Law Times

LAW TIMES / JUNE 2, 2008 last week trying to sell his legisla- tion appointing additional judges to Superior Courts across Canada. He got rocked by a bunch of Senate grills Nicholson J ustice Minister Rob Nicholson went before the Senate legal and constitutional affairs committee The Hill By Richard Cleroux well-prepared Liberal senators, espe- cially after they extracted from him that he is adding 14 more judges, not the 20 more judges. That's because six of the 20 judges will be going to the new Specific Claims Tribunal for Ab- original People. But a grilling in the Senate? The Senate? Yes, the Senate. Sena- tors Serge Joyal and George Baker, two old Liberal warhorses from the days when the Liberals used to be a fearsome political party, along with Senator Lorna Milne, nailed him with tough questions. Already Nicholson wasn't having the best of days. In the Commons, Winnipeg Liberal Anita Neville had mocked him about appointing a fellow cabinet minister, Treasury Board President Vic Toews, to the Superior Court of Manitoba. The appointment is all but official. As Treasury Board Presi- dent Toews got to appoint the se- lection panel that will decide his political appointment. She described Toews as "a wan- nabe judge convicted of violating election laws in the province of Manitoba." The offence goes back to Toews' days in the provincial legislature. He pleaded guilty at the time. Neville wanted to know if that's why Toews has been "ly- ing low" lately and letting his par- liamentary assistant answer ques- tions for him about the Conser- vatives' 2006 election financing practices. If Toews is unacceptable as a cabinet minister, she asked, how does that qualify him as a judge in Manitoba? Nicholson was fuming. He re- plied that Neville should not wor- ry about Toews' appointment, and go back to Manitoba and talk to police there about auto theft and youth crime. Not the most pertinent of an- swers, but then Neville, lady that she is, was not playing softball with Nicholson. Nicholson had announced that day that MPs will replace judges and lawyers in helping appoint a Su- preme Court replacement for retir- ing justice Michel Bastarache. The decision to off the judges and lawyers may not go down well in the legal community. The senators quickly got to work on Nicholson. First they forced him to admit it will be 14 rather than 20 additional judg- es. Then they pointed out that legisla- tion in 2005 under the previous Lib- eral government would have put 27 additional judges on the bench. Nicholson said 14 rather than 20 more judges was a "judgment call" by him after talking to chief justices and attorneys general across the land. Baker asked sar- castically, "Have the chief justices changed their minds and now they need only 14?" Nicholson was gracious through- out the grilling. They pried out of him — like extracting teeth — that Ontario will get five, Quebec three, and three more for New Brunswick, two for Nova Scotia, one for New- foundland, and one for Nunavut. Superior Court judges cost about $350,000 a year each. Of that, $235,000 is salary. The rest is pension and benefits. The prov- inces pay operating costs, offices, courtrooms, and clerks. The senators focused on how judges are chosen. "Will a certain number of judg- es be bilingual," asked Milne, "be- cause in New Brunswick they have had trouble with delays because of monolingual anglophone judges being appointed." She could have added that the Canadian constitution stipulates that as a bilingual province New Brunswick must provide every individual with a trial in either official language. Nicholson said three of the eight N.B. judges he appointed are bilingual. Milne said she is concerned about the recent appointment of somebody appointed to the bench in New Brunswick who had never practised law in that province. "Do you have an example?" shot back Nicholson. (He violated Rule One of cross- examination: Never ask a question if you don't know the answer.') "Brad Green," Milne shot back. "I can tell you his appoint- ment has been well received," said Nicholson. "I gather it has not," replied Milne. Joyal said he was puzzled by Nicholson using cops instead of presiding judges to help him choose new judges. Nicholson said most people, except Liberals, agreed with it. Joyal rattled names of people who objected, including Parker McCarthy, past-president of the Canadian Bar Association, Prof. Jacob Ziegel, Prof. Peter Russell, and the late chief justice Antonio Lamer, adding pointedly that none of them were Liberals. Nicholson kept naming people who support his bill C-31 legisla- tion, but kept forgetting one im- portant group. Finally Conservative Senator Don Oliver came to his rescue. No less than the CBA had sent a letter urging speedy passage of Nicholson's legislation "to address the pressing need for more judges in Canada." (The bar wrote about get- ting 20 more judges, not 14.) Nicholson looked stunned, paused a moment, and quickly in- serted the bar in his continued de- fence of the legislation. Joyal asked if Nicholson planned to change the form judgeship candidates have to fill out, stat- ing their approach to "fighting crimes and making streets safer" (a line lifted straight out of the Con- servative party political agenda.) Nicholson replied he didn't have the form but would find one and send it to the senators. And then the hour was over. None too soon either. LT Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is richardcleroux@ rogers.com. www.lawtimesnews.com COMMENT The audacity of hope recently attended a din- ner organized by the Law Society of Upper Canada for the managing partners of downtown Toronto law firms to consider the firms' responses to the recommenda- tions of LSUC's task force on retention of women in private practice. How to keep women in the profession is an issue with which the law society, and most law firms, have been grappling for years. The rea- sons for the exodus of women are complicated, and many of us have considered them and what to do about the problem at great length. At the dinner, one of the benchers told a story about an associate who had just advised her that she was leaving the practice of law to raise her chil- dren. She had said that every day she went home and figured out how many of her jobs — wife, mother, sister, daughter, lawyer — she had failed at that day. Invariably, the answer was, too many! I have come to the conclu- sion that, while law firms must have incentives to prevent women from departing, and that the costs of those incen- tives are, within reason, a busi- ness expense well worth incur- ring, there is precious little that we, as law firms, can do when a woman is grappling with whether to practise law or stay at home and raise her children. The maternal instinct is, in and of itself, overwhelming, and for many women the only option is to sacrifice their career to it, at least for some period of time. However, in a world in which the divorce rate is so high, it seems prudent for women to be self-supporting. And as the task force notes, the issue is not how to get women into law schools and articling positions or to become associ- ates. We have all accomplished those tasks most successfully. The issue is to how to bring women back to the full-time practice of law, how to engage them in the firm's administra- tion, and how to train them to be profitable lawyers and rain- makers after their children no longer require their substantial day-to-day attention. Coincidentally, I also re- cently attended a talk given by Dee Dee Myers, former White House press secretary and author of a new book Why I Women Should Rule The World. She is a terrific speaker, very entertaining and insightful, and while I have yet to have an opportunity to read her book (the title was intended to be provocative and controver- sial), her thesis is that if women ruled the world, everything would be different. Her analy- sis goes like this: women will never be as good at being men as men. So, throw out the con- ventional wisdom that women can fill men's shoes as capably as they can. I don't know a woman who isn't going to be Doing By Lisa Borsook perfectly fine with that insight. As most men know, women are not particularly interested in men's shoes generally, or in filling them. Her view is that women are hardwired differently. We respond to circumstances dif- ferently. By way of example, in stressful situations it is her view that men either take flight or stand and fight. Women, on the other hand, prefer to clean up the mess — literally — we clean the room, make fresh cof- fee, and sort everything into piles. Then, we contact a group of our confidantes, to discuss and resolve. It is her view that the world (and in this regard, she is particularly interested in the political world), should embrace the way that women react to events, and that, but for certain external and inter- nal obstacles, there is no reason why we shouldn't stand side-by- side with men in resolving the world's problems and leading the next generation. What are the internal ob- stacles? In a nutshell, women don't take ownership of their successes the way that men do and, correspondingly, are less likely to reach for the brass ring. What are the external obstacles? Myers is of the view that women are judged differ- ently from men. Women have higher standards to live up to in respect, first of all, of our ap- pearance — we are always seen before we are heard. And sec- ond, that for reasons that she does not understand, people think that little children and big jobs don't mix well. And Business yet, it is her contention that nothing makes women better qualified, and better trained, for management roles than raising children. Raising children teaches women to prioritize, not to sweat the small stuff, to seek balance, and, perhaps most importantly, gives women con- flict resolution skills that make women better at their jobs. If Myers is right — if fail- ing to find ways to reintegrate women back into the work- force is a tragic loss of talent — and I, for one, am certainly of the view that that is the case, then how do we create incentives for women to return to work that make fi- nancial sense? How does a law firm, taking into consideration both biological and cultural realities, ever hope to succeed in re-engaging its women, and at what cost? These are the es- sential questions with which all businesses, and in particular, all law firms must grapple. And the issue is particularly difficult given the generally reported low levels of job satisfaction amongst lawyers. There are no easy solutions to these kinds of issues, but I do hope to have the opportunity to explore some of the financial options in greater detail in the future. The one thing of which I am certain, however, is that flexible work arrangements that are financially sensible are only part of the solution to the problem. The longer-term so- lution involves creating a work environment in which lawyers are engaged, financially and emotionally. I know that self- esteem is connected to not only a job well done, but a job for which satisfaction will grow as time goes on. And since com- prehensive job satisfaction has to be the strategic objective of any firm for all of its lawyers, it should be possible to meet the objective of retaining lawyers generally while simultaneously achieving the firm's overall stra- tegic objectives. The devil, of course, is in the details. LT Lisa Borsook is the managing partner of WeirFoulds LLP, a Toronto law firm specializing in litigation, corporate, property, and government law. She also chairs the firm's leasing practice group and can be reached at lborsook@weirfoulds.com. PAGE 7

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