What was your path into law and onto the bench?
My path into the law involved a bit of serendipity. I was in my last year of undergraduate studies, pursuing a degree in political science and English. I really had very little idea of what I was going to do after I finished my undergraduate degree. We didn’t have any lawyers in my family, and a career in law wasn’t something to which I had given a lot of thought. My university roommate, who had always wanted to be a lawyer, was going to write the Law School Admission Test and asked me whether I wanted to write it with her. At the time, I don’t think that they had any preparatory courses or practice exams for the LSAT, or if they had them, I didn’t know about them. A few days later, my roommate and I wrote the LSAT together, and I did well enough to get me thinking about law as a possible career. I decided to give it a shot, although I wasn’t entirely sure about what lawyers did, beyond what you saw on television.
Within weeks of starting law school, I knew that I had landed on my feet. Law was something that really interested me and that I really enjoyed it.
I can trace my path to the bench directly from a job that I got after my second year of law school. I applied for a summer job through the federal government student hiring program. While I could have been placed in any one of the many government departments, I was fortunate enough to have been hired by what was then a brand-new government agency, the Canadian Human Rights Commission. Over the course of that summer, I became fascinated by that area of the law.
One of the Commissioners at the Human Rights Commission at that time was Walter Tarnopolsky, the Canadian guru of human rights law. He was a law professor at the time, this being prior to his appointment to the Ontario Court of Appeal. Professor Tarnopolsky offered me a position as his research assistant, and I worked for him through my last year of law school – a wonderful experience that further solidified my interest in human rights law.
After my call to the bar, I joined a firm in private practice, where I spent fourteen years as a litigator. I worked on all kinds of cases, with my primary areas of focus being labour, employment and human rights law. In the last few years of private practice, another major focus of my practice involved acting for healthcare institutions, healthcare providers and associated medical-legal work.
While in private practice, I also had the opportunity to do some adjudication. I was asked to serve as an arbitrator in labour and commercial cases, and I was appointed as a part-time member of what was the predecessor to the Canadian Human Rights Tribunal. Then, one day, completely out of the blue, I received a phone call asking if I would be interested in chairing the Canadian Human Rights Tribunal, a role I was honoured to accept and thrilled to take on. I spent eight years as Chair of the Tribunal, and it was a terrific job. Chairing a Tribunal requires a completely different skill set from practicing law in private practice, and navigating the world of government was entirely new to me. I knew nothing about budget allocations or public service staffing procedures, but I adapted quickly with the assistance of a great staff. Along with my administrative responsibilities, I also had the chance to preside over a number of really interesting cases, making my eight years at the Tribunal both interesting and rewarding.
I was appointed to the Federal Court in 2003. That was a big step, as the Federal Court has a very broad and eclectic jurisdiction – everything from immigration to pharmaceutical patents, maritime law to national security. I joined the Federal Court knowing a tremendous amount about an area that represented about 2% of the Court’s jurisdiction, and I only had to learn about the other 98%! This presented a significant challenge, but it was one that I very much enjoyed.
I was appointed to the Federal Court of Appeal in 2019, where I still am today. This position presented its own challenges, which included having to familiarize myself with more new areas of the law. For example, tax matters are not a significant focus of the Federal Court’s jurisdiction, which deals only with discretionary tax decisions, whereas the Federal Court of Appeal handles appeals relating to tax assessments, sometimes those that arise in the context of complex, multi-million dollar commercial transactions. We also deal with cases involving areas such as telecommunications law, energy law and transportation law – all new to me!
As with any appellate court, we sit in panels of three. While this could potentially present its own challenges, I am fortunate to have a terrific group of colleagues to work with, and three heads are definitely better than one!
What experience in your legal career has best prepared you for work on the bench?
Although I faced a huge learning curve with regard to many new subject areas when I joined the Federal Court, I was fortunate to have seen the adjudicative process from both sides of the bench before I became a judge, which prepared me well for my new responsibilities.
I had obviously learned about the rules of practice, the rules of evidence, and courtroom procedures during my time as a litigator in private practice, all of which have served me well as a judge. I also had the opportunity to practice persuasive writing through drafting factums, which is a skill that is readily transferable to judgment writing.
Through my work as an arbitrator and during my years at the Canadian Human Rights Tribunal, I gained invaluable experience in running hearings, dealing with difficult counsel and managing self-represented litigants. I continued to work on trying to write clear and concise decisions – a part of the process that I really enjoy – and I developed a pretty solid grounding in administrative law, which has served me well on the Federal Courts.
What advice do you have for counsel who appear before you?
The first thing I would say is to know your file. Members of our court are always very well prepared: we’ve read the file, including your factums, very closely. We will often have gone to the record to verify that the evidence supports what you’ve claimed in your factum, and we will have read the cases you have cited, so we are familiar with the issues that need to be resolved.
You need to be just that much better prepared so that you can answer our questions and address our concerns.
You also want to know your judge. If you’re appearing in front of a judge for the first time, it’s helpful to know the judge’s background so you can tailor your submissions accordingly. Information about judges is often available on the internet – for example, there is a brief biography for each of the judges on the Federal Court and on the Federal Court of Appeal on the Courts’ websites.
Listen to what the judge tells you. If the judge starts the hearing by saying, “I’ve read the file carefully, and I have a pretty good understanding of what the issues are”, don’t start with a lengthy recitation of the facts. You’ve just been told that this isn’t necessary, and you are wasting valuable time. This doesn’t mean that you can’t highlight certain important facts that are crucial to your case, but if we say that we’ve read the file, assume that we have, in fact, read the file.
Questions are not a bad thing, and you shouldn’t be afraid of them. It may well be that we think that you have the better argument, but we may be looking to you for assistance with respect to a particularly problematic point. Help us help you win. Other times, questions may arise because we have a real problem with your argument. If that’s the case, you should welcome the opportunity to engage with the court and address the problem head on, as it will not go away.
You have a limited time for your argument. Take the opportunity to highlight your key points and answer the questions that the Court has for you. Avoid being wedded to a script, but be ready to respond to the Court’s questions as they arise. Don’t say, “I’ll be getting to that later,” because it is obviously on the judge’s mind and is of pressing concern. You want to allay that concern as quickly and thoroughly as you can.
What do you wish the public knew about the justice system?
I don’t think that enough of us understand just how fortunate we are to live in Canada. I know that I didn’t really appreciate this until I had visited a number of other countries around the world.
There are many reasons why Canadians are so fortunate, but a major one is that we have a strong, open, and accountable justice system with an independent judiciary that works hard and does its very best to uphold the law.