Barry Glaspell

220 years.

4Right, I have no idea. Not really. It may be just partly just the background and how you're brought up and a way of approaching a problem. But no, I don't really— that was Marcus Kramer. I really don't know. You'd have to ask Marcus for his view on that. I worked with them for years on class action. So

6So I'm from Oshawa, and I was raised on a dairy farm. My dad had about— we milked about 80 cows, Holsteins. Then we had sheep, and we grew apples, potatoes. I had— we had chickens, rabbits, that sort of thing. So it was a mixed dairy farm and quite a bit of work. So that was how I was brought up. So it was outside Oshawa, it was really just on the border of Oshawa and on the north side of Oshawa.

8I was definitely not from Toronto. I was barely from Oshawa, but I did go to high school in Oshawa, and I guess senior public school, but I was brought up on a farm. So Oshawa, particularly that time, was a GM city. City for sure, and still is to some degree, but it's more diversified now, and it's obviously changed quite a bit.

10Well, when I went to university, and so basically once I'd done university, I guess that's when I would have left the farm. I was still going back on the weekends and in the summer, but it's going to university. And I had two older brothers, and they were both on the farm, so there was kind of limited space as well, I suppose.

12Not, not really. I, I love the farm and so, so no, there was no particular dream of of leaving the farm. It's a lot of work for sure. But I had a very close connection with the farm.

14Yes, I went to, I went to U of T did commerce and that was like in high school I kind of did accounting and math and sciences, so I decided to go into commerce and I did become—

16Yeah, I just, I enjoyed it. So I did accounting in high school. I actually loved accounting. And so when I went in the BCom, I did accounting theory. I was just really interested in that. I worked one summer at Coopers & Lybrand, I guess between third and fourth year, and kind of my trajectory was to go into, into the auditing program and to become a chartered accountant, what they called a chartered accountant at that time.

18Not really, no. And even after law school, but before law school Before law school, so when I finished the commerce program, I was looking at doing an MBA in the States, but I didn't get accepted into kind of the what I viewed as the premier programs, or they give acceptance with defer, like a deferral. And so I was doing, looking at MBAs, and then I also was, then I looked at law. And so basically I wrote the last LSAT in my fourth year, and then I did go to law school.

20Went to U of T. I was looking between Osgoode and U of T. Osgoode was offering at that time money to go, and so that was nice, but in the end I decided to go to U of T.

22Yeah, I don't know. So you— I guess you— I guess you already appreciate that neither my father nor my mother went to university. Like, my father didn't finish high school. He, he for crop reasons, he couldn't finish high school. So there was— I didn't have any pressure to do— I didn't have any pressure actually to do anything. I was kind of making my own decisions. I didn't have this helicopter parent saying you should do this or that. I guess I was just deciding along the way what seemed to be the most attractive thing. I really just went to U of T because people were saying at that time that that was the place to go.

23That— and so, so I was just following advice, I'd say, along the way from others. At law school, you know, you kind of jumped ahead to doing the clerkship, but the— at law school I did well, and, and then so things kind of lead from one thing to another, I guess.

25Yeah, LLM squared. Yeah, so so I did— went to Harvard first, and I was in the same class as as Justice Myers, who you interviewed, and, and so I, I met him there. Harvard, as Justice Myers says, a great experience. When I— and I was doing constitutional law essentially there, US constitutional law. I developed an interest in doing public international law, and so I got funding to do a PhD at Cambridge. Basically, I was heading off to Cambridge the following year to do 3 years. And but I was at the same time I was in my 9th year of university and I was getting a bit drained, I suppose, of university. So I did convert.

26I didn't do the PhD at Cambridge and I just did a single year. So that's how I ended up doing an LL— like the 2 LLMs. I did it in public international law. So that was just an incredible experience at Cambridge. And so that's how I ended up doing two LLMs. While I was at Cambridge, that was when I— and having decided I wasn't going to finish the PhD or do a PhD, I was then able to get a clerking job with Justice Estey at that time. So then having Got that job. I then traveled for a year because having been brought up on the farm, like, we didn't go anywhere. We just worked all the time.

27And you have to picture, we get it, we started we milked the cows before we go to school. We milk the cows and clean the barn after school. We worked all the time on the weekends. And so I had this— by this point I had a kind of a— you're talking about dreams, I had a travel dream. I did not have a dream about being a lawyer. Some people want to become a judge, you want to be a lawyer, but my dream was to travel because I hadn't been at really very many places. And so I took a year to travel at that point and I went to Asia and Africa and so that was a great experience.

28And then I came back and did the clerkship with Justice Estey. And

30Well, there's similarities, I suppose, in terms of the discipline that you need and the rigor. I went to what was then Borden& which became BLG because of Dennis O'Connor, and who then later became the Associate Chief Justice, as you know. And so I had the privilege to work with Dennis and his group for 7 or 8 years. Dennis was doing general counsel work. He was the go-to person, go-to litigator for almost any significant litigation issue. And so that was a great experience, and that's how I ended up at, at Borden Elliott, or BLG. As part of that, I started to do, be involved in class actions, but the other thing I did was I was in, it was also in the health law group, and so I was doing defending medical malpractice claims.

31And so These two kind of gelled together, and basically I ended up defending hospitals in class actions. Like, that was a huge part of my practice ultimately.

33There— no, there, there were a few lawyers who had not clerked, but it was it was a great group of people, mostly mostly Obviously, we were clerks, a lot of us were clerks, and now a lot of the group have become judges. But it was a great group to work with.

36Okay yeah, I don't think there's a single— I do agree with everything you're saying. I don't think there's a single answer. I, I do believe that people can start on their own and become great lawyers. And they find the mentoring in other ways. They do things like you're doing. There's different ways of doing it. We had an elite experience. This is what you went back to at the beginning. How did a guy from a farm end up with this elite experience? And I'm not quite sure myself. So we definitely had that, but I think others can, get— have the similar types of experience, or you don't have to be in these big firms to have great experiences for sure.

37Did we have an advantage? Sure, but for sure, and I think whether it was Justice Myers or others, the mentoring is crucial, and people have to seek out help. They have to talk through their problems. It's— and I, like, I still seek mentoring myself because I'm now on my own. You get into difficult problems quickly and you need help. I'll give an example. I'll give an example. In my first year of practice, I was in my office talking to a lawyer on the other side, and after the phone call, the lawyer on the other side, who was like a 30-year lawyer, like somebody like me now, writes me a letter and says all the things we just agreed to on the phone call.

38And I was like, wow, I'm shocked because we never agreed to anything. Like, I— and so it's now I got this letter saying what I had agreed to a first year, like in my first or second year month of work, and all this nonsense that we had not agreed to. And so literally I had to take that, and luckily I had somebody at the time, it was Bill Carter, the senior litigator go, this is what just happened to me, right? And if you're on your own and somebody's doing that, and people, there's so much crap that people do. And so, so in a big firm you get the support like that, and then Bill had to dig it out, and, and in the end it wasn't a problem.

39But anyway, it's, it's just an example of where you need help all the time. Like, it's a very litig— well, so we're litigators, and litigation is tough. It can be really tough. It's not just from the other side. It can be people competing with you for similar work. It can be very stressful, so you need a support network, and if for staying in large firms like I did for so long, you know you have a huge support network. The people in the firm are your friends. Mostly, and you just have a great experience. If you're on your own, you don't have that, so you have to build it somehow. And you know, you're meeting people through these interviews, I guess, you, you, and, and through other ways.

40Like, you could tell from these interviews that you've done that you, you, you're very multifaceted in how you reach out and, and learn and from people. So that was handed to me on a platter. Colette, I agree with that. It's totally handed And working with Dennis O'Connor, like, that's a dream, right? So, but you, if you don't have that, you just have to make it for yourself and like you're doing, or like a lot of incredible people coming to law school and they have different resources now than what we would have had in the '80s. So, like, we obviously we didn't have the internet at that point.

42So I agree with you, things are totally different now, but people can have to do similar things. I still, I do mentor other people as well still. I'm a mentor for New College for people, prospective people going into law school. I've done that for many years. And so yeah, it works both ways, but even at my stage, you still need help. You still need help sometimes. And so like, obviously I could call up just about anybody and get help. But anyway,

44Yeah, the well, I've done 5 years now, but yeah the— I do the older you get, you get more and more personal litigation issues, and whether it's estate issues or house issues or property issues, but you get more issues so that I try to litigate them myself to some degree, but often you need help. So that's one area where you say, well, this is happening, and I think you're doing such and such, what do you think? Right? And The, the, there's endless areas, like, you know yourself how difficult it is to, to, to just file materials. Like, I actually have pretty good knowledge of stuff like that, but how to get a motion scheduled and basic things could just be such a pain.

45So anyway, there's definitely areas where you need help or just moral support from time to time.

47Thank you.

49Not at all, not at all. Class actions may be one of the easier areas because we have a very collegial expert bar And we have an expert judiciary with excellent judges. We have like support teams, conferences. And there's— so there's tremendous support for class actions. They are not difficult, really. And it's, it's a great atmosphere generally. So I have done enough other litigation to know the answer to your question. The toughest area probably is, is leaving aside criminal, which I've never done, is injunction type of work where there's really serious issue that needs to be dealt with now. And, and, but there are lots of tough areas, commercial, any kind of commercial litigation. If you've got a tough, tough opponent who's not acting reasonably, which is often the case so no, class actions is, is a, is a wonderful area to work in on both sides.

50It's quite complete. I do defense work. I still do defense work. I've always done more or less all defense work, and so it's a completely different practice on the plaintiff side. But obviously we have excellent relations, or at least I do, or perceive that I do, with plaintiffs, with all plaintiffs' counsel across the country. But it, yeah, it's a very nice area too, and a comfortable area to work in. My practice has shifted, Pulat, because like since I left BLG I've, I'm now working with other teams of lawyers, like I still work with teams of lawyers, but the teams are either at BLG or at another firm. I'm doing a lot more consulting work on class actions.

51So the strategy kind of work. I'm involved in class actions where I'm not counsel of record in any way, but have a pivotal role, I would say, in the class action.

53Probably, yes. Like, for, for me to enter it, it needed the— we had the institutional clients and you get you— so that you get repeat work. And that's how I ended up doing the hospital defense because through, through a reciprocal. So, so I've been counsel for years to HIROC which is a health insurance reciprocal, and through that we, we get work defending hospitals. On class actions. It's incredible work, great client and really interesting, a lot of times policy-oriented work. How do you get into that kind of defense, like really unbelievable work with— starting on your own? I, I don't know how you could do it. Now, there are some people developing niche areas where they have a niche expertise, and I could I can't imagine whether it's in cryptocurrency or some new topic where I think people, in theory, you could develop an expertise and then you will get retained, but it would be hard.

54I definitely came at this from institutional clients, whether it's the banks, the pharma companies, or the hospital defense. I did a lot of pension class actions, for example. Example. Like, am I really— act for the Bank of Canada? Am I going to act for the Bank of Canada if I'm a sole practitioner? No way, right? Like, realistically. So, so I think the answer to your question— I don't really remember what the question was, but I think it was probably not that. Yeah, but, but it would be very hard to do it.

56Well, a lot of class action defense is insurance defense and so in defending class— the one thing that I should have learned a lot more at law school was insurance law, first of all. But whether you're doing litigation generally or class actions in particular, you are worried about insurance issues all the time. And it affects the defense. And so you've got the class action going on, and then you've got how you're dealing with the insurers. You may have to report to insurers. So there's a whole insurance angle to all of the work that I have ever done and continue to do. What was the question? Whether it's different?

58There's lots of parallels because, because it a lot of times in a class action, the only money you're going to have to pay a claim is from the insurer. Like, so you may have a bankrupt client and, and the money may be coming from the insurer. And so there are definitely parallels.

60Mostly the US. There's a good solid class action practice in Australia and a kind of a developing practice in England, but the US dominates. And as you say, basically the claims largely originate in the US and then copycat claims are issued in Canada. So it really can kind of split out class actions in Canada. There's a huge portion, probably half, let's just say half to start by default, that are purely copying what happened in the US. You will get verbatim pleadings of claims from the US that don't even exist in Canada, at least at the moment. And particularly claims that have been settled in the US, because if defendant has settled in the US, odds are plaintiff counsel believe they're going to pay something in Canada.

61It's a pretty good business model to follow. There are, in addition, there are homegrown Canadian class actions, are examples. Sometimes they are province-specific. And so my hospital work, for example, was usually not international. I've been involved in lots of cross-border class actions, but the hospital work, as an example, is an example of a local— you may have what we call a bad doctor in a hospital and doing the wrong thing over and over again, and so that leads to a class action against the hospital. That's a local issue. Quite different questions come up in those cases from the the U.S.-style parrot or copycat claims.

64Right. So there are a number of interesting aspects there. The first thing is that Justice Myers, I think he was initially going to be the trial judge, and then something happened, and then he ended up being a pretrial, or he was going to be the judge leading up up to the trial. And he basically appears to have settled this case at a pretrial conference. And so one of the issues— and then he's the approval judge. So one of the issues he wrestles with is whether he, as the kind of mediation judge, so to speak, should also be the approval judge. And he concludes that that's fine for him to do that. So I don't have a problem with that.

65A second big issue, and the main issue in that case on settlement approval, is whether you get a kind of flat contingent fee of 30% on recovery. So they claim $4 billion, and they got $150 million or whatever, which was—

67$125. And they wanted 30%. So that's how they got, I guess, the 37.5%. And so there's a theory out there that if you— once you go over certain thresholds, you're $10 million or $50 million, your percentage should go down and you shouldn't get 30%. Particularly, this case was going up as close to trial, like they'd been going on for 12 years or so. Anyway, he decided that they could get the 30%. He toyed with the idea of whether it should be reduced in some form, and then he kind of said, well, it's trivial because if I reduce it, it's still this amount. There's no principle basis to reduce it from 30%. So there's actually a divide between our class action specialist judges on this point.

68Because Justice Belobaba has released decisions kind of more doing the tiering approach. There's no right or wrong, but this is interesting because Justice Myers, as you brought out in your interview, has a tremendous litigation background. He was at Goodman's, so he's a very knowledgeable judge. Maybe he's not a class action judge, but he's not a He's an expert judge coming at this. And so it's kind of a big deal for the Class Action Bar, and that's the only reason I put the tweet out, that to get 30% on $125 million or whatever the final amount is. There is a question in my mind about how much money is actually going to the class in that case.

69There's always an issue about what the recovery is going to be for the shareholders and how you actually find these shareholders at this point in time. There's all kinds of issues on this kind of litigation. And so how that ties into the fee issue is some judges say you should really look at what the real recovery for the class is after the fact, after this claims process has been completed, before you really decide how much class counsel should get. Anyway, it's a great decision for plaintiff's counsel the— and, and whether, whether it will ultimately be followed like, this is— I think this is done. I should say I have nothing to do with this case whatsoever but it's an issue the Court of Appeal will ultimately have to wrestle with.

70I have to say that for a long time in other provinces from, from really including Newfoundland, Labrador, for example they have applied a similar approach. So even if it's a big amount, they would give the 30% is pretty standard. So it's, it's a well-reasoned careful, thoughtful decision from Justice Myers and, and as you say, anybody interested in class actions should would be want to read that.

72Well, so it's a multiplier or a And so the 4 times dockets is just what dockets they've kept over the years. The problem with dockets for class counsel on the plaintiff side is that their dockets are not paid. And so as defense counsel, we dock it, we bill, it gets paid, we can show the client actually paid that amount, and maybe it was a discount, maybe a discounted amount, but you could show exactly what was paid by the client over a long period of time. The dockets of plaintiff counsel don't have the same discipline, let's put it that way. And so over 12 years, they had docketed time. You've got the decision obviously in front of you.

73I don't, but they had 15,000 hours or so. They recorded some 10, like 10 or 15,000 hours, I believe. And then they multiply that by their rates to come up with a docketed time. And then they say that we shouldn't get more than 4 times this that in the US they do apply kind of a dual approach where they look at the docketed time And generally they have a multiplier of 2 to 3 times the docket at a time. The theory is this, Pulat, that if you take a bunch of cases as class counsel, half of them are going to fail. Half of them you're going to get nothing. So the other half, you better get at least twice your docket at a time.

74And so and on the theory that class counsel only take cases that have a better than 50% chance of winning, for example. The 4 times docket would be to set a cap. You shouldn't have more than that. In our practice, the docketed time, it's sometimes looked at, but not very carefully. Honestly, looking more at a contingent fee and kind of There have been examples where judges have tried to reduce it.

78Yeah, I don't like the scorched earth approach. And this is a very difficult area, Pulat. There's a lot of different ways of practicing. And some lawyers, class action lawyers, develop a reputation of essentially being a scorched earth counsel. And so if you have that reputation, does it mean you're more likely to get retained or less likely to get retained? You know, you do develop it, and so the institutions know these lawyers, plaintiffs' counsel know them. It dramatically increases the cost of defense. When we started with class actions, I was really at the beginning of time with class actions, right at the start. It was never even remotely contemplated that a certification motion would cost $1 million or more to defend.

79And it just wasn't, it wouldn't have been in anybody's mind whatsoever. And so, There's a lot of ways of approaching your question, but I'm very troubled by some behavior by some defense counsel and it's extremely hard for the judges to even know what's going on and to rein in. You could ask plaintiff's counsel and they'll tell you who the who these people are, but it, it can have a self-serving effect. So if you are a particular institution and you— some people will look for these lawyers and will only hire them. And, and so is it in the interest of justice? Not at all. So going back to the Going back to the particular case, and again, I don't— I'm not involved in the case, never been involved in the case, but I know the firm Rochon Genova who run it.

80It was always a small firm, like that's not a big firm, and how they had the resources to run that case is beyond me. I— and, and so when I left BLG, I thought about doing plaintiff class actions, and I would not think of taking on a case like that. So they did take on a case that required extraordinary resources against a bank which is known to defend with vigor, let's put it that way. And so, and there's a discussion in Justice Myers' decision about how that was putting the firm at risk. They usually don't want to talk about that, but I have no doubt about that, that that firm was constantly looking at the risk of this single case, like a single case to the firm.

81And so, so nobody— like, people want to be more diversified in the risk. These class action firms want to have at least 10 or 15 or 20 cases running so they diversify the risk. So no, it's a serious problem to be faced with scorched earth defense.

83No, no, not at all. So they introduced superiority and predominance as requirements for to advance a class action. This knocks out the personal injury product liability cases, brings it in harmony with U.S. more. So, and I'm in favor of class actions. I think they do a lot of good, generally speaking. There's some abuse, but generally class actions are a good thing. And these amendments have brought us out of harmony with other provinces, particularly BC. So since the amendments came in in October of 2020, The claims in Ontario have fallen and claims in BC are skyrocketing. People are moving to the degree you have claims like you talked about with the transnational or at least national claims, you're going to run it under BC where they have a no-cost regime and you don't face this cost exposure, the Rochon Genova.

84Had. So there were a number of submissions made to reach the result that the government did, but basically Ontario is out of whack with the rest of the country. This is not a popular view amongst defence counsel, but I've never been of the view that Ontario should be a cost regime. I don't see how practically a plaintiff with a small claim can be faced with the cost exposure, and it's ended up creating endless artifices where the class counsel have to take on the risk or it has to be sent over to the fund. In the case you mentioned, the fund actually, the Class Proceedings Fund, did actually, did eventually provide funding and some liability exposure protection.

85But anyway, I would be in favor of a no-cost regime in Ontario and really across the country. Most provinces have no cost or have cost levels that are are really irrelevant, like their tariff costs. And so that the major impediment to class actions in Ontario is the cost regime, because we are faced with the cost, and like, what crazy plaintiff wants to advance a claim? Like, you have to be— you— it makes no sense. There's an irrationality in, in having a cost regime. So They didn't change the cost regime, obviously, and they've made it more difficult to certify the personal injury cases. It probably hasn't had any impact on economic loss cases and securities cases, little to no impact.

86So if the question is, does Glaspell favor that? No, I would favor something closer to BC, and there may need to be balancing mechanisms to not have abuse. But anyway, if you have a cost regime, then the defense, you're going to get some defense counsel are going to run up the costs as a way of discouraging claims. I mean, it's a known thing that if you settle a class action, you're more likely to get sued again, right? So the defense, the defendant who settles early and easy gets sued again. And so there's always a balancing on the class, on the defense side of whether you settle or you spend money to defend.

88Okay, thank you very much. Okay.