DEVELOPING A SUCCESSFUL AND REWARDING CAREER
|Speech to "Young Lawyers' Division - East"|
| by Chief Justice John D. Richard |
|on Thursday, October 20, 2005 at 5:30 p.m. at the Rideau Club in Ottawa.
HISTORY AND JURISDICTION OF THE FEDERAL COURT OF APPEAL
In choosing to practice law, you have embarked on a rewarding and fulfilling career path which will challenge you and allow you to build on your professional strengths in striving for excellence. I welcome the opportunity to share with you what I consider to be some of the important foundations in developing a successful and rewarding career as a legal practitioner.
- Having practised as an advocate for 34 years before being appointed a judge to the Trial Division of the Federal Court of Canada in 1994, I wish to speak to you of these important foundations which, I hope, will help you develop and focus your career. They assisted me in serving my clients.
Before I do so, let me take you on a brief journey over the history and jurisdiction of the Federal Courts.
The Federal Court of Appeal and the Federal Court have a long history. Since 2003, they are the successors of the appeal and trial divisions of the Federal Court of Canada, which in 1971 succeeded the Exchequer Court of Canada which itself was created in 1875.
When Canada was created, the British North America Act, 1867 (now the Constitution Act, 1867 ) did not establish specific courts but, by section 101, authorized the Parliament of Canada to provide a "General Court of Appeal for Canada" and "any additional Courts for the better Administration of the Laws of Canada." Pursuant to this, a separate act establishing the Supreme Court of Canada and the Exchequer Court of Canada was passed in 1875.
Over the life of the Exchequer Court, its jurisdiction gradually increased and changed. Within the first twenty-five years, it had acquired exclusive jurisdiction over all litigation brought against the federal government, and its authority included admiralty matters, as well as suits between citizens relating to intellectual property.
By way of the Federal Court Act, in 1971 (now the
Federal Courts Act
), the Exchequer Court jurisdiction was inherited by its successor and expanded. The most important new area was the Court's power to review decisions of all federal boards, commissions or other tribunals.
Significant changes again occurred with the coming into force of amendments to the Federal Court Act on February 1, 1992. Parties seeking relief against the Crown were no longer required to apply to the Federal Court of Canada but, rather, they were given the option of choosing the provincial courts as well. The Federal Court Trial Division's exclusive jurisdiction was retained only where federal statutes expressly provided for it.
At the same time, the judicial review procedure was revised and simplified with the Trial Division being given original jurisdiction except in respect to specific boards for which review is available in the Court of Appeal.
As of July 2003, with the coming into force of the Courts Administration Service Act , the Federal Court of Canada, per se, no longer exists. Rather, we have the Federal Court of Appeal as a distinct court from the Federal Court, formerly known as the trial division.
Today, these Federal Courts, that is to say the Federal Court of Appeal and the Federal Court, whose authority derives from the Federal Courts Act, possess essentially the same jurisdiction as the former divisions of the Federal Court of Canada.
The principle areas of jurisdiction of the Federal Court is federal Crown litigation, judicial review, maritime litigation, intellectual property and other matters such as aeronautics, or provisions in other statutes that confer jurisdiction.
The Federal Court of Appeal, which I preside, has jurisdiction to hear appeals from judgements and orders, whether final or interlocutory, of the Federal Court and of the Tax Court of Canada. It has original judicial review jurisdiction with respect to the fourteen federal tribunals listed in section 28 of the Federal Courts Act and also exercises jurisdiction to hear appeals under other acts of Parliament. It is presently composed of ten judges and two supernumerary judges.
The Federal Court of Appeal, as well as the Federal Court, is a bilingual court, offering its services in both of the official languages of Canada, and is a bi-jural court, administrating the two legal systems - common law and civil law. Both courts are itinerant, in the sense that they sit and transact business at any place in Canada, to suit, as close in proximity as may be, the convenience of the parties. It is the objective of both Courts to secure the just, most expeditious and least expensive determination of every proceeding based on its merits.
The Federal Court of Appeal, as well as the Federal Court, is a court of easy access. Several provisions of the rules of procedure enhance the Court's accessibility, including the use of teleconference and video conference facilities. The Federal Courts Rules  also provide for case management services which are intended to avoid delays and facilitate dispute resolution.
Another feature of this accessibility is that every person who is a lawyer in a province may practice before the Federal Court of Appeal or the Federal Court.
As previously mentioned, the Federal Courts operate in both
official languages. In keeping with section 133 of the Constitution
Act, 1867, section 19 of the Canadian Charter of Rights and Freedoms  and Part III of the Official
, parties appearing before them
are able to use either official language in their written and oral
pleadings. Where the Crown is a party, it is required to use the language
of the other party. Further, simultaneous translation is available at the
request of either party.
You will appreciate that along with the Superior Courts of the provinces, the Federal Courts play a vital role in the Canadian justice system.
Now, I would like to turn to you.
- As young lawyers, you are embarking upon a challenging and, I hope, rewarding career.
- You can be justifiably proud of your accomplishments to date and be proud to be a member of a profession whose purpose is to serve others – but it is only the beginning of a life long commitment to excellence and service.
- Having pride in one’s legal career develops professionalism and in embracing professionalism, lawyers will always build on their skill and on their respect and appreciation for the community which they serve.
- Let me give you some examples of Ottawa practitioners, both past and present, who have met these high standards and have left their mark on the legal community.
- Gordon F. Henderson, was a prominent advocate in many areas of the law including intellectual property, public and constitutional law and civil litigation. He established the Intellectual Property Institute of Canada and was President of the Canadian Bar Association from 1979 to 1980. He was also Chairman of the Board of Governors of the University of Ottawa. He was made an officer of the Order of Canada in 1977 and was promoted to Companion in 1988.
- After serving in the Canadian military, Hyman Soloway began a busy and diverse career as a lawyer, businessman and community icon. He soon rose to prominence as an expert in commercial and business law and was appointed to the Board of Governors of the University of Ottawa. He received an honourary doctorate in 1996 and a Chair in Business and Trade Law was established in his name.
- Ottawa lawyer Margaret Ross has practiced in all areas of civil litigation and now acts as General Counsel for the Canadian Medical Protective Association. Ms. Ross is not only an exceptional practitioner, but she is also involved in many associations. Since being called to the Ontario Bar in 1976, she has served as President of the Advocates’ Society (1996-1997), as Commissioner of the Ontario Law Reform Commission (1986-1992), and as President of the County of Carleton Law Association (1987), to name only a few.
- Called “Ottawa’s Perry Mason”, John Nelligan has been practicing law for over fifty years and is a distinguished member of Ottawa’s legal community. He is known across Canada for his courtroom presence and exceptional negotiation skills. He is a recipient of the Law Society Medal, awarded to distinguished members of the Ontario Bar whose service reflects the highest ideals of the profession.
- David W. Scott is a specialist in civil litigation and has represented many prominent clients. He received an honourary doctorate from the Law Society of Upper Canada and the University of Ottawa. He is also the first Canadian to be elected President of the prestigious American College of Trial Lawyers.
- Madam Justice Louise Charron of the Supreme Court of Canada was educated at both Carleton University and at the University of Ottawa. She practiced law in the private and public sectors for eight years before becoming an associate professor at the University of Ottawa. She was called to the High Court of Ontario in 1988, to the Ontario Court of Appeal in 1995, and to the Supreme Court of Canada in 2004. Also, from 1994 to 1996, she was the Associate Director of the National Judicial Institute.
- There are many other examples of outstanding lawyers in our community.
- I have mentioned these particular individuals to provide you with models of excellence and community service and to inspire you to leave your own legacy within our community.
The practice of law as a business
- Admission as a lawyer confers many opportunities. Some in the private sector, others in the public sector.
- The incoming President of the Ontario Bar Association, Healther McGee, in a message to the membership, stated that “[…] today’s lawyer is not satisfied with simply belonging to a historically important profession. […] Lawyers today want to build a life in the law that satisfies them professionally, connects them to their communities, provides a standard of living commensurate with their efforts and, from time-to-time, allows them to make a difference.” 
- This leads me to make some comments on the practice of law as a business.
- Having passed the bar admission course and having qualified as a lawyer, you have proven that you have intellect and perseverance. Not only will you have to apply your intellectual abilities to analysing legal issues, but many of you will now have to apply your knowledge and abilities to running a successful business.
- Let us be frank. The practice of law is a business, and you will serve your clients more effectively when you treat it as such.
- It is essential for you to apply good business principles to your legal practice if you do decide to open or join a law firm. You must learn and understand the financial aspects of running a business and your office files must be impeccably organized and adhere to sound business lines.
- Creating a business plan which focuses on strategic issues relevant to your practice, rather than solely on numbers, may assist you in supporting your day-to-day action and may help you improve long-term profitability. It will also allow you to remain focused on your clients’ needs and on maintaining good relationships with them on a long term basis.
- The key is to make the client’s experience as pleasant as possible. You must remember that lawyers are in the service industry and that a lawyer’s response to a client’s needs is of utmost significance to the client’s satisfaction.
- I also encourage you to make a purposeful and concrete effort to initiate and maintain excellent relationships with your clients through maintaining a client database or tracking system and by being proactive and intentional about communicating through newsletters, greeting cards, lunches, and receptions, for example.
- Remember to set reasonable expectations both for yourselves and for your clients. It is important to never underestimate the amount of time required to perform a certain task or to prepare a given document.
- But it is not only a business. More importantly, your law practice offers valuable services.
- With brochures and “legal kits” being circulated entitled “Why You Don’t Need A Lawyer”, lawyers must be in a position to provide competitive legal services at a reasonable cost.
- Clients will want to know that the benefits of proceeding in the legal system will outweigh the expenditures they may incur. They will also want to feel reassured that their legal issue is in competent and caring hands.
- A number of major business enterprises have moved toward fixed pricing on certain types of legal work and competitive bidding on legal files.
- It is critical to remember that while you conduct your law practice as a business you don’t get caught up solely on the “bottom line of billable hours”. Rather, you must remember to measure the value of your services in terms of the benefit to and needs of your clients. Clients count on their lawyers to solve problems and, interestingly enough, if you do that well, it takes you full circle back to your business since solving problems attracts clients.
The Lawyer-Client Relationship
- Along with the benefits of being a lawyer come responsibilities.
- Ethics should be at the forefront of every legal practice because the legal profession will only continue to be self-regulated and maintain its independence from the executive and legislative branches of government if the public trusts that lawyers are acting in the best interest of society. In order to succeed in maintaining the public’s trust and in reflecting the profession’s commitment to integrity, lawyers must abide by ethical uprightness.
- As young lawyers you must guard against shaping your ethical world to accommodate your practical life.
- Competition for jobs or setting up your own practice may entice you to focus your efforts on topics employers emphasize as being the most important in order to attain success. Also, with the media and popular culture highlighting powerful, aggressive, successful lawyers time and time again, you may begin to believe that “ethics are for wimps”. This could not be further from the truth. Having an appreciation and understanding of the importance of legal ethics encourages personal and professional growth and arms lawyers with the tools they need to analyze and resolve difficult questions when they arise.
- As you are aware, legal ethics does not rely solely on the application of a determined set of rules. Instead, legal ethics requires the development of critical and reflective judgment regarding the professional roles and responsibilities of both lawyers and judges.
- Legal ethics is a necessary means of studying the multifaceted factors which help us make and execute sound moral decisions in applying the law. Therefore, it is essential for lawyers to develop professional loyalty within their relationships, both with clients and with one another.
The Lawyer-Lawyer Relationship: Civility
- There are many types of legal practices and clients and therefore, many roles lawyers can play which inevitably have an important influence on their appreciation and concept of ethics. Yet, if we look at the various codes of ethics which have been adopted by law societies across Canada, we will quickly realize the importance attributed to lawyers’ duties of professional conduct towards their clients, reflected in the duties of competence, confidentiality, and the avoidance of conflict of interest.
- Given the characteristics of the lawyer-client relationship, it has commonly been identified as fiduciary in nature, as described in Norberg v. Wynrib . In this case, Justices McLachlin (as she then was) and L’Heureux-Dubé qualified the fiduciary relationship as an “asymmetry of power that imposes special and particularly onerous obligations on the fiduciary who, because of a professional role, has assumed superior power and responsibility over another, more vulnerable, individual”.
- It is essential that lawyers exercise their functions competently in “loyalty, good faith and avoidance of a conflict of duty and self-interest”.
Continuing Legal Education (CLE)
- This good faith must also be exhibited in working relationships between lawyers. As part of your commitment to legal ethics and to maintaining decorum in the legal profession, I urge you to never loose sight of the importance of practicing according to a high level of civility toward one another, both inside and outside the courtroom.
- The Codes of Professional Conduct of both the Law Society of Upper Canada and the Canadian Bar Association stress that lawyers should be courteous and civil to opposing counsel, always acting in good faith. Acrimony or ill feelings which may exist between clients or even between lawyers, should never influence a lawyer’s conduct or demeanour in his dealings with opposing counsel.
- Lawyers who depart from this rule do their clients a great disservice. They risk clouding their judgment and ability to serve their clients and are antagonistic to the public interest in not facilitating the expeditious and effective resolution of matters.
- Cooperation and good communication between lawyers breed efficiency. Lawyers should always accede to reasonable requests that do not risk prejudicing their clients and should refrain from acting without fair warning or taking advantage of opposing counsel’s slips or mistakes.
- A case should always be decided on its merits, and lawyers should act in “truth and not trickery, simplicity and not duplicity, candour and not craftiness in the conduct of legal affairs.”  You should always try to avoid judicial intervention by negotiating and agreeing with opposing counsel whenever practicable and should always respond promptly to communications from clients and opposing Counsel.
INNOVATION AND CHALLENGES
- Another important responsibility which comes with the privilege of practicing law is continuing legal education (CLE).
- Lawyers, in all stages of their careers, must always strive to increase their knowledge and skill and must stay abreast of the most recent legal developments in their areas of practice in order to serve their clients with utmost competence.
- The need for CLE is even more obvious in this era with the proliferation of laws and regulations and the activism of the state in all areas affecting individual collective conduct, such as the environment, privacy, human rights, consumer protection, taxation, due diligence, spousal support, health care and evidentiary issues.
- I encourage you to become members of the Canadian Bar Association and the Ontario Bar Association and to participate in the activities of the County of Carleton Law Association.
- I would also encourage those of you who are francophone or who have a working knowledge of French to join l’Association des juristes d’expression française de l’Ontario (AJEFO) and those of you who are litigators to join the Advocates’ Society.
- All of these association offer remarkable CLE programs.
Accessibility to the Justice System and Pro Bono Work
- You should be guided by the principle that every judicial proceeding should be conducted so as to “secure the just, most expeditious and least expensive determination of every proceeding on its merits.” 
- This means that lawyers must be innovative and creative. One way to do so is to participate in alternative dispute resolution programs available in the justice system and to encourage your clients to take part in these initiatives.
- You must also be at the cutting edge of new developments. You will build a strong career and impact the profession if you take hold of the many opportunities to exemplify inventiveness and resourcefulness in finding solutions to your clients’ legal questions.
- You will be called upon to address various emerging issues. These include accessibility to the justice system, globalism, balancing human rights and national security, and the protection of privacy and personal information, by way of example.
- The incoming Treasurer of the Law Society of Upper Canada, George Hunter, who is also from Ottawa, made the following observations in an interview reported in the Fall 2005 edition of the Ontario Lawyers Gazette. He stated that “Professional independence is a fundamental value.” 
- However, he cautioned, that “the legal profession maintains the privilege of self-regulation and independence in recognition of its longstanding obligation and tradition of public service.”
- “Public service in this context refers to lawyers providing professional services to their clients. It also mans lawyers providing services to the broader public through enhanced access to justice. Common examples include working on legal aid certificates or doing pro bono work, or through involvement in the Law Society and other organizations and associations.” 
- He added that “the legal profession has two fundamental obligations in its contract with the public. First, it must ‘provide independent, courageous, stalwart counsel, especially in the criminal law context.’ Second, it must ensure that citizens have meaningful access to justice.” 
- By virtue of your membership in the Law Society of Upper Canada, you are strongly encouraged to fulfill a certain number of pro bono hours.
- But, let it not be for that reason alone that you avail yourself to your community. Indeed, you as young lawyers have as much to gain from your pro bono work as do the recipients.
- In offering your legal services to the community, you expand your insight and knowledge into matters outside the confines of your office or the courtroom. You promote economic freedom and access to justice to a number of individuals who would not have enjoyed it otherwise.
- At the recent opening of the courts in Montreal, the participants, including Chief Justice Robert, the head of the Québec Bar and the provincial Minister of Justice, stressed the importance of promoting accessibility to the justice system since it goes to the very integrity of the judiciary. It matters not to have the best and fairest judiciary in the world if the access is limited to a very few.
- In a thought-provoking speech delivered last month to the legal community in Toronto, at a conference on legal aid, retired Supreme Court Justice L’Heureux-Dubé noted that “legal services, like health care, should be free in an ideal society” in order that all may “seek justice before the courts or other forums, whatever the state of their financial resources.” 
- Pro Bono work should not be something that happens only at the margins of the legal profession. This type of contribution to the community should be an integral part of every legal career for it benefits society, promotes a healthy community, and is a rewarding activity in terms of personal satisfaction and professional development.
Protection of Privacy and Personal Information
- There is an increasing recognition of the importance and role of international treaties and conventions in interpreting Canadian legislation and jurisprudence. The relevance of these international instruments was noted in Pushpanathan v. Canada (Minister of Citizenship and
Immigration), where one of the issues before the
Supreme Court of Canada was the domestic application of international law in
interpreting Canadian legislation.
- The Supreme Court of Canada’s decision in Baker v. Canada
(Minister of Citizenship and Immigration) also reflects the growing influence
of international instruments in administrative law. In Suresh v.
Canada (Minister of Citizenship and Immigration), the Court identified means of
interpreting and applying Canadian experiences and jurisprudence as well as
international law in interpreting legislation.
- The Court stated that “in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.”
- Globalism also has another dimension. Increasingly, business activities have no borders and lawyers must adapt to this new reality.
Balancing Human Rights and National Security
- A closely connected challenge is the protection of privacy and of personal information.
- One major dimension of the protection of privacy stems from the various measures that have been taken by international organizations, and have been included in international instruments, treaties and agreements, to reduce national legal and regulatory obstacles to trans-border trade and data flows.
- Both the government and the private sector are having an important impact on individuals’ ability to make determinations in respect to their personal information.
- Although records have been kept about people for hundreds of years, the shift in the storage medium from paper to electronic form is raising new concerns and challenges with regard to the practices of collecting, aggregating and distributing information.
- I would also encourage you to stay abreast of legal developments with respect to national security and freedom which have emerged in recent years in terms of organized crime and terrorism.
- The challenge now confronting both judges and lawyers is maintaining equilibrium between the constraints associated with security-related legislation and protecting the rights and freedoms of Canadians.
- I suggest you become familiar with new national security legislation, such as the Anti-terrorism Act , and the new Criminal Code  provisions targeting national
security and defense. This would help you become experienced in dealing
with sensitive questions of law and assist you in being intellectually prepared
to address new, emerging legal questions.
- The safety of lawyers is an issue which has now come to the forefront.
- At the annual meeting of the Canadian Bar Association, last August in Vancouver, the Ontario Bar Association introduced its new Personal Security Handbook which will be distributed to the membership shortly.
- The initiative is indicative of the increasingly important issue of lawyers’ safety, and the OBA has taken the lead in making lawyers and the public aware of this crucial issue.
- The OBA Task Force on Lawyer Safety, which developed the handbook, was established in December 2003. Since then, it has met with senior officials of the Ministry of the Attorney General and the police to develop a protocol of the steps lawyers can take to protect their staff, their families and themselves from threats and assault.
- The Task Force will continue working with Ministry of the Attorney General and the law enforcement community in order “to ensure that safety features are included in courthouses such as metal wanding and screening, better parking lot lighting and more secure courthouse construction.
INDEPENDENCE OF THE BAR AND INDEPENDENCE OF THE JUDICIARY
Independence of the Bar
- In a unanimous 1982 judgment of the Supreme Court of Canada , justice Estey stated that the independence of the bar from the State is one of the hallmarks of a free society because it delivers services to the individual citizen in the State and aims to protect fundamental values contained in the Constitution. These include natural justice, equality and democracy.
- In the words of Justice Estey,“The public interest in a free society knows no area more sensitive than the independence, impartiality and availability to the general public of the members of the bar and through those members, legal advice and services generally.” 
- Without independent legal advice and advocacy, the integrity and stability of the legal system would be in peril.
Independence of the Judiciary
- I would also like to emphasize the importance and relevance of having an independent judiciary. An independent and impartial judiciary is the constitutional right of all Canadians.
- The role of the judiciary is to be a “resolver of disputes, interpreter of the law and defender of the Constitution.” 
- The primary beneficiary of judicial independence is not the judiciary itself, but rather society as a whole. The reality is that the rule of law cannot endure over time, if it can exist at all, unless the judges who are responsible for interpreting and applying the law and the Constitution are guaranteed their independence from government In order for a constitution to hold real meaning in the lives of its citizens, an independent judiciary, capable of interpreting and enforcing the Constitution free of political interference from those in power, is crucial.
- Canada’s constitutional democracy has conferred upon the courts the responsibility of ensuring that every exercise of state power can be reconciled with the Charter’s guarantee of the freedoms and rights which are inherent to it and necessary to the protection of every Canadian’s dignity.
- The Supreme Court of Canada, in R. v. Valente , noted that judicial independence is qualified by two dimensions and has three fundamental characteristics.
- First, judicial independence has both an individual dimension and an institutional dimension. This implies that while an individual judge may enjoy the essential conditions of judicial independence, if the court or tribunal over which he or she presides is not independent, the tribunal cannot be said to be independent.
- The three core characteristics of judicial independence are (1) security of tenure, (2) financial security and (3) administrative independence.
- We are living in a society where instant communication is readily available. I am referring to faxes, e-mail, blackberries and a multitude of wireless tools, which aim to enhance productivity. While these innovations may assist in the delivery of legal services, they also increase the pressures on practitioners to respond immediately.
- From a professional perspective, I urge you not to sacrifice quality of work and ethical duties for expediency and rapidity.
- You should be careful to document every action, call, and meeting and to record all relevant information and advice.
- In closing, I would like to touch upon one of the emerging challenges in the legal profession today with which you might all have experience, that is, the work-life balance.
- I encourage you, above all, to maintain healthy interpersonal relationships and social activities.
- It is crucial for all of us to sustain a healthy lifestyle and strong ties with our families and friends.
- When all is said and done, your most important asset is your reputation. Your first goal as young practitioners should be to develop and maintain that reputation.
- Good luck!
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