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Hello everybody, Welcome to 
another episode of studying Law 

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around the world. 
Today I have the opportunity to 

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interview Marco Falco. 
Marco has an incredible 

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experience and story. 
He's a proud UFT alumni all the 

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way from bachelors to his JD and
one who has been very active in 

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the universities activities as 
well. 

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And also he's a partner at 
Talking Mains and works 

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especially with appellate work. 
So just wanted to really thank 

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you for your time and appreciate
you joining us today. 

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Thank. 
You, Marco. 

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Thanks so much, Claudio. 
It's a sincere pleasure and 

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honor to be here today. 
I'm happy to be part of this 

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initiative and and the podcast 
generally. 

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Thank you so much. 
Can you tell us a little bit 

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about yourself to start off this
episode? 

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Yeah, of course. 
I'm so born, bred and raised in 

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Toronto in Townsview, very 
middle class background. 

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I'm a proud member of the LGBT 
community as well. 

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So I effectively started my sort
of legal journey back in 

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undergrad at the University of 
Toronto. 

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I did a specialist degree in 
English literature with a major 

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in Italian literature. 
I went on after that to complete

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my masters degree in English at 
the University of Toronto as 

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well. 
And then following that, I was 

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really interested in pursuing 
the PhD route. 

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I really wanted to become an 
English professor and I really 

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wanted to become an English 
professor of American 

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literature. 
So after my masters, I had 

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applied to several Ivy Leagues 
in the United States. 

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And this is a lesson about why 
certain life trajectories aren't

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necessarily failures when when 
you see them as such in your 

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trees. 
But I didn't get in to any of 

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the PhD programs I wanted. 
I think I got shortlisted for 

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one of the Ivy Leagues. 
And as a consequence of that, I 

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had banked my L SAT several 
years ago prior to that during 

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my undergrad, and I wasn't 
exactly sure what I was going to

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do. 
I was accepted at the University

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of Toronto PhD program in 
English literature. 

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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 

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particularly good for humanities
professors at the time that I 

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graduated in the in the early 
2000s. 

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And so with that, I always had 
an interest in reading and 

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writing and so forth. 
So I thought, let me parlay this

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and let me see if the University
of Toronto will take a late 

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application to the Faculty of 
Law. 

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And fortunately I had, but there
were amazing administrative 

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staff who worked at the faculty 
and somehow did their magic. 

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And the next thing you know, I 
was enrolled in the JD program 

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at the University of Toronto and
completed a law degree. 

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I will say that I sort of sat in
law school for the first three 

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months and wondered what I was 
doing there and why I wasn't 

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pursuing studies and Chaucer and
Shakespeare and the things that 

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really, really interested me and
why am I looking at supply 

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demand for curves in contract 
law and studying the law of the 

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law and economics of Canadian 
contracts. 

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So it took a while and then I 
suddenly sort of felt 

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reinvigorated intellectually. 
And I would say by about the 

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spring, I really started to take
a deep and abiding interest in 

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in the law, how it works. 
One of my amazing professors at 

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the Faculty of Law once said to 
me, the light bulb will go on 

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and it probably won't go off 
until March or April. 

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But when it does, you'll start 
to understand how all these 

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various puzzle pieces that 
you've been introduced to fit 

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together. 
And literally that moment does 

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happen. 
And suddenly it makes sense. 

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Like, oh, there's this thing 
called contract law and tort law

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and criminal law and 
constitutional law. 

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And how do they, how do they all
operate as a unified pole in a 

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democratic society? 
And so that that is effectively 

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my journey. 
And then I essentially started 

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as a summer student at Torkin 
Manes. 

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And here we are 20 something 
years out. 

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I don't want to think about it, 
but I was born, bred and raised 

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here. 
And I'm a proud member of the 

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firm and now a partner who 
practices in appellate 

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litigation and judicial review. 
So that's how I ended up here. 

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And that's that's me. 
Perhaps a long winded 

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explanation? 
No, that's fantastic. 

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I'm, I'm glad to always hear a 
little more about your story and

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especially how maybe law not 
being your first choice and that

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being a very successful 1. 
So that's always encouraging to 

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hear and to learn and you've 
built a strong practice doing 

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appellate litigation, judicial 
reveal and I'd love to hear a 

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little more about that. 
What led you to focus on this 

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area of law after? 
All it's really interesting. 

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Not none of it was intuitive. 
I didn't come to my firm, you 

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know, imagining that this would 
be my career sort of 20 years 

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out. 
I thought it probably would have

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ended up in something a little 
more traditional like commercial

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litigation or some type of 
general litigation, health law 

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and so forth. 
The way that it kind of evolved 

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was that I suddenly took more of
an interest, I would say, in 

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reading and writing about the 
law and not to say that facts 

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and evidence and so forth are 
not important. 

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They in fact drive all the 
decisions that that I argue. 

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But I had a particular interest 
in wanting to pursue the law 

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proper. 
And so I naturally gravitated 

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towards the partners that had 
practices and things like public

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law, administrative law, and who
appeared before the Divisional 

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Court and the Court of Appeal. 
And that intellectual hook, I 

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think got me. 
The beauty of what I do is that 

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because I am a generalist, which
is somewhat of a rarity in our 

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perfection, everyone's 
specializes in everything these 

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days. 
But because I am a bit of a 

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generalist, it means that every 
day something new is landing on 

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my plate and I could be arguing 
in an appeal in a construction 

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litigation matter and the next 
day be doing something in civil 

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sexual assault. 
So it runs the gamut. 

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And the skill set that I bring 
to it is that both clients and, 

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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 

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divisional court works, what are
the judges actually looking for?

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And because this is a second 
kick at the can, effectively, it

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also sort of draws in how a 
judge may have gotten the 

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underlying decision right or 
wrong, which to me is 

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fascinating because it involves 
a whole other intellectual 

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exercise that I think is 
sometimes not available 

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naturally at the trial level, 
but certainly on appeal. 

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That's fantastic getting you a 
little bit about your story, a 

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little bit about, you know, the 
area you specialize in. 

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Another, I feel like a highlight
of your resume and all of that 

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is that you've been very 
involved in various mentorship 

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programs in the University of 
Toronto and outside of it as 

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well recently, I think a chapter
of the Italian students and just

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so many amazing different 
things. 

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And I'd love to hear a little 
more about what inspired you to 

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become a mentor and to be so 
committed to giving back to the 

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legal community. 
Thank you. 

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I mean, I, I try to do my level 
best while managing a sort of 

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practice on the side. 
It's a, it's a hard thing to do,

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but it's such an important thing
to do it. 

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Early on in my career, I had 
mentors both outside of my firm 

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and within the firm itself who 
either showed me the ropes, 

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taught me what makes an 
effective litigator and what 

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makes for effective advocacy and
taught me how to sort of cope 

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from a life skills perspective. 
Anyone listening to this will 

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know that litigation is not an 
easy swag. 

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It's immensely stressful. 
It can sort of quite large 

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demands on your life, on your 
mental health, on your 

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well-being. 
Having a mentor in my view is 

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sort of critical not only to 
sort of learn about the 

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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 

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sounding board for someone to 
say, you know it's going to be 

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OK. 
This is how I cope with 

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strengths. 
This is how I cope with multiple

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deadlines. 
This is how I cope when I'm 

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losing a case on an appeal or 
have lost a case. 

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This is how you deliver good 
news to a client. 

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This is how you deliver bad news
to a client. 

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Having that type of sounding 
board was so important to to my 

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career. 
So it was almost as though when 

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I gravitated into this role as 
as mentor to both students 

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within my firm, outside my firm 
within the faculty of law at the

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University of Toronto. 
You mentioned various other 

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organizations, LGBT 
organizations where I try to 

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mentor students and also 
students from historically 

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disadvantaged groups who in my 
view need extra mentorship 

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because they have to face other 
obstacles in addition to the 

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difficulties of litigation. 
Having committed, having others 

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commit their time and resources 
was so valuable to my career 

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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 

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people thrive. 
And I cannot tell you how many 

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students have walked across my 
desk and I later encounter them 

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that the faculty of law or 
encounter them in litigation of.

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I've had people I've mentored 
actors opposing counsel against 

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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 

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love to see others thrive. 
And there's a lot of pessimism 

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in the world these days. 
And I feel that committing 

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yourself to optimism through 
mentorship is is a way to make 

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the world better generally. 
And perhaps that's corny, but so

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be it. 
I love that it tells about how 

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how genuine your efforts are and
taking into consideration for 

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for how long you've done this 
now. 

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And I'm sure, you know, seeing 
students at your firm and all of

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that in this experience, what 
kind of advice do you usually 

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give to law students or young 
professionals just starting out?

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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 

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what your superpower is as a 
litigator, It's in my view, 

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impossible to be good at 
everything. 

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You can't be good at 
examinations, oral discovery, 

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the written work that's involved
drafting, and so forth. 

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We all, we all have our 
strengths and weaknesses. 

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We know where they lie. 
Work on your weaknesses and 

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continue to educate yourself so 
that you can overcome those 

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weaknesses. 
But most important, learn how to

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leverage your superpowers. 
I realized at a young age, given

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my background in English 
literature, that I loved reading

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and writing. 
And that was going to be where I

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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. 

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And it wasn't exactly 100% 
certain, but I knew that that 

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was the skill set I needed to 
promote. 

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And so I started to do things 
like write a lot and publish 

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articles about various legal 
topics and sort of show the 

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world at large. 
This is what I'm good at. 

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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 

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course, developed over time as 
well. 

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My, my sort of strongest, 
strongest advice is figure out 

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your superpower. 
And then the second sort of 

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component of that is for someone
to figure out what they love. 

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And it's really hard in the law 
because you necessarily graduate

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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 

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move. 
And I saw a lot of my friends 

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sort of start at places that 
didn't seem particularly well 

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suited to them. 
And they did a lot of shifting 

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early on in their career as a 
consequence. 

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You have to figure out what's 
going to make you tick. 

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You know, it could be corporate 
law, It could be litigation 

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generally, but this job is very,
very difficult. 

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You have to have a lot of 
friends in it. 

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You have to have mentors. 
But the other thing you have to 

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do is want to wake up in the 
morning to do it. 

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And if you don't have that type 
of drive, if what you're doing 

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seems utterly and completely 
meaningless to you, you will not

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thrive in this profession. 
You will just sort of do your 

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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 

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something you want to be doing 
every. 

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Day well, that makes a lot of 
sense. 

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Appreciate you sharing those. 
And I feel like they they could 

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definitely apply to a lot of 
different people getting to 

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listen to this episode and even 
for myself here. 

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00:12:40,050 --> 00:12:42,900
And if we may go back a little 
bit to your practice. 

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00:12:42,910 --> 00:12:45,940
I know that your practice covers
a lot of different things, 

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00:12:45,950 --> 00:12:48,580
including, you know, public 
commercial law issues. 

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00:12:48,590 --> 00:12:52,000
And you just said that being a 
generally something new comes up

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00:12:52,010 --> 00:12:55,140
every day. 
So how do you approach such a 

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00:12:55,150 --> 00:12:57,940
complex matter in in specially 
at the appellate? 

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00:12:57,950 --> 00:13:00,200
Level. 
It's really hard and it's really

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00:13:00,210 --> 00:13:03,210
interesting. 
The truth about that is 

238
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genuinely, sometimes I get 
pulled into files and I know 

239
00:13:06,500 --> 00:13:09,190
absolutely nothing about the 
subject matter. 

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00:13:09,200 --> 00:13:13,680
So there's a learning curve. 
And so you start with, you know,

241
00:13:13,690 --> 00:13:17,950
very basic things like let me 
Google what a debenture contract

242
00:13:18,000 --> 00:13:21,270
is and, and figure out and how 
that works or what's a 

243
00:13:21,280 --> 00:13:23,950
syndicated loan. 
You know, there, there are many,

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00:13:23,960 --> 00:13:27,510
there are many sort of things 
that sort of start you off. 

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00:13:27,520 --> 00:13:30,010
There's a lot of resources 
available and you might start 

246
00:13:30,020 --> 00:13:33,170
with textbooks and so forth. 
And then once you have a clue, 

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you can then go to the 
underlying judgment. 

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00:13:35,740 --> 00:13:39,770
Typically, most judges do an 
excellent job at first level of 

249
00:13:39,780 --> 00:13:43,790
sort of setting out the legal 
issues, getting the reader 

250
00:13:43,800 --> 00:13:47,570
acquainted with the facts. 
And you start with the record 

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00:13:47,580 --> 00:13:50,680
there. 
And over time, it's just a lot 

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00:13:50,690 --> 00:13:52,970
of reading and a lot of hard 
work. 

253
00:13:53,030 --> 00:13:57,660
And suddenly you've gone from 
zero to 100 and you're before an

254
00:13:57,670 --> 00:14:00,730
appellate court where you know 
the judges are incredibly 

255
00:14:00,740 --> 00:14:04,020
intelligent, will often have 
very pointed questions for you. 

256
00:14:04,030 --> 00:14:07,000
There's, there's not a lot of 
room in, in appellate litigation

257
00:14:07,010 --> 00:14:09,760
to sort of sit there and make 
your arguments and resuscitate 

258
00:14:09,770 --> 00:14:11,960
the facts. 
You usually get 3 minutes into 

259
00:14:11,970 --> 00:14:14,560
your submissions and then the 
panel is just at you with a 

260
00:14:14,570 --> 00:14:17,580
million questions because they 
know the material and they're 

261
00:14:17,590 --> 00:14:21,360
incredibly smart and so forth. 
But I kind of have to remind 

262
00:14:21,370 --> 00:14:24,640
myself, no matter how many, no 
matter how apprehensive I may be

263
00:14:24,650 --> 00:14:27,460
about my lack of knowledge, 
let's say at the outset of a 

264
00:14:27,470 --> 00:14:31,000
file, I'm going to get to a 
place where the only other 

265
00:14:31,010 --> 00:14:35,540
people as well versed in this 
material as I am usually my 

266
00:14:35,550 --> 00:14:39,480
opposing counsel. 
It's amazing how the law works 

267
00:14:39,490 --> 00:14:41,790
that way. 
And that's why I think, you 

268
00:14:41,800 --> 00:14:45,570
know, training, learning how to 
tackle a case from the outside, 

269
00:14:45,580 --> 00:14:48,110
particularly when you know 
nothing about it, and then 

270
00:14:48,120 --> 00:14:51,090
suddenly becoming an authority 
to get to that transition 

271
00:14:51,160 --> 00:14:54,750
involves a lot of time and it 
involves a lot of hard work. 

272
00:14:54,820 --> 00:14:58,190
But effectively, the skill set 
is always the same. 

273
00:14:58,200 --> 00:15:01,520
And at the appellate level and 
at the judicial review level, 

274
00:15:01,640 --> 00:15:04,230
which you're fundamentally 
looking for the two to three 

275
00:15:04,240 --> 00:15:07,150
issues that the court is going 
to entertain. 

276
00:15:07,160 --> 00:15:11,930
So this isn't about rehashing, 
you know, a 20 day trial and 

277
00:15:11,940 --> 00:15:15,050
going through every little piece
of evidence and every little 

278
00:15:15,060 --> 00:15:18,030
thing that the judge may or may 
have done right or wrong. 

279
00:15:18,080 --> 00:15:22,290
It's literally about feeding the
court legal questions and 

280
00:15:22,300 --> 00:15:25,140
saying, this is where I think 
the judge right, right or wrong 

281
00:15:25,150 --> 00:15:27,620
on two to three issues. 
And that's literally all you 

282
00:15:27,630 --> 00:15:30,920
have time for. 
So it's amazing how that process

283
00:15:30,930 --> 00:15:32,930
evolves. 
And I've done it so many Times 

284
00:15:32,940 --> 00:15:35,920
Now that I've literally have 
developed a system in a rhythm 

285
00:15:35,930 --> 00:15:38,600
to how I, I tackle things. 
And sometimes my clients will 

286
00:15:38,610 --> 00:15:40,970
come to me and they'll be like, 
OK, let's talk about this 

287
00:15:40,980 --> 00:15:42,660
appeal. 
And this is how I want things to

288
00:15:42,670 --> 00:15:45,480
go and so forth. 
And I, I sort of have to walk 

289
00:15:45,490 --> 00:15:49,800
them back and say, look, I, I 
appreciate how you want me to 

290
00:15:49,810 --> 00:15:53,020
tackle this, but I need to 
explain to you, this is my 

291
00:15:53,030 --> 00:15:55,580
system. 
So, you know, I'll, I'll need X 

292
00:15:55,590 --> 00:15:57,870
amount of time to sort of 
familiarize myself with the 

293
00:15:57,880 --> 00:15:59,980
file. 
And then we can meet and then we

294
00:15:59,990 --> 00:16:02,460
can talk and you can tell me 
your thoughts and then I'll tell

295
00:16:02,470 --> 00:16:04,980
you whether or not, you know, 
you've, you've got some merit 

296
00:16:04,990 --> 00:16:07,100
here. 
It's a fascinating process. 

297
00:16:07,110 --> 00:16:09,760
It's an intellectual process. 
And that's why I. 

298
00:16:09,770 --> 00:16:11,280
Love that one. 
Fascinating. 

299
00:16:11,290 --> 00:16:13,950
And I'm sure that over the 
years, different people have 

300
00:16:13,960 --> 00:16:15,450
different personalities and all 
of that. 

301
00:16:15,460 --> 00:16:18,250
But if you're if your work is 
just, you know, filling out a 

302
00:16:18,260 --> 00:16:21,460
form or, you know, doing the 
same repeated work, it 

303
00:16:21,470 --> 00:16:24,770
definitely gets old fast. 
So I feel like that's a way to 

304
00:16:24,780 --> 00:16:29,190
keep very alive, right? 
That's amazing. 

305
00:16:29,240 --> 00:16:32,870
Well, you were just saying how 
in in today's world, so much 

306
00:16:32,880 --> 00:16:36,170
comes up, so many different 
cases end up landing at your 

307
00:16:36,180 --> 00:16:38,930
table. 
And if I may ask as well, in 

308
00:16:38,940 --> 00:16:42,830
regards to, you know, the 
evolution, technology, AI and so

309
00:16:42,840 --> 00:16:47,570
forth, is there any of that that
you see applied in appellate 

310
00:16:47,580 --> 00:16:50,710
work these days? 
And even about the row of 

311
00:16:50,720 --> 00:16:54,430
appellate courts, do you see 
these evolving, Changing anyway?

312
00:16:54,520 --> 00:16:59,150
It's an excellent question. 
There's a lot I have to say 

313
00:16:59,160 --> 00:17:02,470
about that. 
Artificial intelligence, I think

314
00:17:02,480 --> 00:17:06,650
is, is slowly but surely 
revolutionizing the profession. 

315
00:17:06,700 --> 00:17:10,849
That being said, at the 
appellate level, what we have 

316
00:17:10,859 --> 00:17:15,030
now is a sort of patchwork quilt
of practice directions and 

317
00:17:15,040 --> 00:17:17,569
regulations across the appeal 
courts in Canada. 

318
00:17:17,880 --> 00:17:22,069
The genuineness is that the 
responsibility, and this is true

319
00:17:22,079 --> 00:17:25,190
of a Law Society of Ontario 
white paper that says this as 

320
00:17:25,200 --> 00:17:29,590
well, the responsibility for 
ensuring the integrity of 

321
00:17:29,600 --> 00:17:33,350
anything produced by AI remains 
with the lawyer. 

322
00:17:33,360 --> 00:17:37,550
And so the appellate courts are 
saying that even if judges do 

323
00:17:37,560 --> 00:17:39,830
want to use artificial 
intelligence, they have to be 

324
00:17:39,840 --> 00:17:42,130
incredibly careful. 
Even though the matters coming 

325
00:17:42,140 --> 00:17:44,630
before an appellate court are 
usually public record, they 

326
00:17:44,640 --> 00:17:47,150
aren't always. 
And so judges have been 

327
00:17:47,160 --> 00:17:52,220
cautioned about the sort of 
risks inherent in hallucinations

328
00:17:52,230 --> 00:17:55,780
and inaccuracies. 
The sort of second component of 

329
00:17:55,790 --> 00:18:00,430
that is the sort of bias that 
can arise where artificial 

330
00:18:00,440 --> 00:18:03,090
intelligence is being used and 
the decision making process. 

331
00:18:03,100 --> 00:18:06,000
And it's actually interesting. 
I wrote a paper in the Advocates

332
00:18:06,010 --> 00:18:09,520
Quarterly last year about the 
effect of artificial 

333
00:18:09,530 --> 00:18:12,290
intelligence on judicial review 
and administrative law and 

334
00:18:12,300 --> 00:18:14,690
public law. 
There's a lot of opportunity 

335
00:18:14,700 --> 00:18:17,050
there. 
You can imagine that a civil 

336
00:18:17,060 --> 00:18:21,230
servant who, for example, has 
800 cases in their caseload and 

337
00:18:21,240 --> 00:18:25,480
has to make 800 decisions, would
be particularly tempted to go 

338
00:18:25,490 --> 00:18:28,510
find an artificial intelligence 
program that can maybe narrow 

339
00:18:28,520 --> 00:18:31,350
things down, assist with the 
decision and so forth. 

340
00:18:31,360 --> 00:18:35,270
But there are fundamentally a 
lot of problems with that. 

341
00:18:35,470 --> 00:18:38,050
There's bias, there's 
inaccuracies, you know, there's 

342
00:18:38,060 --> 00:18:40,940
the degree of reliance. 
There are disclosure issues. 

343
00:18:40,950 --> 00:18:43,870
If you're a lawyer attacking a 
decision of an administrative 

344
00:18:43,880 --> 00:18:46,830
tribunal and you know that 
tribunal has used artificial 

345
00:18:46,840 --> 00:18:50,650
intelligence, I can tell you I 
would be demanding production of

346
00:18:50,660 --> 00:18:53,920
any form of artificial 
intelligence in the data sets 

347
00:18:53,930 --> 00:18:57,910
that were used to achieve the 
decision and so forth to see if 

348
00:18:57,920 --> 00:19:00,490
there's any, any grounds for 
attack. 

349
00:19:00,560 --> 00:19:03,340
The really interesting question 
in my view is that appellate 

350
00:19:03,350 --> 00:19:07,230
litigation and administrative 
law so far are very much based 

351
00:19:07,240 --> 00:19:11,730
on a 20th century model that 
never contemplated the use of 

352
00:19:11,740 --> 00:19:14,770
artificial intelligence in the 
decision making process. 

353
00:19:15,160 --> 00:19:20,580
I think, and I at least argue in
my paper that it's time to sort 

354
00:19:20,590 --> 00:19:23,980
of evolve the norms and 
understandings of things like 

355
00:19:23,990 --> 00:19:27,160
reasonable apprehension of bias,
the duty of fairness, the right 

356
00:19:27,170 --> 00:19:29,820
to be heard. 
What does that mean when there's

357
00:19:29,830 --> 00:19:33,540
potentially a robot somewhere in
the background assisting in a 

358
00:19:33,550 --> 00:19:36,140
decision that's going to 
fundamentally affect people's 

359
00:19:36,150 --> 00:19:38,010
lives? 
And that has a lot of 

360
00:19:38,230 --> 00:19:41,480
implications. 
So it's a sort of risk 

361
00:19:41,490 --> 00:19:44,380
opportunity calculus. 
And I don't know where I land 

362
00:19:44,390 --> 00:19:46,630
yet. 
I am a firm believer in the 

363
00:19:46,640 --> 00:19:49,160
regulation of artificial 
intelligence particularly is 

364
00:19:49,170 --> 00:19:53,580
used by state decision makers 
because I think they they have 

365
00:19:53,590 --> 00:19:56,460
to be bound by the rule of law 
as they always have been. 

366
00:19:56,530 --> 00:19:59,720
But we'll see where it goes. 
It's it's a really interesting 

367
00:19:59,730 --> 00:20:02,460
question and and props to you 
for for raising. 

368
00:20:02,470 --> 00:20:04,180
It thank you for for your 
comments. 

369
00:20:04,190 --> 00:20:05,820
I think those are very 
pertinent. 

370
00:20:05,830 --> 00:20:09,410
And as we definitely talk about 
that in in law school in 

371
00:20:09,420 --> 00:20:12,720
different circles, and we keep 
thinking about how, you know, 

372
00:20:12,730 --> 00:20:17,020
things will turn out and how you
know that usage will come up in 

373
00:20:17,110 --> 00:20:19,620
different ways in different 
spheres. 

374
00:20:19,770 --> 00:20:22,220
But especially when we talk 
about, you know, young 

375
00:20:22,230 --> 00:20:26,080
associates, it becomes a little 
interesting, especially on the 

376
00:20:26,090 --> 00:20:30,340
sense that a lot of young 
associate tasks are being in a 

377
00:20:30,350 --> 00:20:34,070
way products are coming into 
literally do that kind of 

378
00:20:34,080 --> 00:20:36,620
research. 
So when you get a mature lawyer,

379
00:20:36,630 --> 00:20:40,450
they already have the skills and
ability to be able to ask the 

380
00:20:40,460 --> 00:20:44,080
right questions and analyze it 
with a little more maturity than

381
00:20:44,150 --> 00:20:47,460
somebody just starting out. 
And I guess just time will tell 

382
00:20:47,470 --> 00:20:50,440
how that will play out, but it's
it's being definitely 

383
00:20:50,450 --> 00:20:53,180
interesting to see that. 
It's actually, I mean, you raise

384
00:20:53,250 --> 00:20:55,690
you raise such an important 
issue, which is the effect of 

385
00:20:55,700 --> 00:20:58,730
artificial intelligence on 
associate mentorship and 

386
00:20:58,740 --> 00:21:00,910
training. 
There is a lot of concern about 

387
00:21:00,920 --> 00:21:02,630
that. 
To your point, I can look at a 

388
00:21:02,640 --> 00:21:07,730
fact of maybe drafted by Chad 
GBT, not that not that I do, but

389
00:21:07,780 --> 00:21:10,330
I'm assuming that in theory I 
could look at one. 

390
00:21:10,340 --> 00:21:13,540
I can sort of realize almost 
immediately where I want to 

391
00:21:13,550 --> 00:21:17,110
argue what's wrong with it, what
isn't, what might be inaccurate,

392
00:21:17,120 --> 00:21:20,850
what couldn't be someone eight 
years, one to three as a young 

393
00:21:20,860 --> 00:21:23,190
lawyer doesn't have that skill 
set yet. 

394
00:21:23,280 --> 00:21:26,780
And so if we're going to just 
start delegating these tasks to 

395
00:21:26,790 --> 00:21:30,410
artificial intelligence, the 
fear that I have is, you know, a

396
00:21:30,420 --> 00:21:33,630
lawyer who's 20 years out, who's
been utterly reliant on AI is 

397
00:21:33,640 --> 00:21:36,810
not going to have the necessary 
level of judgment and critical 

398
00:21:37,160 --> 00:21:39,250
thinking skills that they may 
need. 

399
00:21:39,260 --> 00:21:43,020
And so, you know, depending on 
the firm, while you know, we're 

400
00:21:43,030 --> 00:21:46,190
fully supportive and we're happy
to use artificial intelligence 

401
00:21:46,850 --> 00:21:52,060
programs, we are in fact still 
very firmly committed as a firm 

402
00:21:52,070 --> 00:21:54,320
to ensuring that we're not 
letting the education and 

403
00:21:54,330 --> 00:21:59,700
mentorship part of of associate 
jobs suffer as a consequence of 

404
00:21:59,710 --> 00:22:03,740
artificial intelligence from 
becoming a partner in in the law

405
00:22:03,750 --> 00:22:06,120
firm structure. 
I see no, that's that's 

406
00:22:06,430 --> 00:22:09,840
reassuring to here in a way and 
very, very interesting to see 

407
00:22:09,850 --> 00:22:12,730
how it will play out. 
Moving on to another topic, 

408
00:22:12,770 --> 00:22:16,530
you've written a lot, not only 
for your appellate work as a 

409
00:22:16,540 --> 00:22:19,500
part of your job, but you've 
written quite a bit of 

410
00:22:19,510 --> 00:22:23,680
different, you know, op eds and 
opinion pieces and and about the

411
00:22:23,690 --> 00:22:25,440
legislation and all of that as 
well. 

412
00:22:25,530 --> 00:22:28,940
And I saw that one of your 
recent articles discussed the 

413
00:22:28,950 --> 00:22:32,960
duty of good faith negotiating 
commercial contracts. 

414
00:22:33,210 --> 00:22:36,000
I was wondering if you could 
tell us a little bit about that,

415
00:22:36,010 --> 00:22:40,120
about this contract series that 
you've been writing on. 

416
00:22:40,270 --> 00:22:43,900
And then I think that you've 
gone so long as writing about, 

417
00:22:43,910 --> 00:22:47,820
you know, contract law during 
the trade war and the, the key 

418
00:22:47,830 --> 00:22:50,060
lessons that business should 
keep in mind. 

419
00:22:50,070 --> 00:22:52,800
So I'd, I'd love to hear a 
little bit about that, Marco. 

420
00:22:53,050 --> 00:22:56,280
Yeah, of course, it's sort of, 
it's kind of amazing how a 

421
00:22:56,290 --> 00:23:00,920
larger social and political 
context can take over lawyers 

422
00:23:00,930 --> 00:23:04,040
minds and litigators minds. 
But this was true of the 

423
00:23:04,050 --> 00:23:06,840
pandemic and now we're sort of 
seeing it again. 

424
00:23:06,890 --> 00:23:08,680
You touched on this quite 
rightly. 

425
00:23:09,170 --> 00:23:12,380
These are the the US trade war 
against Canada and the 

426
00:23:12,390 --> 00:23:16,050
imposition of tariffs. 
There are a lot of implications.

427
00:23:16,060 --> 00:23:18,440
We've had a lot of clients 
contacting us. 

428
00:23:18,450 --> 00:23:22,440
And of course, we we sort of 
offered the perspective from the

429
00:23:22,500 --> 00:23:25,630
Canadian common law and contract
law perspective. 

430
00:23:25,680 --> 00:23:30,410
But all the doctrines that sort 
of became important and 

431
00:23:30,420 --> 00:23:32,970
prominent in the pandemic. 
And I'm talking about things 

432
00:23:32,980 --> 00:23:36,150
like the doctrine of frustration
when your contract gets 

433
00:23:36,160 --> 00:23:39,870
frustrated by a supervening 
event or, you know, whether or 

434
00:23:39,880 --> 00:23:43,210
not a commercial contract has a 
forced measure clause that takes

435
00:23:43,220 --> 00:23:47,230
into account circumstances that 
a party has no control over. 

436
00:23:47,440 --> 00:23:49,920
When can those be exercised? 
How are they exercised? 

437
00:23:49,930 --> 00:23:54,750
And we're getting numerous calls
from clients who are sort of 

438
00:23:54,760 --> 00:23:57,190
raising the same issues. 
The good news is we've kind of 

439
00:23:57,200 --> 00:24:01,120
done a lot of legwork during the
pandemic because these were 

440
00:24:01,130 --> 00:24:04,220
issues that were raised then, 
but now that the US tariffs have

441
00:24:04,230 --> 00:24:07,240
gone into effect against the 
Canadian businesses where 

442
00:24:07,250 --> 00:24:10,740
Canadian contract law applies, 
there's there's been a myriad of

443
00:24:10,750 --> 00:24:12,870
issues. 
So that's sort of something that

444
00:24:12,880 --> 00:24:15,820
I've been, I've been touching on
just because my clients have 

445
00:24:15,830 --> 00:24:18,780
been raising it and have been 
have been quite concerned 

446
00:24:18,790 --> 00:24:22,440
naturally about what, you know, 
doctrines that deal with 

447
00:24:22,450 --> 00:24:26,280
supervening events like the 
imposition of tariffs by by 

448
00:24:26,290 --> 00:24:29,020
foreign governments could have 
on Canadian contract law. 

449
00:24:29,060 --> 00:24:32,080
So there's sort of that. 
And then the good faith piece is

450
00:24:32,090 --> 00:24:33,920
something that's near and dear 
to my heart. 

451
00:24:33,930 --> 00:24:36,220
I've written a lot about good 
faith. 

452
00:24:36,230 --> 00:24:39,670
Good friend from law school, 
Brandon Kane wrote a 2 volume 

453
00:24:39,680 --> 00:24:42,260
tone. 
And I think Claudio has part of 

454
00:24:42,270 --> 00:24:44,860
your amazing 75 years 
initiative. 

455
00:24:44,870 --> 00:24:48,770
You may have spoken to to 
Brandon, he's at parties and he 

456
00:24:48,780 --> 00:24:52,270
wrote this incredible tone on 
the duty of good faith and I've 

457
00:24:52,280 --> 00:24:56,110
kind of picked up on it as well.
And we both he and I talk about 

458
00:24:56,120 --> 00:24:58,820
this a lot. 
And so I recently gave a talk at

459
00:24:58,830 --> 00:25:03,040
the Advocate Society about 
whether or not there's a duty to

460
00:25:03,050 --> 00:25:05,210
negotiate a contract in good 
faith. 

461
00:25:05,220 --> 00:25:08,300
And that is before the contract 
is actually entered into simply 

462
00:25:08,310 --> 00:25:10,870
because the duty of good faith 
is we've always understood it 

463
00:25:10,920 --> 00:25:14,030
only applies when the parties 
enter into a contract. 

464
00:25:14,040 --> 00:25:17,390
But what happens before the 
contract is entered into? 

465
00:25:17,400 --> 00:25:21,750
And there's been a sort of 
common law understanding, shall 

466
00:25:21,760 --> 00:25:25,570
we say, the latest is the 
decision of the British Columbia

467
00:25:25,580 --> 00:25:28,730
Court of Appeal called Ocean, 
something you're going to have 

468
00:25:28,740 --> 00:25:31,790
to forgive me for not 
remembering the second word, but

469
00:25:31,800 --> 00:25:35,900
it came out last December and it
effectively affirmed that there 

470
00:25:35,910 --> 00:25:39,130
is no duty to negotiate a 
contract in good faith if the 

471
00:25:39,140 --> 00:25:42,210
parties have not properly 
entered into a contract. 

472
00:25:42,320 --> 00:25:45,020
And so there's there's no good 
faith duty to perform. 

473
00:25:45,080 --> 00:25:47,980
That being said, as with law, 
there's a rule and then there's 

474
00:25:47,990 --> 00:25:50,850
a million exceptions. 
And the Supreme Court of Canada 

475
00:25:51,150 --> 00:25:54,980
came out with a decision early 
in January involving the Quebec 

476
00:25:54,990 --> 00:25:57,960
attorney general and seemed to 
suggest that under the Quebec 

477
00:25:57,970 --> 00:26:02,060
Civil Code, which is where the 
common law got a lot of its good

478
00:26:02,070 --> 00:26:05,480
faith principles from. 
But under the Quebec Civil Code,

479
00:26:05,530 --> 00:26:10,200
if the parties in fact have an 
obligation to negotiate anything

480
00:26:10,210 --> 00:26:12,700
in their contract that's 
expressly set out, for example, 

481
00:26:12,710 --> 00:26:15,800
in a lease, there might be a 
renewal provision that says the 

482
00:26:15,810 --> 00:26:18,790
parties have to negotiate a 
renewal and so forth on the 

483
00:26:18,800 --> 00:26:21,550
Supreme Court of Canada says 
absolutely, in those cases, 

484
00:26:21,560 --> 00:26:25,040
there is a duty of good faith 
and that applies simply because 

485
00:26:25,050 --> 00:26:28,140
the duty is tied to the contract
itself. 

486
00:26:28,150 --> 00:26:30,920
So it's going to be interesting 
to see where the Supreme Court 

487
00:26:30,930 --> 00:26:34,500
of Canada lands at common law on
this issue. 

488
00:26:34,510 --> 00:26:37,740
But these are the sorts of 
burgeoning things that raise my 

489
00:26:37,750 --> 00:26:41,540
intellectual curiosity and 
hopefully a a lot of your 

490
00:26:41,550 --> 00:26:45,370
podcast members as well. 
And so I write a lot about it, 

491
00:26:45,380 --> 00:26:48,860
yes, partly for shameless self 
promotion and so forth for 

492
00:26:48,870 --> 00:26:52,200
clients, but also because I'm 
just genuinely really interested

493
00:26:52,450 --> 00:26:56,030
in in the directions that that 
that the law will take needs to 

494
00:26:56,040 --> 00:26:57,720
be this issue. 
That's fantastic. 

495
00:26:57,730 --> 00:27:01,600
Well, thank you for sharing that
to to wrap up today's episode, 

496
00:27:01,650 --> 00:27:05,520
I'd love to to go back to one of
the topics that we spoke about. 

497
00:27:05,530 --> 00:27:09,000
We spoke about, you know, young 
lawyers, law students starting 

498
00:27:09,010 --> 00:27:11,720
out. 
And I know that a lot of people 

499
00:27:11,730 --> 00:27:14,880
more and more want to build a 
meaningful career, a career with

500
00:27:14,890 --> 00:27:17,360
purpose and one that will be 
long lasting. 

501
00:27:17,370 --> 00:27:20,200
We know that probably this this 
generation entering the 

502
00:27:20,210 --> 00:27:23,520
workforce now will probably be 
there for for quite a while. 

503
00:27:23,530 --> 00:27:26,560
And and of course there's always
room to, you know, change 

504
00:27:26,570 --> 00:27:29,440
careers and all of that. 
But we, we don't start a career 

505
00:27:29,450 --> 00:27:31,940
looking into getting out of it 
for the most part, I'm pretty 

506
00:27:31,950 --> 00:27:34,800
sure looking into, you know, 
keeping it meaningful with 

507
00:27:34,810 --> 00:27:37,800
purpose and sustainable. 
I wonder if there is a piece of 

508
00:27:37,810 --> 00:27:42,320
advice that you give to those of
us starting out in this upcoming

509
00:27:42,330 --> 00:27:44,800
years. 
Here, the first thing that I 

510
00:27:44,810 --> 00:27:48,490
think is important is that when 
you're starting off as a lawyer,

511
00:27:48,500 --> 00:27:51,790
yes, you have to learn your 
skill set, be it as a corporate 

512
00:27:51,800 --> 00:27:54,900
lawyer who does transaction work
or as a litigator who's who's 

513
00:27:54,910 --> 00:27:57,840
going to be appearing in court. 
So substantively, of course, you

514
00:27:57,850 --> 00:28:00,410
have to learn the practice of 
law. 

515
00:28:00,460 --> 00:28:02,310
That's fine. 
And that's something that will 

516
00:28:02,320 --> 00:28:06,110
evolve naturally between years 
1:00 to 6:00 and 7:00. 

517
00:28:06,280 --> 00:28:10,370
But while you're doing that, the
most important thing that you 

518
00:28:10,380 --> 00:28:15,390
should be doing, and Claudio, 
you are Superbas, is building 

519
00:28:15,400 --> 00:28:19,170
out a network. 
And that doesn't mean just a 

520
00:28:19,180 --> 00:28:22,570
network of potential clients 
down the road that you know, so 

521
00:28:22,580 --> 00:28:26,790
that you can become a rainmaker 
and and and make a lot of money.

522
00:28:27,080 --> 00:28:29,990
There's that, of course, and 
that, you know, the business of 

523
00:28:30,000 --> 00:28:33,450
law is important without 
question, but also a network of 

524
00:28:33,460 --> 00:28:39,340
mentors, a network of friends in
the profession who do the same 

525
00:28:39,350 --> 00:28:42,720
thing that you do, joining 
associations that are involved 

526
00:28:42,730 --> 00:28:46,390
in the industries that you're 
going to see yourself in 20 

527
00:28:46,400 --> 00:28:48,960
years, acting as an advocate 
for. 

528
00:28:48,970 --> 00:28:52,260
Those are all important things 
that you have to start thinking 

529
00:28:52,270 --> 00:28:54,300
about. 
And to be honest, it's something

530
00:28:54,310 --> 00:28:57,180
I didn't do as much. 
I was, I was a very much a heads

531
00:28:57,190 --> 00:29:00,060
down kind of person, unlike you,
Claudio. 

532
00:29:00,150 --> 00:29:03,540
And I sort of kept my head down 
for a while just because I was 

533
00:29:03,550 --> 00:29:06,120
so obsessed with learning the 
skill set that I kind of let 

534
00:29:06,130 --> 00:29:09,420
that stuff go by the wayside. 
But the more networking I 

535
00:29:09,430 --> 00:29:13,140
started to do, the more people I
met in the legal community. 

536
00:29:13,150 --> 00:29:16,000
Number one, you realize how 
small the legal profession 

537
00:29:16,040 --> 00:29:19,760
actually is, the fact that there
are many, many lawyers across 

538
00:29:19,770 --> 00:29:22,990
Canada. 
But second, more important, you 

539
00:29:23,040 --> 00:29:28,390
start to build people who will 
become critical to your success.

540
00:29:29,080 --> 00:29:33,410
And that means, you know, people
like former judges, current 

541
00:29:33,420 --> 00:29:37,580
judges, mentors, senior counsel,
people who have guided me 

542
00:29:37,590 --> 00:29:40,690
throughout my career and have 
said, do this, don't do that. 

543
00:29:40,740 --> 00:29:43,940
Don't waste time with this, 
focus on this. 

544
00:29:43,950 --> 00:29:47,590
And and then on a personal 
level, you know, having, having 

545
00:29:47,600 --> 00:29:51,130
someone, someone there who can 
help you navigate and 

546
00:29:51,140 --> 00:29:55,010
understands the law. 
I have an incredible spouse 

547
00:29:55,320 --> 00:29:59,470
who's in immensely supportive 
and I'm super lucky for that. 

548
00:29:59,520 --> 00:30:02,330
But there's also, you know, 
he's, he's not a lawyer. 

549
00:30:02,340 --> 00:30:06,110
And so sometimes I need to 
bounce ideas off a lawyer or 

550
00:30:06,120 --> 00:30:08,640
have someone who understands, 
you know, when it's like have a 

551
00:30:08,650 --> 00:30:12,140
heart Davenport and and you know
all the sort of followed the 

552
00:30:12,150 --> 00:30:15,660
rules from one such have a good 
and we'll understand. 

553
00:30:15,710 --> 00:30:21,640
So my sort of essential advice 
to any young law students and 

554
00:30:21,650 --> 00:30:26,600
lawyers and is start to figure 
out who your network is and 

555
00:30:26,610 --> 00:30:29,760
start to build it from the 
ground back immediately. 

556
00:30:29,870 --> 00:30:32,620
Well, fantastic. 
What it what an episode. 

557
00:30:32,690 --> 00:30:36,640
I encourage everybody to to go 
back and if you haven't gotten 

558
00:30:36,650 --> 00:30:41,020
some, some pencil and paper and 
taken some notes, it's it's 

559
00:30:41,030 --> 00:30:43,150
definitely an episode worth 
doing that. 

560
00:30:43,160 --> 00:30:46,370
Thank you so much Marco for for 
your time and for all those 

561
00:30:46,380 --> 00:30:48,620
insights. 
Thanks so much, Claudio is a 

562
00:30:48,630 --> 00:30:51,360
sincere pleasure and 
congratulations on this 

563
00:30:51,370 --> 00:30:51,940
endeavor. 
It's. 

564
00:30:51,950 --> 00:30:53,610
Excellent. 
But thank you so much. 

565
00:30:53,690 --> 00:30:55,880
Thank you all for tuning in, and
we'll see you all on the next 

566
00:30:55,970 --> 00:30:56,570
episode.
