Wednesday, August 29, 2012

A harbinger of what was to come?

Hi Clare,

Just read your quiz piece. Nicely done. Good questions can always trump answers (even good ones).

Yesterday, after receiving the Canadian Judicial Council notice of Guy Pratte's resignation, I mailed a link to Ms Blatchford (National Post veteran reporter Christie Blatchford) and actually got a thank you reply.

http://www.canadianlawyermag.com/Pratte-a-porter.html

This is a bit long but worth reading. I subsequently discovered that it is referred to in Guy Pratte's bio at Borden Ladner Gervais (www.blg.com). If we accept the highly laudatory profile, then his resignation might signal a very serious dynamic within the legal/judicial realm perhaps of seismic proportions. Now I wonder where BLG fits in the rarified world of the senior law firms?

Chris Budgell

Hi Chris,

Thank you very much for the e-mail. Never mind about the nice quiz but did you pass it ..... well did you?

Indeed, good questions can sometimes trump answers just look at the House of Commons where it's called "Question Period" not "Answer Period." Usually, the question reveals much more than the meandering, vague  reply you'll get from a government Member of Parliament.

Ah yes, Ms Blatchford. Had occasion to meet her at the Douglas Inquiry where I often sat next to here in the  gallery's front row. Was somewhat taken aback when she mentioned she was aware of CyberSmokeBlog - liked it's writing style and format. For the project you're spearheading, about which CSB will have more to say shortly, she'd be a good person with whom to keep in touch. Just tell her Clare sent you ..... that will guarantee you get your foot in the door - that or stepped on!

Our fondest memory was how she often went to the Tim Hortons on the main floor during breaks in the Douglas Inquiry - always offered to bring us back a coffee.

The article in The Canadian Lawyer was perhaps a harbinger of what was to come with Guy Pratte's resignation. The real test will arrive say three years down the road after the Inquiry has completed its work and the dust has had time to settle. Will the CJC have done anything significant to re-invent itself or will it still be same old, same old different pile?

And yes, we're going to miss Team Independent Counsel who affectionately came to know as "Pratte the Cat" and "Crain the Pain." Will be interesting to see who their replacements are - we'll just have to come up with some new names.

Thank you for the link to the Canadian Lawyer Magazine. Its articles are always very well-researched and written.

Sincerely,
Clare L. Pieuk
Pratte -a-porter
Written by Richard Cleroux
Issue Date: July 2008

It may have been Sigmund Freud who described us as little more than the grown adults of the children we once were.

That may apply to Guy Pratte, one of the best civil litigators in the country, the lawyer all politicians and bureaucrats want when they are called up before a Royal commission. He defended Jean Chrétien’s right-hand man Jean Pelletier at the Gomery sponsorship scandal inquiry in 2005, and lately he’s been at the side of former prime minister Brian Mulroney before the Commons ethics committee and, soon, before a commission of inquiry.

Peel him back and what you find inside Guy Pratte inevitably goes back to a particular Royal commission in the summer of 1975 in a crowded room in the law building of Montreal’s McGill University. The inquiry was set up by then-prime minister Pierre Trudeau to investigate business practices at Air Canada that had strayed beyond its Crown corporation mandate. The chairman and chief executive officer of the airline was Pratte’s father, Yves Pratte, one of Quebec’s top business lawyers. That inquiry destroyed Yves Pratte, who was made the fall guy. He was never the same afterwards and it marked young Guy forever.

As CEO, the senior Pratte had tried to modernize the Crown-owned airline. Air Canada indulged in a little vertical integration — buying into the Sunset Crest resort in Barbados to help fill seats going south — against Crown corporation regulations, and making side deals with travel agencies — McGregor Travel in Montreal — also against the rules. Today those moves would pass unnoticed and even be great for business, but back then it was enough to warrant a public inquiry.

It attracted some of the best lawyers in Canada, including Jack Campbell, Richard Mongeau, and Yves Fortier. Trudeau appointed Justice Willard “Bud” Estey as commission head, but in the end it was Yves Pratte’s head they got. “My father was fired,” says his son. “I saw the letter from the guy in Saskatchewan” (likely Otto Lang, then transport minister). It was a shock to the young Pratte. His father was like a god to him. He didn’t believe such a thing could ever happen. “After that, I remember my father leaving the house in Montreal in the morning with a little serviette [briefcase] with a CV looking for a job.”

Despite his experience, the elder Pratte couldn’t find a job. His son recalls: “People would say ‘Oh no, we don’t want him; he’s tainted goods. He’s been fired from Air Canada.’ I don’t think he ever really recovered from that. It was a hurt that was always there because he had loved Air Canada, and although he was a lawyer, he would have gladly left law forever for the business world.”

Trudeau took pity on him, it was said, and in 1977 appointed Yves Pratte to the Supreme Court of Canada.

Ironically, the PM appointed Estey to the SCC bench the same day. The court was an honour, “but my dad wasn’t happy,” recalls the son. He stayed only two years, then left Ottawa and went back to Montreal. He died nine years later at age 63.

“Maybe it’s a total coincidence,” says Pratte, “but today I find myself representing people who are embroiled with public inquiries, parliamentary or otherwise.” And Pratte, a partner with Borden Ladner Gervais LLP, doesn’t think highly of them — abhors them, in fact. Thirty-three years later, he hasn’t forgotten what one inquiry did to his father. “Those public inquiries are very, very crude instruments,” he says. “I’ve seen first-hand the harm they can do to people’s reputations.”

Pratte does not like what inquiries stand for, how they are run, or the lack of basic human and legal respect he believes they have for individuals caught in their glare. “I think we fail to see how hurtful these things can be for people in the public eye,” says Pratte. “I have never understood why we require of our politicians a degree of sainthood that we are not prepared to live by ourselves, when in our offices and in our circles of friends we live in ways not much different from them. If we continue to ask for sainthood of our politicians it’s going to end up a pretty tight circle. Which is not to say you want to tolerate everything. It’s a question of measure and balance, and of tolerance. I may disagree with a lot of these people but generally they warrant a measure of respect.”

There must be a balance between what Canadians want from commissions and protection for the reputations of people who appear before them. It bothers Pratte that commissions are not subject to the same rules as a court of law simply because in a commission report there is no penal or civil judgment. “It doesn’t make sense,” he says, “that somebody before small claims court for a $10,000 judgment has more right to procedural rigour than somebody before a commission where their reputation can be ruined forever.”

Parliamentary committees can be even more damaging, he notes. He knows. “I went twice with Mr. Pelletier and once with Mr. Mulroney,” he says. What happened to his clients at the Commons ethics committee hearings soured him forever on politics. “At a parliamentary committee there are absolutely no rules. Zero rules. At least at inquiry commissions some rules of fairness apply. Parliamentary immunity means things are said that never would be said if MPs were subject to defamatory libel.”

He remembers New Democrat MP Pat Martin saying to Mulroney: “I won’t call you a liar, but I don’t want anyone here to think that I believe you.” Pratte says, “That sort of thing would never be tolerated in a court of law. Never, never, never!” Mulroney fumed at the insult and his son Ben, the television host, had to be restrained in the audience. “Parliamentary committees play with peoples’ reputations sometimes in a very dangerous and damaging way,” says Pratte. “I understand they have work to do, and it is a political forum. I suppose there is a political advantage to be gained from getting a big headline the next morning.

“I’ve said it many times in the Mulroney affair. It should resemble an ordinary court.” Pratte says. “We should at least try to respect the basic principles of fairness. I wanted to present myself in politics several times, but my experience as much with Mr. Pelletier as Mr. Mulroney left me discouraged by the performance of certain, but not all, MPs and the lack of concern with which they threw out any sort of accusation.”

He’s at the top of his game now, and although it had always been assumed he would go into law — call it the family profession: his father and grandfather were both on the Supreme Court, his great-grandfather was on the Quebec Court of Appeal, and an uncle in Federal Court — Pratte says he really wanted to teach. But his marks at Collège Jean-de-Brébeuf, the private college for Montreal’s elite, were rather disappointing. Like many young Canadians, a hockey career was in his heart. “He’ll never tell you this, but Pratte’s greatest ambition was to be a goalie in the NHL. But that went out the window when his school team lost a game 34-0,” laughs George Hunter, a colleague at BLG’s Ottawa office.

So off Pratte went to the University of Western Ontario, where he fell in love with philosophy — philosophy of law in particular. He won a gold medal, which helped get him into the University of Toronto. It wasn’t until halfway through his master’s program that he even thought about becoming a lawyer, but only to make getting a job teaching philosophy of law easier. That led him to the joint civil and common law program at Sherbrooke and Dalhousie universities, not bad for a philosopher. He began his legal career in 1984. Today, Pratte splits his time between the litigation departments of BLG’s Ottawa and Montreal offices, earning the respect of many colleagues.

It was noted Ottawa lawyer David Scott who originally recruited Pratte away from Blake Cassels & Graydon LLP to Scott & Aylen, which later merged with BLG. “He’s a very important lawyer in this law firm,” notes Scott. Everyone’s offices at BLG in Ottawa are the same size, but Pratte sits on the firm’s prestigious 11th floor, two doors away from Scott. By way of praise, Scott pretends he’s jealous about Pratte’s performance at the Gomery inquiry. “Gomery is a source of irritation around here,” he says. Political commentator “Ian MacDonald wrote a column that Pratte was the best lawyer at the inquiry. Well I was one of those other lawyers,” cracks Scott. “So what am I supposed to do? Sit still and take that? Should I phone Ian and say, ‘You’re absolutely right?’ Look — Pratte is a wonderful lawyer, provided he’s not being compared with me,” says the senior partner.

“Guy has all the qualities of intelligence and good balanced judgment and persuasiveness that make him an excellent litigator,” says Blakes’ Neil Finkelstein, who as counsel for the Gomery commission went head-to-head with Pratte.

Interesting cases started coming early in his career, and Pratte talks about them the way a parent waxes on about raising his kids. In 1986, he represented Chateau-Gai Wines Ltd., after some other Ontario wines had shown traces of chemical residue. “My job was to make sure we got exculpated,” Pratte recalls. It was — what else? — a commission of inquiry, his first. Pratte pleaded well and cleared the firm of wrongdoing.

Justice John Osler said: “Mr. Pratte, this is the best commercial I’ve ever heard for Chateau-Gai Wines.”

In 1987, he represented René Fontaine, a Franco-Ontarian cabinet minister from Hearst, Ontario, at — what else? — a public inquiry. Fontaine owned shares in a near-worthless mine while he was Ontario mines minister.

Definitely a no-no. Attorney general Ian Scott needed a French-speaking lawyer for Fontaine, so he called his friend Don Brown who sent Pratte. “I was only a two-year lawyer,” he remembers. “I did not have the legal skills but I had the linguistic skills. That’s why I was picked. It was my first big media case.” This time, Pratte lost — Fontaine had to resign — but the young lawyer had met a lot of influential Ontario politicians, most of them Liberals.

And it also gave the transplanted Quebecker his first taste of Franco-Ontarian life: “One time we went into a McDonald’s up north and I was astounded to hear everybody speaking French; it was just like in Quebec.”

And now he works easily in both jurisdictions. The batonnier of the Quebec Bar Association, Gérald Tremblay, says Pratte is “just as at ease in Ontario as in Quebec waters.”

Also in 1987, women’s rights champion Margaret Tomaine tried to leave her Ontario women teachers’ union to join the male teachers’ union, effectively making it gender-neutral. Pratte went to a hearing for her. It ultimately went all the way to the Human Rights Commission, and today all Ontario teachers belong to non-gender-specific unions. In 1991, he scored big with Franco-Ontarians. The Ontario government had put the French-language public school board in Ottawa-Carleton under trusteeship. Pratte challenged the trusteeship, and lost, but when he attempted to get the funding formula changed, he won. He was a hero in French-speaking Ottawa.

It’s cases like these that have colleagues like Ronald Caza, a noted Franco-Ontarian lawyer with Heenan Blaikie LLP, commenting: “Pratte is a lawyer who believes very, very strongly that lawyers have an obligation to be the very best they can be both for the client and for the profession.”

After those notable cases, a political career loomed. He was close to the Liberals and became a constitutional adviser to Jean Chrétien. In 1993, Chrétien wanted Pratte to run as a Liberal, but party organizers had chosen Matane, a riding far from Ottawa. “I decided not to do it because of my legal career,” recalls Pratte. In 1994, the Liberals wanted him again, this time for Ottawa East. “I did think about it, but it didn’t work out,” he says.

Politics was on the backburner and the focus was back on law, even if some cases turned into a circus. In 2005, Pratte represented the CRTC in the famous CHOI censorship case. The CRTC argued radio host Jeff Fillion had been making racist, sexist, and xenophobic remarks on the popular Quebec City station. Ratings were going through the roof. The CRTC had no power to impose fines, only pull the station’s licence. It was a tough case.

CHOI hired flashy Quebec lawyer Guy Bertrand, French cuffs and all. Bertrand made an unusual move. He showed up at the Gomery inquiry — taking place elsewhere in Ottawa and where Pratte was representing Pelletier in the hearing room — and began making his case for CHOI in the corridor outside. It had nothing to do with the Gomery ad-scam inquiry, but Bertrand soon had an angry crowd on his side. It was legal showbiz — Quebec style. Pratte did not take the bait. He stayed inside and waited for the actual CRTC hearing to make his case. He won, even after appeals.

Pratte is understandably reluctant to discuss one of his most high-profile situations, representing Pelletier before Gomery, because a case arising out of the commission report is still before the courts.

On January 12, 2005, Pratte first accused Gomery of not conducting his commission properly and being biased. Almost a year later, after the report came out, Pratte filed an application in Federal Court to set aside the portions about Pelletier, charging again that Gomery did not handle the commission properly, that there were appearances of bias, and that the evidence did not warrant the conclusion. The case was finally heard in Federal Court in February. A ruling is expected this summer.

His successes have been many but not all have drawn unanimous praise.

Pratte represented the Canadian Medical Association in the famous Chaoulli v. Quebec (Attorney General) case. That 2005 Supreme Court decision dealt a hard blow to public health care, opening the door to privatized medicine. “We weren’t against public health,” says Pratte, “but, as we say, it has to work; otherwise give it up.” Pratte uttered a now-famous line on the steps of the Supreme Court after the decision: “Health care delayed is health care denied.” He admits saying it, but says someone else on the CMA legal team dreamed it up.

Quebec judges remember Pratte for representing Justice Jean-Guy Boilard, who recused himself during a big biker trial after the Canadian Judicial Council scolded him publicly for his testy behaviour in court. The Quebec attorney general said Boilard couldn’t just recuse himself and ordered him back to work. The trial had already cost millions and the government didn’t want to start over. Tremblay remembers the case. It took all 26 members of the Canadian Judicial Council, gathered on a Sunday afternoon, to make the precedent-setting decision that the CJC has jurisdiction over the conduct, but not the judicial decisions, of judges, which have to be appealed through the courts. They reversed the AG’s decision 26-0 in Boilard’s favour.  “That was a good one,” recalls Tremblay. “It went right to the basis of law.”

As a litigator, Pratte is also dedicated to pro bono work and spearheaded the creation of a pro bono program in Montreal. He also gives seminars to judges. “For me, teaching is advocacy,” he says. “At the end of my career I would like it for some university to allow me to teach law pro bono. I find it invigorating to be with students.” Tremblay marvels that, after only a few years with his Quebec bar, Pratte is already giving comparative law courses to civil law practitioners. “That’s not easy.”

In Ottawa he is active with the National Arts Centre and with Opera Lyra, raising hundreds of thousands of dollars for the two cultural institutions. The NAC connection came about when he represented the centre in a weird case with Ottawa Senators hockey star Alexei Yashin. Yashin had given a $1-million donation to the NAC and obtained a tax receipt. It was later discovered that, as part of the deal, the NAC had to hire his mother for 10 years at $85,000 a year with little clear stipulation about what she would be doing. It was an illegal tax receipt, recalls Pratte. The donation was returned and Mrs. Yashin was fired — nobody ever went to court.

Pratte admits he is a driven when it comes to law, but he’s never figured out why. “I’ll ask myself why until I die,” he laughs. “The only thing is that I inherited from my father a sense of satisfaction in doing one’s best, and that is paramount and will always be for me and whether one gets accolades or not, is not important.”

Another BLG colleague, Peter K. Doody, who represented Chrétien at the Gomery inquiry, also describes Pratte as driven. “He wants to master every one of his cases,” says Doody. “He wants to get it absolutely right every time, and leave nothing undone. And he expects the same energy and commitment from those who work with him. He’s very intense. When he joined the Quebec bar in 2002, he had to pass the transfer exam, which is very difficult. Eighty per cent fail. Pratte studied all the time, every spare second he had, and he passed. Once he decides something, he doesn’t give up. Sheer commitment.”

He does take a break now and then and Pratte’s idea of a good time is running marathons or going on a long bike ride with his 23-year-old son, Michel, who is studying business at the London School of Economics. So far, the son’s shown no interest in law. Pratte has been married to his wife Mary, a noted expert on peonies, for 31 years. “I have this theory that if a hard-working, dedicated, hard-nosed lawyer has a lovely wife, there must be some redeeming feature in that guy,” says David Scott. “She’s a sweetheart and she looks after him.”

He may have been discouraged about politics, but it has not discouraged him from fighting for politicians.

What politics has lost, the law has won. In the hearing room he is nothing sort of fearsome, defending clients with every ounce of energy. Could it be because of, as he says, what he’s seen, or is it rather a boy still fighting a battle he was too young to fight so long ago?

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