Ever wondered what it's like to preside over the Competition Tribunal? Or to collaborate with a judicial member of the Tribunal as their law clerk? Wait no more! Join host Charles Tingley in conversation with Canadian Competition Tribunal Chair, Justice Andrew D. Little, and his former law clerk, Umang Khandelwal.
Join us for a special double-episode to kick-off the second season of the Counterfactual Podcast! We go behind the scenes with Canadian Competition Tribunal Chair, Justice Andrew D. Little, and his recent law clerk, Umang Khandelwal. The discussion covers the waterfront from Competition Tribunal practice and priorities to the future of competition law advocacy and points in between. This episode and will be of special interest to those considering a judicial clerkship, serving on the bench, appearing before the Tribunal or pursuing a career path in competition law generally.
CBA Counterfactual Podcast – Episode #8: Justice Little, Umang Khandelwal & Charles Tingley (Host).
Intro.
Welcome to Counterfactual, the podcast brought to you by the Competition Law and Foreign Investment Review section of the Canadian Bar Association. Counterfactual takes a fresh look at issues relevant to business competition and related areas of regulation and explores the real and hypothetical worlds to gain practical insights and debate policy. Hope you enjoy the show.
00:29 – Charles.
Hello, and welcome to Counterfactual, the podcast produced by the Competition Law and Foreign Investment Review Section of the Canadian Bar Association. My name is Charles Tingley. I'm a Partner at Davies in Toronto, and I'm delighted to host a very special episode to usher in the second season of the Counterfactual Podcast. In this episode, I'll be speaking with none other than the chair of Canada's Competition Tribunal, Justice Andrew Little of the Federal Court of Canada. But that's not all. Joining me as well is Federal Court Clerk Umang Khandelwal, who has worked very closely with Justice Little over the last 12 months on various tribunal and court matters. Having both of our guests here to discuss the work of the Competition Tribunal from all angles is a fantastic opportunity for our listeners to gain a better appreciation of the workings of the tribunal in the court, should they ever find themselves advising on competition law matters, advocating before these adjudicative bodies, or maybe one day even clerking or serving on the bench. And just a quick reminder at the outset, that the opinions expressed by participants on this podcast are their own and do not necessarily reflect the opinions or positions of their employers, or of any otherorganization.
01:47 – Charles.
Before we get started just a few words about our guests. Justice Little was appointed to the Federal Court on April 28, 2020, and shortly thereafter, the Competition Tribunal. He was appointed Chair of the Tribunal as from April 30, 2022. During his career as a lawyer, Justice Little worked at law firms in Toronto and Calgary, acting as counsel in a wide variety of litigation, regulatory, and arbitration matters. From 2013 to 2015, he was seconded to the Department of Justice serving as general counsel at the Competition Bureau. Justice Little’s competition law expertise spans all areas, and he has represented the Commissioner of Competition and private parties in Competition Tribunal proceedings. While in law practice, he was a frequent speaker, writer, and presenter on competition and antitrust law, administrative law, contracts arbitration, and legal developments in Appeal courts. Justice Little was a graduate of Queen's University, Dalhousie Law School and Balliol College, Oxford. He served as law clerk to Madame Justice Claire L’Heureux-Dubé, at the Supreme Court of Canada in 1990-91.
Umang Khandelwal was law clerk to Justice Little at the Federal Court of Canada and the Competition Tribunal. Prior to clerking at the court, Umang served in various positions of the Competition Bureau of Canada, including as a competition law officer in the Monopolistic Practices Directorate, and most recently as a special adviser to the Deputy Commissioner involved in various strategic initiatives and competition policy projects. Notably, the Bureau's submission to Senator Weston's consultation on potential amendments to the Competition Act, in respect of which Umang was awarded the Deputy Commissioners Award of Merit. After her clerkship, Umang will be joining the Competition and Foreign Investment Group at Davies in Toronto. Justice Little, Umang, a very warm welcome to the Counterfactual Podcast.
03:41 – Justice Little & Umang
Thank you very much. Thanks, Charles.
03:43 – Charles.
So, as I said, I'm delighted that you're here, and I thought we would start with something that the three of us all have in common, that is serving as a law clerk for a judge. Maybe just starting with you Umang, as someone who's just completed their clerkship, maybe you can describe in a nutshell, what a judicial law clerk’s role is, and how maybe that's translated for you in terms of daily tasks and expectations on particular cases.
04:10 – Umang.
Perhaps I can take a file off the shelf, so to speak, and I can walk you through the lifecycle of a particular file. I would categorize the tasks by chronology during the process. So, pre-hearing, during the hearing, and post-hearing. In the pre-hearing stage, the role of a law clerk is to enhance the judge’s preparation of the file. This involves reading, or should I say, studying the party submissions, the underlying evidence in the matter, and of course, the relevant law. All of this feeds into a work product called a bench memorandum. It's a piece of legal writing and analysis that I would say traces the structure of a decision. So that would be a summary of the relevant facts and the parties’ key arguments that in the clerk's opinion are material to the outcome, and an analysis of the court issues with a tentative recommendation. The law clerk focuses the judge’s preparation by recommending case law, that the judge should read, any evidence that may be helpful for the judge to look at before the hearing, and flagging any questions for counsel for the hearing. Before the hearing, and I think this is the best part of the job, the judge and the law clerk often engage in discussion on key issues and the relevant law. At the hearing, the law clerk pays close attention to the arguments. Sometimes counsel, of course, choose to highlight select arguments rather than all of their written submission. The post-hearing phase involves more discussion, or should I say, debate, wrestling with interesting questions, and working our way getting to the right answer, now with the benefit of counsel’s oral submissions. Finally, the law clerk also plays an important role in reviewing the judge’s final decision before it's published. So, I think that's an overview of the very interesting and unique role of a clerk and an overview of my past 12 months looked like.
06:13 – Charles.
That's very helpful, and it sounds like a fascinating, and very privileged role, really, to be able to be behind the scenes on a judicial process that for others is only viewed from the public lens. Justice Little, obviously, you've also clerked, as we canvassed in your brief bio in the introduction, and I'm curious to understand whether you think that's had any particular impact on your career, and maybe particularly now, in your work as a judge?
06:46 – Justice Little.
Well, thanks, Charles. And thanks for the outline Umang. I would say clerking had a tremendous effect on my career. As a litigation lawyer, it really revealed a lot about advocacy, both effective advocacy and ineffective advocacy, because we watched a lot of hearings, a lot of appeals, and we read a lot of written arguments. So, you learn a lot by osmosis and by talking to your fellow clerks and by talking to your judge. And I think it helped me develop my own skills. And working with Claire L’Heureux-Dubé was a real privilege. She was trained as a civil lawyer and practiced law in Québec. She was a trial judge in Québec and an appeal judge, before she joined the Supreme Court, and she was a real student of the law. In addition to all our workload load on the court, she read law journal articles, which we photocopied for her. And she was very interested in comparative law. Her work ethic was legendary at the court, and she was very curious about law in other jurisdictions. So that's sort of set an example for me and then it opened up a lot of perspectives for all of us that clerked for her. The last thing I'll say, because you were asking about how it affects me in my role at the moment, she was very careful and thoughtful about legal issues, and she looked at them from all angles. From my observation, she really listened to other people's opinions about them, law clerks, the parties' opinions, the interveners’ opinions and so on. Even if she didn't ultimately agree with them, she was always looking to us, to what she was thinking about and what she would write about. And that has stayed with me, in my work as a judge.
08:41 – Charles.
That's great. Very interesting.
08:43 – Justice Little
Well, Charles, you're at a younger stage than I am, in your career. What about you? You went to New Zealand, and you're now back in Toronto for a number of years. How did clerking help your competition law career?
09:00 – Charles.
Well, I was a clerk actually, literally, at the turn of the century. I was a clerk for a few judges at the Federal Court of Appeal. And I did find it to be a very rewarding experience. I think I chose to clerk for a number of reasons. You know, sometimes these things just sort of occur to oneself as you go through your life. But mostly, because I wanted to change things up a little bit, I had spent a couple of summers at different law firms in Toronto, in New York, and thought it would be interesting to look at things from a different perspective. I mean, the experience has had a lasting impression, including uniquely with respect to the Federal Court’s jurisdiction, and to sort of appreciate which I think I continue now to do in a regulatory practice, you know, the relationship between the state and private citizens and business, whether it be competition law, or tax, immigration, IP, and any number of federal tribunals or agencies tasked with implementing various laws and policies. And so I thought it was very interesting to understand what the public interest meant and how courts interrelate with parliament and the executive through judicial review and statutory appeals. And it was also a great place to see a wide variety, as you mentioned, of advocacy and writing styles, I think Umang mentioned that as well. You know, hone in on attention to detail, and really foster those privileged one-on-one relationships that I had, I was fortunate enough to have, with senior judges who had a great breadth of experience. I was also lucky enough to witness and be involved, at least to some degree and in an interlocutory sense, in the Superior Propane appeal, while clerking at the Federal Court of Appeal, which served only further to whet my appetite for a career in competition law. Now Umang, you've just completed your clerkship at the Federal Court, with Justice Little, and I'm curious about what your path was to clerking and what you think you'll take away as you enter private law practice.
11:05 - Umang
I think I had a bit of a unique path to clerking in that I came into the clerkship with two years of post-call experience. But I'd like to think that no matter what stage you have the opportunity to clerk in your career, whether it's in lieu of articling or with some experience, the clerkship is an incredibly unique experience and you will take away different skills and perspectives from a clerkship. So, in terms of my path to clerking, after law school I articled at a national firm in Toronto, which is when I realized that competition law is as interesting in practice as it was academically for me in law school. I found it to be a very dynamic area of the law. And that's when I knew I really wanted to build a career in competition law. After articling, I moved on to the Competition Bureau. I spent some time as an investigator in the Monopolistic Practices Directorate, and then working on competition law reform. It was during my time working on enforcement files that I developed an interest and curiosity about the Federal Court and Competition Tribunal. I think my interest in working as a clerk at the Federal Court was based in its jurisdiction, of course, and particularly its competition law jurisdiction, and the fact that it is an expertise-based court. I wanted to learn from judges who are real experts and deep thinkers of competition law. How do they think? What do they find persuasive? How do they reason their way through? So, I think that's really what took me to the court. Another part of your question was what I'm taking away. It's hard to distill into a couple of things, but maybe just to highlight a few. I think, preparation is everything from law clerk, to an advocate, to a judge, I really have learned from my clerkship that preparation is what makes a lawyer effective. And I think that's why I used the term studying earlier. It's really about understanding the facts and the evidence, it's as important as understanding the relevant law issues. Another thing I learned is getting to the core issue, going straight to what the problem is, and learning how to resolve it. But also learning when to read around the problem. Respectfully disagreeing with authority is an aspect of oral advocacy that I became well acquainted with; learning how to disagree with a judge, not to say that it happened often, but disagreeing with a judge can be an intimidating process to start, but a fun one, it makes for enriching conversations, and I think a stronger end product as well.
14:01 – Charles
I have to interject there. Just to ask Justice Little whether there are any occasions - I don't know if there's a scorecard available - but whether there are any occasions on which Umang persuaded you of a different course that you hadn't thought of, or a different perspective on a particular issue?
14:21 - Justice Little
The answer is yes. I won't elaborate in too much detail, but the answer is yes. And because sometimes, even after a hearing, there is emphasis that counsel has put on an argument that seems persuasive. And it's very, very helpful to have a clerk who has listened to the argument and to say, “well, what about this point?” If you're going to, let's say, dismiss this application for judicial review, how do you reconcile this argument? How do you deal with it? And then you have a conversation about it, and maybe the answer is you can't. And so you say all right. When you go to new judges school, you're told that sometimes you have an inclination about how a case is going to be decided, and you start to write it, and there will be situations where it just doesn't write. And hopefully you don't get too many of those because it's not very efficient timewise. But part of the equation in talking to your law clerk is to get through to a point where you're comfortable with what you're doing. And yeah, there were a couple of times when - at least a couple of times - when Umang said, “Well, wait a minute, what about this argument? It's pretty hard to answer that.” And the answer was, yes, it was hard to answer that. And I can think of one other one where, where I was going down one path, and she said, “Wait a minute, the facts are this.” And we said, “Okay, actually, that path doesn't work anymore.” So, we got to find a new path. You might come to the same outcome, but it's got to be through a different path, or you got to reconcile that fact or that argument, and try to work it through. Anyway, that's the answer. It does happen. And it has happened.
16:02 – Charles
And I would just add that, I think, that kind of collegial discussion, you know, argument, as it were, is something that I think we all have, whether in practice or at the Bureau or, in various walks of life. And if you didn't have it, things wouldn't improve, it seems to me. But it’s neat to understand the kind of impact that a clerk can have, generally, but also in this kind of respect. Sorry Umang, I had to sort of jump in there when I saw the opportunity, but I don't know if you want to finish up your comment there.
16:40 – Umang
Not at all. But the last thing I would say on what I'm taking away from my clerkship is the art of legal writing. I think learning how to be direct, how to be concise, how to be brief, you know, pulling right, from Justice Stratas’s book on legal writing, I would say learning how to write for your audience, learning how to write without jargon, and in plain language, which I know we'll talk about a little bit later, as well. Those are some of the biggest things I think I took away from the clerkship.
17:19 – Charles.
That's great. Now let's talk about transitions. Because, you know, you both have been involved in various endeavors. And one of you has recently transitioned to being a judge, and the other is about to transition into private practice. But I guess I would just start with Justice Little, I mean, how have you found the transition to be, being a judge?
17:43 – Justice Little.
I found it, actually, a pretty natural transition, although there is a steep learning curve. I really spent the first 18 months working a lot, if not all the time, investing time, and really learning the new craft. You know, back to reading law again, as we all did in law school, as it comes out several times a week from the Federal Court of Appeal or from the Supreme Court as an example. There was a lot of reading and a lot of just making sure I had as much perspective on what I was doing every day as possible. There were a lot, as a Federal Court judge, there were a lot of new subjects and applications of principles in new contexts. So, applying administrative law, judicial review principles to the immigration and refugee system, for an example. And, you know, there were lots and lots of procedural fairness questions, for instance, which come up all the time, and so on. So, there was a lot to do at the beginning. But I found the transition to be invigorating.
18:51 – Umang
I'm curious, how do you compare being a lawyer and being a judge? Do you find it is a natural extension of your career as a lawyer? Or would you say it's quite different?
19:03 – Justice Little.
Well, I would say it's less of a natural extension than you would think it is. Part of it's sort of funny culturally, because everybody stops calling you by your first name, which is a little bit hard - still a little bit hard - to take, actually, from time to time. And I mean, I have these two nephews, my sister’s sons, who are 13, and 8, and around their house, they refer to me as Uncle Justice, which I find pretty funny. So even within the family, there's a bit of teasing that goes on. One big change just day to day is that your email box is completely different. I mean, I can go a whole weekend without a single email on a file. And I don't worry about it, I don’t worry that there's going to be something coming in. If I'm on duty on the weekend, which you are from time to time, then you're always ready and available, but most of the time, you don't have to pay attention to it. You can work on judgments, you can do other things. You can actually have a day off without worrying that your email box is going to be half full when you get back to it. But I mean, in a bigger sense, as a lawyer and an advocate, you spend a lot of time on organizing facts, gathering facts, presenting them to somebody, presenting them back to the client, or to the General Counsel, presenting them to the Bureau, presented them to a court. And you think a lot about risk, whether you're assessing it or you're minimizing it, you think about how to maximize outcomes in the litigation process and how to advance each individual client's interest as much as you can. Compare that to what you do as a judge: you're there to make decisions and the gathering and the presenting of the information is all done in advance for you. You spend a lot more time, I find anyway, reading and listening, rather than talking. You spend a lot of time in a quiet office by yourself, which some people like and some people do not. And you have to take off your advocate’s hat, which is a hard thing to do after so many years of being one, you have to stop thinking about how you would present the case, or what you would argue if you were in the shoes of a party you're listening to, and just listen to what's being said. And overall, the task is really to find the best answer, the right answer or the best answer, which doesn't always mean agreeing with one party or the other, you have to use your own judgment. And sometimes it's somewhere in between the two parties. That's one of the reasons having a law clerk is a really, really great thing because you can help find that proper place, often in between the positions of the parties. So, I mean, for me, all of this happening for the first year, year and a half, on videoconference from my basement office rather than in courtroom and in the office, which was not what I expected when I applied, I can tell you. So, it's constantly challenging. It's constantly changing. And it's thinking work. And for us, at the Federal Court, it's a lot of writing because we hear so many judicial reviews and then have to write reasons for whatever we decide. We’re talking about transitions, and let me ask you, Umang, what do you anticipate for your transition from clerking at the Federal Court, and before that at the Bureau, to private law practice?
22:30 – Umang.
I think I would echo what you've said, Justice Little, because both at the Bureau and at the court, my starting point has been some very sophisticated submissions from parties. So I think it'll be a different experience going into private practice, and to be the one building those submissions, as you said, to gather the facts, gather that evidence. Another interesting part I think about transitioning into private practice will be that so far, I've worked in the public interest at the Bureau, I really understood and attempted to understand the investigations process, and some of the challenges and opportunities of being a public enforcement agency with limited resources for maximum impact and really understanding what does it mean to work in the public interest and what does the public interest mean? But I am really looking forward to learning about a client's interest, advocating for a client, understanding how businesses work, and the pressure points there when interacting with overlapping complex regulatory frameworks.
23:39 – Charles
I just want to pick up on your experience at the Bureau, and it makes me reflect - as Justice Little, you mentioned my experience in New Zealand, which relates to working at an enforcement agency there. But you know, all three of us have worked for, at one time or another, for an enforcement agency in this area of the law. And I guess, I wonder whether you have any observations about the relative merits of spending time both in private practice and at an agency and how, I guess this is for Justice Little, how this has potentially shaped your own career and even your approach now, as you sit between the two sides that you've been on to make decisions.
24:28 – Justice Little
One thing that happens when you work at an enforcement agency is you start to understand where they're coming from in a way that you don't when you're against them. And you know, it's always important to understand that when you're representing a private sector party, but you get considerably more insight when you're working day to day with them and advising them as enforcers. I found it very worthwhile to have spent time at both a government agency or the government enforcer, and as well in private practice, both as a judge on the Federal Court and as a member of the Competition Tribunal. And it's basically what you would expect: you understand the motivations behind the party's actions, you understand their pressure points, their pain points. And interestingly, it has impact not only when you're thinking about the future consequences of a particular decision, but in a lot of day-to-day things too, you think about Scheduling Orders of the Tribunal, Section 11 orders under the Competition Act, just, you know, the propriety of discovery questions. Those kinds of things, it's really important to be able to see and really understand both sides’ perspectives. And so even in those day to day, fairly regular things that we do, it's the experience on both sides of the bar in litigation has been really beneficial.
26:04 – Charles.
So I might just switch now to maybe one of our core topics, which is just the Competition Tribunal itself. You've obviously been a judicial member, Justice Little, since 2020. And you've been Chair since 2022. And I guess, in the intervening time, I'm just curious to know how it's been so far.
26:26 – Justice Little.
Well, it's been a good experience so far. I’ve really enjoyed it. I was in a month-long hearing, shortly after I joined the Tribunal in the Parrish & Heimbecker matter. And within a week of becoming the Chair, the Commissioner started the application to challenge the Rogers and Shaw merger. So that was a pretty big event. And the file occupied a large part of my time, for the five or six months after it started. In case management, well initially with an injunction which settled, and then in case management and in preparing for the coming hearing with the Tribunal staff, and the administration of the part of the Federal government that supports Tribunals, it's called the ATSSC, to ensure we just had the resources, and everything went smoothly when the hearing started. I was very lucky because I learned a lot from watching and talking to Justice Gascon, both during my first hearing when he was the Chair of the panel, and in particular, when I was taking over as the role of Chair of the Tribunal from him. And I would be remiss if I didn't recognize the staff at the Tribunal who are incredibly knowledgeable and committed beyond compare. I think, without them, the Tribunal just wouldn't run at all, and there aren't very many people, but the people that we have are really terrific.
28:06 - Charles
Just building on your experience, do you have any particular goals or vision for the future of the Tribunal as Chair?
28:13 – Justice Little.
I do. Most of them really relate to making the process better for those that are involved. Under just Justice Gascon’s leadership, we made a lot of progress on developing and communicating how the litigation, the dispute resolution process would work at the Tribunal, from mediations, to scheduling and confidentiality and so on. So a lot of what I hope to achieve relates to the process. But it's important to understand why that is. I mean, a lot of what the Tribunal does is reactive in the sense that it is an adjudicative decision maker. We hear cases and we resolve disputes just like the court. The Tribunal has a lot of attributes of a court, actually, its formality and many of its procedures are just like a Canadian court, but we do have some of the flexibilities and expertise of an administrative tribunal. So the job of the Tribunal is to interpret and to apply the Competition Act to the particular circumstances in each lawsuit, and we have detailed procedural rules and practices that govern how the cases are handled from start to finish. So it's the Commissioner of Competition and the Competition Bureau, it’s their role to investigate possible breaches of the Competition Act and to start a lawsuit, an application or to file charges if the circumstances warranted it. And the Bureau, the Commissioner, also promotes competition and will play a leading role in law reform. The Tribunal doesn't have any of that mandate to investigate, to start lawsuits, to promote competition or to deal with law reform. And because of my role as a judge and a judicial member of the Tribunal, I can't, you know, I can't be involved in any of the current debate about proposed amendments to the Competition Act. So my goals as Chair, don't go to the future of competition law in that sense. But I do think we can work – to continue to work really – to make the Tribunal’s processes more open and accessible, including to the public, and even more responsive to the litigating parties. There are a lot of competing interests in balance, including to ensure procedural fairness to the affected parties and to promote legitimate confidential business information and protect that information from being disclosed to and exploited by competitors. And we might just get into that a little later. So in some ways, we're able to advance some of the more broad process oriented objectives during the recent merger cases, I'm not saying that every case is going to get through the Tribunal as quickly as Rogers and Shaw did. But we did show that it can be done. And I think I'll be probably looking to call for input from the Bar and the Bureau on how we can learn from what happened in that case, and other recent merger cases, to improve the process for everybody.
31:47 – Charles.
That's a great sort of overview. And I think we're going to unpack a few of those items as we continue to chat. But on your last point, I think I can certainly say from at least where I'm standing that the Tribunal’s and the Court of Appeal’s efforts to adjudicate the Commissioner’s proceeding against the Rogers and Shaw transaction on such an expeditious basis was truly impressive. I mean, especially in the mergers area, as you can appreciate, where time is of the essence, and can itself be the death of a transaction, regardless of the relative merits. Then seeing the legislative framework operate as intended, is from my point of view, pretty heartening, you know, obviously, notwithstanding any arguments in the context of, for example, ongoing law reform discussions about how easy or difficult it should be for the Commissioner to succeed in a merger matter. You know, there's little question in my mind that, at least historically, there has been a material degree of leverage, as you might expect, with respect to remedy settlements, consent agreement, templates, and things like that, that the Commissioner holds over merging parties, in many cases, just simply given the element of time. You know, to appreciate that, in appropriate cases, these sorts of merger matters can be resolved quickly and fairly, and that decisions can be rendered with important interpretations that are very helpful to the Bar and the Bureau to advance our understanding of the law, is very comforting. All that said, I did want to just pause on one aspect, just reflecting on these recent merger cases, as an example, there have been a good number of them just since you've joined the Tribunal that have gone from start to finish. And I wondered if you could just comment, Justice Little, on the relative caseload of the Tribunal. And what it takes to get a proceeding off the ground, essentially, a full merits proceeding, and the resources involved and whether you feel the Tribunal is well equipped for this, and even including how it may forecast, or manage workload in advance if that's even possible.
33:53 – Justice Little.
Well, you're absolutely right, there have been three significant merger cases that have been heard and decided since 2021. And significant proceedings do tend to stretch the Tribunal resources, particularly in the weeks before a hearing and during a hearing. And the ATSSC, which provides the resources to run the Tribunal, has been very responsive to the Tribunal’s needs and really pulled out all the stops to get the merger case done in 2022. That kind of litigated merger matter, with all its public dimensions, I think is unlikely to be repeated. But it showed what we can do in a short period of time, at least a short period of time for the purposes of resolving litigation informally formal dispute resolution. And as you say, both by the Tribunal and by the Federal Court of Appeal, we don't really have an ability to forecast workloads and that kind of thing because we don't start the proceedings, we just react when proceedings are begun and, and do what we can to move the process forward as expeditiously but as fairly as we can.
35:13 – Charles.
And just speaking of, I guess, resources and preserving them, we obviously now have a mediation process that you referred to previously, that's been used on a number of occasions. I wondered if, to the extent you're able to comment, if you have any particular observations about that process, including how beneficial it can and has been in narrowing or even resolving issues, and how parties might approach it to achieve the intended outcomes. And you know, to the extent that you can't comment in any detail, obviously, maybe some thoughts on the Tribunal’s expectations of litigants before it when it comes to expeditious litigation and resolving disputes efficiently?
35:56 – Justice Little.
Well, I can certainly comment on the last part, we certainly expect parties to move along smartly towards a hearing. And there's a Practice Direction, on timing and on scheduling issues, that is out there. We issue a Scheduling Order at the start of every case, that sets deadlines all the way to the end of the hearing. And we set up motion dates and deadlines for completing various steps to get to the hearing. And it's all in an Order. Which means that deadlines are real, unless there's a good reason to change them by amending the Order. I can say a few things about mediation. The Tribunal has organized mediation for a number of proceedings now, in the last, I guess, six or eight years in particular, and in a more structured fashion, several of which have been successful. And from my perspective, at least, it would be a pretty unusual case, that would not include mediation in the Scheduling Order. And by that I mean, parties don't have to mediate, because mediation is a consensual process, you have to agree to mediation, and I can't force anybody to do it. And sometimes it's not worthwhile. But building the time into the process is, and doing that from the outset, means that people have to turn their minds back to settlement at least one other point during the proceedings. So you probably do think about settling and trying to resolve a problem before the lawsuit is commenced. But then if there's something in the schedule, typically after the discovery process has happened and before the real gearing up for the hearing happens, there's a there's a point there where people can pause and say, you know, can we solve this problem now that we've been through the whole formal process of discovery, and pleadings and so on? So I think that's worthwhile in just about any litigated dispute at the Tribunal, not all maybe, but most of them to put that into the schedule somewhere. I think I can also say that settling a dispute at the Tribunal is a little bit different than maybe the case in other commercial matters for a number of reasons, but in part because it's not just about money. From the Commissioner’s perspective, there's the public interest. And from the responding party's perspective, there are often other interests, including their reputations, in some cases, and that can make a big difference. So people who come to mediation that is part of, or is paused in the Tribunal process, because, of course, the Tribunal, the Tribunal itself, and the person who will hear the merits of the case cannot be the mediator, or at least not without the parties’ consent. And, and perhaps not at all, in Competition Tribunal matters. You have a different mediator, it's usually another member of the Tribunal, who will not be sitting on the merits. But there are different things when you come to a mediation of the Tribunal that don't necessarily apply and in commercial matters that you might have before a Court.
39:22 – Charles.
So I did want to pick up, of course, on the Rogers and Shaw proceeding, given it's you know, immensely high profile. And as part of that, high profile and media scrutiny, you know, there were some media outlets who were sort of portraying the process at times as somewhat opaque or even secretive in the sense of the confidentiality requirements that we're all quite familiar with, in this particular area to protect competitively sensitive information or potentially privileged information. But I just was curious to understand your collective reaction to that. And do you think the Tribunal’s process or future expectations around confidentiality and transparency have evolved and, and are equipped to strike the right balance and future?
40:17 – Justice Little.
Well, let me let me start and Umang, you can jump in as well, if you want. I won't say anything about Rogers / Shaw, it's just not the right thing to do, to say anything about that particular case. But I think there's quite a lot of nuance in this. And it requires some understanding of what the Tribunal does and doesn't do. But let me make a few points just for information sake, because there may well be a bit of thinking we do need to do about confidentiality. The Tribunal has a standard confidentiality order, which is sometimes with amendments, or often with specific amendments for a specific case that's issued at the outset of each proceeding. And it allows parties to designate some information as confidential, with different levels of protection depending on the nature of the information. And there's a built-in tension in doing that, and having confidential information. The Tribunal has to hear all of the evidence that the parties want to present to it in order to come to a fair and just outcome. That is the overall purpose of the litigation process. And some of that information, a small subset of it is, or may be, competitively sensitive information. So it might be, well, I won't give examples, but there are too many examples. But the point is that it may affect the ability of somebody, some party in the marketplace, to compete effectively. So it may be a party's internal projections, it may be their plans and strategies on how they're going to compete, may be pricing information, there all sorts of things that may be confidential in the particular circumstances. And so the Tribunal process has to protect legitimate interests in competitively sensitive information. You can't have competitors getting a sneak peek at the competition's strategies through the litigation process. But at the same time, we have an open courts broad principle, and it applies to adjudicative tribunals. And so if confidentiality protections are not sufficient at the Tribunal, in the process, then the release of that information could affect how markets operate, or it could compromise a competitor's business and therefore affects how a market operates properly, it muddies the level playing field if I can put it that way. On the other hand, if the confidentiality claims are too wide, or they are wide, then the public interests in an accountable process and in a fair trial can be at risk. So you have to find the proper balance of those and a few other factors in each individual case. I think one thing we can do is to ensure that parties who are designating information as confidential file supporting evidence to justify those designations when they file their evidence before the hearing. And that's consistent with the general case law on confidentiality, and confidentiality in particular under the Federal Courts Rules. And there may be other options beyond that as well, which can be discussed at a specific proceeding about how you do it, as parties go through the Tribunal process, and perhaps outside in consultation with the Bar and the Bureau. But I think that's something that can be discussed, but that’s sort of information about how the process works and the trends and the kinds of things that we have to struggle with to come up with a process where all the evidence can be heard. But we don't do things that are going to compromise either the open courts principle or the integrity of the markets that are being examined in the process.
44:48 – Charles.
Now it's very helpful to understand those competing principles. I want to turn now to the Tribunal as a specialized body. In Canada, the Tribunal was conceived as an expert tribunal, consisting of judges and lay members with relative expertise in fields related to competition law and economics, for instance. This is different from how competition laws are adjudicated in a lot of other jurisdictions, of course, including our friends to the South. And I just wanted to ask, you know, is it important to have a specialized tribunal? And if so, why? And are there any particular pros or possible downsides or difficulties or things to manage with respect to maintaining the tribunals expertise?
45:36 – Umang.
I can jump in here, Charles, I think a specialized court can, in some cases, be speedier and more focused. You know, rather than learn basic concepts, or not so basic economics concepts, afresh each time, it can develop some expertise, some knowledge, and fast track processes as a result of its experience. I think a specialized court can also be more flexible in its procedures. Just touching on what Justice Little was outlining and the efficiency of the process and responding to market realities, because it can tailor these processes to competition cases, and doesn't necessarily have to take into account any knock on effects on other types of cases. So I think there's definitely some benefits to having a specialized adjudicator body in this area of law.
46:35 – Justice Little.
Yeah, I think that's fair. And that is, of course, the choice that Parliament has made in enacting the Competition Tribunal Act and the Competition Act. It does permit the Tribunal to reach decisions that are solid, I guess, in applying competition law principles, and also to provide guidance, for example, on market practice, practices that may cross the line or for future transactions. And in addition to subject matter expertise, it does help to know the members of the Bar who regularly appear before the Tribunal, and even to have worked with them in the past. I just say, you know, almost in contrast to the specialist argument is the people who are, at least the judicial members on the Tribunal, are not just specialists. And it goes for the lay members, with what we call the lay members, the non-judicial members, as well. We do a lot of other things professionally. So amongst the judicial members, we have varied backgrounds in the competition area, but also in trade law and so on. And at least two members of the judicial members of the Tribunal had a lot of experience in all manner of commercial litigation. On top of all the experience we have, as judges in the Federal Court. I mean, keep in mind that a lot of the Tribunal’s work is about managing the litigation process, from dealing with the injunction or the interim order at the beginning, all the way to case management meetings and dealing with the process as we go through it. And then at the hearing, dealing with witnesses and documents, and so on. So having competition law expertise is a very important thing to understand what's important in the evidence and to write a good decision at the end. But it's far from the only factor to ensure that we reach a fair and solid decision in matters that are litigated. So there's a good argument for generalists as well, as I guess this was where I'm going with that comment.
48:52 – Charles.
And just to sort of draw on that comment with respect to Federal Court justices. I did want to just ask you, while I have the opportunity, I noticed that announcement, and many of us probably have, in March of this year that the Federal Court has formalized subject matter chambers, including chambers with respect to competition law matters. And I want to know whether you could comment on that initiative? And what, if anything, it may mean for competition cases coming before the court. I mean, I would observe as well that we've been seeing what seems to be an uptick in traffic with respect to private actions, class actions at the Federal Court with respect to competition matters, and some very important and interesting case law that's emanating from the court. So I sort of asked the question about the specialized chambers in that context as well.
49:50 – Justice Little.
Yeah, the chambers idea was announced a few months ago by the Chief Justice and I think he tried to explain at the time what the court is trying to achieve. I think we have somewhere in the range of 15 competition class actions that are ongoing right now in Federal Court. And you're right, several decisions on certification, some of which should have gone to appeal and been decided by the Federal Court of Appeal in the last couple of years. I mean, I think some of the benefits that parties perceive coming to the Federal Court, it's not only that we do have people who are on the court who have competition law experience from law practice, but it's a national court. So if you're certifying a class, that may have benefits for both plaintiffs and defendants. And it's also bilingual, and it's a bijural court, which allows the court to deal with matters in both official languages and deal with the competition disputes that may have both civil and common law aspects to them from both legal traditions. So I think, you know, the broad picture is that, at least from a competition point of view, if people want that kind of expertise, then they can get it. And I think we have a developing body of case law, pretty quickly developing body of case law, that incorporates what goes on in the provincial superior courts and adds to them as appropriate. So I think it can be an attractive place to try to resolve these disputes if it's something that's national in scope, or you want that kind of expertise. Obviously, again, it's up to parties to figure out where they're going to commence their proceedings.
51:53 – Umang.
Those are some very interesting reflections on competition litigation, and maybe just zooming in a little bit on that idea, from your perspective, Justice Little, how have you found competition litigation evolve over the years? And what do you think the next few years will hold?
52:11 – Justice Little.
Well, I wasn't a competition law litigator for my whole career. So I won't pretend to be able to go back as some people can to the 1980s or the 1990s too much, other than what I remember from colleagues, but I think one big picture trend, at least is the rising focus on expert evidence, including behavioral economics. And relatedly, the use of data, collected data to try and quantify effects, either sort of existing or past effects, or trying to predict what effects will occur in the future. And, in particular, in merger matters, in abuse of dominance matters, what the predictive effects are going to be of practices or transactions, on prices and on other aspects of rivalrous behavior in the market. That evidence doesn't replace live bodies as witnesses. Obviously, we want to hear from people and what happens in a market and why they do things. And it doesn't replace documentary evidence about what happens in the market. But quantification as a as a general trend has obviously become very important to parties’ positions, and sometimes to the Tribunal’s analysis of market definition and, and effects in particular. I'm not saying it's new, it's not even required legally, but its influence I don't think can be doubted, and expert evidence has grown a lot in prominence. All you got to do is look at the Nobel Prize in 2017 in behavioral economics, which had never I don't think been given before, for that Prize in Economics. And I think we're going to see that kind of evidence, for instance, in deceptive marketing cases. As far as future goes, no surprise, I think that people will be emphasizing / thinking more and more about how technology affects markets and competition. And that'll necessarily involve issues around data, which may well lead to connected issues around privacy and intellectual property. If you think, as I tend to do, that businesses’ key assets will be their people and their IP and the data they collect or acquire, then you have to reflect on how those factors will affect competitive conduct in the market and how they will affect competition cases that come to the Tribunal. For the future of Competition Tribunal cases, from a process perspective, I think we can probably have some debates about our process, you can talk about whether every case needs full documentary disclosure, every case means oral discovery. But I think that's a topic for people considering the Tribunal rules in the context of what we've done over the past 20 or 30 years in terms of thinking changes about how process discovery is happening. And it's for counsel to work out in each case, when we settle on this schedule. So there's a substantive level to all of that and there's a process level to it in terms of what's in the future. I guess that's a pretty long answer to a pretty simple question. Sorry.
55:56 – Charles.
Well, I'm not sure it is a simple question, but I'll ask Umang the same question. I mean, what about the future of competition law litigation through your eyes. I mean, you've been involved in a lot of interesting policy initiatives, as well at the Bureau. I'd be interested to see or to understand where you think things may be headed in that regard.
56:16 – Umang.
I think it's important to remember that the Commissioner has enforcement discretion, and how this discretion plays out in practice will vary. It would depend on how a particular Commissioner sets their mandate and priorities, the state of the economy, the type of potential anti-competitive conduct in markets, to some extent on what's going on in other jurisdictions. I mean, just look at the enforcement trends in the digital economy as an example. And there are several other factors that feed into this idea of discretion. But maybe to add some colour to this idea of discretion, let me tie this to some of my work when I was at the Bureau on inclusive competition. Inclusive competition, a challenge is the idea of an average consumer, it seeks to understand consumer behavior through disaggregated data. And I think it goes back to what Justice Little was mentioning on behavioral economics as well. You know, a consumer is not a consumer is not a consumer. It's the idea that anti-competitive effects may be experienced differently by different groups of consumers. And as I was mentioning before, as an enforcement agency working in the public interest, it's no surprise that the Bureau will look to maximize its impact. So whether this means focusing its efforts on vulnerable individuals in the economy, or seeking enforcement and litigation on matters that affect every Canadian, I think this is an interesting area with many questions that are left to be explored. And this definitely mirrors that increasing popularity and use of behavioral economics in competition cases, I think, as well.
58:06 – Charles.
Got some interesting material to unpack in the future potentially for all of us. I wanted to hit on an important topic that was referred to at the beginning in terms of working from your basement Justice Little, but I don't know, Umang, if you want to talk a little bit about technology and how that's impacting hearings and Tribunal process.
58:32 – Umang.
I mean, another interesting aspect of my clerkship was that transition away, or shall I say, back to being in person. So I started the year with a majority of virtual hearings, and virtual meetings. But now we see a lot more in person hearings. But it would be interesting, Justice Little, to hear from your perspective, how have you found the use of technology and virtual hearings, both on the Federal Court side, but also from the Tribunal’s perspective?
59:04 – Justice Little.
Well, at the Federal Court, we've been moving back to having more and more in person hearings, and I haven't done the math, but at least a third of what I've heard this year has been in person which contrasts during the first 18 months as a judge, I think I had one. Not 1%, one exactly. And so that's it. That's a big change. At the Tribunal, we have all of our case management conferences, virtually. And the three merger hearings that we've had since I've been on the Tribunal have all been by videoconference fully. And it actually works really well, especially for case management conferences. It's improved responsiveness and it has reduced the expense and inconvenience of having counsel to travel to case management meetings. We did them by phone before that. And you just don't get the same experience and level of communication on the phone as you would if you have a video conference. Having a virtual option is also good for witnesses, because sometimes people, you know, maybe they live in Halifax, maybe they live in Vancouver, and they need to come to the Tribunal and testify for an hour. Well, that's a very long way, if you're having a hearing in Ottawa or Toronto, for a witness to come just to testify for an hour. And that goes for expert witnesses too, who often will come from afar to do that, including from the United States. We had a witness from the US during the pandemic, who would have had real challenges coming into Canada to testify and we were able to accommodate that very easily by having a hearing by video conference. We're looking forward to the future and where we might have hybrid hearings, we’re not quite there yet at the Tribunal. But we are, we are obviously working towards the possibility that we will be able to have an in person hearing but one or two people might be able to participate by videoconference to avoid those kinds of travel problems and so on. My guess is that we will continue to have CMCs -- case management conferences -- by video in most cases with the possible exception of the of the CMC that happens right before the hearing. We've also done one mediation by video. And, at least from my perspective, my own sense is that is not something that we would repeat, unless the parties insist. From my perspective, and my experience, mediation works much better when you're in person.
1:02:06 – Umang.
I think what you've touched upon, goes back to some access to justice principles. I mean, when you think about self-represented litigants as well. So those are certainly some benefits to being virtual. But I'm curious, how about the difference in advocacy in the two formats? What are your thoughts on that?
1:02:27 – Justice Little.
I think amongst the three of us, we could probably spend the rest of the podcast just talking about that. I think that the two medium, the two media are distinct. The main thing to be conscious about if you are a counsel is that they really are two different media for everyone, so for witnesses, for the lawyers, and for the decision makers, and to adjust your advocacy to reflect that. Most of us who do this all the time have multiple screens, and we have the documents, witness statements, they're easily accessible. So that part of it is no longer the issue as it was maybe at the start of the pandemic. But I've actually found it's easier in the courtroom to have a conversation than it is online, which is sort of strange, because you think intuitively that you will see each other's faces at all times on video, and you think it'd be easier just to get each other's attention and talk and have a back and forth. For some reason, it's my impression that people when they are presenting their case, on video, they seem to be more wedded to their prepared notes or their script when they're arguing through a video screen. And it might be that people have their notes on a different screen than they watch the other people on. So they're looking one way, but they therefore can't see the other people that are involved in the hearing. But the result of that, whatever the case may be, the result is that somehow, it's harder to interrupt without actually interrupting mid-sentence. I'm not sure what that is, it's sort of an impressionistic thing for me. One common but I'd say underestimated element, and this I think goes for both video and in the courtroom, is to watch and listen, while you're talking. Watch and listen to the witness if you're examining the witness and watch and listen to the decision maker who you're trying to persuade or who you're trying to educate with the facts. The other is the speed in most cases, the message is to slow down and that goes for in court or video but for some reason, maybe a little bit more on video, people really are wedded to the script. It takes practice and it takes confidence. But with witnesses, for instance, the court or the Tribunal is hearing the evidence for the first time and needs time to absorb it. And we're learning the case, whereas counsel may have lived the case for months or even years before it gets to a hearing. So it does take some time to absorb. And the same goes for argument. We need time while counsel are making arguments, you need time just to think and to process it, in addition to physically writing notes, while submissions are being made. I mean, that's probably as much as I would say.
1:05:45 – Charles.
I think that first of all, I want to say those are very interesting, practical observations, and I guess, tips, given the technology that's now available and in use for hearings, but I want to chat about accessibility of the Tribunal, and competition law generally. I mean, I actually have myself some vivid memories of when I was at the Commerce Commission in New Zealand, where there was a big push towards plain English in all communications, obviously, especially public facing communications. In retrospect, maybe that was quite avant-garde. There's clearly been a recent push at the Competition Bureau to communicate in plain language, you know, often complex laws and analysis and a similar push, it seems to the Tribunal, and I guess the courts generally probably as well. And certainly I think I can speak for all walks of life, when I say that the Tribunal’s decision summaries of often very lengthy and complex decisions are a very welcome innovation. But what are your collective views on the use of plain language when it comes to competition law matters? Maybe I'll start with you, Umang.
1:06:57 – Umang.
I think this push towards plain language is coming at a good time, particularly in the competition law context. I mean, in the current economic climate, we're seeing an increasing interest and conversation around competition law enforcement, and policy reform, which I think is very positive from a diverse range of stakeholders. My first exposure to the conversation around plain language was at the Bureau. And from that perspective, I think, as an enforcement agency, there was a recognition of the need to make reports and guidance accessible to a broad range of stakeholders, ultimately to promote compliance with the law. So if you look last year in 2022, the Bureau published its new Information Bulletin on Transparency in plain language. But even moving beyond the enforcement agency context, I think this is equally applicable to the Tribunal. And I'm sure Justice Little has some thoughts on that. But also private practice when communicating with clients. From the Court’s perspective, I think plain language decisions enable more accurate reporting of decisions of the Tribunal by the media. It can also be helpful to lawyers in adjacent practice areas, we're seeing a lot of overlap in IP and privacy. So for those looking to understand Tribunal decisions, and some key competition law updates, but also younger members of the Competition Bar, I think there's some great benefits to moving towards plain language and summaries. Justice Little, about how about yourself? What are your thoughts?
1:08:43 – Justice Little.
I agree, I agree with what you just said, in particular, with when you have competition law concepts and how they connect to other areas of practice, Intellectual Property, privacy. Clarity does help lawyers and businesses give and get better advice, and it avoids disputes in the first place. So I think that can be a very helpful thing. Let me give you just a very quick anecdote. Years ago, a lawyer I know who had practiced in private firms, in law enforcement and in-house for a large Canadian company. So in three different areas over a number of years. She told me that she found competition law to be the most opaque area of the law that she had encountered. And that comment really struck me and has stuck with me as well, because of the sophistication and breadth of her legal experiences. So I think it's likely to be a combination of plain language and good writing, to ensure that competition law ideas and analysis are clear for the reader and then they can be transposed and explainable to people in, as you suggested, adjacent practice areas. And ultimately, as a member of a Tribunal, as member of a court, it's our obligation to be as clear and open in describing why we've reached a decision as we can.
1:10:16 – Umang.
Absolutely, and I think this discussion, in my view, is about ultimately building public trust in institutions. Touching upon everything we've discussed, a Tribunal that is transparent, that is accessible, that is responsive to market realities and working in the broader public interest.
1:10:36 – Charles.
Well, speaking of transparency and accessibility, we have a segment on the podcast that we call overtime.Overtime is where we take a few shots at getting to know our guests a bit better. So here goes, Justice Little, starting with you, you mentioned you do lots of reading in your job, which I can imagine is certainly the case. If there's time left over for perusing reading material other than submissions, evidence and jurisprudence, what sort of book or maybe series might you recommend to our listeners?
1:11:16 – Justice Little.
Okay, classic question, I guess. Frankly … let me make a couple of points. One is, frankly, I tend to read around the subjects that we work in at the Federal Court and the Tribunals. So my first piece of advice is to look for articles and books about trends. So personally, I read things about administrative law and economic trends and US constitutional law and things like that. When somebody recommends a book to me, I look into it. And I tend to look at those recommendation lists at the end of the year because then somebody else has done the vetting, and somebody else has read these things, and you can sort of get a top 10, and that's pretty helpful. And I go and order them after that. So the second point I'd make to people is to be deliberate about what you're doing. So if you want an escape, if you want reading for escape, then do it. If you're investing your time, and I mean investing your time in professional development, do that as well. If you learn by listening, rather than by reading, use podcasts. I learn by reading, but I listen to the news in French to help my language abilities. And then the third thing I'd say is, and this is at a granular level, get on the email blast lists for the Federal Court of Appeal, the Federal Court, the Competition Tribunal, Supreme Court, and the Bureau, and just program time in your life to listen and to keep up by reading. Maybe it's in your commute, for instance. It's hard with all the other time pressures, but it does yield rewards to you and your clients too as, Justice Stratas said in a podcast, in another podcast, he said, you know, it's about learning your craft and honing your craft. And that's what you're doing every time you invest that time.
1:13:21 – Charles.
Well, that's a very thoughtful answer. I guess we'll have to just wait for your Netflix recommendation for another occasion. Umang, we spoke about transitions earlier and I always say that those are unique opportunities to take a bit of a time out and maybe travel for example. Is that something you'll be doing before you go into practice? What do you have planned?
1:13:42 – Umang.
Oh, an emphatic yes is what I'll say, I couldn't agree more. I think transitions are a bit of a sweet time of rest, of recovery and reflection. For me, I grew up in India, I spent my childhood there. And since the pandemic, I haven't really gone back in about four years. So I'm really looking forward to spending some time there with family and reconnecting there. So those are those are some of my plans.
1:14:11 – Charles.
Fantastic. I'm so glad to hear you're doing something like that. And now a question for both of you. Each of you has relocated to the nation's capital from other places in order to do the work that you do. What's the best thing the Ottawa Gatineau National Capital Region has going for it in your estimation, and what's the one thing you might miss from another place you've lived in?
1:14:33 – Umang.
I've got to say skating on the canal never gets old. It's really been quite a highlight of my time in Ottawa. But also, I'm from Vancouver, and I really do miss the expansiveness of the mountains and the ocean. So you know, it's been a good time in Ottawa, but I'll always miss the beautiful west coast.
1:14:59 – Charles.
Justice Little?
Justice Little.
Oh, ah, I would say the best thing I have here that I didn't have where I came from, which was Toronto, is access to green space every day. So I actually walk to work along the water every morning and back at night. I don't do it every morning, that’s a complete exaggeration. I do it a couple of times a week and I'm getting more and more as I go along. And what do I miss? We lived in Calgary for a decade, and I miss the blue sky of Alberta in the winter. I miss the mountains as well, but that blue sky in the winter, there's no problem with minus 30 or minus 40, when the sky is blue like that. And it tends to be a little grayer here in Ontario.
1:15:50 – Charles.
That's great. It's a nice little survey of Canadian geography there. So just moving on then from that segment. Justice Little, I know you've shared your expertise and insights with law students as a judge at the annual Adam Fanaki Competition Law Moot. I'm sure our listeners would be keen to know your views about effective advocacy, and also the views of Umang from her experience at the court. So just in the few minutes that we have left, I would ask maybe if you have some tips of the trade gained over your experience at the court and elsewhere, your collective experience? And perhaps, it doesn't have to be answered this way, but think of it as a two part question, what is the one thing about advocacy that you wished you maybe knew as counsel, but only truly appreciated as a judge? And then secondly, if you had one tip for a young lawyer coming up the competition law ranks, what might that be?
1:16:50 – Justice Little.
Let's start with Umang.
1:16:54 – Umang.
I can say that I've learned a lot by watching this past year, some excellent oral and written advocacy. But I'll keep it short. I think the best advocate, in my view, really thinks about what would be helpful to the judge? So I think, again, it's about rooting your submissions, whether oral or written, to your audience. So how familiar is the judge with the matter or the case law and law on a particular point? What about the underlying evidence? I think staying agile and being able to pivot I think is right up there with being prepared. So keeping arguments structured, telling a story, taking the judge to the facts and the evidence, ultimately, I think that's the most persuasive and easier said than done. So now it's time for me to put that into practice.
1:17:49 – Justice Little.
I would emphasize the importance of the evidence as well, the factual details. I see a lot of arguments made the don't actually refer to the specific evidence to support the points that are being made, particularly in writing. But it happens as well at hearings. So linking the argument to the specific evidence, by page number in the record, by paragraph number in an affidavit, and in the case of the JR or an appeal, link the argument you're making to the specific passages in the reasons that you say are problematic. Now, that may seem perhaps elementary, but it'll do three things. And to pick up on what Umang just said, it's both helpful and persuasive to the court. And the third thing is, it acts as a backstop for you as counsel. It ensures that the argument you want to make is actually supported by the evidence, or by an alleged error in the reasons that you're challenging. Because if it's not, then you need to change your argument because it's not going to succeed. And that links to the point that facts win most cases, not brilliant legal arguments. Marshaling, organizing, presenting facts that are lucid and persuasive, is most of the art of persuasion in the court or Tribunal.
1:19:22 – Charles.
Well, those are collectively very wise words. And I certainly appreciate those tips. I think our listeners will as well. You know, one of the great things I've found about this conversation is it sort of demonstrates all the opportunities and different ways that you can participate in the competition law community. And so I really appreciate your time discussing your collective experiences in that regard. My mind does go back to where we started, which was with respect to clerkship. And many of our listeners may be at law school and thinking about articling and general job opportunities with connections to competition law, and I take it you would both recommend the clerkship experience. And perhaps in your case, Justice Little, encourage applications to the court in particular, with expressions of interest, possibly in competition law matters. So I would encourage those with an interest to contact their law faculty advancement offices for information about application processes, and I did see that the Federal Court has information on its website about its clerkship program, and is looking I think, for applicants for the 2024-25 term.
1:20:31 – Justice Little.
Can I make a plug for clerking at the Federal Court?
1:20:36 – Charles.
Absolutely, I was trying to do it for you, but I think it's better to come directly from you.
1:20:39 – Justice Little.
I, and Umang can jump in too if she wants to, I would say, very interesting thing to do. There are all sorts of fascinating and new challenges coming to our court. And look and see if you're interested in the particular areas that we do. They are varied and they are public law, they are private law, there are all sorts of things. They have international dimensions. There's a lot going on in the kinds of cases we have. A couple of other just very quick points. One is that, unlike a lot of other courts, our law clerks are assigned to an individual judge, and we work one to one together for a whole year. And that's unusual. And I think that presents some good opportunities for a lot of good exchanges of views. And I mean, there are good things about working for multiple people as you did, Charles, but that's one thing of note. The other thing is we do a lot of judgment writing, we do a lot of written decisions. And that in itself is something obviously that's done at appellate courts. But we do a lot of writing and if you're interested in that, and reading and hearing a lot of JRs and writing a lot of JR decisions, that whole process, if you're interested in that, I think that's something really good. A former colleague of mine said to me years and years ago, he had clerked and I had clerked and he used to say, clerking may be the best job we will ever have. I would probably amend that to say second best at this stage of my career, but it's a wonderful thing to do and it's very worthwhile. And I'd encourage people to give it some thought if you’re interested. It may be just as in my case, quite serendipitous that you apply, but you never know where it's going to take you.
1:22:43 – Chares.
Fantastic. Well, look, Justice Little, Umang, it has truly been a pleasure speaking with you both today. And it's really nice, given the nature of our collegial and relatively small competition law community in Canada that I can say with a great deal of confidence that the next time we catch up will not be too far away at all, and certainly won't be far away with respect to Umang. Thank you very much for sharing your time and insights today.
1:23:09 – Umang.
Thanks, Charles. It's been a pleasure.
1:23:12 – Justice Little & Charles.
It has, thanks very much. Take care. Bye-bye.
1:23:16 – Outro.
Thank you for listening, Counterfactual is produced and distributed by the Competition Law and Foreign Investment Review Section of the Canadian Bar Association. The opinions expressed by the participants in this podcast are their own and do not necessarily represent those of their employer or other organizations. If you enjoyed this podcast or would like to join the Canadian Bar Association, please visit www.cba.org/sections/competition-law.