Ed Waitzer

2No, I'm almost 68 next week.

4I'm doing fine, thank you.

6You know, life is a bit of a random walk. There's so many interesting things to do, and I think, I think the answer is I didn't limit narrowly my frame of vision. So I ended up at the Stock Exchange because I went to law school never intending to be a lawyer and got back involved in policy work when I came out of law school and ended up at the Stock Exchange. I ended up at Stikemans still not intending to be a lawyer, but you know, renting space from Stikemans early on because I needed a home. And it turned out to be a great group of people and a great organization. And yeah, life happens.

7You know, I left Stikemans several times to go to the Securities Commission, to go down to Chile. Again, opportunities arise, and sometimes you just have to follow your instinct and your interests and not kind of cling to what you've got.

9Renting would probably be— they've given me the space now. That's the advantage of But, but yes, when I, I, I put a retirement policy in place at the firm when I managed it, and with the idea of getting older folks out of the way, because reputations in law tend to have a large tail and get in the way of younger people having opportunities. Rather than staying on the, with the firm as counsel, I decided I'd rather have a little more distance so that I just don't have to worry about what the firm thinks about what I'm doing. And so I still have kept an office and my assistant at the law firm, but I don't have— and I still work with people at Stikemans who I've worked with for, for decades, but I don't have any economic ties to the firm anymore.

11No, I'm from Virginia, Norfolk, Virginia. My, my folks moved to Canada when I was young, so I, I went to school in Canada.

13Oh, I was, I was a young kid. I was preschool. So it wasn't my decision. It was, you know, my, my father had been in a family business and decided he wanted to be a little bit more independent and bought a small business up here. And it was kind of striking out on his own, but it, it had nothing to do with me. I, I remember it, but it wasn't a big event for me.

15Yeah, I've spent a lot of time in New York. I was there for 3 years managing the Stikeman office in New York, which was a great chapter and sort of great adventure in my career. And I spent a lot of time in New York because I'm an opera buff. So I get down to New York all the time for art and opera and other things.

17Canadians and Americans aren't the same thing. The United States is the one country in the world that kind of viscerally believes in markets, and it manifests itself in every possible way, for good and bad. A lot of the work that I've done especially on the policy side, has reflected the fact that Canada plays a unique role in the world, and not just because it's a resource-based economy, but because it effectively is a bridge between the United States and other parts of the world, particularly Europe, where the cultures are so different and the political systems are so different and the regulatory frameworks are so different. But Canada, because it's so highly integrated economically with the United States, but very different culturally and politically, sort of can often play that bridging role.

18And that's been something that I've been able to take advantage of from time to time.

20My dad was a entrepreneur, passed away several years ago, but an entrepreneur, reasonably successful entrepreneur, small businessman, started out in the wholesale drug business, got into chemical packaging, ended up buying a small brokerage firm and became involved in the securities industry, and actually stayed involved in the securities industry until I got involved in the securities industry, and then decided to get out. I think partly because he had had a bad experience kind of being in a family business and wanted to— didn't want to be in the way. He had done his thing, and so he decided to make way for me and space for me. It's not something I asked him to do, but it's something that he did.

21So that's my— he was a serial small businessman entrepreneur. My mother combined being a mother, a housewife, with a bunch of careers. You know, when my dad was in the brokerage business, she got her license and was a research analyst, wrote the research reports for the brokerage firm. She was a commercial real estate broker. She was an interior decorator. So she went back to school and got her MBA. So she sort of continuously challenged herself intellectually and, and had her own career.

23No, not at all. I, I, I pretty much left home at a pretty young age. I had been involved in setting up a free school and, and in, in a bunch of sort of student politics stuff didn't graduate from high school got involved in policy consulting during the Trudeau government, the Pierre Trudeau government and at a certain stage decided it was time to get a degree and applied to law school not on the basis of my academic record, but on the basis of, you know, sort of a mature student, even though I wasn't all that mature, and got in. And the object of going to law school, you know, I was— my focus at the time was, and to some extent still, on changing the world.

24And at the time, it was a time of life when, you know, most of us kind of didn't worry about finding a job or having an income, we, we kind of knew that we could— there was always opportunities available. So going to law school was really acquiring tools to help me be more effective in changing the world. And never intended to practice law ended up articling for a guy named Ian Scott who later became Attorney General, but at the time was counsel to Tom Berger on the Mackenzie Valley Pipeline Inquiry. And I basically called him and said, you know, I'd like to work with you on the inquiry. And the understanding was, you know, I had no interest in being asked back, becoming part of the firm.

25I just wanted the experience of working with him. And so that's how it played out. And when I When I finished articling and got called to the bar, I went back into the policy world.

27Correct.

29except when I was articling, you know. Yeah, Ian was an appellate counsel, so I wrote factums for him.

31No, on the contrary. I, you know, the, the partner who I have spent the most time with at Stikemans over my career is a litigation partner. And, and again, part of that is I've always enjoyed sort of being out at the edge of the law and where possible, shaping the law. But I can give you a list, a long list of either transactional work or policy work where it was a combination of corporate law and litigation. So, starting with BCE, where I acted for the board at BCE or Magna or The list goes on. So it's, you know, corporate law and litigation are tied together because corporate law is so dynamic. And the way corporate law evolves isn't by amending the statute, because there's not a lot of political currency in reopening corporate law statutes.

32It evolves through litigating cases. So the oppression remedy has evolved through litigation. Directors' statutory duties have evolved through litigation. And litigation, I mean broadly, because it's also cases that are heard by securities regulators. And, you know, there are a bunch of different ways that the corporate law framework evolves, but it's all litigation.

34I think good corporate lawyers think two ways. One is how to get things done. And they don't feel constrained by the law. They see the law as a tool to getting things done. And if they're really good, they also think it's a little bit like Wayne Gretzky. It's not where the puck is, it's where the puck's going to be. They think about the trajectory of the law and expectations around the law and how you can use that and shape that. Litigators think about the law. Their focus isn't on getting deals done. Their focus is on winning cases or fixing the law sometimes when the law clearly needs to be developed in a certain way.

35But it's— their focus isn't transactional, it's, it's around a set of facts and how you frame the facts to get a desired outcome.

37Yeah, I wouldn't call that breaking the law unless they are misrepresenting facts, or, or, you know, there are some famous cases You know, the Abu Ghraib case, where it turned out that the then, I think, Deputy Attorney General in the United States misrepresented the law, failed to cite the leading case before the tribunal, and it later came out, ironically, He was trying to protect the administration and was rewarded by being appointed a judge, which is, you know, the American system. But, you know, that's unethical. But arguing effectively and getting to an outcome that may take the law in the wrong direction isn't unethical. And I guess you have to have a certain degree of confidence that Over time, those things sort out.

38It's like a pendulum. You don't always get good decisions out of the judicial process, but over time— and, you know, judges don't get to choose their facts or cases.

40But over time, the trajectory of the law is pretty clear and reasonably predictable and responsive to social expectations and norms.

43You know, there's no perfect system. So what you describe is what happens in Delaware, where corporate law is a business. It's the main engine of the Delaware economy, and where there is a committee of lawyers and judges who review the statute every year to make sure that it's relevant and responsive to the needs of corporations and their stakeholders. So it's It's a very dynamic statute. In most jurisdictions, including Canadian jurisdictions, as I said, there's very little, no government is going to be elected because they've done great policy work in amending a corporate statute. There's no political currency there, so the system doesn't lend itself to what you describe. Courts have been pretty good. I think the system has a high degree— when you talk about fixed or broken, I think of the systems having a high degree of integrity in the sense of structural integrity.

44It may take time, and there are always some bad cases, but over time, corporate law has evolved. When you compare Canadian jurisprudence and American jurisprudence, you know, Delaware is more robust, but for instance, the oppression remedy, which is administered by the courts in Canada, is by far the most potent shareholder and increasingly stakeholder remedy, far more potent than any remedies under Delaware law. You know, the decision of the Supreme Court of Canada in BCE, which extended or affirmed the extension of directors' duties to the corporation as including stakeholders, was way ahead of and remains ahead of US corporate law statutes, which are gradually getting there. So there's no— I'm just comparing those two systems.

45We could look at Europe, which is different again. They all work in their own way, and it's very contextual. But to go back to your original question, I think the relationship between lawyers and litig— between corporate counsel and litigators is symbiotic. As I say, I have spent more of my time with one litigation partner at Stikemans than anybody else in the firm over 40 years. We almost know how we each think. His skills are in framing issues and arguing. My skills are in negotiating and thinking through some of the policy implications. But we work together seamlessly.

47You know what, I think it works pretty well on the oppression remedy, and I've written an article on this. What you just said is probably an accurate description of the law, which is that it is designed to protect shareholders, and particularly minority shareholders. My bet is that it will increasingly be used to protect other stakeholders as well, including stakeholders or interests that may not be directly representable. So for instance, future generations or the environment in response to externalities that corporations produce. So, and I think The existing law allows for that, but could be clarified to be clearer that it allows for that. So, so I see that as an emerging sort of field in corporate law.

48But I've also suggested that the law could be clarified to facilitate that.

50Yeah, it's been a— and this goes back a long way, And but it has been a huge contributor to evolving high-quality corporate law. And I'll give you two examples. And I say this, you know, when we did the Air Canada restructuring, I can't remember how many years ago it was, it created a bit of a political furor in Quebec, because Although Air Canada was a Quebec-based company, we decided to bring the restructuring not only in Ontario, but before a particular Ontario judge who we thought was uniquely capable of handling the complexities of that case. Lots of huffs and puffs in Quebec. When it came time to do the BCE transaction, same issue came up.

51And for better or worse, the board of BCE decided that the transaction should be governed by Quebec law because BCE was a Quebec-based company. And in part because of the political backlash that had happened in Air Canada. The result was a good try. We knew it was gonna get litigated. The result was a good trial decision, but a very confused and split decision at the Quebec Court of Appeal, which took us to the Supreme Court of Canada. The good news is we got great law out of the Supreme Court of Canada. The bad news is that the deal never proceeded because by the time we got to the Supreme Court of Canada, we were in the jaws of the financial crisis.

52So it's interesting to think back and say, if we had done that transaction under Ontario law, what would have happened? And I think what would have happened is the deal would have gotten done. We wouldn't have gotten the Supreme Court decision. So you win a bit and you lose a bit. But the commercial list has been a huge advantage for Ontario. And some great judges.

54for Air Canada? It was Farley, right?

56Sorry, the question again?

58It's you know, it's, it's very much at the margin. You know, you can argue it's marginally less attractive because there's that added complexity. The reality is that there has been a very high degree convergence between the two legal systems. You know, the major law firms operate on a national basis. So it isn't really a barrier to getting things done. There are distinct differences in the civil law system in Quebec. And in some areas, that's been Quebec has been at the leading edge in developing concepts that have then bled through to the rest of Canada. So when you think about notions of fairness in contract law or tort law, some of the leading cases come out of the Civil Code, or interpretations of the Civil Code.

61I'm not sure I agree with your characterization. I think, I think the stratification is actually more on the corporate law side than on the litigation side. And then to the extent that the transactional side of law generates litigation, it feeds through. But you can't— a small practitioner or a small law firm can't do large transactions, you know, and on a deal like BCE, you know, at any point in time, there were probably 30 or 40 lawyers at Stikemans working on the transaction over 2 years. You can't— that can't be handled. And with various degrees of specialized expertise that, you know, you just don't have in a smaller firm. And the other side is, if you're the board of a BCE, you want to go to a firm that has a reputation, in part to protect yourself.

62So there's very much a stratification of work on the transactional side. On the litigation side, it's not an accident that a lot of the best litigators have left big firms and set up boutiques in order to avoid the conflicts, constraints that big firms throw up. They learn their skills at big firms doing transactional work, but a litigator isn't constrained in the same way. You don't need 40 litigators working on a case. You may need 10 or 15 if it's a big case, but so I see less stratification, less structural stratification on the litigation side compared to the transactional side.

64No.

66Absolutely not. And, you know, I can You know, at various stages you know, as certainly when I was managing Stikemans and we thought about merging with other firms or domestically or internationally, or you know, someone could set up a group of top-rated securities lawyers could set up a boutique tomorrow and capture very significant market share. They may not have all the practice areas, and even a firm like Stikemans, which over time has narrowed its focus to sort of high-margin transactional work. So, you know, it doesn't do family law or criminal law or wills and estates anymore. So we've shrunk— or the firm, I shouldn't say we— the firm has shrunk rather than grown and specialized.

67But I think the market, you know, there are clear barriers. And if you look at, you know, law firms are pretty conservatively managed. So the status quo tends to perpetuate and the tiers have stayed relatively static. But I think that's contestable. And every once in a while you see, you know, you see somebody like Walied Soliman who basically develops a practice out of nothing and leverages that to very aggressively capture some of that top-tier work for a firm that historically didn't have that work.

69It's a great question. I'm, I'm not smart enough to know. I, I suspect the answer is yes. And it raises interesting questions for the whole law firm model of how, you know, the apprenticeship model of how younger lawyers develop experience and judgment. So I suspect the answer is yes, but I'm not smart enough to have figured out how that disruption will play out.

71You know, you should ask some of my kids who invest in it. I'm You know, I, I, I don't invest in things that I don't understand, and cryptocurrency fits that category.

73You know, I think, and it's not just corporate law. And as you probably know, I've written a lot about this over the years. I think the law tends to follow public expectations, almost in parallel to how political machinery does. And I think our expectations are changing, our focus is changing pretty radically and in a very exponential way to a focus on how we address systemic risks in society, and many of which are global, so they're not just the purview of domestic corporate law. And we see that playing out in areas like the pandemic or climate, but it will spread to issues like inequality, all of which are issues that 10 years ago, any academic would have said this has nothing to do with corporate law.

74And today, everyone almost takes for granted that This is at the core of corporate law, not because it's referenced anywhere in any statute, but it's because what society expects of corporations.

76My pleasure. Likewise.