Peter Henein

2Great.

4I'm good, thanks. How are you?

6Correct.

8And litigation— yes,

10Correct.

12Oh geez, should we just— can we end now? We'll just end now on a high note? No,

14Yes.

16It was, it was. I mean, my goal going into university was to find a degree less useful than a philosophy degree. And I thought, Drama was arguably going to be just that much less useful. No, I— so it was a 4-year program. I did a drama specialist and it was full on, everything from dramaturgy, so studying plays, studying how to break down theatrical pieces, to acting, to lighting, to doing all sorts of stuff. So it was a lot of fun, great experience. And a very tight-knit program as well.

18That's right. Yeah, I have a follow spot on me now every time I'm in court.

20So I was a professional actor and I was a stand-up comic for about 6 years.

22Yes.

24Well, she was a dancer. I think dancers are cooler, inevitably.

26That's right, that's right.

28So I mean, when you say full-time professionally that, that means I waited a lot of tables at a lot of restaurants throughout the city. But yes, from '94 when I graduated from University of Toronto I immediately was doing theater, everything from local theater to stuff that was touring outside of the city. And then I started doing comedy with a number of people, doing sketch comedy. So kind of like, you know, not improv, but like Saturday Night Live kind of stuff where you write a sketch and you perform it. And so we did that for a number of years. And as I was going through that, I started saying, you know what, I kind of want to do the stand-up.

29I want to try that. And so I did that, and that ended up being probably my first love out of all of it.

31Yeah.

33So it was so long ago that that did not exist.

35Instead, where I performed, I performed at Yuk Yuk's, I performed at There was a place called the Laugh Resort on Lombard. I performed there. There was Comedywood up north in Markham. I used to perform there. And then bars and bars and bars across the city. The Rivoli, the Rivoli used to have a huge comedy scene. And Second City, when they opened up their space on Blue Jays Way, had this great side theater called the Tim Sims Playhouse, and I performed there. So I was, I was, you know, I would say most nights of the week I was out performing.

37Oh, they were just delighted to have, you know, one child who was a criminal lawyer and another child who was earning 2 beer tickets a night if I was lucky. It was certainly very tough for them. I was, you know, the irony for me, and it's something that I'm I feel like even this many years later, I can't quite forgive the attitude and the strident kind of resistance as a 20-something individual telling my parents. I remember saying very distinctly, like, "Get it out of your head. Under no circumstances am I going to be a lawyer. This is what I'm doing and this is who I am." You know, flash forward about 20 years and, you know, maybe I could have been a little bit more open-minded at the time.

38But yeah, no, they were supportive, 100%. They were supportive, but they were very kind of quietly just so fearful. You know, how is he going to feed himself? How is he going to do it? And, you know, I think in retrospect, I have friends who have continued to perform who people who I performed with who, you know, they stuck with it and, you know, they did very well, you know, but it took about, you know, 15, 16 years for some of them to start getting a really good regular paycheck and then to kind of break out. So I get it. I sympathize with my parents' concern, but yeah, that was where they were at.

40So, you know, it was a few things that were changing. I think in terms of the acting, I was becoming more and more disenfranchised with it. I just— I just disenchanted with it. I didn't feel like you were getting a lot of control as an actor. And there's a really derogatory term, meat puppets. And I started to feel particularly, I was— as I was doing television work, this idea that you just sit there all day waiting for your few minutes in front of the camera and everybody else is working all day. You know, I was very young and I could definitely have been using my time better, but it just felt like such a waste of kind of my time.

41And then all the comics I was seeing touring, you know, across the country and paying their way, you know, if you're lucky you would break even by the time you got back. It just seemed like such a struggle. And so I guess the way to put it is This is what my sister would always say about me. She said that I loved my art, but I didn't love it enough to suffer for it. And I think intellectually the comedy was really appealing because intellectually I was writing and I was, you know, that was a constant kind of challenge. But there was a point at which I just started feeling like, you know, intellectually I'm feeling satisfied, but I have no control.

42Over my career. And certainly law was something that had been thrown out all day, every day by my parents as an idea. It did not get pressure from my sister, but definitely from my parents. And eventually, you know, I at that point had met the woman who I was then going to marry and who I in fact did marry and am still married to.

44Thank you very much. She didn't have many options, apparently. She had to settle. But I did very well out of this whole equation. But we We were both actors, both performers at the time. And the question— sorry, this is a very long—

46No, no, she's in accounting. So she works kind of in finance. But we were at a point where we thought if we were going to stay in Toronto, we didn't think that our careers were going to take off. And so should we go to Los Angeles or New York, or just kind of pivot? And both of us around the same time started thinking more and more about wanting to pivot into something a little bit more serious in law. At the time, the plan was go into law, become an entertainment lawyer, and then start producing film or television. So law made sense. I just thought, okay, this is going to open up a bunch of doors.

47It seems like a pretty good bridge to something or to get back to where I wanted to be at the time.

49Yes.

51Yes.

53Got one.

55So, so there was a lawyer that I worked with by the name of Derek McKay, and Derek had been heavily involved in writing portions of the annual review of procedure that was appearing in the Watson McGowan Rules of Civil Procedure. And so he asked me one year, he said, I'm doing most of the class action work. I need some help with the rest of the rules. Could you pitch in? Would you be interested? And I said, okay, fine. I did about a third of the rules and split them with two other lawyers. And eventually I ended up taking over all of the non-class action rules. And so I wrote about, I wrote probably about, I wanna say 5 or 6 years.

56I was writing parts of the annual review.

58Yes.

62I was born in Toronto. I was born—

64I think actually it's either Brampton or Brantford. I can't remember because I was, I was quite young. But

66No, it's Hanane.

68Okay.

70It means— so it comes from, so I'm told, the word Hanan, which means compassion.

72So it's, it's a, a little bit of both. What happened was at the time, so I decided I was going to go to law school. I wrote the LSAT. It was a bit of a surprise to the family. I didn't kind of make a big deal of it until, until I had actually gotten through. I think I took a course, if I remember And so at the time, I was on the advice of people I knew who were lawyers who were far senior, including Marie. To me, they were saying, oh yeah, I think it's in, you know, applications are due in February or something like that. And so I figured, okay, that's fine, I got time.

73As it turned out, the applications were due in, I think it was October, and this is the end of September when I was thinking I have months now to put together my applications. So I very quickly put my applications together. Western was the first school to accept me. I was too late for Osgoode, they said that your application is late. U of T said thank you but no thank you. So Western really at the time that was the option. Now I certainly have no regrets, I think it was a fantastic school. I had a lot of really great experience there. But yeah, that was it. It was kind of— it happened to be the option that I was able to make at the time because I had applied, I guess I was completely out of the school system at this point, right?

74I'm still like coming out of comedy bars at this point in my life most days.

76No, no, I was fairly determined to be an entertainment lawyer. That's what I thought I was going to do. I was going to be a dealmaker, and then eventually move my way into producing. That seemed to make sense. Comedy did not help at the time going into law school, because I had just the biggest sense of imposter syndrome. You know, I just kept expecting somebody to run into the classroom, point at me, and say, "You, out!" And so I kind of kept that very quiet and just kind of was focused on this corporate work. And then obviously that's not where I ended up, and that had to do with a very quick realization that contract drafting and deal-making wasn't really as enjoyable to me as litigation.

77Litigation just, it was kind of like comedy in the sense that once the bug bit me, I was like, oh, this is a fit, this makes sense.

80So Marie absolutely gave me advice and helped kind of guide me throughout the process. And I remember very vividly she said early on, this is while I'm articling and I'm still, you know, during the articling process at Cassels, I got to do corporate law and I got to, and I had to make that election at some point, what job, what position was I going to throw my name in the hat for. And I remember her saying, I want you to think about this, the life of a corporate lawyer versus the life of a litigator, because I am sitting here in the courtroom balancing my brief on my lap. No, I'm sitting outside the courtroom balancing the brief on my lap with a Tim Hortons cup next to me and a half-eaten bagel on the other side, and this is what I do every day, and you have an opportunity to be in an environment where you will have You know, she wasn't saying more control, but I think it was, you know, more control over your life.

81And maybe some of the challenges that she was facing, you know, I was going to avoid. So I think on some level she wanted— you know how parents want their children to do better than them? At least you hope they do.

83What's that?

85Yeah, some parents. So I think that was kind of her own kind of version of that, saying, you know what, do you really want to do this? Do you really want to be schlepping yourself all around town and kind of eating fast food because you're in the middle of nowhere or you're, you know, some other city for the day and then you have to hop in your car and drive back? Or do you want to be working in a nice, you know, crisp, clean office environment where, you know, you will be making a really good wage and you will be able to kind of stay there and just do your work and meet people and so on?

86So she was actually encouraging me earlier on to go into corporate.

88I think there was some aspect of that. I think there was also some sense of you know, I think as the years went on, we talked about— I think there was some sense of, was I going to like the kind of aggressive nature of the litigator's life? I mean, every— you are being yelled at or berated by someone every day, whether it's a client or another lawyer or a judge. So I think there was some element of that, just trying to kind of protect me from the harshness of that life.

90I think I would make a good criminal lawyer. Funny enough, I've never actually asked myself that. I think yes now. I don't know if I would have back then. I think I took a lot from seeing not just Marie, but she also worked with Eddie Greenspan. And so seeing people and seeing Eddie and seeing people in that office and how kind of unfazed they were. It didn't matter what the issue was, what facts were, they were unfazed no matter how grim or dark the subject matter was. And so initially, I think I looked at it and I was a little freaked out when I was younger, saying, well, I don't want to deal with whatever sorts of folks that they're dealing with on a regular basis because it just seems too intense and the job is too important in the sense that if you don't do a good job, they end up in jail, you know, at least in many cases.

91As the years went on, I think, you know, and my practice or my experiences became more diverse, and I had more and more peculiar quasi-criminal issues come up with clients, it started to kind of develop a little bit more of a desensitization to the— or a lack of being intimidated by that. And so, you know, today, anything that you throw at me, I'm happy to kind of attack, and I'm not going to get fazed by a lot of you know, fact patterns or folks or issues that come up.

93So I, I did. I mean, the short answer is yes, I took, I took some things. I did get some opportunities early on in my career to work with Marie, particularly when I was a student before I got hired. I worked at her office, or at Greenspan's office, for a very short period of time, and then, you know, would from time to time kind of talk to her, work with her to help, I know, some specific aspects of some specific, you know, cases or issues. And so it was limited, but it was there. And then, you know, I would sometimes go to court and watch her or other people And I think the important distinction, and, you know, I know that the civil litigators don't get into court as much, but I think the way that civil litigators, and you would know this, that the way that civil litigators advocate, I mean, there's a long paper trail in some of these cases, right?

94There's a lot of emails and letters that are very strategically written and positions that are set out or built over, you know, days, weeks, or months. Or years, frankly. And so you are kind of litigating out of court by email, in a sense. And some of it sees the light of day, some of it gets in front of a judge, some of it doesn't. But what I took from the kind of criminal lawyers that I was either working with or getting an opportunity to observe, including Marie, was the very kind of strict strategic structuring of elements of the case within the litigation process. So cross-examination became, for example, for me, a huge, huge kind of focal point.

95Anytime that I'm doing a cross-examination, I will say that I probably spend more time or focus more on the structure of a cross than pretty much any other step along the way. And that's because you're taking all these elements, everything from the pleadings through to the evidence that you've received to date, and the legal, you know, the legal issues that you've been kind of keeping in mind in the back of your head and trying to structure everything so that those questions help direct you to a point where you're either taking down or taking apart some of the evidence that's problematic, or you're just kind of refining and pushing, essentially pushing somebody through a meat grinder of some sort.

96Or, you know, I'm sure there are other metaphors I can use that are perhaps less graphic, but you're trying to kind of push push it in a direction. And that craft-oriented kind of active role that the advocate, and then, you know, in most cases the criminal lawyer, is taking in pushing and directing how witnesses are responding to these various questions to kind of get to the point or the truth that you're trying to get to, something that I really took away. So, you know, part of me wants to say the theatricality, but I don't mean it that way. I don't mean it flippantly, I mean the theatricality in the sense that you are orchestrating, you are trying to really direct a process.

97So, you know, it's not fluff, it's the exact opposite, that in order to get the effect, in order to communicate or tell the story that you're trying to tell, you take all these kind of component parts and then you have to form them going forward.

99I summered, summer school, sorry, summer, I was a summer student and I article there. So I started there in 2002, came back as an articling student, came back as a lawyer. I think the one thing that jumped out more than anything was this concept that fit. The people there were very very personable, were very— it was a very kind of noisy group of people, and I love that. I love the idea that these people were very chatty and very kind of immediate. They were immediately present. So the conversations that I had with the lawyers as I was meeting them through the interview process, everybody seemed to pop. It's the way that I described it compared to a lot of the other firms that I was meeting with where you know, there were a lot of wingback chairs.

100There were a lot of folks who seemed comfortable in a wingback chair, and it just seemed like such a kind of stuffy or staid environment. I remember, you know, one firm, somebody telling me, "We have a very kind of structured process with litigation, so you will be starting with, you know, essentially carrying bags." And just the idea that somebody was making that part of the pitch, that you're going to start by carrying bags and observing. I don't know that there's anything necessarily wrong with that approach. I'm sure it works for some firms and some groups, but Cassels was kind of, you're all in, and everybody was kind of all in, and there was a lot of laughter.

101There was a lot of energy, and that actually played out as I worked there. When I would go visit other firms and I would just compare, you look down the hallway, it was very silent, whereas Cassels, there's always a conversation going on somewhere. And so it was a very collegial group. And I was interested as well because of that entertainment focus at the time. They also had an information communications and technology or entertainment group, the ICE group as it was marketed back then. And so I was also very interested in those other various components. So ultimately, I think the fit piece was the the biggest driver, that I just thought these people were really kind of enjoyable to talk to, and I felt like I could maybe be myself or some version of myself there, whereas I was having trouble with some of the, you know, the idea of fitting in at some of the other places that I met with.

103So you know, there are a number of different— there are a number of different kind of situations in terms of areas of practice and how people kind of kind of develop or show their value to the firm. But I think that that's kind of the one universal point is that you are bringing some sort of value. You know, there's the kind of simplistic distinction of lawyers in a Bay Street kind of environment as being finders, minders, or grinders. Either you're finding the work, either you are minding the work, managing other people, or you are just grinding. And all of those are paths forward. Certainly, I was not— I think I did various— had various stints in each of those roles.

104But I think ultimately, it was that kind of idea of becoming a go-to person, becoming somebody who was recognized as a trusted source who could provide, in that case, the litigation service that I was providing. So for litigators, it's about, I think, becoming kind of known as a responsible person who can handle these client relationships. I mean, remember, in a big firm, or maybe I guess for the benefit of those people who are looking at this and trying to figure out what an environment like that would be like, a lot of the clients are internally referred, a lot of them are are coming from the corporate lawyers. So you are, it's almost like managing somebody's family member.

105You cannot mess up that relationship, otherwise it becomes a much bigger problem for that lawyer and for their practice. And so you are coming in essentially as a litigator, usually during the worst time for that client and trying to carefully manage that. And so that trust, the ability to communicate clearly, and the judgment become, I think, a huge selling point. And obviously, I mean, if I was going to be super oversimplistic, I would say, well, you got to bring in a lot of money, but I don't think that that's actually really kind of identifying anything that somebody can model their career towards. And I think being integral to the area that you're practicing, being integral to the group is the best thing that you can do and something that you can kind of strive towards.

107For, well, for big law, I mean, some people don't. Some people are lifers. Some people will transition in the course of their career. They will go from one big firm to another big firm. Certainly, when I started, most of the people I was working with were lifers. As I went through my career and kind of made it into that partnership rank, you would see some people who maybe for some reason felt that they were hitting some sort of dead end and decided that they would move. I did learn, I mean, one of the ironies for, in the big law environment is that you actually can probably make more money if you start jumping between between firms.

108And you would see that, that people would come in as laterals and they would actually do very well compared to other people who may have been there from day one. There are any number of reasons that that's the case. And frankly, again, that's an anecdotal observation. It's certainly not an empirical study or anything that I think people can— you can't take that advice to the bank. But I would see people leave because they felt maybe their practice wasn't getting the support that they needed, or they weren't kind of accessing the kind of work that they wanted, or the firm maybe didn't have the same vision for a certain area that they did. As you're moving between the big firms, I think the one thing that's important is that a lot of the work is very similar.

109Maybe one firm might do their work in larger teams, and another firm— you know, Cassels was always known as a very nimble firm, although certainly by the time I left, I would not say that we were a very stripped-down, bare-bones group. I mean, we would have very large teams, teams, and we could expand to whatever size the clients needed. But again, those are the reasons that in big law, I think people might move from firm to firm.

111Yep.

114Sure. I mean, in terms of the differences, I can only speak to my own kind of personal observations. But what I would say is that having started doing primarily Superior Court, so Ontario-based work, I had this expectation that the federal court judges would react similar to the Superior Court judges. And I very quickly started to realize, wait, there are something different, and it took a while before I could put my finger on it. And I would say that the federal court judges, because they're dealing with statutory, I want to say statute-based litigation, you know, where there are very clear, you know, there's very clear statutory language, you know, defining what the judge can and cannot do.

115I felt initially, I felt like, oh, this feels more rigid. Once I started to understand the system a little bit more, I maybe, I would say, I relaxed more into it. I still think there is a universality to telling a story, right? You have to tell the judge a story. The judge needs to understand who is wearing the white hat and who's wearing the black hat, or at least they need to come up with that kind of opinion. But the flexibility that the Superior Court had and the judges had in terms of trying to get to the bottom of what the right decision, what the correct decision is almost from an equity standpoint, I think became very evident as I moved through it.

116And the other thing is that the— I remember being referred to a little bit as a street fighter in comparing my style coming in from the Superior Court and working with the federal court bar, just because I was so used to— I mean, again, in Superior Court, it's not that anything goes, but you are certainly pitching to the judge's broader discretion. And so that narrative and the storytelling and that, all of that, I think, gets emphasized because you are dealing with a lot more common law. You are dealing with, you know, again, trying to fashion a way to get to that endpoint. That the judge can feel comfortable with. Whereas in federal court, you may have more limited legal arguments available and they may be more— they have to be more refined in a specific way.

117And so, you know, I might have come in like a tempest, just thinking, okay, we're gonna get all excited here and do a whole bunch of, you know, dramatic things. And it didn't always fly, I think, with the federal court and took me a while to to adjust to that.

120Oh no, we're gonna, we're gonna open up that can of worms. All right, well, pull up a chair.

122So, so, you know, I think at this stage in my career, I think what's interesting is that You know, there was a very clear period where I felt like I was moving from a second chair to a first chair kind of situation. And that isn't to say that, like many other lawyers, I didn't have, you know, the cases that I was running when I was younger. You know, at Cassels, it was very, you know, a very rich opportunity to do a lot of stuff on my own and very often kind of, you know, get thrown the file and just run with it. Whoops, sorry, I knocked my camera. I think, though, that what also became apparent over the years is that you become paid, or you become valuable to the client more and more for your judgment and for your ability to not just strategize, but help move whatever mountains need to be moved for the client.

123So sometimes— I heard one One lawyer, litigator, famous litigator, and certainly in the Toronto Bar, this, and I'm hearing this secondhand, so I'm not going to give the name, but I remember hearing this expression that clients rent my reputation. That's what this particular lawyer said. And while on the one hand that seemed, wow, okay, that's kind of, you really think a lot of yourself, don't you? What I started to take away from that, especially as the years went on, is you started to realize, Oh, okay, actually, if you know the judges, if you know the lawyers on the other side, if you have a track record, if you are known as being an honest broker, if you are known as being a tough cookie, whatever it is, that is something that becomes its own currency and benefits of the client.

124You might be able to get the client a result that they might not have been able to get but for the fact that counsel on the other side knows you and trusts trusts that whether it's a negotiation or whether it's that if you don't do this, our client's going to do that, they trust, oh no, when he says that they're going to do that, he means that, and it's going to be nasty. So looking forward, it's interesting. Maybe I'm sidestepping the question. Looking forward, what do I want? What do I see? The ambition, I think, is to open up a bed and breakfast in a small town outside of Tuscany or someplace in Europe.

125It is to continue ultimately to kind of take on bigger and bigger challenges for clients. And I mean, I think the one thing about litigation is that I would also say, always say to students and to young lawyers that, you know, what you're doing from day one and what you're doing as a senior lawyer, as a litigator, is very much the same. I mean, if you're working on a small claims matter or you're handling a multi-district piece of like class action or something, and you're working with multiple counsel, multiple lawyers on the other side, it's a matter of scope and complexity, but it's the same issues. You're still dealing with the same concepts of pleadings, evidence, having to prove the points or the arguments that you're trying to make, making sure you understand the law, you structure the argument so that it fits in.

126So with litigation, on some level, I feel like I'm continuing on that path. And I hope that things just continue to get bigger and more complicated until eventually I'm involved in one lawsuit that involves all lawyers around the world for what— no, I don't know what that would look like. But I'm just trying to think, how large could the litigation get? I mean, I guess we'd have to sue on behalf of the Earth and sue another planet or something. But I think, jokes aside, it really is about kind of continuing along this path. And I certainly don't have any ambition to do anything different. And I think that's because I enjoyed it from day one.

127I continue to enjoy it even on my worst days. I love what I do. I love the challenge. I love the idea that if you're doing it right, I think that we are clocking in at the beginning of the day, like in the Warner Brothers cartoons, like Sam and Ralph, the sheepdog and the wolf. You put in your punch card, morning Sam, morning Ralph, and then you guys duke it out for the day. And then you hang up your robes or whatever it is, whatever it is you're wearing that day, I guess your sweatpants in this current environment, you hang them up and you go have a drink or hopefully are able to laugh or admire skill, like laugh with the others or admire the skill that your opposing counsel have used.

128And it's certainly, I have done it fairly recently and I continue to do it, which is to go out for, you know, a bite or a drink with opposing counsel after a case. It's something I enjoy doing, maintaining those relationships. So in terms of the ambition, unless you're asking like specifically, like, you know, how long before you think you're going to kind of hang up. You know, I remember seeing— this is something I remember seeing Eddie Greenspan give this speech that he— and I'm going to completely mangle it— but he said that his ideal kind of last moment is he is in court, the jury comes in, he stands to receive the verdict, they say not guilty, his heart gives out, and he drops.

129That's the way he wants to go. And on some level, I mean, I have hobbies, but I don't ever really think of not doing this. I kind of figure I just do this until at some point they carry me out of my office. And I don't think that's a bad thing because I enjoy it. If I didn't enjoy it, maybe I'd need to go do something else. But I really do think like what we do in litigation, I mean, it will change, you know, based on the facts or the area of law perhaps that you're kind of working in if you move into a new area of law or whatever. But But fundamentally, the challenge that you have on day one and the challenge that you have, you know, at the end of your career as a litigator, and the challenge— I don't mean managing your career, I'm talking about the challenge with respect to the case that you have in front of you.

130It's the same challenge. And it's like a Rubik's Cube. I just, you know, if you're caught by it and if it occupies your mind and you enjoy it, you're going to keep going back to it. And so that's the ambition, is just to kind of keep doing what I'm doing. Maybe I could have said that and saved you about 15 minutes.

132Yes, absolutely. I'd be delighted.

134All right, thanks.