Episode Transcript
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(00:16):
Hello everybody, Welcome to another episode of studying Law
around the world. Today I have the opportunity to
interview Marco Falco. Marco has an incredible
experience and story. He's a proud UFT alumni all the
way from bachelors to his JD andone who has been very active in
the universities activities as well.
(00:36):
And also he's a partner at Talking Mains and works
especially with appellate work. So just wanted to really thank
you for your time and appreciateyou joining us today.
Thank. You, Marco.
Thanks so much, Claudio. It's a sincere pleasure and
honor to be here today. I'm happy to be part of this
initiative and and the podcast generally.
Thank you so much. Can you tell us a little bit
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about yourself to start off thisepisode?
Yeah, of course. I'm so born, bred and raised in
Toronto in Townsview, very middle class background.
I'm a proud member of the LGBT community as well.
So I effectively started my sortof legal journey back in
undergrad at the University of Toronto.
I did a specialist degree in English literature with a major
(01:20):
in Italian literature. I went on after that to complete
my masters degree in English at the University of Toronto as
well. And then following that, I was
really interested in pursuing the PhD route.
I really wanted to become an English professor and I really
wanted to become an English professor of American
(01:41):
literature. So after my masters, I had
applied to several Ivy Leagues in the United States.
And this is a lesson about why certain life trajectories aren't
necessarily failures when when you see them as such in your
trees. But I didn't get in to any of
the PhD programs I wanted. I think I got shortlisted for
(02:01):
one of the Ivy Leagues. And as a consequence of that, I
had banked my L SAT several years ago prior to that during
my undergrad, and I wasn't exactly sure what I was going to
do. I was accepted at the University
of Toronto PhD program in English literature.
And so I thought, OK, I'll just continue my merry way at U of T
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in English. But the market was not
particularly good for humanitiesprofessors at the time that I
graduated in the in the early 2000s.
And so with that, I always had an interest in reading and
writing and so forth. So I thought, let me parlay this
and let me see if the Universityof Toronto will take a late
application to the Faculty of Law.
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And fortunately I had, but therewere amazing administrative
staff who worked at the faculty and somehow did their magic.
And the next thing you know, I was enrolled in the JD program
at the University of Toronto andcompleted a law degree.
I will say that I sort of sat inlaw school for the first three
months and wondered what I was doing there and why I wasn't
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pursuing studies and Chaucer andShakespeare and the things that
really, really interested me andwhy am I looking at supply
demand for curves in contract law and studying the law of the
law and economics of Canadian contracts.
So it took a while and then I suddenly sort of felt
reinvigorated intellectually. And I would say by about the
(03:30):
spring, I really started to takea deep and abiding interest in
in the law, how it works. One of my amazing professors at
the Faculty of Law once said to me, the light bulb will go on
and it probably won't go off until March or April.
But when it does, you'll start to understand how all these
various puzzle pieces that you've been introduced to fit
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together. And literally that moment does
happen. And suddenly it makes sense.
Like, oh, there's this thing called contract law and tort law
and criminal law and constitutional law.
And how do they, how do they alloperate as a unified pole in a
democratic society? And so that that is effectively
my journey. And then I essentially started
as a summer student at Torkin Manes.
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And here we are 20 something years out.
I don't want to think about it, but I was born, bred and raised
here. And I'm a proud member of the
firm and now a partner who practices in appellate
litigation and judicial review. So that's how I ended up here.
And that's that's me. Perhaps a long winded
explanation? No, that's fantastic.
(04:31):
I'm, I'm glad to always hear a little more about your story and
especially how maybe law not being your first choice and that
being a very successful 1. So that's always encouraging to
hear and to learn and you've built a strong practice doing
appellate litigation, judicial reveal and I'd love to hear a
little more about that. What led you to focus on this
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area of law after? All it's really interesting.
Not none of it was intuitive. I didn't come to my firm, you
know, imagining that this would be my career sort of 20 years
out. I thought it probably would have
ended up in something a little more traditional like commercial
litigation or some type of general litigation, health law
and so forth. The way that it kind of evolved
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was that I suddenly took more ofan interest, I would say, in
reading and writing about the law and not to say that facts
and evidence and so forth are not important.
They in fact drive all the decisions that that I argue.
But I had a particular interest in wanting to pursue the law
proper. And so I naturally gravitated
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towards the partners that had practices and things like public
law, administrative law, and whoappeared before the Divisional
Court and the Court of Appeal. And that intellectual hook, I
think got me. The beauty of what I do is that
because I am a generalist, whichis somewhat of a rarity in our
perfection, everyone's specializes in everything these
days. But because I am a bit of a
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generalist, it means that every day something new is landing on
my plate and I could be arguing in an appeal in a construction
litigation matter and the next day be doing something in civil
sexual assault. So it runs the gamut.
And the skill set that I bring to it is that both clients and,
and my fellow partners around here rely on me to sort of have
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a knowledge of how appellate litigation works, how the
divisional court works, what arethe judges actually looking for?
And because this is a second kick at the can, effectively, it
also sort of draws in how a judge may have gotten the
underlying decision right or wrong, which to me is
fascinating because it involves a whole other intellectual
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exercise that I think is sometimes not available
naturally at the trial level, but certainly on appeal.
That's fantastic getting you a little bit about your story, a
little bit about, you know, the area you specialize in.
Another, I feel like a highlightof your resume and all of that
is that you've been very involved in various mentorship
programs in the University of Toronto and outside of it as
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well recently, I think a chapterof the Italian students and just
so many amazing different things.
And I'd love to hear a little more about what inspired you to
become a mentor and to be so committed to giving back to the
legal community. Thank you.
I mean, I, I try to do my level best while managing a sort of
practice on the side. It's a, it's a hard thing to do,
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but it's such an important thingto do it.
Early on in my career, I had mentors both outside of my firm
and within the firm itself who either showed me the ropes,
taught me what makes an effective litigator and what
makes for effective advocacy andtaught me how to sort of cope
from a life skills perspective. Anyone listening to this will
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know that litigation is not an easy swag.
It's immensely stressful. It can sort of quite large
demands on your life, on your mental health, on your
well-being. Having a mentor in my view is
sort of critical not only to sort of learn about the
substance of litigation and how how you pursue those aspects of
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your career, but on a sort of personal level, having a
sounding board for someone to say, you know it's going to be
OK. This is how I cope with
strengths. This is how I cope with multiple
deadlines. This is how I cope when I'm
losing a case on an appeal or have lost a case.
This is how you deliver good news to a client.
This is how you deliver bad newsto a client.
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Having that type of sounding board was so important to to my
career. So it was almost as though when
I gravitated into this role as as mentor to both students
within my firm, outside my firm within the faculty of law at the
University of Toronto. You mentioned various other
organizations, LGBT organizations where I try to
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mentor students and also students from historically
disadvantaged groups who in my view need extra mentorship
because they have to face other obstacles in addition to the
difficulties of litigation. Having committed, having others
commit their time and resources was so valuable to my career
that it's not something I do because I feel it's an
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obligation and a duty. I do it because I love to see
people thrive. And I cannot tell you how many
students have walked across my desk and I later encounter them
that the faculty of law or encounter them in litigation of.
I've had people I've mentored actors opposing counsel against
me, and it just warms my heart, even if I don't know agree with
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their positions. But it warms my heart because I
love to see others thrive. And there's a lot of pessimism
in the world these days. And I feel that committing
yourself to optimism through mentorship is is a way to make
the world better generally. And perhaps that's corny, but so
be it. I love that it tells about how
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how genuine your efforts are andtaking into consideration for
for how long you've done this now.
And I'm sure, you know, seeing students at your firm and all of
that in this experience, what kind of advice do you usually
give to law students or young professionals just starting out?
It's an excellent question. I think that one of the most
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important things, well, two important things #1 figure out
what your superpower is as a litigator, It's in my view,
impossible to be good at everything.
You can't be good at examinations, oral discovery,
the written work that's involveddrafting, and so forth.
We all, we all have our strengths and weaknesses.
We know where they lie. Work on your weaknesses and
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continue to educate yourself so that you can overcome those
weaknesses. But most important, learn how to
leverage your superpowers. I realized at a young age, given
my background in English literature, that I loved reading
and writing. And that was going to be where I
was going to make my career. And I knew it was going to be
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some form and it was going to take some sort of shape.
And it wasn't exactly 100% certain, but I knew that that
was the skill set I needed to promote.
And so I started to do things like write a lot and publish
articles about various legal topics and sort of show the
world at large. This is what I'm good at.
And so if you're going to hire me as a client, this is what I
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will do for you. And then oral advocacy, of
course, developed over time as well.
My, my sort of strongest, strongest advice is figure out
your superpower. And then the second sort of
component of that is for someoneto figure out what they love.
And it's really hard in the law because you necessarily graduate
with law school debt. So you figure, I'll take the
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first job that comes at me. I don't think that's a wise
move. And I saw a lot of my friends
sort of start at places that didn't seem particularly well
suited to them. And they did a lot of shifting
early on in their career as a consequence.
You have to figure out what's going to make you tick.
You know, it could be corporate law, It could be litigation
generally, but this job is very,very difficult.
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You have to have a lot of friends in it.
You have to have mentors. But the other thing you have to
do is want to wake up in the morning to do it.
And if you don't have that type of drive, if what you're doing
seems utterly and completely meaningless to you, you will not
thrive in this profession. You will just sort of do your
work, get paid, go to court, walk out the door and live to
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see another day. And that's that's genuinely not
something you want to be doing every.
Day well, that makes a lot of sense.
Appreciate you sharing those. And I feel like they they could
definitely apply to a lot of different people getting to
listen to this episode and even for myself here.
And if we may go back a little bit to your practice.
I know that your practice coversa lot of different things,
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including, you know, public commercial law issues.
And you just said that being a generally something new comes up
every day. So how do you approach such a
complex matter in in specially at the appellate?
Level. It's really hard and it's really
interesting. The truth about that is
genuinely, sometimes I get pulled into files and I know
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absolutely nothing about the subject matter.
So there's a learning curve. And so you start with, you know,
very basic things like let me Google what a debenture contract
is and, and figure out and how that works or what's a
syndicated loan. You know, there, there are many,
there are many sort of things that sort of start you off.
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There's a lot of resources available and you might start
with textbooks and so forth. And then once you have a clue,
you can then go to the underlying judgment.
Typically, most judges do an excellent job at first level of
sort of setting out the legal issues, getting the reader
acquainted with the facts. And you start with the record
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there. And over time, it's just a lot
of reading and a lot of hard work.
And suddenly you've gone from zero to 100 and you're before an
appellate court where you know the judges are incredibly
intelligent, will often have very pointed questions for you.
There's, there's not a lot of room in, in appellate litigation
to sort of sit there and make your arguments and resuscitate
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the facts. You usually get 3 minutes into
your submissions and then the panel is just at you with a
million questions because they know the material and they're
incredibly smart and so forth. But I kind of have to remind
myself, no matter how many, no matter how apprehensive I may be
about my lack of knowledge, let's say at the outset of a
file, I'm going to get to a place where the only other
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people as well versed in this material as I am usually my
opposing counsel. It's amazing how the law works
that way. And that's why I think, you
know, training, learning how to tackle a case from the outside,
particularly when you know nothing about it, and then
suddenly becoming an authority to get to that transition
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involves a lot of time and it involves a lot of hard work.
But effectively, the skill set is always the same.
And at the appellate level and at the judicial review level,
which you're fundamentally looking for the two to three
issues that the court is going to entertain.
So this isn't about rehashing, you know, a 20 day trial and
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going through every little pieceof evidence and every little
thing that the judge may or may have done right or wrong.
It's literally about feeding thecourt legal questions and
saying, this is where I think the judge right, right or wrong
on two to three issues. And that's literally all you
have time for. So it's amazing how that process
evolves. And I've done it so many Times
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Now that I've literally have developed a system in a rhythm
to how I, I tackle things. And sometimes my clients will
come to me and they'll be like, OK, let's talk about this
appeal. And this is how I want things to
go and so forth. And I, I sort of have to walk
them back and say, look, I, I appreciate how you want me to
tackle this, but I need to explain to you, this is my
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system. So, you know, I'll, I'll need X
amount of time to sort of familiarize myself with the
file. And then we can meet and then we
can talk and you can tell me your thoughts and then I'll tell
you whether or not, you know, you've, you've got some merit
here. It's a fascinating process.
It's an intellectual process. And that's why I.
Love that one. Fascinating.
And I'm sure that over the years, different people have
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different personalities and all of that.
But if you're if your work is just, you know, filling out a
form or, you know, doing the same repeated work, it
definitely gets old fast. So I feel like that's a way to
keep very alive, right? That's amazing.
Well, you were just saying how in in today's world, so much
comes up, so many different cases end up landing at your
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table. And if I may ask as well, in
regards to, you know, the evolution, technology, AI and so
forth, is there any of that thatyou see applied in appellate
work these days? And even about the row of
appellate courts, do you see these evolving, Changing anyway?
It's an excellent question. There's a lot I have to say
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about that. Artificial intelligence, I think
is, is slowly but surely revolutionizing the profession.
That being said, at the appellate level, what we have
now is a sort of patchwork quiltof practice directions and
regulations across the appeal courts in Canada.
The genuineness is that the responsibility, and this is true
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of a Law Society of Ontario white paper that says this as
well, the responsibility for ensuring the integrity of
anything produced by AI remains with the lawyer.
And so the appellate courts are saying that even if judges do
want to use artificial intelligence, they have to be
incredibly careful. Even though the matters coming
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before an appellate court are usually public record, they
aren't always. And so judges have been
cautioned about the sort of risks inherent in hallucinations
and inaccuracies. The sort of second component of
that is the sort of bias that can arise where artificial
intelligence is being used and the decision making process.
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And it's actually interesting. I wrote a paper in the Advocates
Quarterly last year about the effect of artificial
intelligence on judicial review and administrative law and
public law. There's a lot of opportunity
there. You can imagine that a civil
servant who, for example, has 800 cases in their caseload and
has to make 800 decisions, wouldbe particularly tempted to go
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find an artificial intelligence program that can maybe narrow
things down, assist with the decision and so forth.
But there are fundamentally a lot of problems with that.
There's bias, there's inaccuracies, you know, there's
the degree of reliance. There are disclosure issues.
If you're a lawyer attacking a decision of an administrative
tribunal and you know that tribunal has used artificial
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intelligence, I can tell you I would be demanding production of
any form of artificial intelligence in the data sets
that were used to achieve the decision and so forth to see if
there's any, any grounds for attack.
The really interesting question in my view is that appellate
litigation and administrative law so far are very much based
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on a 20th century model that never contemplated the use of
artificial intelligence in the decision making process.
I think, and I at least argue inmy paper that it's time to sort
of evolve the norms and understandings of things like
reasonable apprehension of bias,the duty of fairness, the right
to be heard. What does that mean when there's
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potentially a robot somewhere inthe background assisting in a
decision that's going to fundamentally affect people's
lives? And that has a lot of
implications. So it's a sort of risk
opportunity calculus. And I don't know where I land
yet. I am a firm believer in the
regulation of artificial intelligence particularly is
used by state decision makers because I think they they have
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to be bound by the rule of law as they always have been.
But we'll see where it goes. It's it's a really interesting
question and and props to you for for raising.
It thank you for for your comments.
I think those are very pertinent.
And as we definitely talk about that in in law school in
different circles, and we keep thinking about how, you know,
things will turn out and how youknow that usage will come up in
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different ways in different spheres.
But especially when we talk about, you know, young
associates, it becomes a little interesting, especially on the
sense that a lot of young associate tasks are being in a
way products are coming into literally do that kind of
research. So when you get a mature lawyer,
they already have the skills andability to be able to ask the
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right questions and analyze it with a little more maturity than
somebody just starting out. And I guess just time will tell
how that will play out, but it'sit's being definitely
interesting to see that. It's actually, I mean, you raise
you raise such an important issue, which is the effect of
artificial intelligence on associate mentorship and
training. There is a lot of concern about
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that. To your point, I can look at a
fact of maybe drafted by Chad GBT, not that not that I do, but
I'm assuming that in theory I could look at one.
I can sort of realize almost immediately where I want to
argue what's wrong with it, whatisn't, what might be inaccurate,
what couldn't be someone eight years, one to three as a young
lawyer doesn't have that skill set yet.
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And so if we're going to just start delegating these tasks to
artificial intelligence, the fear that I have is, you know, a
lawyer who's 20 years out, who'sbeen utterly reliant on AI is
not going to have the necessary level of judgment and critical
thinking skills that they may need.
And so, you know, depending on the firm, while you know, we're
fully supportive and we're happyto use artificial intelligence
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programs, we are in fact still very firmly committed as a firm
to ensuring that we're not letting the education and
mentorship part of of associate jobs suffer as a consequence of
artificial intelligence from becoming a partner in in the law
firm structure. I see no, that's that's
reassuring to here in a way and very, very interesting to see
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how it will play out. Moving on to another topic,
you've written a lot, not only for your appellate work as a
part of your job, but you've written quite a bit of
different, you know, op eds and opinion pieces and and about the
legislation and all of that as well.
And I saw that one of your recent articles discussed the
duty of good faith negotiating commercial contracts.
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I was wondering if you could tell us a little bit about that,
about this contract series that you've been writing on.
And then I think that you've gone so long as writing about,
you know, contract law during the trade war and the, the key
lessons that business should keep in mind.
So I'd, I'd love to hear a little bit about that, Marco.
Yeah, of course, it's sort of, it's kind of amazing how a
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larger social and political context can take over lawyers
minds and litigators minds. But this was true of the
pandemic and now we're sort of seeing it again.
You touched on this quite rightly.
These are the the US trade war against Canada and the
imposition of tariffs. There are a lot of implications.
We've had a lot of clients contacting us.
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And of course, we we sort of offered the perspective from the
Canadian common law and contractlaw perspective.
But all the doctrines that sort of became important and
prominent in the pandemic. And I'm talking about things
like the doctrine of frustrationwhen your contract gets
frustrated by a supervening event or, you know, whether or
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not a commercial contract has a forced measure clause that takes
into account circumstances that a party has no control over.
When can those be exercised? How are they exercised?
And we're getting numerous callsfrom clients who are sort of
raising the same issues. The good news is we've kind of
done a lot of legwork during thepandemic because these were
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issues that were raised then, but now that the US tariffs have
gone into effect against the Canadian businesses where
Canadian contract law applies, there's there's been a myriad of
issues. So that's sort of something that
I've been, I've been touching onjust because my clients have
been raising it and have been have been quite concerned
naturally about what, you know, doctrines that deal with
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supervening events like the imposition of tariffs by by
foreign governments could have on Canadian contract law.
So there's sort of that. And then the good faith piece is
something that's near and dear to my heart.
I've written a lot about good faith.
Good friend from law school, Brandon Kane wrote a 2 volume
tone. And I think Claudio has part of
your amazing 75 years initiative.
(24:44):
You may have spoken to to Brandon, he's at parties and he
wrote this incredible tone on the duty of good faith and I've
kind of picked up on it as well.And we both he and I talk about
this a lot. And so I recently gave a talk at
the Advocate Society about whether or not there's a duty to
negotiate a contract in good faith.
(25:05):
And that is before the contract is actually entered into simply
because the duty of good faith is we've always understood it
only applies when the parties enter into a contract.
But what happens before the contract is entered into?
And there's been a sort of common law understanding, shall
we say, the latest is the decision of the British Columbia
(25:25):
Court of Appeal called Ocean, something you're going to have
to forgive me for not remembering the second word, but
it came out last December and iteffectively affirmed that there
is no duty to negotiate a contract in good faith if the
parties have not properly entered into a contract.
And so there's there's no good faith duty to perform.
That being said, as with law, there's a rule and then there's
(25:47):
a million exceptions. And the Supreme Court of Canada
came out with a decision early in January involving the Quebec
attorney general and seemed to suggest that under the Quebec
Civil Code, which is where the common law got a lot of its good
faith principles from. But under the Quebec Civil Code,
if the parties in fact have an obligation to negotiate anything
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in their contract that's expressly set out, for example,
in a lease, there might be a renewal provision that says the
parties have to negotiate a renewal and so forth on the
Supreme Court of Canada says absolutely, in those cases,
there is a duty of good faith and that applies simply because
the duty is tied to the contractitself.
So it's going to be interesting to see where the Supreme Court
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of Canada lands at common law onthis issue.
But these are the sorts of burgeoning things that raise my
intellectual curiosity and hopefully a a lot of your
podcast members as well. And so I write a lot about it,
yes, partly for shameless self promotion and so forth for
clients, but also because I'm just genuinely really interested
(26:52):
in in the directions that that that the law will take needs to
be this issue. That's fantastic.
Well, thank you for sharing thatto to wrap up today's episode,
I'd love to to go back to one ofthe topics that we spoke about.
We spoke about, you know, young lawyers, law students starting
out. And I know that a lot of people
more and more want to build a meaningful career, a career with
(27:14):
purpose and one that will be long lasting.
We know that probably this this generation entering the
workforce now will probably be there for for quite a while.
And and of course there's alwaysroom to, you know, change
careers and all of that. But we, we don't start a career
looking into getting out of it for the most part, I'm pretty
sure looking into, you know, keeping it meaningful with
purpose and sustainable. I wonder if there is a piece of
(27:37):
advice that you give to those ofus starting out in this upcoming
years. Here, the first thing that I
think is important is that when you're starting off as a lawyer,
yes, you have to learn your skill set, be it as a corporate
lawyer who does transaction workor as a litigator who's who's
going to be appearing in court. So substantively, of course, you
(27:57):
have to learn the practice of law.
That's fine. And that's something that will
evolve naturally between years 1:00 to 6:00 and 7:00.
But while you're doing that, themost important thing that you
should be doing, and Claudio, you are Superbas, is building
out a network. And that doesn't mean just a
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network of potential clients down the road that you know, so
that you can become a rainmaker and and and make a lot of money.
There's that, of course, and that, you know, the business of
law is important without question, but also a network of
mentors, a network of friends inthe profession who do the same
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thing that you do, joining associations that are involved
in the industries that you're going to see yourself in 20
years, acting as an advocate for.
Those are all important things that you have to start thinking
about. And to be honest, it's something
I didn't do as much. I was, I was a very much a heads
down kind of person, unlike you,Claudio.
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And I sort of kept my head down for a while just because I was
so obsessed with learning the skill set that I kind of let
that stuff go by the wayside. But the more networking I
started to do, the more people Imet in the legal community.
Number one, you realize how small the legal profession
actually is, the fact that thereare many, many lawyers across
Canada. But second, more important, you
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start to build people who will become critical to your success.
And that means, you know, peoplelike former judges, current
judges, mentors, senior counsel,people who have guided me
throughout my career and have said, do this, don't do that.
Don't waste time with this, focus on this.
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And and then on a personal level, you know, having, having
someone, someone there who can help you navigate and
understands the law. I have an incredible spouse
who's in immensely supportive and I'm super lucky for that.
But there's also, you know, he's, he's not a lawyer.
And so sometimes I need to bounce ideas off a lawyer or
(30:06):
have someone who understands, you know, when it's like have a
heart Davenport and and you knowall the sort of followed the
rules from one such have a good and we'll understand.
So my sort of essential advice to any young law students and
lawyers and is start to figure out who your network is and
(30:26):
start to build it from the ground back immediately.
Well, fantastic. What it what an episode.
I encourage everybody to to go back and if you haven't gotten
some, some pencil and paper and taken some notes, it's it's
definitely an episode worth doing that.
Thank you so much Marco for for your time and for all those
insights. Thanks so much, Claudio is a
(30:48):
sincere pleasure and congratulations on this
endeavor. It's.
Excellent. But thank you so much.
Thank you all for tuning in, andwe'll see you all on the next
episode.