The Honourable Justice Ritu Khullar’s Questionnaire
Under the new judicial appointment process announced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for such appointment by completing a questionnaire. The questionnaires are then used by the Judicial Advisory Committees across Canada to review candidates and submit a list of “highly recommended” and “recommended” candidates for consideration by the Minister of Justice. Candidates are advised that parts of their questionnaire could be made available to the public, should they be appointed to the bench.
Below are Parts 5, 6, 7, and 11 of the questionnaire completed by the Honourable Ritu Khullar.
Questionnaire for Judicial Appointment
PART 5 – LANGUAGE
Please note that in addition to the answers to the questions set out below you may be assessed as to your level of language proficiency.
Without further training, are you able to read and understand court materials in:
- English: Yes
- French: No
Without further training, are you able to discuss legal matters with your colleagues in:
- English: Yes
- French: No
Without further training, are you able to converse with counsel in court in:
- English: Yes
- French: No
Without further training, are you able to understand oral submission in court in:
- English: Yes
- French: No
PART 6 – EDUCATION
Name of Institutions, Years Attended, Degree/Diploma and Year Obtained:
University of Toronto, 1988-89 and 1990-91, LL.B. (Honours)
University of Alberta, 1989-90
(I returned home to Edmonton for my second year for personal reasons, but returned to Toronto for my third year so obtained my LL.B. from the University of Toronto.)
University of Alberta, 1985 – B.A. (Honours) in Political Science, graduated magna cum laude
Old Scona Academic High School, Edmonton, 1981
I attend a number of law conferences and seminars to keep up in my fields (often as presenter), but I have no other formal education.
Honours and Awards:
Graduated with Honours, 1990-91 (University of Toronto, Faculty of Law)
First Class Honours Standing, 1989-90 (University of Alberta, Faculty of Law)
Honours Standing, 1988-89 (University of Toronto, Faculty of Law)
The Borden & Elliott Prize for demonstrating academic excellence (1989)
The Lang Michener Lash Johnston Prize for attaining First Class Honours in Property (1989)
University of Alberta BA:
Queen Elizabeth Scholarship in Canadian Studies (1983-84)
Government of Alberta Scholarship (1983-84)
PART 7 – 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:
Nov. 1998-Current: Chivers Carpenter Lawyers, partner since 2002, managing partner since 2009
1996-2006: Independent Chair to hear serious disciplinary offences at the Edmonton Institution for Women
Feb. 1996-Oct. 1998: Dale Gibson & Associates, Barristers & Solicitors
1992-Jan. 1996: Milner Fenerty, Barristers & Solicitors
1991-1992: Alberta Court of Appeal and Alberta Queen’s Bench, student-at-law
1990-1991: Part-time library assistant, Bora Laskin Law Library, University of Toronto
Non-Legal Work Experience:
1985-1988: Department of Federal and Intergovernmental Affairs, Edmonton, Alberta, Intergovernmental Officer
1981-1985: Travel Alberta, Summer jobs in Travel Information Centres in Jasper, Alberta (1982, 1984); Edmonton, toll free lines (1983); St. Mary, Montana (1985)
1981-1985: During my undergraduate degree I held various part-time jobs including research assistant for some professors and I worked part-time in the Political Science library
1980-1981: Kinney Shoes, part-time sales associate
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.
Alberta Law Reform Institute: Board Member, 2012-2014; and Member of the Rules of Court Project, Appeal Rules, 2003-2009
Canadian Bar Association: member since 1992; Past Chair of the National Constitutional Law and Civil Liberties Section, 2001-2002; Chair and Co-Chair of the Constitutional Law and Civil Liberties Section, 1995-1998; member of various subsections over the years, including constitutional, labour and employment, administrative law, privacy, civil litigation
Member of the Federal Advisory Committee on Judicial Appointments for the Province of Alberta, 1999-2004
Member of the Federal Electoral Boundaries Commission for Alberta, 2002-2003
Pro Bono Activities:
Various roles in Women’s Legal Education and Action Fund (LEAF):
Member of National Board of the Women’s Legal Education and Action Fund (LEAF) (1995-97); Chair of LEAF Edmonton (1995-97); Chair of LEAF Edmonton’s Education Committee (1993-95); Counsel for LEAF in R. v. Ewanchuk (1999) at the Supreme Court of Canada; Counsel for LEAF in R. v. Shearing (2002) at the Supreme Court of Canada; Counsel for LEAF in R. v. Barton, successfully obtained leave to intervene before the Alberta Court of Appeal (2016).
I have taken on various cases pro bono over the years. One significant one that lasted several years was Linda McKay Panos v. Air Canada, on whether obesity can be a disability for the purposes of flying.
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, bar association, National Judicial Institute, Canadian Institute for the Administration of Justice, etc.)
Teaching at University of Alberta, Faculty of Law:
2016-2017: Sessional Lecturer, Advanced Administrative Law
2001-2011: Sessional Lecturer, Labour Arbitration
1996-1999: Belzberg Lecturer, Constitutional Law
2015: Legal Education Society of Alberta and the Centre for Constitutional Studies joint Constitutional Law Symposium, “The SCC Reimagines Freedom of Association in 2015”
2015: Osgoode Hall Law School, 18th Annual Constitutional Cases Conference, “Developments in Freedom of Association at the SCC in 2014 and 2015”
2015: Symposium on Academic Freedom and Artistic Research, “From Taber to Terrorism: What are the Artists Doing or What Can They Do?”, sponsored by the Alberta College of Art and Design
2012: Ottawa Law Review Symposium, Commemorating the 25th Anniversary of R v Oakes
2007: Canadian Institute, Running a Fair Hearing
2006: Private Sector Privacy Conference, sponsored by the Privacy Commissioners of Alberta and British Columbia, Employment Issues and Privacy
2002: Workshop Participant, in “Twenty Years Under the Charter,” sponsored by the Association of Canadian Studies in Ottawa
Ongoing presentations and teaching:
University of Calgary/Lancaster Annual Labour Arbitration and Policy Conference in Calgary. 2016: Co-Chair of Conference; 2015: Advisory Committee for Conference; speaker on various topics in 2013, 2012, 2009, 2008, 2006, 2003
Courses for Legal Education Society of Alberta (LESA): Chair of Privacy Law Update, 2016; Panelist in the following seminars: Appellate Advocacy, 2007; Wrongful Dismissal, 2005; Serious Personal Injury Cases, 2000; Constitutional Cases, 2000
Presentations for Canadian Bar Association meetings and conferences including: National Administrative, Privacy and Employment Law Conference in Ottawa; Constitutional Law Section conferences in Ottawa and Edmonton; CBA Mid-Winter Meeting, Edmonton; various section lunch-time meetings including Constitutional Law, Administrative Law; Labour and Employment Law; Privacy Law
Centre for Labour-Management Development (approximately twice a year since 2002 on various labour law topics)
Lancaster sponsored conferences: Sick Leave and Long Term Disability, 2008; Privacy, 2007; Privacy Workshop, Vancouver, 2007; Labour Relations Boards, Toronto, 2004; Human Rights, Vancouver, 2003
Canadian Association of Labour Lawyers (CALL), presented at annual meeting on various topics in 2013, 2012, 2008, 2004, 2002
Guest Instructor on Constitutional Law, Senior Executive Managers’ Development Program, University of Alberta School of Business (2001-2003)
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
2012-2014: Canadian Association of Labour Lawyers (CALL) Alberta Vice-President
2006-2012: Center for Constitutional Studies, Board Member
2008-2011: Senator, University of Alberta Senate
2002-2003: Member of the Federal Electoral Boundaries Commission for Alberta
Ongoing volunteer judge for first-year and competitive moots at the University of Alberta Law School
2008-2009: Coach of the University of Alberta Law School Team in the Mathew Dinsdale competitive labour arbitration moot
2007-2009: Co-Chair Parent Advisory Council, Glenora Elementary School
2006-2007: Glenora Preschool Fundraising Committee
2005-2008: Supervising Lawyer, Pro Bono Students Canada Projects, Student Legal Services, Faculty of Law, University of Alberta
1998-2002: Past President and Member of the Board, Shadow Theatre, Edmonton
1996-1997: Faculty Advisor, Clinton J. Ford Competitive Moot, Faculty of Law, University of Alberta
1994-1996: Moot Court Judge, Brimacombe Selection Round, University of Alberta
1993-1998: Member of the Fundraising Breakfast Committee in support of programs to stop violence against women and children
PART 11 – THE ROLE OF THE JUDICIARY IN CANADA’S LEGAL SYSTEM
The Government of Canada seeks 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?
I do not know if have had any “significant” contribution to the law or pursuit of justice. I am very proud of the work I had been able to do at the Supreme Court of Canada, especially Vriend and the finding that it is a breach of Charter rights not to prohibit discrimination in Alberta on the basis of sexual orientation, and for LEAF and the development of the meaning of consent in sexual assault law in Ewanchuk. I am also very proud of continuing to teach at the Faculty of Law. I enjoy thinking about the development of the law, teaching it to students or other interested audiences, and contributing to the development of the law through my publications or advocacy.
However, to the extent I have any contribution, it is based on the accumulated experiences of the last 25 years. If 90% of parenting is showing up, I think my contribution is by being a lawyer who ‘shows up’. A lawyer in Alberta who practices in the areas of constitutional law, human rights, labour, employment, and other aspects of public law.
In the work I have done representing employees (either directly or through a union), the contribution I have made was being counsel and using my skills to help people get their jobs back when they should never have been taken away, or to get fair compensation for them for losing their jobs. I remember every one that I have helped in this way. I know that I was able to make a difference in their lives at a crucial time. In one case, Hladky v. Alberta,  AJ no. 420 (CA), an employee of the government of Alberta with about 30 years’ experience had his job “outsourced” to a call centre. The government was only prepared to offer him pay of 43 weeks in lieu of notice, as it claimed it was bound by its own Treasury Board guidelines, and the normal law applicable to employees in his situation did not apply. Mr. Hladky won at Court of Queen’s Bench with a finding that the government was wrong, and the regular legal principles applied, entitling him to pay in lieu of 24 months. The government appealed, and Mr. Hladky was successful at the Court of Appeal. It was a very difficult process for him (over three years of litigation), but helping him and developing the law made me proud. Another example involved a gentleman who worked in a warehouse making mattresses. He had been exhibiting abnormal behaviour and, after assaulting his boss, he was fired. By establishing that he had been suffering from bipolar disorder at the time of the assault, and that a human rights analysis ought to apply, that he had been treated successfully after his termination, we were able to get his job back for him (United Steel Workers of America, Local 5885 v. Sealy Canada Inc. (Bender Grievance)  AGAA 8).
More generally, representing unions in Alberta is not always easy. The firm I joined and have led for many years is known in the community for helping people in trouble. I receive cold calls from members of the public and, more significantly, referrals from lawyers. Amongst unions, we are known for being able to handle the most challenging cases (for instance obtaining and maintaining an injunction against Suncor to stop random alcohol and drug testing of its unionized employees while the policy itself was being challenged by the union). Being known as a lawyer that is not afraid to challenge powerful entities, and having the opportunity to do so on behalf of clients, is a significant contribution in and of itself.
Completing this application has forced me to look back on my career. While there are many cases, two themes emerge. First is the commitment to ensuring individuals can come together and collectively work through unions to achieve workplace goals. These are activities that are protected through the constitutional right of freedom of association. My involvement representing an intervener in the Saskatchewan Federation of Labour v. Saskatchewan 2015 decision of the Supreme Court of Canada finding that the right to strike is protected by the Charter under freedom of association, is the crystallization of this theme. A second, and more dominant theme of my work, is to promote and respect the rights of individuals at work and other contexts. Protecting and enhancing human rights, privacy and the dignity of individuals so they can choose to live their lives in ways that make sense to them, is my contribution to the law.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
My practice for the last 20 years has been focused on people. I have represented individuals in employment and human rights cases, and assisted unions in representing their members. Through this practice I have had the fortune of representing a wide cross-section of individuals including: the most senior executives in the private and public sector, university professors, nurses, firefighters, trades people, clerks, clerical staff, labourers, nannies, and students. I have had the opportunity to really learn from all of the people I have represented and to appreciate the challenges they face. I have also been able to learn about a variety of economic sectors of our economy. When I practised with Dale Gibson I also had the opportunity to get to know and understand the life and legal challenges of Métis communities in Western Canada.
Most people I meet are in a work-related crisis and experiencing great stress. While there are some challenging moments, I have been struck by the complete dignity and decency of most people I deal with, notwithstanding their situation. I have been particularly struck by the individuals who have been prepared to step forward to help litigate important issues. One example is Linda McKay Panos who I represented for about 10 years on a pro bono basis in a fight with Air Canada about whether obesity is a disability that has to be accommodated by airlines. Ms. McKay Panos was subject to much public criticism because of her obesity yet she persevered.
Another example are two nurses, Ms. Helmer and Ms. Wright (Wright v. College and Association of Registered Nurses, (2012] AJ no 43 (CA)), who suffered from addictions and were fired from hospitals for taking drugs to feed their addictions, disciplined by their disciplinary bodies and charged criminally. Through the assistance of their union we were able to resolve their employment situations, and we litigated whether their professional college should have disciplined them for conduct caused by their addiction, or accommodated them. I spent many years with these nurses and litigated in several fora and through several levels of administrative tribunals. I learned much from them and how they approached each challenge with grace. Taking their cases to the Alberta Court of Appeal meant that everything would be public, and it was only after careful consultation with them about the implications of the publicity, that they decided to proceed to help settle an important point of law for people suffering from addictions who engage in bad conduct at work. While we were unsuccessful, the law was clarified. In hindsight what I remember about these complex cases are the people and our experiences together.
Sometimes being the lawyer is easy. I get to litigate interesting and important issues but it is always on behalf of someone. I am not convinced that I would have the courage, dignity and grace that my clients have had in these difficult cases and I am always humbled by them.
Remembering that the law is about people sorting their situations out in a public and unnatural arena is one of the most important lessons I have learned from my practice.
3. Describe the appropriate role of a judge in a constitutional democracy.
The appropriate role of a judge in a constitutional democracy is a big question about which much has been written. (I will not be citing any of this rich body of literature.)
A constitution, by definition, is a limit on government. The Canadian constitution limits government in two ways. The first is the federal system, the limit being, which level of government has jurisdiction to enact certain legislation. The second is the Charter of Rights and Freedoms, which mediates the relationship between government and individuals in Canada.
In terms of federalism, the courts in Canada have always exercised their responsibility to interpret the constitution and determine whether a specific piece of legislation has been enacted by the appropriate level of government. When it has not, the courts have struck down the impugned legislation. In this process the courts do not evaluate the substance of the law, only which level of government could enact the law. This type of judicial oversight of government jurisdiction continues today.
In 1982 the Charter thrust the role of the courts in reviewing legislation into the spotlight, and for the first time, the courts were explicitly reviewing the substance of legislation against the rights guaranteed in the Charter. (Prior to the Charter the Supreme Court of Canada did occasionally review the substance of laws through a doctrine called the Implied Bill of Rights.) In a constitutional democracy, judicial review of legislation is an appropriate role for the courts.
In the early days of Charter litigation, the courts were struggling to develop the appropriate interpretive principles on a blank slate. Charter litigation now occurs within the context of established jurisprudence. When it does, judges must exercise their responsibility to ensure that a government has not limited or violated constitutional rights without a reasonable justification. In doing this job, judges must be attuned to the extensive body of constitutional jurisprudence that may be applicable. However there will be cases for which there is no precedent and then judges have to interpret the Charter purposively. Judges also have to be alive to the interpretive principle that the constitution is a ‘living tree’ that is adaptable as society evolves, but is not a document that should be changed easily – the tree should not be uprooted.
A judge should have the fortitude to be able to hold the government to account for violating constitutional rights if appropriate, based on the evidence and authority. But a judge should not be hasty to do so if the case has not been properly established. Most importantly, a judge should approach a constitutional case as any other, with an open mind and no predisposition about the constitutionality of the issue being litigated.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
There are different audiences for the decisions rendered by the Court of Queen's Bench.
The parties to the litigation are the most important audience. From reading a decision the parties should have confidence that their positions were understood and considered by the Court. The parties also need to be able to understand the decision and the basis on which the Court arrived at its conclusion. The reasoning should be intelligible and transparent. Whether successful or not, the parties should be able to read the decision and have their faith in the fairness of their particular hearing confirmed.
After the parties, it is difficult to rank the importance of the various audiences, but clearly the legal profession (including the bench) is an audience. The profession should be able to read a decision and see where it fits in the development of the jurisprudence in a particular area. It should make sense to them, and if appropriate, form part of the common law in a particular area. If a decision is well-reasoned and well-written, it may well form an authority upon which others may rely.
If a decision is appealed, then the audience becomes the appellate body reviewing the decision. The appellate body should be able to understand the evidence, issues and the reasons for the result from reviewing the decision.
The public is an important audience for decisions as well. A well-written decision should make sense to anyone, whether or not they have legal training. A decision should inspire confidence in the legal system in that a non-party should be able to understand the issue(s) in the case, be confident that positions were considered fairly, and understand the reasoning process and the result.
The written decision provides the basis for a judge to be held accountable for the decision made. It does not matter if it is popular, but all of the audiences have to be satisfied that the decision is carefully considered and reasoned, and based on the evidence, issues and arguments that were presented to the court.
5. Please describe the personal qualities, professional skills and abilities, and life experience that you believe will equip you for the role of a judge.
I have had the good fortune of practicing law in a variety of settings in private practice – a larger firm for almost 4 years; a 2-person boutique constitutional and human rights firm for almost 3 years; and a 10-person boutique labour, administrative, constitutional and human rights firm for 18 years. I have represented individuals, corporations, governments, unions, non-profit organizations, and administrative tribunals. The variety of clients and legal issues I have been involved in has helped me to appreciate the role of the legal system in a number of different contexts. My experience as the Independent Chair to hear serious disciplinary offences at the federal women’s prison for the first 10 years of its operation showed me how to apply legal principles as a decision-maker, rather than an advocate. My more recent experience as independent counsel for various professional disciplinary tribunals, has challenged me to ensure that lay tribunals understand and apply basic legal principles.
I have maintained a currency within my areas of the law by teaching, writing, and making presentations throughout my legal career. I have always enjoyed these activities because they remind me of the fundamental principles that guide the practice, and have honed my skills in communicating those principles to a variety of audiences.
When I take the time to reflect, I have come to appreciate the fundamental role the rule of law plays in our society and the key role all actors in the legal system play in confirming and maintaining the rule of law. I understand that any decision-maker (judge or administrative tribunal) promotes the rule of law by having a fair hearing and a considered decision. Along with clients, I have experienced both the positive outcome of having been heard, even when unsuccessful, and the negative outcome when that does not happen.
At this point in my career, after almost 25 years as an advocate, I would like to contribute to the legal system by becoming a judge. I have enjoyed the “neutral” work I have done, as a decision-maker, representing an administrative tribunal in court, or advising administrative tribunals, where the focus is on getting the law right.
In addition to getting it ‘right’, it is important to do so in a manner that respects the parties, is open to hearing their positions and empathizes with their situations. My experience in a number of different practice areas with all types of clients has exposed me to much more than law.
I have had the privilege of meeting the people impacted by the law. It is almost universally negative circumstances which bring people into the legal system, as plaintiffs, defendants, accused, or witnesses. It is important to keep this in mind while striving to ensure that people are treated fairly and with respect and dignity. I would like to aim to ensure that their interaction with the legal system is positive, or perhaps more realistically, not wholly negative.
I am at the stage in my career and life where I think I have some perspective. No issue is insurmountable. Whether it is learning a new area of law, or dealing with challenging counsel or self-represented litigants, or handling a crisis in the management of a law firm, I have learned not to get too excited. I take a deep breath, try to understand the problem, ask questions and listen, take some time to consider a response, and then methodically respond. My clients and my partners have confidence in my ability to deal with any situation. I would like the opportunity to earn the confidence of other actors in the legal system as a judge, and to continue to contribute to maintaining the respect and integrity of our legal system.
6. Given the goal of ensuring that Canadians are able to look at the justices appointed to the bench and see their faces and life experience reflected there, you may, if you choose, provide information about yourself that you feel would assist in this objective.
If appointed, Canadians would see a female lawyer of East Indian heritage, but I hope they would also see someone with integrity, empathy, legal ability, decency, patience, competence, honesty, sound judgment and the life experience to be able to understand and be open to learning about their circumstances.
My parents and two sisters emigrated from India in 1961. My parents were teachers in the Mennonite community of La Crete in Northern Alberta. I was born in 1964 in Fort Vermilion, the closest hospital. My family moved to Morinville in 1965 and that is where I grew up and went to school until high school (except for three years in Jamaica from 1969-1972).
As immigrants in the early 1960s my parents raised us to be “Canadian; full stop”. That is how I view myself. As a young girl growing up in rural Alberta I was oblivious to any differences or obstacles that may have been in my way. Like many children of immigrants, I was raised to work hard at school and set my sights high for what I might achieve. I did not suffer from the challenges that my parents faced, such as coming to a new and different country, and speaking English with an accent. I understand those challenges now with the benefit of hindsight, in a way I could not when I was a child.
I treasure the experience of growing up in a small town in Alberta that was still largely francophone – French spoken at the post office and many of the local stores. I felt welcome and a part of a small community. I learned to speak French and participated in both francophone and Catholic community events. (I have lost much of my French as an adult.) I played on the farms where my friends lived, and without realizing it, came to appreciate some aspects of life in a farming community. Like many people living in small communities, I both appreciated and resented being in a small town as I grew older, and looked forward to leaving.
I moved to Edmonton where I attended high school and the University of Alberta. However, like many Canadians, it was not until I travelled abroad on my own in 1986 that I came to understand my own identity. I am fiercely proud and lucky to be Canadian. I am proud of my ethnic heritage as well, and it is a significant part of my identity, just as being from Alberta is a significant part of my identity. (I learned how proud I am to be from Alberta after living in Toronto to attend law school!) I also learned that, like many, I am a bundle of contradictions.
As a young lawyer, litigating about money did not interest me. What motivates me is an interest in public policy, using the law to help make the world a better place – a fairer, more compassionate, respectful place to live. While this may seem naive to some, I have been able to build a legal career practicing the type of law that I thinks makes a difference both at a policy level, and at an individual level.
Like anyone practicing law, I have experienced the highs and lows of practice and persevered. With every challenge comes new lessons, which really are old lessons, such as there is no substitute for hard work, treating people with respect and dignity, and communicating clearly.
I am married and a mother of two boys.
The above factors are all part of who I am today. A complex human being trying to do her best in her given circumstances. I would hope that this life experience would be reflected in what Canadians would see if I am appointed.
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