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Blending tradition and innovation

|Written By Christopher Guly
Blending tradition and innovation

In a city where Parliament has enacted laws since the 19th century and businesses have been creating new forms of technology for the 21st century, Ottawa’s legal community is characterized by a blend of tradition and innovation.

For more than a century, the city was the centre of the intellectual property bar in Canada, by virtue of its geographical location in the nation’s capital. The administration and processing of copyrights, trademarks, patents, and industrial designs were all done in Ottawa, and judges of the Exchequer Court of Canada — the forerunner of today’s Federal Court and its appellate counterpart — held all of its hearings in the city. The small cluster of Ottawa lawyers specializing in IP constituted much of the bar in that field.


“Most business came from law firms. We used to do all their IP work,” says Jonathan Cohen, who has practised law since 1971 and is managing partner of Shapiro Cohen, an Ottawa IP firm whose roots date back to 1963, when the late Norman Shapiro established the practice. Cohen says before the 1980s there were no more than 30 firms across the country specializing in patents and trademarks, most of them centred in Ottawa, with a few in Toronto, Vancouver, and Montreal. Today, he estimates there are five times as many, with Toronto now outpacing Ottawa with the number of firms dedicated to IP practice.


The surge and resulting shift from Parliament Hill and environs to Bay Street was the result of the Federal Court becoming more mobile, along with technological change and business opportunities, says Cohen. “Things like the introduction of the fax and video recorders led to copyright issues, and the focus became on international trade and opening new markets,” he explains. “The recognition by businesses and governments of the value of their intellectual property became more the focus of many of the most successful companies in the world.”


Yet Ottawa firms that specialize in IP — as well as its younger cousins, information technology and communications — still hold enough clout on Canada’s legal landscape that their boutique practices have attracted the expansion interests of larger Toronto firms. That happened on April 1, 2007, with Ottawa communications law firm Johnston & Buchan LLP, when it was merged with national firm Fasken Martineau DuMoulin LLP. At the time, Faskens’ managing partner David Corbett said Johnston & Buchan “is considered by us to be a jewel among Ottawa firms.”


Best known for its work in communications and IP law in the areas of telecommunications regulations, broadcasting, and copyright, Johnston & Buchan also developed a trade law practice encompassing agricultural issues, trade remedies, import and export controls, and WTO- and NAFTA-related matters. The 13-lawyer firm is now Faskens’ Ottawa office — and location is important, according to partner Laurence Dunbar, who joined Johnston & Buchan 27 years ago. “Just by being in Ottawa and in contact with bureaucrats, you know how Ottawa works and that’s certainly something clients are looking for,” he explains. “It’s a perceived advantage for clients to have people on the ground in Ottawa when dealing with federal regulatory issues.”


Faskens’ Ottawa office does plenty of that, representing such major communications companies as Rogers and Shaw and long distance companies at the CRTC and dealing with Industry Canada — most recently on the spectrum-licence auction for new wireless services. Since CRTC decisions can be appealed to the federal cabinet, it’s important to know the political movers and shakers and who holds sway, says Dunbar. He adds the advantage of being on the ground in the capital also comes into play when new legislation is working its way through Parliament, or new regulations have been proposed, and clients want to “have their say” and make a representation before a Commons or Senate committee. Understanding and having direct access to the process makes an Ottawa base attractive for clients.


However, arranging a meeting between a client and a government official isn’t as easy as it once was, due to federal accountability legislation. “It’s considered lobbying,” says Dunbar, “which is usually thought to be to try and persuade some politician to vote in a certain way. But, with the Accountability Act, the definition of lobbying keeps getting broader and more people have to register as lobbyists than in the past.”


Dealing with bureaucratic red tape is part of the reality of practising law in Canada’s capital. But there’s also the human-capital element among Ottawa lawyers that brings experience and influence to clients and colleagues alike. For instance, Dunbar, who is co-chairman of Faskens’ communications law practice, coauthored a report for the CRTC last year that examined the relevance of each broadcasting policy and regulation. The report made recommendations on how to make the regulatory framework more efficient. Cohen, meanwhile, is an expert on web domain names and international internet governance and policy through his past membership on the board of directors of the Canadian Internet Registration Authority and as one of three Canadians to serve on the board of the Internet Corporation for Assigned Names and Numbers (ICANN), the global body that manages the world of .com, .net, .org, and other suffixes.


His ICANN work gave him regular contact with the deputy minister of Industry Canada and found him visiting 78 countries and logging, by his estimate, a million air miles over the last decade. And his internet expertise and IP practice still finds him criss-crossing the globe — with visits to India, Nepal, Australia, Africa, China, and Paris so far on the 63-year-old’s itinerary this year. “IP lawyers are a world unto themselves, because the practice is national and international, and not local,” says Cohen. “I might have 10 per cent of my business in Ottawa, but 90 per cent is elsewhere, including out of the country.”


Dunbar says there’s a “divide” between lawyers with practices focused on IP or the federal government, such as his firm with its communications law focus, and lawyers involved with more mainstream commercial, real estate, and litigation work. “There’s not a whole lot of interaction with lawyers practising in those areas, which historically made Johnston & Buchan’s practice a bit more isolated.”


But specialty boutique practices account for a significant portion of Ottawa’s legal landscape, including firms focusing on labour and employment and family law. “Some just represent labour unions or just do civil litigation,” says Mark Ertel, president of the Defence Counsel Association of Ottawa and a member of firm Bayne Sellar Boxall. He estimates that of the 130 criminal lawyers the association represents, about 120 of them are affiliated with smaller firms, with usually no more than five or six lawyers. “When I came to Ottawa 21 years ago, there was government work and always matrimonial and criminal work,” says Kitchener, Ont.-born Ertel, adding that when he was called to the bar in 1992, the association only had about 40 members.


Ottawa-born corporate and commercial lawyer Grant Jameson recalls when he entered practice, in 1976, there were more smaller firms, several of which focused on real estate law. But that was back in the days when lawyers received not a flat fee but one based on one per cent of the purchase price of a home and 0.5 per cent of the value of a mortgage. He says the scene began changing in the mid-1980s with the arrival of national law firms, including, in 1984, that of Montreal-based Ogilvy Renault LLP, of which he is the Ottawa managing partner. These larger, multi-lawyer practices subsumed some historic Ottawa specialties, such as IP, while handling a broader business portfolio involving regulatory matters, government procurement activities, international trade and commodity tax issues, and labour and employment law. Ogilvy Renault’s Ottawa office, for instance, acts only for management but represents large employers with union issues, including Canada Post Corp.


On government procurement issues, Jameson says the firm, which is steps away from Parliament Hill, has regular dealings with the Federal Court and the Canadian International Trade Tribunal. Last November, the firm launched a recall and crisis-management practice — with a presence in Ottawa — that involves product recalls, from medical devices and drugs to electrical equipment, toys, food, and cosmetics.


And Ogilvy Renault is taking advantage of Ottawa’s Silicon Valley North reputation for developing technology. Last October, the firm unveiled one of Canada’s first “clean-tech” practices to represent clients creating energy-friendly products or services. Headed by Jameson in Ottawa, and combining business, IP, real estate, and employment and labour law with the litigation group, the firm has already helped start an Ottawa company, Triacta Power Technologies Inc., that specializes in software and hardware that supports environmentally smart energy, water, and sewer meters.


This new green-friendly sector expands the definition of technology and provides new opportunities for Ottawa firms that once did a booming business in high-tech.


Between 1999 and 2001, Fraser Milner Casgrain LLP was so busy that it “turned work away,” says Tom Houston, head of the firm’s national technology practice group and its managing partner in the city. “The major focus was on optical networking and telecom, and Ottawa was right in the bull’s-eye.” Though the tech bubble burst in 2001, it didn’t have a devastating effect on FMC, since the firm’s Ottawa office is diversified and has significant federal regulatory, public policy, and litigation practice groups. Indeed, the national firm set up shop in the nation’s capital in 1985, partly to be closer to the federal government and better able to advise clients “dealing with government,” says Houston.


Since then, FMC’s tech group has scored significant wins, including serving as company or investor counsel on seven of the country’s largest 25 publicly reported venture capital financing transactions in 2006.


As the national capital, Ottawa also offers firms prime pickings from the public service. Last year, Peter Harder, former deputy minister of Foreign Affairs, joined FMC as a senior policy advisor on regulatory and policy issues. And among the 50 lawyers and agents at Ogilvy Renault’s Ottawa office is Derek Burney, a former Canadian ambassador to the United States who served as chief of staff to prime minister Brian Mulroney. More recently, he was named by Prime Minister Stephen Harper to serve on the Independent Panel on Canada’s Future Role in Afghanistan. Burney helps the firm’s client on cross-border and domestic issues, as well as trade and investment policy matters.


Ogilvy Renault has also recruited Leonard Farber, former general director of the tax policy branch at the federal Finance Department, to help clients resolve tax disputes and assist the firm’s tax practice with tax planning and advice.


Lawyers, too, have carved out niches for themselves in practices unique to the capital. Among them is Eugene Meehan, a specialist in appellate litigation who is regularly called on by lawyers and law firms across the country for his expertise with the Supreme Court of Canada, where he once served as executive legal officer. A former national president of the Canadian Bar Association and current chairman of the Supreme Court practice group at Lang Michener LLP, Meehan often serves as a filing agent for cases to be heard by the top court. Most of the time, he reviews and revises a draft factum given to him by a lawyer. “I will then strategize with that lawyer and make the material much more strategic and much more persuasive,” says Meehan, who holds a doctorate in civil law from McGill University. Or he will take over a file, write the factum, and argue the case in the Supreme Court.


For Scottish-born Meehan, this is an activity unique to Ottawa. As he says: “Toronto has the stock exchange, and mergers and acquisitions are primarily Toronto-based. But we have the Supreme Court and the federal government.”


Through the latter, Ottawa also has the largest law firm in the country, thanks to the Justice Department. There are about 1,300 lawyers working for the federal government — about half of them assigned to Justice Canada; the rest are with various departmental legal-service units throughout the capital. Those numbers are almost on par with the estimated 1,400 Ottawa lawyers in private practice. “We have law firm-sized units in major departments, with significant numbers of lawyers in Health, Defence, Treasury Board, and Finance, where there are about 25 lawyers,” explains Will McDowell, who left the Toronto office of McCarthy Tétrault LLP — where he served as a commercial litigation partner and built a reputation in the field of libel and media law — in May 2005 to join Justice Canada as an associate deputy minister responsible for, among other areas, national security issues as well as legal services for Treasury Board and the Finance Department.


With considerable corporate experience on Bay Street and now as a senior government official in Ottawa, McDowell believes there is insufficient “interplay” between the private bar and Justice Canada. “I would like to see us more involved in training young lawyers, because I think there’s a mentor deficit in the profession,” says McDowell, who serves on the board of directors of The Advocates’ Society in Ontario and promotes Justice Canada as an employer of choice for law school grads. “You don’t have to go scrambling to try and find work from the high-tech sector if you work in government,” says McDowell. “There’s a steady stream of difficult and interesting stuff to work on — shaping legislation, providing policy advice, being involved in commissions of inquiry, and so on.”


Even if the high-tech space is competitive, it’s also collegial. Several firms, including FMC, Osler Hoskin & Harcourt LLP, and LaBarge Weinstein Professional Corp. (formed over 10 years ago by a group of Blake Cassels & Graydon LLP lawyers) that specialize in the sector have formed a “congenial” and informal “mini-tech bar,” according to Houston. “The nice thing about technology deals is that there are usually two or three parties to every transaction and each do a separate representation,” he explains.


In fact, regardless of their specialty, lawyers — and judges — regularly come together through events, continuing education programs, and other initiatives run by the County of Carleton Law Association (CCLA) in Ottawa. “The culture here is very respectful and very collegial between the bench and the bar,” explains Karen MacLaurin, who has worked for the association since 1975 and is its executive director and head librarian.


On the social scene, the CCLA’s annual civil litigation conference draws hundreds of attendees — from Supreme Court judges to the presidents of the Canadian and Ontario bar associations — and brings together “the right people at the right place at the right time,” says MacLaurin. It’s a time for schmoozing for lawyers not known for circulating in great numbers within Ottawa’s political and diplomatic circles — contrary to some perceptions from outside the city.


“A lot of Torontonians don’t recognize this is a big town — the political life on Parliament Hill and the legal community are not integrated,” says David Scott, the national co-chairman of Borden Ladner Gervais LLP and partner in its Ottawa office. (BLG was formed as a result of a merger with Scott’s practice, Scott & Aylen — which he helped form with his dad, IP lawyer Cuthbert Scott — and four other firms eight years ago.)


“When it comes time to pick a lawyer, federal politicians from outside the city don’t know anybody in the community. Ottawa, to them, is like an island,” says Scott, who became the first Canadian to serve as president of the American College of Trial Lawyers in 2003. If that’s a general rule, he is definitely one of the exceptions. The descendant of four generations of Ottawa lawyers (his great-grandfather, Sir Richard Scott, a future Liberal senator, convinced Queen Victoria to declare the city Canada’s capital 151 years ago), Scott is one of the city’s top go-to lawyers. In Ertel’s words — Scott is a “legal institution” whom “everybody respects and looks up to.”


Having practised law for nearly a half-century as an old-school, multitasking general practitioner in such areas as IP, commercial and criminal litigation, professional negligence and personal injury suits, and administrative law, Scott has gravitas — and an impressive client roster that includes the likes of former prime minister Jean Chrétien, who serves as counsel with Heenan Blaikie LLP, primarily in Ottawa.


Says Jameson: “David is certainly the pre-eminent litigator in Ottawa, if not the country. You don’t get a better litigator than David Scott.”  


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