Or how I learned to love the Securities Act
Introduction: “Days of Thrinder”
If you were to ask someone who has participated in a moot—competitive or not—to describe their experience, you could expect a variation on one of two answers: (1) it was the most amazing experience that I have had at law school, or (2) it was all-consuming and I am so happy that it is over. It is not unlikely that you will hear both from the same person. I would certainly say both about my time on the Davies Corporate/Securities Moot, which was held at the Federal Court at 180 Queen Street West on March 8 and 9.
Photo credit: Sean MacKay.
Admittedly, my opinion of mooting is coloured by the success that my team and I achieved (first-place overall, third-place factum, top oralist for Daryna Kutsyna (2L), my teammate).
Nevertheless, I want to provide as objective a reflection as I can and inspire others to pick the Davies Moot as their top choice. This year, my team was coached by Adil Abdulla (3L), Dylan Murray (3L), Chris Puskas (3L), and Shaan Tolani (3L), and supervised by Professor Anita Anand, J.R. Kimber Chair in Investor Protection and Corporate Governance & Academic Director, Centre for the Legal Profession and Program on Ethics in Law and Business. Next year, you would have me, Daryna, and my other phenomenal teammates Tom Feore (2L) and Hesam Wafaei (2L).
I wanted the Davies Moot for two reasons. First, I wanted to try something new. At the time, I did not even know what a security was. Second, I thought that it would look good on my CV, and I needed that. I blew the 2L recruit. I didn’t get a single OCI. I found out the same day that we got the try-out problem and I was gutted. I was afraid that if I told people that I had failed so completely, they would not want to prepare with me, because they would think that I was incompetent.
I was selected for the Davies Moot after a weekend of ridiculous over-preparation with a group of friends who were more than content to explore the boundaries of what could possibly be asked about the limited s. 15 problem we had to argue. I distinctly recall Jason Lamb (2L) finding a 200-page BCSC decision on polygamy that the rules barred us from using; James Aston (2L) comparing a polygamous relationship to a Caesar salad in which the denial of marriage was like the omission of croutons; and a series of room-bookings with such inspired titles as “St. Augustine was an Ethical Non-Monogamist”, “Mad Moot: Beyond Thrinderdome”, and “I Knew You Were Throuple When You Walked In”.
“I heard it through the hemp vine”
Davies released the official problem around mid-day on January 8. The problem was about a fictional, publicly-traded cannabis producer, Sativa Hothouse Hydroponics, facing a class action for allegedly breaching its timely disclosure obligations under s. 75 of the Ontario Securities Act. Rather than issue material change reports when various disasters ravaged its facilities, Sativa preferred to let information travel “through the hemp vine”.
Daryna and I represented the respondents (Sativa and its management) and Tom and Hesam represented the appellant (the class representative).
It is one thing to be told that something is going to be challenging, and a whole other thing to live it. Starting January 8, mooting became my life. If I was not eating, sleeping, or in class, I was noting up securities cases, researching the legislative history of the relevant provisions of the Securities Act, writing new arguments, or attending run-throughs.
That level of dedication seemed common among competitive mooters. I had friends in nearly every moot and the consensus was that “moot is love; moot is life.” That said, my own motivation may have been more unusual. I really believed that winning the moot could dramatically change my career prospects.
This is a case about…
I wrote at least fifteen drafts of my arguments before getting the version that I submitted to the Moot.
I wrote at least fifteen drafts of my arguments before getting the version that I submitted to the Moot. If you do the math, that was an average of one near-full re-write every other day. Restructuring arguments was a big part of that, but so was crafting a narrative. You need to communicate why your case matters.
Rewriting can be disheartening at times, but it is important to remember that your coaches are pointing out your problems so that you can fix them. And it feels so good when you finally do something right. For me, the highlight came the night before the factum was due. Chris and I were in the Moot Court Committee Boardroom, trying to tighten the appellant’s arguments. We really needed a case that said that bad publicity alone can be “material” within the meaning of the Securities Act. This was something that had eluded us for a month. Just after midnight, I struck gold: a US Supreme Court case, Matrixx Initiatives, Inc v Siracusano, 563 US 27 (2011), said just that.
Of course, our work was far from over. Two days earlier, I had been sitting in that same room, and Daryna had confidently ventured that we could probably get out of there by 11:00 pm. The coaches looked at each other and then Shaan burst out laughing. There was no way.
Shaan was right. We did not finish writing until 5:30, the morning of the day the factums were due. That matters for two reasons. One is that the copyediting that a person does at 5:30 am, having slept maybe three hours of the last forty-eight, is poor. We lost a lot of points on typos, I am sure.
The other reason that a late finish matters is that your printing options are dramatically reduced. We had planned to use Staples, who had told us that they could do the job. However, on the morning of, they revealed that they were out of the cardstock we needed for the covers. Daryna found a place that could do the job in a couple of hours. There was just one catch, they would only do the factums for $700. That was after the “cash discount” and the “student discount”.
Somehow it fell upon me, the only person without a job, to front the $700. At least I got my money’s worth. The proprietor gave me, Daryna, and Tom a tour of his “Tab Room,” while proudly proclaiming that he goes through 15,000 tabs every month. We also got some pens, and some branded tape to seal the box with the factums inside.
“It’s all downhill from here”
Finishing the factums markedly changed the nature of the preparation. With our arguments more or less set, my team and I could focus on learning them. This was when we began doing regular internal and in-firm run-throughs.
Internal run-throughs were a lot more like my try-out experience. I usually worked with Hesam, who had written the appellant’s version of the respondents’ submissions that I had drafted. The idea was to find as many weaknesses in each other’s arguments as possible and to account for those, while learning both sides of the argument.
In-firm run-throughs were more of an opportunity to get the unique perspectives of practitioners who specialize in the sort of securities market issues with which we were dealing. That is to say that during those run-throughs, we are not supposed to ask questions while others moot. I learned that by accident, when my coaches passed a note down a long table at McCarthy Tétrault LLP telling me to stop asking questions of Hesam, so that the practitioners could have a go. Oops.
During the final run-through at McCarthy’s, two of our practitioner coaches, Andrew Matheson and Simon Cameron (’17), fired twenty-seven questions at me in just twenty minutes. It took me twelve minutes just to off my introduction! I really believe that run-through, and others like it, gave my team a discernible advantage. None of the three rounds that I mooted at the competition presented any similarly hot bench.
Year five
All I remember is pointing urgently at the massive print edition of the Securities Act…
We agreed that the competition was just going to be like another run-through, and looking back, it was. But I have to admit that the pressure to succeed was felt.
The University of Toronto has won the Davies Moot more than any other school. We had placed first for four years in a row. On the one hand, that suggests something about the strength of our program and of our coaching. On the other hand, the pessimist in me remembered the 2018 Baby Gale, when U of T lost to Osgoode (I had competed in the Baby Gale). I wondered if, maybe, I just wasn’t that good. And, certainly, each one of my coaches is far more accomplished than I am. Ultimately, I managed to negotiate this self-doubt into cautious acceptance: “I’m just going to do my best and forget the rest (with a bottle of gin)”.
I felt a lot more confident when I finally stepped up to the podium as first speaker for the respondents. I believe that most mooters would confirm that that moment is a transformative one: you enter the zone and make the pitch that you have been practicing for the last two months. All I remember is pointing urgently at the massive print edition of the Securities Act to stress the respondents’ compliance with it.
At one point I also held up a copy of the trial judgement and said, “Justices, I want to take you back to the words that Health Canada actually used.” The level of performance allowed at the Davies Moot is one of the things that makes it so enjoyable. While you cannot pull any Lt. Daniel Kaffee-level stunts, the occasion is certainly less formal than the Gale Cup, where you can apparently lose points for simply letting your robe fall askew on your shoulders.
To make it to the final round, a team usually has to win all four of their rounds. However, given the number of schools that participate (thirteen, this year), it is possible for more than one team to win all four rounds. So after my first round, Shaan made it clear that we also needed to pick up as many points as possible. The best way to do that is baiting questions on contentious parts of your arguments and then delivering short, pithy answers as to how you overcome those challenges.
Although it was usually clear which team had won a round, we did not get to watch a round in which our team did not compete. So, it was impossible to know where we stood as a team. Historically, our strongest competition has come from Western University and the University of Calgary, and we did not face either in our first four rounds. The Respondents faced Queen’s University and the University of Manitoba; the Appellants faced UBC and Dalhousie.
The announcement of finalists came at 3:30 pm. It is a surprisingly brief announcement where the organizers thanked everyone for their participation and then named the two teams. The school that amassed the most points in the preliminary rounds also got to choose which side they wanted to argue.
We scored the most points, and so we had the benefit of choosing which side to argue. The consensus on the team was that the Respondents had inherently stronger arguments, especially from a policy standpoint. Daryna and I, who wrote those arguments, were chosen as representatives. We were then whisked away to get robed-up. I just remember being in this utility closet with a chair that Dylan had spilled coffee on. Chris was playing a meditative breathing exercise video on his phone, and someone was yelling at me to do something while I was busy trying to find a citation in this monstrously long ABSC decision called Re Ironside ([2002] ASCD No 158 (Alta Sec Comm)).
The final panel was made up of five judges: The Hon. Justice Robert Armstrong, former justice of the Ontario Court of Appeal; the Hon. Mr. Lucien Bouchard, PC, GOQ, AdE, a former Premier of Québec, Secretary of State, Cabinet Minister in the Canadian government and Ambassador to France; the Hon. Justice Kathryn Feldman of the Ontario Court of Appeal; the Hon. Justice Siobhan Monaghan of the Tax Court of Canada; and Grant Vingoe, Vice Chair of the Ontario Securities Commission.
Speaking after Osgoode gave Daryna and I time to strategize. I could no longer tell you what the strategy was. The only record I have is a page of notes that we scrawled to each other during Osgoode’s submissions. For those watching, I hear that my own submissions were nerve-wracking, because I started a new argument with only a minute left and finished at 0:00 on the dot. Daryna was much more methodical. In a mix of good luck, good timing, and good preparation, she got a question from Justice Feldman with about twenty seconds on the clock. Daryna got an indulgence to answer, which gave her time to really drive home what was probably our most devastating policy argument. I remember the weight of her last few words thudding against my eardrums.
I knew that we had won, and I knew that she would be Top Oralist. It was an amazing feeling.
