The Honourable Éric Hardy's Questionnaire

Under the new judicial application process introduced by the Minister of Justice on October 20, 2016, any interested and qualified Canadian lawyer or judge may apply for federal judicial 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 may be made available to the public, with their consent, should they be appointed to the bench. The information is published as it was submitted by the candidates at the time they applied, subject to editing where necessary for privacy reasons.

Below are Parts 5, 6, 7 and 11 of the questionnaire completed by the Honourable Éric Hardy.

Questionnaire for Judicial Appointment

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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: Yes

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

• English: Yes
• French: Yes

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

• English: Yes
• French: Yes

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

• English: Yes
• French: Yes

Part 6 – Education

Name of Institutions, Years Attended, Degree/Diploma and Year Obtained:

Postgraduate education:

• University of London, Queen Mary College, United Kingdom, 1988–89, Master of Laws (LL.M.) 1989

Faculty of Law:

• Université Laval, Québec, 1984–87, Bachelor of Laws (LL.B.) 1987

Honours and Awards:

• 1988–89: Commonwealth Scholarship, Master’s studies
• 1988–89: FCAR Scholarship, Master’s studies

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:

• Since 1992: Lawyer (litigation group), Norton Rose Fulbright Canada (formerly Ogilvy Renault)
• 1990 to 1992: Lawyer (litigation group), Phillips & Vineberg (now Davies), Montréal
• 1990: Articling Clerk, Stikeman Elliott, Montréal
• 1987: Student, Stikeman Elliott, Montréal

Non-Legal Work Experience:

While I was a student at the École du Barreau, I worked part-time in the Constitutional Unit of the Government of Quebec’s Executive Council as a research officer. My role involved preparing summaries of parliamentary debates across Canada on the Meech Lake Accord.

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.

• 2005 to 2009: responsible for the Articling Clerks Committee, Norton Rose Fulbright, Québec Office
• 2009 to 2012: responsible for the evaluation of staff lawyers, Norton Rose Fulbright, Québec Office
• 2013 to 2016: member of the Promotions Committee, Norton Rose Fulbright
• 2008 to 2013: member of the Council of the Barreau de Québec
• 2010 to 2013: Treasurer of the Barreau de Québec and member of the General Council of the Barreau du Québec
• 2010 to 2014: member of the Strategic Planning Committee of the Barreau du Québec
• 1992 to 1993: Secretary and Treasurer of the Young Bar of Québec

Pro Bono Activities:

I am responsible for two cases that were entrusted to me by Pro Bono Québec.

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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?

My greatest contribution to the law is probably the Payette v. Guay Inc., [2013] 3 SCR 95 case that I argued before the Supreme Court of Canada. As mentioned above, the Supreme Court was asked to hear an application for injunction brought by Guay Inc. to prevent a former employee (Payette) – whom it had dismissed without cause – from working for a competitor. The employment relationship had begun during a sale of assets. The seller of the assets and its two representatives, Lafortune and Payette, had signed a five-year non-competition agreement. Payette and Lafortune were also hired to work for the purchaser (Guay Inc.) for six months, with the possibility that the term of this employment could be extended by mutual agreement. The contract for the sale of assets stipulated that the employees [Lafortune and Payette] would also be subject to a duty of non-competition for five years that would take effect at the end of their employment relationship. Therefore, if the employment relationship were to end after a period of five years from the sale, the purchaser would thus be free from any competition by the seller and its two representatives for a total of 10 years. The issue before the Court was to determine whether the applicable rules were those of labour law or commercial law. In the first hypothesis, the termination without cause of our client, Mr. Payette, defeated the injunction, given the clear wording of section 2095 of the Civil Code stipulating that the employer cannot avail itself of a non-competition clause if it terminates the employment contract without cause. In the second hypothesis, the termination without cause would not result in the employer losing its right to the requested injunction. The injunction was denied by the Superior Court. However, this decision was overturned on appeal, but with strong dissent. It is at that time that I took charge of this case. First, I obtained a stay of execution from a single judge of the Court of Appeal, while the Supreme Court ruled on the application for leave to appeal that we were going to prepare. This authorization was granted to us. Next, we prepared a statement on the merits. I pleaded the case in the Supreme Court with the assistance of two colleagues. Unfortunately, our appeal was denied. The Court concluded that the rules related to the employment contract in the Civil Code did not apply. According to the Court, the context in which the non-competition agreement had been signed by the employee could not be ignored. According to the Court, it involved a consideration to which the employee had consented in order to conclude the sale of assets. Thus, it is the rules of commercial law that had to apply, and not those of labour law. Moreover, the Supreme Court did not consider a stipulation of non-competition of up to 10 years to be unreasonable. The Court also ruled that a territorial limit was generally not required for a non-solicitation agreement to be lawful. This decision by the Supreme Court drew the attention of many practitioners of business and labour law. The CanLII site indicates that it has been cited 45 times to date. It is undoubtedly one of the most significant decisions rendered with respect to non-competition clauses. Although our appeal to the Supreme Court was rejected, I am proud to have contributed to the advancement of law in a field just as important to citizens as to practitioners.

With respect to my greatest contribution to the pursuit of justice in Canada, I would say that it is the way I conduct myself with citizens, my colleagues and the judges in the various cases for which I am responsible. I believe that I have always done so with dignity, loyalty and respect for them.

Very often, at the end of a trial, my clients have told me that they were impressed by the thoroughness of the judicial process and convinced that justice would be served, regardless of the outcome of their case. In addition, the opposing parties have sometimes thanked me at the end of a trial for the respect that I showed them. In my way, I believe that I have helped give citizens a positive image of our justice system. Beyond the successes that a litigation attorney may experience over time, it is that of which I am most proud professionally.

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

I completed my Master of Laws studies in London in the late 1980s. The master’s program in which I was registered had about 500 students from all over the world. In addition, the student residence where I stayed was intended exclusively for foreign nationals. Therefore, I was able to build friendships with people from five continents whose mother tongue, ethnic origin and religion were different from mine. For many of them, their arrival on British soil was their first foray into western life. For some, their knowledge of English was very academic, having practised oral English only very rarely.

Beyond the leisure travel I had done a little earlier in Europe, this was my first truly multicultural experience. I quickly noticed that we had much more in common than what made us different. We had all left our countries, our parents and our friends to pursue higher education. We also all had the same desire to create new friendships. Instead of being an obstacle, our cultural and ethnic differences often stimulated our friendships and interactions. The desire to learn about a new culture or understand a reality removed from my own often incited me to engage in conversations that proved captivating and enriching. It was that multicultural environment that convinced me to enrol in the course titled “Comparative Immigration and Nationality Law”, offered by the School of Oriental and African Studies (SOAS) in London.

The late 1980s were historically significant. In 1989, the sad events at Tiananmen Square took place, Frederik de Klerk was elected in South Africa (marking the end of apartheid) and the Berlin Wall came down. The fact that I was living in a multicultural environment meant that I felt like I was observing the first two events from a little closer than had I been living in Québec – or at least from a different perspective.

In the European Comparative Law course, there were five or six students from mainland China. The day on which the famous photograph of the student who had challenged a tank in Tiananmen Square came out, our professor had asked the Chinese students to tell the class their thoughts. Although naturally discreet, one of them spontaneously opened up to us, sharing, with a great deal of emotion, his distress and fear at the idea of having to return to his country at the end of his studies.

Before the election of Frederik de Klerk, the people in charge of the university residence where I was staying had organized an official dinner to which the High Commissioner of South Africa had been invited. Many students had been outraged, so much so that the residence authorities invited the residents to a special meeting. During this meeting, a Black South African spoke out to let the administration know how disappointed he was. He explained that he did not understand why the representative of a segregationist regime had been invited to an official event, when many of the residents were Black. The administration told the audience that this argument had been heard and noted, but that it was not up to the students to dictate to the administration its line of conduct in terms of foreign policy. The South African student spoke again to say that he would have no other choice but to leave the residence, which he did a few days later. The sympathy toward him was palpable in the audience, although it was mostly white. This event really left its mark on me. A few months later, Frederik de Klerk was elected. The next year, Nelson Mandela was released and two years later, apartheid was dismantled.

This very enriching experience expanded my horizons and made me appreciate cultural or ethnic differences in others, rather than fear or judge such differences. It certainly helped me become aware of the multicultural richness of Canadian society.

Upon my return from London, I worked in Montréal at a mostly anglophone firm (Phillips & Vineberg) whose members and clientele were from different cultural communities. I represented many first- and second-generation new Canadians, primarily business people. I became familiar with their cultural and linguistic reality and was able to see directly how much they had contributed to Montréal society. During this time, I also met people through my work who had experienced the horrors of the Nazi regime.

I had the opportunity to carry out two important mandates, one in the Bahamas in the early 2000s and a second in Togo in 2015. I had to interact with the public authorities of these two countries.

Finally, at Norton Rose Fulbright, I work alongside colleagues of all nationalities and ethnic origins from the firm’s Canadian and foreign offices, and I consider it a privilege to grow in a setting where diversity is a core value.

Therefore, I believe that my personal and professional experiences have made me appreciate the richness of multiculturalism in general, and that of Canada in particular, and fully understand the importance of its influence in the development of the rules of law that govern us.

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

In a constitutional democracy, the judge performs the duties that are vested in the judicial power by the Constitution. The judicial power is separate and independent from the legislative and executive powers. This separation of powers gives the judge an independence that is essential for him to be able to perform his duty properly. Protected from the interference of the other two powers, the judge can perform his role as the guardian of the rule of law without having to fear interference or reprisals from them. This independence is reinforced by the judge’s immutability and remuneration that protects him from corruption attempts. The independence of the judge was guaranteed by the Constitution, so he could settle the disputes submitted to him with full objectivity, regardless of the citizens before him or the government in office, as directive as it may be.

In contrast, the judge has an important duty to exercise judicial restraint. The principle of the separation of powers means that the judge must not enter the political arena. It is also not appropriate for him to take part in public debates. In short, the judge must not have a political agenda. Nor must he give himself the mission of being a right- or left-wing judge, pro-union or pro-employer, etc.

His role is limited to settling the disputes submitted to him based on the law and the evidence, to the best of his conscience, nothing more. In so doing, he must set aside prejudices and preconceived ideas. The citizen must have confidence that he will be judged simply based on the law and the evidence. In other words, he must feel protected from arbitrariness. He must also be certain that the outcome of his case will not be influenced by his ethnic origin, language religion, skin colour or sexual orientation.

The judge need not worry about pleasing or displeasing. He must not let himself be guided by the public reaction he may anticipate with respect to the decision he is about to render. His judgment must be based on the facts, supported by evidence and his interpretation of the law. In this way, the judge will fulfill his duty of safeguarding the rule of law that is essential to upholding democratic life.

The judge is, in effect, the last rampart of democracy. It is toward him that citizens turn to obtain justice, regardless of the party that they will have to challenge. The citizen must have confidence that justice will be served regardless of whether the person he is opposing is rich, poor, influential or weak. The judicial power protects him from the law of the strongest.

To be up to the task, the judge must show courage. Entering an acquittal in a case where the court of public opinion is awaiting a conviction is certainly not easy. However, by opting for the easy way, the judge is not properly fulfilling his duty if the case submitted to him justified another outcome.

To earn the trust of citizens, the judge must adopt exemplary behaviour, both inside and outside the courtroom. Citizens expect the judge to exercise restraint and measure up to the task at all times. During a hearing, the judge must enable the parties to produce their evidence in accordance with the applicable rules and give the parties an opportunity to express their own viewpoint on the case. The judge must not only serve justice, but also give the impression that justice has been served. His way of conducting the hearing, and the comments he might express during it, will influence the perception that citizens have of the judicial process.

The judge also has the duty of presiding effectively over the hearings which he is responsible for conducting. In an effort to manage judicial resources effectively, he must help the parties clearly identify the issues of their case and encourage them to focus the debate on these issues. Accessibility to justice has become a top concern. This accessibility is undermined when the costs of a trial are no longer within the reach of citizens. Active management of the trial by the judge is one way of limiting these costs and fostering access to justice.

4. Who is the audience for decisions rendered by the court(s) to which you are applying?

The Superior Court of Quebec is a common-law court that exercises its jurisdiction over the entire province of Quebec. It hears all disputes that are not explicitly assigned to the jurisdiction of another court. It sometimes sits in appeal of decisions made by lower courts that stem from the Criminal Code or other provincial or federal laws.

In civil and commercial matters, it hears all disputes worth at least $85,000.

In family law, the jurisdiction of the Superior Court is very present in the daily lives of thousands of citizens who must have a dispute settled in matters of divorce, child custody, alimony and sharing of assets.

It is also the only court with jurisdiction to hear bankruptcy cases, class action lawsuits, injunction applications and non-litigious cases such as establishing a power of attorney in case of incapacity or the probate of a will.

It also has supervisory jurisdiction over the lower courts and quasi-judiciary organizations.

In criminal matters, it has sole jurisdiction to hear trials by jury, as well as murder and treason cases.

A large part of the Superior Court’s time is devoted to family law. The decisions it makes in these matters have a very tangible impact on the lives of citizens, especially in child custody matters.

The social role of the Superior Court is also very present in the class action lawsuit, which is the procedural vehicle that gives ordinary citizens easy access to justice. The decisions rendered by the Court in this matter usually concern large companies in the consumer goods, banking or retail sectors, as well as environmental matters.

The decisions handed down by the Superior Court in the exercise of its supervisory power apply very often to citizens in labour law.

Every year, injunctions issued by the Court apply to a multitude of citizens in domains as varied as labour law, commercial law, corporate law, intellectual property law, and securities law – to name just a few. Citizens involved in injunction cases may be employees, small businesses or large businesses.

In criminal law, Superior Court decisions involve the accused and society as a whole (which is represented by the public department).

In civil and commercial law, decisions of  the Superior Court once again involve a multitude of citizens. It may involve, for example, citizens who are party to a dispute over a hidden defect involving their home, an insurance claim, the validity of a commercial transaction or a non-competition clause. It may also involve citizens involved in a civil or professional liability dispute.

The Court may also be called to hear cases involving the government, whether it is a matter of civil liability, administrative law or the validity of a regulation or a law. In this respect, we can say that the decisions of the Superior Court apply to the entire population.

Superior Court decisions are thus likely to have an impact on all citizens and legal entities established in the province of Quebec in the fields of law and a wide variety of business sectors.

With respect to the Court of Appeal, it is the general court of appeal in Quebec. It hears the appeals of decisions from the Court of Quebec and the Superior Court and brings an end to the proceedings, for cases where the matter in dispute is worth at least $60,000. It also has jurisdiction to hear appeals of judgments dealing with the integrity, status or capacity of the person, those on specific rights of the government, or those involving contempt of court. It hears the appeals of any other judgment of the Superior Court and the Court of Quebec, with the permission of a judge from the Court of Appeal. In criminal and penal matters, the Court of Appeal hears motions on the verdicts or sentences imposed by the Criminal Code and the Code of Penal Procedure. The decisions of the Court of Appeal involve the same citizens as mentioned earlier with respect to the Superior Court.

Indirectly, the decisions of the Superior Court and the Court of Appeal apply to all legal experts who draw inspiration from the teachings they contain.

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 worked in private practice as a litigation lawyer for 26 years. Over the years, I have been responsible for many large assignments in various areas of law, such as civil and professional liability, product liability, insurance law, commercial law, corporate law, class action lawsuits, expropriation and arbitration. I have been called to travel across the province and have argued in many judicial districts and before all the judiciary bodies, including the Supreme Court of Canada.

I believe that I have earned the respect of my peers and the judiciary for my professional skills, integrity, and human qualities, as well as for the courtesy I have shown toward all stakeholders in the judicial process.

I know how to show patience, creativity, flexibility and empathy, and I listen to others. The administrative duties that I had within my firm gave me an opportunity to put these skills to use, first as head of the articling clerks committee, then as the partner responsible for evaluating staff lawyers and, from 2013 to 2016, as a member of the Promotions Committee in charge of recommending the promotion of staff lawyers to partner status. I am proud of guiding many articling clerks and staff lawyers in their professional development, and believe I have earned the respect of those for whom I have done this.

I know how to remain calm and in control during difficult situations and to measure the impact and scope of my actions.

My good judgment is recognized by my work colleagues who regularly consult me on questions of law and ethics, and about positions they are about to take in the conduct of a case.

The rankings that I have earned in recent years, in publications such as Lexpert, Benchmark Canada, Best Lawyers and Martindale­Hubbell, attest to my peers’ recognition of my professional qualities:

• Best Lawyers – Lawyer of the year (2016) – Personal injury litigation;
• Best Lawyers – Lawyer of the year (2015) – Corporate and commercial litigation;
• Best Lawyers in Canada (2013-2016) – Corporate and commercial litigation, liability of directors and officers, personal injury litigation, securities law;
• Lexpert Canadian legal directory (2014) – Recommended litigation lawyer – Commercial insurance and professional liability;
• Benchmark Canada (2015) – National star in class action and insurance in Canada and local star in class action, commercial and insurance in Quebec;
• Benchmark Canada (2012-2014) – National star in litigation in Canada, class action; local star in litigation in Quebec;
• Benchmark Canada (2014) – National star in litigation in Canada, insurance;
• Best Lawyers in Canada (2012) – Corporate and commercial litigation, liability of directors and officers, personal injury litigation;
• LexisNexis Martindale-Hubbell – Peer review ranking BV.

The work method that I developed allows me to be effective and provide a thorough service that meets the high expectations of our clients.

Over the years, I have built a loyal institutional clientele of domestic and London-based insurers in many cases.

I also got to know different communities. On the one hand, during my master’s studies in London, I had the opportunity to work with and build connections with fellow students from around the world. On the other hand, I worked in Montréal, in a mostly anglophone firm, many members and clients of which were from different cultural communities. These experiences helped expand my horizons and enabled me to appreciate the differences in others.

I am bilingual and use both languages on a regular basis, both orally and in writing. I enjoy writing and I believe I have good writing skills. Every year, I write numerous legal opinions, in both English and French, as well as written submissions and appeal factums.

My involvement within the Bar gave me the opportunity to meet many colleagues, to learn and understand the reality of those practising in a different environment from mine, and to work on promoting the interests of justice in general.

I have never hesitated to offer my help on a pro bono basis to many friends and acquaintances who need legal advice or to be guided through a process of a legal nature.

Throughout my career, I have been called to travel for work across Quebec, and also in Canada, the United States, England, Germany and Africa. I would be happy, as a judge, to continue travelling across Quebec.

I believe that my personal skills and professional journey would enable me to hold the position of judge with skill, effectiveness, flexibility and open-mindedness. I would be very proud to sit on the Superior Court of Quebec or the Court of Appeal and to put my knowledge and my professional experience to use for the citizens of Quebec and the advancement of law in Quebec.

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.

I have been a lawyer in private practice for 26 years. I have taken on many cases across the province in which I represented citizens from every ethnic and language background. My practice in insurance law led me to represent insured persons from all walks of life in civil liability cases. I have also acted on behalf of many corporations, large and small, public and private. Each time, I tried to do so with the same empathy, loyalty and determination. I took on the task of helping my clients understand how the judicial system works – especially the roles of the judge and of the lawyers in the framework of a trial.