Editor’s Note: This is the first article in the 2024-2025 Newsletter’s Reflections series, featuring reflections on extraordinary careers by senior counsel in the construction bar. We are grateful to Duncan Glaholt for inaugurating this series, and look forward to contributions from other senior counsel in the coming months.
I understand that these articles are to be reflections on a career. I’m happy to do that even though it feels a bit like a self-eulogy. It is one of those projects that is harder to stop than it is to start. There is so much to say and yet so little of it could possibly matter to anyone reading this. It almost fits the most perfect definition of a bore that I know of: “a person who when you ask them how they are, tells you”. Well, here we go.
I finished law school in 1977, articled in 1978, and was called to the bar in 1979. I practiced litigation, eventually specializing in construction industry litigation. I stepped away from my firm and the practice of law 40 years later in 2019 to become a full-time mediator and arbitrator.
So much changed during those 40 or so years that it is almost impossible to know where to begin. In the 70s and into the 80s many of our great judges were veterans of WW II and were men (mostly, if not exclusively at the time) of stern temperament, quick decision, and few words. You got no more time on your feet than you deserved and were left in no doubt when you were wrong or advancing a bad argument. Arbitration was treated as a sideshow, the poor stepsister of the law, left sweeping while its judicial sisters went to the ball. Most law firms had emerged from the 60s virtually unreconstructed. Who you articled for mattered a great deal. Working a half day on Saturday was expected (but you didn’t have to wear a tie). It was all books and paper. Even a copier, telex machine, a memory typewriter was considered cutting edge. There was a lot of drinking. Drinking and socializing was a noticeable part of legal culture. Firms closed early on Friday afternoons so that lawyers could get together at the firm’s bar for a few shots before heading home. All that is gone now, and not missed. We still have so much work to do, but we have come far in so many ways in these past 40 years. All for the good as far as I am concerned.
My goal after call was to do as much lawyering as possible as soon as possible. I got in the habit of saying ‘yes’ every time a scrap of work went by. I’ve never lost that habit. I started out doing everything. Light criminal work, family law, coroner’s inquests, collections, real estate transactions, it didn’t matter what it was or how hopeless or last minute it was. I did literally everything that came in the door and no-one else wanted to do. This led to great good fortune. In 1980 I ended up being one of the few people who had done surety bond trials, and somehow (I never learned quite how) this landed me with a massive file load when one and then another Ontario-based surety bonding company went into administration. For the next decade I worked on complex construction law cases across Canada, meeting, learning from, and forming lifelong friendships with many remarkably fine and able local lawyers.
This meant I was not home for my family anywhere near as much as I should have been. My wife was left putting her career on hold to look after two small children while I worked long days and weeks believing that this is what I was supposed to do. This only got worse when I started my own firm in 1986. If I had it to do over (and I don’t), I’d spend much more time with my family than I did. Absence leaves a mark. It turns out that it is not about “quality time”. That is a dangerous myth. It is about plain old time. I believe that this all-consuming aspect of the profession has changed. Or is changing. I applaud the new generation of lawyers who put family first.
There seemed to be a great wave of change in the late 80s and early 90s as the post-war generation aged out and new professional leadership and values emerged. Everything got much busier. Technology changed everything. New appointments changed the face of the bench. Large than life and eccentric personalities became less tolerated. The business of law took over from the profession of law. A few to mid-sized firms rapidly grew to become national giants. A few boutiques, mine included, made the decision to specialize. In my case, this was in the new field of Construction Law. We decided to keep our new firm small and conflict free. It was a good decision then and I would make the same decision now. There suddenly seemed to be much more competition for work, and with that competition came an erosion of some of the civility and professionalism that made the whole system work in previous decades. The idea that Construction Law was a legitimate area of practice emerged at this time. I started speaking and writing in the area, always with help from co-authors, researchers, and editors. Writing and speaking about construction law forced me to learn construction law.
In the 2000s, I began doing more international work. I came to see that I had been labouring under an embarrassingly parochial view of the practice of Construction Law. My goodness. There were so many absolutely brilliant construction lawyers internationally, and so many highly evolved procurement models and associated systems of risk management around the world that my eyes were truly opened. I have kept up strong international connections since then, as humbling as that often is when I sit down and compare notes. As a result, I have often publicly advocated for much more cross-disciplinary, and cross-cultural collaboration in the practice of construction law.
In 2004 I began training as a mediator and arbitrator with the Chartered Institute of Arbitrators in the U.K. I could see that the future of construction law advocacy lay in that direction. The ADR revolution begun in the 70s and 80s is being completed now over 40 years later. It will be a matter of only a short time before the “A” in ADR can be dropped in construction industry disputes.
I must say here that during this whole period I was given a great gift, and that gift was the privilege of working with and alongside some brilliant staff, associates, and wonderful, hardworking, trustworthy partners. So many people that I have worked with have gone on to make immense contributions to the industry and the practice of law, with more to come. My brilliant and talented partners, associates, and assistants always made me look good, over and over again, when, had I been on my own, I would likely have done a face plant. I would be nothing without them. This hardly seems sufficient thanks.
The most significant import from the international world of construction law into our domestic scene has been that of statutory adjudication. I remember learning about adjudication in the late 1990s and speaking to a friend (and judge of the Technology and Construction Court in London) about the Latham Report and the whole idea of statutory adjudication. Once again, my eyes were opened. I began reaching out to and informally interviewing adjudicators, judges, and barristers to get a sense of what was possible. I did this for years. I’m afraid that I became an even bigger bore. No matter what I was asked to speak on, I ended up speaking about, and advocating for statutory adjudication in Ontario, and Canada. Through the efforts of a few very hard working and committed construction lawyers, and the encouragement and support of governments here and across Canada, we now have the beginnings of a national scheme of statutory adjudication. My dream, one that I fear I won’t live to see realized, is of a uniform national code of statutory lien and adjudication law. It is past time. We need the same law in every province. The industry needs this. The profession needs this. We all need to get on with that project.
Part of the assignment was to consider advice to young construction lawyers. As someone once wisely said, advice is seldom welcome, and those who want it the most almost always like it the least. I understand so little of the world that new lawyers are entering that I cannot say much at all that would make sense at all. All I will say is to mind your reputation, make it a reputation for always taking the high road. I hope that does not sound too pompous, but it works and will test your character almost daily.
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