Canadian Lawyer

28 A P R I L 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m aside and plowing onward. LeNoury took a breath and tackled them one by one. Luckily for him, however, the session was a dry run; a mock hearing arranged under the auspices of the Supreme Court Advocacy Institute. With the pro bono organization entering its 10th year of operation, its mock sessions have become an indispensable stop for many counsel heading to the Supreme Court. Typically held about a week prior to an appeal, the sessions occupy a temporal sweet spot where legal arguments have gelled yet can still be changed. The underlying philosophy behind the institute's existence is that every argument can be enhanced by obtaining savvy feed- back; that even the most silver-tongued lawyer is not immune to rhetorical excess or developing a tin ear when Supreme Court judges commence probing and challenging. "The Supreme Court doesn't want to hear what you think," says Shanto- na Chaudhury, co-director of the institute. "It wants to tell you what it has trouble with — and that is precisely what the advocate doesn't want to talk about." One in every two Supreme Court appeals now features at least one lawyer who has been through a mock appeal arranged by the institute. In LeNoury's case, his motivations for requesting one were typical of most participants. He wanted to work on his timing and gain a sense of the type of questions he might face. Thus, one bone-chilling evening in January, LeNoury and co-counsel Avi Sir- lin arrived at a conference room — lent by the Toronto firm Henein Hutchison LLP — and were confronted by a panel of three mock judges well suited to their role: Scott Hutchison, Jonathan Dawe, and Tom Heintzman. Between them, the trio of faux judges had a total of more than 60 Supreme Court of Canada appearances under their belts. Hutchison commenced the hearing with a strict warning that oral submissions would end the moment his stopwatch signaled that an hour had passed. "If this were a play, we would be having the dress rehearsal," he said. "The idea is to give a real sense of what might happen at the hearing in the Supreme Court. We will try to make this as realistic as possible." The plaintiff in LeNoury's case, Joseph Wilson, had been let go in 2009 by his employer, Atomic Energy of Canada Ltd., with six months salary including sever- ance. While the 38-year-old middle man- ager had been given no reasons for his firing, Wilson strongly believed it was because he had blown the whistle on allegedly corrupt practices at the federal agency. A labour board arbitrator later found that Wilson was fired without just cause. AECL appealed the decision and won. LeNoury now faced the unenviable task of trying to overturn two subsequent lower judgments written by two respected work- horses: Justice James O'Reilly of the Fed- eral Court of Canada and Justice David Stratas of the Federal Court of Appeal. A key question involved a Canada Labour Code provision, added in 1978, that had enhanced job security for non- unionized federal workers. Historically, arbitrators had split in their interpreta- tion of whether employers are required to articulate reasons for a firing. O'Reilly and Stratas had come down on the side of employers. Dawe soon summed up the chief problem LeNoury would face before the Supreme Court: "How can you say that Parliament intended a system where a bunch of individual arbitrators go off in different directions, and it never gets resolved?" he asked. LeNoury's response nearly caused all three panel members to fall out of their chairs. He said that, based on his research, only eight of approxi- mately 1,700 unjust dismissal decisions involving similar facts had sided with AECL's interpretation of the provision. "That is absolutely central," Hutchison said. "It's not as if arbitrators are riven by a terrible problem that has never been resolved. Tell the court that this [provision] is a creature of Parliament and if Parliament doesn't like the way it is working, it is Parliament's responsi- bility and prerogative to step in." Once the oral portion of the session was over, a second hour was devoted to a wide-ranging discussion. Among dozens of tips, the panel suggested that LeNoury and Wilson compile a list of all 1,700 arbitration decisions to pres- ent to the court. They also encouraged the lawyers to urge the Supreme Court to leave well enough alone; to submit that arbitrators are perfectly qualified Governor General David Johnston, centre, presented the Meritorious Service Medal (Civil Division) to Owen Rees, left, and Grégoire Webber, at Rideau Hall last December in recognition of their work in launching the Supreme Court Advocacy Institute. SGT RONALD DUCHESNE/RIDEAU HALL

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