Sunday, November 22, 2015

Ian Scott. Q.C. A Mentor Extrodinaire ! "Do Not Be Afraid to Challenge Law"

   Sometimes in life we have a tendency to take people and opportunities in life for granted and not appreciate their value and significance until several years later.  Prior to going to law school I had the opportunity to meet and ultimately get to know the late former Attorney General and Minister Responsible for Women's Issues, Mr. Ian Scott, Q.C.  I first became aware of Mr. Scott and his work when I worked as a researcher at the Ontario Women's Directorate.  He was as all of the staff affectionately would refer to him "our Minister".  So impressed was I with him that I volunteered to work on his election campaign thereafter.  

   When I was an articling student - first at the Ontario Labour Relations Board and then at Dutton, Brock, MacIntyre and Collier Mr. Scott was the person I sought guidance from on questions of administrative law, torts and insurance law.  I have met many lawyers over the years but never have I met one that had such a command on so many areas of law as Mr. Scott.  What I found most interesting and impressive about him was his creativity and accessibility.  Mr. Scott was always available to take my calls at his office at Gowlings during my articles.  He did not simply regurgitate some ratio diciendi to me but always had some analysis of that ratio and his own opinion.
He clearly was not afraid to think and he always encouraged me to think.  That characteristic from Mr. Scott resonated with me tremendously. So much so that I remember Mr. Crawford MacIntyre saying to one of the partners at Dutton, Brock that they should seek my input because I always have some very creative ideas.  I did indeed - thanks to Mr. Scott !

   Very quickly into embarking on my career as a litigation lawyer I had opportunity to put into practice a lesson well learned from Mr. Scott, namely, do not be afraid to challenge law if it makes no sense and adversely impacts your client.  I was representing a woman from El Salvador on a judicial review of a Refugee Board decision which denied her Convention Refugee Status on the basis of "changed circumstances" as that term is used in the governing legislation.  My client was from a family where four of her brothers had been previously granted Convention Refugee Status in Canada.  When her turn came the authorities took the position that the political climate in El Salvador had changed such that there was no fear to her should she return.  At that time the law provided for an objective test to assess and evaluate the "changed circumstances."  That test did not sit well with me because I reasoned that some persons who could have been known to be undesirable by the official regime or others may nonetheless be targets on account of their family history.

   In pure Ian Scott fashion I decided to challenge the objective test used to evaluate "changed circumstances" for the determination of Convention Refugee status.  I reasoned that this assessment called for a subjective test incorporating the subjective fear and experience of my client and her family in El Salvador.  My colleague, Mr. Mark Persaud was acting for the Attorney General of Canada at the time.  He said to me affectionately, "Ernie you are not going anywhere with that argument the test has been around for some time before you."  I told Mark that this law made no sense and was adversely impacting my client and therefore I have a duty as a lawyer to seek to change it.  As it turned out the Federal Court received this argument from me and some other litigants and the Federal Court of Appeal ultimately dealt with the matter and corrected the situation.  My client got to make her new home in Canada.

   I felt so proud when several years later when attending a function put on by the Hispanic Lawyers Association she called out to me - "Mr. Guiste  - Mr. Guiste - this is the man that is responsible for me being in Canada" - at the same time introducing me to her husband.  Her husband is a lawyer and she is happy in her new homeland.  She thanked and acknowledged me on that occasion.  However, on reflection I must thank the late Ian Scott, Q.C. for his mentorship and instilling in me an unwavering respect for the Rule of Law and the duty of a lawyer to defend his or her client - even if it means challenging the law.


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