Black+Lawyer-ish+

BLACK LAWYER-ISH

CANADIAN ASSOCIATION OF BLACK LAWYERS
L'ASSOCIATION DES AVOCATS NOIRS DU

CANADA

VOLUME 1 |ISSUE 3

15

CANADIAN
CHEERS!

STATE OF THE LAW: CIVIL
LITIGATION - PERSONAL
INJURY

LAWYERS ON NONPROFIT DATING WHILE BLACK;
BOARDS? What you need to FASHION; AND LOTS
know before you say "yes" MORE

CELEBRATING THE HONOURABLE JUANITA
WESTMORELAND-TRAORÉ

table of contents

PRESIDENT'S MESSAGE

I am happy to report that CABL has continued

providing high quality professional development, In May CABL submitted its review to the Family Legal

networking and social events. Services Review with respect to the expanded scope

of paralegals into family law. I encourage you to review

Some of our events have been in partnership with CABL’s submissions on our website. In June CABL

other equity seeking organizations, such as our close wrote to the Hon. Yasir Naqvi, Attorney General of

friends SABA and FACL. On January 11th, we held our Ontario in support of the spirit and substance of the

Joint New Year’s Kick Off at the Spoke Club, and on letter from the Ontario Human Commission (OHRC)

March 29th we held our 2nd Annual Joint Judicial dated April 19, 2017, about the need for criminal

Panel. We also continued our collaboration with the justice reform. Also in June CABL wrote to the

LawSocietyofUpperCanadaonFebruary28thduring Treasurer of the Law Society of Upper Canada and the

Black History Month. chairs of the Equity and Indigenous Affairs Committee

about the implementation of the 13

In addition to collaborating with other organizations, recommendations of the Challenges Faced by

CABL held other events exclusively for the benefit of Racialized Licensees Working Group. In a letter dated

our membership. On May 15th, we held our 4th June 28, 2017, Treasurer Schabas advised CABL that

Annual Speed Mentoring Event.Those in attendance the Law Society’s implementation of the 13

received mentoring from members of the bench— recommendations is on track.

the Chief Justice of Ontario, the Honourable Justice

Strathy and the Honourable Justice Irving André, CABL continues to meet our strategic goals. On July

Superior Court of Justice—career advice from the 1, 2017, CABL revealed its new website and logo. We

recruiters from Branion Williams, career coaching are excited about the new website, which features

from Paulette Pommels and invaluable advice from not just an updated appearance but improved

others, including your Secretary Esi Codjoe. And on function.Whenyouvisitourwebsiteandsocialmedia,

June 27th, we held our Annual Patio Event inToronto. you will notice a significant change to our logo. It’s a

significant change in style and colour—out with

In July, the National Bar Association (NBA), the United brown and in with blue. Two folding maple leafs are

States’ oldest and largest national association of replaced by a single maple leaf in black above our

predominantly black lawyers, judges, educators and name. Three squares symbolize our first three

law students will hold its 92nd Annual Convention & chapters—BritishColumbia,NovaScotiaandOntario.

Exhibits in Toronto from July 29th to August 4th, and

CABL is one of its proud sponsors. This will be the first The new website was designed to address the

time that the NBA will hold its convention outside of difficulties experienced by our members and to

the US. The NBA has 84 affiliate chapters throughout integrate our website with our social media profiles

theUSandaffiliationsinCanada,theUnitedKingdom, on LinkedIn, Facebook and Twitter. Over the next

Africa (Morocco) and the Caribbean. I encourage all several weeks, we will be unrolling new features.

of you to register for the convention, to visit the CABL

suiteandtosignupforthegolftournamentinToronto Shortly our website will be available in both English

onWednesday,Aug22017,attheLionheadGolfClub. and French. As a national organization, this

development is designed to ensure that our content

CABLhasalsocontinuedtoadvocateforourmembers is accessible to all our members, in their preferred

and for the community generally. In May, CABL language.ThisbilingualsiteisalongheldgoalofCABL

partnered with African Nova Scotian organizations in in recognition of our desire to reach out to black

a survey sent to all candidates running in the francophone lawyers. We will all benefit from the

provincial elections in Nova Scotia for their views on important,distinctperspectivesofblackfrancophone

issues important to African Nova Scotian lawyers and will ensure that their views are well

communities.This remarkable initiative is a model for represented on the site.

black communities to strongly consider adopting

across the country during future provincial and

federal elections.

On our new website, we will continue to celebrate September 9, 2017. Finally, this year marks the 30th

the achievements of black lawyers and judges. This anniversary of the Honourable Corrine Sparks’s

year has already been a strong year for judicial appointment to the Nova Scotia Family Court. Justice

appointments. CABL congratulates the Honourable Sparks was the first black woman to be appointed to

Marlyse Dumel for being appointed to the Ontario the bench in Canada.

Court of Justice in Ottawa, and the Honourable

Ronda van der Hoek, Rickola Britton, and Samuel I look forward to the second half of 2017, including

Moreau for being appointed to the Nova Scotia ourAnnualPicnic,AnnualConference,Galaandother

Provincial and Family Court. CABL initiatives. On behalf of the national board, I

would like to thank you, our members, for your

On our new website, we will continue to celebrate continued encouragement, support and feedback.

the achievements of black lawyers and judges. This

year has already been a strong year for judicial

appointments. CABL congratulates the Honourable

Marlyse Dumel for being appointed to the Ontario

Court of Justice in Ottawa, and the Honourable

Ronda van der Hoek, Rickola Britton, and Samuel

Moreau for being appointed to the Nova Scotia

Provincial and Family Court.

CABL is also proud of the accomplishments of those
already on the bench. This spring, past president of
CABL, the Honourable Michael H. Tulloch released
his Report of the Independent Police Oversight
Review. I strongly encourage you to read His
Honour’s report. CABL would also like to
congratulate Toronto’s new Senior Regional Judge
of the Ontario Court of Justice, the Honourable Aston
Hall. Justice Hall’s appointment will be effective

AMENDING THE CONSTRUCTION LIEN ACT - BILL

142

by Brume Jabuoma

It’s construction season again!Yea, it’s time for those •The owner must, within 28 days of receiving a proper

longer hours in traffic too. For lawyers who practice invoice, pay the invoiced amount in full to the

in this area of law, there is no better time to take a contractor. If, however, the owner disputes all or any

look at the upcoming legislative changes that will amount on the proper invoice, such owner must,

affect the way the construction industry does its within 14 days of receiving the invoice, give the

business. contractor a notice of nonpayment detailing the

amount not being paid, and the reasons for

The Construction Lien Act (the "Act") is being nonpayment;

amended by Bill 142 (the "Bill") pursuant to the

recommendations by Bruce Reynolds and Sharon •Similarly, a contractor has seven days after receiving

Vogel in “Striking the Balance: Expert Review of full prompt payment to pay all subcontractors who

Ontario’s Construction Lien Act” (Reynolds-Vogel supplied services or materials that were included in

Report) published in April 2016. the proper invoice;

If passed, the amended Act (re-christened The •Where only a partial payment is made due to a

Construction Act) will create a more secure dispute, the contractor shall pay all other

environment for contractors and subcontractors to subcontractors for supplied services or materials not

receive payment for work done. The Bill also implicated in the dispute in full, and pay those

introduces a new adjudication process that will see affected on a rateable basis. In any other case, all

construction disputes resolved in a timelier manner. subcontractors under the proper invoice must be

As well, it will change the way lien rights are paid on a rateable basis;

preserved and perfected.

•In either case, the contractor must pay the interested

Prompt Payment subcontractors within 35 days of delivery of the

The Bill substantially adopts the payment regime properinvoiceunlessthecontractordeliversaNotice

proposed in the Reynolds-Vogel report by of non-payment to a subcontractor with an

introducing a new Part I.1. This Part would create a undertaking to pursue adjudication within 14 days

trickle down obligation to pay promptly along the of the notice;

construction pyramid i.e. between owners and

contractors; between contractors and •The rules are the same among subcontractors;

subcontractors, and so on.The highlights of this Part

are: •All unpaid amounts under this regime accrue

interest at the higher of the rates as determined under

•Parties are free to negotiate invoicing dates but the Courts of Justice Act or as stipulated by the

failure to do so implies delivery of a proper invoice contract of the parties.

on a monthly basis.The meaning of“proper invoice”

is provided in this Part;

must, within 5 days after the adjudicator agrees to
hear the matter, deliver all the relevant documents
relied on for the claim.

The bill substantially adopts d)Generally, the adjudicator has 30 days within which
the payment regime proposed to submit a written determination unless granted an
in the Reynolds-Vogel report extension, which shall be no more than 14 days.
by introducing a new Part I.1.
This Part would create a trickle •The determination by the adjudicator is final, and
down obligation to pay any resulting payments must be made within 10 days
promptly of the award.;

•Generally, parties cannot appeal the determination
based on an error of law or fact. They may, however,
appeal to have the determination set aside by a court
of law if:
a)A party to the adjudication participated under legal
incapacity.

Adjudication Process b)The contract in question was invalid or had ceased
The bill also adopts the quick interim adjudication to exist.
recommendation of the Reynolds-Vogel Report by
setting out default statutory rules for adjudicating c)The adjudicator dealt with matters not subject of
certain disputes. This would see disputes resolved the adjudication.
within 60 days. The highlights of this Part are:
d)There is a reasonable apprehension of bias on the
part of the adjudicator.

•Parties may agree to commence adjudication e)The determination was made as a result of fraud.
proceedings for any disputes arising under the
contract. However, the Bill specifically lists disputes •The award from the adjudication remains valid until
about:- a determination is made by the courts or the
arbitrator.
a)The valuation of services or materials provided;

b)Payments/nonpayments under the contract,
including those affecting the construction pyramid; Lien Rights

c)Amounts retained in fulfillment of set-off; The bill also proposes some changes to the lien rights
of parties to a contract
d)Nonpayment of holdback.
•Extension of the time frame within which to preserve
•Parties are free to determine the adjudication a lien-right changed from 45 to 60 days;
procedure in their contract as long as the adopted
rules and procedures comply with those in the Bill; •Extension of the timeframe within which to perfect
liens from 45 to 90 days;
• Bill 142 sets out a strict time line for the adjudication
process: •If a matter is subject to both a lien and interim
adjudication, then the time frame for the preservation
a)The parties are required to agree on an adjudicator of the lien is extended up to 45 days after the dispute
within four days of the delivery of the Notice of is determined;
Adjudication. They cannot name an adjudicator at
the time of entering into their contract. •Where a landlord with an interest in the
improvement done on leased premises agrees to pay
b)If no agreement is reached the moving party all or part of the cost of the improvement, such
shall notify the Authorized Nominating Authority, interest is subject to a lien up to 10% of the amount
which shall, within 7 days, appoint one. of the total payment.

c)The party who gave the Notice of Adjudication

•Holdbacks may be retained in the form of a letter Status of the Bill
(s) of credit, bond or any other form agreed to by
the parties. On May 31, 2017, the Attorney General, Yasir Naqvi,
introduced the Bill and saw it through first reading.
•Payment of holdback funds may now be paid on an Now in the committee phase, the Bill is expected to
annual basis or a phased basis as clearly identified pass second and third reading in the fall, eventually
in the governing contract between the parties. coming into force in 2018.

•Subject to delivering a notice of non-payment,
payment of 10% of the holdback is mandatory upon
the expiration of the lien, and in the absence of a set
off claim.

It proposes a quick interim
adjudication which would see
disputes resolved within 60
days.

Other Amendments

There are many other amendments proposed under
the Construction Lien Act which will help to give
effect to the intended modernization of the Act.
Some of these include

•Treating lands owned by municipalities, local
boards, and conservation authorities as Crown lands
for the purpose of lien enforcement.

•Mandatory bonding on public and broader public
sector projects where the contract price exceeds a
prescribed amount.

•Expansion of the definition of public contracts to
include the Crown, public corporations and broader
public organizations including publically funded
hospitals, school boards, universities, colleges,
children aid societies, and community care access
corporations.

•Many proposed amendments seem to expand the
Act to include the Small Claims Courts to hear claims
for lien amounts of $25,000 and under. The Bill does
not however, address the Constitutional issue with
such jurisdiction. Perhaps subsequent regulations
under the Act may provide exhaustive guidance on
how cases are referred to the Small Claims Court. If
this happens, it creates a cheaper process for smaller
contractors and businesses especially if cases are
resolved summarily.

TASTING SUMMER

WITH
Charlene Theodore

Here are two recipes that bring out the best of summer.

1 Collingwood Whisky Receipe

The first is a whisky cocktail. There are a few reasons I wanted to share this recipe from Collingwood
Whisky. I first tried their whisky at a tasting and cocktail class and really loved it. It's one of the smoother
whiskies I've tried and has really strong notes of vanilla and caramel. It's local, made in Collingwood with

2 Strawberry Recipe The next best things about
1 summer are fresh, seasonal
and local fruits.

The next best thing about summer are fresh,
seasonal and local fruits. Right now, farms
are overflowing with strawberries and the
only thing better than eating raw them by
the pint is this recipe for a quick pickle. A
quick pickle is an easy way to squeeze every

last bit of flavour out of your fruits and
vegetables without all the hard work
involved with canning and preserving. This
recipe swaps out the standard vinegar for
champagne vinegar and replaces white sugar
with maple sugar for what I consider to be a
better, tangy sweet flavour. Use these juicy
gems to garnish your cocktails, on top of
salads and crostini, and as a sweet garnish

on a cheese board.

CELEBRATING THE HONOURABLE
Legal Icon Westmoreland-Traoré Awar

The Honourable Juanita parents, and an innate intellect have she recounted that when she

Westmoreland-Traoré received a boded well as she navigated her began to practise law in

DoctorofLaws,honoriscaisadegree legal career during pivotal points of Quebec, the only other Black

(LL.D)fromtheLawSocietyofUpper Canadian legal history: from the lawyer in Quebec was

Canada (LSUC) in recognition of her computer-room riot of Black and Frederick Phillips, who had

outstanding achievements and Caribbean students at Sir George graduated from McGill in

contribution to the legal profession. Williams in 1969, to the Front de 1956. Westmoreland-Traoré

The degree was presented to her at libération du Québec , the 1970 was the first Black woman

the Toronto Call to the Bar on June October Crisis, primarily in the to teach

26, 2017. Each year, LSUC confers Montreal area in the province of law at

this honour on distinguish Quebec,thepatriationoftheCharter the

members of our noble profession at ofRightsandFreedomsinApril1982, Université

the Call to the Bar ceremonies in to Employment Equity in Ontario, to de

London, Ottawa, and Toronto, racial profiling, just to name a few. Montréal

Ontario. The 2017 awardees and at

included former Treasurer, Thomas the

G. Conway,The Honourable George She models the L’Univer-
R. Strathy, Chief Justice of Ontario, sité du

and Thomas G. Heintzman, OC, QC. highest community Québec à
Montréal.
Westmoreland-Traoré's dogged standards, embodying She was
decision to be an independent a
woman, her passion for, and what it means "to do Commis-

resolute commitment to equality, justice, to love mercy, sioner for
social justice, and the Rule of Law the
inspired her to choose a career in and to walk humbly” Canadian

law. Having achieved a PhD, first Human

class, from Université de Paris, in Rights

1969, Westmoreland-Traoré Westmoreland-Traoré began her Commis-

entered the frontier of justice in legal career when the legal sion, the

Quebec. She would spend over four profession was a frigid zone for first chair

decades in the trenches of the legal women, and even more so for of

profession serving, musing, and Women-of-Colour. That was a Quebec’s

trailblazing in many capacities - pivotal point where women - Conseil

educator, advocate, mentor, dean Quebecois, and People-of-Colour des

and jurist, debunking the vestiges overtly began to assert their right commu-

of discrimination in Canada, and to fundamental rights and a nautés et

around the world. progression of firsts in the Black de

legal communities. At the Montreal l’immigr-

law firm of Bernard Mergler, who ation, the

was known for his work in human chair of the Employment
rights and civil liberties, she found Equity Commission, Ontario (a
a veritable camp to launch, position that helped shape the
cultivate and hone her passion and legislation, systemic policies,
commitment to equality, social and the law of employment
justice, and the Rule of Law. and pay equity in Ontario), and

Westmoreland-Traoré's career was the first Black Canadian Dean
a progression of firsts in the Black in Canada, at the University of
legal communities. In March 2012, Windsor, Faculty of Law from
1996 to 1999.

Her perspicacity, sound rearing by "[Dean Westmoreland-Traoré]
considered herself an 'equity

E JUANITA WESTMORELAND-TRAORÉ
rded LL. D by Law Society of Upper Canada

dean, striving to maintain the to be appointed to any court in careers in law, e.g., Professor
principles of access and the province of Quebec's history. Blackett, who recalls being told
equality in legal education'. On April 10, 2012, having issued about Juanita by her school
She modelled equity, and her last judgement a day earlier, librarian. Blackett states that she
created lasting policies and Judge Juanita Westmoreland- was not only fortunate enough to
strategies [to] further inclusion, Traoré, retired gracefully. have had Juanita as a mentor, but
and eliminate systemic also as a friend. "She draws people
discrimination," remarked Westmoreland-Traoré to her, builds people up and does
Karen A. Momotiuk, Windsor what she can to make sure what
was the first Black she has learned through her
Law School's experience is shared," Blackett,
B.A., LL.B. woman to teach law proudly states.
Alumni and The most notable soft
Fund at the Université de characteristics of Westmoreland-
Development Traoré are her warmth, humility,
Officer, who Montréal and at the and selflessness. For instance,
worked with Juanita requested that the raising
others to L’Université du of funds for a scholarship that was
establish a launched in her honour be
scholarship Québec à Montréal. suspended until the full
in honour of endowment for the Julius
this icon. I hasten to add that although she Alexander Isaac Scholarship was
"The retired from the bench, she raised. (That scholarship was set
scholarship certainly has not retired her up at Windsor Law School, under
was to passion and resolute commitment the aegis of CABL, in honour of the
benefit an to social justice, law, equality, late Isaac, former Chief Justice of
upper-year mentoring and community the Federal Court of Appeal).
student who building. She has a huge Blackett, whose early admiration
demonstrated "congregation" of protégé and for Westmoreland-Traoré 's muse,
leadership protégées that she has cultivated would later state:
qualities, and sustained throughout her
and was legal career. No doubt, they will "She draws people to
involved in be wishing to tap into her
the encyclopaedic knowledge and her, builds people up
University of expertise that she is wont to give
Windsor generously garnished with and does what she can
community, humility. One such former
with protégé, Mary Cornish, an erudite to make sure what she
preference human rights, and labour and
given to employment lawyer, muses about has learned through
leadership her first encounter with
Westmoreland, as she then was, her experience is
in the Black and Aboriginal "in the early 1970s when [Juanita]
communities," Momotiuk was practising in Montreal. shared," Blackett,
states. The Judge Juanita [Juanita's] work inspired me to be
Westmoreland-Traoré [come] a human rights and labour proudly states.
Leadership Scholarship was lawyer". Cornish remarks that
conceived in 2003, but was Westmoreland-Traoré "has made
created in 2010. See here an enormous contribution to
securing and protecting human
In 1999, Westmoreland-Traoré rights in Ontario and throughout
was appointed to the Cour de Canada and internationally".
Quebec, Criminal and Penal
Division and Youth Division. Juanita was the mentor of many
She was the first Black person students who have gone on to

“Some in our profession are states.
recognized for their significant
contributions to the private [She] has made an
practice of law, or to legal enormous
academia, or to public service or contribution to
to the judiciary. Remarkably, securing and
over her distinguished career, the protecting human
Hon. Juanita Westmoreland- rights in Ontario and
Traoré has made stellar throughout Canada
contributions not only to one or and internationally".
two, but to all. This fact alone
merits tremendous respect. Hon. Westmoreland-Traoré
Moreover, for her many admirers,
it is impossible to pay tribute to Tamara Johnson, an award-
her without recognizing how winning Associate General
seamlessly she combines Counsel - labour Relations,
intellect, integrity and grace. OPTrust, and a protégé, and
She has not only inspired many alumna of Windsor Law, remarks
from a distance; she has tirelessly about Westmoreland-Traoré's, "
mentored generations of legally Despite holding this prestigious
trained professionals, including position [Dean of Law]...she
myself. She models the highest offered to give me driving
community standards, lessons", and "invited some
embodying what it means "to do students to her" swearing-in
justice, to love mercy, and to walk rite. "Throughout my career,
humbly”. Juanita was always there to
provide me with advice. In
Westmoreland- addition to being a brilliant
employment equity advocate,
Traoré's career was a lawyer and judge, she is an
exceptional mentor," Johnson
progression of firsts

in the Black legal

communities.

Dating While Black

What I learned about racism from my online quest for love

BY HADIYA RODERIQUE

I’ve never been one for casual music, books, and TV shows. with,” and “a great trivia partner.”

relationships. Following a Theoretically, the online world I peppered my profile with jokes

romance in my early twenties with offers greater odds of finding a and references to climbing, yoga,

an older man who, I eventually partner than does a chance learning, eating all of the things,

accepted, was simply at a different meeting at a party. Being online is and drinking all of the drinks. I

stage of life, I went through a series like going to a party without mentioned my penchant for ’60s

of short relationships of varying encountering all the people who soul, ’90s hip hop, indie rock, and

significance. I met lovely men— trap you in boring conversations. thewritingofKurtVonnegut—and

many of whom remain my friends It made me feel that I was more alluded to my fondness for the

—but by my mid-thirties, I still likely to find someone with whom board game Settlers of Catan to

hadn’t met anyone with whom I I actually connected—not just attract hot nerds. That first night,

felt that same degree of another pretty face. after crafting what I thought was a

connection and passion I had suitably witty, cool, and interesting

known with my first love. I was profile, I let the site’s algorithms

searching for a committed I decided that an work their magic.
relationship with a supportive
partner, someone I could love objective test would
I liked the concept of OkCupid’s

deeply and who shared my values be the best way to “match percentages.” The site
and goals. projects the compatibility of its

Like many singles, I had created an assess the impact of users, assessing it on a scale from
online dating profile. But I rarely 1 to 100. I was a high match with a
my brown skin on my seemingly large number of men—

logged in. Now I decided to take it dating prospects. quite a few of them were in the 99
more seriously—these days, I percent range. The most
seem to hear fewer and fewer After all, such mathematically promising one—

stories of real life meet-cutes. strategizing is one of at 99.5 percent—turned out to be
Meanwhile, online, I could decide one of my existing friends from law
between sites with free the oldest playing-
school. But almost immediately, I

memberships, such as Plenty of field levellers in the began to notice peculiarities about
Fish; paid sites with an older, more my experience. Among my single

earnest clientele, such as dating world friends, and even in the
conversations I overheard
eHarmony; niche sites such as

jdate and Gluten-Free Singles; and between strangers in coffee shops,

many others, all slightly I uploaded pictures and filled out women using dating sites
differentiated by price, my profile with basic described being “overwhelmed”
demographics, and objectives. I demographic information— and “flooded” with

signed up for Tinder and Bumble height, body type, religion, and communication.
—two apps with simple interfaces education. Over the following
that invite users to swipe on months, I would play with this On the day I completed my profile,
pictures of people they find slightly: I variously described I received one message; four more
attractive—as well as OkCupid. myself as a dreamer, book lover, appeared over the next two days.
The last includes more substantial learner, educator, and writer, This trickle continued for the next
personal profiles. Through a series someone who views the world year and two months, averaging
of questions, the company’s with a glass half-full of optimism two messages a day.
website and app invite you to and a dash of sarcasm. I noted that
describe what you are doing with my friends describe me as“sincere
your life and to list your favourite and hilarious,” “fun to do things

exchanges—sometimes even dater [who] really longed for this

after you’ve made plans to meet. kind of vulnerability, authenticity

Theoretically, the You may also start talking to and depth.” At the time, he was in
someone only to realize that you a relationship, but he also
are no longer interested in getting commented, “You sound like
online world to know them better. It can take you’re intelligent, fun and

offers greater many exchanges to get to a real genuinely have your shit

live date. together.” Nonetheless, I hired a

odds of finding a professional photographer and
Some of my friends pegged my tried out different variations on my

partner than does situation to an intimidation factor. profile text. Nothing seemed to
I’m a lawyer working toward a PhD help—the slow pace of messages

a chance meeting inmanagement,andIamaserious continued.
athlete, competing

at a party. internationally for Canada in There was, however, one factor
Ultimate Frisbee. I’m also a that I couldn’t change, one that
musician (some of my work is sets me apart from most of my
available on iTunes); a dancer; and
I didn’t just wait to be noticed: I also a volunteer with various sports single friends and
actively messaged others. organizations. At first glance, my
I would take the time to read a guy’s resumé and accomplishments acquaintances: my race. I am,
profile and then mention common may loom large, but I had thought
interests or things I found that my well-roundedness would according to society’s lens, a
interesting, posing an easy be an asset, or at least of interest,
question for him at the end—but I to the sort of man I was seeking. black woman. While I am
still received few responses.
multiracial, born of a Caribbean

and white father and a

Caribbean and East Indian

mother, I am black to the outside

Of the messages that did make it world. Certainly, I am black to
to my inbox, many were from men There is a the white world. And as
someone who travels in
who were not a good match for me. personal and professional
My filter settings are pretty widespread environments that are
generous—if you have a predominantly white—the
legal profession, Ultimate
compatibility rating of higher than perception that Frisbee, graduate school—the
70 percent, are of at least“average” majority of my friends,
including my single girlfriends,
attractiveness,andsendmorethan the tensions and are white. Race has always had
a three-word message—“Hey”and an impact on my identity, but I
“Yo girl”are not acceptable—your cultural politics of had been loath to admit the role

message will make it to me. (Filters

race are milder inare common—especially for
women, who often receive a high

Canada than innumber of lewd or casual
messages from spam profiles, and
that it might play in my ability
the US—wegeneric messages from men who to be loved. We are talking about
send the same note to a swath of
one of the most elemental of
represent aprofiles.) Of the 708 messages I human impulses. I’ve broken
through so many of society’s
received over the next fourteen “mosaic” rather
months, 530 ended up in the barriers through my own
determination. But force of will
filtered inbox, which left me with
can’t set me up with someone who
than a melting potabout one message of decent-or- has set his online dating filters to
exclude black women. If I made it
above quality a day. A message I took active steps to try to increase
from a prospective mate every day past the filters, I still might be ruled
may sound like a lot. But given the my odds. I posted a link to my out as a potential partner because
profile on Bunz Dating Zone, a of the colour of my skin. The
extremely low probability that any Toronto Facebook group, asking
given message will lead to a serious
relationship, it’s not. Even when
you decide to answer, many users forhonestfeedback.Onthewhole, situation made me wonder:
will not respond, having lost userssaidtheylikedmyprofileand
interest or been tempted by one of my pictures. One man called the
the site’s many other profiles. post “incredible,” noting that he
Some people disappear after a few was himself a former“serial online

What would my experience be like could get me shot if my tail light largely as they do. Even to

on OkCupid if I were white? went out and I were asked to pull strangers,inCanada,Igetthesense

over. Here I am, a multicultural that I am seen as the “safe” kind of

OKcupid has devoted a woman in the world’s most black. I’m a sultry, higher -voiced

considerable amount of research multicultural city in one of the version of Colin Powell, who can

to the interactions and most multicultural of countries. use words such as “forsaken” and

experiences of its users. In his “evidently” in conversation with

acclaimed 2014 book, Dataclysm, I’ve never felt the contrast aplomb.

Christian Rudder, one of the site’s between the two countries more

founders, notes that black women strongly than when I was applying

I have been toldare disproportionately rated to law school. After being

“below average” in attractiveness accepted by several Canadian and

that because I amby Asian, black, Latino, and white Ivy League law schools, I visited

men alike. In the United States, Columbia University. At the

educated and haveblack women receive the fewest orientation for successful
messages and fewer responses to applicants, I was soon beset by non-stereotypical

their sent messages—75 percent three women from the Black Law

of the communication received by Students’ Association. They interests, I am not
their white counterparts, a pattern proceeded to tell me that their

black enough—that seems common to online association was so much better
dating as a whole. In Canada, the than Harvard’s and that I would

that to be blacknumber is higher—90 percent. But “definitely” get a first-year
while black women in Canada may summer job because I was black.

should bereceive90percentofthemessages They had their own separate

that white women do, many report events as part of student

equivalent to beingreceiving more sexualized orientation, and I got a troubling

messages, and fewer messages sense of 1950s-era segregation.

poor, poorlyfrom men they would actually like
spoken, orto date. In my case, perhaps my When I visited the University of

fancy pantsuit, plaid shirt and Toronto,ontheotherhand,noone

toque, PhD, and failure to conform seemed to care what colour I was, downtrodden.
to stereotype warded off those at least on the surface. I mingled

seeking to obtain their“black belt” easily with other students and
—a dating term for a sexual became fast friends with a man When I am on the subway and I
conquest—and leading to fewer named Randy.Together, we drank open my mouth to speak, I can see
the free wine and headed off to a other people relax—I am one of
overall messages for me. bar with some second- and third- them, less like an Other. I am calm

As a Torontonian, I optimistically year students. The experience felt and measured, which reassures
thought race wouldn’t matter like an extension of my people that I am not one of those
much. One of the defining undergraduate days at McGill, so I “angry black women." I am that
principles of our culture is, after all, picked the University of Toronto black friend that white people cite
multiculturalism. There is a then and there. Canada, I to show that they are “woke,” the
widespread perception that the concluded, was the place for me. one who gets asked questions
about black people (that thing you
tensions and cultural politics of
were “just curious about”). Once,
race are milder in Canada than in
the US—we represent a “mosaic” In the US, the roots of racism lie in at a party, a white friend told me
rather than a melting pot—with an slavery. Canada’s biggest racial that I wasn’t “really black.” In
openness to experiences that all burden is, currently, the response, I told him my skin colour
that implies, including interracial institutionalized racism can’t come off, and asked what had
dating. I observe the experienced by Indigenous made him think this—the way I
reinvigoration of the kkk, people. In Canada, I fit into several speak, dress, my tastes and
remember the demagogic, racist categories that afford me interests? He tried, poorly, to
words of Donald Trump during his significant privilege. I am highly rationalize his words, but it was
campaign, read about yet another educated,identifywiththegender clear that, ultimately, I didn’t meet
shooting of an unarmed black man I was given at birth, am straight, his stereotype of a black woman. I
in America, and thank my lucky thin, and, when working as a didn’t sound, act, or think as he
stars that I decided to stay in lawyer, upper-middle class. My thought someone “black” did or,
Canada for law school, instead of friends see these things and perhaps, should.
going to a place where my sass assume that I pass through life

anything, I was suffering from a objective test would be the best

small sample size. Given the way to assess the impact of my

promiseofonlinedating,Ithought brown skin on my dating

thathere,inmulticulturalToronto, prospects. After all, such

someone might read my profile, strategizing is one of the oldest

note our high level of playing-field levellers in the dating

compatibility, and be interested in world: people routinely lie up front

me as a living, breathing, human about their height, weight, age,

person. and income level.

I chatted with men and went on I had also heard of others trying on

some dates, ultimately seeing a different racial personas before. As

few different prospects for a I sat in a coffee shop with my friend

month or two over the next Jessica, I hatched a plan to see how

fourteen months. Race rarely well a white Hadiya might do.

seemed to be a factor for any of Jessica, who is of similar height,

the men I went out with, but the weight, and attractiveness, agreed

majority of them were white to let me create a new profile that

(OkCupid states that its user used my existing profile

The ability to navigate white demographics“reflect the general information, but her image. We

spaces—what gives someone like Internet-using public”). When I staged a photo shoot where she

me a non-threatening quality to was on dates with these men, the dressed in my clothing, and we did

outsiders—is a learned behaviour. issueofracewouldcomeupinthat our best to recreate some of my

Elijah Anderson, a professor of it forms a part of my experience, pictures. She noted that the

sociologyatYale,hasnoted:“While and it would come up if I brought pictures looked like her

white people usually avoid black it up, but it was rarely mentioned channelling me, and not just like
space, black people are required to by them. Online dating her. expected Jessica to receive
navigate the white space as a reminded me of the experience more messages than I did—
condition of their existence.” I’m perhaps twice as many. In fact, in
not sure exactly where and how I, of otherness that had long been her first three days, White Hadiya
the child of immigrant Caribbean running through me and that I received nine times more

parents, learned to navigate so had decided to put aside. At the messages—forty-seven messages
well. Perhaps I accumulated party where my friend said I’m to the five I had received in a
knowledge in the form of not really black, I remember comparabletimeframe.Bytheend

aggregated lessons from TV, answering, “Do you mean of this experiment, which lasted

media, and my mostly white becauseIhaveaneducationand approximatelysevenweeks,White

environments—lessons reinforced sound like you, and like Hadiya was on track to receive
by reactions from others about Radiohead?” I have been called more than 2,000 messages in the
what was“right.”Much of the time, same amount of time that I had
this fluidity affords me at least the an Oreo in such circumstances received 708 (with allowance for
perception of relatively better before, when projecting my the spike in views a new user
treatment as compared to straight- natural self is considered to be typically receives in their first days

up, overt racism and classism. “acting white.” online)

So when I first started online I have been told that because I
dating, I was optimistic that my am educated and have non-
blackness and multiracial identity stereotypical interests, I am not
would have a minimal impact on black enough— that to be black
my success. I didn’t seem to get as should be equivalent to being
many of the fetishizing messages poor, poorly spoken, or
reported by some black women. downtrodden. I have been made
The giveaway terms “black,” to feel that I am an exception to
“white,”“Nubian,”“goddess,” and my race, rather than an example
“queen” showed up in only seven of it.
of the messages I received. No dick
pics were sent my way. My relative After I had been thinking for a
lack of single black female friends while about the slow message
meant that I didn’t hear very much count, my instincts as an academic
about others’ experiences. If kicked in. I decided that an

I took active steps time to read my profile. But the
messages White Hadiya received
were from users I would be more
likely to go out with.

to try to increase Ploughman: Congrats! That is the

my odds. I posted single greatest profile in the history
of okcupid! Im going to print it out

a link to my profile and put it up on my fridge you
adorable little nerd you! Haha im

on Bunz Dating just teasing. You caught my eye
though… im a retired pro hockey

Zone, a Toronto player finally back in Canada full
time. Looking to meet new people

Facebook group, and preferably the type that are not
hopingtogetcastonthenextseason

asking for honest of hockey wives on tv. There is lots
more to know about me but that

feedback. requires an investment of time and It wasn’t just the pictures and it
effort on your part to find out! Id like wasn’t just the messages they sent,

to take you out for drinks. If you’re but the total package they

up for it then ill hear back from you. presented. More of the guys who

responded to White Hadiya’s

This difference in message rate Samsamsam: awesome profile! profile were guys I would have
occurred even though I got the have you read any good (or really wanted to date. They were smart,
impression that White Hadiya and awful) books recently? they were engaged, they were
I were receiving a similar number cute. In order to find the kind of guy
of views. The same number of men Anchorman: Hey, how’s life treating I wanted—to be seen by him—it
that looked at her seemed to be you? So…. first message eh, what do seemed that the ultimate message
willing to look at me—they just youthinkweshouldtalkabout? You was: I needed to be white.
weren’t willing to engage. know there is a lot of pressure in a
Perhaps what was most shocking first message…. trying to sound all I admitted to myself that there were
and disappointing was that my witty, while at the same time trying non-racial differences that could
white persona seemed to receive to seem cool, funny, and have contributed to the message
messages of greater length and awesome….. it’s challenging ;) rate. Perhaps people found Jessica
higher quality. (I have changed Well I have to say, I think I’m pretty more attractive, her features more
user names to protect the privacy rad and you seem pretty rad as enticing or approachable, her
of those who may still be active well… guess that’s why I’m smile more endearing. There is no
online, but the handles are typical.) messaging you. I’m also a glass half purely scientific way of measuring
From my black profile: full kind of person, and I’ve defiantly these factors. But it is difficult,
got a dash of smart-assess to me too. impossible in fact, to conclude that

Anyway, in the crazy world of online race did not play some significant

Farmerboy_27: Omg you must be dating I find random questions with role in the message discrepancy
hiding from STRONG black men if no real point are the best way to get between the two profiles.
you’re indeed single theballrolling,hopeyouareafan….
What’s the best thing you did last OnIt’s often said that there is simply

Hans_some: greetings how are you month? What’s your favourite curse no accounting for taste, in physical
today pretty Woman? Hans. word? And just for fun, what’s the attraction as with everything else.
one thing you know for sure? But dating is supposed to be

As Black Hadiya, I also received Well I’m going to jet, but drop me a exploratory and unpredictable
some racially toned messages: line if you want to chat (how many liberal-conservative
couples have said,

a_man_for_you: I see the black…I
see the brown…not so much the
white though?

There were messages in both
streams from men who expressed
interest and who had taken the

“We never thought we could be boyfriends, and it is routine for were reduced.

attracted to each other?”). peopletotellmehowbeautifulour

Moreover, it is short-sighted and kids would be. They don’t realize Research by Kevin Lewis, a

dismissive to claim not to be thatwhattheyarecommunicating sociology professor at the

attracted to an entire group of to me is that they think my child University of California, San Diego,

people without first seeing what would be more beautiful if they has demonstrated that cross-race

the members of that group have to were biracial than if they had two messages in online dating are

offer. It is one thing to say that you black parents. Even I am guilty of comparatively rare—individuals

have a preference for brunettes or perpetuating these messages.The disproportionately message

have tended to date brunettes. But words “mixed kids are the cutest” others of the same race. However,

to say that you are not attracted to have, sadly, popped out of my the users he studied were more

blonds is very different from saying mouthonmorethanoneoccasion. likely to cross race lines if they first

that you haven’t yet dated a blond, received a message from a user of

or haven’t ever met a blond that My sister is significantly lighter in another race.They were then more

you were attracted to. Such skin tone than me, has a more likely to initiate interracial

categorical exclusions are Caucasian nose, and appears exchangesinthenearfuture.These

significantly more often directed biracial to outsiders. Growing up, findings support the idea that

toward people of colour. For I remember being so envious of there is more nurture to attraction

example, “No rice, no spice” is a her lighter skin and straighter hair, than nature.They also suggest that

common phrase on gay dating calling her the pretty one and the lack of initial contact-making

sites used to indicate that users do myself the smart one. I may, instead of being grounded in

not want messages from Asian or internalized this messaging, often antipathyorlackofattraction,stem

Latino men; others will be more thinking that if I had just gotten from an expectation that the other

blunt and simply write “No Blacks the gene for light skin, or the gene person won’t be interested—what

or Asians.”I have yet to hear a white for the long, wavy Indian hair of my the researchers called “pre-

individual say that they are not mother, I would be considered emptive discrimination.”

attracted to white people. more conventionally attractive.

This theory may explain the fact

Theelevationofwhitebeautyisnot As noted by Rudder in an OkCupid that white male daters would look

limited to white people. Growing blog post, “You can actually look at my profile, but not contact me.

up as a black girl with natural hair, at people who’ve combined After another awkward, boring

I had few examples of beautiful ‘white’ with another racial date with a guy who had seemed

celebrities who description. Adding ‘whiteness’ extremely interesting on paper—

As noted by Rudder in an OkCupid always helps your rating! In fact it a date that had taken weeks to

blog post,“You can actually look at goes a long way toward undoing arrange—I decided I couldn’t take

people who’ve combined ‘white’ any bias against you.” It’s no playing the game any more as it

with another racial description. surprise that I had instinctively was. I decided on a third strategy:

Adding ‘whiteness’ always helps known to include my whiteness in putting up pictures of myself as a

your rating! In fact it goes a long my profile, despite its making up white person. This would help to

way toward undoing any bias only one-eighth of my address the ineffable idea of

against you.” It’s no surprise that I background. attraction: What

had instinctively known to include Some professional matchmakers if someone just liked my friend
mywhitenessinmyprofile,despite in the US have discovered that Jessica’s pictures better? With the
its making up only one-eighth of people of all races prefer white help of another friend, I tinted the
my background. Some matches. A recent study of online colour of my skin and eyes in
professional matchmakers in the Photoshop and posed in a long
US have discovered that people dating among queer men in blond wig. My features remained
Australia found that the
shared my features—no dark skin, preference for particular races as a the same. I was left with pictures
no textured hair, no fuller lips. Even that really did look like me, except
Beyoncé, in all her glory, has light basis for romantic attraction for the colouring. I used the text
correlated with general racism and
skin and blond, wavy hair. In the that those who expressed sexual that had been up on my most
black community, mixed hair, or recent profile and launched this
hair closer to a Caucasian’s, is seen racism were more likely to agree blond, blue-eyed version of myself.
with statements associated with
as“good”hair. Some black women bigotry. Given that logic, it makes Though Photoshop made me look
have been penalized in the more mixed than white,
workplace for wearing their hair sense to me that more exposure
to unfamiliar types could help us
the way that it grows naturally out “get used” to them and that so-
of their heads. Lighter skin is prized.
I have had several white called dating preferences could
change if bigotry, racism, and bias

I described myself as white on addiction to Tim Hortons coffee. bandmates. After a few exchanges,

my profile. Race is different: there’s a reason and after getting confirmation

we have institutionalized from a mutual friend that he was
ThefirstWhiteHadiya,createdwith protections in our human rights notanaxemurderer,Ifoundmyself
the help of a body double, had code and have preached anti-
been popular. The new version was discrimination principles for spending time with this handsome
even more so, receiving sixty-four decades. Our supposedly post- man. He was keen to learn about
messages in her first three days racial society is meant to have left my thoughts, my interests, and my

online. In the course of a week, she this behind, to acknowledge that passions—and I his. What started
received messages from ninety- race is a social construct and that out as a series of cover-song jam

threeusers,someofthemthesame we are all just human beings. I sessions has blossomed into a

people I had messaged from my realized that in order to overcome romance filled with laughter,

black profile and never heard back bias, people needed to interact cheese puffs, music, and
from. My black profile had gone up with me in person, to see the conversation. We both dream of a
around New Year’s, a time when person free from the stereotype
online dating usage traditionally and its underlying assumptions. life of simple pleasures, enduring
spikes; even so, the new version of Online dating dehumanizes me friendships, and occasional
Hadiya was outpacing her by a ratio and other people of colour. escapes to a cabin in the woods.

of six to one. Here was more I attribute this success to meeting
evidence, to my mind, that my

features were not the problem; face to face: he saw me as a person,
not a stereotype. Now more than
I was lucky enoughrather, it was the colour of my skin.

to find someone. MyIn a Facebook community group ever, I believe in the magic of a real-
life encounter—not just for black
whose members are Indigenous,
black, and people of colour, I boyfriend and I met women, but for everyone.

learned that my online dating through our mutual
difficulties are not unique. I asked

some black women who are love of Radiohead
members of the group about their
experiences. Joy Henderson, a after he posted on a
thirty-eight-year-old Torontonian,
joined OkCupid for a month, Facebook group
creating what she thought was a

witty profile. She found herself

subject to stereotypes and

fetishization; few messages came On the other hand, maybe online
in that weren’t about casual sex. dating dehumanizes everyone. It
Tacha Wilks, a twenty-seven-year- promisesobjectivity,andyetitalso
old biracial woman of white and asks us to make snap decisions
Jamaican descent, describes her based on a photograph or a
online dating experience—on conversation spanning the time it
OkCupid in particular—as having takes to drink a cup of coffee. I am ABOUT THE AUTHOR(S)
been very negative. ,One white Hadiya Roderique (@deeroderique)
man submitted a long, detailed a multilayered human, and it takes is a writer and a co-host of the
passage about what he wanted to time for me to be able to break Canadaland Commons podcast. A
through stereotypes or former Bay street lawyer and CABL
do to her “on the hood of a car.” Board member, she is currently a
Black men who wrote would want stereotypical expectations PhD student at the Rotman School
to know more about what “kind” of Management in Toronto
of biracial woman she was. associated with blackness; I expect studying race and gender diversity
in professional service firms.
to have greater success when

someone gets to know me and

sees me as me, not as Random
What has this overall experience Black Girl #2
taught me? First, it caused me to

abandon online dating. I just didn’t I was lucky enough to find
feel good when I logged in. It is one someone. My boyfriend and I met
thing to be passed over on a dating through our mutual love of
site because of a hairstyle, or Radiohead after he posted on a
braces, or acne—or for a
postgraduate degree or an Facebook group, looking for

Lawyers on Non-Profit
Boards – What You Should
Think About Before You Say

‘Yes’

by Natasha Smith

Aslawyersweareaskedfrequentlytositontheboards an NPO, an important consideration of a non-profit

of charities and non-profit organizations (“NPOs”) board is whether anything is being done by the

(collectively, “non-profit boards”). At first it seems organization that may result, on audit, in a loss of the

like a ‘no-brainer’. Serving on a non-profit board is a organization’s tax-exempt status. For charities, this

great way to give back to your community by consideration means that the board has an obligation

contributing your skills, time and effort to a worthy to ensure, amongst other things, that:

cause. It’salsoafabulouswaytoexpandyourpersonal the activities engaged in by the charity are charitable

and professional network and, for some, it is a way to at law;

fulfil a religious duty or employment expectations.

-- annual filings are submitted accurately and on time

From the non-profit’s perspective, they’ve lucked out to the Canada Revenue Agency (“CRA”);

securing a lawyer’s commitment because, as lawyers, -- the charity maintains proper books and records;

we are trained to manage risk and, as such, we have the charity maintains adequate direction and control

the ability to offer a unique set of professional skills over its resources; and

that are particularly useful when exercising the -- the charity does not engage in any activity that may

management oversight required of a prudent board. result in the provision of a private benefit that CRA

What some of us may not realize, however, is that in determines to be more than ancillary and incidental

some cases, we can be held to a higher standard of to the charity’s purposes.

care than our fellow board members who do not

possess the same expertise. Additionally, there are For those serving on the board of an NPO, managing

real liability and professional conduct issues that arise the risk of losing tax exempt status means, for the

for lawyers serving on non-profit boards. So, before most part, ensuring that the NPO does not operate

we say ‘yes’ to serving on a non-profit board, it’s with the intention of earning a profit; otherwise, the

prudent to consider just what that service entails. corporation risks taxation on its income generated

Role of a Non-Profit Board during those years where profit is found to be a

While many of the oversight duties of a non-profit motive. Notably, operating with the intention of

board are similar to those of a for-profit board (i.e., earning a profit is different from carrying out activities

reviewing financial statements, setting long-range that result ultimately in the earning of a surplus. This

objectives, developing strategic plans, establishing discussion, however, is beyond the scope of this

operational policies and guidelines, evaluating the article.

performance of the corporation, among other duties),

generally, the board of a for-profit corporation Director Remuneration

engages in its duties with the ultimate goal of The legal ability for directors of non-profits to be paid

maximizing profit. It is this motivation that is dependent upon:

distinguishes a non-profit board from a for-profit (i) whether the non-profit is a charity or an NPO; and

board. Individuals who have experience on boards

of business corporations and those of us who have (ii) the jurisdiction in which the non-profit operates.

experience advising business corporations will find

that serving on the board of a non-profit requires that Generally, there is no prohibition on compensation

the affairs of the non-profit be managed in light of paid to the directors of NPOs. However, directors of

considerations quite unique to non-profits. charities operating in common law provinces are not

permitted to receive remuneration, either in their

capacity as directors or for other services rendered

Managing Risk
Regardless of whether the organization is charity or

by them (or a related person – such as their employer) Directors’ Liability

while they are serving as a director. Should a director One element that individuals (other than us, as

receive a benefit without authority to do so, he or lawyers) often fail to recognize when choosing to

she may be held personally liable to repay the benefit serve on an non-profit board is that with a

received. commitment to serve comes an exposure to liability.

Most liability is similar to the liability attributable to

In Ontario, for a director of a charity to receive directors serving on for-profit boards. However,

remuneration for services rendered to the charity (i. directors of charity boards are, arguably, subject to

e., outside of their capacity as director), the charity increased liability in certain cases by operation of

must bring an application to the Superior Court of Trust Law. Further, some organizations (particularly

Justice, upon consent of the Office of the Public religious organizations) exist as unincorporated

Guardian and Trustee (the “PGT”), under section 13 associations, which does not afford directors with the

of the Charities Accounting Act. Section 13 of the limitation on liability provided to directors of

Charities Accounting Act permits applicants to incorporated entities. This means that directors

obtain a court order dealing with certain charitable serving on boards of unincorporated associations

matters without having to go to court or commence maybesubjecttojointandseveralunlimitedpersonal

formal proceedings. Historically, the PGT has been liability to satisfy a judgment.Moreover while our seat

willing to grant consent to section 13 orders on a board has the potential to expose us to liability

permitting remuneration to directors for services in our personal capacity, it also has the potential to

rendered outside of their capacity as directors, expose our law firms. This is because some claimants

provided that the applicant demonstrates that: will seek to impose liability onto us for actions taken

there is a benefit to the charity by having those (i.e., advice provided) as a lawyer, rather than as a

specific individuals (or the specific law firm, for director. Therefore, it is advisable to ensure that we

instance) provide paid services; and prudently vet the non-profit before we accept a

financial ability of the charity to pay the fees. position on the board. For instance, we should

Particularly relevant to us, is that generally, the PGT consider the following:

will consent to a charity hiring the law firm of a board

member, only if: -- the financial condition of the non-profit;

-- someone other than the board member provides -- the existing press coverage received by the non-

the legal services; profit;

-- the board member recuses him or herself from

board meetings when decisions are being made -- the composition of the current directors;

about the contract between the law firm and the the relationship between the board and

charity; and management;

-- the legal services rendered by the specific law firm

further the best interests of the charity (e.g., the -- any existing (or foreseeable) conflicts of interest

services are provided at a discounted rate or the between us and the non-profit; and

lawyer providing the services has a demonstrable

expertise of value to the charity). --whether the non-profit maintains directors’ and

officers’ liability insurance.

Regardless of whether the As a means by which to mitigate risk, many firm
policies prohibit lawyers from providing legal advice

organization is charity or an while serving on boards. This can be at odds with the
very reason why we have been asked to serve on the
NPO, an important
consideration of a non-profit board of a non-profit and makes our role as a director-
lawyer difficult, since we must adhere stringently to
the “nose in, fingers out” approach to board service.

board is whether anything is As a lawyer-director, we must let management
consult with external counsel as appropriate and

being done by the organization report to the board the advice of such counsel, rather
than take it upon ourselves to advise our fellow board
that may result, on audit, in a members on the legal issues of the non-profit. This
is not to say, however, that our analytical and issue-
loss of the organization’s tax- spotting skills as lawyers still cannot be put to good

exempt status. use (and in fact should

be used) to make appropriate queries to organization has purchased D&O Insurance.

management.

As a further means by which to mitigate the risks

associated with their lawyers serving on boards (and/

or providing pro bono legal advice), it is not Conclusion

uncommon for law firms to purchase additional As lawyers, serving on the board of a non-profit can

insurance that protects us from liability that may be betricky. Whilewemaybepassionateaboutthecause

imposed upon us. or have some other reason for being tempted to say

‘yes’, before for we serve, it is important to understand

that our role is to be that of a director, not counsel to

As a means by which to the organization. Generally, if the organization is a
charity, we need to be careful that we (or a related

mitigate risk, many firm party) are not being paid for our services (legal or
otherwise) as a result of our position on the board.

policies prohibit lawyers We must still, however, employ our expertise and
serve the organization by calling upon management

from providing legal advice to consider any notable legal issues. This is all a very
fine balancing act, one that we must be prepared to

while serving on boards. engage in as lawyers should we choose to serve on a
non-profit board.

This can be at odds with the

very reason why we have

been asked to serve on the

board of a non-profit

Insurance and Indemnification
Directors of non-profits may be indemnified by the
corporation for actions taken/decisions made while
serving on the board and, in some cases, after the
director has resigned, for occurrences resulting from
decisions made while still a director. The most
common way in which non-profits provide their
directors with such indemnification is through the
purchase of Directors’and Officers’Liability Insurance
(“D&O Insurance”). Usually as a tool to attract talent
to the board, a well-governed non-profit will bake
into its by-laws the requirement to purchase D&O
Insurance. Generally,D&OInsurancecoversadirector
for damages and losses incurred as a result of actions
taken in good faith and in the best interests of the
corporation, taking into consideration the applicable
standard of care. Usually, D&O Insurance will cover
litigation and defence costs up to a prescribed
amount. D&O Insurance will not cover:

-- pending or prior claims;
-- fraud or criminal activity;
-- claims covered under other kinds of insurance
policies;
-- directors who have acted outside the scope of their
authority.

Before accepting a position on the board of a non-
profit, it is prudent that we consider whether the

The State of the Law: Civil
Litigation - Personal Injury

by Patricia DeGuire

The Common law or case law is an interesting the likelihood of having a finding in his/her favour

phenomenon. was almost nought.

On June 2, 2017, the Supreme Court of Canada (the

"SCC") released its unanimous decision in Saadati v The practice is that PILs take their
Moorhead 2017 SCC 28

Because the case arose in British Columbia, it might fees after a final settlement has
not have been on the radar of anyone outside of BC
been achieved. It is alleged that
up to now. Given that it is a judgment from the SCC,
obviously, it is binding on all courts across Canada. lawyers take their fees from

The issue before the Courts was, what proof must a costs. Nothing seems to be wrong
plaintiff adduce to establish a 'mental injury' claim
with this practise except, before
sufficient to receive compensation? The BC Court of
Appeal had held that a plaintiff must establish that doing so, counsel must first seek

s/he has a "recognizable psychiatric illness", and approval from a judge. That is
supported by expert opinion.
the state of the law.

TheSCCrejectedthatthreshold. Itheldthat"afinding

of legally compensable mental injury need not rest, I am reminded of the SCC's unanimous judgement in

in whole or in part, on the claimant proving a F.H. v MacDougal 2008 SCC 53, [2008] 3 SCR 41. The

recognized psychiatric illness." A plaintiff can significanceofthatcaseisthattheCourt,viaRothstein

establish a mental injury based on non-expert J, stressed that "once and for all in Canada, that there

evidence that they have suffered from a serious and is only one standard of proof at common law and that

prolonged disturbance. [My emphasis] is proof on a balance of probabilities": [para. 40]. The

Court made it clear that a plaintiff's evidence does not

In my 30 plus years dealing with personal injury of all need corroboration.

kinds, under different areas of law, the norm for all

parties was to rely on expert medical evidence: e.g., Predictably, though, the Court hastened to add that

a psychiatrist or psychologist. there is no heightened standard of proof in civil cases,

but the evidence must always be "sufficiently" clear

Saadati is a marked departure. and convincing and cogent, but the more improbable

the event, the stronger the evidence is needed to

Under Human Rights restitution scheme, generally, meet the balance of probabilities test.[para. 39].

the accepted view was that a Complainant did not

have to rely on medical proof to show s/he had Could the Court have underestimated the serious

sustained "mental anguish". For other injuries, and far-reaching consequences that may flow from

including mental injury, medical proof was required. its judgements in F. H v McDougall and Saadati? In

Intherealmofpersonalinjury,plaintiffanddefendant 2008, the SCC dealt with mental injury in Mustapha v.

alike relied on medical or expert proof to establish, Culligan of Canada Ltd., [2008] 2 SCR 114, 2008 SCC

not only whether the plaintiff sustained a mental 27 (CanLII), [Mustapha is the case where the plaintiff

injury, but also the severity of the injury. As well, the sustained serious mental injury after he found a fly in

expert medical proof was critical to determine his water]. I recommend that PI litigators read the

causation, and the reasonable quantum of damages, Mustapha judgment.

if any. If the plaintiff did not provide such evidence,

I doubt whether the plaintiff bar sense will guide the plaintiff in most, if not the entire personal

would consider the Saadati determining the type of evidence injury bar.

judgment as a win. needed to discharge his/her onus.

Many personal injury lawyers

Usually, in a claim for mental / brain ("PILs") operate on a contingency

injury, Triers-of-fact, including the Court of Appeal Allows Class fee basis to be able to represent

Courts, would review an objective Action Suit to Proceed plaintiffs who, otherwise, may not

evidentiary record, e.g., the reports have access to justice. The practise

of medical experts about the is that PILs take their fees after a

plaintiff's diagnosis and prognosis final settlement has been

or deficits, the functional analysis, achieved. It is alleged that lawyers

the occupational therapy analysis, take their fees from costs. Nothing

the cognitive deficit analysis, seems to be wrong with this

psychologist, psychiatrist or other practise except, before doing so,

therapists’ reports, the treating counsel must first seek approval

family physician notes and records, from a judge. That is the state of

OHIP records, and subjective the law.

evidence of the plaintiff, and the

family and friends, before and after The OCA not only upheld the

the injury. These experts' reports Divisional Court's ruling, except

give the Triers-of-fact the whole one finding, but also added two

picture of the plaintiff. In a Decision and Reasons released issues of its own: (i) Whether the

by the Ontario Court of Appeal, on law firm breached its fiduciary

The judgments in these cases June 15, 2017, the class action dutiestoitsclients;and(ii)whether

engender many questions, against a personal injury law firm the law firm's conduct warrants an

including: What is the impact of will proceed. This judgement award for punitive damages.

these judgments on Triers-of-fact, upholds the ruling of the

who are steeped in relying on Divisional Court that certified the Notably, the OCA rejected the

expert opinions, or at least, the class action lawsuit. argument that certification of the

family physician's clinical notes The allegation in that case is that suit would be antithetical to

and records in these matters? a law firm, Neinstein LLP, had solicitor-client privilege.

Could a Trier-of-fact readily accept failed to comply with Clause 28.18

the evidence of a plaintiff or even of the Solicitors Act in its contracts

his family members as sufficiently concerning contingency fees with

clear, convincing, and cogent to its client.

scrutinize it with care to decide Patricia DeGuire is a

whether a plaintiff did sustain Briefly, Cassie Hodge, retained founding member of
mental injury and the extent of the Neinstein LLP firm to represent her CABL and has served on its
injury? Would a Trier-of-fact and in a lawsuit for personal injury she Board for over 10 years in
law have to explore the plaintiff's had sustained in a 2002 motor different capacities. She
evidence even further to vehicleaccident. Asettlementwas is an avid Coach, Advisor,
determine whether there is reached in 2010 for $150,000. Mentor, and a sought after
something that likely could be Hodge received $41,906. Adjudicator, Arbitrator, and
proven? Can a plaintiff alone who Neinstein LLP held back $20,325 mediator. She has served as Vice-
is suffering from a mental injury, for legal fees, $30,000 for the President of JusticeNet for the past
10 years. She has served on the OBA
unlessofcourse,s/hehadachieved "party-party costs", and $48,924 Council for the full six-year term and

marked recovery or the injury is for disbursements. After settling two years on the CBA Council. She

minor, adduce evidence that is her claims, Hodge brought the speaks internationally on issue
always sufficiently clear, application alleging the concerning Social Justice and the
convincing, and cogent to meet contingency fee agreement she Rule of Law.

the test? What if the plaintiff was signed was improper because the

suffering from a mental injury law firm took unauthorized fees

before? How does the defendant from costs without the permission

deal with causation? How does the of a judge.

plaintiff deal with his/her I would imagine that there was a

obligation to mitigate? breathless hush throughout the

civil litigation bar when this ruling

While the tests and the directions was released. Likely, this ruling will

fromtheCourtisbinding,common have a far-reaching impact on





Paper It Up – Why Your Small Business

Needs a Shareholder’s Agreement

by Taayo Simmonds

The realm of small business ownership is fraught enterintocontractsonthecompany’sbehalf.Though

with pitfalls large and small. Among the most it may start out small, your company is likely to enter

common traps small business owners fall into is the into a myriad of agreements with clients, suppliers,

failure to ensure that a detailed document laying out subcontractors,financialinstitutions,andmanymore

the important rights and responsibilities of the individuals and firms, many (if not most) of whom will

business’s members is in place. I have had the require a document stating who may sign for the

pleasure of serving restaurateurs, software company. The shareholder’s agreement can also be

professionals, inventors, and various other bright, drafted to outline terms for loans that may be made

motivated people who are taking their first steps in the future to shareholders, including provisions

down the path to success. While they have each had stating interest rates to be charged and whether

often stunning levels of expertise in their respective dividends can be paid before the loan is repaid.

fields, a mistake most of these talented people have

made over the years is neglecting to draft a Shareholder’s agreements are also a good place

shareholder’s agreement. to put into writing what kinds of decisions may be

made by officers using their own discretion and what

Though most laypeople generally do not believe that sorts of issues must be resolved by a vote of the

shareholder’s agreements are of any use among shareholders. Though it may seem obvious to you

friends and family, such an agreement is probably that a particular situation ought to be resolved in a

moreimportantinclosely-heldventures.Alltoooften democratic fashion via a vote, other participants may

the individuals involved in such smaller enterprises have equally compelling reasons why such a decision

greatly overestimate their ability to resolve need only be made by one or two members of your

disagreements without formal, structured company. A shareholder’s agreement is a golden

guidelines. opportunity to bring those issues to the fore and come

to an agreement on who makes the call on a particular

Your start-up or small business needs a well-written issue outside of a high-stakes environment.

shareholder’s agreement for several important

reasons: Shareholder’s agreements often delineate the

terms by which new shares may be issued in the

A well-constructed shareholder’s agreement future.Your company may find itself in need of raising

clearly and thoroughly lays out the rights and operatingcapitaltofundanewexpansion,retiredebt,

responsibilities of each and every member of your buy equipment, or any number of other reasons.

company, and it sets out the rules by which your However, issuing new shares has the potential of

company will operate. Just like every game or sport changing the balance of ownership each participant

requires at least a basic meeting of the minds has in the company. Stockholder’s agreements

regarding the framework of rules by which the typically include provisions granting existing

players must abide, a written agreement drafted at shareholderstherighttobethefirstinlinetopurchase

the outset of the venture describing the rules by newly-issued stock, giving each participant the

which all actors of your company agree to follow is opportunity to preserve his or her percentage of

likely to result in a smoother running operation, ownership in the venture.

potentially saving you and your company significant

time, money, and resources that may be spent on

resolving agreements in the future.

A major portion of a well-drafted shareholder’s
agreement involves describing who has authority to

businesses face the same set of challenges, spending
There may come a time in your business that a a few hours with a legal professional on the drafting
member wishes to end his or her involvement. What of a shareholder’s agreement has the potential to
do you do then? Many businesses insert into their saveyouandyourbusinessuntoldtimeandresources
shareholder’s agreements a provision giving current resolving important issues in the future.
shareholders the right to be the first in line in the
event another shareholder puts his shares up for sale.
Such provisions often include language requiring
any shareholder who receives an offer to buy his
shares from an outsider to bring that offer to the rest
of the shareholders, giving them the option to buy
that shareholder’s shares for the same price and
under the same terms as those offered by the outside
party. The practical effect of such a provision is that
it wards off unwanted suitors from outside the
company.

Your company may have trade secrets or other
information that would be harmful, or even fatal, to
it should outsiders come into possession of it. A
shareholder’s agreement is a great place to ensure
that participants leaving the company are bound by
non-disclosure or non-compete agreements on their
way out of the firm.

Death, divorce, insolvency, incapacity – we rarely
spend much time worrying about such situations,
but they happen, and there is a good chance that
they will happen to one or more participants in your
company. Just as estate planning is best done before
it is needed, planning for the unexpected involuntary
departure of a participant in your firm should be done
ahead of time, and a shareholder’s agreement is as
good a chance for such planning to be done as any.

In rare cases, and usually despite the best efforts
of all involved, a dispute arises among the
shareholders that defies all efforts to resolve it.
Although such situations are not common,
shareholder’s provisions commonly provide a
solution for such situations in the form of what is
known as a “shotgun clause.” Such a clause allows
an individual shareholder to offer his shares for sale
to the remaining shareholder while simultaneously
and alternatively offering to buy the other
shareholder’s shares for the price stated in the offer.
This clause gives a relatively more convenient escape
from a difficult situation for shareholders in a
business who have roughly similar financial
resources. However, in the case of shareholders with
significantly different means, such a clause could be
used by the more well-heeled shareholder to force
the less well-provisioned shareholder into selling his
shares.

These are just a few of the significant issues
encountered by start-ups and small businesses that
a well-crafted shareholder’s agreement can stave off.
Although every situation is unique and no two

Wonder Woman
Movie Review by Johanne Franklin

Wonder Woman was released on June 2, 2017, with great fanfare. The budget for the marketing
campaign alone is estimated to be close to $150,000,000 USD. As of June 30, 2017, the movie
generated total gross sales of $663,648,207 USD worldwide.

The world has been waiting for this female superhero movie for so long. Wonder Woman is not a new
character. She was introduced to us in the DC Comic Universe in 1941 but, surprisingly, no movie had
been made about her until now. Wonder Woman did not get the same treatment as her male
counterparts, Superman, Batman and company, so, now is her time to shine. Or do we have to wait for
this a bit longer?

The movie starts with an introduction to Diana’s childhood (aka Wonder Woman) growing up on
Themyscira, an isolated island, that is populated exclusively by women, the Amazon warriors. Diana,
played by Gal Gadot, is the daughter of Hippolyta (played by Connie Nielsen), the Queen of the
Amazons. Diana grew up on a paradise island isolated from the rest of the world and out of the reach
of the wrath of the evil god, Ares. Through impressive cinematography, and costume designing, we
learn parts of Wonder Woman's 76-year herstory in this island-paradise, where the inhabitants are
trained in the regimen of the Amazons. The women's remarkable athletic abilities and capacity to fight
fiercely, and graciously are amazing. There is strong love and support among the women depicted by
their loyalty, laughter and chatting among them. There is race diversity on this island. There are
Women-of-Colour, but their roles are quite secondary.

Things are about to change and will not be the same after Steve Trevor’s plane crashed in the ocean
next to the island. Steve, played by Chris Pine, is rescued by Diana and after being compelled to
disclose his true identity as a spy, he alerts Diana about the horrors of the pending World War I. Diana is
greatly concerned and despite the disapproval of her mother the Queen, she leaves with Chris and
embarks on a journey to end this terrible war. Then, we follow them through series of events that are
entertaining but unfortunately so predictable and full of clichés. This movie disappoints me on so many
points that I cannot remember in great details what happens next. I do remember that Wonder
Woman’s ingenuity and courage did not convince me. I expected so much more from this heroine. Her
light is dim in comparison with her male superhero colleagues. Throughout the movie, she seems to be
more an accidental participant in this war than a leader saving the world. I hope that this movie serves
as an reintroduction of her character that remains be further developed. In the meantime, there is no
harm in watching this movie but you should be ready to lose some of your childhood illusions.

THE FINAL WORD

The CABL Communications Committee is pleased to publish this second edition of
Black Lawyer-Ish, CABL’s quarterly emagazine.

Email us at [email protected], with your thoughts and comments: let us know if you
tried the Guava Galette, or purchased a Christian Kimber piece!

We welcome your article submissions and/or content ideas for the Summer Edition of
Black Lawyer-ish, which will be published the first week of July, 2017.

In the meantime, we hope you are inspirited by our Lifetime Members and take the opportunity
to Join CABL or renew your CABL membership today!

Follows Us today:

Email: [email protected]
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Sincerely,

CABL Communications Committee

Patricia DeGuire
Nandi Deterville
Martin Ezeudu
Johanne Franklin
Brume Franklin Jabuoma
Donna Walwyn

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