The Lawyers Weekly - December 23, 2011

THE LAWYERS WEEKLY
December 23, 2011 | 5

For most of its 28.5 years in this newspaper, Off the Record has acknowledged the winter holidays. Often our year-end bonus to you, usually gentle reader, has been the Chutzpah Report, documenting the use of “chutzpah” in Canadian and the U.S. case law since 1986. The diminishing occurrence of the word in legal databases by 2004 discouraged compilation for four years. But last year’s report documented 11 Canadian occurrences ( 10 “chutzpahs” plus one “hutzpah” from Quebec) between 2005 and 2010, as reported in the CanLII database.

This year saw four usages
appear in that source, and
marks the first time in 25 years
that the report features a friend
and close colleague. I worked
as a barrister with Howard
Winkler for a couple of years,
much of it as his junior, during
which time he asked me one
day if I knew what a CLM was.
When I said no, he explained:
“It stands for career-limiting
move, which is what you’ll be
making if my name ever
appears in your column.”
I soon used his name in
a column about our mutual
struggles with practice-man-
agement software.

But it was not Winkler’s doing that saw me return to full-time writing some months later, a career-limiting move by definition. And I use it again today, with the now completely objective preface that Winkler (a part-

JEFFREY
MILLER

Levant might not
know from fibbing,
but no one would
dispute he knows
chutzpah.

“

“takes a lot of chutzpah.” Levant
might not know from fibbing,
but no one would dispute he
knows chutzpah.

Given the season, it might be germane to add that typing “Christmas” into the CanLII database yields 939 hits for 2011. “Santa Claus” yields five. “Chanukah” produces just one, in a custody-and-access case.

So maybe it really does take chutzpah to wish all of you happy holidays, instead of a merry you-know-what-with- 939-hits.

Jeffrey Miller
ner at a mid-sized Bay Street
firm) is far and away one of the
best lawyers I’ve ever met.

Those of us who know him understand that Justice P. D. Lauwers was being complimentary, whether his Honour knew it or not, when he wrote of Winkler’s advocacy in Peleshok v. Peleshok: “There is a certain unalloyed chutzpah in this submission, because the putative trustee is relying on his own possible breach of trust to defeat the finding that a trust exists.

Winkler implicitly invites me
to reject his client’s quite plaus-
ible evidence that the dealer-
ship parcel was to have been 10
acres in size from the outset.”
The years seem to have estab-
lished that the legal definition
of “chutzpah” is generally the
one made notorious in Leo Ros-
ten’s Joys of Yiddish, 1968:
“That quality enshrined in a
man who, having killed his
mother and father, throws him-
self on the mercy of the court
because he is an orphan.”
Justice A. B. Moen alluded to
this definition a few months ago
in Rubin v. Gendemann, citing
a case in which Justice Mary
Southin had relied on it in the
context of “the character of par-
ties who complained about slow
proceedings where the delay has
been caused by the unsuccessful
attacks launched by those very
same parties.”
But, more than likely, Wink-
ler has set a new definitional
standard in Peleshok, clarifying
that often what judges call
chutzpah is just a lawyer doing
the best he can with what
he has.

Reasons:

Peleshok v. Peleshok, 2011 ONSC 3156
Rubin v. Gendemann, 2011 ABQB 466

Berge v. Wood, 2011 ONSC 3613

Vigna v. Levant, 2010 ONSC 6308

(released in 2011)

In his 28.5 years with The
Lawyers Weekly, Jeffrey Miller
has written 1,250 columns, more
or less. His latest books are The
Structures of Law and Litera-
ture and Murder on the
Rebound, a comic novel set in
Toronto’s legal community.

MOVES
APPOINTMENTS

n Daniel Killick is the newest addi-
tion to Field Law LLP’s Calgary
office. Killick has joined the firm’s
labour and employment and immi-
gration practice groups as an asso-
ciate. His practice focuses primarily
in the areas of labour and employ-
ment and immigration law. He
advises employers on human rights
complaints, workplace policies,
employment contracts and disci-
pline and discharge issues. He also
advises businesses and corpora-
tions looking to hire foreign per-
sonnel by obtaining temporary work
permits, and has appeared before
the Provincial Court of Saskatch-
ewan and the Saskatchewan Court
of Queen’s Bench.
n Darryl Ferguson has joined Ler-
ners LLP as a partner in the firm’s
Toronto office. His expertise lies in
health law representing physicians,
class action defense with a focus on
product liability, and commercial liti-
gation including contractor and
shareholder disputes.
n Mark Adams has been appointed
senior vice-president, general counsel
and corporate secretary at AGF Man-
agement Limited. In his enhanced role
Adams will be responsible for all
legal, corporate governance and com-
pliance matters in Canada and
abroad. Judy Goldring, former gen-
eral counsel at AGF, continues her
role as executive vice-president and
chief operating officer focusing on the
long-term growth and strategy of the
firm. AGF is a Canadian-based invest-
ment solutions firm, and consists of
two distinct businesses: AGF Invest-
ments and AGF Trust.
n International legal practice Norton
Rose Group has announced that
Peter Martyr will continue as group
chief executive for another three
year term as of January 2012, at the
same time that Canadian law firm
Macleod Dixon LLP will be joining
the group. The Group’s Canadian
operations will grow to around 700
lawyers, and will be known as
Norton Rose Canada LLP.