Ken McEwan, K.C.

2Hi, Pulat. That's awfully nice of you to say. Too much.

4Yes.

6Yeah, that it is.

8I think it's 37 now.

11Yeah, we were— and when I say we, it was through Torys initially contacted. I've done— had some connections with Torys over the year, and my partner Emily Kirkpatrick worked at Torys for several years. So in fact, we were told not very much, that there was something going on that we may need to be involved to one degree or another in litigation in Vancouver, briefed on it a little bit, and then as the matter evolved, Jonathan came on doing other parts of the case as well. As you know, I'm sure, It went on and there were competition issues and so forth with the Shaw merger. So we came on. I'd known Jonathan before, worked with Matt Gottlieb, his partner before, Terry O'Sullivan and Cliff Lax through other cases.

12But that's how that came to be. And we worked together on the quick-hitting Vancouver litigation.

14Well, it was in person. It was on a tight schedule, at least for Vancouver, a sort of commercial list type schedule, which we do pull off from time to time on cases that demand rapid solutions. We worked on it. There were two of my partners and I, Emily, who I've mentioned, and Will Stransky. And yes, Jonathan came out with Crawford and Matt Law. And so there were 6 of us there the day that we pleaded the case. We were in a large courtroom. There was obviously a lot of interest. There were overflow rooms for reporters. But at the end of the day, it was like many other cases. Once you really worked it down, it was a pretty simple Pretty simple question, and and it went our way.

16Yeah, well, we don't have a regular commercial list, and we don't in any formal way have specialization amongst our bench. But in informal ways, there are judges who tend to hear similar types of cases. And you know what we do is if you have a case and you don't abuse the privilege, but a case that has urgency and demands quick attention, you reach out to the trial coordinator, you reach out to the Chief Justice, you explain why it's urgent, and things do get accommodated when, in my experience, when necessary. This one was, I Geez, I can't remember exactly, but it was a matter of a couple of weeks, I think, from the time we filed to the time we were arguing.

17No more than that. I've argued a case in the context of a takeover bid, minimum period of 35 days, where we were through the Court of Appeal from the filing of the writ in 21 days, and the court just got that accommodated. So it's a far more informal procedure. but as needs be, you know, the court, the court does find ways to get it done.

19Yeah, we were.

21I grew up in a little town in the interior of BC called Trail, and it's in the Kootenays, right along the American border. The year before I was born, as anyone from Trail will still tell you, they were the last amateur world hockey champions from Canada. And it's there because it was smelter is still there, but it was at one time the biggest non-ferrous, non-iron smelter in the world. Lead, zinc, all sorts of stuff. So it was an industrial town. My parents were from Vancouver, moved up there after my dad finished university, after he, he was in the RAF in World War II. And they never left stayed there, raised their family.

22And and then, you know, they're— I, I'm one of a number of brothers and Some of us left and some of us didn't, but my parents always stayed.

24Oh, of course they were. I, I think I got a lawyer idea in my head when I was about 10 years old that, that never shook obviously. I don't know exactly why or where it came from. My, you know, my My parents were very, very— thought education was the key to most things, if not all things. And so they were very, very for all of us going to university. My dad had been the first in his family to go to university. His father was a train engineer for the CPR, and my mom's father was a customs agent on the Alaska Panhandle of all places. But, but they were focused on education.

25So you were going to go to school. What you wanted to do was up to you. But they were very, very much in favor of us all getting education and going from there.

28It existed. I had cousins in Montreal, so Montreal, and they used to come. They— he— my mom's brother worked first for CP Air and then Via Rail, and they were constantly traveling. Montreal was a place that we talked about and thought about, and most of our family were Montreal Canadiens fans. Toronto was there, but it was far. Vancouver was the big city, and that was an 8-hour car drive away. So that was sort of the focus of your thinking when you were from a small town in the interior of BC.

30Well, I think it starts with the fact that, you know, Toronto is very much the economic center of the country, and so it throws up an awful lot more of those kinds of problems and cases. I, you know, the origin of the commercial list isn't something known to me. I associate it with Justice Farley. We are awaiting a new Chief Justice. Our prior Chief Justice was very much a— wanted his judges to be generalists. We've, of course, all been suffering from lack of appointments. So, you know, a combination of factors, amount of workflow, number of judges, philosophy of the Chief Justice have left us with a relatively generalist court. But, you know, that doesn't mean as the cases come along, it's not, all right, well, here's who's suitable for that, who's got the time, we've got to get this done.

31And so just a much more informal process for all those reasons.

34Oh, well, I mean, I'm not— that's interesting. I'm not sure I'm with the premise that BC is more efficient. I think there are some— and we're talking about, you know, a system of justice that has different parts. I should say, Shannon was an associate of mine when I practiced at Farris. I know Shannon started working as a summer student with one of one or two of our lawyers when she was about 16. So go well back with Shannon, and she's had just an incredible path. The CRT, yes, it's efficient. It's not beyond its own controversies and just by way of process. But I don't know that if you file your— we call them notices of civil claim out here now.

35You get a trial date. I don't know that it's much more efficient. I know it's very frustrating often to people from Ontario and Toronto that they'll get all ready for their trial and their chances of getting a judge might be 1 in 3 the first time you set it and you've prepared your trial and off it goes. I've had experiences on the commercial list of seeing things get done in months that would have taken us years. So there are different pieces of different parts. Everybody's tackling the same problems in different ways. So that's, I guess, an answer that starts with, I think, the premise that BC is more efficient. We had a big move for a commercial list about 10 years ago that just didn't didn't get off the ground.

36But I think there is just less demand for a specialized court is one of the features of why it hasn't continued to be talked about. I would certainly like to see a few judges. I believe a bit more in specialization in the court. It's there informally. But in any event, I'll let you ask another question. I'm just not sure that I— I'd buy into BC's just more efficient across the board.

39Yeah, I think the legislation has tilted a little bit to make BC— I'm not doing a lot of class action work these days. Your career sort of goes through kind of streams and currents and you get caught up. But I understand that, yeah, the legislation has been tweaked such that it's a favorable filing jurisdiction for plaintiffs.

41It's so, it's much like the American College smaller. There, there are, I would guess, 40 or 50 Canadians and a few spread elsewhere. But yes, the weight of the organization is, is definitely American. It's a sort of peer-reviewed Judicially supported candidates for membership group that really takes one convention a year. And the first thing you're told is that you wouldn't be here if we didn't think you were good lawyers. So do not spend the week talking about how good a lawyer you are. You're here to have fun. And it has speakers of kind of all walks of life, bit of a renaissance week, there's just enough law to get people their CPD credits.

42And and it's just a very tight-knit kind of cathartic week where you're meeting with old friends and, and seeing great speakers.

44Yeah, the, the college is a, is a larger organization. I, it It has more activities. It has more of a staff and is involved in— promotional is the wrong word, but an advocacy group for the trial lawyer profession, much more, and a larger group. You mentioned Jonathan is a member. There are you know, many out here. Yeah, larger organization, same idea, but a bit more law-oriented in many ways than the International Society of Barristers, which is a let's spend a week together with a little bit of law and a lot of other stuff.

46Another similar organization Brian Gover from Stockwoods sponsored me into that. And I think Matt Gottlieb, Jonathan, there's several lawyers here. Everybody, all of those organizations are kind of looking for the same profile. So you end up, if you end up in one, you tend to end up in others.

48I was from, oh, probably 1997 or '98 through 2014 or '15 when the committee for a period was disbanded.

50Well, it was— there was—

52No, I, I, I don't I don't think so. I mean, I'm known as someone who liked them more the way they were and thought that it turned from one volume that was about 2 inches thick into 3 volumes that were about the same thickness. We split the family rules from the civil rules. Yeah, I was involved in that for a long time. I don't know personally how many solutions lie in rules. It's about people doing their jobs well and better, more than the rules. But yeah, I spent a long time on that committee as probably a bit of a naysayer for some of the things that were being promoted.

54Oh wow, that's That's an interesting— that's a very interesting question.

56Well, I mean, one thing that that does come to mind, although it's sort of not a number one rule change, is I found, and I think a lot of the Bar found after we did our big rewrite in 2008, you know, we used to have principles and we had to find a word for them and the word was requisition and we reordered them and renumbered them. And I can still cite to you the old BC rule numbers and I don't know the new number. And so I have a table of concordance and lots of people found that some of what happened felt a bit gratuitous and like there was a whole bunch of institutional knowledge and, you know, learning a new language is always a time-consuming thing.

57And of course, time is precious and costly.

59Oh, I think Ontario's looked at a lot substantively, and in particular areas, certainly on the commercial law. And it's not that we don't have our own body of commercial law, but I'll take an Ontario Court of Appeal case or a BC Court of Appeal case anytime. There are areas of law that I would imagine family practitioners, because it comes off differently designed statutes, that it's probably less so. But yeah, The size and depth of Ontario in the practice necessarily makes it influential if you're trying to do the best job you can out here.

61I know it's more all the time than rare for sure. Where it falls between those two, I don't know, is a matter of judgment. Part of it is, you know, our job isn't find me a case that says it's— tell me what the law is. And that necessarily entails deeper digging. Where's the bigger pool of consideration principle? So yeah, we end up with Ontario law cited frequently. You know, you still, if there's an equivalent BC case on the subject, that's your starting point, of course.

63Well, let me attack that this way. I mean, I sometimes say to young lawyers, and you're in interviews and they're talking about mentoring, and I say, well, what do you mean by mentoring? And I turn around, I say, I always thought for me mentoring was as a young lawyer, finding the best lawyers you can and as many good lawyers as you can to work with as often as you can. And that being the key to it, I, you know, that's one of those things that, as you said, you know, currents and things are constantly in flux. How many lawyers you train, you know, as you start getting more senior, you start working with people that are more junior.

64There come to be more of them over time. Gosh, I, you know, I spent, I had a hearing week a couple of months ago where I appeared in front of two judges who were former juniors of mine. You want to talk about a funny feeling. So I don't know. I mean, I think you have a lot to learn. As well as the senior lawyer and a lot of listening to do. And one of the very first lawyers I worked for was famous for making sure he told everybody that. And so it's a two-way street. But life is experiential, right? You just create experiences, expose us to experiences, be as involved as you can. Try and keep everybody's expectations high that sort of thing.

66I articled at a boutique called Doust& Smith. Len Doust was a very famous— he's still is a criminal lawyer in these parts, had a national reputation. And Ken Smith, he, so he was the criminal side. There was a civil side that I articled to a fellow named Ken Smith, who, great lawyer, great Court of Appeal judge. And we were 12 and had civil and criminal side. I did more civil, but I was a year called when we merged into a firm called Shrum Liddle that became part of McCarthy and McCarthy. And so 3 years out through the mergers, I was at McCarthy's for a couple of years. So I've gone from this little boutique to the first national firm.

67So that was the path and got exposure to more lawyers and then moved on from there to a local full-service firm called Farris where I stayed for about 17 years working with the litigators there.

69Yes, KC now. I was introduced to that project by Mark Gelowitz from Osler.

71Mark, well, Mark has the appellate

73And I had, I actually was one of the very first BC members of the Advocates Society, which I came to through the Sopinka Cup. and I was president of the Sopinka Cup, and the society was involved in that and got to know some of the people. But Mark, I had done a couple of cases with, and he said they're looking for someone to do an edition of this book. And so I said yes, and several years later actually got it done.

75Oh, they're becoming Not extinct, but rarer. There are all the pressures we all talk about, the cost pressures. My own view, and one of the lawyers I worked with, George McIntosh, has come back from the bench and joined me. I used to do large trials under him where he insisted you gave him 200 documents and no more, or he'd have a number, and he'd say you can distill anything down to what's really important. And so he, he drove, drove that. That didn't mean that I didn't have my own set of 1,000 in case I got the wrong 200. But I, I think that I, I think that getting— I think it's getting harder and harder, and some of the things are just extraneous to us.

76I think the photocopier is the enemy of the law. Just, I, you know, we produce so much law now. Somewhere in there in the book, I didn't know you had it, but there's a tag, little tagline to a chapter where Johnson of Johnson and Boswell in way back a few hundred years ago said that there's too many precedents to get to principle. And that was 200 or 300 years ago. And I think that's true. I think it's very hard to manage what we've unleashed with technology. I think it's very hard to become good at doing trials unless you've done some trials. I think we're loose on pleadings. I mean, there's all sorts of of drivers to the problem.

77And, and it, it just— but one of the things is there's just not opportunity at a more junior level to, to get in as much as people should.

79I, I, I think, and I, and, and there's many drivers, I think that I, I think that pleadings, you don't want to be overly technical, but we tend to run off of the pleadings, at least in BC cases, where there's an awful lot of evidence that needn't be led, shouldn't be led, is of marginal relevance, a little like we're running public inquiries. And I think one of the problems is just the length of trials. And it's interesting, you know, I mean, Judges will tell you that, but judges were lawyers and so probably did all the same things. It's a hard thing to get containment on for lots of reasons, but I think if we really were just better at articulating what is actually in issue and the issue through our pleadings and then sticking to it, we'd do better.

80But, you know, as I say, it's, it's there are so many things that make it so complicated now to do that, you know, starting with the photocopier,

82Well, I don't have any real predictive sense of that. I mean, I don't know where AI is going with what we do, and I pretended to follow that very much. I think everybody sees the pace of change and the problems it creates, but it's, you know, the solutions, the solutions are the terribly hard part. You know, I would like to see things like very well-funded law reform commissions. You know, their papers are valued, the American Restatement, we should rely more on textbooks rather than churning out, you know, the 4 or 5 books of authorities. There are, there are things that could be, but I, I don't know. It's just hard. It, it's been hard.

83It's hard to imagine things standing still long enough for finding funding to do those kinds of things, right? So, so where we are is with the shortage of judges and and longer and longer trials and less and less training and and it just, it seems like, you know, it's a tiger by the tail to try and get a handle on

85Oh, well, I mean, I think it's— I want to tell them that there's no— and I'm sort of— anybody in BC listening will say, well, there goes Ken. There's no substitute for hard work. And, you know, it is It is a fiduciary task, right? I mean, you owe people your best, but it's a wonderful life and it's— the experiences are fantastic. It's intellectually challenging. It's often very funny. So, you know, if you have a passion for it or if it's something that you really feel you want to do, just roll up your sleeves and it's well worth it. I really think that.

87Well, thanks for the invitation. I enjoyed it.