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George Strathy: The exit interview

Friday, September 16, 2022 @ 4:12 PM | By Amanda Jerome


Ontario’s former chief justice’s parting words of wisdom to the profession are, by his own admission, not “original,” but nonetheless poignant: “Be kind, for everyone you meet is fighting a hard battle.”

“I think, as a profession, we are hard on each other. Yes, we’re adversaries, but it’s one thing to advance the interests of your clients, and it’s another to be hard on your opponent,” explained George Strathy in an exclusive interview with The Lawyer’s Daily.

“Truth is,” he added, “we all have our struggles, we all have our pressures, and you don’t have to be hard on the other person to be a good lawyer. In fact, I can think of some outstanding lawyers who are the complete opposite of that.”

Strathy also stressed that legal professionals shouldn’t be so hard on themselves.    

Former Ontario chief justice George Strathy

Former Ontario chief justice George Strathy

“We tend to be hypercritical of ourselves, and maybe it goes to the nature of people who go into the law, all of us have this element of perfectionism,” he said, noting “we’re our own worst critic.”

“I think we need to cut ourselves slack, and we need to cut our colleagues some slack, and recognize that we’re not going to be perfect,” he explained, noting that there’s “always going to be things that are either left undone” or “not done as well we would have liked.”

But sometimes, he noted, referencing another thoughtful saying: “perfect is the enemy of the good.”

“Sometimes you have to accept that it’s good and move on and not try and be perfect,” he added.

In conversation with The Lawyer’s Daily after his retirement on Aug. 31, Strathy reflected on his career, what his next steps will be and current issues facing the justice system.

Upon leaving the role of chief justice, Strathy issued final remarks titled: “Ontario has one of the Best Justice Systems in the World … and we can make it Even Better.” He expanded on those remarks here, noting areas that need improvement.

The “predominant” point, he said, is “we have an awful lot to be proud of in our justice system.”

“I recognize that there are some areas that need improvement. But overall, I quite honestly can't think of a system that is more robust than ours and in which there are such extraordinary contributions by the bar, and such diversity of the bar,” he explained, noting that he uses the word “diversity” in “all its different meanings.”

“I think we’re quite unique in having so many organizations that are promoting specific issues, specific groups. And not just promoting them, but supporting them,” he emphasized.

Another takeaway from his time as chief justice was that “judges really work hard.”

He noted that a “perception” in the profession is that when “you become a judge, all you do is sit back and listen to arguments.”

Speaking from his own experience, Strathy noted that he “worked really hard as a lawyer,” he had his own firm, but he “never worked so hard” as when he was a judge.

“And certainly, [I] never worked as hard as when I became chief justice. I would say it’s not unique to people in the position of chiefs or associate chiefs. I think judges as a whole put their hearts and souls into their work,” he added.

Strathy’s retirement came as Ontario adapted to the COVID-19 pandemic which, he noted, “has shown us that we have tools available that have been underutilized.”

“It’s apparent now that the way the courts work has changed, and I don’t think we’re ever going to go back,” he said, stressing that the justice system needs to “commit more resources to more efficient ways of working; where work can be done remotely in a way that’s fair and assists the public.”

“We’ve leapt into the digital world,” he added, emphasizing that “paper is on its way out.”

Although the “courts have been dealing with paper for centuries” Strathy would ask himself, “how am I going to get judges off paper?” The pandemic assisted by ushering in the digital realm as “we couldn’t move paper in the pandemic,” he explained.

A broader systemic issue that needs improvement, Strathy also highlighted, is mentoring new members of the profession.

“It’s been a problem that’s been building for years,” he explained, noting that many new members are coming into the profession and “not getting the kind of mentoring that they need.” He stressed that this issue is even arising at larger firms.

“We see that from the bench,” he said, noting judges “might see a lawyer in court or in the appeal” and think, “that person has real potential, but she hasn’t received appropriate mentoring.”

“We would also see younger lawyers struggling, perhaps without support from a more senior lawyer,” he added, noting the young lawyer would have “the basic skills, but they just need some help.”

“I think that’s where we need to devote some efforts,” he explained.

In his final remarks, Strathy encouraged the courts to “look seriously at procedures employed in other jurisdictions that give parties a fixed trial date at the earliest possible opportunity.”

Those “other jurisdictions,” he explained to The Lawyer’s Daily, were in the United States, particularly the New York state court.

In New York, he noted, “individual judges are assigned to cases from the very outset” and they, upon meeting with the parties, will determine a fixed trial date.

“The judge will monitor the case. There’s a little bit of flexibility built in to change the date, but the goal of the judge is to get it to trial on that date. So, the parties know what the date is going to be, and they have to plan the case accordingly,” he said, noting that in his view, “judges need to be equipped with the resources and need to be trained in getting these cases onto trial from the get-go.”

He acknowledged that this plan would take investment as, “in the States, the judges often have their own registrar or court clerk who’s with them all the time and keeps track of where their caseload is.”

“But,” he added, “that investment would be offset by improvements in the efficiency and the reduction of numbers of appearances that are unproductive and don’t do anything to move the case forward.”

Strathy would “like to see a more hands on bench” that “takes ownership of the cases that is in front of them.” He’d like to see fixed trial dates used in Ontario so parties would know when they’d get their day in court.

“It’s easier to wait when you know you’re going to get there,” he explained.

On the topic of resources, Strathy’s final remarks also encouraged “stable public funding to assist with [the] administrative costs” of Pro Bono Ontario as well as improvements to legal aid.

He noted to The Lawyer’s Daily that he doesn’t see this investment as “putting new money into the justice system,” but as “reallocating money that's already being used inefficiently.”

“Let me just give you one example,” he said, pointing to a hypothetical “serious criminal trial with an unrepresented accused person.”

In this example, he said, if the accused had a lawyer, the “trial might be over in a week.”

“Without a lawyer,” he added, “the judge is constitutionally required to ensure that the accused person is assisted during the trial. So, the judge spends a huge amount of time explaining how the system works, assisting the accused person with their examination and cross-examination, assisting them in closing submissions.”

The trial, therefore, “ends up lasting twice as long as it would’ve taken with the accused represented.”

The “result is that all those resources — judge, courtroom space, courtroom staff, opposing counsel, Crown counsel — all those people spend twice as long in the system as would be required with a competent defence counsel,” he stressed, noting that it would “save money” to ensure the accused has “competent representation.”

He stressed that Pro Bono Ontario needs “administrative support” which would enable them to “hire a few members of an office staff to help marshal the resources.”

“It’s not big-ticket spending, but I think there’s a notion that we shouldn’t be funding people who are guilty, or we shouldn’t be funding people who might sue the government,” he added, emphasizing, however, that “accused people are presumed innocent, and they should be entitled to be treated as innocent.”

In his time on the Court of Appeal, Strathy “definitely” noticed more self-represented litigants, which he noted, “grinds the system to a halt.”

Although Strathy is proud of Ontario’s robust justice system, he acknowledged that access to justice is a “serious weakness.”

Another area of improvement encouraged by the former chief justice is that of communications, so that court practices and judicial decisions “are better understood by the public and the media.”

The Court of Appeal for British Columbia includes summaries at the top of decisions. Strathy noted that Ontario is looking to implement something similar, but “more detailed.”

He explained that the summaries would appear on “most cases, so that a reader, whether they’re a layperson, a media person, or a lawyer, can get a good sense of what the case was all about and what the reasoning of the decision was.”

Strathy noted that the Court of Appeal already prepares “internal summaries,” so that judges know what their colleagues have been doing and can “keep up with evolutions of the law.”

“We need some help in getting those [internal summaries] transformed into something that’s publicly accessible and easily understood,” he explained, adding this would be a “really useful” addition to the court’s website.

“We do recognize that communication is one of our more pressing needs. So, we’re working on it,” he said.

While improvements to the justice system were still top of mind and were a central theme to his final remarks, the former chief justice retired approximately “11 months earlier” than he was statutorily required to do. He thought, “frankly,” he had done what he’d set out to do.

“We appeared to be getting through COVID. I thought it was time for a new chief justice, to set new priorities and new goals, so I made that call,” he said, noting that other chief justices are “having that contemplation, even in the absence of term limits.”

“Historically,” he said, “on average, chiefs stay in office somewhere in the 10- or 12-year range.”

“The last two and a half years have been very challenging for the courts,” he added, noting that getting through COVID and changing procedures and technology was a “preoccupation.”

“There’s still some more work to do on e-filing, but it was launched during my tenure as chief justice,” he said, noting that his thinking was, “as we move out of the pandemic into a new way of operating, there should be a new agenda and a new chief justice to carry it through.”

Now that he’s retired, Strathy will be focusing on spending time with his family, travelling and enjoying the outdoors.

“It’s funny. I worked for 50 years,” he said, noting this is the first time he’s “not had a job.”

“It used to be that, when I was on holidays, if I was taking a walk on Yonge Street, I'd worry that people would think I was unemployed or had nothing to do. Now, I don’t worry about that,” he added, noting that he feels as if “there’s a big banquet table” in front of him, and he can “decide what desserts” he wants.

“My wife and I started off retirement with a short trip to B.C. to go heli-hiking in the mountains,” Strathy said.

Heli-hiking, he explained, is when a helicopter takes you to different hiking trails up high in the mountains — one day they spent in a mountain meadow, another day they were on a glacier. “It was just a fabulous way to start and take a new perspective on life,” he said.

Strathy has a large family — five daughters and 12 grandchildren — and he has not spent as much time with them that he would have liked.

“The grandchildren are mostly pretty young, and I’d like to spend more time with them. Elyse, my wife, has enabled me to do some of the work I’ve done over the years. She came to a lot of the events that I went to as chief justice. It’s now time for me to turn my attention to her,” he said.

The “best advice” he got upon retirement was “to say ‘no’ if people ask you to do something, outside of social invitations.”

“I think I’m going to take that advice,” he said, noting that he doesn’t “want to go from being in a very hot frying pan for the last eight years to jumping into another frying pan” where he has “no time at all for other activities.”

“I will do my best to actually avoid doing work in any conventional sense,” he said, acknowledging, however, that “if something really interesting came along,” and he was “asked to make a useful contribution in some area,” he can’t say that he would say no.

“But I certainly want to put a little bit of space between my job and myself and just reflect on what would really get me as excited as I have been about the job of chief justice. And the truth is, there’s no other job like it. It’s wonderful. I’ve had the luxury and privilege of serving on an amazing court and in an amazing province. And there’s no way I’m going to find a job that looks anything like that,” he emphasized.

Even though Strathy is stepping away from legal work at this time, he will continue to be an advocate for mental health in the profession and has accepted some speaking engagements on the subject.

Strathy started addressing this issue when he was invited to speak at the Law Society of Ontario’s Mental Health for Legal Professionals Summit in 2021. This was the first time he’d spoken about his mother’s “challenges with mental health.”

In 2022, he released a paper titled, The Litigator and Mental Health, which further encouraged the profession to fight the stigmatization of mental health.

“The reflection I would have, and it’s what the statistics show, is that lawyers are at significantly greater risks than the rest of the population for issues of depression, anxiety, burnout and substance abuse,” he said, noting that this is a “multifactored problem.”

“The reasons include the gladiator myth, the nature of the work, the high stakes work, and also include the kind of people that are attracted to law … we need to be sensitive to these issues, both in ourselves, and in colleagues, and we have to take measures to support colleagues who are dealing with mental health issues,” he stressed.

“We have to individually take steps, to the extent it’s possible, to take measures to protect ourselves and to safeguard ourselves. And to recognize that the time can come where we all need help of one kind, or another,” he added.

Strathy would like to continue to work on encouraging “the dialogue about mental health, to reduce the stigma, and to explore how the profession can be more responsive to it.”

As the profession says goodbye, there is a final question that hangs in the air: who will the chief justice’s successor be?

“The short answer is, I don’t know,” Strathy said, but he hopes it will be announced soon.

He noted that there was “almost six months” between his appointment and the retirement of Chief Justice Warren Winkler.

“That’s not healthy for any institution to be without a leader for that period of time,” he said, adding that he hopes an appointment will be made “either this month or early next month.”

Strathy was the chief justice of Ontario for eight years and was a trial and appellate judge for almost 15 years. Before becoming a judge, Strathy practised civil litigation for over three decades, working in maritime and transportation law.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or 416-524-2152.