Last Word

“A Fine Ending for a Man Who Lived a Great Life”

The following is a eulogy written by Libby Kinghorne, Executive Director of the APTLA:

“My Father was a man of strong opinions… about things both small and big. The strength of his conviction was the same in either case. A representative range would include whether or not Cheese Wiz should ever be eaten (no) to higher education (very pro), adultery (con) and free speech (mostly pro). All one had to do was express something in contrast to his view to get the opportunity to explore – at length – his opinion on it. Bolstered by (sometimes questionable) facts and statistics, he argued every point. Indeed, he enjoyed a good argument; not a fight, mind you – an argument; and he created or participated in many.

There were sometimes arguments found in unexpected places. We declined, for example, to debate him about the identity of two statutes outside the Mirage Hotel in Las Vegas. To the casual eye, they would appear to be Siegfried and Roy; but Dad was convinced they were Romulus and Remus. We felt the lion was a dead giveaway… but to my Father, no.

Dad disliked power imbalances and bullies and did not really adhere to a hierarchical approach to employment situations. When asked for his opinion at work, he often gave it. Strangely, it was an unappreciated gift to be informed in advance that a plan would not work – even if that assessment was ultimately proven correct and if accepted in the first place would have saved a lot of unnecessary effort and expense.

As for bullies, when he was about ten my Father challenged his local bully who was brandishing an ax. As a testament to his boldness and with a steady gaze, Dad said, “you wouldn’t dare” as he put his foot up on the chopping block. It was the principle of the situation that caused him to keep his foot in place as the bully swung the ax down completely severing Dad’s toe. One can’t back down from a bully, you see. Once you issue the challenge, you must stand by it… even on one leg and without a toe. It is important to note that Dad was effusive in his praise for the country doctor who re-attached his appendage, and the bully got in big trouble. My Dad truly counted this as a win.

My parents had a traditional marriage, by which I mean he worked at a job, and my Mother did just about everything else. On the rare occasion that he was left completely in charge, sometimes things did not go to plan. One lunchtime when attempting to make corn chowder, he mistakenly poured a can of green beans straight into the mix. It was a terrible flavour combination, which he nonetheless intended to serve. I objected. He seemed offended… but he couldn’t bring himself to eat it either. And thus, I was sent back to school after “lunch” with a peanut butter sandwich and a “Don’t tell your Mother”. Likewise, he was mad, but imploring secrecy, when I dyed my hair purple at 16 while my Mother was visiting my brother in Newfoundland. He was kind of like a substitute teacher, but with home-court advantage. (more…)

Posted: Wednesday, August 21, 2019

Last Word

A Lawyer With Over 25 Years’ Experience Passes on Advice to Younger Lawyers

I have been a lawyer for over 25 years and here are 10 things that I can pass on to young lawyers starting out (with special thanks to my good friend Angela Swan, Doctor of Laws, honoris causa, for teaching me #5):

  1. Treat everyone with respect and kindness, especially the staff; they have the power to make or break you. There have been countless times when assistants, office managers and clerks have not only made my life easier but occasionally saved me from disaster. Interestingly, over the years, I have observed that associates who treat staff as if they are second class citizens have tended not to survive…
  2. Be as responsive as possible even if it is just to acknowledge you got the message. Nothing drives a partner (me) more crazy than not knowing if a junior associate read the email (or not) and is doing something about it (or not).
  3. Never staple and never date documents until the deal has closed (and never put your decaf moccaccino anywhere near originally signed documents…)
  4. Always re-read an email before you hit send. Autocorrect is not your friend. Do not use all caps in an email unless you mean to yell. I once had a client who not only “yelled” in all caps but did it in red font when he was really worked up. To be all-capped in red became almost a badge of honour.
  5. Don’t be a scumbag; don’t have a scumbag for a client; and don’t let your client behave like a scumbag.
  6. Use plain English. Everyone already knows you have a fancy law degree. Be clear and concise. You will soon discover how aggravating it can be when someone (admittedly usually a senior partner) mumbles in an email (yes that is actually possible). It will put your decryption skills to the test.
  7. You only ever have one chance to make a first impression so make it a good one.
  8. Trust but verify. A client may think they told you everything you need to know, but they haven’t.
  9. Always go to the bathroom before a conference call.
  10. This is not a job, it’s a career. Play the long game.

Thank you: Sonia Yung (General Counsel, Bloom Burton & Co., Toronto), former partner and head of the Toronto Corporate & Securities Group, Baker McKenzie.

Posted: Wednesday, June 05, 2019

Last Word

Grace and Wisdom

I was eight when my grandfather died. At that time, my teacher had me address the class to say a few words about the death of this notable Canadian. Nervously, all I could think of, when I told the class, he was a “nice man who had a gentle way of joking with his grandchildren”. Then I mentioned he had “a busy job as Chief Justice of the Supreme Court of Canada” and it sounded “really hard.”

As a youngster, it was hard trying to understand what the loss of this gentle and beloved grandparent meant, and then having to share that with others. I certainly did not have any comprehension of the position he (Patrick Kerwin) held within the legal community or court system of our country.

What I do recall about times spent with our maternal grandparents is they were calm, caring, and generous with their time and came to dinner every Sunday. Coming from a large family (seven children), we would visit them in their apartment on Wilbrod Street here in Ottawa in smaller groupings so as to not overwhelm them. Sitting with my grandfather in his study, he’d watch over a few of us playing on the floor nearby as he chatted with us; in between lighting his pipe. The aroma of a certain pipe tobacco brings me back there.

Growing up, my mother, and English Professor, Professor Isobel Kerwin McKenna, often told and retold stories of her father, grandparents and many more. Once beyond the insular teenage years, I began to take note and very soon started a file so I could follow who it was she was talking about. These stories often included opinions about what the SCC was doing and whether she agreed with them or not.

My grandmother, Georgina, moved in with our family two years after CJ Kerwin died, and helped run the house (my father died when we were young). In these conversations, my grandmother would only offer a few words on current Court events but, every now and then, she would tell a quick story about her husband’s time on the Bench. If the name of PM King came up, it was the only time I heard her say anything mean about anyone. Her beef came from Patrick Kerwin’s early days on the Court in the 1930s when PM King asked the young Justice to work on a project that meant no vacation that summer.

My grandfather worked long and hard through an extremely humid summer in the old mouldy Court, located just behind the Parliament’s West Block. In September, the PM simply told Justice Kerwin, “Oh, we’re not doing that anymore”, and walked away. It was working in that “dreadful building that made your grandfather sick for the rest of his life!” my grandmother told us.

As to the story of CJ Kerwin’s life, I could not convince my mother, the retired English professor to write a book about her father. She said, “It’ll take too much work!” Now, having written a biography about him, I certainly believe her.

But, in doing so, I found the research simply fascinating in gathering information from many sources. Luckily, living in Ottawa meant spending hours, and days, at the Library and Archives, Parliamentary Library and more. Patrick’s third child, George Mace Kerwin, was a collector of all things family related so I spent time at my cousin’s home in Toronto sifting through his treasure trove of history.

This research all came to fruition in a book titled, ‘Grace and Wisdom’, the title taken from a comment made by Governor General Vanier at the time of CJ Kerwin’s death in February 1963.

In examining his (my grandfather’s) life from both a personal and professional viewpoint, I found cases he ruled on in the Court that affect our wellbeing, freedom, and institutionalized racism in Canada to this day. Cases such as Roncarelli v. Duplessis, 1959, Switzman v. Elbing and the A.G. of Quebec, 1957, and Noble et al. v. Alley, 1951). I also focused on how his life as a lawyer in Guelph, a Judge on the Ontario Court and the Supreme Court affected his and his family’s life.

To me, his successful and varied career in law paints a picture of an adaptable man with a strong sense of self-discipline and duty.

And a good grandfather too.

Thank you: Stephen G. McKenna (Canada Revenue Agency, retired)

Posted: Wednesday, February 20, 2019

Last Word

Valentine One Liners

In case you need some ideas about what to write in your Valentine’s Day card this year. Here are a few (candid) one-liners to show your loved one you care.

1. Because Option B means living alone with a bunch of cats.
2. Don’t even think of starting a fight over this card because you know I’ll win.
3. It was either this card or matching sweaters.
4. I got this card for you. No need to call me a hero.
5. I got off the couch to buy you this card (just kidding, I ordered it on the Internet).
6. I miss you when you’re gone like I miss solitude when you’re here.
7. Let’s go out and stare at our phones together.
8. I’m yours, no refunds.
9. You’re the peanut butter to my jelly.
10. I kind of sort of maybe quite possibly like you a lot.
11. Turns out I like you more than I originally planned.
12. You’re my favourite person to text—47 times per day.
13. I love you like a cow loves not being a burger.
14. If you got stung by a jellyfish I would pee on you.
15. I’d walk through fire for you. Well not FIRE because that’s dangerous.
16. Thanks for putting up with my meltdowns.
17. I’m so glad you’re as weird as me.
18. Meh…you’ll do.
19. I found someone that I want to annoy for the rest of my life.
20. You had me at “let’s stay in and watch Netflix”.
21. I’m not sick of you yet.
22. You’ll do.
23. Be my Valentine? It’s a pretty good gig with tons of perks!
24. I love you so much I would give you a kidney…maybe even one of my own.
25. I’m sorry that I roll my eyes at you pretty often.
26. You’re the sweatpants to my life—cozy, warm & the only thing I want after a long day.
27. I’m only in this for your cute butt.
28. I’d shave my legs for you.
29. I love you a little more than I expected.
30. I wouldn’t wanna binge watch TV with anyone else.

Posted: Tuesday, February 12, 2019

Last Word

Getting Practical with AI

I’ve been interested in AI since Law School. But I’ve also always liked the nomenclature—how can “intelligence” be “artificial”? Actually, interested while in Law School, because at the University of Edinburgh (there 1972-75) there was a Department of “Artificial Intelligence” in a building near the Law School, and I would sometimes wander in and sit at the back of the class. It all sounded very sci-fi to me, the main thing I remember (at least in one class) was teaching a machine to play games like chess, and could a machine “think”, or think like us, or did they think “like machines”?

I’d just come off reading every single Isaac Asimov book (The Foundation Trilogy is the best; possibly the best science-fiction ever written?), so for me “science fiction” could really become “science fact”—and of course that has happened, and continues. But don’t think I am, or was, some kind of geek-nerd—I’m writing what you’re reading now, cave-man-like, with a pencil.

To use a Scottish phrase, I like to think “outside my ken”, i.e.  think outside of personal current knowledge (easy for me, given my minimal knowledge base). Astronomy on the one hand, and micro-organisms on the other, are also of interest—there are remarkable parallels between how both are organized. It’s remarkable that things so crazy big, are similar to things that are so crazy small, molecular even. Or, things that we consider to be inanimate, perhaps are not so inanimate as we think? For example, there’s a prof at the University of Florence (Dr. Stefano Mancuso) who researches plants.

If I were to ask you two questions:

  • can plants remember
  • and can plants see,

you would presumably respond, “of course not”. Yet, Dr. Mancuso:

  • there is a plant called Mimosa pudica that when gently shaken, responds by closing its leaves; if you do this 7 or 8 times, the plant figures out that the shaking is not a real threat, and the leaves stay open; and the plant can remember this lesson for more than 40 days.
  • there is another plant called boquila; a vine that grows in parts of South America, and it avoids predators by taking on the shape, size and colour of the leaves of plants around it; not so uncommon, as some insects can do the same; but here’s the interesting part—one part of the boquila vine impersonates one particular species, while another part of exactly the same vine impersonates a completely different plant, that’s right beside it; in order to do this the vine clearly must have some idea of what both plant neighbours’ look like; how does it do that? (Dr. Mancuso speculates the plant uses its exterior cells as “crude lenses”). (See book review in WSJ, Jan. 4, 2019).

There are tons more crazy stuff out there, like why octopuses don’t have central cerebral systems, but their “brain” (which is considered to be smart) is spread throughout their whole body.

Anyways, I’m in the Ont. C.A. Monday and Tuesday of this week (neither memory-retaining or seeing plants nor octopi come up in the argument), and manage to jump on an earlier train back (too many bankers boxes to fly). And on the train, meet a young friend, law-grad (lawyer also) Sam Witherspoon—he clerked to Justice Hughes (an IP specialist) at the Federal Court.

Sam now runs an AI firm, or as he calls it, a “machine-learning system”.

He told me:

  • he had just won a Fed. Govt. contract for an AI research project on infectious diseases
  • and was developing a sophisticated program that would accurately predict recidivism in the criminal law system (he had been invited to speak at a National Judicial Institute conference for Judges in Vancouver next month, on an unrelated AI project).

And I told him:

  • I’d just come from the Ont. C.A. (appealing a Divisional Court case), in which:
    • 68 affidavits filed; of which 2 cited by the Court below (i.e. Divisional Court)
    • 29 cross-examinations on affidavits below; of which zero cited by the Court
    • 16-17,000 pages of material filed; of which 3 pages cited.
  • and could AI help? I thought so.

We got to talking, and he told me about a Law School classmate he is particularly proud of, who is now a JP in Nunavut (I’m a member of that Bar).

Here’s what Sam told me, and I asked him to send me an email on this later, which he did:

“Hi Eugene,

Good to see you on the train. As promised, am sending you this.

I met Joey almost 7 years ago when we first started clerking at the Federal Court. The first time we met was on our first orientation day. We went out for drinks at D’Arcy McGee’s as a group of new clerks after our first day of work. I ordered a diet coke and sat quietly, a bit overwhelmed. After an hour I needed to head home. I quietly paid my tab (about $2) and left. The next day Joey came and found me and confronted me about walking out on my tab. In the confusion of 30+ customers all getting separate bills with one server it turns out she had lost track of my boring coke. Joey had paid for me. It was the start of a long friendship.

Today Joey and I do very different things—I run a machine learning company and Joey is a Justice of the Peace in Iqaluit. I am very proud to call Joey a friend and couldn’t help brag to you about a recent decision of his when I met you on the train yesterday. What stood out for me is the humanity and compassion with which Joey approached the defendant. It is worth your time to read the transcript. Joey’s humour and empathy are on full display. I am grateful that Joey is a Justice of the Peace and I think Canada is lucky to have him.

Samuel Witherspoon
Chief Executive Officer
IMRSV Data Labs”.

Click here to read what his JP friend wrote (technically, said) by way of judgment—see in particular from p. 24 on, starting: “The Supreme Court’s guidance in Anthony Cook…”.

Posted: Wednesday, January 23, 2019

Last Word

Dealing with Depression

Depression and Friends of Depressives

Depression is an illness. It is not a failure. I write this short piece as a lawyer, spouse, father, friend and community member. And as a life-long depressive. I am one of many.

Many depressives have hidden our challenges from our clients, our colleagues, our family and friends and community.  Fortunately, times are changing.  Depression is a type of health challenge not a badge of dishonour or a failing.

We Are Not Alone

Like many high functioning depressives, for a long time I felt that I travelled a lonely road. I lacked peer support, which is quite different than love or friendship. Peer support can make all the difference. As depressives we share an intense experience, which is a type of bond.

Out Of the Closest And Into Our Families

I have chosen to “out” myself. in doing so I have found community. I chose this route to put my case out there. So that those around me have greater understanding of my challenges and, perhaps, the challenges of others. My experience has led to many colleagues, friends and (even) family reaching out when they or their friends have their own challenges. Letting light into my closet has brought renewed healthy growth to me and to others.

5 Lessons Learned – A Short Laundry List

  1. Being a depressive is not a failing, it is a health challenge
  2. We are not alone as professionals. Indeed, depression among professionals is commonplace.
  3. We are not alone within our firms.
  4. We are not alone among our family and our friends.
  5. Peer support is available and vitally important. Others have walked this path and can share their experiences. Peers may not have all the answers, but they have found tools and maps that work for themselves. They can and will share what they learned through experience.

Some Do’s And Don’ts

1. When “in a state” DO pause before acting. Examples include:

a. Delay sending that email.
b. Delay making that call.
c. Work in a team. Tag team lawyering – enlist a friend or colleague to carry some of the load. Get assistance with legal work. Vet emails. Calm frayed nerves.
d. Delay taking that step to self-harm (of all types). There is no urgency. Another moment may reveal pathways which have been hidden. If in crisis, seek help without hesitation!
e. Breathe. Breathe. Breathe.

2. DO seek help.

a. “Call a friend” – a peer is always available.
b. Many Bar and other professional associations have Member Assistance Programs. In Ontario we have:
c. Call a doctor and keep calling. Often the first treatment is not what brings relief. Keep working with your doctor or go to the hospital. The right medication or combination of exercise can make all the difference.

3. Know when to and how to turn your mind off, or at least shift into neutral.

a. Take regular breaks during the day, whether you think you need them or not.
b. During times of high stress or crisis, pause and reflect. You may learn to feel it building up in your body like an electrical charge.
c. At the end of your day, stop lawyering. Shift your focus to your family, your friends, your hobbies, peaceful diversions like cooking, walking, music or books.
d. Take regular vacations.

4. Physical health can help mental health. I can not emphasize this point enough. Eat and sleep (pharmaceutical aids can be helpful). Exercise. A break from my mind-chatter provides relief when I need it most. When I’m in a dark place, silent and still is a bad combination for me. When I am in a bad place, I can not-think for extended periods when I am exercising which is good for me. In that sense, exercise is rest – mental rest.

Tips for Family, Friends, Colleagues and Community Members:

  1. DO: Be present. Be a friendly and non-judgmental or problem-solving listener. DON’T: assault the senses with suggestions or directions.
  2. DO: Be thoughtful. The common greeting “how are you?” is hard on a depressive. Consider alternatives such as saying something positive and nonintrusive like “the weather is nice outside”. Many pleasantries are counterproductive and shortcuts for really considering the needs of the person you are with. DO: think before you speak and act!
  3. DO: Keep in touch with the depressed person. Follow-up with meaningful and personalized contact. Understand that often depressives are aware of friends’ contacts even when we are unable to respond at that time. You can be present without being pushy or becoming a burden.  Think: light touch.
  4. DO: Try to learn more about how you can help. This is often a process of network communications.

Bottom Line

We are not alone. In our community, we can open closed doors. Givers get.  Depressives can and should join the community shared with our family, friends, colleagues. We can prosper with our health challenges.

Posted: Wednesday, January 16, 2019

Last Word

Three Decades in Private Practice, So Far

Work less, think more

It is a privilege to be paid to think for a living. “Lawyers should work less and think more,” was a saying of my late senior partner.  Thinking and good judgment, just as character, are not qualities that necessarily come with a law degree.  They are slowly built, over time, and time is something that is in ever diminishing supply.

My voice became untied

I was not summoned to become a lawyer. I did not embark on a legal career with anything resembling a cause, a passion, a sense of calling.  I went into law because of a writer’s block.  If I could not write, at least I should do something worthwhile with my life, something that would consume the hours like fire to human hair, make the writing impossible. But no sooner did I begin to study law, then the tongue became untied.  I began to appreciate that my voice could be found, if at all, in giving voice to those I served, who otherwise might not be able to tell their own story – which is the essence of advocacy, the root of the Latin vocare: advocare – to speak for another.

For example

  • a mother’s voice, speaking the words of her child, in fear, putting that before a Judge in a way that the Judge could hear the mother’s pain, safeguard the child in need of protection.
  • collaborating with a client in the work of sifting through sixty bankers’ boxes of documents to find the key to his case: “Here’s what you are looking for, a solicitor’s reporting letter to you, not your now bankrupt company,” in a solicitor’s negligence case.
  • collaborating with opposing counsel in putting a husband and wife back in bed together (so to speak) through a shareholders’ agreement, so that a contest over the value of the golf course costing hundreds of thousands of dollars could be avoided, so that they equally participate upon the actual sale.
  • and the thinking, thinking beyond the details and documents that multiply like the proverbial sands of Arabia, that always threaten to bury and to blind.
  • and not ever losing the care and compassion for the individuals caught in the vortex of their human dramas and conflicts.
  • because if it is worth doing at all, performing whatever legal services you provide, it is because somewhere deep down, in embracing this profession, you recognize you are repaying a debt you owe to other human beings, call it society, for the privilege of being paid to think for a living.

What to say to young lawyers starting out?

Times and the context in which lawyers practise today are vastly different than the profession that consumed my early years.  I had the benefit of wonderful mentors and time. My articles were in a firm which offered a rotation. I wasn’t forced out on my own.  I benefitted from watching and listening.  Which is still available to young lawyers, as it is to members of the public.


This past summer, I took on a young university student, the child of a former client, my first abuse case, where I had cut my teeth on a legal aid certificate.  The young lady volunteered to shadow me.  As I had left my practice in downtown Toronto, severed the cords and expensive resources of articling students, accounting department, clerks, I was able to work pro bono on an abuse case, courtesy of my greatly reduced overheads, and with the help of this intelligent young woman.  This past year has been an eye opener.  Just as younger women had been my mentors in guiding me into the profession, younger women were now my mentors in how it is done, solo, these days, how you begin building the relationships that lead to the clients, how young lawyers create themselves.

Lack of deference

We are in an age where there is no deference, where the internet has led many to believe they can be their own lawyers, where the speed of everything has increased to such a pace that it is almost impossible to think, let alone to think clearly.

We walk clients out of the shadows of their darkest valleys

Where I entered the profession, not wanting to be the starving artist, now lawyers, at the outset, are starving artists, who must be willing and able to work for next to nothing, with commitment and without any certainty of getting paid for the time and services they provide.  What will set them apart will be their ability to think – to think creatively and collaboratively with their clients and other counsel in seeking solutions from which all can benefit.   This will require a shift in thinking, outside the paradigm of winners and losers; it will require real thinking, not artificial intelligence.  What is the value of the service lawyers provide? The value of our working lives?  We must measure it by the human steps we take alongside the clients we help walk out of the shadows of their darkest valleys.

That’s what I do, daily, walk alongside a client and walk them out of their darkest valley. I make a difference. So can you.

Thank you: Darlene Madott (Darlene Madott Professional Corporation, Toronto),

Posted: Wednesday, November 28, 2018

Last Word

Are Hockey Tickets (Including Playoffs) Matrimony Property? This is Canada, After All

If the Edmonton Oilers are fighting hard for the Cup/Playoffs, shouldn’t their litigant fans do the same?

See McLeod v McLeod, 2017 ABQB 581.

Q: Are “Oilers seasons tickets…property” (for the purposes of the Alberta Matrimonial Property Act?

A: Yes (paras. 5-9).

And: “[w]hether that is the actual possession of the tickets, the control of the Oilers Account, or the ‘right’ to purchase the tickets…”.

Held: “These tickets…fall within the definition of household goods”. “The parties shall alternate choices for game tickets…until all regular season tickets have been assigned.” (paras.  9 and 25 respectively).

But what if the Oilers make the Play-offs?

“In the event there are playoff tickets, the Plaintiff shall choose her game first, the Defendant second, and alternating thereafter (para.25)

No word on whether the Plaintiff passed on any games against the Maple Leafs however.

(Lori Johnson, Q.C., of Johnson Turner Lefaivre, for the Plaintiff; Dale Tumbach, of TC Family Law Group, for the Defendant; Madame Justice Ritu Khullar, Alberta Court of Queen’s Bench).

Posted: Wednesday, March 14, 2018

Last Word

Lawyering & Management Consulting – Top Ten Opportunities for Fun (& Profit)

I graduated law school 39 years ago and I am still having fun. Having worked as a lawyer and as a management consultant, ten principles of practice have persistently resonated in my day to day work. I wish I had known them when I started. They would have made both lawyering and management consulting even more fun and profitable.

  1. The practice of law and management consulting should be focussed on Low Efforts for High Results. This is completely contrary to what I thought when I graduated law school! But it’s true. I eventually learned that what I did naturally could be easy and profitable. I enjoyed it and I received good if not outstanding results. When I took on something at which I had to work extraordinarily hard and put in super human efforts, I could still get good results but I was exhausted and uninspired to take on any more. I was driven more by ego than by common sense. This principle was taught to me by an old friend and successful business author with a Harvard MBA. It seemed so counterintuitive, until I yielded. I knew it was working when repeat business started to flow because of both client satisfaction and my obvious enthusiasm for what I was doing.

2. Inspire trust. Actually walk the talk. There are lots of talkers out there but many fewer walkers. Clients came with problems for me to solve. That was my job. Too much talking could get me into trouble. On the other hand I never had an issue when I actually delivered what I said I was going to deliver. And part of that was understanding really what the client wanted. Extra time taken to diagnose the problem and fully grasp what the client expected paid off when the time came to deliver the invoice and the product. That built trust for me. Deadlines met were opportunities.

3. The customer (client) actually is always right. Lawyers are smart, and many times perhaps too smart, but the client calls the shots on our advice. As part of the rule about inspiring trust, walking the talk is important. Listening to the client instead of talking is a close second place. The more I have listened the more I have learned what the client “really” wanted, not what I thought he should have.

4. Choose between things and people. My late and very wise father (not a lawyer) told me I should choose between working with things or working with people. Which did I like better? Some lawyers are better with things they learn in the library while others are better with people they meet for coffee. I do what is easiest for me.

5. Change is inevitable. We practice it when we persuade and I learned that no change is possible if any of the values in this equation equals zero:
C = D x V x F > R
Change equals Dissatisfaction * Vision * First Steps that is greater than the Resistance. It is the empirical formulation of the lightbulb joke: How many psychiatrists does it take to change a lightbulb? Only one but the lightbulb really has to want to change. Change occurs only in response to a “felt need to change”.

6. Be an interesting person, not just a good lawyer. Save the “war stories” for other lawyers. No one (who isn’t a lawyer) wants to know about the intricacies of an Anton Piller order, shocking though they may be. I like to think that I was a pretty interesting person before I went to law school. Clients relate to stories that they can understand and that resonate with them.

7. Determination matters. It matters more than intelligence. There are hundreds of smarter lawyers out there, but the client is seated in front of you. One of my partners told me early on that 90% of success is simply showing up. The secret is simple. Show up every day and give the client what the client wants. And they usually want to be heard. I learned that many (but not all) clients ironically, cared more about me listening to them then about the actual result or work.

8. Marketing is essential. The First Rule of Marketing is that if you do not market you will not get clients or files. The Second and equally important rule is that the work will not come from the people to whom you market. I do not know how this works but it is unfailingly true. Do no marketing and nothing will happen. Market and something will happen, but the universe teaches us humility because the work comes from a client or source to whom we did not market. We must sow seeds for there to be growth but we should not presume that we have the right to harvest exactly where we planted.

9. You are Number One. Look after your own best interests. Other than your parents, likely no one cares about you except yourself. Don’t worry what other people are thinking about you because they probably are not. They are thinking about themselves. You are responsible and accountable to yourself.

10. Have fun – Low Efforts gets High Results. After 37 years in the practice of law and management consulting, the thing that drove me and still drives me is the curiosity and wonder I have in what clients say, the problems they pose and the opportunity to solve the problems for them. Clients want our help and they want to know that we are happy to be part of what they are doing. There is no better way to close a deal with the client than to say, “This looks like it is going to be a lot of fun. It is going to be great”. It’s infectious and engaging. If it isn’t fun anymore, why do it?

Thank you: Jeremy Hill (THSG, Ottawa),

Posted: Wednesday, March 07, 2018

Last Word

Miracle Day: Living Life Large

Eugene, when I picked up the phone on January 21, 2014 I had no idea my life was about to undergo a radical change. Here I was in London:

  • with a wonderful family,
  • a great career at Western Law,
  • still playing hockey at age 57.

I felt I was making a difference as a member of the CBA’s Access to Justice Committee, among many other legal and extra-legal pursuits.

The call was from my doctor. I had a liver tumour 7 cm in diameter. And I needed a liver transplant.

In March, the hospital did a workup to ensure I was eligible for transplant. I passed in every way – except one. The tumour had grown to 12 cm, too large for transplant. Now I had to face my mortality, and the possibility I may not live to see my grandchildren—maybe not even see Christmas.

Having lost my first wife to liver cancer in 2001, telling my young adult children that their father too might not be there for them was one of the hardest things I’ve ever had to do. In the meantime, keeping things normal and routine helped keep my emotions in check.

One option remained open: a chemo treatment that involved injecting chemo directly into the tumour. After two treatments, a CT scan in August 2014 showed the tumour had shrunk and much of it was dead. I was placed on the transplant waiting list the following month. For the first time in six months, I felt some hope.

I had no visible symptoms, and continued working full time until a Monday afternoon on November 24, 2014. The phone rang in my office. I could see from the extension that it was from University Hospital. They had a liver. I felt both relief and trepidation coursing through my body.

The next day, I said goodbye to my wife Laurie as I was wheeled into surgery. I didn’t know how close it was to being our final goodbye.

Several hours later, the doctors told my family that the transplant had failed on the table due to clotting, something they had never seen before. They needed a second organ donor—within 24 hours.

Needless to say, that doesn’t happen, nor did it happen in my case. My family lived in the ICU waiting room. Time passed – 48, 72, 96 hours. At that point Laurie had to face the inevitable and start thinking about funeral arrangements.

On the morning of the fourth day my daughter (name, age) awoke in the ICU waiting room and announced “today will be miracle day”.

That’s when the miracle happened. A second liver became available later that day, and was transplanted in the early morning hours of the fifth day, November 30. My family calls that day “Miracle Day.”

I was placed in an induced coma for 10 days. When I awoke, I had lost my core muscle strength. I couldn’t even sit up, let alone walk. Through gentle cajoling by my physiotherapists, I gradually regained some strength. I was released from hospital in late January 2015 after I was able to navigate one flight of stairs.

I attended my first social event in February when I still relied on a walker. I returned to work part time in April 2015, and full time in June. In August, I made my first ever hole-in-one (which is another miracle, given my utter lack of talent). By January 2016 I was back to playing hockey once again.

I’m now living a normal life, working full time, travelling, and enjoying sports. But my life has changed. When you face death and survive, you tend to live life large. That’s what I have done. I am busier than ever, and travel whenever I can. My bucket list is to visit all seven continents. I have two more to go.

I had no idea what a powerful emotion gratitude is until I became an organ recipient. I cannot imagine what my donor families went through when making the difficult decision to donate the organs of their loved ones. Their kindness has allowed me to live to see my first grandchild, who was born in November. I am forever grateful to them.

To pay back the gift I have received, I have become a passionate advocate for organ donation, and was appointed to the board of the Trillium Gift of Life Network, which operates the transplant system in Ontario.

My gift of life has also allowed me to pursue my other passion, access to justice. I was soon back at it, rejoining the CBA Access to Justice Committee. In December 2016 I appeared before the House of Commons Justice Committee, which was carrying out a study on legal aid. On behalf of the CBA, I made submissions on reforming the funding of civil legal aid, many of which were adopted by the Justice Committee in its recent report.

Hey, a final word on organ donation:

  • did you know Ontario no longer uses donor cards?
  • you can save up to eight lives by registering to donate your organs.
  • go to to register, and tell your family about your wishes.

Thank you.”

Doug, Eugene here; I registered yesterday. Told Giovanna and the kids. Giovanna says:

  • will the donee speak like you?
  • are they obliged to wear a kilt and cycle to work (not at the same time)?

Thank you: Doug Ferguson, University of Western Ontario,

Posted: Wednesday, February 21, 2018

Last Word

Top Ten Thoughts from a Criminal and Civil Lawyer After 43 Years in the Profession

After almost 43 years of practice doing criminal and civil litigation, I’ve been around the block a few times. What have I learned? Maybe some experiences and lessons learned will be helpful to colleagues just starting out (and maybe even to others still going around the block). Here are 10 thoughts.

Check Your Ego At The Door

It’s not about you. The client wants a committed lawyer to represent him or her, not a prima donna (henceforth, I use him or her interchangeably to save on words).

Communication is Key

Speaking of clients, your clients will likely give you more headaches and grief than opposing lawyers. Make sure you communicate thoroughly with your clients ensuring that they understand what you are talking about. Confirm important discussions in writing and in English, or whatever, not legalese. Avoid fancy words like “henceforth”.

Ask Questions

I know lawyers are supposed to appear powerful, invincible and know it all—but it ain’t so. Don’t spend hours trying to reinvent the wheel. Very often you can just telephone government officials at a court office to get instant info on how to proceed, saving you from scratching your head trying to understand the Rules of Practice. Most staff are very kind and free with this information. Similarly most colleagues are also only too happy to mentor you through a problem. I guess this goes back to the ego at the door thing.

Ask Specifically For What You Want

Generally, judges, lawyers, clients and other mortals are not mind readers. Notwithstanding what many lawyers think, they do not possess the mental qualities of the Amazing Kreskin. Preface your goal up front, like in, “I want a restraining order”, “I suggest a settlement meeting”, or “I want more money”, (and with clients, avoid words like, “notwithstanding”).

Dangers of Using Emails

Speaking of communication, beware of the dangers of using emails. One such danger is addressing the wrong recipient. Woe is you if you mean to send a vital email to your client Paul Rosenberg and you key in “Paul” and you don’t realize your computer sent that message to Paul Williams, opposing counsel. Do that a couple of times and you may have to consider another line of work after a rendez vous with LAWPRO.

Use the Phone More Often

Alexander Graham Bell’s invention still works well, regardless whether he actually invented the phone in Brantford, Badeck, or Boston. A phone conversation is much more personal and it will allow you to sound out the other party and maybe hear body language. It will also avoid the problem of addressing the wrong Paul.

Don’t Dabble in Unknown Areas of the Law

I know business might be slow at times but generally speaking, taking on a criminal case if you are a commercial lawyer is courting potential disaster. Would you want your ophthalmologist to do your next colonoscopy? I thought so.

Always Be Civil

Never insult the other lawyer or her client. In 43 + years of practice I never yet heard of a case of a lawyer saying, “You are a total idiot and your client is an ass,” and lawyer B responds, “You know. I’ve been thinking about that and I agree. Here’s my chequebook.” As Mark Twain once said, “Always do the right thing. It will gratify most people and amaze the rest”.

Unleash Your Sense of Humour

This does not mean ridiculing people. It means allowing yourself to see the humourous side in imperfect situations such as traffic, inclement weather or dealing with companies that say, “Your call is important to us”. This attitude will create rapport, even with lawyer B. It will also help preserve your sanity.

Get a Life

I mean take breaks, lunch, mid-day walks and vacations. And when you take a vacation, take a vacation, meaning no email etc. checking. Paul can wait.

Have a Passion Outside of the Law

Whatever excites you, do whatever feels right. There has to be something. Mine has always been writing. (Some people even like golf. My views on that would be the subject matter of another article.)

You will notice I listed 11 suggestions, not 10. I guess you might add to the list: Always try to deliver more than you promise.”

Thank you: Marcel Strigberger (retired lawyer and author),,

Posted: Wednesday, January 31, 2018

Last Word

Reflections of a Lawyer’s First Visit to the SCC


Just a few short weeks ago I attended my first live hearing at the Supreme Court of Canada  and it was incredible. Thought I would share a few thoughts with you and your readers.

A Personal Connection

As a lawyer I have been reading the Supreme Court jurists’ decisions for years. Their varied approaches to legal analysis very rightly have influenced my professional skills and knowledge. Due to this fact I felt somewhat of a personal connection to these jurists. They are continually working to help inform and guide the Canadian democratic community. I was especially pleased to see Chief Justice Beverley McLachlin “in action” prior to her retirement. It was a unique honour.


It was also an honour to see such diverse perspectives represented at “The Court! La Cour!” on November 30th and December 1st by counsel for the parties and including many interveners. The cases being heard were Trinity Western University, et al. v. Law Society of Upper Canada and Law Society of British Columbia v. Trinity Western University, et al. As these cases made their way through the lower courts of British Columbia and Ontario, the myriad of issues they represent have stirred strong feelings, passion, and interest in many facets of our society. For this reason, it was not surprising that the SCC courtroom itself was packed, as was the overflow seating in the atrium and the Federal Court rooms in the SCC’s building.

Over the intense two-day hearing I met a variety of people who were attending to support their counsel, spouses, partners, friends, colleagues, and fond acquaintances. I was there supporting my spouse, so it was wonderful to find this common ground. It was also wonderful to find that everyone I met was personally invested in the case and legitimately concerned about what Canada’s top court’s jurists’ ruling will mean for our democracy.


Not surprisingly, the submissions to the Court were also very personal. It was clear that all 70+ counsel felt that they were advocating for an abundantly important cause. It was amazing to experience such impassioned, yet measured, advocacy. The varied arguments and submissions of the counsel obviously resonated with the spectators and Court, as was evidenced by nods, smiles, scowls, approving or disgusted looks to one’s peers, and laughter at appropriate times. Obvious passion about the content of the case was coming from the Court as well. TWU’s British Columbia counsel, Kevin Boonstra, was not able to get even one minute into the initial submissions before the bench started its questioning.

Complex Issues

The early questioning from the Court sought to clarify that the TWU cases are not simply about one issue. This became all the more evident on Day #2 when an unprecedented number of interveners made submissions. The interveners represented many associations and communities in Canada, including the LGBTQ2 community, humanists, atheists, lawyers, Evangelicals, Sikhs, Seventh-Day Adventists, Catholics, secularists, professors, charities, advocacy and civil liberty organizations, among many others. Each intervener sought to assist the Court in understanding the impact of the decision on the country and specifically the people associated with its client.

Our Nation’s Democracy

I realized that I do not envy the SCC judges. The decision in the TWU cases will significantly impact the people of Canada in more ways than I think most people realize. Central to these cases are some key questions about our nation’s democracy:

  • What does it really mean for Canada to be a “mosaic” at this time in our history?
  • What are the appropriate parameters of pluralism in our free and democratic society?
  • What does diversity mean and who gets to determine what differences are allowed in the “public square”?
  • When does a government “endorse” the actions and values of a private association and how does this shape our “mosaic” in the “public square”?

What I’m Thankful For

All-in-all, I am abundantly thankful that I live in a free and democratic country where matters are handled through a diverse group of skilled advocates and not violence and force. That is something worth preserving. In this vein, I – along with my fellow Canadians, legal professionals, those in Canada’s diverse communities of belief (including secularists, humanists, and atheists), as well as many people around the world – am anxiously awaiting to see how the Court will decide the TWU cases, and how these decisions will shape the future of the nation that I deeply love and call home.”

Thank you: Gwenyth S. Stadig (Amy, Appleby & Brennan, Waterloo)

Posted: Wednesday, January 17, 2018

Last Word

Ten Things Important to Me About the TWU Hearing

Privileged Nation

An adept, highly functional, engaged and impartial judiciary helps define a true democracy.  We are deeply privileged as a nation to be able to discuss and work out these complex issues of freedoms and rights with the help of such an institution.

Privileged as an Individual

I am deeply privileged as an individual to be able to able to participate in such a process without fear of harm or retaliation. Many of my colleagues around the globe are not so privileged.

Functional Democracy

In a functional democracy, it is still possible to discuss matters of the heart, of religion, of rights and of freedoms, without debilitating rancour and with good will, even if and especially when we differ. These days, that fact can make me weep with gratitude.


So many different perspectives and voices from throughout our country and communities were there to speak to their interests as parties and intervenors in this case. They provided depth, breadth, intelligence and passion to the discourse. They are necessary.

SCC Judges

The preparation, scope of knowledge, concern, and attentiveness from our Supreme Court Justices was by turns awe-inspiring, challenging and frankly, daunting. And we would not want it any other way.


We are best served by our judiciary when we serve them with our wisest arguments and do not flinch from grappling with the complexity of the issues. Even if our knees are knocking and our hearts are hammering.

Fruitful, Respectful and Enjoyable

Fruitful, respectful and enjoyable dialogue between the bench and bar was on full and wonderful display in this case. It made me proud.


Tough questions of law do not mean you have to be a tough guy. The traditions of respect, collegiality and friendliness despite our differences made a lengthy and potentially charged hearing a pleasure to be a part of.

Shared Experiences

Never underestimate the power of a shared experience to draw even the most disparate of folks together, even in court. Remember that fact when you are feeling most out of your element and surrounded by strangers. You may be pleasantly surprised.

Why I’m Grateful

Finally, I am very happy that the Canadian Bar Association did us the honour of retaining my co-counsel Angie Westmacott, David Grossman, Olga Redko and myself, to present the Association’s perspective. We could not have asked for a better client or brief. Thank you!

Thank you: Susan Ursel (Ursel, Phillips, Fellows, Hopkinson LLP, Toronto)


Last Word

A (Judicial) Way with Words (and Song Lyrics too)

The following US decision was sent in to me by Barbara Grossman of Dentons Toronto:

“Eugene, this humorous short US decision (shared with me by retired Master David Sandler) denying an adjournment requested by a lawyer who had prepaid for a trip to see the total eclipse of the sun, might be a worthwhile inclusion in your newsletter, not only for the miscellany of interesting scientific, historical, literary and musical information about solar eclipses, it references, but for the Judge’s “way with words” in conveying his decision. Following a quote from Carly Simon’s song “You’re So Vain” about taking a lear jet to Nova Scotia to see a total eclipse of the sun, he concludes:

When an indispensable participant, knowing that a trial is imminent, pre-pays
for some personal indulgence, that participant, in effect, lays in a bet. This time,
unlike Carly Simon’s former suitor, whose “horse, naturally, won,” this bettor’s
horse has — naturally — lost. The motion (Doc. 31) is DENIED.”

Click Here for the full decision (it’s only 3 pages).

Thank you:  Barbara L. Grossman (Dentons, Toronto)
And thank you also: Master David Sandler (retired).

Posted: Friday, January 12, 2018