Precedent Magazine — Summer 2022

Climate control An in-house counsel’s cutting-edge legal work at Greenpeace p.13

The right stuff How to be a better mentor p.15

We’re not kidding The surprising link between litigation and stand-up comedy p.27

The new rules of law and style Summer 2022 $9.95 precedentmagazine.com

The Precedent Setter Awards 2022 Edition Inside

Meet this year’s winners

Sarah Mavula Senior associate, Baker McKenzie LLP

EXCLUSIVE ONLINE NETWORKING FOR LAWYERS

The following lawyers were recently featured on the Precedent A-List a-list.lawandstyle.ca The Precedent A-List is your online source for awards, promotions, new hires and other legal news

Minden Gross welcomes associate Lee Abraham

Minden Gross welcomes partner Seema Aggarwal

Waddell Phillips welcomes associate Adam Babiak

SpringLaw announces partner Marnie Baizley

WeirFoulds welcomes partner Carleigh Bassett

Lenczner Slaght welcomes associate Meghan Bridges

Gilbert’s announces partner Colin Carruthers

Crawley MacKewn Brush announces partner Dana Carson

Mathews Dinsdale announces partner Wilson Chan

Burnet, Duckworth & Palmer welcomes associate Lauren Coles

Naymark Law welcomes associate Dillon Collett

Blaney McMurtry welcomes associate Rae Daddon

Lenczner Slaght welcomes associate Nik De Stefano

Thomson Rogers welcomes associate Lauren Degabriele

Mathews Dinsdale welcomes Laura Dunnigan as counsel

WeirFoulds welcomes associate Delara Emami

Blaney McMurtry welcomes associate Ines Ferreira

WeirFoulds welcomes partner Lorraine Fleck

Get more news online at a-list.lawandstyle.ca

Blaney McMurtry welcomes associate Sean Frankland

Black Sutherland announces partner Adam Giel

SpringLaw announces partner Jessyca Greenwood

McCarthy Hansen announces partner Lauren Hanna

Smart & Biggar welcomes associate Malcolm Harvey

Rae Christen Jeffries announces partner Anne Marie Heenan

Waddell Phillips welcomes partner Peter Henein

Robins Appleby announces partner Ismail Ibrahim

Blaney McMurtry welcomes associate Anna Iourina

WeirFoulds welcomes associate Kelsey Ivory

WeirFoulds welcomes associate Vipal Jain

Mathews Dinsdale announces partner Natasha Jategaonkar

Lerners welcomes associate Andrew Johnson

Blaney McMurtry announces partner Lucas Kittmer

Robins Appleby announces partner Ladislav Kovac

Henein Hutchison welcomes partner Ewa Krajewska

Robins Appleby announces partner Faye Kravetz

Blaney McMurtry welcomes associate Tyler Macks

Black Sutherland announces senior partner Josiah MacQuarrie

McCarthy Hansen announces partner Valarie Matthews

Lerners welcomes partner Kenneth McGill

Tyr welcomes associate Theo Milosevic

Steinecke Maciura LeBlanc welcomes Ahmad Mozaffari as counsel

Black Sutherland announces senior partner Blair Nitchke

Brown Mills Klinck Prezioso welcomes associate Pamela Odina

Minden Gross welcomes associate Sakshi Pachisia

SpringLaw announces partner Hilary Page

Blaney McMurtry welcomes associate Anja Perc

Ross Nasseri welcomes partner Erin Pleet

WeirFoulds welcomes associate Jeremy Power

Burnet, Duckworth & Palmer announces managing partner Alicia Quesnel

Mathews Dinsdale welcomes Stephanie Ramsay as counsel

Ross Nasseri welcomes Helen Richards as counsel

Robins Appleby welcomes associate Anisha Samat

Waddell Phillips welcomes associate Jonathan Schachter

Steinecke Maciura LeBlanc welcomes associate Valreen Sealie

Blaney McMurtry announces partner Sonia Shantikumar

Gilbert’s announces partner Kevin Siu

Black Sutherland announces partner Dale Stuckless

Henein Hutchison announces Brian Studniberg as counsel

Tyr welcomes partner Jason Wadden

Minden Gross welcomes associate Jessica Ward

WEL Partners welcomes associate Laya Witty

Smart & Biggar welcomes associate Hyun Woo Choi

Ruby Shiller Enenajor DiGiuseppe welcomes associate Jessica Zita

To share your news, contact us at alist.support@precedentmagazine.com 416-929-4495

On the cover Photography by Kayla Rocca

Summer 2022. Volume 16. Issue 2.

PHOTOGRAPH BY KAYLA ROCCA

Precedent Setter Award winner Warren Cass

Cover story

The 2022 Precedent Setter Awards

Meet six outstanding lawyers, all in their first 10 years of practice, who shine in the legal world and work tirelessly to support the broader community p.19 PRECEDENTMAGAZINE.COM

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Contents

27

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Editor’s Note Precedent mourns the loss of a lawyer who always had our back p.9 Letters Our readers respond to our spring issue p.10 Our People We asked our contributors to tell us about a memorable lesson from a previous job p.11

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Brief

Debrief

Best Practices At Greenpeace Canada, Priyanka Vittal uses her law degree to protect the natural world p.13

The Insider The best litigators have a lot in common with stand-up comedians p.27

Opinion How to mentor the next generation of legal talent p.15

Secret Life Meet a lawyer who’s skilled with a bow and arrow p.30

IMAGES BY (CLOCKWISE FROM LEFT): STEPH MARTYNIUK, RYAN SNOOK, SALINI PERERA

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CONTRIBUTING PHOTOGRAPHERS & ILLUSTRATORS

Melissa Kluger SENIOR EDITOR

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ART DIRECTION

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ACCOUNTING

FACT-CHECKERS

Paul Cass

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CONTRIBUTING WRITERS

Jeremy Freed Danielle Groen Matthew Halliday Peter Henein Conan Tobias Daniel Waldman

Kayla Rocca Steph Martyniuk Salini Perera Ryan Snook

PROOFREADERS

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Editor’s Note

At a loss At Precedent, we’re mourning the loss of the media lawyer who helped the magazine over the past decade One of the advantages of making a quarterly magazine is that we can work well in

advance to put it together. We assign stories months ahead so they can be carefully edited, fact-checked, proofread and, on occasion, lawyered.

And for most of the magazine’s history, we turned to Stuart Robertson, a veteran in media law. In March, Stuart passed away. Although we are still in excellent hands with his colleagues at O’Donnell, Robertson & Partners, we are missing Stuart.

On most occasions, we would ask for Stuart’s advice on stories that mentioned active legal proceedings or drop him a note with a quick question. Matters such as these were usually dealt with in a kind and expedient email. From time to time, however, an issue would arise in which we would need a call with Stuart to work through a difficult problem. Those occasions were never fun since something stressful and complex was afoot, but I cherish those opportunities we had to puzzle through a problem with such amazing counsel.

Over decades in the media industry, Stuart’s experience was obvious. “He had a knack for immediately grasping the legal issue at hand,” says Daniel Fish, Precedent’s senior editor. “If we were stumped on a thorny issue, he could always determine the next step with total confidence. At stressful moments, he somehow made it easy to see the path forward.”

Above all, Stuart cared about Precedent. He never said that exactly, but I could just tell in the thoughtful advice he gave. He brought perspective and wisdom that went beyond the legal facts, recognizing relationships in play that fell outside any legal factors. He listened carefully and gave amazing advice that would then guide us through our most difficult times. Stuart had our backs. We are thinking of him and offer our condolences to his family and colleagues.

I hope you enjoy the issue.

A winning formula I’m pleased to let readers know that Precedent is a finalist at this year’s National Magazine Awards: Business to Business. Our cover story on American law firms stealing Canadian legal talent (“The brain drain,” Fall 2021) earned two nominations: one for Best Illustration and another for Best Art Direction.

I’d like to thank our art directors, Brian Morgan and Rachel Wine, and our illustrator, Andrew B. Myers, who collaborated to find a clever way to visualize the story.

With a handful of straws and a collection of measuring cups, Myers was able to illustrate how the United States is siphoning off our lawyers.

To read the story and check out the artwork, head over to precedentmagazine.com.

PHOTO BY IAN PATTERSON

Melissa Kluger Publisher & Editor melissa@precedentmagazine.com @melissakluger

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Letters

Your CPD. From your legal community.

ROLE MODEL

It was a pleasure to see your recent profile of Warda Shazadi Meighen (“True purpose,” Spring 2022). I’ve worked with Warda on the executive committee of the Canadian Association of Refugee Lawyers and as a colleague who practises immigration and refugee law. She brings so much to this high-stakes work: wisdom, integrity and empathy. Thank you for highlighting Warda’s journey. She’s an inspiration to us all!

Maureen Silcoff Partner, Silcoff Shacter

See our Spring programs at store.lso.ca

@LSOCPD Law Society of Ontario CPD

Cult following In your latest issue, it was comforting to read about other lawyers who are devoted to their Peloton (“Ride on,” Spring 2022). I feel justified in my fondness for my own Peloton bike! The combination of in-home exercise and an ongoing digital competition with friends makes it fun to hop on for a ride before or after a full day at work. Lawyers’ schedules can be all over the place, so it was reassuring to hear how different people fit their Peloton use into odd times throughout the day. It was delightful to read this cheeky piece in Precedent.

Christopher Dias Litigation Associate, Lerners LLP

The work ahead I appreciated Luc Rinaldi’s article on how law firms are still failing on diversity (“Back to the drawing board,” Spring 2022). What stood out to me were the innovative, databacked ideas that can help fix this longstanding problem. Examples include evaluating lawyers on a scale of 1-to-6 (as opposed to 1-to-10) and adopting an “opt-out” rather than an “opt-in” model when it comes to promotions and parental leaves. These ideas don’t require extensive training that yields few results. Instead, they help achieve an incremental shift in firm culture through small but intentional actions.

Rachel Migicovsky Litigation Lawyer, TAP Law

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Luc Rinaldi’s piece struck a chord with me.

While I never found myself in Big Law or what you might call a traditional law firm, I, too, can relate to the experiences described.

This is one reason I am in solo practice, where I have found supports among my solo peers that seem to simply not exist in traditional firms.

In today’s legal landscape, law firms and organizations purport to support lawyers and embrace diversity. But not enough doors are being opened — and not enough deserving, diverse individuals receive an opportunity to step through. Real change likely isn’t possible without restructuring whole systems, firms and current ways of thinking.

I look forward to reading more from Precedent on this important topic.

Rachel Sachs Lawyer-Owner, Sachs Law Professional Corporation

The hottest stories on precedentmagazine.com Most views Two lawyers teamed up to buy a cottage Most likes Why are lawyers so obsessed with Peloton?

Most retweets Why are law firms failing on diversity?

Our People

Think you missed a program?

On the job In this issue, a lawyer writes about the similarities between litigation and stand-up comedy. So we asked our contributors to tell us about something they learned at a previous job that helps them in their current career

We’ve got you covered!

Check out our replays!

“My previous jobs were in live theatre, where everything can — and will — go wrong,” says Maureen Barnes, the administrative assistant at Precedent. “This taught me to keep a level head and solve problems on the fly. An adaptable mindset is valuable in every workplace. The show must go on!” In her role, Barnes works on the Precedent A-List (our job and announcement board for lawyers) and manages our subscription database. Her attention to detail is one of the chief reasons that this issue has arrived in your hands.

PHOTO OF KAYLA ROCCA BY DANIJELA GORLEY

Kayla Rocca is a commercial, editorial and lifestyle photographer based in Toronto. Her work has appeared in Toronto Life, The Kit and Fashion. For this issue, she captured vibrant images of the winners of our annual Precedent Setter Awards (“Setting the stage,” p.19). Having worked as a server at The Drake Hotel, Rocca has never forgotten the following lesson: “A person who is nice to you but rude to the waiter is not a nice person.”

“In college, I worked as a mover for an international moving company,” says Ryan Snook, an illustrator whose work has appeared in Time, The Wall Street ­Journal and Billboard. “What I learned from that job is that drawing cartoons for a living is a lot better on your back.” In this issue, his artwork accompanies the story that explores how litigation is a lot like comedy (“Stand-up counsel,” p.27).

Live Chat with your peers while you learn.

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Brief

THE LATEST FROM THE LEGAL WORLD

BEST PRACTICES

Planetary defence As legal counsel at Greenpeace Canada, Priyanka Vittal is fighting for a healthier, more equitable world

by Jeremy Freed illustration by Salini Perera

“ When someone is struggling, that’s no reason to stop trying.”

Daniel Waldman on the basics of legal mentorship p.15

When talking about the state of the planet, Priyanka Vittal does not mince words. “We are living at a critical juncture in human history,” says the 33-yearold legal counsel at Greenpeace Canada. “There is no more normal. We must do as much as we can to fight for our climate and communities. We need to find a path to a better future.” In her current job, she is working tirelessly to do just that.

Back in law school, at the University of Ottawa, Vittal had a deep passion for social justice and the environment. She also understood that landing a job at the intersection of those dual interests would be a tall order. But once she was called to the bar, in 2014, she nonetheless decided to pursue that dream. Without a job, she moved to Toronto and met with environmental lawyers over coffee as often as possible.

The plan worked. That same year, Vittal secured a three-month contract at Eric K. Gillespie Professional Corporation, a small law firm that operates in a

PRECEDENTMAGAZINE.COM

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Brief range of practice areas, including administrative, municipal and environmental law. At the end of that contract, she joined the firm as a permanent associate. In 2016, she noticed a job posting at Greenpeace Canada. The non-profit was looking for an inhouse legal counsel. “I jumped at the opportunity,” she recalls. She applied and landed the position.

Popular culture tends to depict Greenpeace as a group of militant, self-righteous evangelists. “I think it’s the complete opposite,” says Vittal. “We see the importance of protecting the planet because we see beauty in it. We receive joy from it.”

Indeed, Vittal’s legal work doesn’t involve lambasting individuals for their behaviour.

Her objective is far more ambitious: to hold governments and corporations accountable for actions that harm the climate and the natural world.

During her tenure at Greenpeace, for instance, Vittal has worked on a pair of legal actions against the government of Ontario.

In 2018, alongside Ecojustice, she took the Doug Ford administration to court after it passed legislation that scrapped the province’s cap-and-trade program. “It not only undercut a successful program that was helping Ontario reduce greenhouse gas emissions,” she says. “It also cancelled 227 clean-energy programs that would have benefited schools, hospitals, small businesses and public housing projects.”

In the end, the court dismissed the lawsuit. But the decision included one key finding: the government had failed to enter a

“There is no more normal.

We must do as much as we can to fight for our climate and communities.”

Priyanka Vittal

period of public consultation before passing laws that affect the environment. “The court’s decision will not bring cap and trade back in Ontario,” says Vittal. But the court sent a strong message that elected officials don’t have “carte blanche to trample Ontarians’ environmental rights.”

In 2020, Vittal once again worked with Ecojustice in a case against Ontario’s COVID-19 Economic Recovery Act. This lawsuit argued that the omnibus bill slashed

environmental regulations that had nothing to do with the pandemic. In particular, the province gave itself the power to override local governments and greenlight development projects that threaten wetlands and heritage sites. The court again censured the government for its lack of consultation with the public. Although the legislation itself survived — on the basis that the province did, eventually, seek comments from the public — the ruling adds to a growing body of caselaw that limits the powers of the state to degrade the environment.

To Farrah Khan, the deputy director of Greenpeace Canada, the world needs more lawyers like Vittal. “She uses her skills and expertise to lift up community needs in the face of inequitable power imbalances,” she says. “Priyanka brings to our team the smarts and commitment of a movement lawyer who uses the law as a mechanism for seeking and attaining justice at the community level.”

Currently, Vittal is on parental leave. In June 2021, she had her first child with her partner, refugee lawyer Joshua Blum. Looking ahead, she’s excited to return to work in August. One of her upcoming projects is an initiative to help people take legal action against fossil fuel companies for the consequences of climate change in their communities. “There is only so much we can do as individuals, and although we should each do our part, the responsibility also lies with the government and corporations to make change,” she says. “We should hold them accountable.”

Priyanka Vittal Legal counsel, Greenpeace Canada Year of call 2014

2010: Vittal earns a bachelor of science, with a double major in physiology and psychology, from Western University.

2012: After her second year of law school, at the University of Ottawa, Vittal summers at a small environmental law firm in Ottawa. A large part of that role involves working on environmental-assessment law with MiningWatch Canada, a watchdog of the Canadian mining industry.

2013: Upon graduation from law school, she articles at McKenzie Lake Lawyers LLP, a

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full-service firm in her hometown of London, Ont.

read about them, the more excited I became.”

2014: After her call to the bar, Vittal moves to Toronto and lands at a small law firm that handles files in practice areas ranging from administrative to municipal to environmental law. “I was thrown into the deep end very quickly,” she recalls. “It felt like a roller coaster: scary and thrilling at the same time.”

2019: In a blog post on the Greenpeace website, Vittal writes that “the City of Toronto should explore legal action against oil companies that could hold them financially responsible for the costs of the ­climate crisis they helped create.”

2016: Vittal joins Greenpeace Canada as legal counsel. “I didn’t really know the organization well,” she says, “but the more I

PHOTO: COURTESY OF PRIYANKA VITTAL

Timeline of an environmental lawyer

Brief OPINION

Growth opportunity To thrive, junior associates need a committed mentor

ILLUSTRATION: SHUTTERSTOCK

by Daniel Waldman

When a law firm decides that an associate will not make partner, the next step is often to tell that person to quietly find another job.

Ideally, this should be a move of last resort, only put into practice after an honest effort to help the junior lawyer improve. More than once in my career, however, I’ve heard about a law firm doing the exact opposite: dismissing an associate with a long track record of positive feedback and favourable performance evaluations. At no point had a senior lawyer raised any concerns. In a profession that takes pride in its tradition of mentorship, how can this story be so common?

The main problem, in my view, is that many senior lawyers don’t know how (and when) to provide useful feedback. As a result, underperforming associates often move through law-firm life without proper guidance. To all the senior lawyers in the profession, it’s high time that we had a talk about what good mentorship looks like.

As a starting point, it’s vital to provide clear instructions at the outset of every assignment. Remember: junior lawyers are new. You can’t expect them to understand the intricacies of legal practice without your help. I’ll admit that this is something I’ve been guilty of too. Don’t make the same mistake: be patient and explain things clearly when you assign work.

Once a task is underway, make sure the associate feels comfortable asking questions.

Welcome the opportunity to discuss the work and respond to inquiries along the way.

This can be time-consuming, to be sure, but it’s essential to the learning process, and it will show in the work product.

Next, as junior lawyers become more skilled, challenge them with varied and difficult projects. Push their limits. Encourage them to think in different ways. Lawyers tend to develop better if they learn how to operate outside of their comfort zones.

I know that some people might disagree with this next piece of advice, but I think senior lawyers should be cautious about

getting too friendly with juniors, especially in the early phase of the relationship. In my experience, juniors may not take their work as seriously when they get too comfortable with their superiors. Don’t get me wrong: I’m not suggesting that you should be mean or cold, and friendships can develop in the long term. But when juniors are still learning the trade, it’s important to set some boundaries. If things get too friendly too fast, the work product may suffer. And it will be awkward when you need to give critical feedback.

You also shouldn’t make snap decisions about which junior associates show promise.

When someone is struggling, that’s no reason to stop trying. In my experience, the vast majority of new lawyers have potential: with time and patience, you can steer them in the

right direction. Believe in second, and even third, chances.

If you receive work that comes up short, address the issue frankly and without delay.

The purpose of criticism should be to help the person improve. Juniors will be more receptive to advice if you approach it as a collaborative discussion rather than chastising.

Most importantly, remember that it’s an act of respect to let juniors know how they’re doing on a regular basis and at scheduled performance evaluations. If they end up in a meeting with upper management, shocked to learn that their work is second-rate, that may not be their fault. It might be on you.

Daniel Waldman is a lawyer in the litigation group at Pallett Valo LLP. He writes about career satisfaction and business development for Precedent.

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How this Bay Street ­lawyer broke into the competitive world ­of tax law When Hennadiy Kutsenko took the corporate tax course in law school, he found his true passion. Sure, he admits, the subject was “ridiculously difficult” and poring over the convoluted caselaw could “hurt your brain.”

But he loved the intellectual challenge. Once he was called to the bar in 2015, he tried to land a position as a junior tax lawyer.

He soon realized, however, that he had a big problem. As a student, his only work experience had been in family, labour and pension law. In the hyper-competitive tax bar, his resumé failed to demonstrate enough devotion to the practice area. Kutsenko couldn’t even get a job interview.

He needed to burnish his credibility. So he enrolled in the taxation law specialization of the Osgoode Professional LLM, a rigorous graduate program that he could complete on a part-time basis. The impact on his career was immediate. Shortly after he was accepted to the program, he joined a small tax firm in Vaughan. Today, the 35-year-old is an associate in the tax group at Bennett Jones LLP. In that role, Kutsenko helps businesses tackle a wide range of tax problems. In the past, for instance, he’s advised ­clients on how to set up a pension plan or launch a subsidiary in the United States. No matter the task, he often relies on skills that he acquired in the professional master’s program.

“The faculty were real-world practitioners who brought their up-tothe-minute experience into the classroom,” he says. “It gave me a head start in being a real-life lawyer.”

HENNADIY KUTSENKO Osgoode LLM: Taxation Law, 2019 Associate, Bennett Jones LLP Year of call: 2015

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Daniel Brown Law is proud to congratulate

Colleen McKeown 2022 Precedent Setter Award Winner

Baker McKenzie is proud to congratulate Sarah Mavula, recipient of the 2022 Precedent Setter Award

I view my clients' successes as my own; so it's important for me to deeply understand their businesses and goals. This allows me to provide practical and easily digestible advice.

Sarah Mavula Senior Associate, International Commercial | Inclusion & Diversity Committee Co-Chair

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Setting the stage THE WINNERS OF THE 2022 PRECEDENT S E T T E R AWA R D S

seem to attain the impossible. In one moment, they’re pioneering a new body of caselaw in the courtroom. The next instant, they’re providing pro bono advice at a community organization or teaching a course to firstyear law students. How could any one lawyer achieve so much?

T H E B E ST L AW Y E RS

The winners of this year’s Precedent Setter Awards provide an answer. All in their first 10 years of practice, these lawyers manage to excel in the legal world and support the broader community. Turn the page to learn about their proudest accomplishments.

Daniel Fish, Danielle Groen, Matthew Halliday and Conan Tobias

THE JUDGES:

PHOTOGRAPHY BY

Jamie Greenberg General counsel, Wattpad

BY

Kayla Rocca HAIR AND MAKEUP BY

Aniya Nandy

Annamaria Enenajor Partner, Ruby Shiller Enenajor DiGiuseppe Barristers

Pam Hrick Executive director and general counsel, Women’s Legal Education and Action Fund Tanya Walker Managing partner, Walker Law Professional Corporation

PRECEDENTMAGAZINE.COM

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202 2 P R E C E D E N T S E T T E R AWA R D S

Devin Persaud Senior associate, Goodmans LLP Year of call: 2015 Devin Persaud feels lucky to have grown up in Malvern, one of the most diverse neighbourhoods in Toronto. He came of age, in his words, “surrounded by people of different cultures.” But the community struggled to overcome poverty, discrimination and racial bias. At a young age, Persaud identified a tool that he could use to fight injustice: the law.

The kid from Malvern is now an associate at Goodmans LLP. At 33, Persaud has built an impressive competition,

antitrust, marketing and compliance practice. When companies are hit with allegations of monopolistic behaviour or unfair business practices, he often takes a leading role in the case. He regularly oversees teams of junior lawyers and advocates on behalf of clients in front of regulators and tribunals. “It’s just such a wide and fascinating area,” he says, “and relevant today as we look at large tech companies expanding their footprints.”

Back in 2018, Persaud ended up on a headline-grabbing case. As an associate at Borden Ladner Gervais LLP, he became a core member of the legal team that represented Loblaws after it was accused of participating in a scheme that artificially raised the price of bread. He’s particularly proud to have helped the grocery chain implement a new compliance program that minimizes the risk of wrongdoing in the future. “Working with clients like this is amazing,” he says, “where you get to be embedded in their fabric for months.”

Persaud is also a leader in the broader profession. Since August 2021, he’s been president of the Toronto chapter of the South Asian Bar Association. “This is a really challenging job,” says Ranjan Agarwal, a past president of the organization and a partner at Bennett Jones LLP. “The South Asian bar in Toronto is diverse. You’ve got people like me and Devin practising in big firms. You’ve got lawyers running small practices in strip malls. Devin needs to be president of all of us. And he’s doing that incredibly well.”

In Malvern, Persaud remains an active member of the community. He helped found an organization for local youth, and he provides pro bono legal advice to community groups. “It’s really important for those of us who’ve achieved something,” he says, “to do what we can to send the elevator back down.” — MH

202 2 P R E C E D E N T S E T T E R AWA R D S

Colleen McKeown Partner, Daniel Brown Law LLP Year of call: 2016 In May of 2018, Colleen McKeown met with a potential client named Damir Cepic. At a recent trial, Cepic had been convicted of sexually assaulting a woman in the VIP room of a strip club where he worked as a dancer. He didn’t deny having sex with the complainant, but he said it was consensual. He wanted to appeal the decision.

At the time, McKeown was a secondyear associate at the criminal-defence firm Daniel Brown Law LLP. Despite that junior vintage, she was already a firstrate appellate lawyer. “Colleen is an exceptional writer, and she’s very cerebral,” says Daniel Brown, lead counsel at the firm. “She’s fearless when it comes to taking on new and difficult cases.”

McKeown applied that tenacity to Cepic’s appeal. When she reviewed the decision, she noticed a troubling pattern: the judge routinely characterized her client’s testimony at trial as “implausible” or “nonsensical” without tying those conclusions to any evidence. At one point, for instance, the judge addressed Cepic’s claim that the complainant had willingly “touched his penis” in the middle of a lap dance. The judge deemed that “implausible” because the woman, until that night, had never had a lap dance or been to a strip club. To McKeown, that finding was rooted not in evidence but in an assumption that someone at a strip club for the first time “would behave in a timid way.”

In her appeal, McKeown cited caselaw that prohibits judges in sexualassault trials from assessing the credibility of a witness by falling back on gendered stereotypes. Historically, the courts have relied on bias to doubt the testimony of complainants. In the Cepic case, of course, the judge had disbelieved the accused. But the decision still hinged on multiple assumptions about how women are supposed to act. McKeown argued that the entire ruling was tainted.

Ultimately, she won: the court ordered a new trial. “First and foremost,” says McKeown, “I’m happy that I was able to get the result for my client.” The

precedent-setting case also sent a clear message to the judiciary. “Judges have to be careful about relying on what they think is common sense,” she says. “They really need to look at the evidence.” (At his second trial, Cepic was acquitted.)

Today, McKeown is a partner at Daniel Brown Law. The 33-year-old has appeared as lead counsel at all levels of court in Ontario and served as co-counsel at the Supreme Court of Canada.

Outside the courtroom, she’s an active member of the Criminal Lawyers Association and an adjunct professor at the University of Toronto. She teaches legal research and writing to first-year law students. “Helping students get on the right path early is something I really enjoy,” she says. “It’s important to give back to the profession.” — DF

202 2 P R E C E D E N T S E T T E R AWA R D S

Warren Cass Partner, Gowling WLG Year of call: 2013

Warren Cass thinks a lot about what the legal system, at its best, can accomplish. “I’m fascinated by the way people set out the rules, agreements and compromises that allow us to function as a community greater than the sum of its parts,” says the 37-year-old partner at Gowling WLG. “That’s law.”

In his securities practice, Cass has sought out work that poses novel challenges. To cite one example: he’s become an expert in cryptocurrency. By helping businesses interpret the industry’s complex web of regulations, he has a front-row seat to how lawmakers are trying to both preserve cryptocurrency’s benefits (by allowing people to easily engage with the novel technology) and mitigate its risks (by keeping it fair, open and transparent). “I believe in the promise and revolutionary potential of crypto, as well as the importance of protecting investors from manipulation and fraud, and the public from crime,” he says. “To me, working in crypto means helping to achieve those objectives.”

His client roster has included Coin­ square, Canada’s largest cryptocurrency exchange. Last year, the Vancouverbased fintech outfit Mogo acquired 39 percent of the company. Cass was the lead associate on a seven-person team that handled the transaction. “This was more complicated than your run-of-themill M&A deal,” says Peter Simeon, a partner at Gowling. “But Warren stepped right up. His ability to projectmanage files and deal with clients is superior.”

Cass also dedicates time to equity and inclusion work. An openly gay lawyer, he founded OpenHouse Canada, a network of LGBTQ2+ employees and allies at Gowling. The group has launched several initiatives, including a series of webinars that are available to Gowling lawyers and the broader public.

Cass is particularly proud of an event that featured the directors of No Ordinary Man, a documentary on the trans icon and musician Billy Tipton. More than 700 people logged on to watch.

Outside the legal world, Cass is a volunteer board member at Artscape, which provides affordable space to artists in Toronto. “By providing housing, studio and performance spaces,” he says, “we’re able to support creativity and enhance communities.” — MH

202 2 P R E C E D E N T S E T T E R AWA R D S

Jennifer Davidson Associate, Deeth Williams Wall LLP Year of call: 2017

Jennifer Davidson has always been a bit of a techie. Two decades ago, in a previous professional life, she taught herself how to build websites for media companies and applications for fledgling startups. But she was particularly drawn to working with lawyers to ensure that great innovations didn’t fall on the wrong side of the law — and she even found herself doing LSAT problems in her free time. So in 2013, in her mid-30s, she went to Osgoode Hall.

Now an associate at Deeth Williams Wall LLP, Davidson’s practice centres on technology and intellectual property, spanning everything from complex technology agreements and IP licensing to cybersecurity and data protection. As the firm’s go-to counsel for data and security breaches, Davidson says her schedule “does get exploded on a very regular basis.” When a client is hit, she will call in forensic IT firms, public relations experts and even a hostage negotiator (in the case of ransomware). “Sometimes, it’s 24/7 for a week,” she says. “I’ll send emails till 1 a.m., get a few hours’ sleep while somebody else takes the helm, and then get up and get right back into it.”

Davidson’s services were in enormous demand at the start of the pandemic, when organizations — banks, governments, educational institutions — needed to deal with the legal implications of moving quickly online. At the same time, she was stick-handling three kids through the twin pressures of home-schooling and teenagehood. “I adore my beautiful and lovely children, but I prefer never to be locked down with them again,” she says with a laugh.

That sort of candour anchors her approach to mentorship, as well. “Jennifer always brings in the human element that sometimes gets lost in translation,” says Lisa Danay Wallace, a partner at WeirFoulds LLP, who has known Davidson since her articling days and has seen her leadership skills on display at the Canadian Technology Law Association, where Davidson is the president. As the former co-chair of the group’s Women in Technology committee, Davidson organized events around pay equity and unconscious bias. For one especially powerful speaker series, female lawyers shared their biggest failures. “There was laughter; there were tears,” says Davidson, who also built up a year-long, nationwide mentorship program pairing senior members of the bar with new lawyers. “But even women doing incredible things make lots of mistakes. We really need to see the person behind the career path.” — DG

202 2 P R E C E D E N T S E T T E R AWA R D S

Gregory Ko Partner, Kastner Lam LLP Year of call: 2012

When people come through Gregory Ko’s door, they’re often at their most vulnerable, contending with discrimination, with termination, with harassment. A civil litigator focused on employment and human-rights law, Ko helps his clients go toe-to-toe against large, wellfunded institutions. But his first job is just to listen. “The work we do here requires us to be social workers to some degree,” he says.

Some clients are keen to avoid the courtroom; others want to draw

attention to their case. Either way, Ko “brings an enormous amount of intellectual flexibility to his practice,” says Danny Kastner, his fellow partner at Kastner Lam LLP. “He’s very detailoriented, but he’s also able to zoom out and see how an issue should be framed.”

In one high-profile case, Ko is lead counsel in a human-rights complaint aiming to end the discrimination against queer men in Canada’s blood-donation policy. Last year, Health Canada, one of the respondents, tried to dodge the case altogether, arguing that it has no power over the donor criteria. But Ko showed that the agency plays a far more active role in vetting the rules than it had let on. A federal court judge agreed, and found that the challenge could go forward. Health Canada announced in April that it would lift the blood-donation ban on men who’ve had sex with men. “This will allow gay and bisexual men to donate for the first time in 30 years,” Ko says. He plans to remain active on the case, though, in part to address the historical discrimination caused by the policy.

As the child of immigrants, Ko has seen first-hand that the world is not an equal place. “It was important to me to focus on efforts that level the playing field,” the 37-year-old says. That’s clear from his caseload: on behalf of a student at the University of Windsor, Ko persuaded an Ontario court that the school failed to adequately investigate her sexual-assault complaint. (The result should establish the parameters under which a school has a legal duty to investigate sexual-violence complaints.)

It’s also clear in his community work: as vice-chair of the Ontario Bar Association’s Sexual Orientation and Gender Identity Caucus, he works to make space for more lawyers in a profession that’s historically been straight, white and male. “It’s been really nice to contribute to building a new generation of civil litigators who don’t fit the classic mold,” he says. “And to build a world where, when I walk into a courtroom, the opposing counsel is someone who looks kinda like me.” — DG

202 2 P R E C E D E N T S E T T E R AWA R D S

Sarah Mavula Senior associate, Baker McKenzie LLP Year of call: 2016

Sarah Mavula knows what it’s like to leave everything behind and start a new life. When she was a young child, her family fled the violence of the Burundian Civil War in search of safety abroad.

Alongside her father, mother and two older brothers, she built a new home in Canada.

Now 32, Mavula is a senior associate at Baker McKenzie LLP, where she has cultivated a robust solicitor practice. In her day-to-day legal work, she represents a wide range of clients, including pharmaceutical giants, beauty brands and car companies.

To assist those clients, she seamlessly moves between practice areas, such as competition and foreign-investment law, as well as marketing. “The key for me is becoming a trusted advisor for my clients,” she says, “offering practical advice and making it digestible.”

The plan is working. “Clients love her,” says Stephanie Vaccari, the managing partner at Baker McKenzie. “She’s an understated superstar.”

In 2020, Mavula took on a major leadership role: she became the co-chair of Baker McKenzie’s inclusion and diversity committee. “The committee has never been so organized,” says Vaccari. “She and her team have been able to get the entire office engaged.”

Mavula also devotes significant time to pro bono work. Over the past five years, for instance, she has volunteered with Matthew House Toronto, a charity that provides housing and social services to refugees. To prepare asylum-seekers for upcoming court hearings, Mavula works with the charity to hold mock adjudications. Pre-COVID, Matthew House held these sessions in a room at a church that had been arranged to look like a courthouse. During the pandemic, the charity moved the hearings onto videoconference.

No matter the setting, however, the approach is the same. “We review all of their files, and we’re super tough on them,” says Mavula. “We act like adjudicators.”

Having witnessed her own family’s courage to overcome hardship, she is proud to donate her legal skills to the next generation of refugees. “Seeing how my parents decided to not give up and persevere,” she says, “has been my guiding light in life.” — CT

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Debrief LIFE BEYOND THE LAW

THE INSIDER

Stand-up counsel As a comedian-turned-lawyer, I’ve discovered that making an argument in court is a lot like performing at a nightclub

by Peter Henein Illustrations by Ryan Snook

“ You have to be really centred in what you’re doing or it’s just not going to work.”

Leslie Anne St. Amour on the secret to success in archery p.30

Before law school, I was a professional stand-up comic. Looking over the last two decades of my career, I realize that many of the techniques I learned while writing and performing comedy made their way into my written and oral advocacy — perhaps by osmosis or simply as a matter of reflex. It’s not that I was slipping jokes into my legal submissions, mind you. As the old quote goes: dying is easy; comedy is hard. And comedy in court would lead to a cruel death indeed.

At root, the comedian and the litigator must overcome a similar set of obstacles. In the hopes of passing along a few nuggets of wisdom, I’ve identified five principles of stand-up comedy that also apply to litigation.

1. Relax and look like you belong there Owning the space means projecting that you belong in it. When comics walk on stage, they have to take control immediately. Audiences, like any other naturalborn predator, will pounce if they smell insecurity. You don’t have to be loud or aggressive. Steven Wright, the master of deadpan comedy, tells slow, methodical one-liners. Joke after joke, he never speeds up or looks like he is even trying. But the stage is always his.

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Debrief It’s the same in court. This is your office, and you are at work. If you’re feeling nervous, uncomfortable with aspects of your argument or concerned about the angry client sitting at the back of the room, take a deep breath and remind yourself that, yes, all eyes are on you and should be on you.

Like Wright, you can be measured and methodical and still project control. It doesn’t require bluster. And no matter how bored/angry/annoyed the judge may look, never, ever, act like you’re sorry that you are taking the court’s time. You are there to do the job you came there to do.

2. Address the elephant in the room Pretty much every stand-up I know has read Judy Carter’s famous (if equally reviled) Stand-Up Comedy: The Book. It’s basically a paint-by-numbers guide for writing your first comedy set. One of Carter’s “gems” is to start by addressing your physical appearance right out of the gate. For comedy, I hate this advice. I could go on at length about how hackneyed it is to start out with a joke about your weight, ethnicity, hair, height and so on. To this day, I still see comics start out their sets with this low-hanging fruit. But if there is something that will truly distract the audience, it would be a mistake to ignore it. If someone breaks a glass, has a distracting laugh or heckles, you have to address it, lest you make the audience uncomfortable — or, worse, feel bad for you.

In the case of oral and written advocacy, addressing some obvious deficiency in your case is not just the opposite of hackneyed. It can be the difference between success and failure. Hitting it head-on and raising it early signals to the judge that you see this issue as well. It gives you credibility. If it’s obvious to you, trust me: it’s also obvious to the judge.

3. Tie it all together with a theme Some stand-ups employ obvious themes.

Jerry Seinfeld leans on his power of observation (“Did you ever notice how . . . ?”). Some use less obvious themes. Ricky Gervais’s jokes all seem to centre on how little of a crap he gives about anyone. Patton Oswalt takes every crowd down into a Dante’s Inferno of nerd culture. None of these comics announce their theme, but it runs through their material.

A strong theme will also help you communicate the legal theory of your case. How obvious or subtle you should be will depend on the case itself. But a legal argument without a theme running through it is — in my humble opinion — a ship without a rudder.

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SUMMER 2022

“Like a tipsy audience at a comedy club, a judge will get annoyed if it is not clear where you are going.”

For example, if the other side’s evidence is weak, weave that fact into your arguments.

You might want to regularly refer to what’s missing, so that the lack of evidence is impossible to ignore. Above all, remember that it’s hard to move an irascible judge if you don’t have a point.

4. Brevity is the soul of wit. And legal writing Joke construction is like poetry. The weighing of words must be done carefully. Too many words, or the wrong words, can kill a joke. As the old vaudeville comedy saying goes, “banana” is funny, but “orange” is not, even though they’re both fruits. So choose your words judiciously.

Like a tipsy audience at a comedy club, a judge will get annoyed if it is not clear where you are going. A one-hour stand-up act is usually broken up into “chunks” — meaning whole sections that have their own contained beginning, middle and end. As a general rule, I try to prepare my oral and written submissions in the same way. This allows me to jump around as needed. If the judge doesn’t need to hear anything about a certain issue or fact, I can leap ahead. If the judge is focused on a particular aspect of the case, I can be similarly nimble. Just like comics will move to a different “chunk” if they think that’s what the audience wants to hear.

The first part of an oral submission is the “set-up,” in which you need to make sure you are saying enough to allow the judge to follow along. Then you keep working toward the “punchline.” In legal submissions, the part that equates to the punch line of a joke is the conclusion you are asking the judge to come to. For instance, you might be building

toward the following final sentence: “As you can see, my client is not liable.”

5. Sometimes it’s going to be a fight The comic’s job is not to be the most liked person in the room. It’s to get the laugh. To move the audience with the joke. Many comics challenge the audience to laugh (or boo).

Think of Larry David or (one of my personal favourites) the late, great Joan Rivers. Sometimes they want the collective groan.

In court, your job isn’t to befriend the judge; it’s to convince the judge. Sometimes, you have to take the court through certain evidence or law, even if the judge is fighting you every step of the way. One of the greatest learning moments of my career was watching a co-counsel take a judge through tens of pages of caselaw. All the while, the judge was barking, “Counsel, you can stop.

You’re not going to convince me. I’ve made up my mind.” Yet the lawyer fought on. After two days of oral submissions and a long reserve, the decision came back. We won on every point, including the submissions that the judge said he wouldn’t be moved off of.

Had the lawyer relented (to avoid further annoying the judge), we would have lost.

I could go on. There is a craft to stand-up that lends itself very well to oral and written advocacy. And like advocacy, there is a defined goal, an endpoint that signals success or failure. For the comic, it’s getting the laugh. For the advocate, it’s winning.

Peter Henein is a partner at Waddell Phillips PC. His practice focuses on commercial litigation, intellectual property and product liability disputes.

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Debrief SECRET LIFE

On target

by Danielle Groen photography by Steph Martyniuk When Leslie Anne St. Amour has a bow in her hand, the rest of the world goes silent. The associate at Durant Barristers isn’t thinking about a case or the job market or the ongoing pandemic. Instead, she’s locked in on making a perfect crescent shape with the drawn string — then on the arrow flying away from her traditional bow at close to 240 kilometres per hour. “It’s like throwing a baseball: you learn to judge the arc without needing to line up your hand with the target,” she says. “But you have to be really centred in what you’re doing or it’s just not going to work.”

The 27-year-old has been shooting for most of her life.

Her father, a member of the Bonnechere Algonquin First Nation, introduced St. Amour and her older brother to archery when they were three or four, teaching them to hit a target in their Ottawa Valley backyard with a kid-sized bow. At eight, St. Amour began taking part in tournaments, though most of the time she was the only girl in her age category. “The running joke is that I’d win every tournament, no matter how bad I’d do,” she laughs. “The Hunger Games is probably the best thing that happened to women’s archery — there was a huge jump in interest from girls.”

That hasn’t entirely translated into enlightened male competitors; St. Amour still fields her share of unsolicited advice and weak jokes about shooting like a girl. She competes less often

now, showing up to a few competitions a year, mostly in Ottawa and Kingston. But she sees the sport as an invaluable training ground for pushing back against gendered stereotypes and expectations, which has helped her in law school and in her civil-litigation practice.

“People tell women not to let men interrupt us at work, not to let men make assumptions about our capabilities, but it can be so hard in that moment to push back,” she says. “Archery was an opportunity where, whether or not I wanted it, I learned to do those things.” At a club or in a courtroom, with a bow or a barbed comment, practice really does make perfect.

Leslie Anne St. Amour Durant Barristers

Does your legal wardrobe need some attention?

B ehi nd the s eams

How to revive your legal wardrobe

T h e g o w n If your gown hasn’t seen the light of day since March 2020, it’ll take a bit of TLC to get it back into court-ready shape. You can start by hanging it in the closet for a few days, but lingering wrinkles or odours call for a visit to the dry cleaner.

T h e w a i s T c o a T Your waistcoat might need some air, so hang it up and hit it with a few spritzes of a gentle fabric-freshening spray. After a few days, store it in a cloth garment bag until your next court date.

Trust Harcourts for high-quality court attire.

When it’s time to get ready for your next court appearance, we’re here to help.

Book an appointment with our tailor today at harcourts.com/legal or call us at (416) 977-4408.

T h e T a b s The smallest element of your court wardrobe is also the most resilient. Wash your wrinkled tabs in the machine on delicate, before lightly pressing everything except the Velcro.

Then you’ll be ready to face the judge.

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