Ontario Legal Alphabet
is for Aylesworth
A is for
Aylesworth. Sir Allen Bristol Aylesworth (1854-1952) had one of the great
legal careers of Ontario's late nineteenth century and followed it with
an intriguing public role in the early twentieth century.
We think meritocracy is a modern invention, but the legal profession in
nineteenth century Ontario was full of young men straight off the farm
who prospered in university and launched themselves into prestigious urban
careers attended with wealth and honours. Aylesworth, born in 1854, was
one of these farm boys from eastern Ontario, of solidly Loyalist and solidly
Liberal stock. He did a BA and an MA at the University of Toronto, where
he was a brilliant student. (While a student, Aylesworth helped create
the university's most famous ghost story after his conversation with what
seemed to be the ghost of Ivan Resnikoff, the murdered stonemason of University
Upon graduation, Aylesworth articled with one of Toronto's most eminent
firms, led successively by Robert Harrison, Thomas Moss, and Glenholme
Falconbridge, all of whom became chief justices. Catching on with a top
firm may have been enough to assure Aylesworth's future, but after being
called to the bar in 1878, he became successful in his own right. The
firm soon became Moss, Aylesworth (and continues today as Aylesworth Thompson
Phelan O'Brien). As is so often the case, most of the details of his legal
work and what made him successful at it are maddeningly difficult to recover.
In 1947 elderly lawyer I.S. Fairty recalled that in the early years of
the twentieth century, "Sir Allen Aylesworth had stood high in the
list of counsel, but at the pinnacle of his success he had been stricken
by rather sudden deafness which forced his retirement from the courts.
He has always been an example to me of how absolutely dependent an outstanding
counsel is upon the maintenance of all his faculties."
In 1903, Aylesworth declined an appointment to the Supreme Court of Canada.
He may have some expertise in international law, for that year he was
one of the Canadian/British nominees to the arbitration panel assigned
to settle the Alaska-British Columbia boundary dispute. The British and
the Americans cut a deal on the boundary issue, and Canada's interests
were sacrificed. But Aylesworth became a Canadian hero for standing up
strongly, though unsuccessfully, for Canada. He rode his new celebrity
into Parliament in 1905 and became Wilfrid Laurier's Minister of Justice,
Post-master General, and Labour minister.
Bright, popular, a good administrator, and a powerful platform orator,
Aylesworth quickly became Laurier's Ontario lieutenant and the leader
of the Ontario Grit half of the Grit-Rouge coalition that kept the Liberals
in power. It was no easy assignment. In Ontario, British imperial feeling
and resentment against "French power" were rising. And then
there was free trade. Back in 1911, the farmers were all free traders
and it was the manufacturers who were protectionist. When Laurier negotiated
a free-trade treaty with the U.S., Aylesworth's traditional Grit-farmer
free trade principles inclined him to enthusiastic support of his leader.
But his Bay Street confreres in the Toronto business and legal community
mostly hated the prospect of freer trade. Aylesworth struggled to prevent
the splitting of the Ontario Liberal power base of farmers and businessmen.
Aylesworth received a knighthood in 1911 for his work on an international
fisheries tribunal at The Hague, but increasing deafness was impeding
his parliamentary work and his campaigning, and perhaps he saw what was
coming. He did not run in the 1911 election, when his party held on to
only 13 seats in Ontario. The Liberals were thrown out of office in Ottawa.
Aylesworth went back to his law firm, then called Aylesworth Gardner Stuart
Thompson, as its senior partner, and he continued to sit as a bencher
of the law society. After William Lyon Mackenzie King, who had once been
his deputy minister of Labour, brought the Liberal Party back to power,
he appointed Aylesworth to the Senate in 1923. Aylesworth, then 69, apparently
retired from the active practice of law about that time.
For Aylesworth, liberalism seems to have been more than a party label.
While in politics, his opposition, on civil libertarian grounds, to proposals
for censorship and anti-gambling laws offended many of his own constituents
in puritanical Ontario. And in 1913, spotting a bright young lad working
as an office boy in his law firm, Aylesworth encouraged him to go into
law and accepted him as an articling student. The boy was Benjamin Luxenberg,
one of the early Jews in the Ontario legal profession. Luxenberg would
become a pioneer in bankruptcy law and the first Jewish bencher of the
Law Society of Upper Canada.
Allen Aylesworth was another one of those lawyers who live to a vast age.
He died in 1952, in his ninety-eighth year.
Moore Editorial Ltd 2001
is for Davis
In the Ontario
legal alphabet, should D stand for dead white male?
This alphabet of Ontario lawyers of the past inevitably includes a lot
more white males than anyone else. There was hardly any other kind of
lawyer until the 1970s and 1980s. Women were only 5% of the profession
for the first three-quarters of the twentieth century (zero for almost
the whole of the 19th) and minority lawyers were also few and far between.
So it is good to be able to devote D to Delos R. Davis, who was an interesting
and significant member of the Ontario bar a century ago and a notable
Until about fifty years ago, the key hurdle to surmount on the way to
a legal career was finding a lawyer with whom to article. If you had a
lawyer who would take you on, getting accepted into law school was no
big problem. This tradition actually helped mitigate the establishment-Anglo-Protestant
dominance in the profession, since lawyers from Ontario's various communities
tended to take care of their own: Catholic law students articled with
Catholic lawyers, German-Canadians with German-Canadian lawyers, Jews
with Jewish lawyers, and so on. But you needed that first one to bring
along the rest. That was Delos Davis's problem.
Davis was born about 1846 and is said to have been brought to Canada by
refugee slave parents who settled on a southwestern farm about 1850. He
studied at mission schools, taught for a time and became a notary and
commissioner of affidavits in the early 1870s. That was as far as he was
able to go in pursuit as a legal career. He was unable to find any lawyer
willing to take him on under articles. (Ontario's only black lawyer before
Davis, Robert Sutherland of Walkerton, had died in 1878; Davis probably
never knew of him.) Without a lawyer as principal, he could not apply
for admission as a law student.
After about a decade in this situation, Davis and his sympathetic MPP,
William Balfour, sought legislative relief. It was not unknown in the
19th century for the legislature to override the Law Society Act and create
the occasional lawyer by legislative fiat. Balfour asked that Davis be
given this assistance, because "in consequence of prejudices against
his colour and because of his African descent he has not been articled
to any attorney or solicitor."
The Law Society objected to the prospect of a legislated lawyer. The legislature
should never get involved in lawyer-making, it argued, insisting that
had it known of Davis's plight, it would have taken steps to assist him.
But the legislature decreed that if Davis could pass the Law Society exams
and pay the fees, he should be enrolled as a solicitor forthwith.
Davis passed and was enrolled as a solicitor in 1885. The following year
he followed a similar procedure and was called to the bar.
Once he had defied the obstacles and become a lawyer, Davis never looked
back. He had a successful law practice in Amherstburg, did a great deal
of municipal litigation and criminal work, including six murder trials,
and was active in local politics and community work. He also observed
the unwritten rule that lawyers from minority group assisted others from
their community into the profession. One of Davis's students was his son
Frederick, who was called to the bar in 1900 and joined his father's practice.
Delos Davis retired from practice in 1909 and was appointed King's Counsel
the following year. He died in 1915. In 1978 a group of black lawyers
founded the Delos Davis Guild in his honour.
Moore Editorial Ltd 2001
is for Jameson
Many of the
lawyers in this legal alphabet achieved "firsts" in Ontario
law. Robert Jameson, however, managed to witness the end of several legal
and political traditions. He achieved a notable series of legal "lasts."
Robert Sympson Jameson may have been the last British barrister to escape
a struggling career at the English bar by snagging a patronage job in
the legal system of the Canadian colonies. By 1833 government appointments
in Upper Canada had mostly passed to homegrown candidates, but Jameson
arrived with a plum. He had been appointed Attorney General of Upper Canada
-- the last non-Ontarian to get the job.
Attorney General Jameson never managed to win a seat in the Upper Canadian
legislature. In 1837 he was transferred to the judiciary, becoming the
first Vice Chancellor of the newly created Chancery Court (and ex officio
a member of the Court of Appeal too). By then Canada produced most of
its own judges, and Jameson would turn out to be the last Englishman to
join Ontario's judicial bench. He had, however, been an equity-law specialist
in Britain, and he did notable work in setting up the equity jurisdiction
for Ontario. But as Attorney General he had been elected treasurer of
the Law Society, and he remained treasurer while sitting as a judge -
the last (also the first!) person to achieve that feat.
As Vice-Chancellor, Jameson was not finished with politics. The government
frequently requested his expertise in the administration of education,
Indian affairs, finance, and other fields. And in 1843, he was appointed
to the upper house of the new legislature of the United Canadas and became
its Speaker - all without giving up his Chancery judgeship.
This mix of executive, legislative, and judicial authority, which seems
unthinkable today, had precedents in Upper Canada. By the 1840s, however,
it reflected a theory of government rapidly going out of fashion, and
Jameson was among the last exemplars of the older regime. In 1848, the
securing of responsible government transferred full political power to
elected representatives. That ended the era when appointed individuals
could hold judicial and political power simultaneously. The new government
soon reorganized the Chancery court and it demoted Jameson in favour of
a rising crop of Canadian-trained equity lawyers, including William Hume
Blake, the new vice-chancellor. The era in which well-connected visitors
came from Britain to run Ontario was over, and Jameson retired soon afterward.
Robert Jameson is better known for his other claim to fame. He was the
husband of the author and feminist Anna Jameson, who wrote one of the
first Ontario travel books, Winter Studies and Summer Rambles,
after coming to visit him in Canada. Robert and Anna Jameson had always
shared literary interests and literary friends, but they were otherwise
an ill-matched pair, and they had lived apart even before he was sent
Anna Jameson's visit to her husband in Toronto in 1837-8 evidently confirmed
that the marriage could not be saved, and she departed from Canada with
a separation agreement and a financial settlement. She was very much a
society writer, happy only when she was attuned to the latest social and
literary trends at the imperial centre. Disdainful of colonial Canada,
she appreciated only its wilderness aspects. The most successful part
of her visit - and of the book she wrote about it -- was the summertime
tour that took her as far into the northwest as Lake Superior.
She had disliked Toronto as much as she disliked the husband who lived
contentedly there with his work, his books, and his correspondence. Perhaps
as a result, her sketch of Toronto and its society says almost nothing
of him. Despite her privileged perspective and her gifts for swift and
perceptive characterization, Winter Studies and Summer Rambles
is almost entirely silent about Toronto lawyers and legal circles in Robert
Anna Jameson left Toronto and her husband in the summer of 1838. She returned
to British literary society and wrote many more books. He remained here
even in retirement, and he died here in 1854. He had achieved one first:
the first senior Ontario judge whose wife left him to pursue her own successful
Moore Editorial Ltd 2001
is for Parsons
when Vera Parsons was called to the bar, few women practised law at all,
and women were particularly unwelcome in litigation, in criminal defence
work above all. A year earlier, Newman Hoyles, longtime head of Osgoode
Hall Law School and considered a supporter by women law students, admitted
he doubted women would ever succeed at "the highest branches of law
-- in pleading in court."
confronted that attitude directly. She did litigation throughout her career,
and made herself Ontario's first woman criminal defence lawyer.
born in 1889 and handicapped all her life from childhood polio, was the
daughter of a Simpson's executive and got an excellent education. She
did a BA at U of T when women were still quite scarce there, then completed
a Masters at tony Bryn Mawr in Pennsylvania and went on to Rome to begin
a doctorate in comparative literature.
to Canada without the doctorate, she began working at a "settlement
house," assisting Italian immigrants in Toronto. But she soon concluded
translation services could not help them much. They needed legal help,
she decided, and she plunged into law school. When she graduated in 1924,
she received Osgoode Hall's silver medal, the first woman to win one of
the medals. She had already decided litigation was the branch of law she
getting the kind of articling positions they wanted was an obstacle for
most women lawyers. Parsons secured articles with William Horkins, who
had a busy litigation practice, particularly in criminal defence work.
Family connections may have helped, as well as her academic background,
but Parsons also brought in a substantial clientele from the Toronto Italian
community. Her first case, a civil litigation in 1925, was said to have
been the first time a woman lawyer faced a jury in Toronto. She eventually
became a partner in Horkins Graham & Parsons, where she stayed many
trial work, and Parsons the cerebral scholar became her firm's appellate
specialist. In that connection, she was drawn into one of her few episodes
of advocacy for women. Osgoode Hall, where the superior courts sat, was
being renovated in the 1930s. Parsons was part of a women's committee
agitating to ensure the renovation provided facilities for women barristers.
1930s, she handled the appeals of Mickey Macdonald, a kidnapper and hijacker
who was Canada's most wanted criminal for a time, and she took his case
(unsuccessfully) to the Supreme Court of Canada. In 1944, she became the
first woman lawyer to defend a first-degree murder case. She had been
working on the appeal of Allan Baldwin on a robbery conviction when he
escaped from the Don Jail - and killed a guard on the way out. Baldwin's
first murder trial ended in a mistrial. Parsons got a manslaughter verdict
in the retrial. Later she did several more capital cases.
she was named King's Counsel, only the third woman so honoured. "Not
just a top women lawyer, but a top lawyer, period," a male colleague
called her in a 1952 Maclean's profile.
In her private
life, Parsons was a pianist, an art collector, and a traveller. She never
married, and she did not think marriage and law practice were really compatible
ambitions for women. She was not considered a strong ally by those most
active in advocating for women lawyers. Margaret Hyndman, another top
woman lawyer, recalled that when she ran for bencher in the 1940s, she
felt her chances were undermined when Vera Parsons decided at the last
minute to run as well. "My argument was that they might elect one
but I don't think they would elect two women," recalled Hyndman.
in the 1950s and died in 1973. She is remembered in the Vera L. Parsons
prize for criminal procedure in the Ontario bar admission course - a prize
that in recent years has often been awarded to a woman. She may not have
advocated for the cause of women lawyers, but her example of successful
practice in a field considered taboo for women lawyers endures.
William Dummer Powell, one of Upper Canada's first lawyers and a longtime
judge of the Court of King's Bench
· John Powell, son of Judge Powell and a founding bencher of the
· Eva Maude Powley, second woman called to the bar in Ontario
· Thomas Phelan, Toronto lawyer who saw his workplace-accident
practice wiped out in 1913 by the introduction of Workman's Compensation;
bounced back in a new field: automobile accidents.
Moore Editorial Ltd 2002
is for VanKoughnet
Matthew Scott VanKoughnet (1822-69), the descendent of German-speaking
loyalists who had settled in eastern Ontario in 1784, studied law in Cornwall,
Upper Canada, and was called to the bar in 1843. Almost at once, he moved
to Toronto where he quickly developed a successful practice in a prominent
firm, practising in both common-law and equity courts (then separate jurisdictions).
had been Tories for generations. In 1837, young Philip had served under
his father's command in a militia company that helped put down Mackenzie's
rebellion. By the 1850s, he was one of the go-to lawyers when conservative
leaders needed legal counsel.
In 1856 VanKoughnet
became legal counsel to Attorney General John A. Macdonald in a parliamentary
inquiry. "The Penitentiaries Inquiry" was the MFP scandal of
its day. Macdonald, with the credibility of his public statements on the
line, had the Tom Jacobek role.
that all the records in question had been destroyed, VanKoughnet based
his defence of Macdonald on the argument that all the witnesses were simply
confused in their recollections. He was following that line with Reformer
George Brown when Brown revealed that a complete set of the records still
existed. VanKoughnet had to switch tactics in a hurry in order to convince
a complaisant parliamentary majority that actually, it was the records
themselves that were confused.
survived, as usual. VanKoughnet was invited into the cabinet, and he stood
for election. In fact, Philip VanKoughnet became the first person ever
elected to the Canadian Senate.
it the "Legislative Council" then, and until 1856 it had always
been appointive. But many conservatives disapproved of the way the triumph
of parliamentary democracy in 1848 had transferred power from the upper
house to the legislative assembly and the cabinet answerable to it. Letting
the elected representatives of the common people rule seemed just too
are conservative by nature. Since they consist of a small number of members
serving vast constituencies without much regard to population, they tend
to be rich, rural, and reactionary. The vital question is how much power
they wield: weak like today's British House of Lords and Canadian Senate?
Or powerful, like the U.S. Senate?
In 1856 Canadian
conservatives understood that an appointed upper house, though conservative,
was weak. An elected upper house would still be conservative, but suddenly
it would have authority. In 1856 the Canadian parliament made the Legislative
Council elective, with elected members to replace appointed ones as vacancies
opened up. That year reliably conservative Philip VanKoughnet filled the
first vacancy put to the voters.
By the mid-1860s the consequence of an elective upper house was evident;
it mostly meant a successful right-wing gerrymander. George Brown and
other reformers (and many moderate tories too) made it a condition of
confederation that power had to reside in the legitimate, representative
House of Commons and had to be taken away from the upper house.
the Canadian Senate has been appointive (and weak) since 1867; it was
actually a triumph for democratic representation. If modern conservative
advocates succeed in selling us a Triple-E Senate, they will be repeating
the coup their forebears brought off in 1856: to endow a reliably conservative
upper house with real power.
Philip VanKoughnet was already out of elective politics. In 1862, just
forty, he had accepted an appointment to the Chancery bench of Canada
was head of that court, with the title Chancellor of Ontario, when he
died suddenly in 1869, just forty-seven. He is remembered by a Berthon
portrait above the rotunda in Osgoode Hall, clean-shaven and looking rather
modern among his bearded brethren, and by the Chancellor VanKoughnet Prize,
endowed by his family in his memory and still awarded to top students
at Osgoode Hall Law School.
· Mabel Van Camp, early woman judge
· Joseph Valin, early leader of the francophone bar in Ottawa and
a founder of the Carleton County Law Association
· Terry Vyse, first aboriginal woman judge in Ontario.
Moore Editorial Ltd 2003
is for Yip
Dock Yip (1906-2001) opened his law practice on Elizabeth Street in downtown
Toronto in 1945, he was the only lawyer serving Toronto's Chinese community
who actually spoke Chinese.
like a great practice-building advantage. But for a while, Yip found Chinese-Canadians
reluctant to retain him. Chinese had been excluded from Canadian society
for so long that they feared one of their own could not be a real lawyer.
Yip was born in Vancouver, where his immigrant father Yip Sang had prospered
as a shipping agent and paymaster for the CPR's Chinese workforce and
became a founder of the Chinese Benevolent Society. Yip Sr. also had four
wives and 23 children.
Yip, one of the youngest of the 23, was able to attend Columbia University,
the University of Michigan, and UBC, even though the depression wiped
out much of the family's wealth. At age 35, with a BA and a degree in
pharmacology, Yip turned to law. When a friend told him Chinese were not
allowed to be lawyers, he replied, 'But I am not Chinese, I am Canadian."
At that time,
Chinese immigration to Canada was banned, and Chinese-Canadians were not
allowed to vote. In British Columbia, the Law Society of B.C. enforced
a rule "that Orientals should not be granted the privilege of enrolment
as students-at-law." In 1942, Yip moved to Ontario, where at least
one "Oriental," Kauko Maki, had already been called to the bar,
and entered Osgoode Hall Law School.
degrees, Yip needed special consideration for his limited English when
he was called in 1945. But that did not hold him back. While still a law
student, Yip, his fellow student Irving Himel, and leading Toronto Chinese
formed a committee to repeal the Chinese Immigration Act, the law that
since 1923 had prohibited immigration to Canada by Chinese. (The 1923
law effectively strengthened the pre-existing head tax, which had the
In 1947 Yip's
lobbying paid off. Canada repealed the Chinese Immigration Act. It also
permitted Canadians citizens of Chinese ancestry to vote for the first
time. (Japanese Canadians had to wait two more years.) Just two years
out of law school, Kew Dock Yip had helped bring about a fundamental change
in Canadian law.
Yip continued his practice in downtown Toronto. Thirty-nine when called
to the bar, he maintained his sole-practice office for forty-seven years,
retiring only in 1992, at the age of 85. Throughout his practice, he was
counsel to much of the Toronto Chinese community, a mentor to scores of
younger Chinese-Canadian lawyers, and an influential figure in local and
national Chinese organizations.
Yip was also
active in the politics of the wider community. In the 1970s he served
two terms as a Toronto School Board trustee.
into his 95th year. In his last decade, his pioneering role in the Chinese
community and the legal community began to be fully recognized. In 1997,
the Chinese Canadian National Congress noted the fiftieth anniversary
of the repeal of the ban on Chinese immigration by saluting Yip's role
in that victory and in transforming Canada's cultural landscape.
The Law Society
of Upper Canada also recognized Yip's landmark contributions to the legal
profession and the campaigns for equity within it. In 1998 Kew Dock Yip
received the Law Society Medal.
· Roger Yachetti, prominent Hamilton lawyer and longtime Law Society
Moore Editorial Ltd 2004
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