Litigator, arbitrator and former Supreme Court judge Ian Binnie reflects on the law then and now

Technological revolution has brought benefits but has ‘overtaken the profession,’ he says

Litigator, arbitrator and former Supreme Court judge Ian Binnie reflects on the law then and now
Ian Binnie is Of Counsel at Lenczner Slaght LLP in Toronto, and a Resident Arbitrator, Arbitration Place.

When Ian Binnie began his career in civil litigation in 1967, at Wright & McTaggart in Toronto, the practice of law was less business-oriented and technology-driven; not even voicemail was on the horizon yet.

Binnie -- who today is a civil litigator at Lenczner Slaght LLP in Toronto and an arbitrator with Arbitration Place, after retiring from the Supreme Court of Canada as a puisne justice in 2011 – remembers those days as less pressured, and less costly.

The practice of law is “much more business-oriented than it was,” Binnie told Canadian Lawyer from his home near Lindsay, Ont. “In earlier times, lawyers didn’t expect to make as much money as their clients; I think now they expect to make more.”

And the technological revolution “has overtaken the profession,” he says. After the advent of voicemail, “now email [and] various social media is continually barking, and very distracting.” It also makes it difficult for lawyers to take a true break, either on weekends or for a vacation.

He recalls attending a conference in the mid-1990s at which the general counsel of Bayer Chemicals was the main speaker and said he expected any lawyer doing work for Bayer to be available 24 hours a day, 365 days a year.

“It’s crazy, but that's the direction everybody's moving, Binnie says. “It’s not a good direction.”

Ian Binnie is among the lawyers working today who appeared in the first edition of the Canadian Legal Lexpert® Directory; launched in 1997, the 25th-anniversary edition was published in April.

Technology was not as widespread in 1997 as it is now, of course; “most lawyers were vaguely familiar with email, but that was about it. … Email was more a convenience than a taskmaster,” he adds. “People had more time to think about their response, as opposed to being expected to react on the spot. Reacting on the spot is not a good thing.”

The huge investment in technology – both in the equipment/software and the personnel to maintain it -- has driven up costs enormously, and is part of the reason why lawyers are pricing themselves out of the market, Binnie says. “If well over 50 per cent [of revenues] is going on overheads, then the pressure on fees is accelerating, and the clients are resisting.”

Along with its benefits, technology has brought problems, he says, in part by making research too easy. From his seat on the Supreme Court, it was evident to him that lawyers were preparing their facta using keyword searches.

“I don’t know if they’d even read the cases,” Binnie says; “you’d get a pile of 50 authorities, and you could see how a keyword search would turn them up, but they had no relevance at all to the argument. It’s a less thoughtful approach to law: more speed, but less effective.”

The higher pressures on lawyers today may help explain why, when lawyers retire from full-time practice, they retire completely, whereas going to the bench gives lawyers “a gradual step down” and makes it more likely they will continue at least part-time work after they retire.

“A lot of the judges carry on doing arbitration or other work,” he notes; “they're quite happy, because they're not escaping from a very high-pressure environment and in need of a longer rest. … It's interesting when you look around and see how many judges are arbitrating, and how many lawyers are playing golf [after retirement]?”

Binnie’s own career path took him from private practice at Wright & McTaggart to Ottawa, as the Associate Deputy Minister of Justice from 1982 to 1986. He returned to private practice at McCarthy Tétrault LLP in 1986, and served as special parliamentary counsel to the Joint Senate and House committee on the Meech Lake Accord in 1990. Among other significant cases (he argued more than 30 appeals before the Supreme Court prior to his appointment to that bench), he appeared as counsel before the International Court of Justice as Canada’s representative in high-profile disputes between France and the United States.

When Binnie was appointed to the Supreme Court of Canada in January 1998, he became only the fourth modern-day Supreme Court justice to be appointed directly from private practice. But his government experience gave him “a lot of exposure to the kinds of issues the Supreme Court deals with,” he says. For example, during his time as Associate Deputy Minister of Justice the Canadian Charter of Rights and Freedoms was adopted, and Binnie spent a lot of time attending constitutional conferences on Aboriginal rights.

“It was less of a shift for me going to the Supreme Court than it probably would have been for many judges, as my practice had more in common with the work of the Supreme Court,” he says, including a tremendous amount of civil law, personal injury and regulatory work. “Not many appellate judges spend a whole lot of time with section 15 equality rights, but I had appeals [related to] section 15 as a lawyer, so the subject matter was quite familiar.”

A view from (and of) the Supreme Court

One of the highlights of Binnie’s career occurred in his first session on the Supreme Court, he says, when the court heard the Quebec Secession Reference (although the judgment was delivered “By the Court,” Binnie has been credited as one of its three drafters). Though some considered the court to be “activist” and “aggressive” in developing the framework that determined whether Quebec could unilaterally secede from Canada (the court decided it could not), the decision was accepted by Quebec as well as the federal government, Binnie notes. Further, it led to the enactment of the Clarity Act in 2000, which established the conditions under which Canada would enter into negotiations that might lead to secession following such a vote in favour by one of its provinces.

While in Catalonia, Spain, “people are going to jail for preaching secession, in Canada it was all done reasonably,” he says, with lawyers standing up in front of the Supreme Court in February 1998 arguing for and against Quebec’s right to unilaterally secede, and the proceedings televised. “It was quite a civics lesson to hear lawyers expound on their various positions.”

There was a good deal of debate regarding the high court’s “judicial activism” when he sat on its bench, much of it controversial, Binnie notes. He rejects the charge that the court is particularly activist (the text of section 15 of the Charter, for example, “is much broader than the resulting jurisprudence”), but says that where it has been activist -- as in the Quebec Secession Reference decision -- it has provided a roadmap.

Read more: Politicians defying courts seen as dangerous trend

The biggest legal development has been in the area of Aboriginal rights, he says, and “you can see the efforts the courts made to achieve reconciliation were very timely.”

Binnie also supports the requirement of Supreme Court judges to speak French. Detractors of the requirement don’t appreciate that about one-third of the work of the court is in French, he says: in French-language decisions, the trial judge’s reasons or instructions to the jury will not have been  translated, nor the evidence, nor likely the appellate court’s reasons. “You can’t work effectively as a Supreme Court judge without functioning in French.”

Read more: Barreau du Québec insists SCC judges be bilingual

Sitting as a judge on the highest court allowed him to consider fascinating cases, he says, and “unlike a practitioner, who is constantly under time pressure and multiple demands, you have the luxury of time and reflection. Always this time of year was most enjoyable, because you’d have the summer stretching out, you'd have a bunch of interesting cases under reserve, you could read and draft and redraft and do things that really make legal life worthwhile.”

On arbitration

Before Binnie went up to the Supreme Court, civil litigation practices were court-oriented, he notes. Now, “it seems that practically everything in the commercial world gets put into arbitration,” and although arbitration is well run in big commercial centres such as Toronto, courts don’t have as much opportunity to address legal issues. Courts are reluctant to take up matters that have been arbitrated, he says, and “there is no Supreme Court of Canada to deal with arbitral awards.”

Yet with the enormous growth in arbitration, Binnie sees opportunity for Canadian lawyers. Most of the arbitrations he handles today are international, mainly investor-state disputes and for organizations such as the World Bank, he says.

“I think Canadian lawyers are extremely well qualified to do that work if they went after it, and I think it's unfortunate that they don’t to the extent they should.”

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