The Honourable Mahmud Jamal's questionnaire

Questionnaire for the Supreme Court of Canada Judicial Appointment Process

PART 3 - STATUTORY QUALIFICATIONS

Bar Membership(s):

Bars, Call dates, Reason for cessation of bar membership (i.e. resigned, appointed to the bench, other) and date of reinstatement (if applicable).

Called to the Ontario Bar, February 23, 1996; ceased membership on judicial appointment, June 24, 2019

Various special permits from the Barreau du Québec to appear before the Quebec Superior Court and Quebec Court of Appeal (2008-2019)

Judicial Experience (if applicable):

(Include all dates of appointment)

Justice of Appeal, Court of Appeal for Ontario, and Judge ex officio of the Superior Court of Justice of Ontario (June 24, 2019-present)

RESIDENCE

(Please confirm the following mandatory requirement statement)

☒ The Supreme Court Act requires that all justices shall reside in the National Capital Region or within 40 kilometers thereof. I confirm that I either currently meet this requirement or that if appointed, I will move my residence to the National Capital Region or within 40 kilometers thereof.

PART 4 – LANGUAGE

Please note that in addition to the answers to the questions set out below you may be assessed as to whether you are functionally bilingual.

Without further training, are you able to read and understand court materials in:

• French: Yes
• English: Yes

Without further training, are you able to discuss legal matters with your colleagues in:

• French: Yes
• English: Yes

Without further training, are you able to converse with counsel in court in:

• French: Yes
• English: Yes

Without further training, are you able to understand oral submission in court in:

• French: Yes
• English: Yes

PART 5 – EDUCATION

Name of Institutions, years attended, degree/diploma and year obtained:

Bar Admission Course, Law Society of Upper Canada (now Law Society of Ontario), September–December 1995 (1995)

Yale Law School, Yale University, 1993-1994, LL.M. (1994)

Faculty of Law, McGill University, 1989-1993, LL.B., B.C.L. (1993)

Trinity College, University of Toronto, 1985-1989, B.A. (1989)

London School of Economics and Political Science, University of London, 1984-1985

Ross Sheppard Composite High School, Edmonton, Alberta, 1981-1984, International Baccalaureate Diploma and Alberta High School Diploma (1984)

Continuing Education:

As a judge, I have received continuing education training offered by the National Judicial Institute and the Court of Appeal for Ontario and have attended many public programs offered in the legal community. I also undertake self-study and generally review decisions of the Supreme Court of Canada and Ontario Court of Appeal as they are released. As a lawyer, I attended well over a hundred (and likely several hundred) continuing education programs. These included programs on substantive law, procedure, oral and written advocacy, legal ethics, negotiation, practice management, client development, and technology, among other subjects. I have listed below just a few of the more significant programs I attended. I also undertook self-study and regularly taught in continuing education training programs.

Programs that I have taught are listed below under Part 6, “Teaching and Continuing Education”. When teaching, I usually attend sessions given by other instructors.

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Continuing education as a judge (selection):

1. Training Program for Federal Judges (part II), National Judicial Institute (April 11-15, 2021)

2. 24th Annual Osgoode Constitutional Cases Conference, Osgoode Hall Law School (April 9, 2021)

3. “Carbon Pricing on Trial: Unpacking the Supreme Court decision”, University of Ottawa Public Law Centre, Canada's Ecofiscal Commission, Centre for Environmental Law and Global Sustainability, Centre québécois du droit de l'environnement (CQDE), Ecojustice, and Smart Prosperity Institute (March 26, 2021)

4. Judging in Your First Five Years (Criminal Law), National Judicial Institute (January 18-22, 2021)

5. Court of Appeal for Ontario, internal continuing education seminars, including: Professor Richard Susskind, “The Future of Courts” (October 29, 2020); and Professor Albert Yoon and Eugene Cipparone, “Artificial Intelligence and Legal Practice” (February 18, 2021)

6. Osgoode Society for Canadian Legal History lecture series: Professor Jim Walker, “Legacies: The Impact of Black Activism on the History of Rights in Canada” (September 23, 2020); Carolyn Strange, “The Death Penalty and Sex Murder in Canadian History” (November 18, 2020); Professor Dann J. Broyld: “Borderline Blacks: Two Cities (Rochester and St. Catharines) in the Niagara Region During the Final Decades of Slavery” (March 17, 2021); Professor Barrington Walker, Legal History and Advocacy, and Anti-Black Racism (March 31, 2021); Hon. Harry LaForme, “Judicial Reflections” (April 7, 2021); and Hon. Ian Binnie, “Judicial Reflections” (April 21, 2021)

7. Federation of Asian Canadian Lawyers, Annual Conference, February 19, 2021

8. Professor John Borrows, “Originalism and Indigenous Law”, Runnymede Society (January 28, 2021)

9. Professor Richard Susskind, “The Future of Litigation”, R. Matt Dawson Lecture Series, Baylor University (January 19, 2021)

10. Justice Rosalie Abella, “Reflections on the Legacy of the Holocaust”, Inaugural Elie Wiesel Lectureship in Human Rights (December 9, 2020)

11. Office of the Lieutenant Governor of Ontario, “The 50th Anniversary of the Royal Commission on the Status of Women Report” (panelists Hon. Monique Bégin, Ms. Maureen O’Neil, Ms. Lorna Marsden, Hon. Jean Augustine, and Ms. Roberta L. Jamieson) (December 7, 2020)

12. Professor Richard Susskind, “The Future of Courts”, Sir Henry Brooke Annual Lecture 2020 (November 25, 2020)

13. Hon. David Lametti, “From Lectures to Lawmaking”, 2020 Mallory Lecture, McGill Institute for the Study of Canada and McGill Faculty of Law (November 19, 2020)

14. “Indigenous Peoples and the Law”, Canadian Institute for the Administration of Justice, 6-episode webinar: (1) “Overview of the Progress of the Calls to Action” (October 14, 2020); (2) “The Next Stages of Indigenous Governance in Quebec” (October 21, 2020); (3) “Looking at British Columbia’s Declaration on the Rights of Indigenous Peoples Act”; (4) “Discussing the Promises and Problems with the Act respecting First Nations, Métis and Inuit Children, Youth and Families” (January 20, 2021); (5) “Investigating the Indigenous Languages Act” (February 17, 2021); and (6) “Courts Changes after the COVID-19 Pandemic and Indigenous Cultural Relevancy” (March 10, 2021)

15. “In All Fairness”, 6-episode podcast on judicial writing hosted by Caroline Mandell, Canadian Institute for the Administration of Justice (November and December 2020) (I participated in episode 5 with Justices Sheilah Martin of the Supreme Court of Canada and Justice Alice Wooley of the Alberta Court of Queen’s Bench)

16. Professor Scott Shapiro, Yale Law School, “Jurisprudence” (15 lectures on analytical jurisprudence) (March to July 2020)

17. Ontario Bar Association’s Institute, Criminal Law, “Legal Issues and Strategies for Today’s Criminal Cases”, Toronto (February 8,2020)

18. Criminal Lawyers’ Association 47th Annual Fall Conference, Toronto (November 15-16, 2019)

19. Training Program for Federal Judges (part I), National Judicial Institute, Victoria, B.C. (October 28-November 1, 2019)

20. Court of Appeal for Ontario Fall Training, Toronto (October 17-18, 2019)

21. Appellate Courts Seminar (appellate courts across Canada), National Judicial Institute, Winnipeg (September 23-24, 2019)

22. French instruction twice a week through the Office of the Commissioner for Federal Judicial Affairs (July 2019-present)

Continuing education as a lawyer (a small selection of some of the more significant programs):

1. Supreme Court of Canada Symposium, “The Supreme Court of Canada: Looking to the Future”, Supreme Court of Canada, Ottawa (by invitation) (October 26, 2017)

2. “The Winning Brief”, LawProse Inc., Dallas, Texas (10-week webinar course taught by Bryan A. Garner) (May-August 2016)

3. International Cartel Workshop, American Bar Association, Section of Antitrust, Tokyo, Japan (February 3-6, 2016)

4. "Advanced Legal Writing and Editing", LawProse Inc., Dallas, Texas (taught by Bryan A. Garner) (March 31, 2010)

5. Intensive Trial Advocacy Course, Osgoode Hall Law School, Toronto (July 1999)

6. Written Advocacy course, Advocates’ Society and Osgoode Professional Development (September 1997)

Academic Awards:

1. Fulbright Graduate Scholarship, Foundation for Educational Exchange Between Canada and the United States (1993-1994)

2. Yale Law School Scholarship, Yale University (1993-1994)

3. Social Sciences and Humanities Research Council of Canada Graduate Scholarship (1993-1994)

4. Philip F. Vineberg Travelling Fellowship (shared), McGill University (1993)

5. Thomas Shearer Stewart Travelling Fellowship (shared), Faculty of Law, McGill University (1993)

6. Rosa B. Gualtieri Prize (to a graduating student of high academic standing and exceptional personal qualities), Faculty of Law, McGill University (1993)

7. Dean Ira A. MacKay Prize (for highest standing in torts throughout the program), Faculty of Law, McGill University (1993)

8. Fern Gertrude Kennedy Prize in Jurisprudence (for high academic standing in Jurisprudence and Legal Theory), Faculty of Law, McGill University (1992)

9. McCarthy Tétrault (Eugène Lafleur) Scholarship (shared), Faculty of Law, McGill University (1992)

10. Students’ Society of McGill University Award of Distinction (for strength in academics and extracurricular activities), McGill University (1992)

11. Louise McKinney Scholarship (top 2% of Faculty of Law, McGill University), Government of Alberta (1992)

12. James McGill Award (top 5% of Faculty of Law), Faculty of Law, McGill University (1992)

13. Dean’s Honour List (top 10% of Faculty of Law), Faculty of Law, McGill University (1992)

14. Faculty Scholar (top 10% of Faculty of Law), Faculty of Law, McGill University (1991)

15. Young Bar Association Prize (for highest standing in National Civil Procedure), Faculty of Law, McGill University (1991)

16. Aga Khan Foundation Scholarship (1990-1993)

17. Alberta Heritage Foundation Scholarship, Government of Alberta (1984)

PART 6 – PROFESSIONAL AND EMPLOYMENT HISTORY

Please include a chronology of work experience, starting with the most recent and showing employers' names and dates of employment. For legal work, indicate areas of work or specialization with years and, if applicable, indicate if they have changed.

Legal Work Experience:

1. Justice of Appeal, Court of Appeal for Ontario, and Judge ex officio of the Superior Court of Justice of Ontario (June 24, 2019-present)

2. Litigation Partner, Osler, Hoskin & Harcourt LLP (March 2001-June 2019)
— elected member, National Executive Committee (Partnership Board) (responsible for the firm's governance and overall strategic direction) (March 2015-December 2018); member, Vancouver Office Evaluation Committee (2014-2015); Chair and member, National Pro Bono Committee (2007-2019); Co-Chair, National Partner Compensation Committee (2011); member, National Partner Compensation Committee (2007)

3. Litigation Associate, Osler, Hoskin & Harcourt LLP (January 1996-February 2001)

4. Law Clerk, Hon. Justice Charles D. Gonthier, Supreme Court of Canada (1994- 1995)

5. Law Clerk, Hon. Justice Melvin L. Rothman, Quebec Court of Appeal (1991-1992) (part-time during law school)

6. Research Assistant, Professor Mirjan Damaška, Sterling Professor of Law, Yale Law School (research in comparative law) (1993-1994)

7. Research Assistant, Professor H. Patrick Glenn, Peter M. Laing Professor of Law, Faculty of Law, McGill University (research in comparative law) (1991-1993)

8. Summer Litigation Associate, Davis Polk & Wardwell, New York (summer 1994)

9. Summer Litigation Associate, Osler, Hoskin & Harcourt, Toronto (summer 1993)

10. Summer Litigation Associate, Ogilvy Renault, Montreal (summers 1991 and 1992)

11. Summer Litigation Associate, Hicks Morley Hamilton Stewart Storie, Toronto (summer 1990)

12. Summer Student, Government of Alberta and Ackroyd Piasta Roth & Day, Edmonton (worked on the reorganization of corporate entities incorporated by Alberta Métis Settlements in preparation for constitutional entrenchment of lands under the Alberta Métis Settlements Act) (summer 1989)

Non-Legal Work Experience:

1. English Tutor, Official Languages Monitor Program, Université du Québec à Montréal (1990-1992)

2. Teaching Assistant (Macroeconomic Theory), Department of Economics, University of Toronto (1987-1988)

3. Research Assistant to Professor Samuel Hollander, University Professor, Department of Economics, University of Toronto (research on the history of economic thought and proof-read Professor Hollander's book, Classical Economics (1987)) (1986-1988)

4. Porter, Trinity College, University of Toronto (part-time during university and full-time during summers) (1986-1988)

5. Sales Clerk, Classic Bookshop, West Edmonton Mall, Edmonton (summers 1983-1985)

Other Professional Experience:

(List all bar associations, legal or judicial-related committees of which you are or have been a member, and give the titles and dates of any offices which you have held in such groups.) Judicial-related committees:

1. ADR in Family and Civil Appeals Committee, Court of Appeal for Ontario (March 2021-present)

2. Judicial Training, Library, and Technology Support Committee, Court of Appeal for Ontario (March 2021-present)

3. Civil Time Allocations Committee, Court of Appeal for Ontario (March 2021-present)

4. Bench and Bar Committee (Equity, Diversity, and Inclusion), Court of Appeal for Ontario (March 2021-present)

5. Electronic Communications Committee (website refresh, intranet, Twitter), Court of Appeal for Ontario (February 2021-present)

6. Remote Access Committee, Court of Appeal for Ontario (helped prepare practice directions and electronic filing requirements during the pandemic) (September 2020-present)

7. COVID-19 Technology Committee (provided technology training to Court of Appeal judges during the pandemic), Court of Appeal for Ontario (March 2020-present)

8. Tri-Courts Information Technology Committee (Ontario Court of Appeal, Ontario Superior Court, and Ontario Provincial Court), one of two representatives of Court of Appeal for Ontario (information sharing and policy formulation on technology issues) (September 2019-present)

9. Social Committee, Court of Appeal for Ontario (July 2019-April 2020)

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Bar Associations and Other Legal Committees:

1. Advocates’ Society Award of Justice, member of the Selection Committee (2021)

2. Advocates’ Society— member of the Board of Directors (2017-June 2019); Standing Committee on Advocacy and Practice (2017-June 2019); National Practice Standing Committee (2018-June 2019); Vice-Chair, Judicial Complement Task Force (2018-June 2019); Advocacy Instructor (2017-June 2019); Task Force on Interventions in the Supreme Court of Canada (2016-2017); member (1996- 2019)

3. Canadian Civil Liberties Association— Chair of the Board of Directors (September 2018-June 2019); Treasurer (2015-2018); Vice-President and member of Board of Directors (2006-2019); pro bono counsel (2004-2019)

4. Osgoode Society for Canadian Legal History — member of the Board of Directors (2015-present); Chair, Membership Committee (2016-present); Chair, Patrons' Program (2016-June 2019); pro bono legal counsel to the Board (2005-2015)

5. Supreme Court Advocacy Institute, Advocacy Advisor (provided advocacy advice in appeals pending before the Supreme Court of Canada) (2014-June 2019)

6. Mundell Medal for Excellence in Legal Writing, member of the Selection Committee chaired by the Chief Justice of Ontario (variously Chief Justices McMurtry, Winkler, and Strathy) (2005-2008, 2018-2019). Appointed to the Committee by three different Attorneys General of Ontario

7. Canadian Bar Association — member (1996-2019); Pro bono counsel (2005-2019); Ad hoc committee relating to non-waiver of privilege when information is provided by regulated entities to OSFI (2018); Ad hoc committee on solicitor-client privilege in federal legislation (2016-2017); Ad hoc committee on solicitor-client privilege in the legal profession (2014); Ad hoc committee regarding proposed amendments to the Income Tax Act targeting solicitor-client privilege (fall 2010)

8. American Bar Association, Litigation and Antitrust Sections, member (1996-June 2019)

9. Conference to Commemorate the Federal Court of Canada’s 40th Anniversary, member of the organizing committee, National Judicial Institute (2010-2011)

10. Ontario Bar Association, Constitutional, Civil Liberties and Human Rights section, member of the Executive (2005-2008)

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Law Journals:

1. Canadian Business Law Journal, Trustee (2012-present)

2. National Journal of Constitutional Law, member of editorial board (2013-2019)

3. McGill Law Journal and Osgoode Hall Law Journal, peer reviewer (2017)

4. Global Competition Litigation Review, co-editor for Canada (2008-2014)

5. Yale Journal of International Law, member of editorial board (1994-1995)

6. McGill Law Journal, Case Comments Editor and member of editorial board (1990-1992)

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Moot court competitions:

1. Gale Cup Moot (bilingual criminal law moot competition), judge, Toronto (February 26, 2021 (in French); February 14, 2020 (in English))

2. Harold G. Fox Moot on Intellectual Property Law, judge, Toronto (February 20, 2021)

3. Grand Moot, Faculty of Law, Queen’s University, sole judge of final round, Kingston (September 18, 2020)

4. Ontario Court of Appeal law clerks’ moot (criminal law), judge, Toronto (June 26, 2020)

5. Warren K. Winkler Class Actions Moot, final round judge (with Hon. Warren Winkler and Justice Jessica Kimmel), Toronto (February 22, 2020)

6. Philip C. Jessup Public International Law Moot, judge for practice rounds for Osgoode Hall Law School team, Toronto (February 19, 2021 and February 18, 2020). As a student, member of the McGill team, placing first in Canada, second place memorial, sixth place oralist, and then member of the final four teams in the global competition in Washington, D.C. (April 1993)

7. Laskin Moot Court Competition (constitutional law) (bilingual moot), grader of factums in English and French and judge (1999, 2000, 2001, and 2003); co-author of the moot problem (1999); member of the moot problem consultative committee (2016-2017)

8. Wilson Moot Court Competition, judge (several years)

Pro Bono Activities:

All activities listed above under “Other Professional Experience” were pro bono.

1. Osler, Hoskin & Harcourt LLP, National Pro Bono (Community Law) Committee, Chair and member (responsible for approving andmanaging pro bono contributions across the firm's offices in Toronto, Montreal, Calgary, Vancouver, and New York) (2007-2019)

2. Pro bono counsel to the Canadian Bar Association, Canadian Civil Liberties Association, Federation of Law Societies of Canada, Kids Help Phone, Congress of Aboriginal Peoples, Osgoode Society for Canadian Legal History, and various individuals (1998-2019)

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Acted as counsel in the following significant pro bono cases:

1. Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555— whether regulators can demand access to privileged information (counsel to Federation of Law Societies of Canada)

2. Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521— whether insurance regulators can demand documents protected by litigation privilege in Quebec (counsel to Canadian Bar Association)

3. Minister of National Revenue v. Duncan Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381— scope of solicitor-client privilege under the Income Tax Act when lawyers are under investigation (counsel to Canadian Bar Association)

4. Attorney General of Canada v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336— scope of solicitor-client privilege and constitutionality of s. 232(1) of the Income Tax Act (counsel to Canadian Bar Association)

5. Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401— constitutionality of federal anti-money laundering and terrorist financing legislation encroaching on solicitor-client privilege (counsel to Canadian Civil Liberties Association)

6. R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250— constitutionality of sniffer-dog search at highway-traffic stop (counsel to Canadian Civil Liberties Association)

7. R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220— constitutionality of sniffer-dog search at airport (counsel to Canadian Civil Liberties Association)

8. Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357 — whether trial court’s verbatim adoption of counsel’s written submissions provides grounds for new trial (counsel to Canadian Bar Association)

9. A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567— constitutionality of court order permitting cyberbullied youth to litigate anonymously (counsel to Kids Help Phone)

10. Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65 — constitutionality of broadcasting ban on evidence tendered in court in Quebec (counsel to Canadian Civil Liberties Association)

11. Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19 — constitutionality of rules restricting media activities in courthouses in Quebec (counsel to Canadian Civil Liberties Association)

12. Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 — constitutionality of provincial freedom of information legislation restricting access to privileged information (counsel to Canadian Bar Association)

13. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 — whether requirement of photos on drivers’ licenses for Hutterites infringes the freedom of religion guarantee under the Charter (counsel to Canadian Civil Liberties Association)

14. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC, [2008] 2 S.C.R. 574 — whether the Privacy Commissioner of Canada can compel production of solicitor-client privileged information (counsel to Canadian Bar Association)

15. R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527— constitutionality of Canada Elections Act ban on disseminating election results while polls are still open (counsel to Canadian Civil Liberties Association)

16. Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189 — test for removing counsel for inadvertent disclosure of privileged information when executing an Anton Piller order (counsel to Canadian Bar Association)

17. Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256 — whether a prohibition against a Sikh child carrying a kirpan at school infringes the freedom of religion guarantee under the Charter (counsel to Canadian Civil Liberties Association)

18. Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 473—whether federal employment program for off-reserve and non-status Indigenous peoples infringed s. 15(1) of the Charter, and Canada (Attorney General) v. Misquadis, 2003 FCA 370 — Crown’s motion to strike out intervener’s memorandum of argument in appeal involving the equality rights of Indigenous peoples (counsel to Congress of Aboriginal Peoples)

19. Slobodan Lemez, M.D. v. College of Physicians and Surgeons of Ontario, Health Professions Appeal and Review Board, 2002-2003—challenge to denial of certificate of registration authorizing independent practice for a refugee Bosnian-trained medical doctor who passed Canadian licensing exams (counsel to foreign-trained doctor)

20. Ramlall v. International Medical Graduate Program (Ontario), [1998] O.J. No. 4872, 116 O.A.C. (Div. Ct.) — judicial review of retrospective rulemaking by medical licensing body impacting foreign-trained medical doctors (counsel to foreign-trained doctor)

Teaching and Continuing Education:

(List all legal or judicial educational organizations and activities you have been involved with (e.g. teaching course at a Law Faculty, National Judicial Institute, Canadian Institute for the Administration of Justice, etc).

My more significant teaching roles include:

1. Co-Director, Osgoode Hall’s LL.M. program in Administrative Law (2007-June 2019)

2. Lecturer, Administrative Law Remedies (intensive course), Osgoode Hall LL.M. program in Administrative Law (2007-June 2019)

3. Lecturer, Comparative Constitutional Law (one-semester seminar course), Faculty of Law, McGill University (January-May 2000)

4. Instructor and grader, Public Law, Bar Admission Course, Law Society of Upper Canada (2000-2003)

5. Past guest lecturer at McGill University Faculty of Law, University of Toronto Law School, Osgoode Hall Law School, Peter A. Allard School of Law (UBC), University of Ottawa Law School (Common Law), and Ryerson University

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I have taught or am teaching in programs offered by the following organizations:

Advocates’ Society

American Bar Association

Association of Canadian Studies

Association of Corporate Counsel

Barreau du Québec

British Columbia Continuing Legal Education Society

British Columbia Information and Privacy Commissioner

Canadian Association of Law Librarians

Canadian Bankers Association

Canadian Bar Association

Canadian Bar Association, Prince Edward Island Branch

Canadian Council of Administrative Tribunals

Canadian Institute

Canadian Institute for the Administration of Justice

Capital Markets Institute, Rotman School of Management, University of Toronto

Congress of Aboriginal Peoples

Council of Canadian Administrative Tribunals

Department of Justice (Canada)

Faculty of Law, McGill University

Federation of Asian Canadian Lawyers

Investment Advisors’ Industry Association

L’Association des juristes d’expression française de l’Ontario

Law Society of Upper Canada (now Law Society of Ontario)

Law Society Tribunal, Law Society of Ontario

National Judicial Institute

Ontario Bar Association

Ontario Crown Lawyers’ Conference

Osgoode Hall Law School

Osgoode Hall Continuing Legal Education

Pacific Business and Law Institute

Peter A. Allard School of Law, University of British Columbia

Ryerson University

Society of Trusts and Estates Practitioners

South Asian Bar Association of Toronto

University of Ottawa Faculty of Law (Common Law)

University of Toronto Faculty of Law

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Presentations as a judge:

1. “Mastering the Skills of Judgment Writing”, Joint Program of the National Judicial Institute and the Canadian Institute for the Administration of Justice (co-chair with Justice Daniel W. Payette of the Quebec Superior Court), Vancouver (April 24-28, 2022)

2. « Colloque national sur l’action collective – Développements récents au Québec, au Canada et aux États-Unis », appellate judges’ panel (panelist with Hon. Justice Suzanne Côté of the Supreme Court of Canada and Chief Justice Manon Savard of the Quebec Court of Appeal), Barreau du Québec, Montreal (October 22, 2021)

3. « Le litige civil », L’Association des juristes d’expression française de l’Ontario, Congrès Annuel, Toronto (June 22, 2021)

4. “Appellate Advocacy”, panelist with Justice Ritu Khullar of the Alberta Court of Appeal, South Asian Bar Association, Toronto (May 19, 2021)

5. “Overturned: Insights from Appeals Court Judges”, Ontario Bar Association, Foundations in Judicial Competencies: Certification Program Series, Toronto (April 28, 2021)

6. “Legal Drafting for Litigators”, fireside discussion on appellate written advocacy with Ms. Shantona Chaudhury, Advocates’ Society, Toronto (February 19, 2021)

7. “Commercial Litigation”, presentations to law clerks of the Court of Appeal for Ontario and Ontario Superior Court of Justice (with Justice Benjamin Zarnett of the Court of Appeal and Justice Barbara Conway of the Superior Court), Toronto (February 11, 2021; April 27, 2020)

8. “Bench and Bar Zoom-Hearing Advocacy Discussion”, presented with several other justices of the Court of Appeal to members of the Ontario criminal appellate bar, Toronto (January 28, 2021)

9. “The Appellate Deliberative Process”, Court of Appeal for Ontario, presented with Justices Kathryn Feldman, Alison Harvison Young, and Benjamin Zarnett, Toronto (January 28, 2021)

10. “In All Fairness”, podcast on legal writing hosted by Caroline Mandell, panelist with Justice Sheilah Martin of the Supreme Court of Canada and Justice Alice Wooley of the Alberta Court of Queen’s Bench, National Judicial Institute (December 17, 2020)

11. “Race and the Judiciary”, presentation with Justice Russell Juriansz to law clerks of the Court of Appeal for Ontario, Toronto (December 4, 2020)

12. “Cross Country Appeal Courts: the Good, the Bad, and the Ugly— Best Practices and Worst Practices”, panelist with Justice Marina Paperny of the Alberta Court of Appeal and Justice Susan Griffin of the British Columbia Court of Appeal, Advocates’ Society, Senior Counsel Forum (November 27, 2020)

13. “R. v. Le: Race, Racial Profiling, and Social Context in Charter Adjudication”, presentation to Justices of the Ontario Court of Justice, National Judicial Institute, Ontario Court of Justice Toronto Regional Seminar, Toronto (October 15, 2020)

14. Panelist, “Our Civil Justice System: What’s Next?”, The World of Appeals Post COVID-19, Law Society of Ontario, Toronto (October 14, 2020)

15. Speaker, Global Professional Master of Laws program, Faculty of Law, University of Toronto, Toronto (September 10, 2020)

16. “Overturned: Insights from Appeals Court Judges”, Ontario Bar Association, Toronto (August 26, 2020)

17. “Appellate Advocacy”, South Asian Bar Association, Toronto (June 23, 2020)

18. “A Fireside Discussion with Justice Nicholas Kasirer of the Supreme Court of Canada”, Advocates’ Society Spring Symposium, Toronto (April 29, 2020)

19. “Appeals of Commercial List Matters”, Advocates’ Society, Insolvency Litigation Practice Group, Toronto (March 2, 2020)

20. Speaker, Federation of Asian Canadian Lawyers’ Gala, Toronto (February 8, 2020)

21. “Legal Issues and Strategies for Today’s Criminal Cases: The View from the Bench”, Ontario Bar Association’s Institute, Toronto (February 8, 2020)

22. “Civil Appeals: The Year in Review”, Law Society of Ontario, Toronto (December 9, 2019)

23. “Update from the Court of Appeal for Ontario”, Ontario Bar Association, OBA Council Meeting, Toronto (November 29, 2019)

24. Speaker, South Asian Bar Association Gala, Toronto (November 27, 2019)

25. Speaker, Class Actions Bench and Bar meeting, Advocates’ Society, Toronto (November 14, 2019)

26. “Bottleneck at the Bar”, panelist with Rt. Hon. Lord Justice David Bean of the Court of Appeal of England and Wales and Master Treasurer of Middle Temple, Justice Paul Schabas of the Ontario Superior Court, Derek Woode, Q.C., and Georgina Wolfe, Middle Temple/Advocates’ Society Amity Conference, Toronto (September 21, 2019)

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Presentations as a lawyer:

1. “A Primer on Solicitor-Client Privilege”, Law Society Tribunal, Law Society of Ontario, Toronto (April 24, 2019)

2. “The Ontario Court of Appeal’s Anti-SLAPP Decisions”, Advocates’ Society, Spring Symposium, Toronto (April 24, 2019)

3. “Motions Advocacy: Strategic Considerations in Bringing and Responding to Motions”, Advocates’ Society, Toronto (March 26, 2019)

4. “Leading Your Case: Opening Statements and Examinations-in-Chief”, Advocates’ Society, Toronto (December 7, 2018)

5. “Next Steps: the Cooperative Capital Markets Regulatory System”, Capital Markets Institute, Rotman School of Management, University of Toronto, Toronto (December 4, 2018)

6. Panelist, “Careers in Litigation”, University of Toronto Litigation Association, University of Toronto Law School, Toronto (November 12, 2018)

7. “Special Considerations for Seeking Leave to Appeal to the Court of Appeal”, An Advanced Litigation Presentation: Appellate Advocacy, panelist with Justice Ian Nordheimer of the Ontario Court of Appeal, Advocates’ Society, Toronto (October 25, 2018)

8. Mentor for Mentoring Roundtables, Advocates’ Society Fall Forum: The Litigator of the Future, Collingwood, Ontario (October 20, 2018)

9. “Technology to Simplify Work and Life”, Advocates’ Society Fall Forum: The Litigator of the Future, Collingwood, Ontario (October 19, 2018)

10. “Litigating Contract Disputes”, Advocates’ Society, Toronto (June 21, 2018)

11. Examination of Witnesses in Environment and Lands Tribunal hearings, Advocates’ Society, Toronto (June 6, 2018)

12. “Chief Justice McLachlin and the Division of Powers”, Osgoode 2018 Constitutional Cases Conference, Toronto (April 6, 2018)

13. “Substantive Charter Rights: Rights Engaged When Tribunals Exercise Coercive or Investigatory Powers”, Dealing with Charter Claims and Values— A Tribunal Primer, Counsel of Canadian Administrative Tribunals, Toronto (March 9, 2018)

14. “Justification: Oakes and Doré”, Dealing with Charter Claims and Values— A Tribunal Primer, Counsel of Canadian Administrative Tribunals, Toronto (March 9, 2018)

15. “Federalism and National Infrastructure”, Law Society of Upper Canada, Special Lectures 2017, Toronto (November 28, 2017)

16. “How to Conduct Mediations”, Advocates’ Society, Toronto (November 23, 2017)

17. “Multijurisdictional Class Actions”, presenter with Professor Janet Walker of Osgoode Hall Law School, hosted at University of Toronto Law School, Toronto (November 1, 2017)

18. “Effective Advocacy in the Supreme Court of Canada: Policy, Law and ‘The Big Picture’”, panelist with Justice Suzanne Côté of the Supreme Court of Canada, Advocates’ Society, Toronto (October 20, 2017)

19. “How to Conduct Cross-Examinations”, Advocates’ Society, Toronto (September 25, 2017)

20. Moderator, “Fireside Chat with Justices Akbarali and Rahman”, South Asian Bar Association of Toronto, Toronto (June 5, 2017)

21. “Ethical Issues in Class Actions”, Class Actions for Litigators, Law Society of Upper Canada (November 15, 2016)

22. Commentator, “The Court Jurisdiction and Proceedings Transfer Act: A Decade of Progress", University Club, Toronto (October 21, 2016)

23. “Suing for Statutory Breach: Whither Wakelam?”, Canadian Class Actions Conference, B.C. Continuing Legal Education Society, Vancouver (February 26, 2016)

24. “The Costs Rule for Class Actions in Ontario”, Canadian Class Actions Conference, B.C. Continuing Legal Education Society, Vancouver (February 26, 2016)

25. “The Marcotte Decision: Where Do We Go From Here?”, Canadian Institute, 21st Annual Conference on Regulatory Compliance for Financial Institutions, Toronto (December 11, 2015)

26. “The Best Defence is a Good Offence: Options for Defeating Class Actions at an Early Stage”, Osler’s Class Actions Forum, Toronto (October 1, 2015)

27. “Recent Privacy Developments from the Supreme Court of Canada”, Access Privacy, Toronto (June 17, 2015)

28. “The Supreme Court and Freedom of Religion”, Federation of Asian Canadian Lawyers Annual Conference – Multiculturalism and the Charter, Toronto (September 27, 2014)

29. “Implications of the Supreme Court’s Decision in Spencer”, B.C. Information and Privacy Commissioner, Victoria (July 17, 2014)

30. “Implications of the Supreme Court of Canada’s Decision in Spencer”, Access Privacy, Toronto (June 25, 2014)

31. “Cross-Border Issues in Solicitor-Client Privilege”, Association of Corporate Counsel, Toronto (June 19, 2014)

32. Panelist, Ontario Crown Lawyers’ Summer School, Toronto (June 2, 2014)

33. “Constitutional Issues in Banking Litigation”, Peter A. Allard School of Law, University of British Columbia, Vancouver (March 6, 2014)

34. “Critical Update on Solicitor-Client Privilege Issues and How They Impact You”, Professionalism Issues for Business Lawyers, Ontario Bar Association, Toronto (October 21, 2013)

35. “Constitutional Issues in Banking Litigation”, Canadian Bankers Association, Toronto (September 19, 2013)

36. Panelist, “Issues in Legal Ethics”, Ontario Crown Lawyers’ Summer School (June 19, 2013)

37. “Risk Management for Litigators”, Canadian Bar Association, Skilled Lawyer Series, Canada-wide (webcast) (June 4, 2013)

38. “Ethical and Professional Issues In Litigation For and Against the Crown”, 9th Annual Osgoode Crown Liability Conference, Toronto (February 27, 2013)

39. “Some Recent Developments in Solicitor-Client Privilege in Canada”, Advocates’ Society Spring Symposium, Toronto (May 5, 2012)

40. “Charter Damages: A Primer”, Law Society of Upper Canada, Toronto (March 27, 2012)

41. “Discovery Questioning: Strategy and Techniques”, Canadian Bar Association, Skilled Lawyer Series, Canada-wide (webcast) (February 15, 2012)

42. “Reference Re Securities Act: Comment on Lee and Schneiderman”, University of Toronto Law School conference on the Securities Reference decision, Toronto (January 30, 2012)

43. “Recent Developments in the Division of Powers”, Osgoode Hall Law School, Toronto (November 23, 2011)

44. “‘Secret Evidence’ and s. 38 of the Canada Evidence Act: Ensuring the Constitution is Not a Suicide Pact”, The Federal Court of Appeal and Federal Court, Conference to Commemorate the 40th Anniversary of the Federal Court of Canada, National Judicial Institute, Ottawa (October 27 and 28, 2011)

45. “The Supreme Court and the Securities Reference”, Investment Advisors’ Industry Association, Toronto (September 8, 2011)

46. Debate on Solicitor-Client Privilege with Professor Adam Dodek, Canadian Bar Association Annual Meeting, Halifax (August 14, 2011)

47. “The Supreme Court of Canada and Solicitor-Client Privilege”, Canadian Bar Association, Prince Edward Island Branch, Charlottetown (June 17, 2011)

48. “Current Issues in the Law of Solicitor-Client Privilege”, Society of Trusts and Estates Practitioners National Conference, Toronto (June 3, 2011)

49. “Developments in the Open Court Principle: Canadian Broadcasting Corp. v. Canada (Attorney General)”, Osgoode’s 2010 Constitutional Cases – The 14th Annual Analysis of the Constitutional Decisions of the SCC, Toronto (April 15, 2011)

50. “The Law of Solicitor-Client Privilege in Canada”, American Bar Association, Spring Meeting of the Section of International Law, Washington, D.C. (April 6, 2011)

51. “Excelling at Motion Argument”, Canadian Bar Association, Skilled Lawyer Series, Canada-wide (webcast) (March 1, 2011)

52. “Class Actions and Arbitration Agreements”, University of Toronto Law School, Toronto (March 2, 2011)

53. Moderator, “Social Media, Defamation, and the Crown”, Osgoode’s 7th Annual Conference on Crown Liability, Toronto (February 18, 2011)

54. “Constitutional Aspects of National Class Actions”, University of Toronto Law School, Toronto (February 2, 2011)

55. “An Introduction to Civil Litigation”, Ryerson University, Toronto (December 3, 2010)

56. Moderator, “Good Faith in Contract Law”, 40th Annual Workshop on Consumer and Commercial Law, University of Toronto Law School, Toronto (October 15, 2010)

57. “Canada: The Constitution and the Charter”, Canadian Association of Law Librarians’ Conference, Joint Study Institute, Montreal (June 21, 2010)

58. “Arbitration Clauses and Class Actions”, University of Toronto Law School, Toronto (October 28, 2009)

59. Moderator, “Revisiting the s. 1 Oakes Test: Time for a Change?”, Ontario Bar Association, 8th Annual Charter Conference, Toronto (September 18, 2009)

60. “Recent Developments in Freedom of Religion”, Ontario Bar Association, 8th Annual Charter Conference, Toronto (September 18, 2009)

61. “The Future of Law”, Meredith Memorial Lectures, Faculty of Law, McGill University, Montreal (February 12, 2009)

62. “The Supreme Court of Canada and Freedom of Religion: Some Lessons from Multani”, Federation of Asian Canadian Lawyers, Asian Heritage Month, Toronto (November 8, 2008)

63. Moderator, “Discrimination and Equality Rights”, Ontario Bar Association 7th Annual Charter Conference, Toronto (September 26, 2008)

64. “Non-Charter Constitutional Law Developments, 2007-2008”, Ontario Bar Association, 7th Annual Charter Conference, Toronto (September 26, 2008)

65. “The Supreme Court of Canada and Freedom of Religion: Some Lessons from Multani”, Department of Justice (Canada), Negotiating Multiculturalism: Its Impact on the Charter and Human Rights, Toronto (May 9, 2008)

66. “Class Actions and Arbitration Clauses”, University of Toronto Law School, Toronto (March 5, 2008)

67. “Recovering Unlawful Taxes After Kingstreet Investments”, 4th Crown Liability Conference, Osgoode Hall Law School, Toronto (November 15, 2007)

68. “Everything Else: Non-Charter Constitutional Developments, 2006-2007”, Ontario Bar Association Charter Conference (September 28, 2007)

69. Moderator, “The Supreme Court’s Decision in Hislop”, Ontario Bar Association, Toronto (June 4, 2007)

70. “The Supreme Court and Freedom of Religion: Some Lessons from Multani”, Law Society of Upper Canada, Forum on Multiculturalism and the Charter: 25 Years and Beyond, Toronto (May 24, 2007)

71. “Understanding and Managing Regulatory Investigations”, Osgoode Hall Law School, Toronto (April 23, 2007)

72. “The Supreme Court of Canada and Solicitor-Client Privilege: What Every Practitioner Needs to Know” (updated), Canadian Bar Association (Canada-wide webcast) (February 28, 2007)

73. “Litigating Aboriginal Law Cases: Advance Costs Orders, Evidentiary Issues and Procedural Hurdles”, Aboriginal Law and Consultation, Canadian Institute, Toronto (February 14, 2007)

74. Moderator, “Dealing with the Media When Suing or Defending the Government”, Osgoode’s Third Conference on Crown Liability (November 30, 2006)

75. “Recovering Unlawful Taxes and Other Suits Against Government for Unjust Enrichment: Recent Guidance from the Supreme Court of Canada”, Osgoode’s Third Conference on Crown Liability, Toronto (November 30, 2006)

76. “The Supreme Court of Canada on Solicitor-Client Privilege: What Every Practitioner Needs to Know”, Canadian Bar Association (Canada-wide webcast) (November 29, 2006)

77. “Class Actions and Arbitration”, 36th Annual Workshop on Consumer and Commercial Law, University of Toronto Law School, Banff (October 28, 2006)

78. “Pragmatic Practices for Protecting Privilege,” Association of Corporate Counsel, San Diego (October 23, 2006)

79. “Freedom of Religion in the Supreme Court: Some Lessons from Multani”, Ontario Bar Association, 5th Annual Charter Conference, Toronto (September 29, 2006)

80. “Class Actions and Arbitration”, 7th Annual Litigating Class Actions Conference, Canadian Institute, Toronto (September 26, 2006)

81. “Class Action in Ontario: Some Recent Developments”, 7th Annual Litigating Class Actions Conference, Canadian Institute, Toronto (September 26, 2006)

82. “Class Actions and Aboriginal Litigation”, Law Society of Upper Canada, National Aboriginal Day Celebration, Toronto (June 7, 2006)

83. “The Constitution in Regulatory Investigations and Proceedings”, Ontario Bar Association, Toronto (May 5, 2006)

84. “Treaty Interpretation After R. v. Marshall; R. v. Bernard”, Osgoode’s 2005 Constitutional Cases, Toronto (April 28, 2006)

85. “In-House Counsel and Solicitor-Client Privilege: A Canadian Perspective”, American Bar Association International, Spring Meeting, New York (April 7, 2006)

86. “In-House Counsel and Solicitor-Client Privilege”, Ontario Bar Association Corporate Counsel Section, Toronto (December 7, 2005)

87. “How to Sue Government in Unjust Enrichment: Recent Guidance from the Supreme Court of Canada”, Osgoode Hall, Crown Liability Conference, Toronto (November 15, 2005)

88. “Is PIPEDA Constitutional?”, 35th Annual Workshop on Consumer and Commercial Law, University of Toronto Law School, Toronto (October 22, 2005)

89. “Recent Developments in Section 1 of the Charter: N.A.P.E. and Orbanski; Elias”, Ontario Bar Association, 4th Annual Charter Conference, Toronto (September 30, 2005)

90. “Treaty Interpretation After Bernard and Marshall”, Pacific Business and Law Institute, Canadian Aboriginal Law: The Shifting Paradigm, Ottawa (September 21, 2005)

91. “How to Sue Government: Recent Developments in Damages for Bad Faith Decision-Making and Restitution”, Osgoode Hall, Crown Liability Conference, Toronto (April 21, 2005)

92. “Legislative Facts in Charter Litigation: Where Are We Now?”, 3rd Annual Charter Conference, Ontario Bar Association, Toronto (October 15, 2004)

93. “Recent Developments in Section 7 of the Charter”, Canadian Institute, National Forum on Constitutional Litigation in Civil Matters, Toronto (June 18, 2004)

94. “In-House Counsel and Solicitor-Client Privilege”, Canadian Corporate Counsel Association, Toronto (May 5, 2004)

95. “Administrative Tribunals and the Constitution: The Supreme Court’s Decision in Nova Scotia (Workers’ Compensation Board) v.Martin”, Ontario Bar Association, The Constitution in Your Administrative Law Practice, Toronto (March 2, 2004)

96. “Constitutional Remedies: Some Recent Developments”, Ontario Bar Association, 2nd Annual Charter Conference, Toronto (October 9,2003)

97. “Constitutional Issues in Canadian Competition Litigation”, panelist with Professor Peter W. Hogg and Neil Finkelstein, Canadian Bar Association, Annual Fall Conference on Competition Law, Ottawa (September 3, 2003)

98. “Recent Developments in the Division of Powers”, Canadian Institute, National Forum on Constitutional Litigation in Civil Matters, Toronto (June 2, 2003)

99. “The Constitutionalization of Solicitor-Client Privilege” (with Brian Morgan), Osgoode Hall, Constitutional Cases Conference, Toronto (April 4, 2003)

100. “The Supreme Court’s New Functional-Structural Approach to Remedial Jurisdiction Under the Charter”, Ontario Bar Association, First Annual Charter Conference, Toronto (October 10, 2002)

101. “Legislative Facts”, Association of Canadian Studies, 20th Anniversary of the Charter, Ottawa (April 2002)

102. “Class Actions and Aboriginal Litigation” (with Derek Bell), Congress of Aboriginal Peoples conference, Ottawa (March 2002)

103. “Life Beyond the American Arbitration Association: Arbitration on a Global Scale”, American Bar Association, Annual Meeting, Toronto (August 1998)

Community and Civic Activities:

(List all organizations of which you are a member and any offices held (with dates).

1. Toronto Region Immigrant Employment Council (TRIEC), mentor to recent immigrants seeking employment in Toronto (2018-2019)

2. Government of Ontario, Anti-Racism Consultation Group, member (2017-2018)

3. Yale Alumni Schools Committee (interviewed Toronto-area high school students applying to Yale University) (2015-2019)

4. Soccer coach, Lawrence Park Athletic Association (2007-2011)

5. Soccer coach, North Toronto Soccer Association (2007-2010)

Honours and Awards:

1. Canadian Bar Association, “Outstanding CBA Volunteer” (April 2018)

2. Lexpert Zenith Award (Platinum) for pro bono litigation involving freedom of religion (2010)

3. Lexpert’s Top 40 Lawyers under 40 in Canada (2004)

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Recognition in Legal and Other Directories:

1. Benchmark Canada – Local Litigation Star – Ontario; Leading litigator in class actions, commercial litigation, competition litigation, constitutional litigation, and tax litigation (2012-2019)

2. Best Lawyers in Canada – Leading lawyer in administrative and public law litigation, appellate practice, and corporate and commercial litigation (2009-2019)

3. Canadian Who’s Who (2006-present)

4. Chambers Canada – Leading lawyer in Dispute Resolution (Ontario) and Class Actions (2016-2019)

5. Chambers & Partners’ Chambers Global: The World’s Leading Lawyers for Business – Leading lawyer in Dispute Resolution (Ontario) (2015-2019)

6. Canadian Legal Lexpert Directory – Leading lawyer in Public Law Litigation (Most Frequently Recommended); Class Actions (Most Frequently Recommended); Corporate Commercial Litigation (Consistently Recommended); and Competition Law (Repeatedly Recommended) (2005-2019)

7. Droit-Inc, « Les champions plaideurs de la Cour suprême » (December 1, 2015), listed as the fifth most experienced counsel before the Supreme Court of Canada in the period 2005-2015

8. Euromoney’s Guide to the World's Leading Litigation and Product Liability Lawyers (2016)

9. Legal 500 – recommended for Dispute Resolution (2015)

10. Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada, Class Actions, Commercial Litigation (Most Frequently Recommended) (2018-2019)

11. Lexpert’s Special Edition on Canada’s Leading Litigation Lawyers (2018 and prior years)

12. Lexpert’s Guide to the Leading US/Canada Cross-Border Litigation Lawyers in Canada – Leading lawyer in class actions and competition litigation (2012-2019)

13. Martindale-Hubbell, ranked “AV – Preeminent” (peer rating reflecting the highest level of professional excellence and ethical standards)

PART 7 - LEGAL EXPERIENCE AND EXPERTISE

List and explain your areas of legal expertise:

As a judge on the Court of Appeal for Ontario, I sit in all areas of the court’s civil and criminal jurisdiction. The court’s docket is divided evenly between civil and criminal cases. I describe below some of the areas of substantive law in which I have written significant “Reasons for Judgment” and have been identified as the sole author. I have also written dozens of per curiam civil and criminal rulings styled “Reasons for Decision”, which do not identify a specific author.

As a lawyer for almost 24 years, I practised in the fields of Supreme Court and appellate advocacy, constitutional law (federalism/division of powers and Canadian Charter of Rights and Freedoms), administrative and public law, class actions, criminal and regulatory litigation, general commercial litigation, banking litigation, competition litigation, tax litigation, Aboriginal litigation, copyright litigation, and pension litigation.

My clients included individuals, corporations, not-for-profit entities, public interest organizations, banks and financial institutions, law firms, accounting firms, actuarial firms, federal, provincial, and municipal governments, federal and provincial regulators, a national organization representing off-reserve and non-status Indigenous peoples, the United Nations High Commissioner for Refugees, and industry and professional associations.

I appeared as counsel before the following courts and tribunals:

— appellate courts across Canada, including the Supreme Court of Canada, Federal Court of Appeal, British Columbia Court of Appeal, Alberta Court of Appeal, Ontario Court of Appeal, Ontario Divisional Court, Quebec Court of Appeal, and the New Brunswick Court of Appeal.

— trial courts across Canada, including the Federal Court, Tax Court of Canada, British Columbia Supreme Court, Alberta Court of Queen’s Bench, Saskatchewan Court of Queen’s Bench, Ontario Superior Court, Ontario Court (General Division), Ontario Provincial Court, Quebec Superior Court, New Brunswick Court of Queen’s Bench, and the Supreme Court of Newfoundland and Labrador (Trial Division).

— federal and provincial administrative tribunals, including the Competition Tribunal, Financial Services Tribunal (Ontario), Ontario Energy Board, License Appeal Tribunal (Ontario), Health Professions Appeal and Review Board (Ontario), Mining and Lands Tribunal (Ontario), Ontario Rental Housing Tribunal, and the Board of Inquiry under the Ontario Human Rights Code.

— I have also testified on criminal and constitutional law issues before the Standing Senate Committee on Legal and Constitutional Affairs.

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As a judge or lawyer, I have acquired expertise in the following areas:

Constitutional Law / Division of Powers / Federalism — As a judge, I have written on the parliamentary privilege of the Senate of Canada: Duffy v. Senate of Canada, 2020 ONCA 536. As a lawyer, I litigated many division of powers cases, including cases addressing aeronautics, banking, energy regulation, the environment, securities, taxation, and the federal appropriations power. I have spoken and published widely on division of powers and federalism issues. I worked on several division of powers cases while serving as a law clerk to Justice Gonthier at the Supreme Court of Canada.

Canadian Charter of Rights and Freedoms in the Criminal Context — As a judge, I often address Charter issues arising in the criminal context: e.g., R. v. Thompson, 2020 ONCA 264 (arbitrary detention and exclusion of evidence); R. v. McNeill, 2020 ONCA 313 (cellphone search); R. v. Allen, 2020 ONCA 664 (child luring); R. v. R.C., 2020 ONCA 159 (sexual offences); and R. v. Bushiri, 2019 ONCA 797 (alibi evidence). Like all judges of the Ontario Court of Appeal, I regularly decide applications for bail pending appeal, which have assumed greater importance during the pandemic: e.g., R. v. T.S.D., 2021 ONCA 30; R. v. T.S.D., 2020 ONCA 773; R. v. McRae, 2020 ONCA 498; R. v. Abdullahi, 2020 ONCA 350; and R. v. Sangster, 2020 ONCA 332. As a lawyer, I argued several cases before the Supreme Court of Canada raising Charter issues in the criminal context. I was also involved in several major corporate criminal cases, including criminal price-fixing cases and international criminal proceedings under the Mutual Legal Assistance in Criminal Matters Act, and have responded to and challenged the execution of search warrants. I have published extensively on the Charter. My interest in this area arose while serving as a law clerk at the Supreme Court of Canada and Quebec Court of Appeal, where many of the cases involved Charter issues in the criminal context. This interest has continued and grown throughout my career.

Canadian Charter of Rights and Freedoms Outside the Criminal Context — As a lawyer, many of the Charter cases I litigated arose outside the criminal context, dealing with issues such as freedom of religion, freedom of expression, freedom of association, the principles of fundamental justice, privacy, and the open court principle. Aside from my practice experience, I have published extensively on these issues. I taught a course on the comparative constitutional analysis of human rights law at the Faculty of Law, McGill University. Many of the Charter cases in which I assisted Justice Gonthier raised Charter issues outside the criminal context.

Class Actions — As a lawyer, a significant part of my practice involved class actions before trial and appeal courts across Canada. I have litigated class certification motions, class action merits trials, and class action appeals before provincial appeal courts and the Supreme Court of Canada. These cases covered a broad range of subject matters, including banking and financial services, consumer products, product liability, copyright, securities, and the relationship between class actions and consumer arbitration. I have spoken and written extensively on class actions topics. I have also published and spoken on the potential for bringing class actions on behalf of Indigenous peoples.

Administrative Law and Judicial Review — As a lawyer, I argued judicial reviews before the Ontario Divisional Court, Federal Court, and Federal Court of Appeal. I also argued appeals from judicial reviews to the Supreme Court of Canada. For many years, I was co-director of, and taught in, Osgoode Hall’s LL.M. program in Administrative Law. I also taught in the Law Society of Ontario’s Public Law course as part of the Bar Admission Course. I regularly appeared before a wide range of federal and provincial administrative tribunals. Several cases I worked on as a law clerk to Justices Gonthier and Rothman involved judicial review of administrative action.

Private Law and Procedural Law — As a judge, I often write on private law and procedural issues: e.g., Beaudoin Estate v. Campbellford Memorial Hospital, 2021 ONCA 57 (limitations and rr. 20 and 21); Oakville (Town) v. Sullivan, 2021 ONCA 1 (actionable encroachment on easement and proprietary estoppel); Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447 (limitations); Trezzi v. Trezzi, 2019 ONCA 978 (interpretation of will and gifting corporate assets); Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618 (striking claim against Law Society); 2257573 Ontario Inc. v. Furney, 2020 ONCA 742 (stay pending appeal); and Heidari v. Naghshbandi, 2020 ONCA 757 (security for costs). J’ai aussi entendu une requête bilingue pour une ordonnance de cautionnement pour dépens d’un appel et j’ai rendu le jugement en français (M52016, C68019). As a lawyer, private law and procedural issues were a consistent part of my commercial litigation practice.

Competition Law — As a lawyer, I argued competition law cases before the Competition Tribunal, Federal Court, and Federal Court of Appeal, competition law class actions before trial and appeal courts across Canada, and was involved in domestic and international price-fixing conspiracy cases, including by responding to the execution of search warrants. I have published on competition law issues, especially at the intersection of competition law and constitutional law.

Law of Commercial Arbitration — As a judge, I have written on appellate jurisdiction as it pertains to arbitration: Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612 (on behalf of a 5-judge panel); Paulpillai Estate v. Yusuf, 2020 ONCA 655. As a lawyer, I litigated commercial arbitration law issues before the trial and appeal courts of British Columbia and Ontario and before the Supreme Court of Canada. I have spoken and written on these topics.

Taxation — As a lawyer, I argued cases involving federal, provincial, and municipal taxation before the Ontario Divisional Court, Ontario Court of Appeal, Tax Court of Canada, Federal Court of Appeal, and Supreme Court of Canada. I have published on recovering unconstitutional taxes and other issues at the intersection of tax law and constitutional law.

Solicitor-Client Privilege — As a lawyer, I litigated many cases involving solicitor-client and litigation privilege before the Ontario Superior Court, British Columbia Supreme Court, Federal Court, and Supreme Court of Canada. I have frequently spoken and written on these issues.

Banking Law and Regulation — As a lawyer, my practice included banking law and regulation issues before trial and appeal courts across Canada, especially before the trial and appeal courts of Ontario, Quebec, and British Columbia and before the Supreme Court of Canada. I have also spoken and written on banking law issues.

Aboriginal Law — As a lawyer, I argued cases involving Aboriginal rights, Aboriginal title, treaty rights, and the duty to consult before provincial trial and appeal courts and the Supreme Court of Canada. I have spoken and published on treaty rights issues, on the potential for litigating Aboriginal law claims as class actions, and on the equality rights of Indigenous peoples.

Privacy Law — As a lawyer, I represented the Privacy Commissioner of Canada in several privacy cases before the Supreme Court of Canada and the Municipal Property Assessment Corporation in a judicial review before the Divisional Court involving the privacy of Ontario property assessment data. I have spoken and published on the constitutionality of the federal Personal Information Protection and Electronic Documents Act under the division of powers and on other privacy law topics.

Copyright Law — As a lawyer, I litigated copyright cases before the Supreme Court of Canada and Federal Court of Appeal, copyright class actions before the Ontario Superior Court, and compulsory licensing issues before the Competition Tribunal.

Pension Law — As a lawyer, I litigated pension law issues before the Financial Services Tribunal (Ontario), sometimes before the Ontario courts, and once before the Supreme Court of Canada.

List and explain other legal areas that you have experience in:

Child Protection and Family Law — As a judge, I have taken a strong interest in, and written on, child protection law: L.M. v. Peel Children’s Aid Society, 2019 ONCA 841; Windsor-Essex Children’s Aid Society v. E.W., 2020 ONCA 682. I have also written shorter judgments on family law issues, such as on property division, support, and contempt of court in the family law context.

Quebec Civil Law — As a lawyer, I litigated Quebec civil law issues in several significant cases before the Quebec Superior Court, Quebec Court of Appeal, and Supreme Court of Canada. When doing so, I obtained special permits from the Barreau du Québec and regularly worked with lawyers in Montreal. I have a degree in Quebec civil law and focussed on comparative law in my graduate legal studies. As a student, I worked for two summers at a law firm in Montreal and clerked at the Quebec Court of Appeal and for a Quebec judge at the Supreme Court of Canada. These experiences exposed me to Quebec civil law throughout my career and allowed me to develop and maintain a bilingual and bijuridical legal practice.

Bankruptcy and Insolvency Law — As a judge, I have written shorter decisions in the bankruptcy and insolvency law context. As a lawyer, I sometimes litigated these issues, including once before the Supreme Court of Canada.

Mental Health Law — Like my colleagues on the Court of Appeal, I regularly hear cases and write decisions relating to annual reviews of persons found not criminally responsible on account of mental disorder: e.g., Ahmadzai (Re), 2020 ONCA 169. I have also written a significant judgment on when a person can be considered incapable of commencing a proceeding in respect of a claim because of their “physical, mental or psychological condition” under the Ontario Limitations Act: Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447.

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My expertise and experience described above is supported in part by cases I litigated as a lawyer. My Supreme Court of Canada experience is described later in this questionnaire. Cases that I litigated before federal and provincial appeal courts, trial courts, and administrative tribunals include the following:

Federal and Provincial Appeal Courts — British Columbia Court of Appeal, Alberta Court of Appeal, Quebec Court of Appeal, Ontario Court of Appeal, Ontario Divisional Court, New Brunswick Court of Appeal, and Federal Court of Appeal

1. Jiang v. Peoples Trust Company, 2017 BCCA 119 — appeal from refusal to certify class action alleging unfair practices relating to prepaid payment cards (counsel to Amex Bank of Canada)

2. Bancroft-Snell v. Visa Canada Corporation, 2016 ONCA 896 — approval of fee sharing agreement entered into by two class counsel firms to resolve carriage dispute in multi-jurisdictional class proceeding (counsel to Bank of Montreal)

3. Grant v. Equifax Canada Co., 2016 ONCA 500 — whether statutory limitation periods apply to credit reporting under the Consumer Reporting Act (counsel to Canadian Bankers Association)

4. Imperial Tobacco Canada ltée v. Conseil québécois sur le tabac et la santé, 2015 QCCA 1224 — overturning a $1.13 billion order of provisional execution in two class actions; 2015 QCCA 1204 — confidentiality order for appeal of provisional execution order; 2019 QCCA 358 — class action merits appeal (counsel to Imperial Tobacco Canada Limited)

5. Watson v. Bank of America Corporation et al., 2015 BCCA 362 — appeal from class certification decision involving alleged price-fixing conspiracy for merchant discount fees for Visa and MasterCard credit cards (counsel to Bank of Montreal)

6. Rakuten Kobo Inc. v. Commissioner of Competition, 2015 FCA 149 — scope of the Commissioner of Competition’s power to enter into consent agreements under s. 106(2) of the Competition Act in the context of E-book pricing inquiry (counsel to Simon & Schuster Canada)

7. Chief Mary Simon v. Province of New Brunswick, 2014 CanLII 59594 (N.B.C.A.) — refusing leave to appeal from an injunction application alleging breach of the duty to consult in New Brunswick (counsel to J.D. Irving Limited)

8. Re:Sound v. Fitness Industry Council of Canada, 2014 FCA 48 — judicial review of Copyright Board decision setting tariffs for equitable remuneration for sound recordings under Copyright Act (counsel to Re:Sound)

9. Exchange Corporation Canada Inc. v. Mississauga (City), 2014 ONCA 113 and 2012 ONSC 6221 (Div. Ct.) — liability for municipal realty taxes at Toronto Pearson International Airport (counsel to Greater Toronto Airports Authority)

10. Clear Channel Outdoor Communication Canada v. Municipal Property Assessment Corporation, 2013 ONSC 7014 (Div. Ct.) — liability for municipal realty taxes at Toronto Pearson International Airport (counsel to Greater Toronto Airports Authority)

11. Canada (Minister of National Revenue) v. RBC Life Insurance Company, 2013 FCA 50 — whether requirements issued under s. 231.2(3) of Income Tax Act should be set aside for lack of full and frank disclosure at ex parte hearings (counsel to RBC Life, BMO Life, and Industrial Alliance)

12. Bank of Montreal v. Marcotte, 2012 QCCA 1396 — constitutional applicability of Quebec consumer protection legislation to bank-issued credit cards; 2011 QCCA 1691 — motion by Attorney General of Canada to intervene in appeal (counsel to Bank of Montreal, Amex Bank of Canada, Royal Bank of Canada, Toronto-Dominion Bank, Canadian Imperial Bank of Commerce, Bank of Nova Scotia, National Bank of Canada, Laurentian Bank of Canada, and Citibank Canada)

13. Amex Bank of Canada v. Adams, 2012 QCCA 1394 — constitutional applicability of Quebec consumer protection legislation to bank-issued credit cards (counsel to Amex Bank of Canada)

14. Summitt Energy Management Inc. v. Ontario Energy Board, 2012 ONSC 2753 (Div. Ct.) — legality of summonses to Ontario Energy Board and legal counsel during prosecution of energy marketer (counsel to Ontario Energy Board Staff)

15. Shoppers Drug Mart Inc. v. Ontario (Health and Long-Term Care), 2011 ONCA 830 and 2011 ONSC 615 (Div. Ct.) — legality of banning private label generic drugs by regulation; 2011 ONSC 2323 (Div. Ct.) — costs for judicial review (counsel to Shoppers Drug Mart Inc., Shoppers Drug Mart (London) Limited, and Sanis Health Inc.)

16. Québec (Procureure générale) v. Canada (Procureure générale), 2011 QCCA 591 — Quebec reference to determine constitutionality of proposed federal securities legislation; 2010 QCCA 636 — motion for leave to intervene in Quebec reference (counsel to Canadian Bankers Association)

17. Reference Re Securities Act (Canada), 2011 ABCA 77 — Alberta reference to determine constitutionality of proposed federal securities legislation (counsel to Canadian Bankers Association)

18. Kovacs v. TD Financial Group, 2010 ONSC 6111 (Div. Ct.) — motion for leave to appeal from decision refusing to strike statement of claim (counsel to TD Financial Group)

19. Imperial Tobacco Canada Limited v. Her Majesty the Queen in Right of the Province of New Brunswick, 2010 NBCA 35 — legality of contingency fee agreement entered into by Attorney General of New Brunswick; 2009 CanLII 49293 (N.B.C.A.) — motion for leave to appeal (counsel to Imperial Tobacco Canada Limited)

20. Griffin v. Dell Canada Inc., 2010 ONCA 29 — legality under Ontario Consumer Protection Act of arbitration clause in consumer contact waiving class actions; 2010 ONCA 164 — costs of appeal (counsel to Dell Canada Inc.)

21. MacKinnon v. National Money Mart Company, 2009 BCCA 103 — legality of arbitration agreement prohibiting class actions; 2008 BCCA 292 — motion for leave to appeal (counsel to Dollar Financial Group Inc.)

22. Smith Estate v. National Money Mart Company, 2008 ONCA 746 — whether issue estoppel precludes re-litigation of the question of whether class action should be stayed based on arbitration agreement (counsel to Dollar Financial Group)

23. Ovari v. Isaacs, 2007 ONCA 602 — appeal from dismissal of action for delay (counsel to Greater Toronto Airports Authority)

24. Canada (Attorney General) v. Berrywoods Farms Inc. (2006), 208 O.A.C. 82 (Div. Ct.) — judicial review of municipal decisions impacting location of proposed Pickering Airport (counsel to Greater Toronto Airports Authority)

25. Pearson v. Inco Limited (2005), 78 O.R. (3d) 641 (C.A.) — certification of environmental class action; (2006), 79 O.R. (3d) 427 (C.A.) — factors in awarding costs for certification motion (counsel to Inco Limited)

26. Rezek v. Canada, 2005 FCA 227 — taxation of convertible hedging instruments under the Income Tax Act (counsel to Canadian Bankers Association)

27. Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2004 CanLII 21270 (Ont. C.A.) — interpretation of “hedging” under the Ontario Mining Tax Act (counsel to Placer Dome Inc.)

28. Municipal Property Assessment Corporation v. Mitchison (2004), O.R. (3d) 303 (Div. Ct.) — whether database of property assessment records should be disclosed to collection agency free of charge (counsel to Municipal Property Assessment Corporation)

29. Petro-Canada v. Canada, 2004 FCA 158 — deductibility of seismic data expenses under the Income Tax Act (counsel to Petro-Canada)

30. Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 473 — whether federal Indigenous employment program discriminated against urban and off-reserve Indigenous peoples contrary to s. 15(1) of the Charter; Canada (Attorney General) v. Misquadis, 2003 FCA 370 — Attorney General of Canada’s motion to strike out intervener’s appeal factum (counsel to Congress of Aboriginal Peoples)

31. Sutherland v. Vancouver International Airport Authority, 2002 BCCA 416 — defence of statutory authority for nuisance from noise arising from the operation of Vancouver International Airport; 2003 BCCA 14 — costs relating to appeal; 2002 BCCA 106 — application for leave to intervene in appeal (counsel to Canadian Airports Council)

32. Sudbury (City of) v. Union Gas Ltd. (2001), 54 O.R. (3d) 439 (C.A.) — right of municipality to purchase municipal gas distribution system from utility; (2001), 139 O.A.C. 93 — municipality’s motion for leave to intervene in appeal (counsel to City of Sudbury)

33. Mississauga (City) v. Greater Toronto Airports Authority (2000), 50 O.R. (3d) 641 (C.A.) — whether municipal property development by-laws constitutionally applicable to redevelopment of Toronto Pearson International Airport (counsel to Greater Toronto Airports Authority)

34. Air Canada v. Greater Toronto Airports Authority (2000), 130 O.A.C. 81 (C.A.) — legality of airport fees and charges under the federal Aeronautics Act (counsel to Greater Toronto Airports Authority)

35. Toronto (City) v. Toronto Terminals Railway Co. (1999), 45 O.R. (3d) 481 (C.A.) — jurisdiction of arbitrators to award interest on rent under perpetual lease for Union Station in Toronto; [1998] O.J. No. 2398 (Div. Ct.) (counsel to Toronto Terminals Railway Co.)

36. R. v. Paul (1998), 124 C.C.C. (3d) 1 (N.B.C.A.) — treaty or Aboriginal right to engage in commercial logging on Crown lands in New Brunswick (counsel to J.D. Irving Limited)

37. Perks v. The Queen, [1998] O.J. No. 5266 (C.A.) — legality of Attorney General of Ontario intervening to withdraw a private prosecution against Coca-Cola Beverages Ltd. (counsel to Coca-Cola Beverages Ltd.)

38. Davidson Tisdale Ltd. v. Pendrick (1998), 116 O.A.C. 53 (Div. Ct.) — appeal from motion to stay transnational tort action for lack of jurisdiction and based on forum non conveniens; (1997), 106 O.A.C. 241 (Div. Ct.) — motion for leave to appeal (counsel to Arthur M. Pendrick, Storch, Amini & Munves P.C., Steven C. Storch, Bijan Amini and Russell M. Munves)

39. Ramlall v. International Medical Graduate Program (Ontario), [1998] O.J. No. 4872 (Div. Ct.) — judicial review of retrospective rulemaking by medical licensing body against foreign-trained medical doctor (counsel to Dr. Ramlall)

40. Del Zotto v. Canada, [1997] 3 F.C.R. 40 (C.A.) — constitutionality of Income Tax Act, s. 231.4 (inquiries) (counsel to Herbert B. Noble)

41. Bramalea Ltd. v. Citibank Canada, 1997 CanLII 463 (Ont. C.A.) — right to pursue disputed funds in insolvency (counsel to Ontario Municipal Employees’ Retirement System)

42. Hillier v. Ontario Share and Deposit Insurance Corporation, [1996] O.J. No. 3083 (Div. Ct.) — motion to quash judicial review (counsel to Ontario Share and Deposit Insurance Corporation)

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Federal and Provincial Trial Courts — British Columbia Supreme Court, Alberta Court of Queen's Bench, Saskatchewan Court of Queen's Bench, Ontario Superior Court, Quebec Superior Court, New Brunswick Court of Queen's Bench, Supreme Court of Newfoundland & Labrador (Trial Division), Federal Court, and Tax Court of Canada

1. Coburn and Watson’s Metropolitan Home v. BMO Financial Group, 2019 BCSC 947 — whether privilege waived where inadvertent disclosure of privileged documents (counsel to Bank of Montreal)

2. Gutierrez v. The Watchtower Bible and Tract Society of Canada, 2019 ONSC 3069 — striking out improper affidavits filed in support of class certification; 2019 ONSC 3880 — costs (counsel to Watchtower U.S. entities)

3. Lawyers’ Professional Indemnity Company v. Her Majesty the Queen, 2018 TCC 194 (Tax Court of Canada) — whether Lawyers’ Professional Indemnity Company exempt from income tax under s. 149(1)(d.5) of the Income Tax Act (counsel to LawPRO)

4. Fanshawe v. Sony, 2018 ONSC 2629 — approval of settlement involving alleged price-fixing in connection with optical disk drives in computers; 2013 ONSC 1477 — motion to add new defendants to class action after expiry of limitation periods (counsel to NEC Corporation and NEC Canada)

5. Godfrey v. Sony Corporation, 2018 BCSC 924 — approving certification and settlement of price-fixing class action (counsel to NEC Corporation and NEC Canada Inc.)

6. Sekhon v. Royal Bank of Canada et al., 2017 BCSC 497 — refusing class certification alleging unfair practices relating to marketing of credit balance protection insurance on credit cards (counsel to Bank of Montreal)

7. Canada (National Revenue) v. KPMG LLP, 2016 FC 1322 — challenge to ex parte requirement issued under s. 231.2(3) of the Income Tax Act (counsel to KPMG LLP)

8. Coburn and Watson’s Metropolitan Home v. Bank of America Corporation, 2016 BCSC 2021 — propriety of amendment to pleading to allege price-fixing conspiracy (counsel to Bank of Montreal)

9. Jiang v. Peoples Trust Company, 2016 BCSC 368 — refusing certification of class action alleging pre-paid payment cards violate the B.C. Business Practices and Consumer Protection Act (counsel to Amex Bank of Canada)

10. Godfrey v. Sony Corporation, 2016 BCSC 844 — certification of international price-fixing conspiracy class action involving optical disk drive products; 2018 BCSC 924 — approval of settlement (counsel to NEC Corporation and NEC Canada Inc.)

11. Bancroft-Snell v. Visa Canada Corporation, 2016 ONSC 3635 — certification for settlement purposes of price-fixing conspiracy class action and approval of counsel fees; 2014 ONSC 5772 — approval of partial settlement (counsel to Bank of Montreal)

12. Hello Baby Equipment Inc v. B of A Canada Bank, 2015 SKQB 410 — certification for settlement purposes of price-fixing conspiracy class action (counsel to Bank of Montreal)

13. Watson v. Bank of America Corporation, 2014 BCSC 532 — certification of class action alleging price-fixing conspiracy in setting interchange rates on Visa and MasterCard credit cards; 2012 BCSC 146 — motion to strike civil claim in advance of certification (counsel to Bank of Montreal)

14. Canada (Minister of National Revenue) v. RBC Life Insurance Company, 2011 FC 1249 — whether requirements issued under s. 231.2(3) of Income Tax Act should be set aside for lack of full and frank disclosure at ex parte hearings (counsel to RBC Life Insurance Company, BMO Life Insurance Company, and Industrial Alliance Pacific Insurance and Financial Services Inc.)

15. Nunatukavut Community Council Inc. v. Newfoundland and Labrador Hydro-Electric Corporation (Nalcor Energy), 2011 NLTD 44 — alleged breach of duty to consult during development of Lower Churchill River hydroelectrical project (counsel to Newfoundland and Labrador Hydro-Electrical Corporation (Nalcor Energy) and Energy Corporation of Newfoundland and Labrador)

16. Kovacs v. TD Bank Financial Group, 2010 ONSC 3469 — motion to strike statement of claim (counsel to TD Bank Financial Group)

17. Griffin v. Dell Canada Inc., 2009 CanLII 18222 (ON SC) — legality under Ontario Consumer Protection Act of arbitration clause in consumer contact waiving class actions; 2010 ONSC 2384 — scope of class in product liability class action; 2010 ONSC 2560 — whether to publish notice of certification pending application for leave to appeal to Supreme Court of Canada; 2011 ONSC 3292 — motion for settlement and counsel fee approval

18. Tetefsky v. General Motors Corp., 2010 ONSC 1675 — whether to order disclosure of proprietary information in class action alleging price of motor vehicles unreasonably enhanced (counsel to General Motors)

19. New Brunswick v. Rothmans Inc., 2009 NBQB 198 — legality of contingency fee agreement entered into by Attorney General of New Brunswick; 2009 NBQB 60 — admissibility of expert evidence in constitutional challenge (counsel to Imperial Tobacco Canada Limited)

20. Marcotte v. Banque de Montréal, 2009 QCCS 2764 — constitutional applicability of Quebec consumer protection legislation to bank-issued credit cards (counsel to Amex Bank of Canada)

21. Adams v. Amex Bank of Canada, 2009 QCCS 2695 — constitutional applicability of Quebec consumer protection legislation to bank-issued credit cards (counsel to Amex Bank of Canada)

22. Smith v. National Money Mart, 2008 CanLII 27479 (ON SC) — whether class action should be stayed based on arbitration agreement and whether the issue can be relitigated based on change in the law; 2010 ONSC 1334 — court approval of settlement (counsel to Dollar Financial Group Inc.)

23. MacKinnon v. National Money Mart Company, 2008 BCSC 710 — whether class action should be stayed based on arbitration agreement and whether the issue can be relitigated based on change in the law (counsel to Dollar Financial Group Inc.)

24. Canada (Minister of National Revenue) v. Welton Parent, 2006 FC 67 — whether requirement issued under s. 231.2(3) of Income Tax Act should be set aside for lack of full and frank disclosure at ex parte hearing and for intruding on solicitor-client privilege (counsel to Welton Parent)

25. Airport Limousine Drivers Association v. Greater Toronto Airports Authority, 2005 CanLII 29654 (ON SC) — injunction in relation to request for proposals for new limousine licences at Toronto Pearson International Airport (counsel to Greater Toronto Airports Authority)

26. Petro-Canada v. Canada (Attorney General), 2004 FC 1478 — Syncrude remission order under the Income Tax Act (counsel to Petro-Canada)

27. Charette v. Honeywell, 2003 FC 1051 — alleged refusal to deal under the Competition Act (counsel to Honeywell)

28. 1124980 Ontario Inc. v. Liberty Mutual Insurance Co. and Inco Limited (2002), 33 B.L.R. (3d) 206 (Ont. S.C.J.) — assignability of drug benefits under employee group benefit plans (counsel to Liberty Mutual Insurance Co. and Inco Limited)

29. Risorto v. State Farm Mutual Automobile Insurance Co. (2002), 60 O.R. (3d) 730 (S.C.J.) — motion to dismiss auto repair class action based on expiry of limitation period; (2003), 64 O.R. (3d) 135 (S.C.J.) — costs (counsel to State Farm Automobile Insurance Co.)

30. Sudbury (City of) v. Union Gas Ltd. (2000), 47 O.R. (3d) 654 (S.C.J.) — right of municipality to purchase municipal gas distribution system from utility (counsel to City of Sudbury)

31. Greater Toronto Airports Authority v. Air Canada, [1999] O.J. No. 2352 (S.C.J.) — challenge to Air Canada’s tenancy in Terminal 2 at Toronto Pearson International Airport (counsel to Greater Toronto Airports Authority)

32. Janover v. Janover, [1999] O.J. No. 2389 (Gen. Div.) — solicitor-client costs (counsel to Janover)

33. Greater Toronto Airports Authority v. Mississauga (City) (1999), 43 O.R. (3d) 9 (Gen. Div.) — whether municipal property development by-laws constitutionally applicable to redevelopment of Toronto Pearson International Airport (counsel to Greater Toronto Airports Authority)

34. Canada and The Kingdom of the Netherlands v. Vonk Dairy Products B.V. (1998), 58 O.T.C. 290 (Gen. Div.) — whether international criminal assistance treaties incorporated into domestic law under the Mutual Legal Assistance in Criminal Matters Act (counsel to Vonk Dairy Products B.V.)

35. Cash Converters Pty. Ltd. v. Armstrong, [1997] O.J. No. 2659 (Gen. Div.) — commercial injunction (counsel to Cash Converters)

36. Bank of Montreal v. Citak (1997), 50 C.B.R. (3d) 270 (Ont. Gen. Div.) — motion to strike jury notice in commercial claim involving receivership (counsel to Bank of Montreal)

37. Davidson Tisdale v. Pendrick (1997), 10 C.P.C. (4th) 336 (Ont. Gen. Div.) — motion to stay transnational tort action for lack of jurisdiction and based on forum non conveniens (counsel to Arthur M. Pendrick, Storch, Amini & Munves P.C., Steven C. Storch, Bijan Amini and Russell M. Munves)

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Federal and Provincial Administrative Tribunals — Competition Tribunal, Financial Services Tribunal, Ontario Energy Board, Licence Appeal Tribunal (Ontario), Health Professions Appeal and Review Board (Ontario), Ontario Rental Housing Tribunal, and Board of Inquiry under Ontario Human Rights Code

1. Rakuten Kobo Inc. v. The Commissioner of Competition, 2016 CACT 11 —whether consent agreement reached with Commissioner of Competition in relation to pricing of E-books must be set aside for non-compliance with the Competition Act; 2015 Comp. Trib. 14 — lifting stay of proceedings before the Tribunal pending application for leave to appeal to Supreme Court of Canada; 2014 Comp. Trib. 8 — reference determining scope of Commissioner of Competition’s power to enter a consent agreement (counsel to Simon & Schuster)

2. Stargrove Entertainment Inc. v. Universal Music Publishing Group Canada, 2015 Comp. Trib. 26 — leave to commence private application to the Competition Tribunal under ss. 75-77 of the Competition Act (counsel to Sony/ATV Music Publishing Canada Co. and Sony Music Entertainment Canada Inc.)

3. The Commissioner of Competition v. Visa Canada Corporation and MasterCard International Incorporated, 2013 Comp. Trib. 10 — whether network rules on Visa and MasterCard credit cards involve “price maintenance” under the Competition Act; 2011 Comp. Trib. 2 — motion for leave to intervene in Commissioner’s application (counsel to Canadian Bankers Association)

4. In the matter of a motion by the Consumers Council of Canada in relation to s. 26.1 of the Ontario Energy Board Act, 1998 and Ontario Regulation 66/10, EB-2010-0184 — responding to constitutional challenge on federalism grounds to Ontario’s green energy assessments under the Ontario Energy Board Act (counsel to Ontario Energy Board Staff)

5. Imperial Oil Limited v. Ontario (Superintendent Financial Services), 2009 ONFST 33 — rights of pension plan members on partial wind-up of pension plan (counsel to Imperial Oil Limited)

6. Re Moranis, [2007] O.L.A.T.D. No. 378 — disclosure order involving real estate licensee (counsel to Moranis)

7. Sutton v. Ontario (Superintendent Financial Services), 2005 ONFST 3 — application for wind-up of pension plan; 2005 ONFST 1 — disclosure application (counsel to AIG Assurance Canada)

8. Construx Engineering Corporation v. General Motors of Canada, 2005 Comp. Trib. 21 — alleged refusal to deal and market restriction under the Competition Act (counsel to General Motors of Canada)

9. In the matter of Skylan Investments Inc., Ontario Rental Housing Tribunal, File Number TSL-03885, May 1999 — whether above-guideline rent increase for capital expenditures allowable (counsel to tenants)

10. Director of Investigation and Research v. Warner Music Canada Ltd., 1997 CanLII 3725 (C.T.) — jurisdiction of Competition Tribunal to order compulsory copyright licenses in respect of master sound recordings for alleged refusal to deal (counsel to Warner Music Canada Ltd.)

11. Anonuevo v. General Motors of Canada Ltd., [1997] O.H.R.B.I.D. No. 22, 97-022-I (Board of Inquiry (Human Rights Code)) — disclosure in human rights complaint (counsel to General Motors of Canada Ltd.)

List all publications, including online and opinion editorials, with dates and citations or links, if available:

Publications that I have authored or co-authored have been cited by the Supreme Court of Canada, Federal Court, Alberta Court of Appeal, Saskatchewan Court of Queen's Bench, Manitoba Court of Appeal, Court of Quebec, Quebec Superior Court, Quebec Court of Appeal, New Brunswick Court of Queen’s Bench, New Brunswick Court of Appeal, the Newfoundland and Labrador Court of Appeal, and by several administrative tribunals.

My publications have also been cited in academic and professional publications by judges, lawyers, and academics, in Canada, the United States, the United Kingdom, Australia, and New Zealand.

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Book:

The Charter of Rights in Litigation: Direction from the Supreme Court of Canada (co-author with Matthew Taylor (now Hon. Justice Matthew Taylor of the B.C. Supreme Court), 2 volume loose-leaf service analyzing Supreme Court of Canada’s Charter decisions (updated twice annually, 2001-June 2019) — cited in R v. Douglas, 2012 SKQB 250, para. 63; Air Canada Pilots Association v. Kelly, 2011 FC 120, para. 300; Manitoba Métis Federation Inc. v. Canada (Attorney General) et al., 2010 MBCA 71, para. 367; Aaron Broad v. Woodstock (Town), 2010 NBQB 295, para. 49; R. v. Creekside Hideaway Motel Ltd. et al., 2008 MBCA 28, para. 18; Hon. Frank Iacobucci, “The Supreme Court of Canada: Its History, Powers and Responsibilities” (2002) 4 Journal of Appellate Practice and Process 27; B. Darby, “Amending Authors and Constitutional Discourse” (2002) 25 Dalhousie Law Journal 215; P.-A. Côté, “Bilingual Interpretation of Enactments in Canada: Principles v. Practice” (2004) Brooklyn Journal of International Law 1067; G. Kennedy, "Persisting Uncertainties in Appellate Jurisdiction at the Supreme Court of Canada" (2013) 100 Criminal Reports (6th) 97; and G. Kennedy, “Tanudjala v. v. Canada (Attorney General): Distinguishing Injusticiability and Deference on Motions to Strike” (2015) Advocates’ Quarterly 391

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Law journal articles and book chapters:

1. “Chief Justice McLachlin and the Division of Powers” (2019) 88 Supreme Court Law Review, pp. 341-349

2. “The Mechanical Side of Preparing for Oral Argument Before the Supreme Court of Canada”, The Advocates’ Journal, spring 2018, pp. 6-13

3. “Federalism and National Infrastructure”, in Law Society of Upper Canada Special Lectures, 2017 (Irwin Law: 2018), pp. 147-162

4. “Constitutional Issues in Canadian Competition Litigation” (co-author with W. David Rankin), in Litigating Competition Law in Canada (LexisNexis: 2018), edited by Nikiforos Iatrou, pp. 49-81

5. “Dissents and Concurrences: Seven Debates in Charter Jurisprudence” (co-author with W. David Rankin), (2013) 63 Supreme Court Law Review (2d) 89-111

— cited in Peter W. Hogg and R. Amarnath, “Why Judges Should Dissent” (2017) 67 University of Toronto Law Journal 126; J. Cameron, “Law, Politics and Legacy Building at the McLachlin Court in 2014” (2015) 71 Supreme Court Law Review (2d) 3; and J. Cameron, “The McLachlin Court and the Charter in 2012” (2013) 63 Supreme Court Law Review (2d) 15

6. “Reference re Securities Act: Comment on Lee and Schneiderman”, pp. 95-101, in What’s Next for Canada? Securities Regulation After the Reference (Irwin Law: 2012), edited by Anita Anand

— cited in Wade K. Wright, "Canadian Federalism's Underlying Question: What It Is and Why It Matters" (2020) 53 University of British Columbia Law Review 531

7. “The Future of Freedom of Religion After Alberta v. Hutterian Brethren”, in Act For Freedom, Canadian Civil Liberties Association (March 2010)

8. “Recent Developments in Freedom of Religion” (2009) 27 National Journal of Constitutional Law 253-261

— cited in S. Choudhry, “Rights Adjudication in a Plurinational State: the Supreme Court of Canada, Freedom of Religion, and the Politics of Reasonable Accommodation” (2013) 50 Osgoode Hall Law Journal 575

9. « Le secret professionnel de l'avocat: ce que tout avocat doit savoir selon la Cour suprême du Canada », in Service de la formation continue, Barreau du Québec, Développements récents en déontologie, droit professionnel et disciplinaire, Cowansville, Éditions Yvon Blais, 2008, pp. 199-238 (co-author with Sylvain Lussier (now Hon. Justice Sylvain Lussier of the Quebec Superior Court))

— cited in Dentistes (Ordre professional des) c. Cyr, 2020 QCCDODQ 8, para. 61; Schenker du Canada ltée c. Groupe Intersand Canada inc., 2012 QCCA 171, para. 31; Spieser c. Canada (Procureur général), 2010 QCCS 3248, para. 24; Bombardier inc. c. Union Carbide Canada inc., 2010 QCCS 6780, para. 8; and Franchises Le Bifthèque inc. c. 2532-6976 Québec inc., 2010 QCCS 4552 (CanLII), para. 52

10. “Recovering Unlawful Taxes After Kingstreet Investments”, in Unjust Enrichment: Emerging Jurisprudence, ed. G. Radhika (2008), pp. 181-195

11. “Non-Charter Constitutional Law Developments, 2007-2008” (2008) 25 National Journal of Constitutional Law 59-69

12. “Everything Else: Non-Charter Constitutional Developments, 2006-2007” (2007) 23 National Journal of Constitutional Law 21-43

13. “Freedom of Religion in the Supreme Court: Some Lessons from Multani” (2006) 21 National Journal of Constitutional Law 291-312

— cited in N. Des Rosiers, “Freedom of Religion at the Supreme Court in 2009: Multiculturalism at the Crossroads” (2010) 51 Supreme Court Law Review (2d) 73; M.H. Ogilvie, “Freedom of Religion in Canada and the United Kingdom: A Hopeful Beginning for a Fruitful Dialogue” (2009) 48 Supreme Court Law Review (2d) 409; F. Astengo, « Liberté de religion ou égalité entre les sexes? La cour Suprême du Canada se prononce sur un cas de divorce » (2009) 39 Revue de Droit, Université de Sherbrooke 507; R. Kaur Dhamoon, “Exclusion and Regulated Inclusion: The case of the Sikh kirpan in Canada” (2013) 9 Sikh Formations 7; R. Moon, “Freedom of Conscience and Religion” (2013) 61 Supreme Court Law Review (2d) 339; and R. Kaya, "Reasonable Accommodation for Age" (2020) 33 Canadian Journal of Law and Jurisprudence 115

14. “Is PIPEDA Constitutional?” (2006) 43 Canadian Business Law Journal 434-454

— cited in A. Greenberg, “Inside the Mind’s Eye: An International Perspective on Data Privacy Law in the Age of Brain-Machine Interfaces” (2019) 29 Albany Law Journal of Science & Technology 79; J.D. Perry, “Section Eight, PIPEDA, and the Problem of Shifting Norms” (2017) 16 Washington University Global Studies Law Review 513; A. Iwobi, “Stumbling Uncertainty into the Digital Age: Nigeria’s Futile Attempts to Devise a Credible Data Protection Regime” (2016) 26 Transnational Law & Contemporary Problems 13; E.S. Dove, L. Black, D. Avard & B.M. Knoppers, “Charting the Privacy Landscape in Canadian Pediatric Biobanks (2013) 20 Health Law Journal (Canada) 1; and J. Ziegel, “Canadian Consumer Law and Policies 40 Years Later: A Mixed Report Card” (2011) 50 Canadian Business Law Journal 259

15. “Treaty Interpretation After Marshall and Bernard” (2006) 34 Supreme Court Law Review (2d) 443-463

— cited in B. Parenteau, “Looking Backward, Looking Ahead: History and Future of the New Brunswick Forest Industries” (2013) Acadiensis 92; and G. Hostetler, “Conceptualizing natural resource and environmental management as deliberative democratic practice: land use planning on the east side of Lake Winnipeg, Manitoba, 2000-2013” (2018) (Ph.D. thesis, University of Manitoba)

16. “Recent Developments In Section 1 of the Charter: N.A.P.E. and Orbanksi; Elias” (2006) 19 National Journal of Constitutional Law 141-154

17. “The Misquadis Case”, in Legal Aspects of Aboriginal Business Development, edited by J.E. Magnet and D.A. Dorey (Butterworths, 2005), chapter 7, pp. 123-136

18. “Legislative Facts in Charter Litigation: Where Are We Now?” (2004) 17 National Journal of Constitutional Law 1-18

— cited in Peter W. Hogg, Constitutional Law of Canada (5th ed.), s. 60.2; Justice R.G. Richards, “Some Thoughts on Appellate Advocacy in Constitutional Cases” (2006) 34 Supreme Court Law Review (2d) 19; Corporation d’urgences-santé c. Syndicat du préhospitalier FSSS-CSN, 2016 CanLII 5542 (QC SAT), para. 49; B. Keith, “Seeing the World: Understanding the Citation of External Sources in Judicial Reasoning” (2008) 6 New Zealand Journal of Public and International Law 95; E. Macfarlane, The Supreme Court of Canada and the Judicial Role: An Historical Institutionalist Account (2009, Ph.D. thesis); C. Tran, “Facts and Evidence in Litigation under the Charter of Human Rights and Responsibilities Act 2009 (VIC) and the Human Rights Act 2004 (ACT)” (2012) Melbourne University Law Review 287; E. Macfarlane, Governing from the Bench: The Supreme Court of Canada and the judicial role (2012); M. Da Silva, “Trial Level References: In Defence of a New Presumption” (2012) 2 Western Journal of Legal Studies 1; J.A. King, “Constitutional Rights and Social Welfare: A Comment on the Canadian Chaoulli Decision (2006) 69 Modern Law Review 631; E. Macfarlane, “The Dilemma of Positive Rights: Access to Health Care and the Canadian Charter of Rights and Freedoms” (2014) Journal of Canadian Studies 49; R. Agarwal and F. Lalani, "Noting the Obvious: A Reflection on the Supreme Court of Canada's Application of Judicial Notice under Sections 7 and 15 of the Charter" (2016) 35 National Journal of Constitutional Law 131; E. Macfarlane, "Positive Rights and Section 15 of the Charter: Addressing a Dilemma" (2018) 38 National Journal of Constitutional Law 147; and P. Sankoff, The Law of Witnesses and Evidence in Canada (2020), s. 3.6(c)

19. “Constitutional Issues in Canadian Competition Litigation” (2004), 41 Canadian Business Law Journal 66-102

— cited in Peter W. Hogg, Constitutional Law of Canada (5th ed.), ss. 18.13, 48.5; R. Rajabiun, “Private Enforcement and Judicial Discretion in the Evolution of Antitrust in the United States” (2012) 8 Journal of Competition Law and Economics 187; K. Thomson, C. Tingley and A. Banicevic, “Truncated Disclosure in Competition Tribunal Proceedings in the Aftermath of Canada Pipe: An Experiment Gone Wrong” (2006) 31 Advocates’ Quarterly 67; and J.A.L. Palumbo, “Striking the Right Balance Between Fairness, Efficiency and Expediency: The Competition Tribunal Revisits its Rules of Practice and Procedure” (2007) 32 Advocates’ Quarterly 437

20. “The Constitutionalization of Solicitor-Client Privilege” (2003), 20 Supreme Court Law Review (2d) 213-247 (co-author with Brian Morgan)

— cited in Peter W. Hogg, Constitutional Law of Canada (5th ed.), s. 48.7; A.M. Dodek, “Canadian Legal Ethics: Ready for the Twenty-First Century at Last” (2008) 46 Osgoode Hall Law Journal 1; A.M. Dodek, “Reconceiving Solicitor-Client Privilege” (2010) 35 Queen’s Law Journal 493; P.D. Paton, “Accountants, Privilege, and the Problem of Working Papers” (2005) 28 Dalhousie Law Journal 353; P.J. Monahan and N. Blum, “Constitutional Cases 2002: An Overview” (2003) 20 Supreme Court Law Review (2d) 6; N.R. Hasan, “Three Theories of ‘Principles of Fundamental Justice’” (2013) 63 Supreme Court Law Review (2d) 339; J. Milani, “Solicitor-Client Privilege and Income Tax Act Seizures: A Comment on Canada (Attorney General) v. Chambre des notaires du Québec” (2017) 80 Saskatchewan Law Review 421; L. Naidoo, "Supreme Court Affirms Quasi-Constitutional Status to Solicitor-Client Privilege: Alberta (Information and Privacy Commissioner) v. University of Calgary" (2017) Canadian Journal of Administrative Law and Practice 297; R. Bromwich, “(Where is) the Tipping Point for Governmental Regulation of Canadian Lawyers? Perhaps it is in Paradise: Critically Assessing Regulation of Lawyer Involvement with Money Laundering after Canada (Attorney General) v. Federation of Law Societies of Canada (2018) 41 Manitoba Law Journal 1; A. Salyzyn, “Another One Bites the Dust! Bolstered Law Offices and a Blocked Taxman in Chambre des notaires du Québec” (2017) 81 Supreme Court Law Review (2d) 173; J. Cameron, “Of Scandals, Sources and Secrets: Investigative Reporting, National Post and Globe and Mail” (2011) 54 Supreme Court Law Review (2d) 233; Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario (4th ed., 2020), 7.280; and S. Casey Hill, David M. Tanovich, and Louis P. Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., s. 13:20.70.30

21. “Class Actions and Aboriginal Litigation”, in Aboriginal Rights Litigation (2003), edited by J.E. Magnet and D.A. Dorey (Butterworths, 2003), chapter 9, pp. 293- 320 (co-author with Derek Bell)

— cited in Soldier v. Canada (Attorney General), 2009 MBCA 12, para. 58

22. “The Supreme Court’s New Structural-Functional Approach To Remedial Jurisdiction Under Section 24 Of The Charter”, pp. 309-320, in The Charter at Twenty, edited by D.M. McAllister & A.M. Dodek (2002)

— cited in L. Sossin, “Developments in Administrative Law: The 2003-2004 Term” (2004) 26 Supreme Court Law Review (2d) 31

23. “Selective Legality: The Common Law Jurisdictional Appeal” (1994) 73 Canadian Bar Review 142 (co-author with Professor H. Patrick Glenn)

— cited in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, p. 901; R. c. Lamontagne, 1994 CanLII 6295 (QC CA); Rich v. Newfoundland (Attorney General), 1995 CanLII 9868 (NL CA), para. 39; R. v. Westmorland Fisheries Ltd., 1996 CanLII 4874 (NB CA), p. 3; Canada (Ministère du Revenu national) c. Crédit Ford du Canada ltée, 1996 CanLII 5783 (QC CA); Vysek v. Nova Gas International Ltd., 2002 ABCA 112, para. 16; and R. c. Chaput, 2005 CanLII 21698 (QC CQ), para. 73; Paul M. Perell and John W. Morden, The Law of Civil Procedure in Ontario (4th ed., 2020), 12.13; E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, 2nd ed., ss. 23:0040, 31:21010; Holmested and Watson, Ontario Civil Procedure, r. 62§7[1]; H. Patrick Glenn, “The Common Law in Canada” (1995) 74 Canadian Bar Review 261; H. Patrick Glenn, « La Cour suprême du Canada et la tradition du droit civil » (2001) Canadian Bar Review 151; and A. Braën, « Collégialité et juge unique » (2011) 41 Revue générale de droit 295

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Unpublished Conference Papers:

1. “The Supreme Court of Canada and Solicitor-Client Privilege: What Every Practitioner Needs to Know” (updated), Law Society Tribunal, Toronto (April 24, 2019); Emerging Trends for Corporate Counsel, Association of Corporate Counsel, Toronto (June 19, 2014) (updated); Canadian Bar Association, Prince Edward Island Branch, Charlottetown (June 17, 2011) (updated); Canadian Bar Association (webcast) (February 28, 2007) (updated); Canadian Bar Association (webcast) (November 29, 2006)

2. “The ‘Mechanical Side’ of Preparing for Oral Argument Before the Supreme Court of Canada” (longer version of published paper), Advocates’ Society (October 20, 2017)

3. “Charter Damages: A Primer”, Law Society of Upper Canada (March 27, 2012)

4. “Some Recent Developments in Solicitor-Client Privilege in Canada”, Advocates’ Society Spring Symposium (May 5, 2012)

5. “‘Secret Evidence’ and s. 38 of the Canada Evidence Act: Ensuring the Constitution is Not a Suicide Pact”, National Judicial Institute, the Federal Court of Appeal and Federal Court: Conference to Commemorate 40th Anniversary of the Federal Court of Canada (October 27 and 28, 2011)

6. “The Future of Law” (longer version of published paper), Meredith Memorial Lectures, Faculty of Law, McGill University (fall 2009)

7. “Recovering Unlawful Taxes and Other Suits Against Government for Unjust Enrichment: Recent Guidance from the Supreme Court of Canada”, Osgoode’s Third Conference on Crown Liability, Toronto (November 30, 2006)

8. “Class Actions and Arbitration”, 36th Annual Workshop on Consumer and Commercial Law, University of Toronto Law School, Banff (October 28, 2006); and 7th Annual Litigating Class Actions conference, Canadian Institute, Toronto (September 26, 2006)

9. “In-House Counsel and Solicitor-Client Privilege”, Panel on “Pragmatic Practices for Protecting Privilege,” Association of Corporate Counsel, San Diego (October 23, 2006) (updated); American Bar Association International Law Section, Spring Meeting, New York (April 7, 2006) (updated); Ontario Bar Association Corporate Counsel Section, Toronto (December 7, 2005) (updated); Canadian Corporate Counsel Association, Toronto (May 5, 2004)

10. “How to Sue Government in Unjust Enrichment: Recent Guidance from the Supreme Court of Canada”, Osgoode Hall, Crown Liability Conference, Toronto (November 15, 2005)

11. “How to Sue Government: Recent Developments in Damages for Bad Faith Decision-Making and Restitution”, Osgoode Hall, Crown Liability Conference, Toronto (April 21, 2005)

— cited in H. Wruck, “The Continuing Evolution of the Tort of Misfeasance in Public Office” (2008) 41 University of British Columbia Law Review 69

12. “Recent Developments in Section 7 of the Charter”, Canadian Institute, National Forum on Constitutional Litigation in Civil Matters, Toronto (June 18, 2004)

13. “Administrative Tribunals and the Constitution: The Supreme Court’s Decision in Nova Scotia (Workers’ Compensation Board) v. Martin”, Ontario Bar Association, The Constitution in Your Administrative Law Practice, Toronto (March 2, 2004)

— cited in D. Mullan, “The Charter and Administrative Decision-Making” (2004), Canadian Institute for the Administration of Justice; and L. Sossin, “Developments in Administrative Law: The 2003-2004 Term” (2004) 26 Supreme Court Law Review (2d) 31

14. “Constitutional Remedies: Some Recent Developments”, Ontario Bar Association, 2nd Annual Charter Conference, Toronto (October 9, 2003)

15. “Recent Developments in the Division of Powers”, Canadian Institute, National Forum on Constitutional Litigation in Civil Matters, Toronto (June 2, 2003)

16. “Legislative Facts”, Association of Canadian Studies, 20th Anniversary of the Charter, Ottawa (April 2002)

17. “Appellate Deference to Class Certification Rulings” (co-author), First National Class Actions Symposium, Toronto (April 2001)

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“Osler Updates” (short publications directed at clients):

1. “Canadian Competition Law: Your Top Ten Compliance Questions for 2010” (February 2010)

2. “Attorney-Client Privilege: A Constitutional Right in Canada” (June 2007)

3. “Tax Privilege Under Pressure: Need for Increasing Care” (winter 2005)

4. “Canada’s Public Medicare System Goes to the Supreme Court” (October 2003)

5. “The Revival of the Canadian Bill of Rights” (May 2003)

6. “Good and Bad News for Business from Canada’s Supreme Court” (March 2003)

7. “Supreme Court’s Tax Decision: Major Impact for Investigations Under Canada’s Competition Act” (January 2003)

8. “Tax Audits and Criminal Investigations: The Supreme Court Lays Down New Rules” (December 2002)

9. “Competition Act Changes Open Door to More Franchise Litigation” (December 2002)

10. “Canada’s Supreme Court Puts the ‘Client’ Back Into ‘Solicitor-Client’ Privilege” (September 2002)

11. “Competition Act Changes Improve Access to Tribunal” (August 2002)

12. “Unwritten Constitutional Principles” (April 2002)

13. “Ownership of Leasehold Improvements” (April 2002)

14. “Privacy of Business Information in the Regulatory Context” (March 2002)

15. “Municipalities Are ‘Trustees of the Environment’, Supreme Court Rules” (June 2001)

16. “Bre-X Decision Expands Class Action Certification in Ontario” (November 2000)

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Lawyers Weekly articles:

1. “Balance of federalism shifts to give provinces more power” (Aug. 2007) 27 Lawyers Wkly. No. 15, 8

2. “Spence offers helpful guidance in proving constitutional facts” (Aug. 2006) 26 Lawyers Wkly. No. 15

3. “Competition Act changes improve access to tribunal” (Aug. 2002) 22 Lawyers Wkly. No. 15, 15

List all presentations that you have given over the past 10 years (that are not included under Teaching and Continuing Education; e.g presentations to members of the public, etc.):

SKILLS ASSESSMENT

1-List and forward, in separate e-mails for each document, five decisions, legal documents (factums, etc.) or publications that you have written that demonstrate your analytical skills, your ability to resolve complex legal problems and your excellence in legal writing. Provide, below, a synopsis of no more than 300 words for each decision/document/publication and explain your reason for selecting it.

Synopsis 1:

Duffy v. Canada (Senate), 2020 ONCA 536, 151 O.R. (3d) 489, application for leave to appeal to Supreme Court of Canada dismissed, [2020] S.C.C.A. No. 335

This decision in a constitutional case concerned the parliamentary privilege of the Senate of Canada. The issue was whether Senator Michael Duffy could sue the Senate for how it investigated, prosecuted, and suspended him for claiming allegedly inappropriate expenses and accepting funds from the Prime Minister’s Chief of Staff. The claim was dismissed for want of jurisdiction by the Ontario Superior Court and Court of Appeal. The Court of Appeal upheld the decision of the Ontario Superior Court ruling that Senator Duffy’s allegations fell within established categories of the Senate’s parliamentary privilege to discipline its members and administer internal affairs and over parliamentary proceedings and freedom of speech. The allegations could therefore be adjudicated only by the Senate.

My reasons explore the origin, sources, and rationale of parliamentary privilege in Canadian constitutional law and its role in the separation of powers. They also address the different constitutional foundations of parliamentary privilege at the federal and provincial levels, several established categories of parliamentary privilege, when an allegation of criminal conduct falls within parliamentary privilege, and the relationship between parliamentary privilege and the rule of law.

I selected this decision because it is an example of how I try to write in a clear and accessible way in a complex constitutional case of public interest. The reasons drew on my experience in litigating public law questions and show how I approach a foundational but rarely litigated question of Canadian constitutional law.

Synopsis 2:

R. v. Thompson, 2020 ONCA 264, 457 C.R.R. (2d) 35, 62 C.R. (7th) 286

This decision in a criminal case considered whether the accused, a black Canadian, was arbitrarily detained by police who parked two police cruisers behind his car in a parking lot in Brampton, boxing him in. The police had no basis to suspect wrongdoing. The police then approached the accused’s car, smelled burnt marijuana from a car window, and saw a marijuana roach on the center console. They arrested the occupants, searched the car incident to arrest, and discovered cash and other drugs. About 21 minutes after having parked the car behind the accused, the police advised him of his right to counsel.

The trial judge had found a “fairly serious” breach of the right to retain and instruct counsel without delay under s. 10(b) of the Charter, reflecting a chronic problem with the relevant police force, but no breach of the right against arbitrary detention under s. 9 of the Charter. The trial judge admitted the evidence under s. 24(2) and convicted the accused. This decision was reversed on appeal.

My reasons applied the Supreme Court of Canada’s objective approach to psychological detention under s. 9 of the Charter, which includes consideration of how a racialized Canadian would experience the encounter. I concluded that the accused was arbitrarily detained contrary to s. 9 when the police boxed in his car. I also agreed with the trial judge that there was a serious breach of s. 10(b). I concluded that the evidence should have been excluded under s. 24(2).

I selected this decision as an example of how I approach the process of Charter analysis in a criminal case. I hope the reasons show sensitivity to the role of race in evaluating whether an individual is detained under s. 9 of the Charter consistent with the Supreme Court of Canada’s jurisprudence.

Synopsis 3:

Toronto Standard Condominium Corporation No. 1628 v. Toronto Standard Condominium Corporation No. 1636, 2020 ONCA 612 (on behalf of a 5-judge panel)

This decision on a motion to quash an appeal for want of jurisdiction was heard by a five-judge panel because the Court was asked to overrule one of its own decisions based on a recent decision of the Supreme Court of Canada. The motion involved the interpretation of s. 7(6) of the Ontario Arbitration Act, which provides that “There is no appeal from the court’s decision”. The Court of Appeal had to decide whether this provision barred an appeal from the decision of a motion judge, who had refused to enforce an arbitration agreement and refer the dispute to arbitration because only some claims in the dispute were arbitrable. The Court held that s. 7(6) did not bar the appeal and dismissed the motion to quash.

My reasons applied a textual, contextual, and purposive interpretation of the Arbitration Act and reviewed 20 years of the Court of Appeal’s jurisprudence, decisions of the Supreme Court of Canada, appellate case law from Manitoba, New Brunswick, and Alberta, and academic commentary.

I selected this decision because it was written on behalf of a 5-judge panel of the Court. Writing for and achieving consensus with four other colleagues is harder than doing so with two. I believe this can be achieved by grounding a decision in precedent and first principles, by listening respectfully and with an open mind to the views of one’s colleagues, and by trying to respond to their perspectives fairly and persuasively.

Synopsis 4:

L.M. v. Children’s Aid Society of Region of Peel, 2019 ONCA 841, 149 O.R. (3d) 18, 33 R.F.L. (8th) 288

This decision addressed the use of summary judgment in child protection proceedings. At issue was whether children should be placed in the extended care of a Children’s Aid Society and whether a birth mother should be given access to her children in such care. The Court of Appeal held that the lower court had applied a predecessor statutory regime that had since been amended. Applying the correct legislation, my reasons on behalf of the Court agreed that the children should be placed in extended Society care but held that the lower court erred by finding, without evidence, that allowing the birth mother access to her children would impair their prospects for adoption. The access issue was remanded to the lower court to be determined on an expedited basis. As I explained in a later case, access allows a birth parent to receive notice of the adoption proceeding and enhances the possibility of an open adoption: see Windsor-Essex Children’s Aid Society v. E.W., 2020 682, at para. 53.

I selected this case because it was one of my first more substantial judgments and is my most cited judgment. Unfortunately, this reflects how often child protection issues come before the courts. A child protection appeal is often the last step before children are placed for adoption. The stakes are high for the children and their birth parents. The decision must be rendered relatively quickly because of the children’s need for certainty. I feel a significant responsibility, especially as a parent myself. I approach such cases by reading the record closely in order to apply the statutory test of whether the children are “in need of protection” and, if so, to decide the disposition that is in their best interests. At the same time, I try to provide guidance for future cases.

Synopsis 5:

“Chief Justice McLachlin and the Division of Powers” (2019) 88 Supreme Court Law Review, pp. 341-349

This article, written while I was a lawyer, originated in a speech at a conference hosted by Osgoode Hall Law School for a panel on “The Legacy and Contributions of Chief Justice Beverly McLachlin”.

The speech/article made three main observations about Chief Justice McLachlin’s contributions to the division of powers jurisprudence during a quarter century. First, it noted that empirically her rulings revealed her self-described judicial philosophy as having been scrupulously non-partisan and impartial, sometimes favouring federal power and sometimes favouring provincial power. Second, the article reviewed how her contributions to the doctrines of legal federalism brought greater stability, certainty, and clarity to the law. This can be seen in her decisions on the doctrine of interjurisdictional immunity, on topics such as the legal test for “impairment”, the reciprocal nature of interjurisdictional immunity, and the relationship between interjurisdictional immunity and Aboriginal rights protected under s. 35 of the Constitution Act, 1982. Third, the article noted that the rigour and lucidity of Chief Justice McLachlin’s judicial writing contributed significantly to legal education in Canada by teaching this important area of the law to law students, lawyers, judges, and members of the public.

I selected this article because it speaks to some of the judicial qualities that I admire and to which I aspire, because I have a strong interest in division of powers and federalism issues, and because I participated as counsel in two of the cases discussed in the article.

2-Describe the five (5) most significant cases or matters that you dealt with while in legal practice or as a judge and how you dealt with them:

1. Duffy v. Canada (Senate), 2020 ONCA 536, 151 O.R. (3d) 489, application for leave to appeal to Supreme Court of Canada dismissed, [2020] S.C.C.A. No. 335

This decision, summarized above, addressed the parliamentary privilege of the Senate of Canada. Parliamentary privilege rarely comes before the courts, and so any decided case often acquires greater precedential significance.

I approached the preparation of this decision as I approach any major case, whether as an appellate judge or lawyer. For me, at the beginning of any case, there is often intellectual disorder — a jumble of facts, issues, and precedents. Order gradually emerges from the disorder, as I study the facts, read the law, discuss the issues with colleagues, and think. I try to be patient in this process and remind myself that clarity emerges through reflection and diligence. I have learned that there are no shortcuts in the law, no substitutes for hard work and preparation.

I prepared this decision by reviewing the parties’ written submissions and the record, hearing the parties’ oral arguments, studying the Canadian and Commonwealth case law, and listening closely to the perspectives of my colleagues on the panel. I also tried to be detached from the broader political context and media scrutiny of the case and to faithfully apply the principles of law as I understood them.

2. Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725

This bilingual appeal before the Supreme Court of Canada addressed whether bank-issued credit cards are subject to exclusive federal regulation or instead to overlapping federal and provincial regulation. This jurisdictional issue relating to the division of powers arose in a Quebec class action alleging that nine banks had failed to disclose to consumers the conversion charges on credit card purchases made in foreign currencies. The appeal raised many public and private law issues: federalism issues, such as the principles of interjurisdictional immunity and paramountcy under Parliament's exclusive power over banking in s. 91(15) of the Constitution Act, 1867; Quebec civil law issues, such as the availability of restitutionary remedies under the Civil Code of Québec; procedural issues, such as the test for standing to bring a class action under that province’s Code of Civil Procedure; and consumer protection issues, such as the nature and scope of the causes of action and remedies under the province’s Consumer Protection Act.

The ruling was the culmination of a decade of litigation: a three-month trial in the Quebec Superior Court (before Hon. Justice Clément Gascon, as he then was) and appeals before the Quebec Court of Appeal and Supreme Court of Canada. Gascon J.’s trial judgment, rendered in French, ran to 200 pages, while the record on appeal before the Supreme Court of Canada consisted of 72 volumes.

I was counsel at all levels of court in Quebec and lead counsel for the nine banks before the Supreme Court of Canada. I was also lead counsel in the companion appeal, Amex Bank of Canada v. Adams, 2014 SCC 56, [2014] 2 S.C.R. 787.

I dealt with the significant challenges posed by this appeal by working to discard irrelevant or tangential issues, distilling the key parts of the record, and trying to frame the debate before the Court narrowly. I led a team of excellent lawyers in Montreal and Toronto. Although we were ultimately unsuccessful before the Supreme Court, I continue to draw on the many valuable lessons learned from litigating this case at all levels of court.

3. Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801

This bilingual appeal before the Supreme Court of Canada dealt with the legality, under Quebec civil law, of a consumer contract concluded on the internet providing for arbitration of any disputes and waiving the right to participate in a class action. I was not counsel before the Quebec Superior Court or Court of Appeal. In both courts, our client had lost. I was retained to apply for leave to appeal to the Supreme Court and then to argue the appeal. The Supreme Court of Canada granted leave to appeal and allowed the appeal.

The Court’s decision remains a leading precedent in several areas of law, including on the law of class actions in Quebec, the law of arbitration under the Civil Code of Québec and the UNCITRAL Model Law on International Commercial Arbitration, and the rules for consumer adhesion contracts and external clauses concluded on the internet.

I dealt with the challenges posed by this case by reading the record, recasting the narrative and equities to appeal to the Court’s sense of justice, and trying to provide the Court with the comparative law research it needed to render judgment.

4. Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256, and Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567

I have listed these appeals before the Supreme Court of Canada together because both involved the religious freedom guarantee under s. 2(a) of the Charter and in both I represented the Canadian Civil Liberties Association as intervener.

In Multani, another bilingual appeal, the Court held that a Quebec school board’s decision to prevent a Sikh schoolboy from wearing a kirpan to school according to the tenets of his faith unjustifiably infringed s. 2(a). The case also raised issues touching on racial discrimination and the accommodation of immigrants. I later wrote about this decision in “Freedom of Religion in the Supreme Court: Some Lessons from Multani” (2006) 21 National Journal of Constitutional Law 291-312.

In Hutterian Brethren, a 4-3 majority of the Court held that a new Alberta regulation requiring a photo on all drivers’ licenses without an exemption for Hutterites infringed s. 2(a) but was justified under s. 1. Hutterites sincerely believe that having their photographs taken infringes the tenets of their faith. I later wrote about this decision (and other cases) in “Recent Developments in Freedom of Religion” (2009) 27 National Journal of Constitutional Law 253-261.

In both cases, I tried to provide the Court with relevant social and religious context and to situate the appeals in the broader legal landscape of the Court’s Charter jurisprudence. My involvement in these appeals reflected my strong interest in civil liberties issues generally and freedom of religion in particular, and probably also my personal experiences as a member of a religious minority and racialized individual. These cases also marked the beginning of my involvement with the Canadian Civil Liberties Association, on whose board I served as a director for over 13 years, including as chair of the board.

5. Ardoch Algonquin First Nation v. Canada (Attorney General), 2003 FCA 473 (dismissing Attorney General of Canada’s appeal from the decision of the Federal Court finding a federal employment program discriminated against urban and off-reserve Indigenous peoples contrary to s. 15(1) of the Charter) and Canada (Attorney General) v. Misquadis, 2003 FCA 370 (dismissing Attorney General of Canada’s motion to strike out the factum of Congress of Aboriginal Peoples)

This case addressed whether a federal employment training program discriminated against urban and off-reserve Indigenous peoples, contrary to s. 15(1) of the Charter, by providing benefits to reserve-based First Nations, Inuit, and Métis peoples, but by failing to provide the same benefits to urban and off-reserve Indigenous peoples.

One of the applicants, Mr. Roger Misquadis, was an Indigenous person who had lived all his life in the Toronto area but was directed by Human Resources Development Canada to apply for employment training funding to an Indian band on Manitoulin Island with which he was registered as a status Indian but with which he had little or no connection.

The Federal Court declared this $1.6 billion federal program discriminated against urban and off-reserve Indigenous peoples. The Court ruled that the program demeaned their human dignity by effectively sending the message that they should live on reserves if they wish to benefit from federal government programs. The Federal Court of Appeal, per Rothstein J.A. (as he then was), upheld that decision.

I was co-counsel to the Congress of Aboriginal Peoples, a national Indigenous organization representing off-reserve status and non-status Indians, Métis, and Southern Inuit Aboriginal Peoples, as intervener before the Federal Court of Appeal. This intervener provided the Court with context about the experiences of Indigenous peoples living in urban settings across Canada and explained the discriminatory impact of the impugned federal program on them.

In addition, during the litigation, counsel for the Attorney General of Canada moved to strike out large parts of the intervener’s factum before the appeal was heard. The Federal Court of Appeal largely dismissed that motion. The Court’s ruling was significant because it affirmed, for the first time, that a court may take judicial notice of the important research and findings of the 1996 Report of the Royal Commission on Aboriginal Peoples (RCAP) about the history and experiences of Indigenous peoples in Canada.

I wrote about the case in my article, “The Misquadis Case”, in Legal Aspects of Aboriginal Business Development, edited by J.E. Magnet and D.A. Dorey (Butterworths, 2005), chapter 7, pp. 123-136. I outlined the significance of the Federal Court of Appeal’s rulings, from a practitioner's perspective, for Charter litigation involving the rights of Indigenous peoples and for their identity, dignity, and community membership. I concluded that article, written over 16 years ago, with the following observations about the importance of eliminating discriminatory stereotypes as part of the process of reconciliation with Indigenous peoples (at p. 136):

“The Misquadis case is an important ruling under the Charter, both for Aboriginal peoples and for Charter claimants generally. The case properly holds government to a high standard of accountability by refusing to allow discriminatory stereotypes about where Aboriginal peoples belong to be perpetuated through government programs. Removing stereotypes, however, cannot be accomplished through litigation alone. Ultimately, it requires a change in the attitudes and beliefs of Canadians at large but particularly in those charged with fiduciary responsibilities over Aboriginal peoples. In that sense, the ruling is but a small step in a much longer journey towards full equality for Canada’s Aboriginal peoples.”

SUPREME COURT OF CANADA EXPERIENCE

List all cases in which you participated as counsel which were heard by the SCC (appeals as of right, references and appeals by leave) and the result (include any pending cases). You may include significant participation in a case other than as named counsel (e.g. factum review committee). If so, describe precisely the nature of your participation:

My interest in Supreme Court of Canada litigation was sparked during my year serving as a law clerk to Justice Charles D. Gonthier in 1994-1995.

During my career as a lawyer, I acted as counsel to a party or intervener in 35 appeals before the Supreme Court (31 as lead counsel). These cases addressed a broad range of subject matters, including the Charter, federalism and the division of powers, criminal law, class actions, commercial law, solicitor-client and litigation privilege, Quebec civil law and procedure, administrative and regulatory law, arbitration law, banking law, tax law (federal and provincial), judicial responsibility, Aboriginal law, the law of civil procedure, copyright law, pension law, and insolvency law.

I represented a diverse array of clients before the Supreme Court, including public interest groups (Canadian Civil Liberties Association and Kids Help Phone), private interests (banks, corporations, and an individual), a municipality (City of Toronto), a legal-professional association (Canadian Bar Association), public interest regulators (Federation of Law Societies of Canada and the Privacy Commissioner of Canada), a private not-for-profit airport authority (Greater Toronto Airports Authority), and industry groups (Canadian Bankers Association and the New Brunswick Forest Products Association).

I also served for over five years as an advocacy advisor to the Supreme Court Advocacy Institute, where I helped other counsel in a host of civil, criminal, and constitutional cases as they prepared to make oral argument before the Court.

Towards the end of my career as a lawyer, I tried to distill what I had learned about oral advocacy before the Supreme Court in my article, “The Mechanical Side of Preparing for Oral Argument Before the Supreme Court of Canada”, The Advocates’ Journal, spring 2018, pp. 6-13.

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I acted as counsel in the following cases before the Supreme Court of Canada:

1. Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555 — whether regulators can demand access to privileged information (counsel to Federation of Law Societies of Canada) (appeal dismissed)

2. Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521 — whether insurance regulators can demand documents protected by litigation privilege in Quebec (counsel to Canadian Bar Association) (appeal dismissed)

3. Minister of National Revenue v. Duncan Thompson, 2016 SCC 21, [2016] 1 S.C.R. 381 — scope of solicitor-client privilege under the Income Tax Act where lawyers under investigation (counsel to Canadian Bar Association) (appeal allowed in part)

4. Attorney General of Canada v. Chambre des notaires du Québec, 2016 SCC 20, [2016] 1 S.C.R. 336 — scope of solicitor-client privilege and constitutionality of s. 232(1) of the Income Tax Act (counsel to Canadian Bar Association) (appeal dismissed)

5. Canada (Attorney General) v. Federation of Law Societies of Canada, 2015 SCC 7, [2015] 1 S.C.R. 401 — constitutionality of federal anti-money laundering and terrorist financing legislation encroaching on solicitor-client privilege (counsel to Canadian Civil Liberties Association) (appeal allowed in part)

6. Wakeling v. United States of America, 2014 SCC 72, [2014] 3 S.C.R. 549 — constitutionality of cross-border sharing of wiretap information during extradition proceedings (counsel to Privacy Commissioner of Canada) (appeal dismissed)

7. Amex Bank of Canada v. Adams, 2014 SCC 56, [2014] 2 S.C.R. 787 — constitutional applicability of Quebec consumer protection legislation to bank-issued credit cards (counsel to Amex Bank of Canada) (appeal dismissed)

8. Bank of Montreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725 — constitutional applicability of Quebec consumer protection legislation to bank-issued credit cards (counsel to Bank of Montreal, Amex Bank of Canada, Royal Bank of Canada, Toronto-Dominion Bank, Canadian Imperial Bank of Commerce, Bank of Nova Scotia, National Bank of Canada, Laurentian Bank of Canada, and Citibank Canada) (appeals dismissed)

9. R. v. Spencer, 2014 SCC 43, [2014] 2 S.C.R. 212 — constitutionality of police requesting ISP subscriber information without a search warrant (counsel to Privacy Commissioner of Canada) (appeal dismissed)

10. Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810 — legality of banning private label generic drugs by regulation (counsel to Shoppers Drug Mart Inc., Shoppers Drug Mart (London) Limited, and Sanis Health Inc.) (appeal dismissed)

11. Alberta (Information and Privacy Commissioner) v. United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 S.C.R. 733 — constitutionality of banning videotaping of picket line (counsel to Privacy Commissioner of Canada) (appeal substantially dismissed)

12. R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 — constitutionality of sniffer-dog search at highway traffic stop (counsel to Canadian Civil Liberties Association) (appeal dismissed)

13. R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 — constitutionality of sniffer-dog search at airport (counsel to Canadian Civil Liberties Association) (appeal dismissed)

14. Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357 — whether a court’s verbatim adoption of counsel’s written submission is grounds for a new trial (counsel to Canadian Bar Association) (appeal and cross-appeal allowed)

15. Sun Indalex Finance LLC v. United Steelworkers, 2013 SCC 6, [2013] 1 S.C.R. 271 — scope and priority of deemed trust under provincial pension legislation in the context of insolvency (counsel to Canadian Bankers Association) (one group of appeals allowed, another group dismissed)

16. A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567 —constitutionality of court order permitting cyberbullied youth to litigate anonymously (counsel to Kids Help Phone) (appeal allowed in part)

17. Re:Sound v. Motion Theatre Pictures Associations of Canada, 2012 SCC 38, [2012] 2 S.C.R. 376 — interpretation of “soundtrack” and “sound recording” in the Copyright Act (counsel to Re:Sound) (appeal dismissed)

18. Reference re Securities Act, 2011 SCC 66, [2011] 3 S.C.R. 837 — constitutionality of proposed federal securities law (counsel to Canadian Bankers Association) (the proposed Securities Act is not valid under the general branch of the trade and commerce power under s. 91(2) of the Constitution Act, 1867)

19. Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65 —constitutionality of broadcasting ban of evidence tendered in court in Quebec (counsel to Canadian Civil Liberties Association) (appeal dismissed)

20. Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19 — constitutionality of rules restricting media activities in Quebec courthouses (counsel to Canadian Civil Liberties Association) (appeal dismissed)

21. Quebec (Attorney General) v. Lacombe, 2010 SCC 38, [2010] 2 S.C.R. 453 — constitutional validity of municipal by-law restricting the location of an aerodrome (counsel to Greater Toronto Airports Authority) (appeal dismissed)

22. Quebec (Attorney General) v. Canadian Owners and Pilots Association, 2010 SCC 39, [2010] 2 S.C.R. 536 — constitutional applicability of Quebec agricultural legislation restricting the location of an aerodrome (counsel to Greater Toronto Airports Authority) (appeal dismissed)

23. Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, [2010] 1 S.C.R. 815 — constitutionality of provincial freedom of information legislation restricting access to privileged information (counsel to Canadian Bar Association) (appeal allowed)

24. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567 — whether the requirement of photos on drivers’ licenses for Hutterites infringes their freedom of religion under the Charter) (counsel to Canadian Civil Liberties Association) (appeal allowed)

25. Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC, [2008] 2 S.C.R. 574 — whether Privacy Commissioner can compel production of solicitor-client privileged information (counsel to Canadian Bar Association) (appeal dismissed)

26. Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801 — legality under Civil Code of Québec of an arbitration clause in a consumer contract waiving class actions (counsel to Dell Computer Corp.) (appeal allowed)

27. R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527 — constitutionality under the Canadian Charter of Rights and Freedoms of Canada Elections Act ban on disseminating election results while polls are still open (counsel to Canadian Civil Liberties Association) (appeal dismissed)

28. R. v. Sappier; R. v. Gray, 2006 SCC 54, [2006] 2 S.C.R. 686 — Aboriginal or treaty right to engage in personal-use logging on Crown lands in New Brunswick and Nova Scotia (counsel to New Brunswick Forest Products Association) (appeals dismissed)

29. Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189 — test for removing counsel for inadvertent disclosure of privileged information when executing an Anton Piller order (counsel to Canadian Bar Association) (appeal allowed)

30. Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715 — interpretation of “hedging” under the Ontario Mining Tax Act (counsel to Placer Dome Ltd.) (appeal allowed)

31. Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256 — whether a prohibition on Sikh children carrying kirpans in schools infringes their freedom of religion (counsel to Canadian Civil Liberties Association) (appeal allowed)

32. R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220 — Aboriginal or treaty right to engage in commercial logging on Crown lands in New Brunswick and Nova Scotia (counsel to New Brunswick Forest Products Association) (appeals allowed)

33. Gifford v. Canada, 2004 SCC 15, [2004] 1 S.C.R. 411 — deductibility of interest under Income Tax Act (counsel to Canadian Bankers Association) (appeal dismissed)

34. Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77 — whether it is an abuse of process to re-litigate a criminal conviction in the context of civil proceedings for wrongful dismissal (counsel to City of Toronto) (appeal dismissed)

35. Del Zotto v. Canada, [1999] 1 S.C.R. 3 — constitutionality of Income Tax Act, s. 231.4 (inquiries) (counsel to Herbert B. Noble) (appeal allowed)

List all SCC leave applications in which you participated as counsel and their outcome (include any pending cases):

I acted as counsel in 18 leave applications before the Supreme Court of Canada.

— I was counsel to the applicant in 10 applications (of which 5 were granted leave to appeal) and counsel to the respondent in 8 applications (of which 3 were granted leave to appeal).

— My clients on these leave applications included an individual, several financial institutions and corporations, a not-for-profit copyright collective (Re:Sound), two municipalities (City of Toronto and City of Sudbury), a private not-for-profit airport authority (Greater Toronto Airports Authority), and the Office of the Commissioner for Federal Judicial Affairs.

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I was counsel in the following leave applications before the Supreme Court of Canada:

1. Attorney General of Canada v. Oleg Shakov, The Office of the Commissioner for Federal Judicial Affairs, Marc Giroux and Nikki Clemenhagen, [2018] S.C.C.A. No. 61 — whether the Commissioner for Federal Judicial Affairs complied with federal official language obligations and policies (counsel to respondents, The Office of the Commissioner for Federal Judicial Affairs, Marc Giroux, and Nikki Clemenhagen) (application for leave to appeal dismissed)

2. Coburn and Watson’s Metropolitan Home dba Metropolitan Home v. BMO Financial Group, et al., [2017] S.C.C.A. No. 312 — scope of the conspiracy offence under the Competition Act (counsel to respondent, Bank of Montreal) (application for leave to appeal dismissed)

3. Amex Bank of Canada v. Adams, [2012] S.C.C.A. No. 438 — constitutional applicability under the division of powers of Quebec consumer protection legislation to bank-issued credit cards (counsel to applicant, Amex Bank of Canada) (application for leave to appeal granted)

4. Bank of Montreal v. Marcotte, [2012] S.C.C.A. No. 419 — constitutional applicability under the division of powers of Quebec consumer protection legislation to bank-issued credit cards (counsel to applicants, Bank of Montreal, Citibank Canada, Toronto-Dominion Bank, and National Bank of Canada) (applications for leave to appeal granted)

5. Shoppers Drug Mart Inc. v. Ontario (Health and Long-Term Care), [2012] S.C.C.A. No. 51 — legality of banning private label generic drugs by regulation (counsel to applicants, Shoppers Drug Mart Inc., Shoppers Drug Mart (London) Limited, and Sanis Health Inc.) (application for leave to appeal granted)

6. Re:Sound v. Motion Theatre Pictures Associations of Canada, [2011] S.C.C.A. No. 186 — interpretation of “soundtrack” and “sound recording” under the Copyright Act (counsel to applicant, Re:Sound) (application for leave to appeal granted)

7. Dell Canada v. Griffin, [2010] S.C.C.A. No. 75 — whether an arbitration agreement can preclude class actions under Ontario's Consumer Protection Act (counsel to applicant, Dell Canada) (application for leave to appeal dismissed)

8. Imperial Tobacco Canada Limited v. New Brunswick, [2009] S.C.C.A. 518 — legality of contingency fee agreement concluded by the Attorney General of New Brunswick for tobacco health-care costs recovery litigation (counsel to applicant, Imperial Tobacco Canada Limited) (application for leave to appeal dismissed)

9. National Money Mart Company and Dollar Financial Group, Inc. v. Smith Estate, [2008] S.C.C.A. No. 535 — whether the Supreme Court’s decision in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801, decided under Quebec law, is binding in Ontario so as to allow arbitration agreements to preclude class actions (counsel to applicant, Dollar Financial Group) (application for leave to appeal dismissed)

10. Inco Limited v. Pearson, [2006] S.C.C.A. No. 1 — certification of an environmental nuisance class action (counsel to applicant, Inco Limited) (application for leave to appeal dismissed)

11. Dell Computer Corp. v. Union des consommateurs, [2005] S.C.C.A. No. 370 — legality under Civil Code of Québec, Code of Civil Procedure, and Consumer Protection Act of an arbitration clause in a consumer contact waiving class actions (counsel to applicant, Dell Computer Corp.) (application for leave to appeal granted)

12. Placer Dome Canada Ltd. v. Ontario (Minister of Finance), [2004] S.C.C.A. No. 467 — interpretation of “hedging” under the Ontario Mining Tax Act (counsel to respondent, Placer Dome Canada Ltd.) (application for leave to appeal granted)

13. Petro-Canada v. Canada (Attorney General), [2004] S.C.C.A. No. 315 — deductibility of seismic exploration expenses under the Income Tax Act (counsel to applicant, Petro-Canada) (application for leave to appeal dismissed)

14. Toronto (City) v. Canadian Union of Public Employees, Local 79, [2001] S.C.C.A. No. 500 — whether it is an abuse of process to re-litigate a criminal conviction in the context of civil proceedings for wrongful dismissal (counsel to respondent, City of Toronto) (application for leave to appeal granted)

15. Sudbury (City of) v. Union Gas Limited, [2001] S.C.C.A. No. 426 — right of a municipality to purchase a municipal gas distribution system from a utility (counsel to applicant, City of Sudbury) (application for leave to appeal dismissed)

16. Mississauga (City) v. Greater Toronto Airports Authority, [2001] S.C.C.A. No. 83 — whether municipal property development by-laws are constitutionally applicable under the division of powers to the redevelopment of Toronto Pearson International Airport (counsel to respondent, Greater Toronto Airports Authority) (application for leave to appeal dismissed)

17. Perks v. Ontario (Attorney General), [1999] S.C.C.A. No. 89 — legality of the Attorney General of Ontario intervening to withdraw a private prosecution (counsel to respondent, Coca-Cola Beverages Ltd.) (application for leave to appeal dismissed)

18. Del Zotto v. Canada, [1997] S.C.C.A. No. 433 — constitutionality of Income Tax Act, s. 231.4 (inquiries) (counsel to respondent, Herbert B. Noble) (application for leave to appeal granted)

List all cases in which you participated as a judge which were heard by the SCC (appeals as of right, references and appeals by leave) and the result (include any pending cases):

List all cases in which you participated as a judge where leave to appeal to the SCC was requested or granted and their outcome (include any pending cases):

Pending applications for leave to appeal to the Supreme Court of Canada:

1. E.W. v. Windsor-Essex Children’s Aid Society, S.C.C. No. 39521, seeking leave to appeal from 2020 ONCA 682, per Jamal J.A. (child protection)

2. Swat Emeraldine and Marketing Inc. v. Surinder Chaba a.k.a. Sam Chaba, S.C.C. No. 39475, seeking leave to appeal from 2020 ONCA 643, per curiam (fraudulent misrepresentation and breach of contract)

3. David Carmichael v. GlaxoSmithKline Inc., S.C.C. No. 39437, seeking leave to appeal from 2020 ONCA 447, per Jamal J.A. (interpretation of limitations legislation addressing when a person is incapable of commencing a proceeding in respect of a claim because of their “physical, mental or psychological condition”)

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Applications for leave to appeal to the Supreme Court of Canada dismissed:

1. Visic v. Elia Associates Professional Corporation, [2020] S.C.C.A. No. 473, dismissing leave to appeal from 2020 ONCA 690, per curiam (appeal dismissed as frivolous, vexatious, and an abuse of the court’s process)

2. Brenda Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, Attorney General for Ontario, [2020] S.C.C.A. No. 425, dismissing leave to appeal from M50562 (unreported), Doherty, Hoy and Jamal JJ.A., dismissing application for leave to file fresh evidence and for leave to appeal from the Divisional Court (Charter – freedom of expression – challenge to prohibition on audiologists with a doctorate degree in audiology from the using the title Doctor in the course of providing or offering health care in Ontario)

3. M.A.A. v. D.E.M.E., [2020] S.C.C.A. No. 402, dismissing leave to appeal application from 2020 ONCA 486, per Benotto J.A. (family law – jurisdiction of Canadian courts to make custody and access orders when the mother claims refugee status in Canada)

4. Senator Michael Dennis Duffy v. Senate of Canada, [2020] S.C.C.A. No. 335, dismissing leave to appeal application from 2020 ONCA 536, per Jamal J.A. (scope of the Senate’s parliamentary privilege)

5. R. v. Abdulle, [2020] S.C.C.A. No. 156, dismissing leave to appeal application from 2020 ONCA 106, per Strathy C.J.O. (propriety of jury charge in a murder prosecution)

6. Ramkey Communications Inc. v. Labourers’ International Union of North America, [2019] S.C.C.A. No. 508, dismissing leave to appeal application from 2019 ONCA 859, per Hoy A.C.J.O. (division of powers and labour relations)

7. Stilton Corp. v. Paterson Veterinary Professional Corp., [2019] S.C.C.A. No. 420, dismissing leave to appeal application from 2019 ONCA 746, per Harvison Young J.A. (frustration of contract and enforcement of a settlement agreement)

8. Hasselsjo v. Arcand, [2019] S.C.C.A. No. 493, dismissing leave to appeal application from 2019 ONCA 735, per curiam (summary judgment involving account closure by a bank)

9. Mohamed v. Farah, [2019] S.C.C.A. No. 486, dismissing leave to appeal application from 2019 ONCA 620, per curiam (child custody and access)

PART 10 – THE ROLE OF THE JUDICIARY IN CANADA’ S LEGAL SYSTEM

The Government of Canada needs to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada's legal system. For each of the following questions, please provide answers of between 750 and 1000 words.

1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?

It is for others to evaluate the significance of any contributions I may have made to the law and the pursuit of justice. What I can address is where I found the most meaning in my work.

At this stage of my life, there is no more meaningful way for me to contribute to the law and the pursuit of justice than through public service as a judge. Every judge knows what an extraordinary privilege and responsibility it is to be entrusted with the judicial role. Every case is consequential, even if not precedential, because it matters to the parties. I try to approach each case with an open mind and a willingness to listen, both to counsel and to my colleagues — it is always more important to listen than to speak.

As a lawyer, I greatly enjoyed many aspects of my practice, but I found the most meaning in pro bono work. Such work allows you to transcend quotidian concerns and to join in something much larger than yourself.

I was first attracted to pro bono work in law school. Like many students, I volunteered in community legal clinics and helped students before internal university bodies. One such case stands out: I represented a Nigerian teacher before a McGill Senate body on student grievances. My client was a mature student who wished to re-qualify in Canada but had become entangled in bureaucracy during her practicum at a local school. She had experienced racial prejudice but did not want that to be the focus of her case. After my argument, factual issues arose that only she could answer. As the panel questioned her, it became clear she had faced racism. Almost 30 years later, I still remember how the room fell silent and everybody knew that she had won. The ruling did not impact the law or establish a precedent, but it did allow her to keep serving in her chosen profession in her adopted home.

As a lawyer, I started doing pro bono work early in my career and never stopped.

In my first such case (1998), I represented a foreign-trained medical doctor in a challenge to retrospective rulemaking by a medical licensing body that hampered him from re-qualifying in Canada. I later represented other doctors pro bono, including a foreign-trained doctor from Bosnia who came to Canada as a refugee and passed Canadian licensing exams, but still could not re-qualify, even after my best efforts (2002-2003). Looking back, I expect I saw in these and similar clients something of my family's experiences, which I discuss more fully in response to Question 2 below.

I came to view pro bono cases as a way to help people and perhaps to shape the law. Over time I worked on cases that advanced the equality rights of Indigenous peoples, civil liberties, access to justice, and the rights of children:

— I represented the Congress of Aboriginal Peoples before the Federal Court of Appeal in a challenge to a federal employment program that discriminated against urban and off-reserve Indigenous peoples contrary to s. 15(1) of the Charter by failing to provide the same benefits to those on reserves (2003). I later wrote about how the case raised fundamental questions of Indigenous identity, dignity, and community membership and had broader implications for the Charter rights of Indigenous peoples (see “The Misquadis case” (2005) in list of publications).

— I represented the Canadian Civil Liberties Association (CCLA) as an intervener in several appeals before the Supreme Court of Canada. At first I acted in cases on the freedom of religion guarantee in the Charter — the Multani case (2006), when the Court ruled that a school board's decision to prohibit a Sikh child from wearing a kirpan at school unjustifiably infringed his freedom of religion; and the Hutterian Brethren case (2009), where a 4-3 majority held that Alberta’s decision to stop accommodating Hutterites by accepting drivers’ licenses without photographs justifiably infringed their freedom of religion. (I wrote about both decisions in articles referred to in the list of publications above). I later worked on cases about the open court principle (2011), criminal cases about the use of sniffer-dogs at airports and highway-traffic stops (2013), and criminal and regulatory cases about the protection of solicitor-client privilege (2015). I also served for over 13 years on the CCLA’s board of directors, including as chair of the board.

— I represented Kids Help Phone, a national counselling service for young people, in A.B. v. Bragg Communications (2012), where the Supreme Court allowed a child who was a victim of sexualized cyberbullying to litigate against her abuser anonymously to prevent further victimization. Our intervention tried to provide the Court with context about cyberbullying and how to balance the open court principle with the privacy interests and inherent vulnerability of children.

— I represented the Canadian Bar Association and Federation of Law Societies separately in several Supreme Court of Canada appeals on solicitor-client privilege, litigation privilege, and other issues affecting the legal profession (2006-2016). The Supreme Court has said that solicitor-client privilege is a foundation of the justice system and promotes access to justice. It was thus particularly meaningful to be entrusted to speak for Canadian lawyers and legal regulators as the Supreme Court charted the future direction of the law.

Finally, I served as national chair of my former firm’s pro bono program for many years. I oversaw a significant growth in the firm’s pro bono work and encouraged lawyers in offices in Toronto, Montreal, Calgary, Vancouver, and New York to contribute their time and their passion to their communities. I found the mentoring relationships I developed with young lawyers through this work to be valuable and fulfilling. The pro bono work included test cases, representation of those in economic need, incorporation of charities, research for public interest groups, and a host of other mandates. Although there was always more to be done, this work made me proud to be a lawyer.

2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?

I was born in Nairobi, Kenya in 1967 to a family originally from India. In 1969, my parents immigrated to the U.K., in search of a better life. Because I attended Anglican schools, I received a hybrid religious and cultural upbringing — I was raised at school as a Christian, reciting the Lord’s Prayer and absorbing the values of the Church of England, and at home as a Muslim, memorizing Arabic prayers from the Quran and living as part of the Ismaili community. Like many others, I experienced discrimination as a fact of daily life. As a child and youth, I was taunted and harassed because of my name, religion, or the colour of my skin.

In 1981, my family uprooted again. We came to Canada and settled in Edmonton, where I completed high school. Our first few years here were hard. My parents struggled to make ends meet. They opened a restaurant and dreamed of financial stability but were soon left bankrupt. Despite their challenges, they always encouraged education. I was the first in my family to attend university, spending a year at the London School of Economics before obtaining an economics degree from the University of Toronto. I then moved to McGill to complete the National Program in common law and Quebec civil law. Finally, I received a graduate law degree from Yale Law School.

My wife also came to Canada as a teenager, in her case as a refugee from Iran fleeing the persecution of the Bahá’í religious minority during the 1979 Revolution. She spent several years in the Philippines before being welcomed by Canada and settling in Innisfail, Alberta. After we married, I became a Bahá’í, attracted by the faith’s message of the spiritual unity of humankind, and we raised our two children in Toronto’s multi-ethnic Bahá’í community.

These experiences exposed me to some of the challenges and aspirations of immigrants, religious minorities, and racialized persons. My perspectives on these issues have broadened and deepened over more than 25 years as a lawyer and judge. I practised litigation in a large national law firm where, for most of my career, I was the only racialized partner in its national litigation department. Outside my regular practice, I worked to protect the rights of immigrants, religious minorities, and racialized Canadians through pro bono work, by serving on the Ontario government’s Anti-Racism Consultation Group, and by volunteering in the Toronto Region Immigrant Employment Council (TRIEC) program as a mentor to new immigrants seeking employment. I also tried to mentor younger lawyers, including women and racialized persons, and ensured they had opportunities to appear before the Supreme Court and other courts. Now, as a judge on the Court of Appeal for Ontario, one of the federation’s most ethnically diverse provinces, in a city where more than one-half of residents are racialized, I am one of four racialized judges among a bench of 31. This is inevitably part of the identity and lived experience I bring to the bench.

My professional life also allowed me to work with some of the Indigenous peoples in Canada. Before law school, I worked for the Alberta government and an Edmonton law firm to assist Métis settlements transition to self-government under the Métis Settlements Act. I drove across Alberta and met with each of the Métis community councils and researched the corporate structures used in their community governance. Later, I represented the Congress of Aboriginal Peoples before the Federal Court of Appeal to help secure the equality rights of Indigenous peoples.

[Translation]

In addition, I have lived among Quebecers and assimilated Quebec's distinct culture and its legal tradition. I consider myself lucky to have studied common law and Quebec civil law at McGill University in the late 1980s and early 1990s. I considerably improved my French legal vocabulary by learning Quebec civil law, working for two summers at Ogilvy Renault in Montréal (now Norton Rose Fulbright), and clerking for Justice Melvin Rothman at the Quebec Court of Appeal. After graduating from law school, I clerked for another great Quebec jurist, Justice Charles Gonthier of the Supreme Court of Canada. During that year in Ottawa, I was certified as a bilingual law clerk. Furthermore, while a member of the Ontario Bar, I was granted a temporary licence to practise law in Quebec on several occasions so that I could appear before the Quebec courts, at both the trial and appellate levels. I conducted two trials, one of which lasted nearly three months before the Honourable Clément Gascon, then a judge of the Superior Court of Quebec. I also argued four major appeals before the Quebec Court of Appeal. Although I always spoke in English on these occasions to achieve maximum precision and fluency, my opponents usually spoke in French. I also argued ten cases from Quebec before the Supreme Court of Canada, where I had to respond to my French-speaking opponents without resorting to simultaneous interpretation. This experience as a litigator, along with my bilingual and bijural training, awakened in me a greater sensitivity to Canadian diversity and the intellectual and cultural richness that comes with it. I am now one of the bilingual judges of the Court of Appeal for Ontario, where I heard a motion and rendered the decision in French.

Finally, I have lived and worked in three provinces and developed a national practice that took me to the courts of seven provinces. This was aided by the Supreme Court’s acceptance of interprovincial law firms and mobility agreements of the Federation of Law Societies. The erosion of interprovincial barriers allowed me to learn from lawyers and judges across Canada about the differences across jurisdictions and, more importantly, about the many commonalities that bring us together. These experiences deepened my conviction in the diversity and essential unity of our country, its peoples, and the Canadian legal profession.

3. Describe the appropriate role of a judge in a constitutional democracy.

In answering this question, I do not start from a blank slate. Canada has a rich jurisprudential tradition on the appropriate role of a judge in a constitutional democracy. As a judge of the Court of Appeal for Ontario, I operate within that tradition — it guides me, inspires me, and constrains me.

Our constitutional democracy rests on parliamentary government, involving representative institutions elected by the people at the federal and provincial levels. As we know, “[i]n our constitutional democracy, it is the elected representatives of the people who enact legislation”: Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, at para. 48, per Sopinka J. Even so, ours is not, and has never been, a system of “simple majority rule”: Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 76, per curiam. Most Canadians understand and accept that in a constitutional democracy such as ours, “all government power must be exercised in accordance with the Constitution”: Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44, at para. 37, per curiam.

In this context, a judge’s task is to adjudicate disputes about the scope and limits of government power fairly and impartially according to law. The judge’s role is to be “a constitutionally mandated referee”: Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381, at para. 105, per Binnie J.

Judges did not acquire this referee role with the enactment of the Charter in 1982. Our courts have been adjudicating public law disputes since Confederation — in cases about the division of powers between the Parliament of Canada and the provincial legislatures, the constitutional prerogatives of the Crown, and judicial review of government action. The Charter placed important new limits on government power and parliamentary sovereignty and imposed correspondingly new responsibilities on the courts to oversee those limits. But the judicial role has remained fundamentally the same.

An essential aspect of a judge’s task is to protect the rights of minorities and other historically disadvantaged groups under the Constitution, even when this may be unpopular: Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 79-82, per curiam. This includes the rights of Indigenous peoples, women, linguistic minorities, LGBTQ2 persons, persons with disabilities, and racialized Canadians, among others. As Chief Justice Dickson famously declared, our Constitution safeguards minorities “from the threat of ‘the tyranny of the majority’”: R. v. Big M Drug Mart, [1985] 1 S.C.R. 295, at para. 96. Judges are among those tasked with ensuring this promise is kept and must do so fearlessly when the need arises. In discharging this responsibility, a judge is not, and must not be seen to be, limiting or hampering the freedom of duly elected legislatures to do their important work. As Cory J. explained, “it is not the courts which limit the legislatures. Rather, it is the Constitution, which must be interpreted by the courts, that limits the legislatures. This is necessarily true of all constitutional democracies”: Vriend v. Alberta, [1998] 1 S.C.R. 493, at para. 56.

Judges must not have agendas, political or otherwise. They do not select areas of the law for reform based on their personal views. They instead wait for cases to come before the courts and then do their duty to adjudicate according to law, one case at a time. To quote Cory J. again: “Citizens must have the right to challenge laws which they consider to be beyond the powers of the legislatures. When such a challenge is properly made, the courts must, pursuant to their constitutional duty, rule on the challenge”: Vriend, at para. 56.

Judges should also be mindful of their relatively modest role in the process of law reform. “In a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform”: Watkins v. Olafson, [1989] 2 S.C.R. 750, at pp. 760-61, per McLachlin J. (as she then was). Although judges should not shirk their constitutional responsibility to uphold the rights in the Charter — and to apply the Constitution as a “living tree” to the evolving social, political, and economic fabric of the country — they do so case by case, often with limited information about the social and policy consequences of their decisions. They should therefore develop the law cautiously and incrementally, properly leaving major revisions to the legislature whenever possible.

Such judicial modesty is a necessary corollary of the separation of powers between the legislative, executive, and judicial branches of government. Each branch must respect the distinct and complementary institutional capacities of the others, to allow each to fulfill its proper role. Such mutual respect promotes the “constitutional equilibrium” of our democracy: Canada (House of Commons) v. Vaid, [2005] 1 S.C.R. 667, at para. 4, per Binnie J.

Lastly, for a judge’s referee role to be effective, there must be judicial independence. This includes both individual independence, which requires qualities attaching to the individual judge, and institutional independence, which requires that the courts be, and appear to be, independent of the other branches of government. As a cornerstone of our constitutional democracy, judicial independence serves “to maintain public confidence in the court system and the rule of law”: Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, at para. 170, per LeBel J.

4. Who is the audience for Supreme Court of Canada decisions?

A Supreme Court of Canada decision has many audiences, all of which should be considered when preparing reasons for judgment.

Chronologically, a judge writes first for the other judges — colleagues on a collegial court who must be persuaded if the reasons are to speak for them. Justice William Brennan famously said that the most important rule at the U.S. Supreme Court is the “Rule of Five,” because without five judges there can be no majority. Although a judge’s duty is to dissent when necessary, achieving reasonable and collegial consensus whenever possible can help clarify legal questions of public importance. The Court’s rigorous internal process involves extensive commentary on draft judgments. This process should be conducted in a collegial and respectful manner, mindful that reasonable people can disagree without being disagreeable.

Next, the Court’s audience includes the parties, whose dispute provided the occasion and setting for the questions raised by the case. A Supreme Court appeal is often the culmination of many years of litigation, usually conducted at great expense. The Court should be mindful of and respectful to the litigants. The parties, and especially the losing party, must be persuaded to the extent reasonably possible that they have been heard and their arguments understood. In this way, the Court’s reasons provide legitimacy to the parties and the broader public that its process was honest and fair: see McLachlin C.J., Remarks at NJI and CIAJ Advanced Judgment Writing Seminar, May 16, 2010, p. 9. The need to maintain legitimacy in the eyes of the parties was brought home to me over many years as a litigator before the Supreme Court and has been further reinforced in my role as an appellate judge.

The Court also writes for the many participants in the Canadian justice system — trial and appeal courts, administrative tribunals, lawyers, and self-represented litigants, as well as police officers, victims’ advocates, and mental health professionals. All expect clear and principled guidance on what the law is and how it is to be applied. The writer must strive to explain the reasoning process but also to lay out plainly and intelligibly the rules to be applied in future cases. This practical purpose of reasons must be kept firmly in mind.

Especially in public law cases, the Court’s audience includes governments — federal, provincial, and municipal — who seek to understand the contours of the state’s authority as they discharge their important responsibilities to formulate public policies, draft legislation, and apply the law. The Court should show appropriate deference and respect for the other branches of government, while also fearlessly calling out constitutional transgressions when they occur. Such a constructive and mutually respectful dialogue between the courts and the other branches of government improves our constitutional democracy and promotes the rule of law.

More generally, the Court’s decisions speak directly to the Canadian public. The public has a right to understand how their highest court is grappling with the most pressing legal issues of the day. As Chief Justice Dickson underscored: “Our judgments touch the lives of all Canadians. They should convey meaning to all who read them, whether or not they are learned in the law”: CIAJ Seminar on Judgment Writing, July 2, 1981, p. 4. This is especially important at a time when many justice system participants are self-represented. Clear and accessible reasons concretely improve access to justice.

Another important audience of the Court’s decisions is the legal academy. Through impartial and critical commentary, legal academics often help the Court to improve the law. This means that the Court should remain engaged with what law professors are writing and saying. This allows the justices to maintain a fresh perspective and to stay informed about the broader context of their decisions. The Court’s rulings also serve as pedagogy, instructing law students through a primary source for learning the law. Beyond communicating substantive law, the Court’s decisions speak to students about the values of the Canadian legal system and the aspirations of the profession that they have joined.

The Court’s jurisprudence is also scrutinized internationally. Other countries look to Canada for inspiration and as a valuable source of persuasive authority. The Court’s decisions are esteemed for showing how a modern democracy can accommodate a peaceful pluralism. The Court is seen as a powerful moral voice in the globalization of the rule of law.

Finally, the Court writes for future generations of the Court itself. Because our system of law is built on precedent, today’s decisions will often guide tomorrow’s. Judges are, in Ronald Dworkin’s metaphor, collaborators on a “chain novel,” writing across time and place, picking up strands from those who have come before, anticipating those who have yet to come: Law’s Empire (1986), p. 229. Despite the weight of this responsibility, there is a liberating truth, and great humility, in Justice Aharon Barak’s reminder that “judges write on ice.”

5. To what extent does the role of a Supreme Court of Canada Justice allow for the reconciliation of the need to provide guidance on legal questions of importance to the legal system as a whole with the specific facts of a case which might appear to lead to an unjust result for a party?

Can the Supreme Court of Canada both develop the law and dispense justice in every case? In my view, the Court can and does balance these objectives. The Court always seeks to do justice when it addresses legal questions of public importance.

To explain my answer, it is helpful to analyze the Court’s docket.

The Court’s cases arise from three sources. The first is appeals as of right in certain criminal cases. The second is reference cases, where the federal government asks the Court for its legal opinion or a party appeals from the opinion given by a provincial court of appeal on request by the provincial government. The third is appeals with leave, under s. 40(1) of the Supreme Court Act, which requires the Court to be satisfied that the case raises a legal issue of public importance —“an issue which goes beyond the interests of the immediate litigants, of interest to Canadians generally”: Chief Justice Dickson, Address to the Canadian Bar Association, 1983, cited in D. Lynne Watt et al., Supreme Court of Canada Practice 2020, p. 15.

In criminal appeals as of right, the Court is often (but not always) faced with basic error correction. This may not require the Court to clarify the law but rather to apply it correctly to the facts at hand. If the issue has been canvassed properly in the courts below, the Court will often adopt a lower court’s reasons as its own. In such cases, the Court’s decision confirms the precedent, applies it, and does justice. If a more complete discussion is needed, the Court will clarify the law and will seek to do justice.

In reference cases, the Court is asked for its opinion, usually on questions involving the division of powers or the Charter. These matters often involve issues on which the Canadian public may be deeply divided and where the law is far from clear. But these cases rarely involve dispensing justice to an individual. In references, the Court should remain detached from the wishes of the government of the day and popular opinion and provide its best advice based on what the Constitution and the law require. Having litigated federal and provincial constitutional references to the Supreme Court of Canada, Quebec Court of Appeal, and Alberta Court of Appeal, I believe that this is a role and responsibility I understand and respect.

In selecting civil or criminal cases under the public importance test, the Court does not and cannot remedy every perceived error or injustice in the courts below. As Justice Sopinka explained: “We are not a court of error and the fact that a court of appeal reached the wrong result is itself insufficient. This is still the case if the court of appeal has misapplied or not followed a judgment of this Court”: “The Supreme Court of Canada” (10 April 1997), cited in Watt, p. 15. This approach is required by the Court’s constating statute and practical considerations. The Court receives over 500 leave applications annually, but usually agrees to hear appeals in only 8 percent of these: Watt, p. 13. The Court thus cannot address every perceived error or injustice, however worthy the case may seem.

However, when the Court does grant an application for leave to hear a case, the facts and perceived justice of the dispute often determine the result. The Court always strives to do justice. My experience as a litigator before the Court, and now as an appellate judge, has taught me that cases are often decided by the facts and the judicial sense of justice in applying the law. The best lawyers understand this and will help the Court to reconcile the development of the law with the demands of justice.

If the law as it stands yields an injustice, the Court will ask whether the law should change, because legislation is unconstitutional or through an incremental development of the common law. The Court undertakes this exercise cautiously and, where legislation is at issue, with deference to Parliament or the provincial legislature, but also with the courage to discharge its mandate to enforce constitutional norms. This process is not unconstrained: it is governed by precedent, reason, and principle, not by judicial whim.

What happens when legislation is constitutional yet creates a perceived injustice? In my experience, such cases are very rare. However, in such instances, the Court’s obligation is clear: it is must apply the law — “the judiciary is bound to apply the rules of law found in the legislation and in precedents”: Watkins, p. 760, McLachlin J. As Vice-Chancellor Megarry eloquently stated: “The judge’s duty is one of obedience to the law and to [their] judicial conscience. [They] must not do what [they] want[] to do but what [they] ought to do. Even if the law seems to operate unfairly in the case before [them], [they] must obey and apply it: for if the judges do not obey the law, who will?”: “The Judge” (1983), Manitoba Law Journal 189, p. 190.

The judicial obligation to obey the law and to apply constitutionally valid legislation respects the separation of powers between the executive, legislative, and judicial branches of government and is itself a cornerstone of the rule of law. Yet even in the rare cases when applying valid legislation may create a perceived injustice, the Court can highlight this to the legislative branch, perhaps by noting the law’s unintended consequences or by explaining the unfairness. After such a respectful dialogue, it falls to the other branches of government to decide whether to change the law.