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Fond farewell to Canadian legal legend Berger | H.B. Shroff and Victoria Shroff

Tuesday, May 04, 2021 @ 1:22 PM | By H.B. Shroff and Victorial Shroff


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We have lost many luminaries in the legal profession over the past past few years. With the passing of the former leader of the New Democratic Party of B.C., member of B.C. parliament, retired former B.C. Supreme Court justice, and lawyer Thomas Berger, OC, on April 28, 2021, we have lost an 88-year-old Canadian legend.

As B.C.’s Premier John Horgan stated, “He spent a lifetime moving all of us toward a just society. For that, we owe him our thanks and gratitude. His kindness and generosity will long be remembered. His thinking will continue to influence us for generations to come.”

Tom articulated and fought for recognition of Indigenous rights in the 1960s and 1970s. The word trailblazer is too often loosely applied to those who have not quite earned it. Tom, however earned the descriptive in spades. MP Jody Wilson-Raybold tweeted: “Tom was a great champion of a Indigenous peoples & rights. ... A true trail-blazer who helped change this country for the better while personally sacrificing to do so.”

Former justice and attorney general, now lawyer/mediator in B.C., Wally Oppal, OBC, QC, stated on LinkedIn: “Tom was truly a giant in our profession.”

In 1982, Edgar Friedenberg wrote in the New York Review of Books that Berger was “perhaps the most effective and certainly the most respectable champion of the aboriginal peoples of Canada.”

The Canadian Bar Association (CBA) tweeted, “We mourn the passing of a champion of justice in BC. Thomas Berger, QC inspired so many in the legal profession.”

Bill Erasmus, former Dene chief, remembered Berger’s incredible efforts fighting for the Nisga’a nation in the precedent setting case of Calder v. British Columbia (Attorney-General) [1973] S.C.R. 313 in all those decades ago. In a landmark decision, the Supreme Court of Canada first acknowledged the existence of Aboriginal title to land in 1973.

“As a young lawyer he stuck his neck out. Not very many people believed we had treaty or Aboriginal rights. Today, it’s common,” Erasmus told the CBC. These words were echoed by Prime Minister Justin Trudeau: “Mr. Berger will be remembered as the consummate advocate. He not only gave a voice to the voiceless — he truly listened, and in doing so, empowered a generation of leaders to become voices for their own communities.”

In the early 1970s, Tom was appointed to the B.C. Supreme Court at the rather tender age of 38. Before the area of environmental law had really taken off, Tom was again in the vanguard of understanding the issues and how environmental law and and Indigenous issues intersected. He headed an inquiry into a major pipeline project in the Mackenzie Valley, visiting and consulting people in the Yukon and N.W.T. who were directly affected, instead of sitting at his desk.The Mackenzie Pipeline Inquiry Report in 1977 recommended a decade-long moratorium in order to sort out Indigenous land claims first.

Decades later, when Tom was again in the private practice of law, he was retained as outside counsel by the B.C. government regarding the Trans Mountain pipeline expansion.

For more details on the extraordinary life of Tom, please see the write-up by UBC's Allard Hall for its history project. 

Personal reflections

When I (H.B.) first started practising law in Vancouver in the 1970s after having practised in England and Africa, I was introduced to Tom via my wonderful mentor Harold Tupper some 40 years ago. I’m glad to have called Tom a friend for several decades. He had some hard choices to make in his career, but always landed on the side of equity and fairness. Tom was a genial person, well-read, always quick to smile and a pleasure to converse with on any topic. Aside from seeing each other inside the law courts back in the day, lately, we would meet each other from time to time during seaside walks on the Vancouver waterfront. We last met not too long ago at a senior lawyers’ dinner meeting and had a chat about law, the Bard and music. Sad goodbye to dear Tom, always modest and thoughtful, he will be sorely missed for his innumerable contributions to the legal community and to our country. Our thoughts are with his loving family.

I (Victoria) was lucky enough to know him through my family. When I was a young kid, I arrived home one day covered in mud following a soccer game to find that the Bergers were having dinner with my parents. Mud-soaked and still in grassy cleats, I stopped to quickly say hello and asked Tom Berger if he might please consider coming to speak at an assembly at my high school? He asked me to write to him and he’d check his calendar. (This was a decade before e-mail.) I duly wrote a letter to him and a date was arranged. I was so proud to stand up in assembly, introduce him to my principal, my friends to tell my school about the legal icon who we were so lucky to be have attending. Teachers, students and staff were inspired following a one-hour speech about his work and life in law, fighting for the disenfranchised. Despite how busy he was, he stayed and answered questions, encouraged me and others who wanted to become lawyers, that it was a storied profession, that we could make a real difference. This is the kind of man Tom Berger, OC, was: Kind, generous, compassionate. He was one of my biggest influences in the legal profession and I’m grateful to have known him. Thank you for everything, Mr. Berger.

H. B. Shroff, QC, is a retired litigator who practised in England, Africa and Canada. He graduated from Lincoln’s Inn in London over 50 years ago. Alfred Tom Denning (a.k.a. Lord Denning) was his bencher. He founded the boutique law firm of Shroff & Associates in Vancouver and is long-standing chair of the Vancouver Shakespeare Society. These days, the court he attends is the badminton court. Victoria Shroff is one of the first and longest serving animal law practitioners in Canada. She has been practising animal law civil litigation for over 20 years in Vancouver at Shroff and Associates and she is erstwhile adjunct professor of animal law at UBC’s Allard Hall Law School and Capilano University. She is recognized internationally as an animal law expert and is frequently interviewed by media. Reach her at shroff@telus.net@shroffanimallaw or LinkedIn.

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