JusticePaul Perell

4Well, I was born in Hamilton, Ontario in 1949.

6Well my dad served in the Canadian Air Force in the Second World War, and he came back from overseas and He married my mother in 1947, and I was born in 1949. My mother and father worked together in a paint store in Hamilton, Ontario throughout the whole life, so I had a working mom. In relatively short order, she had 3 children. Me and my two sisters. We went— we moved to Burlington when I was in grade 3, to Aldershot, Burlington. We sort of had a middle-class existence. We lived with my grandmother, who was originally from Russia, but the Ukraine part of Russia. My mother and father were first-generation Canadians, and we lived with my grandmother and my mother's brother, my uncle.

7So there were 7 of us. I went to high school at Aldershot High School, decided that I wanted to go away to school, spent a year at York University, transferred to the University of Toronto where I was a major in English. I was reading a Dryden poem one night and decided that that was enough of that. I did the LSATs went to Osgoode Law School, graduated, went to Weir and Foulds, where I was in the litigation side of the firm, and then became a partner. And at the time, there was beginning a vogue in Toronto that had been started by Justice Bertha Wilson to have research departments. I was in the litigation department. I thought Weir and Foulds should follow.

8And I was always academically interested. So I became their research director, which was really part of the litigation side of the firm. And then, oh, I think 19— at some point or other in the 1980s, I enrolled in the full-time master's program while I was working at Weir and Foulds. So I was doing two things. Don't think I told them that I was doing that. So I got my master's degree, and then 10 years thereafter, I did the same thing with a PhD at York. I didn't tell anyone. I didn't tell anyone except my family that I was doing a PhD. And then I got my PhD. I phoned my Jewish mother and said, "You wanted a doctor.

9You now have a doctor." And that's the history.

11How do you—

13Just on that, I taught at Osgoode for I can't remember, but for approximately 20 years before I was appointed and for a period after I was appointed. I also, at the beginning, I taught both semesters at Osgoode. So I taught a lot of people. I began teaching one semester at Osgoode and one semester at U of T. So I taught at both schools for a period of time. So probably— I can't remember exactly— probably taught about 10 years at U of T at the same time as I was teaching at Osgoode. And then after— there was a few years after I got appointed, I stopped doing both.

15Well, I actually never was a real estate transaction expert. The only transactional work I did in real estate was when I was an articling student. I got sent to Cornwall to close part of a very large Plaza Real Estate transaction. And I have to say, for 6 years, I sweated the limitation period out because I didn't know at all what I was doing. The reason I got into— I have a reputation in real estate, and I ended up teaching real estate— is I had been doing a lot of continuing legal education and writing papers and doing attendances at the Canadian Bar Association Ontario and for the Law Society. And an editor from Butterworth at the time by the name of Paul Truster, who went on to do legal education work for a variety of organizations, contacted me and suggested that I do a book about mortgages.

16I wasn't particularly interested in doing a book about mortgages, but I thought that it would be useful for my job at Weir and Foulds to do a book about real estate remedies. And in the context of doing a book about real estate remedies, You had to learn the transactional side of real estate transactions. But I actually never did that work. And then I wrote the book. And then I applied to be an ad hoc faculty at Osgoode to teach that. And then that's how I got a reputation in real estate.

18Well, I occasionally do some legal education, and I have been for a long time on the Superior Court's Education Committee. Do I miss teaching? I like the teaching very much. I hated the exam marking at both schools. It's quite oppressive and It was something that was a bit too much to manage while I had my judicial career. And it's not so— it just became a bit too much to do the teaching. I was typically— what I was doing when I was teaching the courses is I'd have a regular working day and then go to either Osgoode or U of T by subway and teach from 7 o'clock to 10 o'clock.

19That's a very long day.

21So I may go back to it, but I did stop.

23Well, the normal sort of rotation when you become a new judge in Toronto is that you're rotated through a variety of lines of service. One of them is civil, one of them is criminal, one of them is family, one of them is divisional court, another one is class actions, one of them is the commercial court. I had begun my career and I'd done a civil rotation and then I did a family rotation. The next sort of rotation would have been to probably criminal. But Alex Hoy, who was doing class actions, she rotated off class actions and went to a commercial court. And they were looking for someone to do class actions. And the sort of understanding is that if you do class actions, you're sort of locked in for a couple of years, at least 2, perhaps more.

24So I volunteered to do class actions because I was interested in it. I have— I had a major background with respect to civil procedure because I had been on the Rules Secretariat, which was the research arm for the Civil Rules Committee, along with Gary Watson and Justice Craig Perkins and John Tuig from the Ministry. And we'd been working for years and years and years Class actions are really just a major aspect of civil procedure. So the class actions as a spot is not the easiest one to fill. And anyway, they— I was picked to do class actions in I think this was in 2007 or '08. And then what happened is I never left is what happened.

27Well I think one of the interesting things about class actions is as an area is that it is a continuing to be developing area, and it morphs and changes. I don't know that there is, you know, per se, an unresolved issue. There are issues that develop. Some of the issues have a tendency to pendulum a bit and move back and forth and change. I think there is some major work that needs to be done with respect to the individual issues part of the class action proceeding. I think the amendments to the Act need to be shaken out and there will be some changes perhaps there. The other aspect of class actions work that makes it interesting is it's an area of law in which substantive law develops.

28And so there's lots of interesting, you know, areas of substantive law that are connected to the class actions group. For instance, in the securities area and in the competition area and in the tort area and the consumer protection area, where as interesting as the class action side is, the substantive law side is, particularly with respect to new torts and a variety of things like that. So it's very interesting work, and it's certainly not static.

30Well, I think the answer to the question is not whether they can. The answer to the question is that they do. Class actions are a aspect of civil procedure, but they actually can be further classified as public law, and they have seen a clawback, really, of the jurisdiction that the court had, but lost to a variety of administrative tribunals. I mean, the— admit public law pulled things like the regulation of securities and sent it to the Securities Commission. Public law pulled competition and sent it to the competition tribunal. Public law pulled labor relations and sent it to, you know, under the Employment Standards Act, to, you know, government regulators and a variety of things.

31Well, class actions have got the court back into being a player in those areas of law. So the answer—

33Yeah, exactly, exactly. And so the question is not whether it can, it is.

35Well there was a period of time where— well, it's still a period of time where I do some sort of freelancing. I used to occasionally drop in and do some family law. I haven't done that in a long time. But from time to time, I will fill a chair for the divisional court when they need someone. I do a lot of long motions in civil procedure, in civil matters. I, a long time ago, did a few attendances in commercial court, but they have been relatively rare. Similarly, with respect to estates, which is developing, there's a new estates team being developed, which I think is a good thing. And I occasionally would drop in and do that.

36In terms of percentages, it varies, but I would say that it's, it's probably almost 50/50 in terms of doing class action work and doing long motions work in just about Anything you'd want to mention?

38Well, The question is a bit academic in the sense that I'm in my penultimate year as a judge and could— actually, I could retire at any time. My mandatory retirement is in 2024. It's a bit late to go back and do the criminal law rotation, which, save for a couple of summary conviction appeals, I never did. I like the class action work. I like the long motions work. I like the occasional visits to the divisional court. I've also done occasional estates case or commercial law case, so I'm quite happy with the selection of work that I have and so it's not likely going to to change in the foreseeable future.

40Well I think I think it's at the core of what I do as a judge. The I was You know, I went to a firm that had a reputation of being lawyers' lawyers. Practicing law is about the law, I think. And I love the notion of developing the law and writing about the law. And so, as I say, at the time there was this development in Toronto where the large firms— Weir and Foulds was a medium-sized firm— but the firms were developing research departments. I loved the writing. I'd done a lot of legal research as an articling student and liked it. And that and some curiosity led me to being a legal research lawyer.

41But it was part of the litigation department. And, you know, I aided the partners at Weir and Foulds with respect to developing cases and a variety of things like that. That and the teaching, I think, was an excellent background. That and the work with the Civil Rules Committee was an excellent background to be a judge.

43Well you read an awful lot of law doing class actions and long motions so it's not that you necessarily have to go looking for the law. I have been a legal author for a long time, and Writing the book about real estate led to me reading a lot of law. I have my book, Ontario Civil Procedure book, which is in the 5th edition. Well, I'm working on the 5th edition, so I work on it from time to time. I sometimes borrow the work that I'm doing on a case and use it to update the book. But I, you know, read a lot of cases from time to time to update the book, and that gives me an insight in the law.

44And from time to time, I still continued writing the odd piece about, you know, the law, about something or other that might interest me. So that's— I read a lot of law actually and write a lot of law.

46I— yeah, the answer is yes, that's true. And they provide you know, huge, you know, authorities' casebooks containing a variety of law. And class actions in a variety of areas tend to be cutting edge. So you get a good dose of what the current law is, but I don't you know, subscribe to some sort of service or anything like that. It's much more ad hoc.

48Well, you know, a lot, but not— they wouldn't be in the majority. There would be all kinds of other books that are behind me, a variety of sorts. There's quite a few books of law, but there are also quite a few books about the topics that might be relevant to the law, and there's quite a few books that have nothing whatsoever to do with the law or are about different things, but lots of—

50Well don't know that I have any secret writing technique. I have spent in terms of sort of, if you will, extracurricular reading, I spent I took a great deal of time reading about writing at one point in my career, both in terms of books about legal writing, but also a great deal of, you know, books about grammar and composition and syntax and rhetoric and a variety of different things. I— the explanation to answer your question is I work a lot. So, the— it's not— and I guess the other answer is that I am relatively well organized, and I've kept most everything that I've written. So I have taken up the practice of whenever I do a topic to try and do more than the topic necessarily requires.

51or the subject requires at the time, because I think I'm likely going to come back to it. And so I have a lot of material, and that speeds things along. I mean, I think if you start to read, say, my class action judgments, you'll see a lot of repetitive material. That goes in. And, you know, when I get an area, I will work it up, particularly if I work it up the first time. So, you know, when I got my— you know, when I got cases with respect to, say, the government's forfeiture legislation, You know, when I got that first case, you know, I did more than was necessary to understand in that first case.

52And so when I got the second one, I would you know, build up the material. And so that speeds things along, but there's a lot of work.

57Well that's a massive and complex question, but let me take a stab at it from my background, from my PhD dissertation, which was about rhetoric. Now, rhetoric is about persuasion, and what the legal profession is about and what judges are about is about persuasion. And Aristotle wrote that persuasion takes place in 3 forms. One of them is in politics, one of them is in sort of ceremonial occasions, and the other one is judicially. The law is an aspect of persuasion, and— but what Aristotle and others back 2 or 3,000 years ago taught— they were the originals of law schools. And the sort of notion of the legal profession actually begins back in ancient Greece.

58And there would be parallels across the world. Aristotle's theory, which is the one that I think works, is that there's three kinds of persuasion. One kind of persuasion is what he called logos. That's legal, logo, logical. Set of rules, a set of principles, a set of arguments that use— that's the paramount one. But along with it, he said, there was ethos and pathos. Ethos is the character of the speaker, and it's their testimonial and personal authority and weight. And a good lawyer will have ethos. They in themselves will be persuasive in the manner in which they carry themselves and the integrity in which they do so. And the trust that they can build up with the adjudicator, the person they're trying to persuade.

59And then there's pathos, and pathos is the appeal to the emotions. It's the fact side of it. It's the justice side of it. It's the where it grabs you in your gut. They all work together. Now, a good lawyer and a good judge understands how to work all of those buttons. I think all of those buttons are important, and a lawyer will know how to tell the story and push the buttons, but the lawyer will still have to make that all fit within something that's logical and legal. We don't and cannot rule just, you know, by the heart. But those factors work. If there's lawyers that we trust, then they tend to be more persuasive.

60But you can only push it so far because you know that at the end of the day, you're only as good as your horse you're riding. And you can't, you know, you can ride it as hard as you can, but lawyers lose more cases than they win. It's not necessarily their fault. I consider myself in the same business of persuasion. I have to persuade the parties and the Court of Appeal from time to time, or the divisional court, that the judgment, the decision was sound. But it's all about persuasion, and all of that works. I think there is interesting work to be done about the you know, the emotive side and how you, you know, stir up a judge one way or another.

61And there's interesting psychology that goes into that. Aristotle's book on rhetoric was regarded as the first book on psychology. So I think that might be helpful for you to sort it out, but I would say that you can't ever abandon the law side of it. And so it sets parameters, but you can't just put all your, you know, you just can't rely only on the law. You have to rely on the whole package to make it work.

64Well First of all, there is actually quite a bit of writing about it. Some of it is intuitive and some of it is scholarly and defined. Quite a bit of the intuitive side of it is actually in the legal writing about trial advocacy or appellate advocacy or persuasion and can be taught and it can be acquired about, you know, how you can push emotive buttons. Lawyers, I probably intuitively do too much of it because they tend to focus on what is described as the color of the case, and they find the color of the case, and they beat the color of the case, and they try and persuade the judge by the color of the case.

65They quite simply, from time to time, try and make you mad at one a person or the other. There's a danger with respect to overdoing it, I think, because sometimes judges react to the bullying that goes on or the disrespect that one party shows the other. But it's the color in the case, and people— lawyers learn how to play the color of the case, and they do it frequently. There is a natural intuition. People know how to argue, and people also can be trained to understand, you know, what's a fallacious argument or what's an ad hominem argument or what is an argument towards the person as opposed to the principles of the case. All of that can be understood.

66There's a lot of scholarly work about persuasion. You know, the advertising industry is built on persuasion. If you pick up some books about advertising, if you pick up some books about marketing, if you pick up some books about decision-making, you'll get a ton of psychology about things that can persuade. There's not a lot of legal writing that takes it into the science. You know, Todd Archibald in his book, you know, has written quite a bit about the psychology of persuasion and things like that. Lawyers are not— they may acquire it by intuition. When you settle cases and when you're bargaining to do a settlement, you're pushing emotive buttons as much as anything else. Negotiation is another form of persuasion.

67There's a lot of psychology, you know, with respect to that that goes into the process. So you know, if you wanted to be a student of it you could be a student of it. And so it is written down, and you shouldn't undersell what your intuition about these things are lawyers tend to have pretty good intuition about how to push emotive buttons. You know, the criminal lawyers know how to do it, and the civil lawyers know how to do it, and the family law lawyers know how to do it for sure.

69Well, it's changed over the years and the, you know, the current situation on the civil side where most of the work now is being done remotely, just the way we're having our conversation right now, and there's much less in-court oral attendances. We're at an interesting period of time to try and understand how oral advocacy is going to work out on the civil side. On the criminal side, they're going back by and large into the courtrooms, and the mix between oral advocacy and written advocacy differs to a certain extent, well, to a large extent, depending on what line of service we're talking about. Whether it's, you know, the criminal where there is a major, major tradition with respect to oral advocacy and criminal jury trials and a variety of other things.

70Most judges will tell you that the criminal law advocates are better oral advocates by far than the civil ones. They get more a chance to do it, and they're better at it than the civil ones. Practically speaking, as you know, civil lawyers do way, way more writing than they get the opportunity to be in court standing up on their feet during oral advocacy. On the civil side and the class action side, a great deal of the thing is driven by the writing as opposed to the oral advocacy. I think another change has been the imposition of time limits. I mean, when I— at the start of my career, there were no time limits. you know, a case took as long as it took to argue, and people had a sort of the time.

71I mean, I argued cases where, you know, you would stand up and say, you know, here's the case, here's the facts of the case, you know, here's what the decision was made in the case, here's the academic commentary on the case, and here's where we want to take this case. You never hear that anymore. I mean, nobody's got any time, you know, to do that. What you get now is, you know you know, a cut and paste from one section of the case that nobody's ever talked about or referencing, you can read it in my factum. So we've outsourced a lot of the reading that used to be done orally that's now done— actually, it's not even done in the courtroom.

72To answer your question personally, I do a great deal of preparatory work before any motion is argued, and I try and understand the case, and I will usually have an inclination of where I'm leaning by the time the oral argument begins. I wonder from time to time whether anything has usefully been added by the oral argument, but Often I find the oral argument to be very useful and an opportunity to better understand the case and to be fair in arriving at a judgment. So I'm not in the camp of saying that we should go and move to some sort of written world only, which would be which is kind of— we're trending towards that to a large degree.

73But I think we have to be careful that we don't abandon oral argument. And but I think people are going to have My colleague, Justice, you know, Letterman, we've talked about this and, you know, he's indicated that we're in a new world about oral argument done remotely. I mean, what's, you know, there's a different set of presentation skills that, you know, may need to be developed. And I can't tell you yet what's the best way to go about it, but it looks like we're not going back,

75Well, thank you very much for inviting me, and you were very kind in your interviewing, and so I appreciate it. Thank you, sir.