Law Times "That's History"

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 College.)

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.

©Christopher Moore Editorial Ltd 2001

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 black lawyer.

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.

©Christopher Moore Editorial Ltd 2001

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 to Toronto.

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 Jameson's era.

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 public career.

©Christopher Moore Editorial Ltd 2001

In 1924, 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."

Vera Parsons confronted that attitude directly. She did litigation throughout her career, and made herself Ontario's first woman criminal defence lawyer.

Parsons, 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.

Returning 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 would pursue.

In 1924, 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 years.

Horkins preferred 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.

During the 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.

In 1944, 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.

Parsons retired 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.

Some other notable "P"s

· 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 Law Society
· 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.

©Christopher Moore Editorial Ltd 2002

Philip Michael 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).

The VanKoughnets 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.

Confident 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.

Macdonald 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.

They called 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 extreme.

Upper houses 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.

That's why 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.

By confederation, Philip VanKoughnet was already out of elective politics. In 1862, just forty, he had accepted an appointment to the Chancery bench of Canada West.

Philip VanKoughnet 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.

Some other notable "V"s:
· 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.

©Christopher Moore Editorial Ltd 2003

When Kew 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.

It sounds 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.

Kew Dock 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.

Kew Dock 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.

Despite his 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 same intent.)

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.

Meanwhile, 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.

Yip lived 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.

Some other notable Ys:
· Roger Yachetti, prominent Hamilton lawyer and longtime Law Society bencher

©Christopher Moore Editorial Ltd 2004