands out for another reason.
The hearing itself was both younger and
more diverse than any Supreme Court hear-
ing in the recollection of these authors. Thir-
teen out of the 23 listed counsel were ‘young
advocates’ (within their first ten years of prac-
tice), including five out of 11 speaking law-
yers. Fifteen out of 23 counsel were women.
And for a case that concerned the experience
of young racialized people with law enforce-
ment, many of the lawyers before the Court
were themselves racialized. Some, like
Mr. Le’s lawyer Emily Lam, grew up in
the same neighbourhood where Mr. Le
and his friends were socializing when
this case began.
Counsel at Supreme Court hearings
are disproportionately senior, white and
male, but not this time. We decided to
speak with some of the all-star young
advocates in this case about why a rep-
resentative courtroom matters to them.
#Womeninlaw at the Supreme Court
Danielle Glatt (Lenczner Slaght Royce
Smith Griffin LLP, 2014), co-counsel for
the Canadian Civil Liberties Association,
recalled that the robing room was full
of women in the morning before the
case. “In appellate litigation, that was a
first for me, for it to be majority wom-
en,” she said. Lindsay Board (Stock-
woods LLP, 2016), co-counsel for the
Federation of Asian Canadian Lawyers
and the Chinese and Southeast Asian
Legal Clinic, concurred: “As someone
relatively early in her career, it definite-
ly made a difference for me to see so
many women doing an incredible job.”
Dayna Steinfeld (Fillmore Riley LLP,
2013), co-counsel for Canada Without
Poverty et al, said, “Participating in the
Le case as an advocate made me feel
hopeful that there is space for lawyers
who are different. Watching two young
female advocates [Emily Lam and Sa-
mara Secter] argue the entire case for
the Appellant was incredibly meaning-
ful for me as a young female advocate
myself.” Similarly, Tina Lie (Paliare Ro-
land Rosenberg Rothstein LLP, 2007),
co-counsel for Scadding Court Com-
munity Centre, said the case was a “re-
minder to young, female and racialized
litigators that we are not imposters or
intruders; we can and do belong in a
17
 space like the Supreme Court
of Canada.”
Racial representation of
counsel
For Anthony Morgan (then at
Falconers LLP and now with the
City of Toronto, 2013), who rep-
resented the Urban Alliance on
Race Relations, “The roster of
counsel in this case positively
disrupts the unspoken notion
that young and/or racialized
people and perspectives don’t
belong among the highest
rungs of our profession.”
Mr. Morgan contrasted this
case to his previous experi-
ence at the Supreme Court in
R. v. Nur, which concerned a
mandatory minimum sentence
involving a Black accused. Be-
sides the accused, Mr. Morgan
was the “the only Black person”
there and, besides his co-coun-
sel Faisal Mirza, counsel did not
even “[use] the word ‘Black’ or
‘African-Canadian’ in their oral
submissions.” Mr. Morgan felt
“an unsettling mix of great joy
and emotional pain at reaching
a professional pinnacle” and
said, “I can’t think of a time that
I felt more simultaneously vis-
ible and invisible as a lawyer.”
In contrast, Mr. Morgan said
about R. v. Le, “I am heartened
and hopeful about how dif-
ferent the composition and
character of the submissions
were in R. v. Le than in R. v. Nur.
While there’s still a long way to
18
go, the change gives me some
hope that we, as a legal profes-
sion are steadily headed in the
right direction.”
The courtroom is for
the people
Tina Lie similarly said, “In this
case, the appellant and many
of the interveners were able
to advance their diverse per-
spectives through counsel who
looked and sounded like them,
in some cases grew up in neigh-
bourhoods close to or similar to
the one in which the appellant
was arrested and, important-
ly, understand what it is like to
navigate our society as a mem- might not otherwise think of if asked the Court to imagine the benefits to public confidence of from all walks of life.”
ber of a minority group.” the courtroom and bench were police walking into the back- having a judiciary that reflects For Ms. Lam, who represent-
Ms. Lie’s co-counsel Lauren more homogenous.” yard of “some of the icons of the population it serves.” ed Mr. Le at the lower courts
Pearce (2016) continued, “This criminal law…Greenspan, Mol- as well, a favourable decision
not only gives important con- Diversity on the bench daver, Rosenberg and Gold.” All-star appellate duo would have personal resonance.
text to counsel’s legal argu- In contrast to the diverse com- Justice Moldaver interject- For Ms. Lam and Ms. Secter, She said, “I grew up in the same
ments, it also helps to provide position of counsel in this case, ed, “I’d invite them to have a this was a ‘dream opportunity’ neighbourhood as Mr. Le many,
a perspective that might other- the judges who will decide the drink.” Mr. Mirza later said this to work together on such an many years ago. It’s a pretty
wise not be voiced, and hope- case are all white, as has been exchange “crystallized the dif- important case. Ms. Lam called unique experience to be able
fully leaves litigants feeling like the case since 1875 when the ference” between how differ- Ms. Secter “one of the  fun- to personally understand some
they were meaningfully heard Supreme Court was founded. ent members of society experi- niest  and brightest lawyers I of the challenges people in the
(regardless of the outcome).” When asked why a representa- ence police interactions. know” and said, “I believe I had community face, and to be able
Emily Lam said, “The court- tive bench matters, Ms. Secter Gerald Chan (Stockwoods an opportunity many lawyers to advocate for changes to the
room is for the people, and said, “it is difficult to under- LLP, 2008) also reflected on the dream about: I got to work on way the constitutional rights
should represent those who stand the humiliation of be- importance of a diverse bench: a case involving issues that I of marginalized and racialized
come before the law. If judges ing ‘othered’ by the police, or “Judges approach cases with an deeply care about with people groups are understood. If we’re
and courtrooms don’t reflect asked if you belong in a certain open mind, but not an empty who share the same person- successful in this case, the law
the people they serve, trust place, unless you have lived it. mind. They are all informed, and al and professional principles as it would have applied to me
and faith in the system is di- If you are always in the major- to some extent limited, by their I do.” Ms. Secter agreed that when I was growing up in the
minished. A diversity of experi- ity, being on the outside is a own experiences. The more working with Ms. Lam made community…will have changed
ence makes the system better completely unknowable expe- diverse the judiciary – and, on the case special and unforget- for the better!”
and opens the door to differ- rience.” appeals, the hearing panel – table: “She is a smart and ded- Judgment was reserved at
ent perspectives and ways of Several counsel recalled an the better their judgments will icated advocate. She knows the Supreme Court and a deci-
considering issues that we exchange in which Faisal Mirza be. That’s over and above the how to connect with people sion is pending.
19
 a week—or $20,800–$31,200 a year—work-
ing 40–50 hours a week. This income is be-
fore taxes and expenses, like his vehicle.
He commenced a proposed class action on
behalf of all Uber drivers seeking a declara-
tion that they are employees under the ESA,
and $400 million in damages.
Uber’s contracts with their drivers have
arbitration agreements. Uber moved un-
der s. 7(1) of the Arbitration Act, 1991 and
Article 8(1) of the International Arbitration
Act, 2017 (ICAA) to stay Heller’s action.
Both provisions mandate a stay, absent
certain exceptions. The Court of Appeal’s
analysis focuses on s. 7(2)(2.): “The arbi-
tration agreement is invalid.”
At the heart of this case is Uber’s ADR
CASE COMMENT system. If a driver has dispute with Uber,
then there are several steps:
• The driver starts by calling an Uber
CSR in the Philippines;
• The dispute may then be referred to
an Uber CSR in Chicago;
One Heller of an • Uber’s legal team may then take over
the dispute from the Chicago CSR;
Arbitration Agreement
• The driver may also go to an Uber
Greenlight Hub in Ontario to ask Uber
staff for help;
David Campbell, • If still dissatisfied, the driver may com-
The Law Office of David Campbell mence a mediation with the Interna-
tional Chamber of Commerce (ICC) in
the Netherlands under Dutch law; and
• If the mediation fails, the driver may then
commence an ICC arbitration, again in
the Netherlands under Dutch law.
Arbitration is becoming ever-more important for those who practise civil litigation, Aside from travel and counsel fees, the
since an ever-increasing number of contracts contain arbitration agreements. driver would have to pay $14,500 (USD) in
For those interested in arbitration, the Ontario Court of Appeal started 2019 with a ICC filing fees to reach arbitration, along
bang. Heller v. Uber Technologies Inc. is one of those rare cases where the arbitration with his or her share of the mediator’s
agreement was held to be unconscionable. The case also held that the arbitration and arbitrator’s fees.
agreement was invalid because it violates s. 5(1) of the Employment Standards Act, The Court found that this arbitration
2000 (ESA). The Court’s unconscionability findings should bolster public confidence in agreement was unconscionable, because
arbitration by refusing to enforce an ADR clause that would effectively prevent the “it operates to defeat the very claims it pur-
dispute from being decided independently and beyond judicial overview. ports to resolve.” The Court held that the
Heller is a 35-year-old, high-school-educated UberEATS driver who earns $400–$600 facts were sufficient to meet both the two-
20
part test for unconscionability and the four-
part test. A driver with a claim of a few hun-
dred dollars must fly to the Netherlands to
have his or her claim decided independent-
ly, rather than by Uber employees.
In a separate holding, the Court also held
that the arbitration agreement violates s.
5(1) of the ESA and is thus unenforceable.
Section 5(1) of the ESA voids provisions that
force an employee to contract out or waive
an employment standard. Not only does
Uber’s arbitration agreement extinguish
an employee’s right under s. 96 to report a
dispute to the Ministry of Labour and have
an Employment Services Office investigate,
but it also eliminates an employee’s s. 98
right to commence a civil action. According
to the Court, arbitration does not fall within
the definition of a civil action.
However, the ESA analysis has a tricky
component. It presumes that Heller’s al-
legation that he is an employee is capa-
ble of proof. This presumption is based
on the Supreme Court of Canada’s deci-
sion in Seidel v. TELUS Communications Inc.
Although Seidel certainly makes the same
presumption, this is the first case follow-
ing Seidel that uses the presumption in
the context of a stay motion. It does seem
to leave open the possibility that future
plaintiffs could make questionable allega-
tions to defeat s. 7(1).
Generally, arbitration agreements
must be enforced, even in contracts of
adhesion, unless one of the exceptions
in s. 7(2) or Article 8(1) is met, the dis-
pute is outside the scope of the arbitra-
tion agreement, or there is a legislative
override to the arbitration. In promoting
arbitration as an alternative, we must
not allow ourselves to enforce uncon-
scionable arbitration agreements that
may undermine public confidence in ar-
bitration as a fair and legitimate form of
dispute resolution.
21
Do you know a young advocate who we Q. What is your year of call? Q. What is your greatest fear in practice?
should feature in an upcoming Interview? A. 2012 in Ontario and A. The spectre of missing a deadline or limitation
Click here to email us with your suggestion. 2014 in B.C. period is something that I think we all fear.

Q. Which word do you prefer: litigator or advocate?

A. The term litigator is certainly used more often, but I think advocate best captures the work that
we do inside and outside the courtroom to organize, refine and present our clients’ cases.

Q. If you weren’t a lawyer

Q. What is your favourite take out cuisine? what would you be?
A. Pizza and beer. A. I think I would have wanted to
be a professor or teacher.

INTERVIEW

Q. Which living lawyer do you most admire?

A. There are so many lawyers that I work alongside or against that I admire, so rather than singling
out one of them, I will go a different route and pick Beverley McLachlin. She was the face of the
In conversation Supreme Court for a generation, and the clarity of her jurisprudence from all levels of court on
which she served continues to resonate here in B.C.

with Kyle Ferguson,

Gudmundseth Mickelson LLP, Vancouver Q. What is your favourite case?
Compiled by Carlo di Carlo, Stockwoods LLP A. Whenever I revisit Roncarelli v. Duplessis, I am struck by Justice Rand’s eloquent articulation of
the limits on government action and the exercise of discretion. His cogent explanation of the rule
of law continues to apply to situations faced by our clients.

Q. Why did you become a litigator or advocate? Q. What is the latest non-legal book
you’ve read? Q. Which talent would you most like to
A. I didn’t go into law school with a fixed idea of my intended area of practice, but after being
A. Tommy Orange’s There There. have?
exposed to litigation while summering at a law firm after my first year of law school, I was hooked. A. I wish I could sleep on planes!

Q. What do you like most about your practice?
A. I enjoy the process of learning the ins and outs of our clients’ businesses or circum-
stances, organizing their sometimes complicated facts in a way that can be presented to
the court, and figuring out how the law responds to their legal issues.
22
Q. From whom have you learned the most about the practice of law?
A. The senior lawyers that I work with, Stein Gudmundseth, Q.C., Howard Mickelson,
Q.C., Andrew Gay, Q.C. and Lisa Martz. They are incredibly generous with their time
and are a daily source of wisdom, advice and opportunities.
23
 Q. What unique knowledge have you gleaned in your practice that you can share with
other young advocates?
A. There is a famous quote from Robert Jackson about the three arguments he made in every
case as Solicitor General of the United States: the one he planned for, the one he actually pre-
sented, and the “utterly devastating” argument that he thought of after going to bed that night.
Whether it’s an examination of a witness or an oral submission, in the hours, days or weeks that
follow you might think of an answer that you wish you had given, or a further question that you
wish you had asked a witness. This doesn’t happen only to young advocates so you shouldn’t be
too hard on yourself. Instead, use these as opportunities to learn.

Q. What is your greatest extravagance Q. You practised in both Toronto and

in your everyday life? Vancouver. What is the difference in
A. I like to pick up a decent bottle of wine the practice between the two cities?
every now and then. Another “extrava- A. For me, the biggest difference was the
gance”, though certainly not an everyday change in subject matter. In Toronto, my
one, is collecting works by emerging art- practice involved primarily patent and
ists. Our artists tend to be underappre- trademark disputes, whereas my practice
ciated in this country, and I encourage now is much more general. Aside from YOUTUBE SERIES
everyone to support these folks in their that, there is certainly a difference in the
regions and beyond. They promote curi- size of the bar, but both are collegial and
osity, inspire debate, and encourage dia- filled with talent.
logue in ways concrete and abstract, and
they certainly deserve our support. TAS Legends of the Bar
Erin H. Durant, Borden Ladner Gervais LLP
Pawlitza Discusses Imposter Syndrome in the Practice of Law
and How to Believe in Yourself
The TAS archives contain foot- to accomplish your goals. Im-
age from a number of CPD con- poster syndrome impacts many
ferences, including the 2011 in the practice of law includ-
Women in Litigation Conference. ing women, minorities and first
Q. What should advocates in the rest of Canada know about the life of a litigator in Vancouver? Laurie Pawlitza gave a significant generation lawyers. Watch Ms.
A. There are a lot of great opportunities for young lawyers in Vancouver. The breadth of files, big speech at this event - a portion Pawlitza discuss her own battle
and small, allow young lawyers here to gain courtroom experience and develop their skills early of which focused on imposter with imposture syndrome and
on in their careers. The bar is small enough that you will regularly run into the same lawyers, and syndrome and strategies to get her suggestions on how to si-
so your reputation is especially important. over the feeling that you do not lence the negative voice that can
belong or are not good enough hold you back. 

24 25
 Toronto Pub Night OTTAWA PRESIDENT’S RECEPTION
Wednesday, January 16, 2019 | Irish Embassy Pub & Grill, Toronto Thursday, January 31, 2019 | The Rideau Club, Ottawa

The Honourable David Lametti, Minister of Justice and Attorney General of Canada

Anne M. Turley, Department of Justice The Honourable David Lametti,

Minister of Justice and Attorney General of Canada

26 27
 FIRESIDE CHAT: MENTAL RESILIENCE IN LITIGATION The 5th Annual Kingston Trivia Challenge
Thursday, January 31, 2019 | The Vancouver Club, Vancouver Thursday, February 7, 2019 | The Kingston Brewing Company, Kingston

Allison Wolf, Lawyer Coach, Shift Works Strategic Inc, Kaitlyn Meyer, Hakemi Ridgedale LLP, and Brook Greenberg,
Bencher of the Law Society of British Columbia, Partner at Fasken Martineau DuMoulin LLP

28 29
 ARNUP CUP CARTOON
February 8-9, 2019 | TAS Education Centre, Toronto
What’s Oh man! I have no
OH NO! happening? idea what’s going on.

LEGENDARY
GENIUS!!!

Um …Ob-objection? Sustained.

Arnup Cup Winner: Lakehead University - (From left to right) Witness Eric Blay, Austin Nix, Phaedra Olinyk,
Oralist Nathan Wainwright, Oralist Amanda Gallo.

Are you a TAS member <10 years of call who wants to get
more involved and promote the interest of young advocates?

YASC could be the place for you!

Applications now being accepted for the 2019/20 term.
Deadline to apply is March 8, 2019.

Apply Now

Second Place: Queen’s University - (From left to right) Third Place: Osgoode Hall - (From left to right)

30 Coach Joe Dart, Oralist David Reznikov,

Oralist Amita Persad-Ford, Student Coach Paul Kenney
Oralist Madeleine Chin-Yee,
The Advocates’ Society President Brian Gover, Oralist Kelby Loeppky 31
www.advocates.ca