Alyssa Tomkins

2Hello, Pulat. Thanks so much for having me on your, on your YouTube. My name is Alyssa Tomkins. I born and raised in Ottawa. I left Ottawa briefly, went to Queen's for my undergraduate degree, ended up being two degrees. Started in engineering chemistry, finished it, but along the way also did a degree in political studies. Engineering was a lot of math. After law school, I worked for a year on Parliament Hill as an intern for the House Finance Committee. After that, I went to law school at University of Ottawa, common law, then clerked for Justice Bastarache at the Supreme Court of Canada, went with him to Heenan Blaikie, became his first junior there, then was at Heenan for 3 and a half years and left Heenan to form my current firm, which is a litigation boutique in Ottawa called Caza Saikaley.

4Correct. I got him back.

6No, not at all. Not at all. They very quickly lose that status. But it's more— it's fascinating when you're working on cases to be able to get, even though it's not legally relevant, the subjective intent of the drafter, but to still get his perspective on where he was coming from when drafting some of his decisions. And then obviously just he can review our appellate materials and provide that perspective of how a judge's first instinct.

8Yes, though I will note at the time I was an associate, I wasn't a partner. So I don't know if that truly makes me a founder, but I was one of the 5 original members. We all left Heenan Blaikie in January 2012, and 4 of us are still there and are the current partners of the firm.

10Correct. It was very much a startup mentality being the, the one person with the technical degree. You know, I set up the Wi-Fi network in the firm. I remember crawling around on the floor hooking up the router. And, you know, the few days prior, I had gone to the Toronto office of Heenan, and it was so beautiful at Bay Adelaide Centre, you know. And I just remember thinking, oh my goodness, what have I done? But it all worked out.

12At least— well, we actually just hired 2, so we might be up to 12. And then Our counsel ranks are extremely high for a boutique. We have two fantastic senior counsel who are two of my most important mentors, Justice Bastarache that I mentioned, and also Ivan Whitehall, who used to be the Chief General Counsel at the Department of Justice. So Ivan argued more than 40 cases at the Supreme Court. So we're, I think we're over-counseled.

14No, Ivan.

16Yes. No, I've argued twice.

18Okay.

21I do. I do. I just, I'm not someone that has it. You know why? I don't. I'm a, quote, first-generation lawyer. So I do think that there are, if If that's what you're referring to, that there are some people who come to the profession with a great deal of knowledge and understanding. And it's in part because they have family parents often who are already in the law.

23It's certainly, I think, become that way. I'm not sure it was always the case in Canada, but my understanding, if we we've sort of followed the US tradition that it became something to do. Like, I had ranked first in my class in first-year law school, and the school approached me and said, this is what you should be doing, applying to clerk at the Supreme Court. So I was very much pushed in that direction. I was always told that after you clerk, you have 5 years to sort of ride on that reputation, but after that, people are going to start looking at what have you done lately. What have you done with that? I think from my own perspective, when I got to Heenan Blaikie, I was given opportunities on big files very early, including not only in the Ottawa office but in the Toronto office.

24But then it became a question of making the most of those opportunities. And I, you know, I've seen other people who are clerks who can never put it together as a practitioner. A number of clerks, you know, the practical aspects of private practice, which I'm sure you're aware, that it's a different skill set than clerking, which can be a bit more academic in nature. But yeah, I was always told I had 5 years to make it or nobody would care anymore about my clerkship.

26Well, our firm actually hires a lot of former clerks. It's something that we look for. So the reason that we look for that, I would say, is that you get thrown cases in all different areas of the law and you have to figure it out very quickly. So our firm, I wouldn't say we're generalists, but we have a broad practice area and we encourage our lawyers to work in different areas. I think clerking teaches you to break things down to first principles, to sort of understand why the law is the way it is, which helps not only with appeals— it's more obvious on appeals— but often at first instance as well. So I think what clerking does is it demonstrates a facility to learn areas of the law quickly.

27That to me is the most important thing. Obviously, research and writing as well. But particularly what our firm values in former clerks is, is that ability to jump into new areas.

29Right. So interestingly, that is true about science, less so about engineering. So science, of course, I mean, that's, that's how they teach it. They spend a long time deriving a formula and then you apply the formula in the lab. What I found really interesting in engineering, particularly like third year or so, the hardcore engineering courses— mass transfer, heat transfer— they're often empirically derived equations, which means that somebody has done, you know, thousands of experiments and they basically create a line of best fit and create a crazy equation. You know, it's got all kinds of fractions and this and that, and then you apply it and it works, but it's not as simplistic as, as we would expect from pure science, you know, where the equations are often shockingly simple for how complicated the concept can be.

31Yeah, I mean, it's an oversimplification, obviously. It was just something that surprised me. But no, I mean, I don't think just working from precedents is a very intelligent way to work. It's certainly not the way I proceed. So like, I'm not someone who always uses a previous statement of claim. You know, you'll look at it to make sure you don't forget something, but it's a more effective pleading starts from your own case and you actually set out the facts. Well, first you figure out the causes of action that you want to plead, which actually can take quite a while. What are the elements of those causes of action? And then what are the facts and support.

32That's almost like a spreadsheet analysis though. And then I think what law adds that's sometimes missing from law and engineering— there's an artistry to it too though, is that you still, even in a pleading, you need to make sure you hit the elements, but ideally it will tell a story as well.

34Exactly that. I mean, that's what takes You have to have all the building blocks, but then the advocacy part is the persuasion, and whether you call it your soul, your— but that's where you want to convince the decision maker. And yes, a pleading, you first and foremost, you need to make sure you hit all of those building blocks, but it is the first thing a judge often reads, the pleading. So you don't want to miss even starting as early as your your statement of claim. You don't want to miss an opportunity to tell a story. You just have to make sure that that story includes all of the building blocks that you need. The other aspect of it that's, I think, a little less technical is when you're figuring out the cause of action.

35Sometimes that's not obvious. I mean, I'm sure you've had the same experience that a client comes to you and something's happened and it's bad, but It's not always obvious immediately what's the cause of action. And even when you sometimes think it's one, there might be a better cause of action that gets you a better remedy or perhaps doesn't have defenses that one might. So you do want to choose the best cause of action to get the result that you want in the end.

38Well, I mean, that's— it's a huge part of the job of being a litigator. Ron Caza, who I work with, has— he has the remarkable ability to always claim the moral high ground. I've never seen him in a case where he truly didn't believe that he had the moral high ground. So that's really one of his strengths, is he finds the gros bon sens, the common sense reason why our clients should prevail. And when I work with him, often my job is to find the law to support that and develop and present it in a way that's palatable. But One of the things I've taken from Ron is the critical importance of convincing the judge that not only is it technically correct, unlikely to be reversed, but that they're doing the right thing.

39So you can often find a way. And I'm doing an appeal right now on a limitations issue, and that's a very difficult place to be. I'm on for a bunch of defendants. And there's always a sympathy factor to the plaintiffs there. So you kind of have to claim a different moral high ground. Sometimes it's judicial policy with respect to limitations, obviously, the statute of repose, the importance of finality. Like, you have to try to always, though, find that justification for why the court should rule in your favor. And it can't just be— solely the application of a test.

41Well, my associate actually argued that. I was there, but I let him plead it, actually, because he had found the client. And done more of the work. Well, in that case, we were arguing for less deference. And it was actually fascinating at that hearing because— and I think the court was taken aback that over time there had been a view that access to justice was equated with deference. And actually, one of the fascinating things that happened at that hearing is that all of the organizations that acted for individuals, be it refugees or immigrants like Mr. Vavilov, or in our case, we were acting basically on behalf of individuals against large telecommunications companies or the state, that those parties were all seeking less deference.

42And I think the court hadn't hadn't expected that because in the past I think it was kind of an easy assumption that, you know, administrative tribunals are cheaper and faster, therefore they promote access to justice. But all these organizations were finding that the justice they get is unsatisfactory and that large companies and the government were dominating at these tribunals. So in fact, a lot of the organizations— I remember the Queen's Prison Clinic was there, prisoners, another one— everybody was saying less less deference, that basically these people want justice. They are not accessing the system and getting spit out. They actually want to feel that their cases have been evaluated and that the result is fair.

44De fait, oui. Oui, nous avons, je pense, un parajuriste qui est qui est moins bon à s'exprimer, mais il peut le comprendre.

46I do. I do. So not as many as some of my other Francophone colleagues, but I would say I'm currently a bit low, maybe 20% in French, but I've been very high. I mean, Ron Caza and I acted in a huge hearing for the Quebec Chicken Marketing Board. Les Éleveurs de volailles du Québec, in a hearing that was over a year in Quebec before the Régie des marchés agricoles. So basically, for a year of my life, I spent in Quebec in a completely French proceeding. I've pleaded in French at the Federal Court of Appeal, Superior Court. So it is a very important thing at our firm and It's something that Justice Bastarache was the first to really push on me, but I'm a complete convert, and I think we have a bilingual legal system.

47So I find my ability to read jurisprudence, for example, from Quebec— like, just before this call, I'm doing an oppression file in Ontario, but I'm reading Quebec cases in French because they have the same legislation. The CBCA applies there too. So, you know, there's a whole wealth of jurisprudence that I think unilingual Anglophones miss out on.

49Yes, for sure. I last year at the B.C. Court of Appeal, I cited a Quebec decision. So I basically translated on the fly for the court.

51No, every adjudicator I have appeared in front of who is francophone claims to understand English. I, it's not my place to assess whether that's accurate or not. Certainly It's the same way some Anglophones who say they're bilingual were skeptical. I have the same issue with some of the adjudicators I've appeared in front of who claim to understand English, but based on the questions, it doesn't appear they do. But it's obviously very risky for a lawyer to suggest that the adjudicator doesn't know their own language skills. So in those cases, we'll provide often like a complementary translation or something like that.

53Interesting question. I am currently only called in Ontario, but I am in the process of being called in Yukon.

55I have a case there.

57Correct, yeah, they, they won't even let you— well, they won't let me provide legal advice, but definitely let alone provide legal advice, but I can't go on the record either. So I'm co-counseling with a friend who is a Yukon lawyer, but we want to have me on the record as well. So I am actually in the process, I'm just getting some reference letters to confirm that I'm a respectable lawyer in Ontario, and then I hope to be called very shortly in Yukon. But I've been approved to practice on a temporary basis in Quebec for some of those agricultural files I was mentioning. But otherwise, you can largely practice around the country with the exception— you always have to check first.

58Yukon was when I checked and was like, whoa, you actually do need to be called here. But I've had no problem appearing in British Columbia, in Alberta, New Brunswick. We have a case right now. Quebec's the tricky one.

60No, I really want to learn Spanish. My sister-in-law is Mexican, but I haven't got around to it yet.

62Correct.

64Oh, I did two more, also pro bono. They're all interventions so far. So I did the Vavilov one. And as I said, I let my associate argue it. The other two I argued, one for the Canadian American Bar Association, and that was the Uber The Uber and Heller decision. And then the other one I did was for the Canadian Civil Liberties Association. And that was a case involving the application of Section 12 of the Charter, the freedom from cruel and unusual punishment to corporations.

66So the Canadian American Bar Association, it's a very broad organization. So it represents people from both sides of the class action debate. So our position was not really related to the class action or the unconscionability side. It just dealt with the arbitration aspect. And it was a very technical arbitration point, the competence-competence principle, and basically who should be determining it, the arbitrator or the court. And we said the arbitrator should be doing more and that the court's analysis should be extremely limited.

68Right. So the Canadian Civil Liberties Association, and it was a very interesting mandate because typically the CCLA takes a very large and liberal view towards the Charter. But here they were saying not quite so large. To include protecting corporations. And the reason for that is that it, it can start to undermine the rights that are provided to humans if they're applied to corporations in the same way, and the, the corporations can begin to actually dominate the rights discourse. So we took the position that, that Section 12 in particular should not apply to corporations, and that the origin of the rule, it really flows from the freedom from torture, from the death penalty, and that it was really getting at the human, a human element, so that extending it to corporations is not in keeping with the purpose of that right.

69So that was the position that we took, and we analogized with the rule in Foss v. Harbottle and corporate law as well to sort of say that, you know, that corporations make a choice. And when you incorporate, you know, as you were saying, there are the benefits and the burdens. So, you know, you can't sort of like create the corporate shield to protect yourself from personal consequences, business consequences, but then rely on the Charter where to say, you know, as a person, I'm being, well, not discriminated against, but my rights, my human rights have been violated effectively. So yeah, we took the position that that right should not be extended to corporations.

71Oh, it's a numbered Corporation.

73Numbered Quebec company. I can't remember offhand, but it's still on reserve. We're still waiting. Oh yeah, yeah, yeah, yeah. So we're still waiting for a decision.

75Thank you for

77How do I find them, you mean?

79know,

81Yeah, well, I mean, I do other pro bono matters too. So I think when you get into that space, people start to see you doing files. The Canadian Civil Liberties Association, I think two lawyers that I know referred me, that the CCLA had approached them and they were unable for whatever reason. So they referred it to me. I think with the Vavilov hearing and the CIPPIC, we had approached them that we were interested in participating and we thought that they had a useful perspective. So I had volunteered when I was in law school with CIPPIC and my colleague James Plotkin, my associate, he did too. So that's— we're doing another— we're on the site blocking case for them too that's coming up at the Federal Court of Appeals.

82So that's a relationship that I've always wanted to keep going. But yeah, I mean, I think you can either find an issue that interests you and try to find a client, or they'll approach you. More generally speaking of pro bono though, I'm trying to think how— I've got two huge pro bono files going right now, actually. One's a Charter Challenge. That one was a result of another pro bono case I had done involving clinical trial data. So it was in the health space, and then the one of the profs we had worked with referred us this case we're doing now, which is a Section 15 challenge involving liver transplants and the prohibition on, on alcoholics receiving livers without demonstrating 6-month abstinence.

83So yeah, I think once you just get in, you get into that space, you start getting more, more referrals. But I mean, that's for me too. I've been kind of trying to build a public law practice, you know, at a small firm that when we started didn't have a huge name reputation, recognition. So I mean, pro bono work is how I give back to the community. I volunteer as well, but pro bono has always been very important to me. But it also benefits my public law practice because, you know, you're out there, you're getting judgments, people are able to see you. I have one, I don't know if I can, I shouldn't say it yet because it's not public, the mandate, but it's a case where I was speaking about one of my pro bono files at a conference.

84And then the paying client saw me there presenting and is now paying me in a very interesting public law matter. So I think it's like everything else. I mean, my approach to getting clients, come back to sort of your question about getting clients, has always been sort of do good work and the rest will follow. Like, I've gotten a lot of referrals from opposing counsel on files. Sometimes when you're allied with another party and they see your work. But that for me has always been more of my approach. I've not been one of those lawyers who's taking clients to golf tournaments or whatnot. I actually enjoy golf and I don't mind golfing.

86Yeah, soccer is my main sport. But in terms of how to build business, for me, it's always just been through doing work. Right. And speaking at conferences and stuff too, but just putting myself out there so people can see my work. And that has seemed to work.

88Yeah,

90It takes a while till they get through the system, you know. But I agree, when I— when another lawyer— when I get a new file and I see the lawyer on the other side, the first thing I do is check CanLII to see how many reported decisions they have, because I want to see, is this somebody who goes to court or not?

92Correct.

95Well, I've— for 10 years I've coached a competitive moot. So I coached the University of Ottawa Laskin moot team. So I— for me, that's another— mooting for me was probably the most important experience in law school, and it's what drove me to want to do litigation. So again, that's why I choose to give back in that way. It's actually extremely time-consuming to, to coach the moot. But I also think it's a privilege because presumably if they're wanting me to teach future litigators, they must think that I'm doing OK on my own.

98Yeah, I mean, it's an up and down profession for sure. There's— so to— I'll talk about two bad things. So the first bad thing is, as you've said, nasty people. The second is getting results that you didn't expect, so a loss. And of course, I'll turn to that second, but in terms of dealing with opposing counsel, of course, of course, it has happened with me. I will say that I'm privileged to practice in Ottawa, and it's a relatively small bar. So, you know, you really get repeat customers. I mean, opposing counsel, not clients, hopefully not. And as a litigation boutique, it's usually a bad sign of someone veering towards vexatiousness. But no, I mean, it's so— you're going to end up against the same people over and over.

99Like, I've hit the same opposing counsel in Ottawa often, more than once in my career, and I'm 11 years in, 12 years in. So, you know, it's all the more important, I find, in Ottawa to be very civil, and we have that reputation, as I understand it. I have, you know, you get it occasionally. I have, you know, where opposing counsel will make ad hominem remarks or personal remarks, and that I think that I'm able to put aside. Actually, it, in the moment, it's very hard, but As soon as you show them it doesn't bother you, I find, you know, I remember one time in court, a guy was very mean to me, but as soon as it ended, I pretended it hadn't bothered me at all, even though I wanted to cry inside and just was very professional and, you know, didn't make a big deal.

100I have at times, I have experienced sexist comments and those ones I will push back on and say, you know, that, that's sexist. Would you have said that to a man or something like that? But by and large, you know, I'm not someone who engages in extensive letter writing wars or, you know, I did one recently where somebody wrote me a very long letter and I just, you know, wrote like, you know, we disagree. We believe all of your case law can be distinguished. We have instructions. To accept any service of any proceeding you might commence. Done. You know, like it's to me, I just have not seen these lengthy emails or letter wars result in any kind of productive discussion.

101I have had productive discussions over the phone. I think rather than, you know, of course, sometimes you have to write a demand letter setting out your position. But when you're getting really back and forth, I think it's better to pick up the phone and call someone. And try to figure out what's actually going on. Because one thing I've learned is, you know, that very rarely is a dispute entirely one-sided. Like, often what my client tells me the first time is not exactly what happened. And it's not, you know, it's not saying the sky was blue when it was red. It's more like little glossing over of things that, you know, they want to present their story in the best way.

102And I think that's where it's often helpful to figure out as soon as possible, well, like, what's motivating the other side? You know, what's actually going on here? What's their position on what happened? And sometimes that helps us, you know, get into the same ballpark sooner. So, yeah, in terms of unpleasantness, I mean, it happens. I think people are tired, they're emotional. Sometimes they overreact. So I try to give people the benefit of the doubt. Now, what I have found, you know, last summer there was a stretch where I lost 2 trials in a row, got the decisions within a month. And in one case, I had, you know, really gone all in. I had dealt with opposing counsel who was abusive.

103And, you know, I had given my clients a really strong opinion. But the judge went and changed the law, which she's entitled to do. And the common law can change incrementally. And we're appealing. So we'll see if the Court of Appeal likes her change. But that I found, you know, I act for 15 defendants. It's the limitations issue I was referring to before. And, you know, as soon as you send them the decision, they all start calling and yelling at you and You know, that I think that was a very— and the judge, you know, you talk about Friday afternoon, it was the Friday before Labor Day weekend and the judge dropped this decision at 4:00 PM on the Friday.

104And I had to send it immediately to my clients. Obviously, that's our obligation. But, you know, it made for a very depressing weekend and that that kind of thing where you've given a strong opinion and it doesn't work out and you can't help but question what have you done. And I think you have to give yourself time to reflect. I've had hearings, I got dismissed from the bench one time in divisional court and you give yourself that time to think, did I do something wrong? Because sometimes it's a learning experience. The practice of law, even if you find you maybe could have done something better, you have to give yourself time to think about what you did, how you might do it better next time, but at a certain point you do need to move on.

105And that's where we talk about resilience. And that's something that personally for me, I attribute a lot to having played competitive sports. And having experienced a lot of failure, losses in sports competitions, you know, my ringette team made the national final and I didn't get to play, sat on the bench the whole game, you know, when I was 15. At the time, it was heartbreaking. But, you know, the next year I trained really hard all summer and came back stronger. So, and it doesn't, it doesn't need to be sports again when we, like I said, we like to hire clerks, we also like to hire people that have had experience with failure. And it's not necessarily sports, it can be music, it can be drama.

106But like, I find that if people haven't failed, when something goes wrong and you've got so many balls in the air as a litigator, you're gonna mess up, you know. You've got to be able to bounce back really quickly and just put your mind to fixing the problem. And, you know, that's now happened, and that's now what you have to deal with. So you've got to, you know, move forward, fix that problem if you can. If not, incorporate it into your theory of the case or your strategy going forward.

109Yeah, anytime. It was lovely to finally meet you sort of in person because yes, we've had exchanges on, on Twitter, but never in person or well, so I could see you. How's that?