Andrew Bernstein

3Good morning. How are you?

5Thank you. I've never been one of those people, I think, who holds myself in any way apart from anyone else. I'm part of a profession that I'm very proud to be part of, and the reason I'm proud to be part of it is because of all the great people in it.

7I am.

9Born and raised in Toronto, lived almost my whole life here, other than a few years in school in different places in the area in Ottawa.

11I grew up around Spadina and Eglinton and attended Forest Hill Collegiate for high school. And still live not too far from there. I live in Bathurst in Eglinton now.

13It feels like home. It feels very, very comfortable. I've always loved Toronto. When I was in law school, there was kind of a big movement towards people moving either to New York or to the bay area to practice law either at Sullivan & Cromwell or Wilson Sonsini. And that was never my cup of tea. I love those places. I visit those places often, or at least I did in pre=pandemic times. I even managed to get a year at UC Berkeley for school, which I love. But I never seriously contemplated living in the long term anywhere else.

15Yeah. I was 18, and it was time to get out of here for a few years and see what the rest of the world was like. Had the benefit of parents who were extremely supportive of my going away to school, and I loved those years at McGill. Every time I hear of it, somebody going off to McGill for their undergrad, I get just a little jealous.

17Might've been a failure of imagination. I had a teacher in high school that I really, really liked. Let's take a step back. I grew up in the 1980s. I'm born in 71, I'm turning 50 this year. Don't be fooled by the baby face. So I grew up in the 80s, and it's actually interesting to look back at that era and think about what we thought was cool. And what we thought was cool, in some ways, was that high-flying, Wall Street kind of lifestyle that we saw in TV and the movies. And I remember, I have a very clear memory of going to see the movie Wall Street at the Canada Square Theatre in Eglinton.

18And so, my dad's on obstetrician, and I had for some period of time thought that I would try and be a doctor. Basically, when I say, "For some period of time," until I did grade 10 biology, which I just could not stand. I could not stand biology. It was all cell biology. I didn't like it. And, although I found myself still interested in chemistry and took some chemistry through the end of high school, the course that really captured my imagination in high school was economics. And so, thanks to the inspiration of [Mr. Zembrano 00:05:11], who always did everything in reverse-alphabetical order, to my [inaudible 00:05:17], I went off to McGill to do a commerce degree.

19I got to McGill and started taking these kind of intro to commerce courses. Accounting, finance. And found that they were maybe a little too hands-on practical for what I was interested in. And was looking for kind of a more theoretical and academic approach. And so, McGill has this arrangement where you can do your economics degree as part of the commerce faculty. So I did my bachelor of commerce. I completed all of the essential prerequisites. But my major was economics.

20In retrospect, I don't regret it. I had a good experience. But, if I were to do it all over again, knowing then what I know now, I probably would've done poli-sci and history. My favorite courses in undergrad were a course by Chris Manfredi, two courses by Chris Manfredi, called The Canadian Judicial Process and The Canadian Constitution. And an American history course from Gil Troy. And they were my favorite by far, the things that I was the most interested in, had a lot more passion for them than I turned out to have for economics. Not that I disliked economics, but it devolved at some level to a lot of math. And I love math, but at some level the math stops being interesting.

22So, I would say that, you get to the commerce faculty and you do Accounting One and Intro to Marketing and Social Psychology. And if what you want to learn in your undergrad is how to run a business, these are not bad courses. But if what you want to learn in your undergrad is something more about the world at large, then I think you miss the opportunity to learn something more about the world at large by focusing too heavily on what I would call technical or specialized courses. If you're going to run a business, you'd better know some accounting. And Accounting One turned out to be very useful when I had to pass the Bar Accounting course, because it was pretty easy compared to first year accounting. But in the end, to me, I'm much more interested in a debate about the proper role of the judiciary than I am about understanding how to prepare a statement of changes in financial position.

23Other people may have totally different aptitudes and interests, and that's kind of what makes the world go round. But that's just me. I like the abstract. I'm interested in ideas, and I'm interested in how ideas affect the world. And I'm interested in how those ideas can be put into practice. And some parts of economics were a really great marriage of those things. Everyone kind of has an intuitive understanding of supply and demand, but economics at its best explains why people behave the way they behave, and how we can expect them to behave in response to particular incentives.

24And that's all fine. I'm all good with that. I think it's interesting, it's useful, there's some real insights that economics brings to all sorts of disciplines. But, in the end, I just found myself more interested in different areas.

26So, I would have to plead a bit of ignorance. I did go to UC Berkeley for one year, but I was in the law school. So I didn't learn a heck of a lot about what was going on in the undergrads. I know that, certainly, there are schools in the U.S. where you can major in business. And I've read statistics about how business is now the most popular major in the U.S., which kind of makes me unhappy, in a way, and another way I think people should study what they want to study, so.

27But certainly, bachelors of commerce can be great things. I don't poo-poo them for other people. I know that, personally, I would've benefited from more of a liberal arts education than I got. And what I ended up doing, for all intents and purposes, was kind of carving myself a liberal arts education out of the commerce faculty, by taking all of my electives in poli-sci, history, English, music, things like that. And it was great. But I have to say that I remember a heck of a lot more about American history than I do about the niceties of the IS-LM macroeconomic Model. So...

28I do remember my professor telling me that the benefits of trade are the one thing that economists know for sure to be true that is not trivial. And I thought that was a good line, and it certainly had an influence on me. The other thing about some of the commerce faculty stuff is that, later as I've become more senior in my firm and taken on leadership roles, it's kind of come back to me a bit. So, I took a course on organizational behavior, and didn't love it at the time, but, man, it really stuck. And it's been something that I've drawn upon over the years.

29I took a course on organizational policy. I'm not senior enough at the firm. I've never been on the executive committee at the level of policy. But, for somebody who was in charge of the litigation department for five years, again, you draw on these things, whether you necessarily enjoyed them at the time.

30But on the other hand, I took an entire course called Operations Management on how to optimize a production line. It was 1992, and we were very concerned that Japanese production techniques were overtaking North American production techniques. This was before Japan entered a 25-year recession, so... Some of it was better than others, and that's okay. It's all kind of a learning experience, right? You figure out what you like and what you don't like and what you're interested in and what you're not interested in.

31There was a moment in time when I was extremely good at telling you which intersection of lines was furthest from the origin, in a course called Operations Research. But I don't know how to do that anymore, and I don't miss it.

33I think, to some extent, I'm going to do the lawyerly thing and debate the question with you. I'm not sure that that's a dichotomy that I would personally draw. I think that the best lawyers, to me, are the ones that combine a whole range of skillsets. And I've been lucky enough to work with a wide variety of fabulous lawyers.

34So, Sheila Block is erudite and knowledgeable about the world and history and music, and you never know when she's going to pull in a random reference as an attempt to persuade someone. And I think of maybe Ron Slaght, who I have only been against, but like that as well. My longtime mentor, [John B. Lask 00:15:29], is laser-focused. He's not one to kind of bring in outside references and things like that. But he was a brilliant reader and understander of the case law, and could in a very unique way shape the narrative of the case law to help win his clients' cases. And then, a million other people.

35My colleague, Linda Plumpton, who's just a few years senior to me but I also consider a mentor. I don't know anyone who can keep the details of a case in her head quite as well as Linda. She remembers everything. You'll have a call with her, up with a client, you'll have a call three months later and she will remember everything that the client told her the last time. And I'm scrambling through my notes going, "Did he say that? Did he say that?"

36So, I think there's lots of roots to being a great lawyer. There's no one personality type or disposition that's required, other than what those three people have in common is an enormous capacity for hard work.

38So, I would say that firms in general have many objectives in hiring. Obviously, I've never made those decisions unilaterally, even when I was the department head. It's always been a consultative process. But when I personally hire, I hire for brains. I hire for analytical ability. I hire for somebody who can string a few sentences together, of course. If somebody's kind of sitting there mute in an interview, it's very hard to get to know them. Although there's probably a bit of a bias there, because I'm an extrovert and we all have to worry about hiring ourselves.

39But I personally hire, I like analytical ability. Because I think almost every other aspect of the job can be taught. I can tell you that I had no natural aptitude whatsoever as a cross-examiner when I started. I shudder to think about what my early transcripts look like, because that is not kind of the direction that I run to. I was factum writer and an appeal argument creator, and I was great at motions practice, and pretty good at examine chief, actually, in terms of storytelling. There are a few people who are natural cross-examiners, but most of us have to learn how to do it. And it is an eminently learnable skill.

40Every one of these skills that you need to be a litigator is learnable. If you're not great on your feet, somebody can teach you to be better. If you're not terrific with clients, somebody can teach you to be better. Every one of these skills can be learned, but I don't think that you can improve on someone's raw analytical ability. And so, I look for raw analytical ability wherever I can find it. And the people that I have mentored over the years have tended to be people with a lot of raw analytical ability. And, again, everybody has their own preferences, but that's one that I personally look for.

43So, number one, you can't really measure raw analytical ability. We're not at the point, and maybe as a matter of equity in hiring we should be at the point, but we're not at the point where we give people tests in interviews. But what I try and do, is I try and engage people in a discussion about some thing. It doesn't matter what it is. It doesn't have to be legal in nature. Something that interests them, something that they're passionate about, and just ask questions that tries to measure their analytical ability, their interest in the world around them, and that's what I personally do.

44And then, in a big firm environment, we're pretty lucky, because the pre-screening that takes place with transcripts and with resumes, most of the people that walk in the door, you're choosing from a pretty great selection of students. So... But I personally, I engage people in a discussion about something, and just try and push them a little bit to understand how far they want to take it.

45Again, everybody's practice is different, right? And everybody's preferences are different. I've interviewed with people who've said to me, "Oh, this person played a lot of team sports. That's great. That's a great sign. It means that they're a real team player." And I'm like, I never played a team sport in my life. I'm hopelessly uncoordinated. And I've always thought, geez, if you're looking for team sports you're just looking for a jock.

46But everyone's got their own preferences, and that's why we do these things, to be honest, as a group. Because, number one, equity in hiring is in the last 10 years become incredibly important, for good reason. And you have to make sure you're not just hiring yourself, which everybody is tempted to do.

47And number two, if you let one person make these decisions, you're just going to get one kind of candidate. And in a firm like ours, where we're hiring maybe 20 students in a year, we want a broad diversity of skillsets and a broad diversity of people. I know that the people I'm drawn to are the people that really like to pick apart a problem, just keeping pulling at the threads and pulling at the threads and pulling at the threads until they've satisfactorily solved the problem. Because that's how I practice. I keep pulling at the threads, and... Often, that's a great way to practice, and sometimes it results in me writing off a bunch of time.

49Sure. I walked into law school and one of the first people I encountered was the smartest woman in my high school class. She had been a brilliant student all through high school. She had gone on to an ivy league school in the U.S. and then come back to U of T Law. And so I wondered. I wondered. Everyone knew that law school was the time that you jam a bunch of A students together and give them all B's. So I wondered, how was this all going to shake out?

50U of T, this was back in the era when U of T had fake exams at Christmas, and your entire year was basically dictated by six exams that you wrote in April. And I had written my exams. I thought they went fine. My fake exams, I thought they went fine. I studied hard, I was already a diligent student in law school.

51It's amazing to think about this, but of course nobody had a laptop, or there was one guy with a laptop and everybody thought he was kind of weird. He was called Laptop Guy. And so I used to take notes, and then I used to go home and kind of type up my notes in my enormous, I believe it was a 386-chip PC with a monitor with a tube that probably was 17 inches across and 25 inches deep. And I used to sit in my parents' attic, which is where we kept the household computer, because of course there was only one computer in the household, and type up my notes. And that would kind of be my summary. And then, before the exams, I tried to sort of integrate those summaries into what I called short summaries, which were a more, I would say, analytical approach to what these cases were about.

52So it wasn't just a description of the case, it was like, what are we trying to get out of these cases, and how do these rules fit together? Somebody had given me somebody's four-page guide to federalism, and I sort of tried to replicate that idea with a bunch of different cases.

53So I wrote my exams, and I thought they went fine, and I had the same reaction as every other law student, which was basically, I'm glad these exams are fake, because they aren't really like anything that I had written before. And we'll kind of continue on. And I had prepared myself for a bunch of B's. And then I got a phone call from the late Joan Lax, who was the dean of students at the time, before she became a judge and obviously she passed away a few years ago, which was a real tragedy. And I got this call from Joan Lax, who I had known before law school.

54When I was a kid, I got sent to Hebrew school on Sundays to learn a little religion and a little Hebrew so I could have a bar mitzvah, and I was in a carpool with a few families and Joan was one of them. So I knew Joan, and Joan knew me. And she's a first cousin to my mom's best friend and, you know, a whole thing. So, Joan called me up and was like, "Andrew, you aced your exams." And I was like, "Well, that's really nice." And she's like, "No, no. Andrew, you aced your exams. We don't see marks like this." And I was like, holy shit. I had no idea. I didn't tell anybody about this because, of course, nobody wants to be the guy who aces their Christmas exams and then falls back into the pack in the middle after your final exams. So I just kind of kept this to myself. Except I did apply for a few summer jobs on the basis of those marks.

55Didn't get any law firm jobs on the basis of those marks, but Professor Trebilcock hired me as his RA, which I enjoyed. Went and wrote my exams at Christmas and, by and large, duplicated my results. So, I couldn't tell anyone how to do better on a law school exam because it's always felt like luck that I happened to have the right kind of brain that works for law exams. It's never felt like anything other than, I work hard and I encourage all law students to work hard, but it's never felt like anything but by and large luck.

56And back in the day, U of T was not shy about publicizing who did well, okay? So, with your grades, you would get a package this thick of awards listings. And they were listed in a way so that you could tell kind of who were first to eleventh in your law school class, and then who had won prizes and particular awards. And the person who was second in my first-year class, she was a mom of two kids, and I remember her telling me before the exam, "I don't have a lot of time to study. I've got to take care of my kids." And so I often think, she must've been the smartest person in our law school class, right? Because there I was, 24 years old, nothing but my own self to think about. I was even living with my parents, so my mom made us dinner every night. It was a very cushy life that I lived in first-year law. And there was my classmate, Miriam, who had two kids to manage and barely had time to study, and there she was coming second in the class.

57So, anyway, there's a whole bunch of factors. I think a lot of it is just, does your brain work a particular way? And then there's a whole bunch, I think, of socioeconomic factors, right? Are you lucky enough to be comfortable, not worried about where your next meal is coming from? Do you have to work 20 hours a week to support yourself? All of those things, I think, hurt people's marks. And I know that when we screen for grades at the firm level, we're certainly looking for reasons why people may not have done as well as some of their peers. Because grades aren't everything. They tell a story, but they don't tell the whole story.

59Yeah, he was the carpool member with me.

61Yeah, yeah. [crosstalk 00:32:01] I haven't seen John Lax in, I think, since his mom's shiva, unfortunately. And I hadn't seen him for 20 years before that, but yeah, we were all in a carpool together.

63Is that right?

65Oh, wow. He was always a nice guy, and obviously I run into Cliff from time to time. He's a nice guy. Very sad for all of them that their mom died so young.

67John Lax?

69Well, if you believe in genetics, that's no surprise.

71So, the person I replaced, basically the way it works is you show up at the Supreme Court and you show up a day or two before your replacement leaves. And what you do for a day or two is you share a desk with them as they kind of show you the ropes. Or this is at least what happened in 1997. I have no idea what happens now. So they kind of show you the ropes, explain to you what your judge might want.

72And the guy who I replaced said to me, "Oh, you'll see how sausage is made." I loved my year at the Supreme Court of Canada. Chief Justice Lamer was at the end of his career and was not as engaged as some other judges with the clerks. But when he did engage with us, it was always a treat. He was brilliant. And I think, at the end he was a bit of a controversial figure, but in fact I think he retained his brilliance throughout. I think he was a real inspiration to a lot of aspects of Canadian criminal law.

73And then I got there, and Delgamuukw had been heard but hadn't been decided yet. And obviously, that's all kind of inside baseball, but I can say that he was extremely passionate about indigenous issues. Which were then called aboriginal law back then. But he was extremely, extremely passionate about these issues. And I had never spent five minutes thinking about them. They were not mandatory. I don't think we learned them in constitutional law. I think Jim Phillips taught us a little bit about aboriginal title in property law, to his credit. And so, it was inspiring to work with somebody who was, I think, maybe just a little bit ahead of his time on the importance of these issues. And also just so interested in criminal law.

74The thing that happened the year that I was there that got more attention than anything else was the Quebec Secession Reference. Being at the Supreme Court of Canada for the Quebec Secession Reference, that's a treat, right? That's a treat. And the attorney general of Saskatchewan, who I think was called White, I think his name was John White, but I may be misremembering this, stood up and said, "A thousand acts of accommodation are the threads that weave together the fabric of a nation." And I am waiting to deliver, sometime in my career, a line that eloquent on an issue that consequential. Because it stuck with me. I mean, it stuck with me. And I think a thousand acts of accommodation are probably the threads that weave together the fabric of all things. And certainly if you've been married, as I have for almost 25 years, you know that they're the threads that weave together the fabric of a family. And I thought that that was so inspirational.

75But the real highlight of my clerking year is my clerking class. There were probably 32 or 33 of us, because people came and went in January of it. Most of us started in the summer. But people came and went in January a little bit. And out of the 32 of us, 30 of us are still in touch with one another. And it's love when we see each other. I don't see them as often as I'd like to, but they are some of my favorite people in the world are the people from my clerking class. A couple of them are judges in Alberta now, some of them are QC's in provinces that still have QC's, some of them are at the top levels of government. One of them's currently, Stephane Perrault, the chief electoral officer of Canada, and I had to help one of my colleagues, advise one of my colleagues when she sued him last year for putting the election on a Jewish holiday.

76But they are just a wonderful group of people from around the country. It's a privilege to work in the Supreme Court. It's a privilege to work for a judge of the Supreme Court. It's a particular privilege to work for the chief justice. And I got to know his executive legal officer, James O'Reilly, who's now a judge of the federal court, very, very well. But the best part of the whole year was the group of people, and I hope some of them are watching, because I just love them.

7899. Back in the day, we would finish articles in the summer. We'd do Bar admission in the fall and get called January or February. So.

80So, it will be... I finished 22 years minus one for Berkeley. So, 21 years of practice and one year of grad school.

82I did. So I got married between second- and third-year law school, and we moved in together, of course, having been married, for third-year. And my wife had a job that she liked, it was a good job, but I think we had thought that after... And she didn't want to give up her job, and she didn't want to move to Ottawa where she didn't really have anything on. So we did the commuting thing for a year. And I think she had thought, you know what, her job, she liked it, she didn't love it. But she thought maybe that after my Supreme Court clerkship we would go to grad school and we would both do grad school together. And what happened in the middle of the year was that the firm that she had been working for dissolved, and the partner that she really loved working for, this isn't a law firm, this is a corporate communications firm, joined a bigger firm. And I think, to this day probably, her favorite job ever was the job that she had at that new firm.

83And so, she joined them in November. I remember because we went to their Christmas party. I came home from Ottawa to go to the firm Christmas party and meet her new colleagues. And she loved that job and she didn't want to leave it to go off to grad school. And so I was like, "Oh, great. I love Torys." And I wanted to go back there anyway. So I did. I went back to Torys and started practicing.

85So it's varied dramatically over the years. It's varied from, in the early years it was probably a quarter. There were some years in the early part of the last decade, 2009, 10, 11, where it was probably 80 percent, 90 percent sometimes. And now it's kind of settled into about half, about half. If you count the copyright, the patent, and the trademark, it's about half. And the other half is commercial litigation and public law. So...

87I've joked that it should count for business method patents, but...

89Exactly. Exactly. I got into IP very sideways. I started at Torys in 99, and the very first case I got involved in was a case called Thomson and Robertson, which I got involved in because my junior mentor was a guy named Dave Folds, and he was involved in the case. And he said, "Hey, we need a junior. Do you want to be the junior?" And I was like, "Yeah, I want to be the junior. It sounds like a great case." So it had just been certified as a class action, and all of a sudden I was doing copyright law.

90The other thing is that I'd always had a bit of an interest in technology. I'm not a technology person myself. I couldn't code my way out of a paper bag. Unless it was in basic. But I've always had a sort of interest in the intersection of law and technology. And so, if you're practicing in 1999, so Al Gore has only recently invented the internet, right? And all of a sudden there were all of these issues going on, all of these legal issues, that had to do with the intersection of law and technology. I wrote an article about how ISPs should react when people ask for user information. Caught the attention of a couple of in-house lawyers at Rogers, and kind of became a law and technology lawyer, which in turn had me working with our technology group, which at the time did two things. It did kind of outsourcing agreements and things like that. And it also worked for small tech companies.

91And so, I found myself practicing a lot of IP law. And I didn't know anything about IP law. Like, nothing. I had not taken IP in law school. There was no survey course, or maybe it was taught by a visiting prof or something. But, I had not taken a single course in law school. But there I was, an IP lawyer, because what we were doing at the time was mostly copyright and trademark. Then, Torys decided that they wanted to get into patent law, and so they hired Andy Shaughnessy, who's been a longtime friend, partner, mentor of mine. And Andy and I started working a little bit together, but at the time the view was, oh, people with a scientific background are important.

92I went off to grad school. Andy and Sheila Block won a huge case for Pfizer. And by the time I got back, we were getting a steady dose of work from [inaudible 00:44:56] a witness. Like, what are we going to do when we get there? He was like, "We're going to meet this witness. And we're going to talk to him about this patent. And we're going to have barbecue." And so, we went, we went, and that was kind of the beginning of my career. And then, all of a sudden, I was thrust into this world of patent law that I had previously known nothing about. Less than nothing about. Everything I knew was what I learned in grad school the year before.

93So, I had been practicing, practicing, practicing. I went off to grad school. My wife and I kind of thought that we had found the right time to do this. And so we had a one-year-old at the time, so we went. She mostly took care of Josh. I mostly went to school. Although, LLM life is fairly leisurely, so I also go to spend a lot of time with Josh. And came back to Torys into the, didn't want to give up the rest of my practice but was very enthusiastic about the IP practice. And so, as that practice got busier and busier and busier and busier, more and more of my time went into IP. It's still a great practice and we still do lots of work, but it's not as crazy as it was in the early 2010s. And so my practice has adjusted accordingly.

95Sure.

97[inaudible 00:47:38] best.

99[inaudible 00:47:51]

101My pleasure. Thank you for having me. It's been really fun talking to you.