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Alumni meet at the SCC on City of Corner Brook v. Mary Bailey

In March of 2021, UNB Law alumni Alex Templeton (LLB ’06, partner at McInnes Cooper) and Erin Best (LLB ‘08, partner at Stewart McKelvey) appeared as opposing counsel at the Supreme Court of Canada, arguing the special interpretation rules of releases and the general principles of contract interpretation in City of Corner Brook v. Mary Bailey.

Very few cases are granted leave at the SCC, and this is especially true for civil matters. Best, despite knowing it might be a long shot, felt she had a strong argument for leave and decided to look into the process. This was her first time applying to Canada’s top court, a process that she found to be both interesting and challenging.

“A leave application is a mysterious thing,” said Best, “the SCC does not issue reasons for leave; nobody really knows exactly why the court grants leave, which makes applying quite difficult. We understand the basic ideas, an issue of national importance, a dispute between provincial courts of appeal, a public policy issue, these are the types of things that will help to get leave, but it's not an exact science.”

Best and her team spent a great deal of time preparing the application, running it past colleagues and making countless revisions. Once submitted, came the waiting game. Best recalls the morning she got the news, anxiously refreshing the SCC Twitter feed.

“Finally, it was announced. I really couldn't believe it. I was bombarded immediately— in a nice way—by my colleagues and friends in the legal community.”

“Erin did a great job of outlining the nature of the national concern,” said Templeton. “We certainly saw the angle, its importance, and, if nothing else, we could see the SCC wanting to use the opportunity to confirm what the NLCA had said about what has happened to the Blackmore rule, and its usefulness given the Sattva rules of general contract interpretation.”

Best, along with co-counsel Giles Ayers, set out preparing their factum, a process that saw between 20 and 30 drafts, including full rewrites. Their preparation also included two mock benches, one with lawyers from across Canada sitting in as judges, and the second facilitated through the Supreme Court Advocacy Institute, which offers mock hearings in advance of actual SCC hearings. The experience shaped much of their oral submissions.

“You have to be ready to answer every question,” said Best. “We focused on getting our mock bench to ask as many questions as possible. That experience was eye-opening—and humbling. I was asked some hard-hitting questions that rang around in my head for months afterward.”

Templeton secured the assistance of co-counsel, Tom Curry and Scott Rollwagen, of Lenczner Slaght in Toronto.

“Having Tom and Scott join the team was really helpful in terms of our preparation, particularly on our written brief and guidance on what to expect at the hearing. This being my first time arguing before the SCC, it was important to have people with that depth of experience and knowledge about the nuances of the Court to consult and learn from. Also, in their office as counsel is the Honourable Ian Binnie, QC, who served as a Justice of the SCC for nearly 14 years. It was particularly valuable to have the opportunity to pick his brain, and have his insights on what would be of interest to different members on the bench.”

An unconventional SCC experience

The factums were submitted. Best and Templeton prepared their oral submissions while waiting anxiously to hear whether they would be allowed to travel to Ottawa to present in person. Ultimately, the pair were forced to appear remotely due to the travel restrictions of the pandemic. Best and Templeton agree that although their experience may not have been the “classic SCC experience,” there were silver linings.

“People have said to me ‘oh it's too bad you didn't get to fly to Ottawa to give your submissions,’ but I never felt that way,” recounted Best. “I was able to make the best submissions possible. I thought how interesting it is to appear at the SCC at this point in history, during a pandemic. I was proud to participate in that—plus I got to wear my sneakers.”

Templeton echoed this sentiment saying, “everybody would like to have the opportunity to trot up to Parliament Hill and have their day in that court, but there's something to be said for having the ability to sleep in your own bed the night before as well.”

As expected, the pair were bombarded with questions from the panel of nine as their allotted 60 minutes ticked by.

“Our team had researched the split of the court, said Best. “We studied quite closely the court's previous decisions on contractual interpretation, so we knew the direction the justices would lean towards. Our research didn't let us down, we got certain questions from certain justices as we predicted.”

Templeton took the same approach, studying the justices’ divergent opinions on comparable decisions in the past. “At the SCC, you're given the nod and green means go,” laughed Templeton. “Within a couple of seconds of speaking you get a question from the bench, and then it doesn't stop. You try to answer the questions as clearly as you can, and anchor back to your key points wherever the opportunity allows. The old adage about advocacy of ‘be clear, be brief and be gone’ comes to mind. When you only have that hour, you have no choice on ‘being brief and being gone’. The focus is being clear.”

Both Best and Templeton are pleased with their performances.

“I feel very happy with my performance,” said Best, “not to say that it was anywhere near perfect, it certainly was not. Someday soon I will work up the courage to watch it.”

They agree it was a valuable learning experience—made particularly special between friends— and are thankful to their clients for trusting them to advocate on their behalf at all levels of court.

“We’re friends outside the courtroom,” said Templeton. “We have a lot of respect for each other; I certainly have a lot of respect for Erin’s abilities and her character. It was really nice that we had this shared experience and opportunity; that both of us were involved at each level of court, and that our clients stuck with us throughout the process.”

“It was a pleasure to argue this case with Alex on the other side.” said Best. “He is a lawyer with a lot of integrity and his advocacy skills really shine at the appellate level. He is just a top­notch litigator.”

Best and Templeton know each other well, having practiced together at Cox & Palmer before finding their “homes” at Stewart McKelvey and McInnes Cooper respectively. Newfoundland is known for its friendly bar, and the pair are an excellent example of this east coast collegiality. After the hearing, they shared a phone call to congratulate each other on a hard-fought battle.

“It’s just fortuitous when these opportunities arise,” said Templeton. “In this case, you've got a good set of facts—really interesting law; you've got this evolution of the common law going on. To me, it's a massive learning experience, but it's also a tremendous privilege to be involved in any case when you feel like you're actually having some kind of impact on the refining process of the common law.”

We congratulate Best and Templeton on this significant career milestone and thank them for sharing their unique experience. The Court will likely release its decision in the coming weeks. It is safe to assume these two UNB Law alumni will be refreshing their Twitter feeds furiously until that time.

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