The Honourable Jessica Kimmel’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 Jessica Kimmel.
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:
- Osgoode Hall Law School, attended 1986-1989: Received a Bachelor of Laws (now Juris Doctor) in 1989 (as Jessica Growe)
- University of Toronto, attended 1983-1986: Received a BSc. in 1986 (distinction) with areas of concentration in Neuropsychology and Criminology (as Jessica Growe)
- See Part 7 – Teaching and Continuing Education.
Honours and Awards:
- Recipient of the County of York Law Association Centennial Prize for research and presentation of final paper in the medical/legal seminar on rights of access to experimental drugs (1989).
- Recipient of the Helen Kinnear Prize in criminal procedure (1989).
- Peer recognition (honours):
- Canadian Legal Lexpert Directory: recommended in securities litigation, class action litigation, corporate/commercial litigation and directors’ and officers’ liability litigation and as a leading litigator in the Lexpert Guide to the Leading U.S./Canada Cross-border Litigation Lawyers in Canada and a leading litigator in the Lexpert Special Edition on Litigation in the Globe & Mail’s Report on Business Magazine.
- Chambers Canada: recommended in dispute resolution and class actions.
- Best Lawyers in Canada: ranked as a leading lawyer in alternative dispute resolution [“ADR”], class action litigation, corporate/commercial litigation, directors’ and officers’ liability, product liability and securities litigation.
- Benchmark Canada: ranked as a litigation star nationally for securities litigation and in Ontario for class actions, commercial litigation and securities, and as one of Canada’s Top 25 Women in Litigation.
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:
- Goodmans LLP (Formerly Goodman, Phillips & Vineberg):
- Partner (previously litigation associate) specializing in civil litigation, from March 1991 to present (Partner from 1997 to present).
- Goodman & Goodman (now Goodmans LLP): General exposure to different practice areas:
- Articling Student, June 1989 to June 1990;
- Summer Student, June 1988 to August 1988.
- AIRD & BERLIS: General exposure to different practice areas:
- Summer Student, May 1987 to August 1987.
Non-Legal Work Experience:
During the years of my secondary and post-secondary education (from 1980 to 1989), I held various part-time jobs in Vancouver and Toronto in food services and retail sales during the academic year, and as camp counselor at various summer camps, including a leadership training camp, during the summers.
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.
- As the founding Chair of my firm’s Professional Standards and Conflicts Committee, I have dedicated considerable time to administering and developing policies and organizing and presenting education programs for lawyers within and outside my firm on topics of conflicts, professional responsibility and professional development.
- American College of Trial Lawyers, from 2014 to present: I was inducted as a fellow of the American College in September 2014 and have served on the Ontario Committee since 2015, and on the Canada-U.S. Committee since 2016.
- Toronto Lawyers’ Association (Formerly the Metropolitan Toronto Lawyers’ Association), from 2001 to 2010: I was the President of the TLA in 2009, and prior to that I was an active member of the executive of the board of trustees of this association for almost 10 years. The TLA represents lawyers practising in the City of Toronto in legal and broader community activities. In addition to providing services for its members, the TLA liaises with other lawyers' associations on matters of common interest and concern, such as the County and District Law Presidents' Association, the Law Society of Upper Canada, the Ontario Bar Association and the Advocates’ Society, and the many diverse associations representing lawyers of different backgrounds (such as the black lawyers' association, the French-speaking lawyers' association (AJfA), and the South-Asian lawyers' association).
- Advocates’ Society
- Board Member on various committees: June 2005 to June 2008
- ADR sub-committee: March 1997 to December 1999
- Contributing editor and author to the Commercial Litigation Journal 1997 to 2015 (Federated Press).
- Practical Law Canada
- Member of the advisory board for litigation (corporate commercial) – 2016 to present. This is a new on-line product that provides resources and precedents in discrete practice areas, and reports on developments in the law that might impact those resources and precedents.
- Securities Proceedings Advisory Committee (SPAC)
- Selected as a member of this advisory committee to the Ontario Securities Commission with a mandate to provide insight and feedback for enhancing the Ontario Securities Commission Tribunal's policy and procedural initiatives – February 2017 and continuing.
Pro Bono Activities:
My introduction to pro bono work was at the Community Legal Aid Service (CLAS), when I was in law school. In my practice, I have had occasion to become involved in amicus briefs for the court. I was asked to provide advice mid-trial to some litigants who found themselves in the position of having lost their senior lead trial counsel. In another case, I was asked to appear as amicus and make submissions on legal issues that arose in a bankruptcy proceeding involving the entitlements and priorities of certain creditors that would flow from the court granting the requested discharge.
I consider the many hours of time I have dedicated to bar committees and activities described in other sections of this Application to be pro bono in that they have involved the giving of my time and expertise to various causes generally directed to the improvement of the efficiency of the judicial system.
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, or the Canadian Institute for the Administration of Justice).
Over the course of my legal career, I have given presentations at numerous continuing legal education programs and conferences organized by various legal organizations, conference providers and my firm. These include:
- Osgoode Professional Development, Successful Settlements 2017: Strategies and Tactics for Litigators, the Menu of Available Tools for Achieving Settlement (Panelist, March 24, 2017)
- The Advocates' Society Courthouse Series, Telling a Compelling Story (Panelist, February 23, 2017)
- 2016 Warren Winkler Annual Conference on Mediation, The Unsettleable Case (Presenter, May 12, 2016)
- The Advocates’ Society, Electronic Trials: “Practical Strategies for Presenting Evidence in an E-Trial With Demonstration: Witness In-Chief and Cross-Examinations Using Electronic Evidence and Demonstrative Slides (Panelist and Demonstrator, June 17, 2015)
- Time to Step up Your Game – Profile and Practice Building for Litigators (Goodmans Panelist, May 2015)
- Advocacy – Counsel’s Perspective, U of T Advanced Advocacy, Written/Oral Advocacy (Guest Lecturer, November 17, 2014)
- Technology in Practice – Mediating E-Discovery Disputes: A Canadian Perspective (Commonwealth Legal) (Presenter, November 5-7, 2014)
- TAS Program: Putting Theory into Practice – Exercising Professionalism and Civility (Presenter, October 21, 2014)
- “Build It” – Advocates’ Society Mentoring Dinner (May 22, 2014)
- Osgoode LLM Securities Litigation Course (Guest Lecturer, 2013)
- Northwind Class Actions Invitational Forum, Steering Meeting Class Action Forum (Presenter/Panelist, June 19-21, 2013)
- The Advocates’ Society, 2013 Court House Series: Getting to the Point! (Panelist and Live Demonstrator, February 21, 2013)
- The Advocates’ Society, The Thunder Bay Law Association Fall CLE-Civil Litigation Program – 21st Century Advocacy: Beyond Trial, “Civility Outside the Court Room” (Presenter, October 26, 2012)
- LSUC – The Twelve-Minute Civil Litigator 2012, “Litigation Arising out of Corporate Dealings/Common Interest Privilege” (Presenter, September 20, 2012)
- Goodmans LLP – Avoiding the Professionalism Pitfalls of an In-House Practice, (Moderator, June 27, 2012)
- The Advocates’ Society – Spring Symposium: “The Practical Advocate: Achieving Excellence in Advocacy”, “Is there a Deal Team Privilege?” (Presenter, May 4, 2012)
- The Advocates’ Society – National Expert Witness Academy: “Cross-examination at the Court House” (Commentator, April 26 to 28, 2012)
- Securities Litigation – Seeking the “Balance on Disclosure”, The Law Society of Upper Canada Securities Law (Update 2011), (Presenter, November 14, 2011)
- “Evidentiary Issues in the Electronic World” – Privilege Reviews and Considerations, Superior Court of Justice (Ontario), Fall Education Seminar, (Presenter, November 2, 2011)
- Northwind Class Actions – Invitational Forum – “The Future of Class Actions in Canada – A Strategic Discussion among Leading Practitioners”, Conference Steering Committee (June 20-22, 2011)
- Advocates’ Society Civil Litigation Skills Certificate Program: Leading your Case: Opening Statements and Examination-in-Chief (Presenter/Panelist, March 2, 2011)
- Insight Complex Litigation Conference (Presenter, February 28, 2011)
- Warren Winkler Lectures on Civil Justice Reform – “Procedure, Proportionality and Professionalism” (Presenter/Panelist, October 4, 2010)
- Women in Law Conference – Defining Career Success (Presenter/Panelist, November 24, 2009)
- Advocates’ Society Advanced Trial Evidence – Practical Problems, Real Solutions – Experts (Presenter/Panelist, March 2009)
- “Emerging Issues in Directors’ and Officers’ Liability 2009 – Advising Clients in Recessionary Times” – Law Society of Upper Canada’s Conference (Presenter, February 2009)
- “Successfully Leading Your Case”: Opening Statement and Examinations-In-Chief, Civil Litigation Skills Certificate Program – (Presenter/Panelist, December 2008)
- “Timely Disclosure” – Hot Topics in Cross-Border Securities Offerings (Presenter, 2008)
- The Advocates’ Society – A Trial from A to Z (Co-chair, 2008)
- Canadian Institute 7th Annual Advanced Forum on Securities Litigation (Co-chair, 2007)
- The Advocates’ Society – Evidence for Litigators (Co-chair, 2007)
- “The Trial Process Efficiency Equation – Is there a better formula?” – The Advocates’ Society Policy Forum on Streamlining the Ontario Civil Justice System (Presenter, Paper 2006)
- “Judicial Deference is Alive and Well When it Comes to Business Judgments” – The Law Society of Upper Canada Commercial Litigation (Presenter, Paper 2006)
- The Advocates’ Society – the Art of Impeachment and Rehabilitation (Co-chair, 2006)
- Insight Securities Litigation Forum (Presenter, 2006)
- The Advocates’ Society Fall Forum (Presenter, 2006)
- Osgoode Professional Development and the Advocates’ Society Intensive Written Advocacy Course (Instructor, 2004, 2005, 2006 and 2008)
- “Who’s Liable and What’s at Stake – Secondary Market Liability for Reporting Issuers and their Directors and Officers” – Insight Securities Litigation Forum (Presenter, 2005)
- The Advocates’ Society – Rules Traps (Co-chair, 2005)
- Advocates’ Society – Examination in Chief (Co-chair, 2005)
- Ontario Bar Association – Injunctions Demonstration (Presenter, 2005)
- “Risky Business: The Trend Towards Increased Liability of Officers and Directors of Canadian Corporations”– Canadian Institute Advanced Forum on Securities Litigation, (Presenter, Paper 2004)
- “Caught in the Cross-hairs – You can Run but you Can’t Hide Behind the Corporate Veil” – Canadian Institute (Presenter, Paper 2004)
- How to effectively handle a Class Action Certification Motion – Canadian Institute (Presenter, 2003)
- OBA CLE Institute – Civil Litigation Program (Hamlet’s Slander Trial) (Presenter/Skills Demonstration, 2003)
- “Real Estate Class Actions: Case Studies and Perspectives” – Law Society of Upper Canada Gravel to Gavel (Presenter, Paper 2002)
- “Good Faith Bargaining” – Law Society of Upper Canada, Six Minute Business Lawyer (Presenter, Paper 2002)
- “Changes to Summary Judgment Rule: Considering the views of our Court of Appeal and their Effect” – Six-Minute Litigation Lawyer (Presenter, Paper 2002)
Community and Civic Activities:
List all organizations of which you are a member and any offices held with dates.
When I was in University I made a point of finding community based groups to become associated with, and I have continued with this over the years, both within and outside of the legal community. Some of this is represented by my participation in professional organizations and extensive involvement in continuing legal education (described in other parts of this application), but it is also reflected in other activities, such as:
- Canvassing and participating in fundraising and awareness raising events for various charities in the broader community
- Assisting in the planning and organization of conferences and events to raise awareness and funds for organizations and charities within the legal community
- Drafting the Toronto Practice Direction on the new Case Management – Toronto Region Civil Backlog Reduction/Best Practices Initiative (December 31, 2004)
- Member of the Case Management Pilot Project Steering/Evaluation Committee and appointed to the Toronto Region Motions Committee
- Founding member of the Canadian Jewish Law Students’ Association (CJLSA) 1988-1989 and planned its inaugural conference in the spring of 1989
- Women’s Athletic Director, University College Literary and Athletic Society (1982-1983)
- Member of the Honour Awards Committee, University College Council Board (1982-1983)
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?
Ethical advocacy and responsible advice to clients help to determine the factual and/or legal issues that are brought before the courts. As a practicing litigation lawyer, my most significant contribution to the law and pursuit of justice in Canada has been accomplished through cases that I have been involved in that have helped to shape the law in the areas of director and officer liability, securities law, and class actions, and through my published writings and presentations which serve to broaden their potential impact.
a. The Evolving Landscape of Director and Officer Liability in Canada:
It is fair to say that any civil case that is deemed worthy of the attention of the Supreme Court of Canada contributes to the development of the area of law that is engaged on the appeal, and the Kerr v. Danier Leather Inc. case ( 3 SCR 331) was no exception. It was decided by the Supreme Court of Canada at a time when the legal landscape was shifting in favour of increased liability for directors and officers. (I had identified this trend in two papers presented in 2004 at the Canadian Institute: “Risky Business: The Trend Towards Increased Liability of Officers and Directors of Canadian Corporations” and “Caught in the Crosshairs – You Can Run but you Can’t Hide Behind the Corporate Veil”.)
In this case, the Supreme Court re-examined the scope of the business judgment defence. It also clarified the meaning of “material fact” and “material change” in the context of disclosures about financial forecasts which are contained in virtually all public securities offerings.
The Court of Appeal’s decision in 2006 overturned the trial decision and gave effect to the business judgment of the CEO and CFO of Danier Leather concerning the continued viability of their forecast. I talked about this important affirmation of the business judgment defence, and other aspects of the case, at Law Society of Upper Canada Conferences: “Judicial Deference is Alive and Well When it Comes to Business Judgments” (2006); “Emerging Issues in Directors’ and Officers’ Liability” (2009); “Securities Litigation – Seeking the Balance on Disclosure” (2011). The court’s deference to business decisions is fundamental to the credibility of our legal system in the business community.
b. The Preferable Procedure Requirement for Class Certification – When Access to Justice has Already Occurred:
In 2004, the Ontario Securities Commission (“OSC”) extracted a settlement from five mutual fund companies alleged to have permitted “market timers” to conduct legal but short-term trades in their global funds. Once that settlement had been completed and funds were distributed to investors, the Fischer v. AGF Investments et al class action was commenced claiming that the amounts paid were not enough. The case raised the issue of whether a class proceeding was the preferable procedure to resolve the class members’ claims, having regard to the three objectives of the Class Proceedings Act (Ontario), behaviour modification, judicial economy and access to justice.
The motions judge concluded (in 2010 O.J. No. 112) that the class members had been given access to justice and behaviour modification had been achieved through the OSC proceeding and settlement and that the proposed class action was not the preferable procedure. The Divisional Court (in 2011 ONSC 292 CanLII) and the Ontario Court of Appeal (in 2012, ONCA 47 CanLII) disagreed about the achievement of access to justice.
Importantly, the Court of Appeal accepted that an alternative procedure for claims resolution that occurred before the commencement of a class action could be a preferable procedure to a class action in the right case (just not in this case because of how the court characterized the subject matter of the class claims). The Supreme Court of Canada denied leave to appeal. This case remains as an important guidepost for parties to regulatory settlements because they so commonly precede class action claims.
c. The Development of Other Class Certification Requirements:
I have been involved in the defence of a number of class actions that have helped define the class certification requirements. The Bre-X case (decided in 1999, 44 O.R. (3d) 173) was one of the first significant securities claims to request class certification in Ontario. Our argument (which carried the day) was that a cause of action for negligent misrepresentation with an inherent element of individual reliance was not suitable for class certification. I wrote two articles that were published in the Commercial Litigation journal about this important and emerging area of law: “Quintessentially Individualistic Causes of Action as Class Actions” (1998) and “Bre-X: Denying Certification of Negligent Misrepresentation Claims” (1999). This decision has shaped the way in which class actions involving negligent misrepresentation claims are pleaded and presented.
The Philip Services proposed class action was of similar import in shaping certification requirements, including pertaining to the suitability of the proposed representative plaintiff. Mr. Menegon, the first proposed plaintiff for the class of prospectus purchasers, was disqualified because he did not buy under the prospectus. The motions court (in 2001, OJ No.5547), Divisional Court (in 2002, OJ No. 370) and Court of Appeal (in 2003, OJ No. 8) all agreed that, to be suitable, the proposed representative plaintiff needed to have a cause of action with elements in common with class members. Mr. Coulson was then put forward, but his claim was dismissed because too much time had lapsed and it was found to be statute barred (2010 OJ No. 1109, OCA 2012 OJ No. 717). These decisions define important limits on class actions as part of the balance the Class Proceedings Act was designed to achieve.
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
Canadians take pride in the “mosaic” of diverse cultures and traditions that make up our society, which is often contrasted with the “melting pot” south of the border. This “mosaic” results from a belief that the preservation of cultural diversity makes us stronger as we learn from each other and our respective traditions. My insight into the diversity of Canadians and their unique perspectives begins with life experiences and my encounters with people willing to share their cultural traditions. This allowed me to experience the Indian practices of yoga and meditation; it allowed me to learn about the Chinese belief in herbal remedies and alternative medicine; it allowed me to observe the Israeli “arts” of debate and dancing; it allowed me to be introduced to the historical traditions of the English (from tea to competitive sports); and it allowed me to hear about the oral tradition of story-telling of the indigenous people of British Columbia where I grew up. These (and other) experiences have given me a foundational insight into, and the presence of mind to be aware of and have respect for, the existence of many unique and diverse perspectives.
Insight into the diversity of Canadians and their unique perspectives can also come from learning about, and listening to, the challenges and struggles faced by different and diverse groups of Canadians. In November of 2007, while I was on the board of directors of the Advocates’ Society, I helped to organize and participated in the second bi-annual conference, “Combating Hatred in the Twenty-First Century – Balancing Rights, Freedoms and Responsibilities”. Representatives of diverse groups of Canadians who had experienced and responded to hatred first hand participated in this gathering and dialogue, together with civil servants and members of the legal community who often inter-faced with members of those groups in the aftermath of their experiences with law enforcement and the administration of justice. The accounts of individuals who were invited to participate and share their stories of stereotyping and racial profiling was a sobering reminder that we cannot allow ourselves to be desensitized to hatred, however it manifests itself, and a reminder of the importance of affording access to justice to its victims. The dialogue at this conference brought into focus a problem faced by the many immigrants to Canada who do not have full rights or access to our legal system due to their tentative status, language restrictions and cultural fears of law enforcement. This conference brought home for me the importance of dialogue about the differences and diversity of Canadians and the importance of stepping outside of our own daily lives and routines to look into the lives and experiences of others.
I was able to explore this further when I was on the board of trustees and the President of the Toronto Lawyers’ Association. We made a point of proactively reaching out to the leaders of various legal organizations of lawyers who were themselves, and/or represented, visible minorities. We did this to deepen our appreciation of the unique issues that they face and seek to bring to the fore on behalf of their communities as they navigate our legal system. We learned that much of their ability to make a difference for members of their communities stemmed from the trust that came from their common traditions and shared sense of community.
These experiences have not just given me insight into particular perspectives, but, more importantly, have given me an appreciation that each individual has their own unique perspective, which comes from their history, cultural traditions, experiences and community. The objective standard of the “reasonable person” against which the law in Canada sometimes determines legal culpability must recognize the perspectives of different genders, sexes, orientations, abilities, colours, races, religions and beliefs. My experiences have conditioned me to strive for this recognition. Our legal system is heavily influenced by the traditions of the common law, which are not particularly culturally diverse. I believe that room must be made to account for other cultural influences within our common law tradition. Having an appreciation of the unique and diverse perspectives can inform our understanding of human behaviour.
I have a profound respect for the diversity of Canadians. The need to respect and understand how diverse traditions contribute to the behaviour and actions of each individual is fundamental. It is fundamental not only to our ability to assess and judge the behaviours and actions of each individual, but also to each individual’s ability and willingness to put their faith and trust in our legal system.
3. Describe the appropriate role of a judge in a constitutional democracy.
A constitutional democracy is a system of government in which political authority must have the approval of the majority to be elected and put in power, but which, regardless of public support or opinion, must exercise powers limited by the constitution. Elected politicians are accountable to voters who have the power to remove them at the next election. It is the elected politicians who write, amend and/or repeal the statutory laws in accordance with their view of the mandate the public has given them. The limits of the political authority of government are found in the constitution and it is the judges who determine whether the laws passed by the politicians are constitutional.
Judges do not decide what the laws should be, but rather interpret and apply the laws that are passed by the legislators. Judges give meaning to the laws when they are unclear or capable of more than one interpretation. They try to harmonize or reconcile conflicting statutory law. Judges also develop and evolve the common law, which is the area of law made by judges to govern solutions where the legislators have not acted. In order to fulfill their role of upholding the Constitution and the Charter of Rights and Freedoms, judges must be independent of both the legislative and executive branches of government, and accountable to neither. This is why judges must be, and must be seen to be, principled, impartial and independent of political influences when they apply and interpret the law.
The constitutionality of a law that is being challenged may turn on whether the legislature that passed a law had the power to make it. The constitutionality of a law may also depend on whether it can be interpreted so as to come within those powers (and thus be found to be constitutional, even when it might be capable of another interpretation that is not). The constitutionality of a law is also dependent upon its respect for the fundamental rights and freedoms protected under the Charter.
The judiciary in Canada is entrusted with reviewing government acts to ensure that they are carried out in a manner consistent with the Charter, and, if they have not been, to evaluate whether there is a justification for those acts infringing upon an individual’s protected Charter rights. This is perhaps the most fundamental and distinct role of the judiciary, to decide cases involving alleged unjustified violations of Charter rights, where the role of government (in its legislative function or in its decision making function) is the subject of scrutiny.
Charter cases often involve broader societal implications, and are often infused with religious undertones with no shortage of public opinions about them. This phenomenon was present in the early Charter cases, such as: (a) the challenge to the law that made abortions illegal in R. v. Morgentaler ( 1 S.C.R.30), pitting a woman’s section 7 Charter rights to life, liberty and security of the person against certain religious beliefs in the right to life of unborn children; and(b) challenges to the law against Sunday shopping that pitted freedom of religion against religious observances of particular holy days (as in R. v. Big M Drug Mart Ltd.  1 S.C.R. 295 and the furrier Paul Magder whose stores remained open on Sundays). These legal challenges worked their way through the courts (to the Supreme Court of Canada), ultimately necessitating legislative changes. Charter cases have continued for over 30 years to generate controversy in the public opinion polls and to necessitate legislative action. In 2013 the Supreme Court of Canada struck down the laws prohibiting the operation of a common bawdy-house as contrary to section 7 Charter rights to life, liberty and security of the person because those laws forced the prostitutes to work on the street under potentially unsafe conditions [Canada (AG) v. Bedford  3 SCR 1101) and in 2015 the Supreme Court of Canada struck down the criminal code provisions prohibiting physician-assisted dying as contrary to section 7 Charter rights [  1 SCR 331] reversing its own earlier decision that upheld the same law (in Rodriguez v. BC). In these later cases dealing with the polarizing topics of prostitution and physician-assisted dying, the Supreme Court allowed a specified time in which the laws could be re-written to comply with the Charter.
Judicial powers, especially when it comes to the Charter, are significant and will be the subject of public scrutiny. The fact that the courts are open to the public, that judges are required to provide reasons and follow precedents, that the decisions of judges are subject to appeal, and that judicial interpretations may (except where the Charter is involved) be reversed by legislation, all provide important limitations and checks and balances on the powers of the judiciary. The judiciary in a constitutional democracy is accountable in these ways, but is not accountable to public opinion.
4. Who is the audience for decisions rendered by the court(s) to which you are applying?
The party litigants are the primary audience for decisions rendered by the Ontario Superior Court of Justice and the Court of Appeal for Ontario. However, the nature of the issues in dispute will dictate how far reaching the decisions will be, beyond the parties. This is true for both civil and criminal cases, although I will begin by an illustration of this through examples from civil cases, since that is my background.
In civil cases, beyond the parties, the stare decisis principle of common law may transform a decision about a particular tort or contract between the litigants into a precedent for future cases decided under the common law. Although there are many modern examples, the lasting impact of the classic cases such as Donoghue v. Stevenson  UKHL 100, the snail in the ginger beer case that established the basic tort law duty of care, and Hong Kong Fir Shipping Co. Ltd. V. Kawasaki Kisen Kaisha Ltd.  EWCA Civ 7 which established the distinction between contractual warranties and conditions and the concept of fundamental breach, are timeless illustrations of this.
Decisions in civil cases can also shape the conduct of, and advice to, persons in future situations who may be seeking to avoid finding themselves in court. This was the case, for example, when Justice Campbell decided in Barrick Gold Corp. v. Goldcorp Inc.  O.J. No. 3530 that a privilege can extend to communications between counsel for the litigants and third-party advisors who were part of the deal team in a corporate transaction (and that privilege was not waived by the involvement of those advisors). This “deal team privilege” in Canada has served to guide the establishment and parameters for “deal teams” in commercial transactions where legal advice is provided with the intention that it remain protected from future disclosure on grounds of privilege.
Decisions can also shape the way in which future cases are litigated. A recent example is the medical malpractice case of Moore v. Getahun, in which a ruling was made by the trial judge about what she considered to be an inappropriate review by defence counsel of an expert’s draft reports. The Advocates’ Society and other interest groups sought, and were granted, leave to intervene at the Court of Appeal because of the potential implications of the trial decision for all dealings between counsel and experts. The trial decision was overturned. This case led to the development of the Advocates’ Society’s Principles Governing Communications with Testifying Experts, which were endorsed by the Court of Appeal and can now be referred to as a guideline in any case involving testifying experts.
In criminal cases, beyond the parties, even a procedural decision can have far-reaching implications. Two examples are (i) R. v. Askov  2 S.C.R. 1199, which established the factors to be applied in determining whether the delay in bringing an accused to trial had been unreasonable, having regard to the right of an accused under s. 11 (b) of the Charter to be tried within a reasonable time; and (ii) more recently, R. v. Jordan  1 S.C.R. 631, which set the presumptive ceiling for cases to be tried at 18 months in Provincial Court and 30 months in the Superior Court. Both of these cases have led to charges being dismissed for delay. Also, the requirements for faster trials of criminal charges, in turn, has led to longer delays in civil cases, impacting all users of the justice system who are the ultimate audience for the decisions.
There are some cases that are earmarked at the outset as having broader public interest and societal implications and whose audience extends beyond the parties and other litigants. These are often, but not always, cases that involve the consideration of potential governmental infringement of Charter rights where statutes are being challenged, for example cases about same-sex marriage, Sunday shopping, abortion and public funding for private schools.
Other courts in the commonwealth may apply or try to distinguish a decision. Courts may sit in review of decisions of administrative tribunals, and the appellate courts sit in review of the decisions of the lower courts. In these various capacities, other courts are thus also part of the broader audience for the decisions rendered.
It is important that, notwithstanding the breadth of the potential audiences for a given case, the court not lose sight of the particular facts and circumstances of the parties, and that they not be overshadowed by the interests or objectives of these other audiences.
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.
Judges are expected to be impartial, empathetic and wise. To be impartial, judges must be unbiased, fair and neutral. In order to empathize, judges must be able to understand and relate to the different perspectives of the parties. This in turn requires the ability to not only hear – but really listen to – the evidence and the arguments presented, and to maintain a modicum of curiosity. Wisdom comes from knowledge and the ability to exercise good judgment (a presumptive “judicial” quality). Fundamentally, all of these qualities are shaped by experience.
True impartiality is a learned skill. We naturally are more comfortable with the familiar, drawing on our own experiences and relationships. What I have learned through my varied experiences is that keeping an open mind is a discipline that is needed to avoid bias and remain neutral. It requires one to take into account other perspectives before judgments are made. In my professional life, I have had experience with litigants of all shapes and sizes which has served to broaden my zone of “the familiar”, despite my predominantly corporate and securities litigation background. I have experience representing both the “Davids” and the “Goliaths” whom they are pitted against.
I have acted for individuals (for example, with personal injuries, facing professional claims, or fighting over their life savings) and for both big corporations and small family-owned corporations. I know that the apology and tens of thousands of dollars at stake for an individual plaintiff who suffered a deep vein thrombosis during orthopedic surgery were as important to him as the $50 billion at stake in the BCE case was to the intended purchasers. I have also acted in large class actions, as well as in insolvency and restructuring cases (for example, the Red Cross and Nortel) involving competing claims to a diminishing pool of money, where the equitable perspectives of individual employees, pensioners and others facing financial hardships were as much the focus in the weighing of interests as were the positions of large commercial secured and unsecured creditors.
Listening and empathizing with others is also a learned professional and life skill. This is a skill that is particularly well-honed in litigators such as myself who spend their days listening to clients’ stories and instructions, listening to judges’ questions, listening to witnesses’ answers to questions, listening to how others seek to characterize their evidence, and listening to arguments. But listening is not all that I have done. I know that plaintiffs need to be heard and need to feel that you understand and believe in their cause. They need validation, and they need their counsel’s wisdom and experience to help them navigate the justice system. On the defence side, litigants want to be heard and made to feel that they are justified in their actions, but they too are looking for their counsel’s wisdom and experience to help navigate them. Variations of these basic needs and expectations are true across the full spectrum of civil cases (ranging from personal injury to multi-national cross-border complex commercial cases). I have also learned that cases that involve “causes” with broad impacts and audiences require a particular type of listening patience because of the diversity of interests being represented and voices who want to be heard.
Wisdom is not learned, it is acquired through knowledge and experience. I have had the quasi-judicial experience of an investigative fact-finder, which has given me a sense of the importance of the experiential wisdom. I helped to lead confidential internal investigations for a large international organization and quickly learned that discretion, impartiality and empathy were as critical to the process as they were to the outcome.
My knowledge of civil law and procedure, acquired through my experiences with many cases and reinforced through the multitude of presentations, lectures, demonstrations, papers and publications that I have given and/or authored over the past 25 years (examples are detailed in responses to Part 7 of the Application), provides a solid foundation for the work to come if I am appointed to the bench. My experiences have also made me acutely aware of the cost of litigation and how that creates barriers to access to justice. Improving efficiency (which should also reduce the costs for both the system and the litigants) has been the focus of much of my time and work on initiatives for improvement, such as the Toronto Practice Direction on the new Case Management and papers that I have authored. I hope that as a newly appointed energetic, hard-working, innovative and dedicated member of the judiciary, I can contribute to the ongoing efforts to balance the efficiency and fairness of the judicial system.
I believe that my personal interactions with family – primarily in raising children and navigating their needs and experiences – is an equally fertile training ground in which to acquire and finesse the skills needed to be a judge.
My personal and professional experiences are what make me a decisive and fair-minded person who will not only listen but hear each side, because I know how important that is.
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 am a woman who has worked hard to be treated as an equal and recognized as a valued contributor to my firm and the legal profession. But I am just as much or more so a mother, a wife, a sister, a daughter, a dog owner, an employer, a consumer, a property owner, a neighbour, a commuter, and an every-day person.
My every-day life experiences have taught me that experiences shape perspectives and that perspectives influence judgments. I will bring a conscious sensitivity for the diverse experiences and perspectives of others into my assessments and evaluations.
The development and maintenance of a judiciary that is representative of the diversity of Canadian society can be enhanced through the appointment of people like me who have tolerance and empathy and are committed to ensuring that all are fairly treated and that our society (and judicial system) function in a manner that is accepting of, and accommodating to, the many differences among peoples.
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