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The Big Picture

Cover Story
|Written By Geoff Kirbyson

Controversial Regina lawyer Tony Merchant works practically 365 days a year and is unapologetic about receiving the biggest class action pay day in Canadian history.

He’s one of the best-known lawyers in Canada, successful and wealthy, just as controversial, and quite possibly the last guy you want to see across from you in a court of law.

He’s Tony Merchant, 40-year veteran of the legal profession and a man who has built the most recent phase of his career as a class actions crusader. The firm he founded, Regina-based Merchant Law Group, is waiting to receive the biggest legal pay day in Canadian history. Its cheque should ring in somewhere between $28 million and $43 million, resulting from years of work on the $1.9-billion settlement of the native residential schools case, a lawsuit on behalf of survivors of the state- and church-run Aboriginal education system. But it came only after a nasty squabble over the fees with the federal government that almost derailed the entire deal.

Merchant is proud of his firm’s work in righting an historic wrong and is unapologetic about the size of the payment, which he says will enable the 11-office, 50-lawyer firm to expand its class actions activity. “We’ll just keep practising until it’s all gone. It gives us a lot of staying power in class proceedings,” he says. “What ought to be depressing for lawyers everywhere, if it is the largest fee [in the history of Canada’s legal profession], is that some bank presidents make that much every year. I think many lawyers make a greater contribution,” he says.

A former journalist, Merchant has often used the media to help build his profile and promote his clients’ cases in the court of public opinion. He says he has spent much of his career challenging long-held beliefs in the legal profession. “I’m a judicial iconoclast. I’m iconoclastic about everything. I don’t just accept something just because somebody says it. I don’t accept the standard pattern,” he says.

For example, he says he doesn’t think class actions are in the best interests of Canadians if lawyers are getting along and working together. “If I were the judiciary, I’d be trying to encourage competition to make things move more quickly,” he says.

Merchant, who had spent much of his career as a family lawyer, admits to “tumbling” into class proceedings in the early ’90s. The first class action launched by his firm was a 1991 family-law matter for child deductibility and women’s child support. Two years later, he launched one over breast implants and the firm has gathered steam since. Merchant says the firm typically has 80 to 100 ongoing class proceedings.

He is quick to respond to criticism his firm has faced for landing actions outside of Saskatchewan. “Because I live in Regina, our firm, to an unfair extent, is perceived as being a Saskatchewan law firm. But we have more lawyers in Alberta than we do in Saskatchewan,” he says, noting the firm also counts lawyers in Quebec, B.C., Alberta, and Saskatchewan who spend either all or a significant portion of their time on class proceedings.

Merchant says he sees class action legislation as similar to the Tax Court, Federal Court, or the Supreme Court of Canada. “If I were in front of a judge in Winnipeg, I’d say, ‘You’re not a Winnipeg judge, you’re not a Manitoba judge, you shouldn’t expect to have Manitoba counsel. In this case, you’re a Canadian judge, because this is a class action involving Canadians,” he says. “Just the same as when I appear in the Supreme Court in Ottawa, they don’t say, ‘You’re not an Ottawa lawyer.’ If you look in the U.S., the class action firms may live somewhere, but they argue the cases wherever it’s appropriate and good for the class.”

Merchant, 62, has been employing his unique modus operandi since he started articling as a 22-year-old, after having earned an arts degree then a law degree from the University of Saskatchewan. He also has an MBA from the University of Regina. Merchant says he “fell into” radio and began hosting an open-line show on the CBC at the same time as his law career was getting off the ground. “It was really like having two 40-hour jobs,” he says, noting because of the frenetic pace in those years, he stopped eating breakfast and lunch.

“I came down to four hours of sleep. Everything I could do was designed to save time. The courts were wonderful with me; they would let me start trials at 11 o’clock in the morning instead of 10. People were very accommodating. At the same time, I did stringer work for the CBC.”

Now on the other side of the microphone, Merchant says he thinks newspaper, radio, and television reporters appreciate his candour and ability to not simply blather on. “Unlike most lawyers, I think I give real answers. If you asked me a question for a national telecast, I’d give about a 12-second answer. If it was for a local telecast, I’d give about a 22-second answer,” he says.

“If you ask a lawyer to describe that jacket,” he says, pointing to an imaginary piece of clothing. “They will say, ‘It has green and red diagonal and horizontal lines with varying shades and threads that go up and down and take a circular motion around the shoulders.’ If you ask Tony Merchant, he’ll say, ‘It’s a plaid jacket.’ ”

Merchant, who was admitted to the Saskatchewan bar in 1968 (and to the Alberta, British Columbia, and Arizona bars in 1976, 1977, and 1987 respectively), could also be the poster child for Workaholics Anonymous. He says he’ll typically work 12 to 15 hours a day — sometimes as little as half that when he’s on vacation, which is often. He has visited 94 different countries, including Libya and Cambodia four times each.

“I’m happy with what I do. I travel, I work huge hours, but I do it in different places. It’s just more interesting. I carry big briefcases of junk. It’s more interesting to be in a hotel room and eat in a different place and go out. In Qatar, I sat at a pool and dictated for probably seven or eight hours. I work a little harder in a sun place,” he says. “I try to have a suite when I can afford it, so if I wake up, I can not wake my wife. If I don’t, I wake her. That was her bad luck to have married me. If the lights are on and I’m dictating, she can put the covers over her head,” he says with a laugh. “She accepts that, she’s a wonderful person.”

In fact, after a particular grueling 48-hour period — working for 44 of those hours, taking breaks only for two meals and two baths — during the residential schools case, Merchant thought he might be on the cutting edge of an efficiency breakthrough. “I’m sitting in a big boardroom and about three hours earlier, I had put on a black silk suit. I looked at myself in the [window’s reflection] and said, ‘Hell, you look pretty good. Maybe I can just stop sleeping entirely. Maybe this four or five hours a day of sleep is just laziness,’” he chuckles.

Merchant says he bills for an average of 12.7 hours per day 365 days a year (That’s more than 4,600 hours; a lawyer who bills 2,000 hours annually is considered a top producer at most big firms). Once in a while he’ll work as much as 19 hours in a single day. Even on Christmas he’ll usually work for four or five hours, because he’ll be holidaying in the south with his family. “There might be a day when I’m in Egypt looking at tombs when I don’t do any work,” he says.

For most people, a long day at the office includes hanging out, walking around, and drinking coffee, but Merchant is quick to note he isn’t most people. “When I say I had a long day, I mean it,” he says. “Of course I get bored. Every once in a while I’ll find myself dozing off in court and I’ll think, ‘Somebody is paying me 15 cents a second to stay alert, I better stay awake.’”

That goes for his people, too. Seated in his modest office on the edge of Regina’s downtown, Merchant says he tries to have staff available from about 7:30 a.m. until midnight. All three of Merchant’s sons, Evatt, Joshua, and Matthew, work for the firm as well. “In lots of areas, they dominate me and push me around. I get more criticism from them than anybody else,” he says.

Controversy appears to run in the blood. Matthew, the youngest, is currently appealing his disbarment in Alberta but at press time in early July was still practising. “He’s still practising law,” says his father, who says he’s not involved but is ready to help out if called upon. “We’ll see how that works out.”

Merchant is almost as well known for his deep roots in the Liberal Party. Following in the footsteps of his grandfather, he’s a former MLA in Saskatchewan and once ran for the provincial leadership of the party (he lost). He was also an unsuccessful federal candidate on three occasions. His sister, Adrian, has been married to not one, but two, former members of Pierre Trudeau’s cabinet; first Otto Lang and then Donald Macdonald. His wife, Pana, is a Liberal senator and his office walls are adorned with autographed pictures of Trudeau and other Prime Ministers, Lester Pearson, Jean Chrétien, and Paul Martin.

“Basically, I’ve walked in the Liberal world,” he says. “I go issue by issue. I don’t particularly agree with the Liberal party on child-care policy, for example. Why do so many lawyers support the Liberal party? It’s because the Liberal party isn’t a party of absolutes. We’re never overwhelmingly on one position or another. Lawyers learn over time that absolutes usually aren’t right.”

There’s also one picture on the wall with Stephen Harper. Merchant says he approached the current prime minister at a ball and asked if he would pose for a quick shot. “Sure, Tony,” Merchant recalls Harper saying. “Why not ruin two reputations with one photograph?”

Controversy has been Merchant’s constant companion over the years. He made national headlines in the early 1980s for his representation of former Saskatchewan MLA Colin Thatcher, who was convicted of murdering his ex-wife. JoAnn Wilson, who had since remarried, had been beaten and murdered in the garage of her Regina home in 1983. The case still interests people in the profession decades later, he says. Merchant was in a Mississauga, Ont., court five years ago arguing a case, and at the conclusion of the proceedings, the judge asked him to stay around for a few minutes so he could ask him about Thatcher.

He has also had run-ins of his own with governing bodies. The Law Society of Saskatchewan has found Merchant guilty of conduct unbecoming a lawyer three times over the past 20 years. One of which related to an abduction charge in 1983 after he helped Thatcher forcibly remove his nine-year-old daughter Stephanie from the home of a family friend. Merchant pleaded guilty to a lesser charge of mischief and was granted an absolute discharge. In turn, the law society reprimanded him and fined him $1,000, and $5,000 in costs. He currently has two other matters before the Saskatchewan Court of Appeal, says Vic Dietz, president of the law society, which is why he declined to comment on Merchant for this story.

“There are probably lawyers in the province with longer records than Mr. Merchant, but he does have a record of discipline with the law society,” he says. Merchant says he “tends not to enter into the debate” regarding his law society issues.

The controversy that follows him around is in part a by-product of his high profile in Saskatchewan. He says if he lived in Toronto, he’d be able to fade into the background a little better. He’s also often said he’d like to see a movie star move to the province to take over the spotlight. “But I’ll bet if it happened I wouldn’t be happy,” he says with a laugh. “You’ll never have somebody who is under the same intense scrutiny that I receive, which I don’t particularly mind. I’m not critical. Everything that goes on in my life is noticed,” he says.

Part of that is Merchant’s own doing. He stands out in a crowd thanks to his habit of driving Jaguars and his wide array of double-breasted suits, the only kind of suit in his closet.

“I’ve worn them for the seven or eight years when they were popular and the 20 years or so that they weren’t,” he says. “I like clothes and shoes. I have shirts made and I’m always buying ties. I still wear, from time to time, clothes I had made when I was 24. When people ask me about the way I look, I say it’s the cryogenic effect of Saskatchewan winters that makes me stay the same.”

As verbose as Merchant is, getting a fellow lawyer to discuss his impact on the legal profession proved difficult. One senior Winnipeg’s lawyer agreed to speak on the condition of anonymity. He says there’s no grey area when it comes to Merchant. “Some people would view Tony Merchant as a classic public perception of a slimy, bottom-feeding lawyer, while others might see him as somebody who recognizes opportunities they don’t have the energy to pursue,” he says.

“If there’s an opportunity there, he’s the one seizing it. There are some people that will ruffle the establishment’s feathers and Merchant is the type of guy who ruffles feathers a bit. He’s a guy who thinks in a different way. There’s something to be said for that.”

Despite several attempts to leave, Merchant remains in Regina, content to be “a recognized fish in a modest pond.” He even went so far as to become a member of the State Bar of Arizona in the mid ’80s, part of his plan to move to Palm Springs, Calif. (If you become a member of a strong bar like Arizona’s, you can automatically get into California’s, he says.) Another time, he priced some property in British Columbia and yet another time he tried to buy a couple of businesses in Montreal.

“Like most people, I’ve had doubts about what I was doing from time to time. For me, practising law in the U.S. is sort of the equivalent of running off and joining the circus. What I do here is very intense. I’m working all the time, I function effectively here,” he says. To illustrate his point, Merchant tells the story of coming back from a trip and going to retrieve his car from a parkade, which had an official-looking sign that said, “Cheques not accepted.” He didn’t have any money and told the commissionaire he’d need to write a cheque. “He said, ‘If I can’t accept a cheque from Tony Merchant, I don’t know who I can take a cheque from,’ ” he says. “I smiled, thanked him, and gave him the cheque for $7. I’m assuming it cleared.

“I’m happy here. I’ve been dissatisfied lots of times with the political makeup [of the province]. I think a lot more could happen in this province. It’s a happy place to live.”

After four decades in the profession, Merchant doesn’t foresee a time when he’ll retire. “I would think I’ll keep doing this forever. My great grandfather was still practising law at 86, so maybe I could do that. I’m hard working and active,” he says.

“The lawyer’s world is a world of some interesting things. A lot of what we do is just dregerious stupidity; moving one piece of paper to the other side of the desk with a Dictaphone on it. You have to be prepared to suffer through that, and I am. I don’t mind it. Other lawyers have a high level of dissatisfaction. I’ve always thought it was a pretty good life,” he says.