Earl Cherniak

2I practice law. I'm still practicing law.

4And I got to correct you. This is my 62nd year.

6Pulat, I was called to the bar in 1960. 2022 is 62 years.

9You know, I know what you mean by an imposter syndrome. And I've often thought that some of the young lawyers and partners in my firm have the imposter syndrome because it's easy, especially when you're a young lawyer, to think that, you know, I did well in this case. 'But nobody's ever going to hire me again because it can never happen again. I had a pretty good year, but it can't happen again.' You know, I never had that. I always had a pretty good idea where I was going and how I was going to get there. But I know that some lawyers, some lawyers, and maybe even some, maybe more female lawyers have that. They don't believe that their next that they know where their next retainer is going to come from.

10And I tell people, you know, you're a good lawyer, word gets around, it'll come.

12Windsor, Ontario. And it's interesting, yeah, I live in Toronto, but I was born and brought up in Windsor. And people to this day, when people ask me where I'm from, I say I'm from Windsor. I'm a southwestern Ontario kid. I live in Toronto.

14Well, I, of course, I kid the people in my firm and elsewhere in the profession that were born in Toronto, who grew up thinking that Toronto is the center of the universe. Those of us from the sticks, from Western Ontario or elsewhere in Ontario, never occurred to us before or after, before when we lived in Toronto, that Toronto was the center of the universe. You know, I think growing up in a small town, and I was a young Jewish kid with a small Jewish community in Windsor in those days was about 100,000 people. I think I had life experiences as a kid that helped me in my career. Now, you know, there's a lot of lawyers, men and women who were born in Toronto who were pretty good lawyers.

15And so I'm not sure how much difference it made where I was born, but you know, everybody is a product of their life experiences. If you've read Marie Henein's book, you can certainly get that impression.

17No, I'm second generation. My parents were both born in Canada. My father was born in Windsor. My mother was born in Montreal.

19No. My father was a businessman. He went into his— somehow I lost my picture.

21Sorry.

23Okay, sorry. My father was a businessman. He was a retailer. He went into business with his father, who started out as an immigrant peddler and eventually started a store that became Cherniak and Company in Windsor. My father went into that business, as did his brother, and my father eventually ended up as a menswear retailer in a company called Stuart Clothes Limited.

25Both sets of grandparents came from, came from the Belarus, part of Russia, now Belarus area. My paternal grandparents emigrated before, before, before 1900 in the 1890s, and my my maternal grandparents came to Montreal in the early 1900s.

27No, never. You know, the pressure I had, to the extent there was pressure, my father very much wanted me to follow him into his business and expand it and make it even a bigger operation than it was. So to the extent there was pressure, And really there was no pressure. I know what my father wanted, but, you know, I started working in the business when I was a kid, summers and nights and weekends and the Christmas holidays, and I realized early in the game it wasn't for me.

29Well, I went to public high school in Windsor. I went to university in Windsor and at the University of Western Ontario. Following my graduation from Western in 1956, I entered Osgoode Hall. I was in the last class that didn't have to take the bar admission course. We had a 4-year course with articling after the second year. And in 1960, June of 1960, I was called to the bar. And from May of 1960 to May of 1961, I clerked for Chief Justice McRuer, who was the Chief Justice of what was then called the High Court. Now the Superior Court in Ontario.

31I articled with the same firm that I'm with now, Lerners. At that time, there was about 5 lawyers, and I was the 6th lawyer when I ultimately joined the firm as a lawyer in 1961. But I came back to London to article, and I articled with a small firm called Kaplan and Titullis in Toronto when I came back for my fourth year in Toronto. So I articled with small firms and I'm still with the Lerner firm. It's a little bigger now than it was then.

33I, I, I article with Lerners starting in 1958, so I guess that makes it 64 years.

35No.

37I, I am the senior partner. My partner Janet Stewart joined us in 1969, so she's been there a long time. She was the managing partner for many years, so Janet would be the second longest serving lawyer in the firm. She still practices in the firm now.

39Well, I mean, you have to appreciate that the practice of law, the legal profession that I entered in 1960 as a lawyer, bears no relationship to the legal— with the way law is practiced today. But I said this in a convocation speech that I gave not long ago. If a lawyer practicing 60 years before I was called to the bar, say in 1900, was called to the bar in 1960. He or she, and it would have been a he because there were no shees in those days, he would have very little problem practicing in 1960 because the practice of law in 1960 was not very different. Trials were short. There was absolutely no technology.

40But a A lawyer now, I mean, the, the what lawyers have to do now in 2020 or 2022 is so different than, than the practice I entered that there's no comparison. So, you know the, what we call the Seven Sisters in 1960, the big firms that are 500 to 1,500 lawyers, a big firm in Toronto Oslers and McCarthys and Blakes was 25 lawyers. So you have to appreciate, and no women. So you have to appreciate that Lerners has simply changed with the times. Now, a lot of firms our size didn't make it. We made sure in our firm that we associated with very excellent lawyers. Who were committed to the practice of law.

41We were early adopters of hiring women and people of quality no matter what their race was. And we thrived. And eventually in the mid-1980s, I opened up a small office in Toronto as a pure litigation firm. Our London office is a It's a full-service firm, but our Toronto office is a pure litigation firm, and it's grown to 55 lawyers or so now. And we have satellite offices in Strathroy, Ontario, and Kitchener, Ontario. So, you know, it's just— but we had a philosophy of providing excellent service if people had a defensible or a prosecutable legal problem, we took it on. And we tried to get paid when we could, but we would never turn down anybody that had a good cause or good defense.

42Now, for the first 10 years of my practice, more than half my practice was criminal law. So, you know, I— we in my early years of practice, we were known as the firm for the little guy because the big guys would never hire us. Right now we're a combination. A lot of the big guys do hire us and the big girls do hire us, but we still act for the little guy. And it's still my philosophy. If somebody's got a good cause of action or good defense, we'll take it on.

45Well, you know, in the early years of my practice, our firm represented one insurance company and one insurance company only, and that was State Farm. Insurance. Their London office was in the same building that we owned and practiced in. No other insurance company would hire us. We were considered, even though less than half the lawyers in the firm were Jewish, we were considered a Jewish firm. Insurance companies didn't hire Jewish firms in those days, certainly not in London, Ontario. But, you know, but over the years, We developed a practice taking on insurance companies that eventually insurance companies said, you know, Lerner's got some pretty good lawyers. And, you know, ultimately we hired people like my partner Kirk Boggs, who does nothing but insurance defense work.

46And, you know, we got a reputation. And I developed a certain reputation as a lawyer. If you look at the cases I did in the '60s, '70s, and '80s, a lot of them were in the Court of Appeal. A lot of them were high-profile cases. I was counsel to the Moran Royal Commission investigating the Metropolitan Toronto Police. So I developed a certain reputation and a certain reputation for appeals. So just a stick pilot and Whiten, a pilot got severely and quite properly beaten up in the Whiten case because, if you want to go into it, I can talk a bit about why that happened. But they got a million-dollar punitive damage award against them for denying a $155,000 claim in a house fire alleging arson when there was no arson.

47And it was very clear in that case that their lawyers could not possibly take the appeal because The main, the principal reason that a million-dollar award was given was the misconduct of the lawyers as well as Pilot. So Pilot needed insurance, needed appellate counsel, and they hired me because I had a significant reputation doing appeal work. And that's how Lac Minerals— I didn't take the Lac Minerals trial either. But Lac Minerals lost that trial, and I guess they decided that they, they wanted experienced appeal counsel to work with their trial counsel on the appeal. I had, I had and still have a significant reputation doing appeals, and I got the call. So, you know, it, it It didn't happen by magic.

48It just happened by the kind of practice I had and the kind of reputation that I had developed. And, you know, and clients, especially sophisticated clients, they if there was ever a time that, that the clients and the major companies only used one law firm, that time was long past by the '80s. The, the sophisticated clients, whether corporate or otherwise start looking around for the best horse for the course.

50That was the only issue before the court. I mean, we didn't we didn't contest liability in that case.

52The pilot was clearly liable. The appeal was about whether the million-dollar punitive damage award could or could not stand. Majority of the Court of Appeal reduced the damages to $200,000. Pretty good judges, Finlayson and Marvin Catzman. And John Laskin issued a spirited dispute or dissent and would have justified the million-dollar award. I mean, there'd never been a punitive damage award anywhere in Canada that remotely amounted to a million dollars. $50,000, $75,000 tops, and most of them were $10,000 or $15,000. So it was pretty unusual, and Supreme Court of Canada gave leave and And Justice Binnie, with only one dissent, upheld the million-dollar award. But the interesting thing is that while Pilot Insurance lost that case, the insurance industry won the case because the criteria that Justice Binnie laid down, which is still applicable today,, it's so hard to fulfill that punitive damages awards in insurance cases or almost any other cases are very few and far between.

53So the insurance industry succeeded in limiting punitive damages awards for, for Evermore, even though Pilot Insurance lost the case.

55It was 20— it's almost 25 years ago. I mean, I, I've known John Laskin for many, many years in our litigation case against each other. It didn't surprise me that he ultimately dissented. I mean, I guess if I would have thought about it, and I can't tell you when I remember the argument, but I can't remember thinking, oh, oh, John Laskin is against me. You know, to the extent I thought anybody might be against me, it would have been Marvin Catzman. Who was one of the most sensitive human beings that I ever— he and I were exact contemporaries, and and he was one of the most sensitive and lovely human beings that I ever met.

56So I, I thought he might have been more sympathetic to the Whitens than it turned out John Laskin was.

58It was a watershed, but not for the reason that I think you mean. It was a watershed in the law of punitive damages because there are almost no punitive damages awards in Canada now. Because if you read Justice Binnie's very impressive judgment, the criteria he lays down would be fulfilled so rarely that the conduct would have to be so egregious in so many ways that punitive damages awards, certainly punitive damages awards in the range of $1 million, are very, very, very rare.

60I don't think anything Justice Binnie wrote was unintended.

62Well, it was about both. I mean, and although there was a huge record and a 55 or so day trial, ultimately the two issues were, did LAC breach a fiduciary— did it have a fiduciary duty to Corona? And did it get confidential information and misuse the confidential information? Those were the two main issues, and at trial, LAC lost on both those issues. With a five-judge court of appeal, LAC lost on both those issues. In the Supreme Court of Canada, LAC won on the fiduciary duty issue, which has been written by Justice Sopinka. but it lost on the breach of confidence and therefore the remedy issue, 3 to 2. You know, the key reasons were a one-page judgment by then Justice Lamer, later Chief Justice Lamer, who agreed with Justices McIntyre and Sopinka on fiduciary duty.

63Found that there was no fiduciary duty, but he agreed with Madam Justice Wilson and Justice La Forest on the breach of confidence issue and the remedy issue. So, you know, it was, it was an extremely disappointing result because you know, the, the deciding judgment was a 4-paragraph judgment, 2 paragraphs in our favor and 2 paragraphs against us. But, you know, but ultimately, Lac Minerals, the, the, what Lac Minerals is most usually cited for now is the fiduciary duty issue in which Lac Minerals won. Unfortunately, they lost the case. They lost the appeal and they lost the mine.

65Yeah, and that's, that's very common in my appellate practice. I mean, I certainly did, especially in the early years, I appealed the cases I lost and was in the Court of Appeals on some of the cases that I won. But in later years, the reputation I developed as an appellate lawyer, I most often was hired at the appellate stage.

67Alan Lenczner and Ron Slaght, but they were trial counsel. They were successful trial counsel as well. And, you know, I, I litigated with those guys many, many times in many, many different cases, and they, they were very formidable, formidable counsel.

69No, they're younger than me, but they're both retired.

71Well, I mean, and we were good friends. I mean, you know, I, I, I, I won't say that I, I had a perfect relationship with every lawyer that I litigated against, but I But I certainly principally, I'm not sure who's calling me, but I'll get that later. But I mainly had a very good collegial relationship with all the senior lawyers, all the lawyers, junior or senior, that I litigated with. And, you know, and Ron and Alan, were no different. They were with McCarthy's for many years before they opened up Lenczner Slaght. And so they defended the Canadian Medical— they acted for the Canadian Medical Protective Association, acted for doctors. In those days, I and my firm had many, many malpractice cases.

72So a number, certainly not all, but a number of the cases that I had with either Alan or Ron on the other side were malpractice cases. And, you know, they were hard fought, and we won some, we lost some, but, you know, I respected them. I think they respected me, and, you know, we would socialize. We were not personal friends, but We had, and I had with most of the people that I litigated with, a very collegial relationship.

74That's true. You know, I saw the growth of the firm from the time I joined in 1960 when we were 5 or 6 lawyers to where we were 17 years ago in, in 2 cities. You know, I was never— I never wanted to be the managing partner of the firm, but I always took a very significant role in partnership meetings and the future of the firm and the philosophy of, of the firm. But by the time I got to the age 65, and I was still at a very busy counsel practice. My arbitration practice was booming. I had just recently become a bencher of the law society, which I did in 1999 when I was 64, I guess.

75And that went on for 8 years, and I just had enough of partnership meetings and You know, I, I continued because I'm still with the firm and I continued to take an active role in the firm affairs. And I gave advice to my more senior partners sometimes when they asked for it and sometimes when they didn't.

77Well, okay, he started to defend, to defend Felderhof, John Felderhof, I think in 1996 or so in the Felderhof trial, which went on for 8 years, 8 or 9 years, started in 1999. So for Joe Groia, between about 1997 when he started to act with Felderhof and 2018, it was 21 years. Joe Groia retained me in 2009, May of 2009. When, not long after the Felderhof trial finally ended, when Justice Hryn, in a 600-page judgment, found Felderhof not guilty. And the Law Society, which had deferred doing anything up to that point, issued a complaint against Joe, a professional misconduct complaint against Joe, even though, even this is 2000, May 2009, even though no one had complained to the Law Society.

78And and the Law Society based its entire complaint against Joe on reasons of the Court of Appeal and of Justice Campbell in the Court of Appeal in the Felderhof judicial review cases that took place in 2003. 2004. So the boss decided to do no investigation, whatever. They didn't even have a transcript of the trial. But they charged Joe in 2009, and Joe called me up. I knew Joe. I'd litigated against him once or twice. So, but, you know, but I didn't know Joe well. We were certainly, you know, we were colleagues, but didn't have much of a relationship. But Joe called me up and certainly was the kind of case that I would take on gladly because it was so interesting and Joe was such an interesting client.

79But that case never should have gone forward because when I was a bencher, I had set up something called the administrative type review for cases just like that, which would, which if it applied to this case, would have ended up in a private hearing and a one-page summary of that hearing. And the Law Society placed conditions on it that when I was a bencher had never been mentioned. So that didn't work. So fast forward to 2018 when the Supreme Court of Canada came down with its reasons in favor of Joe, and that was the first time that Joe had won at any stage. So I was involved for 9 years, May 2009 to June 2018, and Joe was involved for about about 21 years.

80So it was a long haul, certainly one of the longest retainers that that I've ever had. But it was interesting because we, we, we tried to quash the, the complaint. We lost. We lost before the Law Society hearing panel. We lost before the appeal panel. We got leave to appeal to the divisional court. We lost. We got leave to appeal to the Court of Appeal. We lost with a dissent. And we got leave to appeal to the Supreme Court of Canada, and Joe won 6-3. So it was, it was a fascinating litigator, and I got to know Joe very, very well. We became and remained very good friends. I did my best to convince him to run for bencher because I knew, I knew he'd be a very good bencher, and he did, and he's been a bencher for 2 terms.

81So, you know, it was— and the argument in the Supreme Court of Canada was— I've argued in the Supreme Court of Canada more than 50 times, but that argument was one of the most interesting that I've ever done. And it was the first time that any of my family came down to actually see me appear in the Supreme Court of Canada, my entire family. My kids, their spouses, my grandchildren, and lots of friends came down to actually watch the appeal, and they got a show. It was one of the most watched live appeals that I can recall. It was a great meeting. Why do you think that? You know, but I mean, so I was, 2009, I was 74 years old and, you know, why wouldn't I?

82Yes,

84Well, I had Tom Currie on the other side. Tom Currie was with that firm, and Tom Currie acted for the Law Society all the way through. And I've said many times, I've told this to Tom, I thought he drank the Law Society Kool-Aid on the civility issue. And, you know, up until the Supreme Court, again, he was successful.

86Well, you know, man, we could spend the whole hour on my views of how that case went as it did. And it went to the Supreme Court of Canada because the appeal panel had decided the case and the and the Court of Appeals put decision, but Justice Cronk gave a 90— Justice Cronk gave a 90-page reasons upholding the get the picture back here. Justice Cronk wrote 90 pages upholding what the appeal panel did on the basis that what they did was reasonable and and The courts had to defer, but it took 90 pages to review the entire case to do that. And there was a 65-page dissent. So, you know, there was a difference of judicial opinion.

87So, when I went to the Supreme Court of Canada, I had to get around the standard of review because a reasonable standard review, as I'm sure you know, is very hard to upset. Because courts give deference to administrative tribunals making determinations as long as they're reasonable. And, you know, Court of Appeals in a 9-degree judgment said it was reasonable. So I came up with a bunch of several arguments as to whether they were correct. I talked about access to justice. I talked about freedom of speech. I talked about I argued independence of the judiciary, independence of the bar, the importance of resolute advocacy, and of course, I did make the submission that the decision was unreasonable.

88And ultimately, and the argument went on that basis, and if you've ever watched the fascinating argument in the Supreme Court of Canada, all those issues, all those interesting issues, independence of the judiciary, freedom of speech, and the like, they're all canvassed in the argument. But if you read the reasons, and you read the majority reasons of Justice Moldaver, he decided the case on the basis that the appeal panel's decision was unreasonable because they had found that Joe had an honest belief in the submissions that he was making. and that he didn't make them in bad faith. And, and what they found was that the legal argument that he was making, he shouldn't have made because he was wrong.

89In the Supreme Court of Canada, Justice Moldaver said that it didn't matter that the submission that he was making was wrong. We all make submissions to the court that are, that are wrong, that are not accepted. But, but the fact that he had an honest belief in good faith that in the submissions that he was making, and because the law on the particular issue was in a state of flux, he found the decision that was unreasonable, and he got 5 judges to, to agree with him. And the only judge that paid any attention to the, the legal arguments that he made about the independence of the judiciary and the way law societies shouldn't interfere with how judges conduct trials was Justice Côté, who agreed in the result.

90So, you know, it's a, it's a very complex case. I mean, it's, it's not easy to upset a 90-page judgment of the Court of Appeal where they found that the lower, that the lower tribunal was reasonable. But to get back to the first part of your question, I mean, lawyers like me lose all the time. And when we lose, we appeal. And when we win, the other side appeals. So, you know, losing is just part of it. You know, I've been practicing litigation for my entire career. I've lost a lot of cases. And I've appealed a lot of cases. And sometimes I win, sometimes I lose. So, you know, losing is just part of what we do.

92Well, I'm sure that's obviously true because every time I lose a case, I think of all the things that I should have done and all the things that I shouldn't have done, that if I'd only done them or not done them, the result would have been quite different. And sometimes I think of those things about 10 minutes after I step out of the courtroom. Every lawyer does that. The French call it the was something about the thoughts on the staircase l'escalier. But, you know, every lawyer loses, learns a lot more from the cases that you lose when you analyze why I lost them. You know, in most cases, had I done the things that I wish I'd done or not done the things I think I've done, the result probably would have been the same anyways.

93But, you know, but it never, it doesn't stop lawyers thinking that.

95there's a couple of my classmates that are still practicing law to one degree or another, and a couple of them are actually older than I am, but I don't know the answer to your question, but there can't be many other people. Still practicing law after 62 years at the bar and at my age.

97you? I mean, I work now, except for arbitrations, there's very few files that I'm fully responsible for. I work with more junior lawyers, many of them are partners, many of them are 40s, 50s, or even 60s. And some of them in my firm and some of them are in outside firms that retain me. But the most important thing, important thing, and I certainly tell all the, all the junior lawyers in our firm, this most important thing that you got is your reputation. So, you know, you can, you can hard work, you can know a lot of law, and you can do all the hard work you want, but if you don't have a reputation for probity and for ability, and you're not going to get anywhere in the practice of law, certainly not with the courts.

98So, you know, the advice that I, that I would give to young lawyers is work as hard as you can, you know, get yourself known in the profession, but remember, no client's case is worth is worth affecting your reputation.

100One thing, yes, what you said, when I was a young lawyer if I had— if I— the way the profession worked in those days, if I had a serious problem in a case, criminal case, or an ethical problem, I could call up senior lawyers in the profession didn't know me from a hole in the ground. And, and for instance, Arthur Martin, who was the leading criminal lawyer of his day, he would take calls from lawyers like me at 5 o'clock in the afternoon or 6 o'clock in the afternoon and answer their questions. And, you know, and, and I think that's something that, that people like me, or even more senior but more junior people than me, should be doing.

101And you can, and people can still call me. I have an open-door policy in our firm. Anybody can come in and talk to me about anything, and anybody outside the firm can call me about anything. I answer my own phone.

103Yeah, well, thanks, Pulat. I wish you the same. It was a pleasure meeting you.