(Interview conducted by Adil Abdulla (“AA”) and Ranjan Das (“RD”) on November 10, 2022)
AA: Thank you for joining the OBA Civil Litigation Section, Justice Newbould. Could you start by telling us a bit about your path to the bench, and your time on the bench?
Justice Newbould: I was a litigator for my entire career, largely commercial, corporate, banking and some estate work. I had a varied practice, and I was fortunate to work with a lot of very good lawyers when I was young. I had been to the Supreme Court of Canada and appellate courts many times and eventually I thought, maybe I’d like to try out something different. I used to sit in court and wonder how I would decide something, when I was sitting there watching. So eventually I put my name in and I got appointed to the bench late in life – I was 63 when I was appointed – and I loved it from the start.
I spent a large amount of my time doing commercial work when I was on the bench. I spent one year in criminal law. I had never worked with juries, and I enjoyed that very much. But I was better off the commercial court, and I headed up our commercial court for last three or four years.
I didn't find going from counsel work to being a judge all that difficult, because I spent my whole life in court, so I sort of knew the way courts work, the way I thought courts should work.
One thing I enjoyed in the Commercial List was that a lot of work is done at 9:30 hearings. You often have 6-10 lawyers, and a lot of young lawyers, so I was able to get to know many young lawyers, an experience I would not have had were I not in the Commercial List.
AA: On that last point, about young lawyers rarely appearing in court, has that changed over time? Was there a time when young lawyers were more involved in main hearings?
Justice Newbould: When I started, we were in court all the time. I was in court as a junior, in my case to Jim Southy who later became a judge, and to Allan Findlay, a brilliant lawyer. And I was also in court myself right from the start. I had many trials in what was then called County Court. One type of trial was for a finance company that was a client of the firm suing bankrupt people based on fraud. It was always, “Why didn’t you tell the finance company about this long list of debts that you had?” And the defence was always, “Well, the manager knew it, but he told me if I put all of them down, I couldn't get the loan, so I didn't put them down.” There was always a contest between who was the worst liar, the manager or the debtor. It was great training for a young lawyer.
As time went on, it became more expensive, and so young lawyers spent more time doing discoveries and were not in court so much. Young lawyers didn’t get the chance to be in court as much as my generation did. And I’m not sure it’s coming back. When I was on the bench in the Commercial List, senior lawyers tried to give young lawyers a speaking role, and it was good when they did that, but they never had the chance that my generation had when we started. How about you? You’re two years out. How much time have you been able to spend in court?
AA: I’ve only gotten to argue a couple of motions so far. It’s rare.
Justice Newbould: The Master’s office used to be in Osgoode with long tables and both sides of the tables were taken up by lawyers, and you kind of moved up the line. And so you might sit and watch five motions before it came to yours. Then you argued your motion after sitting there for an hour or more watching. We were in there all the time.
RD: I had the benefit of a Queen’s Counsel mentor for the first five years of my career. He held me by the hand, and I inhaled more second-hand cigar smoke than I could possibly stand. But as a young lawyer, I kind of soaked it up. But here, when you transitioned to the Court, did you lose that aspect of mentoring or working collegially? Did you feel lonely, or more isolated?
Justice Newbould: No. Judges talk amongst themselves. If you’re sitting there thinking about a case or problem you’ve got, it’s the most natural thing to walk down the hall and talk to somebody on the Commercial List or otherwise. The judges are all very close. I found that, in fact, it was the opposite of what you’re saying. I kept all my old friends from the bar. You have to keep a distance if they’re appearing in front of you, obviously. But I kept my old friends, and I also made a whole lot of new friends on the bench. New judges will all tell you how collegial the court has been. So, no, I didn’t feel lonely at all.
Now, when you come back into your office after sitting a day in court, you don’t have 20 telephone messages. Back in the day when we had slips for telephone messages, that stopped immediately.
I remember the first day as a judge. At the end, I came back to my office about 5:30, and I thought, “I have to do my dockets”. And then I realized, no, I don’t have to do dockets. That was something I sure didn’t miss.
AA: Picking up on that point, what other differences were there between life in private practice and life on the bench?
Justice Newbould: Well, you have to be neutral. When you’re a litigator, you’re thinking all the time, “How can I make my case stronger? How can I convince the judge of my case?” A good litigator knows the weaknesses, knows the strengths of the other side, but still faces a case from their side of the table. To become a judge, you have to become neutral, because there are always two sides of a coin.
And you have to learn to keep your mouth shut, because you don’t know everything that’s going on. You don’t know what's happened before this case came in front of you. With case management in the Commercial List, it was possible to know a whole lot of what had happened, but you really don't know everything that has happened. You don’t know what happened on discovery, you don’t know what counsel have and what counsel don’t have in their back pocket. So you’ve got to be neutral and you’ve got to listen. That does not stop a judge from asking counsel to deal with the points on the judge’s mind, but it comes from a neutral position at the start.
And then as a practical matter, I was in a large firm. If I had a technical problem, I could pick up the phone and in one minute there was a technician in my office to fix it. When you go to the bench, support is terrible. Technicians are few and overworked, and they have a hard time getting to you. So you have to learn, you learn how to do a whole lot of things yourself.
Another difference is that in a law firm, there are articling students at your beck and call that will do research for you. On the bench we had, I think, one person for seven lawyers. The result was that I rarely used them. I did in some cases, like Nortel in which I had one person all the time with me, but for the most part, because I was in the Commercial List, the cases were known, the principles were known. So having research done, it wasn’t the same. It wasn’t done with the ease that it was before when I was in practice.
AA: It occurs to me that the last two points you made are differences between the bench and large firms. Would the transition be less noticeable for those coming from smaller firms?
Justice Newbould: Well, it depends who is in that smaller firm. Are there good senior lawyers that a young lawyer can watch and learn from, can go to court with? I suppose in the smaller firms, the chances of that are smaller than in a larger firm.
AA: So let’s move on to your other transition. I understand that you’re arbitrating and mediating now. How was your transition off the bench?
Justice Newbould: It’s much the same as when I was on the bench. I did a lot of mediating when I was on the bench, particularly in civil, but also on the Commercial List. And arbitrating is being like a trial judge. The procedure is somewhat different, although the Commercial List would case manage far earlier in the process, and more often than not have a hybrid trial using the record and affidavits, but also some witnesses and cross-examination before the judge. And that’s quite similar to an arbitration today. So I didn’t find much difference at all.
But interestingly, it’s broadened, it’s a bit like a lawyer, you kind of do what comes in the door. I’ve had a number of energy cases, for example, dealing with energy problems. I had an energy case in Singapore involving offshore wind projects in Taiwan involving Taiwanese law. I couldn't go to Singapore at the time of the hearing because of Covid, so it was held my time 8:00 pm to 4:00 am, and I quickly got used to that. But there was an example of not just the different location, but different kind of case that I’d never had. And some construction work too, which I never did. There is a lot of construction arbitration out there. But other than that, it’s commercial, corporate, and a lot of estate problems, the kind of things that I was used to.
AA: Does that mean that the topics of the cases before you were broadening?
Justice Newbould: As an arbitrator, it’s broader than on the court. For example, there wouldn’t be energy cases in court, they wouldn’t exist. In the arbitration world, there are different cases that we as judges wouldn’t have dealt with. I talk with Chief Justice Winkler all the time, and I know the kind of things he’s doing are far broader than what he did when he was on the bench as a trial judge and in his case, as an appellate judge.
He told me that when he left the bench, he never looked back, and when I left the bench, neither would I. And he was right. I loved being a judge, but there’s a whole world out there that I’ve enjoyed since leaving the bench too.
AA: Moving onto a slightly more controversial topic, there has been media scrutiny of the roles that judges play after retirement. No one is concerned about retired judges acting as arbitrators or mediators, but more about those returning to adversarial roles, or taking public positions. Do you have any thoughts on what roles retired judges should or should not take?
Justice Newbould: Legally we cannot appear as counsel in court in Ontario. I would never do that anyway, and I don’t think any judge who retires would do it. It would be wrong, with the perception for the other side that they’ve got a leg up. The courts do change over time, but I know many of the judges, and it would just be wrong. I would also have lost skills as counsel. But I wouldn’t want to do that anyway. Once you become a neutral, it’s a natural thing to afterwards to stay neutral.
Most of the criticism was for judges who had retired from the Supreme Court of Canada, taking on roles of inquiry or giving some kind of advice, and I don’t understand what the problem was. These people have got tremendous experience and judgment and . they have a lot to offer.
Just look at Hockey Canada, what’s recently happened. They got a terrific report from an experienced judge with judgment. How could anybody be critical about that? What do you think Ranjan?
RD: A Supreme Court of Canada jurist, someone who sat on the bench for 10 years plus, historically has been a lawyer for 25 years. They bring to the table insights that a mere barrister is never going to have. And when you become a judge, it’s a tremendous responsibility of public service. So I think that the public does quite well when we have these individuals with no personal stake in it, given their background, education, and training. I think we all benefit.
Justice Newbould: I also think because of their neutral role for so many years, it’s that neutrality that is so advantageous in dealing with a lot of these problems. I have no issue at all with retired judges taking on the sorts of things that the media has been talking about.
AA: I find it intriguing that the media is never concerned about a retired judge sitting on a public commission of inquiry, but they sometimes do when they act for private inquiries. Is there any reason for that difference?
Justice Newbould: I just don’t see that difference being relevant. I just do not see the problem with advising parties. They’re usually national public parties. For example, there was controversy over Justice Iacobucci giving advice to one of the parties in the SNC Lavalin case. And I see nothing wrong with what he did. They’re entitled to ask for his opinion. He gave his opinion. The fact that he’s retired judge adds to his ability to provide opinions.
AA: Does it matter at all that he was taking on a partially adversarial role?
Justice Newbould: Well, one might ask, why does it matter if the person was a retired judge? What’s the difference? The fact that the person is a retired judge doesn't disqualify that person from providing opinions. That person is entitled to use their knowledge and their background to give opinions. They can’t start talking about things out of school, like what courts were talking about during a case or something like that. But they’re not doing that. They’re just offering their opinion on something for which there was no conflict. I see nothing wrong with that.
AA: That treads on an issue that’s not often seen in Canada, but has become more pronounced in the US: the politicization of judges and judicial opinions. Is there any of that in Canada?
Justice Newbould: I start from the premise that I don’t like the United States system.
There are politics involved in the appointment of judges in Canada. But it is not as politically pronounced as in the US. The Canadian media has often said that we should have the same kind of hearings as the US.. What they’re doing now, the one day public interview for Supreme Court appointments already made, is sort of nice, but I don’t see the point of it. It was done, I think, to quieten down the media’s request for full blown hearings to decide whether or not someone should be appointed to the Supreme Court of Canada.
But anybody would be naive to say there are no politics at all in the appointment of judges in Canada. Far more so now than when I was appointed in 2006. And sure, if you knew somebody, it might help you get appointed once you got past the committee. But there weren’t all the political issues involved then that there are now. In the last number of years, there’s been a movement to have the bench reflect society in Canada generally. And I think that’s a good thing. You can call that political. It is political, but I think that’s a good thing. When I was appointed, that wasn’t a big issue. Back then, there was a movement to appoint more women, but since then, it’s become much broader to appoint people from various walks of life and backgrounds to the bench. I think that’s a good thing, but it’s not like the US. I would hate to see the US system happen here.
AA: There was a brief moment in 1850 when Ontario almost got elected judges, modelled off of the US system. I’m glad that never took hold.
Justice Newbould: Many lawyers in the US that I know have said that electing judges is a bad thing. And it’s groups like insurance companies that like elected judges because they put up money to have people elected who will do their bidding. But if you’re in front of a judge and one side paid a huge amount of money to get that judge elected, are you going to get a fair shake? The concern is you're not going to get a fair shake. I don’t like that system at all.
RD: I’ve spent time now in the political machinery of the judicial appointment process. Often, one of the talking points is, “Should someone be a barrister before rising to the court, or can you have a solicitor who has never seen the inside of the court?”
Justice Newbould: It’s a good question, but it depends on the person. Some of our very good judges were solicitors. Some have difficulty becoming a judge when they’re a solicitor; some don’t. So I think it really depends on the person.
RD: That’s exactly what Justice Binnie said when asked if being bilingual should be mandatory. His answer was that you can’t necessarily make a bilingual judge a good judge, but you could theoretically make a good judge bilingual. So appointing a good judge should be the first and the paramount concern.
Moving on, now that you’ve retired, in theory, you have some control over your schedule. You can pick and choose the cases that you hear. Are you working more or less now compared to either private practice or being on the bench? From my perspective, you hardly seem retired.
Justice Newbould: I should have mentioned earlier, when you asked about the transition to the bench, there are a lot of judges who say that they never expected to have to work so hard being a judge. At a recent conference, there were some judges complaining about that. They thought going on the bench would reduce the time they have to work. They had absolutely the wrong idea. I never worked harder than when I was a judge. It’s not just a 9 to 5 job. You work nights, you work weekends, and you work long hours.
We all know when you’re practising and you have a trial starting on Monday, you’re not taking the weekend before off, you’re working both days. When you become a judge, you no longer have to worry on the weekend about a case starting on Monday. As an arbitrator, that is still the case. I will still do some work in the weekend or at nighttime if something needs to get out. But it’s not the same. My time is more my time now. I can schedule things. It’s not a complete freedom because I’m in the service business. There are lawyers and clients that need to get things done, and they can’t put things off forever. But the hours, the pressure, the time pressure that judges face, I don’t quite have those pressures now. I enjoy what I’m doing. If I didn't enjoy it, I wouldn’t do it.
AA: We’re nearing the end of our time, so one last question. Looking back, do you ever miss your time on the bench?
Justice Newbould: I do. I loved that job and the collegiality of the bench. But all good things come to an end. I left one year earlier because I wanted to do arbitration and mediation work and I didn’t want to wait to the point that Chief Justice Morawetz calls “statutory senility”. But I miss my colleagues, so I still have lunch or dinner with some of them. It was a wonderful job. I loved it. Most retired judges would tell you that they miss it. But I do think that what Chief Justice Winkler said to me is right. He never looked back and he said, you never will. And I haven’t.
AA: Thank you so much for your time, Justice Newbould, and for sharing your insights with the OBA Civil Litigation Section.
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