Geoff Hall

2Hi, good morning. How are you?

4No, it was quite, quite adequate. Anyone who wants to read more details can find it elsewhere.

6I am, yes.

8kind of rare, but yes, I, I,

10Grew up in Leaside.

12Yeah, a little bit east. Yeah, around the Bayview and Eglinton areas where I grew up.

14Well, it was it was an interesting time. The Berlin Wall had— geopolitically, the Berlin Wall had just fallen, and there was much hubris about how history had come to an end. The West had won and prevailed, and that was the only worldview. I must admit I was skeptical of that at the time, and history seems to have proven that that skepticism was well placed. From a more granular level, it was a bit of a challenging time to be a law graduate because the economy in the GTA had been booming throughout the '80s and then really hit a wall. And a lot of my fellow graduates had challenges because of the economy, and we were surprised by it because things when we started law school were just booming.

15The law firms were tripping over themselves to ingratiate themselves with us, and then things became a bit, a bit tougher. So that's what I remember about about that time long ago.

17That's right. No, that's right. In those days, you could go directly to a Supreme Court of Canada clerkship, and that's what I did. Now you need to do some other clerkship or articling first, but I went straight to it, which was the, the common way of doing things back then.

19I clerked for Justice William Stevenson during his brief an unfortunately somewhat forgotten tenure. He had to leave the court after only about 2 years because of health reasons. So he had 2 cohorts of clerks, 2 years, and I was in the second one.

21It was a little different, yes. Yes, experienced a judicial resignation. He left about 9 months into my clerkship, and I had another 3 months to go. It was interesting times.

23Sort of. I had summered at McCarthy's two summers. So after my, what is now referred to as 2L, we didn't use that phrase then I summered here. And then I also did a partial summer after 3L because I knew I was clerking and I was interested in coming back, but I wasn't Really, I wasn't guaranteed a spot, and I still had some discussions. And that gets back to my comments earlier about the economy. It was a time when it was not totally clear what firms were going to be doing, and I had people that I clerked with who had difficulty finding jobs. But I did get a job offer from McCarthy's near the end of my clerkship and been here ever since.

25I was— I had one other. I only spoke to a couple of firms and I did have other options but chose McCarthy's.

27I had— it's a very good question. In fact, it really goes back to my choice to come as a summer student. I had gone into the summer student process thinking I was going to join another firm and then was very taken by the people at McCarthy's, the culture, and just felt it was an appropriate fit. And then I was interested— by the time I was clerking, I was interested in litigation and thought that McCarthy's had the strongest litigation platform at the time. I still think we do, but it was really the litigation platform and my previous experience that drew me here as an associate.

29Yeah, Jonathan's a year ahead of me, so he was, was here when I started. Yeah.

31Yeah, no, that's right.

33Not yet,

35No, no, that was my own idea. So I was an associate at McCarthy's for 2 and a half years. Then I went to Harvard on a leave of absence, did a 1-year LLM on a leave of absence. And that was entirely my idea. I'm not sure the firm would've been overly thrilled about it. They were supportive, but I'm not sure they would've actively thought it was something to encourage. And it really originated because I had Out of clerking, I had seen a number of my colleagues go off to top institutions around the world for graduate studies, usually because they wanted to go into academia. But I had the sense that I might have missed out on an opportunity.

36I'd never studied outside the country before and just thought this might be an opportunity to do something interesting, expand my legal understanding, and not interfere much with my career path towards being a partner at the firm.

38Yes, although somewhat indirectly. Almost none of what I learned or took substantively at Harvard I've ever applied. I think there have been about 2 occasions in my career And so the substance of what I learned is not— wasn't directly applicable, but it was a very valuable experience to be able to go back after 2 and a half years of very intense work and think about the law a little bit, look at the law from a different legal system, slightly different legal system. And that, I think, is invaluable, that my it gave me a depth of understanding of the law and how to think about the law that I would not have had if I hadn't had that experience.

40And

42Probably more the latter. I think I certainly did work very hard to stay on the track that I would have been in at, would have been on had I not gone off to Harvard. I'm not sure how much of a cachet it gave me directly, but I certainly don't regret it at all. It was a fantastic experience, and anyone who has a chance to do it, I would heartily recommend it. And it also allows me to resonate with, connect with with clients. I recently had an experience speaking with a client in Singapore, and he had done the Harvard LLM program years after me, but it was interesting that we compared notes a little bit, and I was able to connect with someone around the world because of a shared experience at Harvard.

44Yeah so I, the, I wrote the, the first edition of the book was published in 2007, and I completed the manuscript in 2006 when I was 40. And I started it in 2004. So I wrote it in about a 2-year period, which is pretty condensed. By that time, I was an equity partner at the firm. I had become an equity partner at McCarthy's 2001. So I was secure enough in my career that I knew I could do it. And the firm actually was fantastic in supporting it. There's a sabbatical policy for equity partners. And I took a sabbatical. I took— it was only 2 months, but I took a 2-month break from practice and finished the book.

45And that was quite valuable. Why did I do it? It goes back to your question about the academic perspective. I actually saw a huge divide between the academics and the practitioners. And I saw that in clerking, that there were certain people who just wanted to be professors and they were frankly disdainful of practice, and that was all they were interested in. There were others who wanted to be practitioners, and I didn't see a lot of meeting in the middle. And through at practice, I had the same thing, that there isn't— there's kind of two solitudes that don't communicate very much. I think they should enrich each other more than they do. And I saw a real gap.

46I thought contract law was mostly in practice about interpretation issues, but there was no book on the subject. And in fact, I don't even remember really learning about it in law school. I think there was maybe one case or one class that I learned. So I thought there was a gap. I thought it would be an interesting thing to do. I like writing, so I took on the project.

48Possibly. I think that might be part of it. I think part of it is that legal academics focus on a number of kind of core concepts of contract law for teaching first-year contracts. Offer and acceptance, things like the mailbox rule. But does the mailbox rule ever come up in practice? No. So the focus of the academics on teaching the basics left a bit of a void in terms of rigorous analysis of what actually is litigated in the courts. And there was an English book on the subject, Kim Lewison's excellent book Interpretation of Contracts. And that was sort of the inspiration for me to do it, that we needed a Canadian version of that excellent book.

49Although I actually went out of my way not to look at the book while I was writing it because I didn't want to emulate it. So saw a gap in the market, something that hadn't been done. But you are right that the laws become more complex and there is there's more to write about now than there might have been 30, 40, 50 years ago.

51Yeah, I think part of it is related to the Anglo-Canadian preference, and particularly the Canadian preference for standards over bright-line rules. So if you look at how contracts are interpreted in England, it's similar to common law Canada, and it's more contextual. The courts don't like the results that are unanticipated and don't make commercial sense, and so doctrines have been developed to take a more contextual approach, look at the factual matrix, get it right in the particular circumstances. Many US states, by contrast, take a different policy perspective. Going to just apply the text, not going to try and save people from bad bargains if the text leads to a commercially absurd result. So there's a bit of a commercial— there's a bit of a policy choice there.

52And Canada and England have gone one direction, most US states have gone another one. But it can go too far. And I have recently been concerned about uncertainty being brought into contract law because of the somewhat open-textured nature of it. And the real danger, in my view, is result-oriented reasoning, that it can be so open-textured that a judge can start by saying, well, I want to get to here, I want to get to this result, and then justify anything reasoning backwards. I think that's just bad judicial reasoning when judges do that, but the the effort to get it right in particular cases, the effort to be commercially sensible can lead to that possibility.

54I, I think it's a, a little bit of both. And I would say most judges I find do not engage in result-oriented reasoning. Most judges, in my experience, are scrupulously fair, listen to both sides, and reason in a forward fashion, apply the principles, and it will go where, where the principles take them, and that's the result. There are some that do it the other way around, and I think that's just, just the wrong approach. I do think it's also worsened a little bit by by two things. One is our law's preference for standards over— and balancing tests over bright-line rules. So that means that the facts make a whole lot more difference, that the facts will drive things more than the law.

55And at the trial level, you really have to focus on the facts, and the narrative that is accepted will drive the outcome much more than, than the law. The other problem is, and I think this is a problem, is the highly deferential standards of appeal where it is very difficult to overturn trial decisions. Now that it's become noticeably more difficult in my career because of the palpable and overriding error standard being applied to questions of mixed fact and law, which means that trial judges have more scope to craft fact-based decisions that will not be interfered with, there's limited scope for appellate courts to interfere. So all of that does come together. And law is often a pendulum, you know, things swing from one extreme to another.

56And I actually don't think that the US approach of rigorous adherence to the text, that's right, it leads to some really weird results. In many cases. On the other hand, being so open-ended that it undermines contractual certainty or permits result-oriented reasoning, that's too far the other way. So the law is trying to find the appropriate middle ground.

59Yeah, I try to. I think things need to be done well, and that requires effort and I'm pleased to hear that it comes out even in the summer when I'm teaching at the Osgoode Intensive Trial Ad Course. And that course is, I think, is a very important one. I've taught at it for about 20 years, and it's a great example of the way the law is a craft, not a business, because you talk about people I don't know. I'm almost always teaching people from competitor firms when I go there. I'm, I, in fact, I don't like it when, when I end up with McCarthy students there because they're uncomfortable. They, they fear that I'm gonna, you know, report back and dock their bonus or something if they don't do well.

60But it's hard to imagine other circumstances. Would Coke train Pepsi people about the soft drink industry? Absolutely no way. But Do McCarthy's lawyers train lawyers from Torys and, and Osler's and whatever other? All the time. And that's part of, part of what we do. We are a craft, and it is very much part of our of what we do as professionals.

62Actually don't remember when I started. I, I just— I actually considered— I, I really probably from very early on considered that my role was to to teach and engage. And part of, part of that I think came first in feedback when I got to the level where I was providing feedback that that's part of the teaching exercise and making associates and students— I don't work with students much anymore, but I used to work with articling students— making them figure things out for themselves in an almost Socratic style. So rather than,

64don't like it when people come to me and say, what should I do? I instead say, well, what's your recommendation? And make them think it through. And, and so I think that's probably when I started, it would be as when I was an associate, but I don't, I don't actually remember a specific time when it started.

66Well, I think it's interesting you mentioned Toronto because there are now 3 law schools in Toronto, all of which are different and have different focuses. I think that's terrific. I think that there's no one way to do it. Your question about the Socratic method is interesting because when I'm teaching at the law school, I use what I call a modified Socratic method. I will present a case and then I will lead a discussion on it. A full Socratic would have me presenting nothing and just asking questions. And I've tried that, and I saw that at Harvard. I didn't see it at U of T Law School, but I saw it at Harvard. It is very effective.

67It is very similar to the way the courts work. So I think it's a terrific way of teaching that mode of thinking, but Canadian law students don't like it. So when I've tried a full Socratic, it U of T, I get real pushback. They didn't, they don't like it. They're not comfortable. They won't participate. So modified Socratic is as far as I've gone. I think it's an excellent way of teaching legal thinking. That having been said, the Socratic method was developed 100 years ago or more, and our thinking about the law has become much more open-textured, and there are very different ways of going about it. And TMU, for example, its law school doesn't just take the old academic models.

68I'm not saying it's not academically rigorous, but it approaches legal problems in a different way. And there's certainly, that's certainly a very important part of it. So yeah, I like the Socratic method, but I wouldn't say it's the only way of doing the teaching of law.

70Right. So one thing I tell junior lawyers and students is they gotta make sure they understand the business when they're dealing with a commercial matter. Now, we also do a lot of medical malpractice defense work at the firm, and I haven't done that work for 20 years, so not coming about that, but commercial litigation. I tell people you got to understand the business, and that's tough when you're a junior because you're usually brought in for a discrete question. And, but I always try and provide the context. This is what the business is, this is the problem, this is where it all fits into the big picture. And I tell junior people, they should insist on that, on that background if it's not provided.

71So that's one thing I say. And in terms of how I interact with them, it is sort of a Socratic method. I don't think about it quite like that. It is to take everything as a teaching moment and to force people to think for themselves. So If people come to me and say, what should I do? I usually won't answer. And it's a— that's part of it. And, and then there are formal mentoring systems in the firm as well.

73That may— that is certainly a challenge, and all firms face the challenge. The economics are difficult. We deal with big cases, there are big stakes, You can't send a first-year associate to go argue a major appeal in Supreme Court of Canada for a major client. Just, it can't be done. And similarly, our rates are so high that it is challenging to take on the smaller cases and do so in an economic way. McCarthy's has always had a culture of getting people on their feet quickly. And part of that comes from our medical work, And part of it is just part of our culture. So I think we do it well given the structures that we have to get people going in it.

74One story I tell, the biggest trial I did was about 3 years ago in 2021, did a 43-day trial for TD Bank that involved a $5 billion, $5 billion stakes. I had a team of 6 lawyers, the biggest team I've ever ever run at a trial. And the trial went 43 days, but within the first 2 weeks, I had had everyone on my team on their feet in some part of the trial, that everyone had done something. Even, even someone who was, I think, a first or second-year associate at that point had done something, had done any, an examination or part of an argument or something. It was a real point of pride to me that within 2 weeks of this lengthy trial, I'd had everyone on the team on their feet and involved.

75And that wasn't something I made up. That's a culture I learned at this firm and that we've done for many years. And I expect that, you know, those— the other 5 on the team, when they're leading teams in the future, they'll be doing the same thing. That's how I grew up. Now, part of that can be pretty disconcerting. You get thrown in the deep end and there are times when things may be challenging, but that's the culture that we have. I think that's the best you can do. There's no way you can get a perfect experience, and, you know, we're never going to have the advocacy experience of, say, a Crown Attorney where you're in court every day on your feet, but I think we do as best we can.

77How early?

79Well, I would say we started preparing for the trial the day we got the file, which was about 9 years, I think, before the trial, or maybe it was about 10 years. I actually In the course of that file, at one point I thought we had lost sight of trial, that I thought our team had come to the conclusion that it would be too big to try, and I corrected course. I made it clear to everybody, we are, we are moving towards trial, and we approach this case like every other. We take the mindset that we will go to trial, even though we know 90% of cases don't. But, but that's the mindset.

80So, but when did we intensively start preparing? Would have been probably about 6 months beforehand, something like that.

82Really it was both. It was a very interesting case and, and shows the importance that, that I place on the narrative at the trial level, the facts. So it covered an enormous time period from 1991 to 2009, and we were doing the trial in 2021. So what we needed to do was to take the trial judge back to what the world was like in that that time period and tell a narrative as is in the way that the that the employees who were involved experienced it at the time, which is very difficult, very difficult to do. You know, for example, the early facts in the case were before the internet was out there, before Google existed.

83And it's actually very difficult sitting in 2021 or 2024 to envisage what your life was like before you had the internet. And even if you lived through it, it's difficult to take it back. So, What we needed to do was to craft a narrative to get the narrative accepted. And that was the advocacy challenge of the case. And I knew we had succeeded when I saw the reasons not only that we won at trial, but also that the judge picked up one of our themes, that you can't look at the situation in retrospect. You got to look at it the way people experienced it. At the time it occurred.

85Yes.

87That's a very good question. I think in, in chief. You usually say you win in chief, but I think we did win in chief by telling our narrative and getting our narrative accepted. Cross-examination was important, particularly cross-examining the opposing experts. And I didn't do either of the liability experts. Other members of my team did. They did a fantastic job. and that was important. But I think the old adage is you win in chief, not on cross, and I think that was, that was, I think that's generally true, and I think it was true in this case.

90I think the Commercial List is great, and I have always favored it and used it as much as I can. You have a small group of judges who are quite expert in commercial matters. They get it. But what's really spectacular is the speed and effectiveness of it, particularly right now at a time when the Toronto Civil List is so backed up. Really is appalling what is happening, particularly in motions court. Motions being booked a year or more out. It's a complete failure of justice. The Commercial List, by contrast, has always been able— has been able to get the resources to react quickly to urgent commercial situations. And that's the thing that I've found incredibly valuable.

91Not to be abused, though. The Commercial List is only for particular cases. It is not to be used in all circumstances. It will get overwhelmed if it doesn't keep to its lane and do what it does so well. But we're very fortunate as a province to have the Commercial List as a resource, and we would be better served if our civil justice system generally were better resourced so that the rest of the system could deliver as effectively as the Commercial List does.

93Sure. Well, first thing, you need to have the right case. The Commercial List is looking for significant matters, commercially important, complex matters. Usually the dollar value does matter. A smaller dollar value matter is less likely to be approved. The court does not like cases to be dressed up that are not appropriately there. So they're very suspicious of employment disputes that include an oppression component, and they will say, well, that's really an employment case, it's not really an oppression case. So don't try and pull a fast one. Be honest about it. There's also a requirement, not always enforced, but a requirement that there be a Toronto base for at least one of the parties because it is a Toronto Region Court.

94So be mindful of that. And when asking for something to be added to the commercial list, explain the commercial complexity of it. Get consent if you can. That's not decisive, but it's very helpful. Explain why it's appropriate for the Commercial List, make sure there's a Toronto connection, and don't abuse it. I sometimes have people come to me and say, I want to put this on the Commercial List because it'll be faster, and I'm saying, don't do that. It's not an appropriate case. We have to have the credibility as a firm with the, with the Commercial List that if we make the ask, we know it's appropriate and and we're only asking because we fervently believe that it's a case that should be there.

96I actually don't think there's anything particularly special about it. I act for clients of all sizes. I act for banks, I act for individuals, I act for companies that are owned by individuals, and they're different in that the bigger the institution, the the more bureaucratic they become and the less individuals get identified with the entity. It's less personal. But I don't see it as fundamentally all that different. And I don't see it as particularly a mission to safeguard the Canadian economy or anything like that. I will vigorously advocate for whoever wishes to do so, and unfortunately those who can pay the fees, which is often an issue, but you deal with that as best you can.

97So obviously we're pleased when we're entrusted with important matters for large institutions, but it's all advocacy and it's all trying to put forward clients' best interests in the courts.

100Yeah, there's, there's no secret plot for McCarthy's to take over the world by other law firms. I don't think we see them as competitors. We see them as people we work with as opposing counsel. I've got one file line going right now where I was joking to somebody that I think everyone adverse is ex-McCarthy, so we got McCarthy's all around. Some of them are great sources of referral. We refer things because we do have conflicts. And, you know, it's very helpful to have great people that we know can handle it, handle matters for our clients when we cannot. And I think it's a great development in the profession that there are more options out there.

101The one disadvantage I would say, and one of the reasons why I've always stayed at a large firm, is that I very much appreciate the fact that we have experts of other, other than litigators, that I can call upon experts in business law and real estate law and insolvency and tax and whatever else, and I can put together teams with incredible specialized expertise in other areas of the law. That's where I think we have an advantage over boutiques and sole practitioners. But still, the the boutiques and sole practitioners do a terrific job. They they're a phenomenon that didn't exist 30 years ago when I started, and I think the profession is better off because they exist.

103Well, who knows? I, I think, I think it's I, I, I think it'll— it will continue very much as it is. It's a It's got a longstanding culture of cultivating talent, proven by the fact that we often end up against our own former colleagues, of giving people opportunities, of mentoring, of teaching, and also of succession, moving people on. We have a mandatory retirement age from the partnership at 65. Some people stay on as counsel for a few years, but there is a real mindset of, you know, there will be a time to pass the mantle along to the next generation. And that's how we're going to survive long term and be here for a long time.

104And I, I am fully confident that we will. It won't be with me, it'll be with others, but hopefully with others who've maybe learned a little bit from me and passed along down the way.

106Well, thank you. Thank you for the opportunity.