Gillian Hnatiw

2Hello, thanks for having

4So my family history is that my grandparents immigrated from the Ukraine in the '20s as children separately, obviously. My grandfather, my Didi actually stayed behind in the Ukraine for about 2 years while his family immigrated with his younger siblings. And then followed alone when he was 11. And as the current parent of an 11-year-old, that really blows my mind. He landed in Halifax, Nova Scotia. I've actually— when my parents and I were out there last year, we actually found the records of his arrival. And then again, with, we assume, no English, managed to take a train to be reunited with his family in Montreal. And he eventually moved to Dauphin, Manitoba, which is a popular place for Ukrainians.

5And I guess he, he met and married my baba in Montreal, then they relocated to Dauphin, Manitoba, where my father and his three brothers were born. Both my, my— so my didi, my father's father, my grandfather died before I was born. He died when my dad was 16, so I never knew him, but I understood him to be a very future-facing man, as, as my father is also a very future-facing man, and do not spend a lot— they're not very sentimental. They don't spend a lot of time dwelling in the past. So while the roots of my last name are very much Ukrainian I was not raised in that culture, and so I can't really claim it as my own, if I'm being honest.

6To my knowledge, I don't have any family left in the country. And while I have this very unusual last name and, you know, I think a very direct link to the country, I consider myself Canadian at this point in time, for better or worse.

8I don't, and sometimes I, sometimes I wish I did, that I had a more concrete link to this very prominent aspect of my past. And there are branches of my family in the country that, that do speak Ukrainian. There's my Didi was also one of 4 children, and some of them remained in Montreal, and the children they raised there speak Ukrainian. So those are my third cousins at this point in time who I still know and they have a much more tangible link, but not me.

10Yep.

12No, I think Andrew—

14I did not go to law school with Andrew Bernstein, though I now consider him both a colleague and a friend and a quasi-mentor sometimes. But I think that he is 5-ish years ahead of me.

16We did not walk the halls together.

1815.

20Well, a common denominator for Jasmine, Cynthia, and I— Justice Akbarali, Cynthia, and I— is that we were all juniors for Earl Cherniak, sort of one after the other. And he, he is everything he's perceived to be. He's brilliant, dogged, determined, generous, and was a real privilege to work with him as a junior lawyer. I actually had the office next to him in my first 3-ish years, I would say, at the firm, and had the privilege of being fourth chair on a couple of big files that he was first chair on. So the whole Hollinger debacle— I'm not sure if I'm supposed to call it a debacle when we acted for Hollinger, but the sort of shifting parties we counsel to Conrad Black.

21I don't know if he's once and again the Lord Black. And there was a big case between Air Canada and WestJet about corporate espionage called Spies in the Skies. And, you know, worked with him on that. Another fun fact is that to my right was Earl Cherniak on the corner, and then to my left, maybe down one, was Bradley Miller, who's now Justice Bradley Miller of the Court of Appeal. And when I started articling at Lerners in 2002 Justice Miller was also articling there. He was transferring to Ontario from British Columbia, and at that period in time you had to do sort of a truncated articling period. So he, he was— he had come to the firm to be an associate, but he first had to do this very short articling period.

22So I often tell people that we articled together, and a true story that he will hate me sharing is that he's a real coffee aficionado, and somehow I conned him into making me very special coffee in his bodum sort of every morning that I articled and was then a young associate. And he's a hilarious interesting person in his own right. And so sometimes I would get to have morning coffee with Earl Cherniak and Bradley Miller. It was the worst ways to start your career.

24I definitely did a lot of trials in my early years. I did my very first trial with Peter Jervis in the federal court. It started in my articling year and concluded during my first year as an associate. We actually brought a claim on behalf of a former cabinet minister named Sinclair Stevens, setting aside the report from a commission of inquiry, the Parker Report. So that was a really interesting twist as well. I think sometimes when I tell people now that I spent my first 5 years in corporate commercial litigation, they— that doesn't really add up for them. But I think that I was really lucky to get the chance to do some really interesting work with very talented litigators at a firm that was like young and small and dynamic.

25And so it was— it was— turned out to be a great, a great place to sort of learn the tricks of the trade, so to speak.

27That also traces back to Lerners. There's a partner there named Elizabeth Grace who is one of the true pioneers in the field of civil sexual assault in this country, and I was lucky to start working with her as an articling student as well. She was actually one of the big reasons I went to Lerners. I have a background in feminist issues writ large and was very interested in her practice. And so in addition to doing strange federal court trials and corporate espionage with Earl, etc., I always had a small part of my practice that was devoted to civil sexual assault with Elizabeth. So it's actually the one area of practice that has been constant and continual throughout my whole career.

29Yeah, I had reached a point at Lerners where I felt like I had really hit maybe a wall and a ceiling. I was feeling very boxed in. The firm had grown significantly during my period of time there. My closest colleagues and mentors had left. Jasmine Akbarali, who you mentioned earlier, was and is— continues to be one of the most significant mentors in my career. She'd gone to the bench, and I had a vision for what my future practice could look like, and it was running up against the way in which that firm was structured. So I say that the organizing principle for my practice is, you know, sexual misconduct, sexual violence and that sometimes involves tort claims.

30It sometimes involves employment law. It sometimes involves public law, privacy, class actions. The law gives me actually quite, quite an eclectic toolbox in terms of how to seek remedies for my clients and the way many firms, including Lerners, organize that toolbox meant that I was in 6 practice groups and it was becoming just untenable for me in terms of building a practice within the firm. Like, I was— it was a very fractured situation. So for a lot of reasons, I also think that the culture of the firm was changing. It was becoming sort of more defense-focused. I was having issues with conflicts. That sort of nimbleness and yeah, flexibility that I had loved so much in my early years was not, not a thing I was experiencing anymore.

31So for a whole host of reasons, it was time for me to go. It was also very hard to go. I had been there for 15 years. I think anybody who's left the firm that where they were born and raised after sort of, you know, a decade or two knows that it's, it's a, it's a challenging thing to do both intellectually and emotionally. So I'd talk— I'd had a number of offers or potential offers, and what I really wanted was a platform to build and to be at a firm that was going to be young, brave, nimble, courageous, and was going to let me be me, really. And I knew Jordan Goldblatt from a coroner's inquest that we had done together.

32I was counsel to a Children's Aid He was counsel to their union and we had got along. And so it seemed like the right opportunity to jump at. And it was a good move in the long run. I guess another one of my mentors or most important people in my career is a woman named Jane Southern, who was an associate at Lerners and then a partner at Lerners and then moved into sort of career coaching and during the time where I knew I had to leave Lerners but was trying to figure out what I was going to do next, she just kept telling me, you just have to make a move and you have to get comfortable with the idea that it may not be your last move.

33And that was terrifying to me. And it was so hard to make that first move. I was really fixated on where I went was going to be where I stayed for an additional 15 years. But it was funny because after about a year and a half, I realized that it definitely was not the right firm for me. You said they were cool guys or something like that. I would emphasize the word guys. And their values, their culture did not align with what I wanted my firm and the culture of the firm I worked at to be. And so it was time to go, you know. And I, I say that without meaning to throw stones.

34They are doing something that, that they, the three of them, agree on and that they want to be doing. And so kudos to them on their success, but it was not something I wanted to be part of any longer. And so I jumped and I left because Jane Southern told me that basically this would happen. I would go somewhere and finally sort of cut the apron strings, be be free of Lerners and that I, you know, might make another move before I landed somewhere that made sense.

36I mean, to be clear, I'm in an office right now, but yes, I no, no, no,

38Yeah, I mean, I think I finally realized— it's all

40it's all women. I, I think that I finally— it's all women, and we'll talk about that. I finally realized that nobody was going to you know, like there was going to be— the place that I had in mind didn't exist, and so I was gonna have to build it. Is really what it came down to. It is all women. I would like to say that my first associate was a man. And so as much as I love the fact that it's all women, I think that it's integral sort of to the culture of the place. It's not— it's almost more by default than design. So the last time, the only time we've posted a job ad we had, I think, almost 80 applicants and one male.

41So people are self-selecting. What am I to do?

43I think the law is patriarchal, and I think that women see the the allure and the challenge of not just representing individual clients, but also opportunities to sort of push the boundaries and the margins and the structures of the law. So I think that that's part of it. You know, separate and apart from the substance of the law that the firm practices, I think there are a lot of women who will tell you that they're very attracted to the idea of working with other women and the opportunity to work with more senior women. I guess I have to concede that at 20 years, I'm sort of becoming more senior. And so I think that that's part of it.

44I think a lot of women go to law school with aspirations to sort of use the law to push and change norms in society. And I think there's a lot of opportunity for that in the work that, that, in the areas that I practice in. In the 20 years that I've been doing this work, like since I articled for Elizabeth Grace, the changes in my area of law have been significant. Like it's been a really, really dynamic period, which makes it a really interesting and awarding rewarding and fulfilling period to have practiced in it. You know, there were 2 or 6-year limitation periods when I started to do this work. So all— a big chunk of our fight would be whether or not the, the plaintiff was out of time, because it's often decades before victims of childhood sexual abuse come forward with their allegations.

45And then even when you manage to get over the limitation period through discoverability arguments. The damages awards were like just insulting. It's really— when you go back and you look at them now, it's just incredible that you would get like less than $100,000 for having endured years of really awful traumatic sexual violence from a parent or a caregiver or a teacher or a religious leader. So not only is there the sort of physical harm harm and discomfort and the psychological harm and discomfort, but also that, like really intrinsic breach of trust. And you see the damage that that does to people over time. And I— the legal system, the courts, the judge, the judiciary, I think it took them a long time to recognize that.

46And I, I think that's directly attributable to the fact that it was so predominantly male for so long. So, you know, pushing the needle on that has been a long-term project, but you can really look back and see in retrospect how much it's moved.

48I'm gonna have to Google a definition.

52So I think the law and legal structures were built by men for men. So when I talk about patriarchy, it's the fact that the experience of women, you know, is not It's not built in to our legal structures dating back, you know, into 14th century England and the common law. So I think on a very high level, that's what I mean. When I sometimes do training or give lectures on sexual assault in Canada, I often go back to the pre-1982 Criminal Code. Where rape was an offense that could only be committed by a man against a woman. You had to— you had to prove penetration and you could not rape your wife. So in addition to that, baked into the Criminal Code were two rules of evidence that were particular to the offense of rape.

53The first is that you had to report at the first opportunity the doctrine of recent— there was a recency doctrine, but it was right in the code. And

55There's an actual word for the doctrine, and I, I'm struggling. The doctrine of recent complaint, I think, is what it's called. And you go back and you see in the case law that they're fighting that she went to the police the next day as opposed to that night, and that does that Because basically, if you could demonstrate that the complainant, who was almost always a woman— well, it had to be a woman because only women could be raped— you know, didn't report at the first available opportunity, then the court was directed to draw a strong inference against her credibility. Like, it was right in the legislation. And in addition to that, you needed corroborative evidence.

56The word of a woman was deemed to be so inherently untrustworthy that this was the one particular offense where you needed additional, you know, you needed corroborating evidence. So when concepts like that are baked into our legal structures, it takes a long, long time to unpick them. And it's interesting how I think we still see them show up. Example, if you look at what our courts today award for sexual assault and violence within the confines of a marriage and compare those awards for general damages to every other case that's not before the family courts and in the context of a divorce, it is shocking, the difference. Like, it's just— it will— if I'd known that we were going to talk about this, I would have a slide for you.

57And I think that that really Traces back to a time where you couldn't rape your wife, you know, like, and family violence was considered to be a private matter as between the parties. I mean, these are laws that were in existence in my lifetime. I was born in 1977. You can all figure out how old I was. So I mean, when I, when I see those, you know, things I— that is what I mean by patriarchy, you know. And my— to tell more family stories, my mother's mother my mother was a child of divorce in the '50s and lost custody of her of my mother and her sister because in— while they were waiting for the divorce to process, she had another child out of wedlock.

58She'd repartnered and ended up having 3 more children. And because the divorce papers didn't get through in time for the birth of her third child she lost custody. And, and there's just like endless examples like that. So when I talk about patriarchy, that's what I mean. I'm probably using the word patriarchy a little bit more right now just because of the Barbie movie. The fact that my kids are obsessed with it and it's kind of a running joke in our household right now about when you You talking about patriarchy? Are you referring to horses? Anybody who hasn't seen the Barbie movie won't understand that. But so, you know, that is what I think of, and that is part of what is so motivating about the work that we do.

59I mean, another example I can give you is that Canada started to introduce sort of privacy-related legislation in the early aughts. And so there was legislation that protected your healthcare records and other kinds of private records and all of this. And that's great. I certainly want my healthcare records protected. But it took until, I think, 2015 in some jurisdictions— well, from 2015 until they made the crime of non-consensual distribution of intimate images a crime? I mean, we're still trying to use a patchwork of sort of torts and statutes to advance claims for the harms that flow from that because, you know, people are far less concerned about the privacy interest I have in my body and my image and the way it can be commercialized and shared.

60I think I've been talking for 10 minutes, right? So I'll stop.

63The Human Rights Tribunal and the fact that it has exclusive jurisdiction over harassment and sexual harassment is a huge problem from my perspective. I mean, in part because it's been gutted in Ontario and is essentially non-functioning. But even when it is functioning, there are two further significant problems in my view. The first is that it has a very strict one-year limitation period, and the, the harms that are intrinsic to enduring long-term sexual harassment are very similar to the harms intrinsic to enduring sexual assault and battery or long-term sexual abuse. There is often a lot of shame and self-blame. There are other potential mental health impacts. And you know, a common theme I hear is that people just want to get away from the situation and put it behind them.

64And it's only after they've had an opportunity to sort of process and heal and rest and reflect on it that maybe they're ready to take action. But guess what? They're out of time. So that's a huge and easy-to-fix situation. I think— I actually think that it's a big gap in the law that you cannot in a lot of situations sue for sexual harassment. I think that it puts people who experience that in a situation of having to rely on— I mean, having to settle for human rights damages, which are also embarrassingly low and don't compensate for all of the actual tangible harms. And, you know, that can be experienced, including past and future loss of income, past and future therapy costs.

65And there's a lot of talk about things like nondisclosure agreements and other ways in which to combat sort of sexual misconduct in the workplace. I think that if employers had to start paying for the real actual impact of these wrongs, then you would see that sort of behavioral change that we talk about. I think that the Human Rights Tribunal actually sometimes works as a bit of an insurance policy. So that's definitely a big one. The Ontario Court of Appeal has said no tort of harassment. That doesn't mean that the provincial government couldn't create one through statute. So that's one. I think that the dismantling of the Criminal Injuries Compensation Board is a travesty. I don't understand it.

66It was funded through the victim surcharge, and it was the singular best tool available to victims of sexual violence in this province. You didn't get a lot of money, but you did have the opportunity to tell your story to a neutral third party and be believed in a way that is enormously cathartic and therapeutic to many people, and to recover some money, even if it was $10,000, $15,000, $20,000 that afforded you the ability to access therapy, to take some time off if you needed, to sort of get some stability and, and take a breath in your life so that you weren't in a state of constant crisis. And so It would have been a rounding error in the provincial government.

67I have to think that the decision to dismantle that tribunal was more ideologically or philosophically or politically motivated because I don't understand it. I think that it probably saved the province, its taxpayers, its social systems a great deal of money in terms of what it has instead had to pay out to people through, you know, healthcare costs and other forms of social programs. So that's two. I think the privacy torts are a big mishmash, and it would be great to get some clarity on how to best advance them. I mean, in my view, if something is an offense in the Criminal Code, then there has to be— it is a compensable wrong, and there has to be a way of sort of threading the needle to get to that.

68And it's not that we haven't been able to do it, it's just that it's a bit of a mishmash and it really depends on which court hears your case, who opposing counsel is, things like that. I think there's some tinkering to be done with limitation periods in some of the provinces where there are harms adjacent to just claims for sexual abuse and sexual assault. So that's a list off the top of my head. If you told me you were going to ask that, I probably would have taken the whole hour, but There is a good list. Yeah, and I mean, I— that obviously focuses on the fact that I primarily do tort law on behalf of individuals.

69I think if you had a family law lawyer on this, there would be just a panoply of other suggestions, really. As I'm sure you know since you've obviously Googled me, I just finished a 2.5-year stint as Commission Counsel to the Mass Casualty Commission and, and we looked at gender-based violence and sexualized violence and the links between that and gun violence quite extensively. So I don't want to preempt any of your questions, but yeah.

71Yeah,

73Mhm.

77I disagree. Good. I disagree with the concept of category creep. I don't know about De Niro, so surprise, surprise, I don't know every celebrity that's been sued. I think what you have characterized as category creep is what I am talking about in the law not recognizing the harm that has been perpetrated on and injured by women for centuries. And I think you said you don't know what it would be like to have somebody scratch your back. When's the last time a man, you know uninvited scratched the back of another man? I think it's a pretty unusual thing to do, which suggests to me that there's a—

79Well, you know, and context is everything. I mean, when you say there's a lot more case law on sexual assault than there were— was on rape. That's probably true, but I think you're probably referring to the criminal sphere where I don't work. And so in the civil sphere the law recognizes the right of each of us to autonomy over our bodies and I think that assault colloquially is thought of as somebody punching somebody else in the face, but it's actually, you know, somebody making physical contact in a harmful or offensive way with, you know, that's it. That's— you don't have the consent, doesn't come into it. If you prove that, if I prove that you came and scratched my back and that in all the context of it, the fact that you held power over me, were able to influence my career in a micro and macro way, all these other things, and that you came over and scratched my back for 5 minutes, then I mean, like, that's potentially to some people offensive, right?

80It's certainly not respecting boundaries. I think we can agree with that. You know, how much money is it worth? I'm not sure. But a major difference between civil and criminal law is that consent doesn't come into it until it's raised as a defense. So it's not it's what's called an intentional tort. And you prove it by, by proving that the contact took place. There's no mens rea component. There's no intending to touch without consent. And that goes back to Supreme Court's decision in Scalera. So that's very clear. Like sometimes I, I get asked about how does reasonable belief in consent factor in? Like it doesn't. There's like, you can raise consent in defense, and either you had it or you didn't, basically.

81So, and, and it gets proved on a balance of probabilities. So all of this— I'm gonna be controversial and say, all around, you're scaremongering about creep and stuff like that. I mean, I think, is the law just starting to appreciate the perspectives and experiences of people who are not, I'm going to say, you know, white men at its most simplistic. Who, and, and to be clear, because white men constructed the common law, so, you know, law, law is flexible for that reason. So I should probably say white straight cis men constructed the common law and that leads me to

83Oh good, we're just, we're just not avoiding any subject today.

85Or

87I mean, really, really, really what you need to do is bug a conference of women. But anyway I think, I think what sets me apart from a lot of women on in this area is that I do now work for myself. As you say, I am home, and so I have less constraints,

89no, I'm talking about the way the law was constructed, right? I don't— that shouldn't be a controversial statement because if you go back and look at who could be a judge, you had to, you had to be a landowner too. So a landowner, you had to be a first a peer of the realm and all that stuff. So like, these are historical facts. As you say, I have a degree in history. This is how the law was built for many centuries, and it's not the case anymore, but I think that's a historical fact.

91I'm gonna get hate mail after this, Pulat, but that's okay.

93Yeah, it really is. So to answer your question of how I became counsel the commission, for those who are not aware, was created in the wake of a mass casualty event, two-day mass casualty event, and that started in a community called Portapique in Nova Scotia and spanned 13 hours and about 100 kilometers and resulted in the death of 23 people in April of 2020. So the early, very, very early days of COVID And the federal and provincial governments created a commission, a public commission of inquiry to look into it and when any commission of inquiry is created the governments issue orders in council. And that is where the commissioners— that the orders in council, they create the commission and they appoint the commissioner or commissioners.

94In my case, there was 3. And they give them instructions essentially as to what they are to look into. And that is the beginning and the end of, of what the government gets to say about it, because it's an independent process. Us. So in the orders in council for the Mass Casualty Commission, one of the things that they were directed to look into was the role of gender-based violence. And so they were looking for a member of the senior counsel team to sort of take on that piece of the mandate. They initially tried to find counsel in Nova Scotia, and because it is a much smaller bar, could not find somebody with the requisite experience and no conflicts, which prompted them to reach out to me.

95And one of the three commissioners, Dr. Kim Stanton, I knew through work we had both done for LEAF, for the Women's Legal Education and Action Fund. And so that is how I ended up receiving an invitation You know, and I will say that although I certainly have no roots in the Maritimes, my husband does, and his father and siblings were born and raised in Sydney, Nova Scotia. And it turns out that one of my father's— sorry, one of my husband's uncles taught Chief Justice Michael MacDonald 8th grade. So I also passed sort of the maritime litmus test. And so that's how that came to be. I can't remember— oh, you wanted to know how it's different practice.

96It's, it's exceedingly different. I mean, I think the other thing that, that may have put my name on the list to be commissioned counsel is that I had done two very long inquisitorial processes before that. The first being the coroner's inquest into the death of Ashley Smith. And the second being the coroner's inquest into the death of Katelynn Sampson. And coroner's inquests, like inquiries, are inquisitorial as opposed to adversarial. And so they are dynamic, multi-party processes in which you're supposed to be working together to find facts, essentially, as opposed to arguing with each other about what the facts are. And so I think that at its most sort of essential is the difference between commissions of inquiry and virtually any other form of adversarial process.

97This is the first time I've acted as commission counsel, and it's a challenging role because you are neutral in the sense that you are not vested in any particular outcome or findings the way you are when you represent a party. It's also an amazing role because you're not vested in any particular outcome or findings. You really are just sort of like—

99Yeah, I mean, you're counsel to the commissioners and you are there in pursuit of the truth.

101I think it's a great question. I think Scandinavia, a lot of Scandinavian countries use inquisitorial processes, maybe other European countries as well. I think that until you do one, it's hard to articulate how differently things sort of unfold. But certainly at the end of each of those processes and other sort of shorter coroner's inquests I've done, you do feel like you have a much more robust, you know, testing and sense of the facts. Obviously the rules of evidence are very relaxed. The commission gathers information and evidence in all sorts of atypical ways. So I think people think of like the public hearing part of commissions of inquiry but we gathered evidence in all sorts of ways.

102And the other extremely unique thing is, is that you're talking to the commissioners about the evidence you're gathering from day one. You know, there's not this sort of formalistic, everybody in their corners, everybody gathers things, and then the judge walks into the courtroom knowing nothing. You know, they're not judges, but to the extent that they're ultimately the finders of fact and the decision makers, they are like, they, they are in the trenches with you from the beginning.

104So my firm just turned 4, so my answers to this are somewhat arbitrary. We have I, I think some grounding in feminist principles and links to community. I think that feminism is not about girl power. It's not about, yeah, rah-rah women in charge, which I think is a distinction that's really been eroded. It is really thinking about systems and structures and the way in which we can move towards a more equal society. And that isn't just about gender. And I think that that's a real falling down of past generations of feminists. So I think that I look for familiarity and facility with those concepts and people who have really thought about it and not just sort of bought a girl power t-shirt off of Etsy.

105You know, I would say excellence in legal work, but that doesn't mean that you need to have straight A's. I did not have straight A's. But, you know, like intellectual curiosity would be a big one for me. The ability or the desire to be an advocate. I think a lot of people are interested in these issues, but you have to be prepared to sit face to face with clients who've been through a lot of trauma. And need you to be their advocate. And there's a lot of inherent, I think, stress that comes with that for some people.

107So, you know, we've, we've sort of hired a whole bunch of different people with different backgrounds. I've been lucky to have some amazing junior lawyers at this firm in its short life, and some of them have come here and discovered that it's not actually for them, that, that it was harder to be face-to-face with that trauma than they anticipated. And I guess the other sort of atypical piece of advice is that, you know, get a grounding in the sort of day-to-day skills of civil litigation. You know, knowing how to take a brief and move it through the process in sort of a smart, efficient way is a very transferable skill. But I think if you look at the associates who are at the firm right now, they all have very different backgrounds.

108One came from family law, one came from corporate law, one— we just hired back our first summer student who was our summer student and our articling student. And so there are, there are tendrils of those legal areas in our work. But I think that sort of the common denominator between them right now is an interest in facility in the firm's core principles and the fact that they're very promising young litigators.

110Thanks, Pulat.