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Articles / Legal History / 2004 - 2005

Legal History

Summer Reading:  The Heiress vs. The Establishment
(June 2004)

Just published, The Heiress vs. The Establishment: Mrs. Campbell's Campaign for Legal Justice by Constance and Nancy Backhouse should be high on Ontario lawyers' list for summer reading. It raises issues about your profession. You will be hearing about it anyway. And you will find it a very entertaining read.

Mrs. Campbell was the daughter of a leading 19th century Toronto lawyer, James Bethune. Her widowed mother entrusted the family fortune to a relative, William D. Hogg, eminent Ottawa lawyer, QC, Law Society bencher, and Ottawa head of the Toronto General Trust Corporation.

After the mother died in the 1920s, little of the money and less in the way of an accounting came back to the heirs from Hogg. Mrs. Campbell wondered why. The more she asked, the more she was told not to ask impertinent questions. Eventually she sued. And then it really got ugly.
Mrs. Campbell had a pretty good case, but she was stonewalled at every turn. Documents disappeared from the care of those entrusted with them. All the best lawyers decided not to represent her. Ontario's leading judges, many of whom were longtime friends of the family, were unable to say she was wrong, but even less able to rule against their dear friend and distinguished legal brother, Mr. Hogg.

Defeated in Ontario, Mrs. Campbell eventually took her case to the Privy Council in Britain, where she argued her own case without legal counsel, and she won. Then she wrote a book contrasting the cowardice and complicity of the Ontario bar to the paragons of justice she found at the Privy Council.

Her book, Where Angels Fear to Tread, self-published in 1940, was always scarce. In Ontario, a legend developed that it "there was some kind of interdict about it." Lawyers who should have known better believed the only surviving copy was locked away in the librarian's office at the Osgoode Hall Great Library.

Now law professor Constance Backhouse and her sister, Justice Nancy Backhouse, have republished Mrs. Campbell's secret book with a short introduction, a long epilogue, and a massive annotation of who was who in the case. Mrs. Campbell proves to be an engaging writer with a lot of allegations about the probity of lawyers and judges, and the Backhouse sisters mostly let her speak for herself. They are restrained and thoughtful in raising the issue Mrs. Campbell's case presents.

At heart, The Heiress vs. The Establishment is about the way the legal profession can become a privileged caste, more concerned with its own interests than those of its clients (let alone of justice). Hogg does not come off well, but the authors acknowledge that as an interested family member himself, he may have felt less than a full fiduciary responsibility in handling this particular estate. (Mrs. Campbell's siblings defended him and repudiated her.)

The real villain here is the profession: elite judges and lawyers, armoured in their monopoly, their wealth, their self-regard, and their camaraderie, who simply refused to uphold the law when it threatened to embarrass one of their own.

Today Mrs. Campbell's 1940 book has been republished by authors who between them include a law professor, a bencher, and a judge. It is published by the Osgoode Society and its board of eminent lawyers, and it carries approving comments from the Chief Justice of Canada and the Chief Justice of Ontario. Lawyers may be reassured that their profession is not so smug and self-protective in 2004 as it was in the 1930s.

On the other hand, the power of the profession is always rooted in its claim to expertise. The Backhouses point out that when the profession turned its back on Mrs. Campbell, she went on to argue and win her case herself, with no more legal expertise than a couple of law books and advice from some friendly court clerks.

The Heiress vs. The Establishment is a very entertaining piece of Ontario legal history. With some sting still left in its tail.

©Christopher Moore Editorial Ltd 2005

What Are Lawyers Worth:  The View from 1885
(May 2005)

The American inclination to sign trade agreements and then resist being bound by them is longstanding. In 1871 Canada and the United States agreed to give each country open access to the other's fishing grounds. Since such access benefited Americans more than Canadians, an additional payment was due to Canada. The Americans took the fish but stalled on the payments. Finally an arbitration was held in Halifax in 1877.

Four Canadian lawyers spent seven months making the case to the arbitrator, a Belgian diplomat. His award, $5.5 million, delighted the Canadian government. (It was at least $5 million more than the Americans intended to pay.) Persuaded of the wisdom of using Canadian advocates rather than the complacent British diplomats who had previously represented Canada, the government offered the four lawyers $7000 each for their services.

One of the four lawyers, Joseph Doutre of Montreal, thought he was worth more.

There had been an election, and the new Tory government hated paying the four Grit lawyers to whom its predecessor had given this work, so the crown stuck to its offer. Doutre took the matter to court. Canada lost, appealed, and lost again, all the way to the Privy Council. In 1884 Doutre was awarded an additional $8000.

In 1885 the government put $24,000 in the estimates to give the other three lawyers the same increase Doutre had won. By then, one of the three had died and one had gone to the bench, but the third, Louis Henry Davies of Prince Edward Island (a future Chief Justice of Canada), was an MP and a prominent member of the opposition front bench (though he was absent the day the estimate came up). The debate that ensued suggests that the attitudes both lawyers and clients hold regarding appropriate pay for lawyers are timeless.

Thomas Farrow, a Conservative farmer MP from Huron County, launched the debate with an attack on Davies. $15,000 for seven months? It was "an extraordinary amount." Why, only weeks before, the honorable gentleman (Davies, that is), "his breast filled with righteous indignation," had been castigating the government for wasting public money. Now he was rolling

But the legal profession had friends and defenders in the House. Liberal member Charles Weldon of Saint John had been a partner of the dead lawyer, S.R. Thompson, "one of the most eloquent and able men who ever lived in the Dominion of Canada." Since he and Davies and the others had won the case, they had earned their fee, said Weldon. Other lawyer MPs agreed that these were "leading counsel," men "of "in their profession.

Liberal MP Richard Cartwright had been a minister in the previous government, and the big arbitration win had been a proud moment. But he was a penny-pinching banker. "I have often thought myself, although a humble member of that [legal] profession, having been a student only, that the public at large were grossly abused by the immense amount of fees they were obliged "Perhaps some control of lawyers' fees was needed.

Fisheries Minister Archibald McLelan weighed in, defending the payment as unavoidable, but also getting in a dig. The fault lay with the previous government, which "had not had the understanding with the legal gentleman more clearly defined." Donald McMaster, a prominent Montreal lawyer and Conservative MP

McMaster's contribution inspired the best shot of the exchange, from Strathroy merchant Donald Cameron, a Liberal backbencher. "If the hon. gentleman, who is a distinguished member of the bar, will explain how a client can make anything else than a loose bargain in a law case, he will give us some valuable "

A last word went to Mackenzie Bowell, a cabinet minister and future prime minister, and a printer by trade. He wished his own profession had the esprit de corps lawyers had. "When an unfortunate printer gets a few [government] dollars, every other printer pitches into him as if he was purchased and is the biggest rascal that ever lived. But you touch a lawyer and it makes not the slightest difference whether he is a political friend or opponent. They all stick together like "

The expenditure was approved (no one had doubted it would be), and the House moved on to the next item. Probably the Gomery lawyers will be spared this kind of scrutiny.

©Christopher Moore Editorial Ltd 2001

Who the Hell is Anton Piller?
(June 2005)

Q. When I reported on an Anton Piller order our organization had sought, several board members woke up long enough to ask who the hell Anton Piller was. Who was Anton Piller, and why are we taking his orders?

A. He's a controversial guy, Anton Piller. The file-sharers, freecopiers, and IP pirates who find themselves being nailed for intellectual-property abuses because of Anton Piller orders have been trying to discredit him, calling Anton's orders "the nuclear weapon of the law." They have a point: even the judges who codified them emphasized the draconian power they give plaintiffs.

Anton Piller never knew anything about Anton Piller orders. He knew about industrial fans. Early in the early twentieth century, Anton Piller was a mechanical engineer in Hamburg, Germany, and in 1909 he patented a design for a fan. On the strength of it, he built a successful industrial fan company, Maschinenfabrik Anton Piller, later Anton Piller KG and Piller Industrieventilatoren.

The business still thrives, but Anton himself was dead long before he became a household name, at least in households that have an IP lawyer in them.

In the 1970s, Anton Piller KG suspected its agent in Britain, a company called Manufacturing Processes (MP), of selling its design secrets to competitors. The Piller company wanted to sue, but its counsel, English barrister Hugh Lassie QC, feared that the moment an action was launched, MP would shred all the evidence - and the proof would be gone.

Lassie persuaded a judge to issue an order that MP should invite the Piller company to search its premises for evidence - with the proviso that MP would be in contempt of court if it declined to issue the invitation upon presentation of the order.

Anton Piller KG was not even the very first company to get such an order. But its was the first such case reviewed by Britain's Court of Appeal, where in 1976 Lord Denning wrote the first set of rules to govern such orders. They were "at the extremity of the court's powers," the court said, and should only be used in exceptional circumstances. But soon plaintiff's lawyers throughout the Commonwealth were saying, "We need one of those orders Anton Piller got."

Law does not have a Linnaean system for naming new species of law. It seems to be a chancy process, how individual cases (Askov deadlines, the M'Naughten rule) turn into shorthand for specific judicial procedures. Back in the 1970s, the British court might have defined Anton Piller orders as "civil search warrants" or "evidence-protection orders." A century earlier, they might have applied some Latin tag. Then Anton Piller would only be a precedent to cite (and a ventilation company).

But "Anton Piller" was short and catchy, and it had prestige by association simply by being launched by the influential and quotable Lord Denning. It went around the world.

An Australian Anton Piller order sank the company behind the file-sharing software Kazaa. Anton Pillers have turned up from Nigeria to New Zealand.

The process and the name came to Canada around 1980, and they have thrived here, not without controversy. An Ontario court recently found the distinction between Anton Piller orders and search warrants was "tenuous" and ought to be abolished.

Unless that happens, Anton Piller looks like living forever. Indeed, the Piller company may have a whole new claim for IP infringement: against the judicial systems that have hijacked its brand name. Google "Anton Piller" and you will find a lot more about legal processes than about a certain brand of industrial fan.

©Christopher Moore Editorial Ltd 2001

Remembering John Arnup, Lawyer
(October 2005)

John Arnup, one of the great Ontario lawyers of the twentieth century and one of the great leaders of his profession, too, died on October 5. He was ninety-four and he had been ill for some time, but I find myself thinking he died too soon. Certainly there were legal history projects that he never lost interest in, and that I would have been grateful to have heard more about.

Born in 1911, the son of a Methodist minister and moderator of the United Church of Canada, Arnup learned law in one of the great litigation firms, Mason Foulds (WeirFoulds today) and he joined that firm when he was called to the bar in September 1935 - just seventy years ago.
At Mason Foulds, Arnup got a rigorous apprenticeship with Gershom Mason, Roy Kellock, Bill Gale and others. He later said that it was seven years before he took a case to the Supreme Court of Canada -- but when he did he did it right, because of the Mason Foulds training. After war service in Ottawa, he emerged in the late 1940s as one of Toronto's most highly regarded litigators. "He had a developed sense of relevance," said Barry Pepper - an unusual but perceptive summation of legal talent.

Arnup did countless cases in many courtrooms. One of his great cases, fought between 1966 and 1968, was Leitch Gold Mines v Texas Gulf, a complicated commercial litigation that in its day was the longest trial ever heard in Ontario. Arnup represented the defendant and John Robinette was for the plaintiff. Arnup's old colleague Bill Gale presided, and Bertha Wilson, who also had a role in the case, called it, "Ontario's two most outstanding counsel facing off against each other under the keen and critical eye of its most outstanding judge." There were masses of technical evidence to assimilate, but a crucial factor was the credibility of the plaintiff's key witness. Arnup's successful demolition of that credibility gave him the win.

Popular and respected from early in his career, Arnup became a bencher at age forty when most benchers were a good deal older. He had an extraordinary impact at the Law Society. He was deeply involved in the remaking of legal education in the 1950s, in the moving of Osgoode Hall Law School to York University in the late 1960s, in the shaping of ethical and auditing standards, and particularly in the creation of paid legal aid in 1966, while he was treasurer.

In 1970, Chief Justice Gale of the Ontario Court of Appeal told Arnup, "If I can get you, I can get anybody," and Arnup, soon joined by luminaries such as Charles Dubin, Bud Estey, Arthur Martin, and Bertha Wilson, helped build the Court into one of the strongest in Canada.

Retirement in 1985 allowed him to expand his other career as chronicler of his profession. He wrote many essays, some on substantial issues, some simply colourful stories, for The Law Society Gazette. He wrote a biography of a personal hero, Justice Middleton. He struggled for years to bring into being a history of the Court of Appeal.

A decade ago, I was writing the bicentennial Law Society of Upper Canada and Ontario's Lawyers. Told that Arnup, the great lawyer, the distinguished judge, the past treasurer, wanted to review my manuscript, I was alarmed. I prepared to defend myself against some crusty octogenarian eminence who would issue dicta about what was to go in and come out.

Instead he insisted I call him John and said very firmly the book was my responsibility and he was merely interested and eager to help. Then he proceeded to give my rough draft an extraordinarily vigorous, careful, useful critique. If this law thing had not worked out, he could have been a very fine editor.

But he read the chapters in chronological order, and I grew nervous again as we approached the era he knew from personal experience. When Arnup told me he thought I'd got the feel of those times just about right, it seemed as fine a professional compliment as I'd ever received.

I only knew John Arnup in his eighties and nineties, and he seemed the nicest man you could imagine. Considering his career, I realized that in his day he must have been able to be tough, to put work ahead of all else, to be ruthless in court or convocation.

Doubtless he did. But to prepare this piece I looked over many years' worth of recollections of John Arnup. Seems just about everybody has emphasized what a nice guy he was.

©Christopher Moore Editorial Ltd 2005

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