(My father has been working on a autobiography for awhile following his upbringing and law career and reflections on various cases, and I am posting it here it is so can be easily shared. Additional images and speeches are more are available here

Eulogy for my dad, here)

BACKGROUND

I was born on September 27, 1948 in the small mountain village of Goriano Sicoli in the province of L’Aquila in the Abruzzo region of central Italy. The population at that time was about 1,500 people but today it is about 500 residents. Many of the villagers have gone all around the world to work or live. Many return to summer in the village where they have homes. Goriano is said to have existed in some form for over 2, 000 years. It is built on the old Roman village of Statulae. Historical records date back to 816. Goriano is somewhat famous because a 1929 print of the village by M.C. Escher hangs in the National Gallery of Art in Washington,USA. Goriano is also an important village that sits on a hill in a large mountain valley. Goriano has the train station and by train, is about one and half hours to Rome to the west in almost a straight line and about half an hour east to Pescara on the Adriatic coast. Goriano has the local police station and some local administration in a valley of small villages.I have visited Goriano with my family and it has a winding road up to a hill top with stone walls around the original town. It has two churches on the main road.

I was named after my grandfather Francesco De Sanctis. His wife and my grandmother was Gemma. Her maiden name may have been Allega. My father was Alberto De Sanctis at his birth in the town records but was simply De Santis by the time I was born with no “c” . I have seen his and my birth records in the Goriano municipal offices. My mother was Lucia Pocobene. Her parents were Gennaro and Celeste Pocobene.

In English my name is Francis Albert De Santis.

Old timers from the village have told me that the name De Sanctis meant that we were the true descendants of the Latins, the Romans. Indeed, on a trip to Rome I learned that the famous Spanish Steps were designed and built by a Francesco de Sanctis in 1723-1725. No relation that I know of. I always wondered how my last name was changed. My father’s travel papers all said De Santis. My father fought with the Italian Air Force in north Africa during WWII. He was captured by the British and placed in a POW camp. He was treated very well and my father had the utmost respect for the British for the rest of his life. I suspect that when he was released from the POW camp, the efficient British simply dropped the “c” from the last name and you have De Santis.

My father was the youngest of several children. All of his family stayed in Italy. My mother was the second youngest of her five siblings. All except one, Bettina, immigrated to Canada. Both my grandfather’s fought in WWI and immigrated to New York after the war but returned to Goriano when the Great Depression arrived in the USA. I have no memory of my grandparents or Italy from my childhood. My grandfather Francesco was a businessman from what I can tell. His family owned the local mill and general/ grocery store in the village. My father immigrated to Canada in August 1951. The rest of his family stayed in Italy. When I visited Goriano with my wife and kids in 2004, I met many of my extended De Santis family. The mill was still in the family but the general store had been closed. The last operator was Elmo and his wife Dora. Elmo was about the same age as my father who in fact was Elmo’s uncle. They grew up and played together as children. I was surprised to learn that the mayor and police chief in Goriano were my first cousins and another cousin was an internal medicine doctor who ran the intensive care unit of a major hospital in Sulmona (the birthplace of Dante’) the major metropolitan centre in the area. Another was an engineer and another was a developer/builder. No wonder the rest of the DeSantis clan stayed in Italy.

There are no lawyers in my immediate family that I know of but my grandfather Gennaro Pocobene was said to be the local notary public. During WWII, my mother Lucia and her parents, her two sisters Bettina and Delia along with their little brother Eugenio lived in the village which was occupied by the Nazis. There are many stories about the brutal occupation and marshal laws imposed on the village with people shot in the streets and worse. However there is one story of the light and hope for the future. When the Nazis came in, they were looking for a place to hide a tank so they took over the church of Santa Gemma on the main road which had large double wooden doors to an entrance of approximately 6’ by 12’ which was big enough for a tank to enter. After a number of attempts to enter the church, they could not get the tank in so they abandoned this plan. The villagers considered this a great miracle by Santa Gemma the patron saint of the village. I should add that Santa Gemma’s remains are encased in a statue of her on her altar in her church. Her village home is a museum and they still bake bread and make wine for her as they did during her time.

    My uncle Orlando with his wife Anna was the first to immigrate to Hamilton, Ontario after the war. Anna was from the nearby village of Gagliano Aterno from where a local immigrant named Enio Corsini had settled in Hamilton Ontario. Enio owned and operated a grocery store on James Street north across from the CNR station in Hamilton and sponsored and supported a number of immigrants to Hamilton. Enio sponsored Orlando and Anna. My Uncle Orlando sponsored my father in August 1951 who in turn sponsored my mother Lucia and me in September 1952. Orlando also sponsored my uncle Eugenio who settled in Windsor to work at the Chrysler plant and who in turn sponsored my aunt Delia to come to Windsor also.

I don’t remember much about my childhood in Goriano. I remember from pictures of my mother and I on a big boat coming to Canada. We landed at Pier 21 in Halifax, Nova Scotia in September 1952. The present Pier 21 Museum is an interesting place to visit which records the different waves of immigrants that came through that port. My parents and I have a brick in the memorial wall and a brief history of our arrival.

My first memory of my father was meeting him at the Montreal CNR railway station when I was almost 4 years old and travelling to the station in Hamilton, Ontario with both my parents. Ironically, when I was 25, I was in the Hamilton CNR station again when I was commuting to Osgoode Hall in Toronto for my Bar Admission courses and thereafter regularly when I went to Weekly court, Divisional Court and the Court of Appeal etc. all at Osgoode Hall.

In 1975/76, after one year of articles, the bar admission course was 6 months of intensive practice instructions. We had the leading Ontario lawyers teaching us “a how to do” courses on different subjects ranging from real estate to tax, corporate and criminal law. We had Eddie Greenspan QC teach us criminal procedure which was invaluable. When we were called to the bar, you could set up your practice and give good service to your clients. Now students go straight into articling and write a couple of exams before or after articles. I don’t know if they are very well prepared for practice right off the bat. I taught advocacy at the bar admission course for many years during the transition at Osgoode Hall which had the main lecture hall and a number of smaller rooms for seminars and smaller classes. There was a cafeteria in the basement. The Courts were in a separate part of the building. The great library was excellent. The dining room just off the courtrooms was always well used by lawyers to dine or just to look over a brief before going into court. There was an elevator nearby that took you from the robing room in the basement to the dining room area. The other popular lunch venues during court break was at Campbell House run by the Advocates’ Society at Queen Street and University Ave and across the street at the Sheraton Centre. You could walk into the Osgoode Hall building and the Courts without being searched or scanned. There were no police at the doors. That all changed one morning when a lawyer was shot and killed in one of the courtrooms at Osgoode Hall. You can still see the bullet holes in the counsel desks. I recall being in the Court of Appeal one day arguing a case and we had to evacuate the building because of a bomb scare. Now there is security everywhere and you can no longer just walk into Osgoode Hall or some of the grand old Court houses and courtrooms like Welland, Brantford and Cayuga.

       In Hamilton during the 1950s’, there were no immigrant services or supports. There were no English classes, no welcome centres. Your sponsor was responsible for you and if you got in trouble, the police would show up at your door and you could be deported. So you had to find work as soon as you got here. My father went to work with Frid Construction the day after he arrived and worked there for 30 years retiring as a labour foreman. He worked on some major project like Hamilton Place and convention centre, Andres Winery, Stelco, Defasco, McMaster university medical school/hospital, the Weldon library at Western university etc. My mom was a stay at home mom. I worked when I could starting with picking fruit in the summer to working at Firestone making car tires and in construction at Stelco, Defasco, McMaster and other sites in the area during summer school breaks in High School, University and Law school . I was able to save enough money to pay for most of my education.

     I grew up in the Barton and Sherman neighborhood in Hamilton where most of the recent immigrants in the 1950s lived. These were mostly Italian,Polish and Ukrainian families but there were also Germans,British and other European people who came to Hamilton for work.  It was a tough working class neighbourhood. It was very multilingual and multicultural with everyone speaking a little bit of different languages or trying different foods. You could walk down the street and be in different ethnic communities by the music and by the smell of the food cooking. This was very educational in its own way. In the 1950s’, Hamilton was not only the major manufacturing centre in Ontario but also a branch office centre for major insurance and financial/business firms for the entire Niagara peninsula all the way to London/Woodstock to the west to Simcoe/ Port Dover to the south,  Brampton/Mississauga to the east and the 401 and Kitchener to the north.

The Barton and Sherman area was close to or adjacent to the steel factories of Stelco and Defasco as well as other major manufacturers like Firestone, Westinghouse, Proctor and Gamble, Harvester etc. to name a few. My family rented different places in the area. We lived on Alfa Street, Case Street, Barton, Birch and Gibson Ave. When my brother Anthony was born, we were asked to leave by the landlord so my father went out and bought his first house on Gibson Ave in 1958, a semidetached home which he eventually renovated. We lived there until 1972, when the family moved into a brand new home in Stoney Creek or “Tony Creek” as some of my downtown friends called it because of its large Italian population.

The Barton and Sherman area was a dynamic part of the city at the time. The city was busy with a vibrant downtown with every type of store or restaurant you could want. Now downtown has become a depleted ghost town with the offices moving to Burlington and the light industry to Branford and Burlington and with the shopping moving to the suburban malls with free parking. Then you could walk west to downtown and east to the Centre Mall to shop or work. In high school we had a group of friends that would start on Sherman Ave and walk and picked up other kids all the way to Cathedral Boys High School on Main Street. They also had a separate school for girls only called Cathedral Girls High School about a few blocks away on Main Street east. The priests taught the boys and the nuns taught the girls. Now there has been full amalgamation of both schools into one and very few, if any, religious teachers in the system.

I attended St Ann’s elementary school at Barton and Sherman. This was Hamilton in the 1950s’, milk and bread was still home delivered by horse and buggy and living in the area was challenging because there was a lot of discrimination against the recent immigrants. We were called Wops, Diego’s, DPs’ and worse. There were restrictive covenants in Westdale that prevented Italians, Jews, negros and some others from owning or buying land or homes in that area until the Supreme Court of Canada struck those clauses down. We would go out or walk to school in groups because alone, you could get chased down the street and get beat up by the local kids who didn’t like the Italian immigrants. The German kids had it worse. There were no programs, services or support like English as a second language to help immigrants get assimilated and established.

Growing up, everyone I knew spoke Italian except in school. I failed grade 2 because I couldn’t speak English. Later I found out that this happened to a few kids and many simply dropped out of school and went to work. I always wondered if this was discrimination and bias towards Italians. I mean I passed grade 1 and they could have given me more help learning the language. In any event, my parents were very upset at me. They knew that the foundation for a better life was education. I was grounded for the summer and had to spend my time reading and learning from my grade 2 books and notes. It made me work harder at school and I became one of the top students in elementary school and high school. I was the first person to attend University in my immediate family. My parents only had an elementary school diploma up to grade five in Italy.

I attended King’s College and the Law School at the University of Western Ontario graduating with a BA and LLB in 1974. I was good in all courses but I liked the arts courses more than math and sciences. I was in the pre business program in first year but I hated the business courses and the balance sheets and financial statements stuff so I switched into honours history before Christmas in first year. I was in my third year of history when I became bored and felt insulated in the ivory tower doing research and writing essays away from the real world and events. I decided to do something else. Some of my friends at Kings were applying to law school, so I did too and was accepted at Western.

In the first class in law school, we were told look to your right and look to your left, one of you won’t be here next year and that set the tone for the three years at law school. They were right and they worked us pretty hard but looking back, it was necessary given the demands of practicing law on full time basis. I was fortunate to have some really good professors at Western like Horace Krever, Earl Palmer, Earl Cherniak, Scott Ritchie, Hudson Janisch, Professor Kipling and Oosterhoff. One of the last mediation I did, Oosterhoff was the expert on estates that the mediator brought in. Western law school was different because after first year, it was more social and everyone tried to calm things down. You could go speak to a professor about anything that was bothering you. They were very supportive. Every Thursday was a smoker in the lounge for the students to interact with professors. I enjoyed my time at law school and made some very good friends.

LAW CAREER

When it came to articling, I did not know any lawyers or law firms. I did not want to practise in London or Toronto. I wanted to go home to Hamilton which had become a very multicultural city with a large Italian population. I went to speak to Horace Krever (later Mr. Justice Krever of the Ontario Supreme Court and Court of Appeal). Krever had practiced in Toronto before teaching at Western. He told me to make sure I applied to “Johnny Agro’s firm” in Hamilton which I did. Before I go on, one of the big thrills of my career was being able to argue cases and appeals in front of Justice Krever when he was sitting as a trial judge and in the Court of Appeal.

I interviewed with John L Agro QC at Agro Cooper Zaffiro Parente Orzel and Hubar in Hamilton. John offered me a job articulating. I walked in the door in May 1974 and walked out in December 2018. In those days, I learned that Hamilton was the city of the “three Johns”— John Bowlby QC, John White QC and John Agro QC. Between these 3 guys, any one or two or all three of them would be representing one or more of the parties in any major criminal or civil case in the area. I was lucky to have cases with all of them as lawyers at one time or another even as judges after they went to the bench. What can you learn from guys like this? John Bowlby QC was defending one of my first cases. I had a lady who broke her leg. The discovery was John asking if she broke her leg in the accident and how she felt today. The lady said good, so John said thank you and walked out arguing later that the lady was fine and fully recovered. Nice approach and hard to argue against.

I enjoyed my time as a litigation lawyer at Agro Cooper and then Agro Zaffiro retiring as the senior partner. I spent my whole career there. Initially Agro offered me a job as a commercial/real estate lawyer which I refused and was leaving until Nick Zaffiro took me out to lunch and said I could do litigation. It was a full service firm. I learned a lot from all of them and did trials with John Agro, Don Cooper, Bill Hubar and Ed Orzel. I also did the commercial litigation for the firm and worked closely with Nick Zaffiro QC and John Parente QC. Where you article has a big impact on the type of cases you do and what kind of lawyer you become. I came into the practice when being a litigation lawyer was still a counsel or barrister in the true sense of the word. You did both criminal and civil cases and anything else that required an appearance before a court or tribunal.  I have acted as duty counsel at criminal court and at legal clinics through the firm. During my career, I have argued cases  in Ontario from small claims court through all trial and appeal courts including the Supreme Court of Canada as well as a number of other tribunals and special courts.

At the Agro Zaffiro firm in the early days, we took on and tried to help anyone who walked in the door. Money was never an issue. One of my late partners, Mike Baker QC said we did our best work for free or pro bono. We didn’t use time dockets or hourly rates or worried we would not get paid. We all did very well financially. We worked 5 days a week plus Monday and Thursday evenings and Saturday mornings. The rule was the firm represented the first client that walked in the door. It did not matter if the client was a poor man or a large corporation. John Agro’s motto was “Help the client. Make sure when he leaves your office that he leaves his problems with you. Never put him in a worse position”. John was a true and great counsel, friend and an excellent teacher for me. We did many trials together and I learned a lot from him very quickly.

Now the practice of law is more of a business. Corporate clients insisted on hourly rates, time dockets and tracking how much time you should spend doing something on a file. They try to tell you what to do on a case. There is one famous story about John Agro and some American insurance companies who would not accept his recommendations and gave him specific instructions to do something on files. Agro took all their files, put them in a cab and sent them back to the clients. Now the practice of law is more of a business than a profession. All your time is docketed and charged at an hourly rate. You can’t represent people who can’t afford to pay or have a case where they will not get some money at the end. We take instruction from the client usually in writing or reduced to writing. Some of this comes from having the structure of larger firm of more than 30 lawyers. There were less than 10 when I started at Agro’s which is what I think is the ideal size for a law firm. Some comes from more claims against lawyers. Some comes from the emphasis on work/life balance of young lawyers coming into the practice. Some of it comes from corporate clients and changes in society, the computer and the technology with the complexity generated by this. Some of it comes from the changes and demands of the Court practice and procedures. People are more serious about everything now. Gone are the freewheeling days of my earlier years of practice when it was more fun being a lawyer. We were the princes of the city. A few years ago about 2008, someone wrote a history of Agro Zaffiro LLP. I attach a copy to illustrate the type of firm it was and continues to be. More lawyers of the Hamilton bar have articled at Agro’s than anywhere else in Hamilton and we have had more judges appointed from our firm who articled or practiced there than any other firm in Hamilton.

1976

In 1976, I was called to the bar, I got married and I was almost arrested and charged with obstruction of justice. It was a very eventful year for me. In May 1976, John Agro introduced me to Al Frisina, a local developer who had built the tallest building in the Hamilton area called Century 21. The mortgages stopped advancing funds and started foreclosure proceedings and the trades all registered liens on the property. On top of that came bylaw charges and income tax claims. There were millions of dollars being claimed against him and his companies. I defended all of these claims for him and his companies for several years until he was able to win some cases against the mortgagees and others and made millions of dollars for himself.

In early April 1976, I was a student/junior with Don Cooper QC on a trial defending a case by a self-employed truck driver who had broken his neck in a car accident. He had a double fusion of vertebrae in his neck and had suffered a loss of income. The plaintiff’s lawyer was Bill Festeryga QC who was assisted by Harrison Arrell. All of these lawyers went to become Supreme Court judges.  Harrison had articled with me at Agro’s. The judge was Walter Stayshen who was also an Agro alumni. We were called to the bar midweek. We walk out with our suits on and came back into Court wearing our robes. Judge Stayshen brought the jury in and explained what happened and in the process, gave both Harrison and I, a warm welcome to the profession. Ironically, many years later, I was on trial with Justice Festeryga when a young lawyer was called to the bar during the trial. Justice Festeryga gave him a very warm welcome and explained that it had become a tradition for the bench to do so since Judge Stayshen had done many years before.

Before I leave this case, I want to speak about the cost of litigation thru the years. In 1976, we picked a jury on a Monday morning and had a verdict by Friday afternoon in this truck driver case. The jury award was under $100,000. The plaintiff called himself, his doctor, his accountant and one medical expert as witnesses. The defendant called a defence medical expert. Today this same case would take 3 to 4 weeks to try. The verdict would be $500,000 to $1,000,000 or more. There would be multiple expert witnesses from different doctors, employers, accountants, future income and care experts and some lay witnesses. Multiple defence witnesses, doctors, accountants, investigators etc. would be called by the defence. The cost of litigation has gone through the roof with the need to prove every element of the case. The demands from the clients and the procedural requirements, more rules and demands for trial notices and evidence in documents, will say statements, investigations etc. to avoid trial by ambush has complicated even the simplest case. Now each side has a senior lawyer, a junior lawyer, a student and a clerk. As an example, in 1976, you could bring a motion with a one page Notice of motion and a brief Affidavit and set it down with 2 days notice and argue it. Now you need a Notice that explains what you are asking for and lengthy Affidavit that argues your case, a factum, casebook and documents just like almost doing an Appeal . Now you have to also send everything electronically also. You have to give a week notice or agreed time. Most of the time complicated motions go on a long motion list for a judge to do when they find one. Another example was the Writ of Summons used to start an action to protect a limitation period. A defence was usually waived and the parties would discuss the case until it settled or was ready for trial. The parties controlled the process. Then in the mid 1980’s, the writ was abolished and every action was started with a statement of claim and then the rules mandated time lines to speed the process to the trial stage to wait to find a judge to try the case. The Rules of Practice have doubled in size and the Courts have become badly backlogged. I once had a civil non jury matter that took 18 months to try a few days here and there because of availability of the judge or court rooms. The case should have taken two weeks to try if tried on consecutive days and cost a lot less. Ordinary people cannot afford to go to Court anymore.

In August 1976, I married Nancy Wilson. Nancy was born in Orillia to Scottish/Irish parents. She grew up in Barrie and went to Brescia college at the University of Western Ontario and then teacher’s college at Western. She was a special education teacher with the Hamilton Separate School Board for many years. I met Nancy one Sunday evening in February 1970 in the King’s college library where I was reading to go to an evening class at Western. I was a residence don at King’s and one of the students was asking me to support and supervise a dance at the college. I should point out that Kings was all males when I started there and dances were banned for the year by the Dean because during a frosh week dance, someone literally dismantled the men’s washroom. This intrigued Nancy and we had a coffee break together. I needed a date for the dance so I asked her and she accepted. When we went to the dance, I spent most of the night breaking up fights and maintaining order. Nancy spent most of the night sitting on the sidelines. I felt bad so I asked her out again and have been together ever since then. In 1976 we decided to get married in August even though we didn’t have money and both had debts but we both had jobs and lots of dreams and youthful energy. It all worked out very well for us. We have two children Angela and Albert who both went to Western and got their degrees. We have been blessed with two beautiful granddaughters Abigail and Alivia. My parents have passed away but my only sibling Anthony lives near me. Anthony graduated from McMaster University and became a high school teacher. He is married to Josie and has two sons, Alberto and Joseph.

In August 1976, I was in the office after 5pm getting ready to go on holidays for a week, get married and go on a honeymoon when the phone rang from a lawyer at the police station looking for Agro at the request of a police officer whose was related to a John Rallo. His family had been missing and he had been at the police station all afternoon talking to the police. He was not charged yet so anything he said was admissible as evidence. In fact the police had taped recorded all of it and later played it for the jury at his trial for first degree murder of his wife and two small children. Any evidence obtained before any charges are laid is admissible at trial. He was found guilty of all charges and sentenced to life without parole for 25 years.

It was late Friday afternoon and there was no one around so I went to the police station myself and was able to speak to Rallo. I told him not to speak to the police anymore because it could hurt his case and to leave with me. I asked the police to charge him and give him his rights or to let him leave with me if they were not prepared to charge him. I had just finished a criminal law course with Eddie Greenspan QC and like I said it was invaluable. All of a sudden a police inspector in charge started yelling at me that he was going to arrest and charge me with obstruction of justice which was a bunch of bull. Another senior police officer stepped in and asked me to find Agro or Bill Hubar to come to the station. It was later that evening before I found Bill Hubar at Glendale golf club and told him what happened. We had dinner at the club and then went down to the police station where Rallo was charged, cautioned and arrested. Of course Bill laughed at me about what happened at the police station. I was the junior with Bill at Rallo’s murder trial for 4 weeks. He was convicted and all his appeals were dismissed by the Court of Appeal and the Supreme Court of Canada.

LEGAL EDUCATION

Becoming a lawyer was very demanding. It took long hours and learning by the case method was harder than listening to a lecture. There were some classes that were very dynamic and currently relevant like Horace Krever’s civil procedure and evidence classes during the Chicago 7 trial for the 1968 Chicago riots in the USA. Krever used to start class reading the evidence from the day before pointing out the different approaches of the lawyers advocating for their clients and the different rules of procedure and evidence in the US A and Canada. Fascinating! I really didn’t have any barriers becoming a lawyer although in an articling interview with an old WASP firm, I was told I would not fit the firm culture. I became a lawyer because I wanted to help people. After your BA, there are not many areas that give you the ability to directly impact the life and wellbeing of your neighbours like doctors or lawyers.

Western law school was one of the best in Canada with a class of about 100 students graduating each year. It was small compared to other schools and had its own building on campus. They had a great collection of professors. It was generally a very social, friendly but very competitive environment. Some people still cut out headnotes from the case reports in the library. Their graduates were well prepared when I later had cases against them. It was a good learning experience.

Articling at Agro’s consisted of a 3 month rotation in litigation and commercial/real estate where you worked with the lawyers in different areas. There were 10 lawyers in the firm at that time. The first time I went with John Agro to criminal court, a few people I knew from the old neighbourhood came up to say hello to me. Agro asked if I knew them and I said yes and he said not any more. I remember one rotation, I was working with John Agro who had stepped in to help a lawyer he had articulated with because he had a heart attack. I took over defending Highway Traffic Act charges for the Hamilton Automobile Club members who had this service as part of their membership. I was in Court arguing these cases from 10am to 4:30pm every day for 3 months straight. You learn to think and speak on your feet really fast. It was a great experience and really helped me get a good start as a litigation lawyer.

The rest of articling was a lot of fun for me. As a student, you tagged along with the different lawyers going from city to city and town to town doing different cases. Between preparation and being in court, it took a lot of time and I worked hand in glove with the lawyers . It didn’t seem like I was learning anything while having a lot of fun. When I got to Bar Ads, I realized that I had done or  seen most of the things they taught us in the courses. I had been really well prepared by the firm.

I attended Osgoode Hall in Toronto for Bar Ads and later for Court and I returned to teach Advocacy for a few years. There have been many changes to the buildings and access in that area of Toronto but Osgoode Hall is still an oasis of quiet elegance in the middle of a growing and very busy city centre. I hope it never changes.

TYPE OF PRACTICE

I was a litigation lawyer for over 40 years in private practice with the same firm Agro Zaffiro LLP. that I had articulated with. In the early years starting in the 1970s’ I, like all the litigation lawyers in the firm, did every type of case including criminal and family law cases but I then did all of the commercial litigation for the firm. In addition, I did personal injury cases for both plaintiffs and defendants. The firm evolved away from criminal and family law because civil litigation became more lucrative and the quality of the clients was better. By the time I left the firm in 2018, the firm did no family or criminal cases. Over the years, we did act as agents for the Attorney General to prosecute drug offences as well as other statutes like the Aeronautic Act (low flying aircraft), spinning back odometers on used cars etc.

By the time I retired from the firm, personal injury litigation, and land development, were the biggest type of cases we did. We were a leading insurance defence firm but I also always did plaintiff cases right up until I retired in 2018. Economics and the type of clients determined the type of law and practice at the firm. 

The firm clients were generally large insurance companies and financial institutions, large land developers and real estate companies as well as a lot of ordinary people who needed a lawyer. As litigation lawyer, I had cases all over Ontario but mainly in the Toronto to Hamilton, London to Windsor area and elsewhere north and south like the Niagara peninsula, Barrie and north like Bracebridge and Elliot Lake.

My practice structure was that I would get the files in from the client or lawyers and then have several lawyers and clerks to help process the files to completion. Smaller files I assigned to junior lawyers to complete but bigger and more complicated files, I would have a junior help me with them. There were at least three or four other groups like this in the firm to be able to service the volume of work we were getting from different clients. In addition, clients or juniors would ask me to step in to do a mediation, pretrial or trial with the lawyer on the file as my junior. This way I could handle the problem file, the volume and also teach young lawyers the art of being a good counsel and pass on to them what I learned from my senior lawyers like John Agro, Bill Hubar and Ed Orzel. I really enjoyed this part of the practice.

My practice presented a number of challenges which included constant travel and away from home and family doing different types of cases in different cities doing discoveries, motions, meditations, pre-trials and trials or appeals. It is very interesting preparing and arguing different areas of law for different cases. You never get bored.

The other big problem is finding a judge to hear your case. You may have cases on trial lists in multiple jurisdictions but you don’t know when and if your case will be called for trial and the other lawyer has the same problem. Either of you may be on another trial or they can’t find a judge that week to hear your case depending on how much time you need to complete it. This makes preparing for a trial and attending a trial much more costly. The courts are overloaded and criminal trials go first before any civil trial. Something has to be done. More judges should be appointed and more courtrooms have to be built.

There are many more challenges that includes the individual and their families. I have seen stress eat up some lawyers. Alcoholism and divorce are endemic in the profession with far reaching consequences on their careers and family members. Over the years the firm and the practice of law has changed. Our firm grew from about a dozen lawyers in 1976 to over 30 lawyers in 2018 which is considered to be a large firm in Hamilton. With growth comes structure and guardrails. Technology and society have changed. Everything seems to be in a state of flux.

PHYSICAL OFFICE OF PRACTICE

My office was in an office tower at King St and James St overlooking Gore Park in downtown Hamilton. This is the busiest traffic intersection in Hamilton. There are park benches, trees and grass with a large water fountain in the park. Looking north you can see Lake Ontario and to the south is the Niagara escarpment. My office was in the south/west corner on the fourth floor with the main reception. I had a secretary, two clerks and a share of four articling students with access to other lawyers and staff as required. I usually worked with a different junior lawyer on each file so we could have some flexibility if I was called to trial or had to attend discoveries, mediations or pre-trials in different cities. We had the latest version of equipment and technology, an IT manager, an Account manager and an office manager. Decisions were made at partners meetings that were held once a month. The cost of running the practice was between 50 to 60% of the gross firm income.  We tried to hit 50 %. Profits were shared among the partners based on a formula which was fairly objective. Over the years the dollar numbers got bigger but the percentage of costs stayed pretty much the same as the firm grew.

CLIENTS

          Our clients were individuals, businesses, judges, politicians, various professionals, governments, insurance companies, banks, developers/ real estate companies and everyone else in between. We even did legal aid in the early years and I did criminal defence work in my early years but stopped doing it because they were not paying for the work done on a file given the seriousness of some of the charges. If you got a plea of theft from a charge of robbery or a common assault on a rape charge, legal aid paid a block fee for the conviction charge without consideration of the work you did on the file. You would get calls in the middle of the night by some drunk, you get a lot of professional criminals as clients and there was more money in civil litigation.

We were a very ethnic firm. My partners Nick Zaffiro and John Parente were very involved with the Sons of Italy, Ed Orzel with the Polish community, Bill Hubar with the Ukrainian community and  other lawyers for different other groups like Croatian, Japanese, French etc. Our firm reflected the rich diverse multicultural fabric of the city of Hamilton, GTA and Niagara area. I represented both plaintiffs and defendants from poor individuals to millionaires, ma and pa businesses to large multinational corporations. I have also represented criminals, crooks, mobsters to priests, bishops, police, governments, judges, lawyers, doctors and other professionals. I represented people from all levels, positions or standing in the community. I enjoyed representing all of them. They were all very interesting in their own way. Generally speaking, staying out of jail or getting enough money to be economically secure really makes you appreciate what a lawyer can do for you.

PROFESSIONAL AND OTHER ASSOCIATIONS

I belonged to a lot of different associations. The main ones were the Law Society of Upper Canada/Ontario, the Canadian Bar Association, the Hamilton Law Association, the Hamilton Criminal Lawyers Association, Advocates Society, the Defence Research Institute, the Canadian Defence Lawyers and the Medical Legal Society. I served on the executive of Hamilton Law Association and Medical Legal Society and as president of the latter. In addition, I was a member of a number of clubs and organizations in the community both charitable and business/recreational. All these were important to me both professionally and personally. Some say who you know is as important as what you know. Professionally it allowed me to keep up to date with the law and practice. Personally, it allowed me to network and meet and mix with my peers and clients.

CONTEXT

Society has really changed a lot since 1974 when I graduated from Law School at Western. The biggest change has been in technology. I remember in the 1970’s, when a secretary had to retype a whole letter because you made one change where now she just looks at a screen and makes many changes before simply printing the letter. I remember being on a trial and a lawyer from a big firm in Toronto was able to get a fax with a case he needed from his office to use in Court. Shocking! Today you can simply search from the computer at your counsel desk and be able get your case and share it instantly with the judge and the other counsel. There have been a lot of changes in the personal injury and insurance practices. Prior to the late 1970s’, personal injury claims were not very big money makers. That all changed when the Supreme Court of Canada made some decisions and opened up the door for future losses arising out of a tort claim for damages. We started with tort and moved to enhanced accident benefits and threshold legislation that were watered down by the courts only to have further amendments depending on the type of government that was in power. Now the right to sue and get properly compensated is a lot more difficult.

Around 1985, there was the amalgamation of the county courts into the Supreme Court of Ontario with the administration done by the government civil servants which was a big change and had a big impact with many rules and procedures which caused backlogs and delays getting to trial. Prior to that, the judges ran the court houses and they told the government that it could not run an amalgamated courts system with the budget they were suggesting and they were right. There are a lot more lawyers in the business and it is more competitive. Lawyers can advertise now. There has been an explosion of litigation as a result. In addition, there has been a lot of developments in commercial law. I recall, in the late 1970s’, arguing a case about a receivership and couldn’t find many reported cases. There are many more rules of practice and directives from different levels of court. Clients have tried to down load data collection and other tasks for their employees to their lawyers. Economically, our firm was not affected by economic slowdowns or recession because we were litigation heavy. We changed as society changed and we tried to help our clients as best we could. I did not experience any challenges to being able to work as a lawyer except that I was too busy and took on too much sometimes. It was very demanding and stressful but that is the nature of work I did.

IMAGE OF THE PROFESSION

Lawyers were more respected like doctors when I first started practicing. Lawyers were very involved in politics and as leaders in the community. Over the years lawyers are seen as a service provider like anyone else. There are very few lawyers in politics now and business or community advocates/ organizers fill the ranks of politicians and leaders in the community. Lawyers have been withdrawing from these areas. Lawyers are a lot busier and process many more clients today with a growing population. The practice has become more grinding with clients demands and increasing regulatory demands. Maybe there is just no more time to do other things. Lawyers are still well respected in society but not like before. It is more important that lawyers belong to a self- regulated profession because it is difficult for someone not a lawyer to understand what it takes to be a good lawyer and keep the bad ones out. I believe that the Law Society has done well keeping up with a changing society. I have personally known many of the benchers over the years who are some very most impressive, intelligent and dedicated individuals with impeccable credentials. The public is better served by people like this instead of a government bureaucracy or citizens groups to regulate the profession.

REFLECTIONS

Being a lawyer has been a very intellectually interesting occupation meeting many interesting people in challenging situations. The cases that gave me the most challenges but were the most fun in order of best experience are as follows:

A first degree murder jury trial.

A serious personal injury civil jury trial.

Arguing a case in the Supreme Court of Canada.

Arguing a case in the Ontario Court of Appeal.

Arguing any jury criminal or civil case in any Court.

Arguing any case in the Supreme/Superior Court of Ontario from appeals, motions to civil non-jury cases.

Arguing any case in what used to be the County Court of Ontario.

Arguing cases in criminal courts or small claims court.

Arguing cases in different tribunals.

What makes a case challenging, difficult and demanding but interesting and rewarding? The results are significant and consequential for your client like going to jail, or losing their business or economic security. You can control what happens on a case until you walk into a courtroom. From there on, you lose control because the trial process takes over and the results are very unpredictable. Cases you think were winners become losers and losers become winners. Somehow after people swear on a bible, their evidence changes. The star witness fades away or some minor obscure point becomes a centre piece of evidence. Juries add another level of complexity based on their intelligence, experience, biases and if they like your client or feel sorry for him or her or is believable compared to other side. Judges are just as unpredictable as juries for the same reasons but more so because they can comment on the evidence and they can only say what law the jury is to consider in making their decision. However, if you have a case where the law is not in your favour, always have a jury because anything can happen. 

I was involved with some very big cases very early in my career. In 1976, I was the junior lawyer with Bill Hubar QC defending Jon Rallo on first degree murder charges of his family. At the same time, I was counsel defending Al Frisina and his companies in the Century 21 litigation. A sort of baptism by fire.

Jon Rallo was the city manager for Hamilton. In early August 1976, he went to the police station in a limousine to report that his wife and two small children were missing. His wife had left a note explaining that she and the kids had gone out west with a rich lawyer and would not be back. His wife worked as clerk with a local law firm. He gave this note to the police who taped the interview. While there a couple of boys fishing at lake Ontario snagged a duffel bag with the body of little girl. A few days later, they found the body of his wife floating in Jordan Harbour wrapped in a sleeping bag with anchors. The body of the little boy was never found. A jury found him guilty of three counts of first degree murder and he was sentenced to life in prison 25 years in jail without parole.

I could write a book on this case but for this purpose, I will deal with just some interesting points only. This was the most famous cases in Hamilton since the Evelyn Dick murder case in the 1940’s. There was a line of people waiting in the hallways and outside on the sidewalk waiting for their turn to get into the courtroom to watch the trial. The lawyer the wife worked for stopped practicing law and went to live in some commune after the trial. We had some lawyers that knew her come to see us during the trial and ask if they would be witnesses but none were called by either side. Rallo said he did not kill his family and to this day maintained his innocence. The Crown had a weak case to prove motive so they offered Rallo a deal to plead guilty to 2nd degree murder with parole in 10 years 3 times but Rallo refused it in writing ignoring our advice and pleas to do so by his family. In fact, while in prison Rallo was working with lawyers for the wrongfully convicted on his case. People ask me if I think Rallo was innocent and I explain to them that is for the jury to decide. The role of defence counsel is to make sure the accused gets a fair trial based on the admissible evidence, procedure and the law. Rallo got a fair trial. The Ontario Court of Appeal and Supreme Court of Canada said he did.

After Rallo was charged, he was sent to the Clark Institute of psychiatry to be assessed and was found to be not insane and was able to instruct counsel. What is interesting is that he was hypnotized and given the truth serum sodium pentothal by Dr. Basil Orchard who questioned and assessed him. I believe he also had a lie detector test there. We interviewed Dr. Orchard after Rallo was released on bail and were told that Rallo never changed his story that he was innocent and Dr. Orchard did not have any explanation otherwise. We now had some evidence to prove reasonable doubt in a circumstantial evidence case to be successful. However, we went back to see him just before the trial but after the crown had met with him and said he did not believe Rallo so he was never called as a witness by either side. Bill Hubar and I were hounded and followed everywhere by the national press that we had to rent rooms at the Royal Connaught Hotel during the trial so the press stopped following us to our homes.

From a legal point of view, the Rallo trial was significant for a few things. It took four weeks to try with a jury and it was one of the first cases that used a lot of expert evidence to prove a circumstantial evidence case. Some of the experts went on to write books. For example, there was a blood spot expert who testified that that victim was hit on the floor with the blood splashing up to the curtains and wall. A typewriter expert to say the note was typed on a typewriter in the house. Also an expert to prove that the garage bags the bodies were wrapped in came from the package in the house. The anchors were bought at Canadian Tire etc. The Crown was Anton Zuraw (later Justice Zuraw) and he proved his case by playing the taped interview with Rallo at the police station and then proceeded to call evidence to refute the different statements Rollo made.

John Agro QC defended the last man to hang for murder at the Barton St Jail in Hamilton. John was a top criminal defence lawyer with a great reputation. At the time Bill Hubar QC did this case, he was one of the best criminal defence lawyers in southern Ontario and I was lucky to junior with him on the Rallo  and many other cases. Bill was also a rascal. During the Rallo trial, after the  Crown finished examining one witness, he says to me, “Go  ahead and cross examine the witness” with no advance notice or preparation. It was the first time I ever did that in front of a jury. I was too shocked to be scared but went ahead until Bill whispered “Ok, that’s enough, sit down.” Later on when I had a junior with me on a trial, I would do the same thing to them. It was very good way to initiate them to their craft.

The other case was the Century 21 litigation. John Agro introduced me to Al Frisina in May 1976. Alfonzo Frisina was a local builder/developer who built the tallest building in Hamilton some 45 stories high. It had the first two floors of commercial space, then residential apartments and the top floors were commercial leases. The top floor was a roof top restaurant. Argo Zaffiro had the 37&38 floors for their offices for 5 years. In 1976, some construction liens were put on title and the two mortgages went into default and started foreclosure proceedings. Frisina and his companies were sued and some of his other properties were all tied up in this litigation. There was at least $10 million at stake. In the context of this litigation, we had to deal with practically every area of law including criminal, tax, property, mortgage, municipal, civil and commercial laws etc. My opposing lawyers were generally from the big law firms in Toronto. It was a David and Goliath situation. I was in the Court of Appeal by the end of the year. Over the years I was in Weekly Court and Divisional Court regularly at Osgoode Hall regularly until this litigation was completed several years later. I used Agro’s defence tactics “Bullshit baffles brains” with some legal arguments until Frisina was able to win his cases against a purchaser for refusing to close the sale of the building and the mortgagees for failing to advance the rest of the mortgage funds to complete construction. Frisina won millions of dollars in Court awards, paid off his debts and went on to keep his business going which his sons now operate.

They say you learn more from the cases you lose than the ones you win. It was true for the case of Misale v CNR. Sam Misale was a vendor at the farmers’ market in Hamilton. Every autumn, he would import and sell grapes for wine making to the public. He would hire CNR to bring in the grapes from California. He would rent a front end loader to take the grapes from the boxcars on the rail way yard on James St North to his warehouse. In October 1975 while unloading his grapes, the forklift tipped over and crushed his right arm. The CNR ground was uneven, full of holes and in general disrepair. Sam was left with an ugly impairment that left him permanently personally and economically damaged. Justice Henry tried it without a jury and dismissed the case because of causation as Sam could not say exactly where and how the forklift tipped over. The Court of Appeal dismissed the appeal. I thought it was a wrong decision and many years later the same Court of Appeal said an owner is liable in a cases where a shopping plaza parking lot was full of holes ,uneven and in general disrepair. That makes more sense because the owner is inviting a visitor to their business premises to earn an income. He/she should make sure it is safe.

There was what I called the Walmart and the Easter bunny case. In January 1990, Walmart announced it was expanding into Canada and hired the firm of T&B Reit Corp to find some warehousing space. CIBC Bank had taken possession of a large old Firestone warehouse in East Hamilton/Stoney Creek which it was selling under a power of sale. I took over a file from another firm that had registered a certificate of litigation and an agreement of purchase and sale on title. CIBC had an agreement to sell the land to Allen Candy (my client that made the chocolate Easter bunny) but then sold to property to Riet for $500,000 more. Riet bought a motion to vacate the lis pendes. The case was argued over three weeks in Hamilton and Kitchener. The certificate was removed but the agreement was not on the basis of non-disclosure that the mortgagee was in possession and a clause in the agreement. Everybody appealed. We went back and forth to the Court of Appeal. The case was settled by June. Allen Candy got the property but shared the space with Walmart. This is how quickly some cases can be done when there is big money at stake. Most commercial litigation get resolved early before trial.

Mario Medves worked at Stelco making steel at the furnace. In the 1970’s he got into a car accident and was off work but returned to work as a janitor. He sued and got a very good settlement that I negotiated. A few years later, he got into another accident and could not go back to work, so we sued again. The case was pre-tried at $150,000 plus costs but the insurers refused to pay it because of the prior accident. Their offer was sustainably less. After a four week trial, the jury awarded $650,000 plus interest and cost. The defendant had a $500,000 limit on his policy but the insurers had to pay all of it because the plaintiff had made an offer to settle for the pretrial amount. The best evidence at the trial was my client’s 10 year old son breaking down and silently crying when I asked him what he did with his dad before and after the accident. I remember sitting with the trial judge and defence counsel exchanging opinions of what the jury would do while we waited for the verdict. I recall the highest assessment was about $250,000 plus costs. Like I said juries are unpredictable.

If you do legal work in Hamilton, you will come across organized crime. There are a couple of cases I did where we had to deal with them. In one case, Frank’s Tire Service had a large account receivable from a trucking company that was owned and operated by a crime boss. My client was not part of any crime group or activity. He wanted to sue to get his money. I asked him if he was sure but he wanted to proceed. So I issued the claim and after we served it, I got a call from this crime boss to arrange a meeting at our offices with my client. He came in wearing his ragged work clothes but a really big diamond ring on his hand. He spoke only to my client and told him he would not pay the bill and that suing him was a sign of disrespect and walked out. Later that day, my client called me and said all the windows at his shop had been smashed, the tires on his trucks and cars had been cut and his wife got some threatening phone calls about their kids not coming back from school. I was told to discontinue the lawsuit, which I did.

In another case, a lawyer asked me to take over an action by another crime family. They had sued the joint forces of RCMP, OPP, Hamilton police, crown attorney, CMHC and others for malicious prosecution and an outstanding account CMHC refused to pay. The action arose out of a shake down of the local crime groups by charging them with fraud installing insulation to homes under a government program. However, when the case went to criminal trial, the evidence was that they actually put in more roof insulation than was required so the charges were dismissed. It was an old case that sat in limbo for a few years. It was interesting taking instructions from them. They would call from a pay phone and you would go for a walk or to a restaurant with five or six guys surrounding you, providing security for you and the boss. There were no discoveries and the defendants did not communicate until the case was on the trial list and then I got a call from counsel for the defendants for a meeting. We had the meeting and settled the case. They paid the full amount plus interest and costs. The funds came from a lot of different accounts. This happened in another case when I sued the Crown and OPP for a couple whose home was mistakenly raided in the middle of the night by OPP and my clients were arrested. You can note the Crown in default but you have to serve them with a trial record and then they come and settle the case with you. This avoids discovery.

From a different perspective, I was an expert witness for a lawyer for the lawyers’ insurance company. A client that lost a case at trial sued his lawyer for professional negligence on how the lawyer conducted the trial. Tim Bates who was defence counsel called me to review the file that had been going for 10 years and give an expert opinion about it. I also gave expert evidence on advocacy and trial procedures at trial before Mr. Justice Strathy and was extensively cross examined. I realized what witnesses go through and I was more careful when I called them to testify. The action was dismissed with costs. It was a different experience but I am glad the lawyer was finally relieved of this problem client.

I defended a young man who was found to be not criminally responsible for criminal negligence charges after he stole his mother’s car and was driving to crash it and kill himself but crashed into another car seriously injuring the driver and her child. They sued my client in negligence for causing the accident. My client had a PHD and a drug problem. He was in distress, suicidal and his mother and sister drove in from out of town and took him to the psychiatric hospital in the area. He was admitted for observation but released in the morning even though he had tried to get a gun off a police officer with the stated intention of shooting himself. Mother and sister drove him home and he stole their car and drove off getting into the accident. My client was psychotic and had no recollection of any the events. We sued the doctors and the hospital for releasing him in this state. There were a bunch of motions to dismiss and the case was dismissed against my client because he was in a state of mind where he did not know what was right or wrong to be found liable for negligence. The case was also dismissed against the mother. My third party claim against the doctors and hospital was also dismissed. The plaintiffs had not sued the doctors even though I told them to. The only party left in the action was their own auto insurance but it was unclear if there was any coverage for this situation. The plaintiffs may have no one to sue except their own lawyers.

Anything can happen at a jury trial. That was true in the Bradbury case. I represented the plaintiff a young lady who had been involved in two accidents with three defendants. In one accident, she was a passenger and she had been thrown off a motorcycle. She had been diagnosed with soft tissue injuries at the hospital but she had gone home and started to forget things, left the stove on, started dropping things and had trouble walking without assistance. She was then diagnosed with a head injury that they missed at the hospital even though there was damage to the helmet she was wearing. During the trial, the evidence and damages were impressive. We were into the fourth week of the trial and the judge, Mr. Justice Barr had a heart attack on the bench. Trial was adjourned and he went to the hospital. He then went off on sick leave and did not return. The problem was how do you finish the trial? The first attempt was to have a settlement conference with a senior Supreme Court justice who ordered the vice presidents in charge of claims to the conference which failed to resolve the case. Then we were summoned to Osgoode Hall and met with the Chief Justice of Ontario, Mr. Justice Parker who demanded that the case be settled within the defendant’s policy limits. When the defence counsel objected, Parker was prepared to appoint another judge to. Finish the case or start it over again if he thought it was necessary. Needless to say, the cost were escalated and the Court had recognized the plaintiff’s head injury so the case settled just within the policy limits.

Just a brief note on appeals. I enjoyed doing them. You argued pure law that sometime resulted in a new precedents. The problem with appeals is that as long as there is some evidence to support the findings of fact or jury verdict, your appeal will fail unless there is an error of law but even if there is, if there is no substantial wrong or miscarriage of justice, you will also lose. The Ontario Court of Appeal can be intimidating with 5 judges but the Supreme Court of Canada with 9 judges can be a free for all with all of them asking questions. The Court of Appeal judges were gentlemen compared to the Supreme Court. However, I thoroughly enjoyed it and lucky to have clients who believed in and supported me.

There are so many cases that I did I could write another book but that gives you some idea of my practice for over 40 years as a litigation counsel.

Being a lawyer for my family has made it easier for them because they had my love and support. Nancy was able to take seven years off from teaching to raise our children until they went to school full time. We were able to pay for both our children’s education with Honours BAs and post graduate degrees. We were able to build a big home in an upscale neighbourhood to raise our family. We were able to join private golf courses and social clubs. We saw the other side of society. It was a whole different world of wealth and influence. We were able to take enjoyable family vacations. They had access to the best medical doctors and were able to attend entrainment, travel and dining at different venues. They had access to top legal help whenever they needed. They were very proud of me and well respected by all who knew them. I could not have been successful without the love and support of my parents and Nancy and my children.

Looking back at my life and experience, I can see how education is the best route for a better and fulfilling life. My parents were right. Also it is a credit to Canada that a small child from a mountain village in Italy can immigrate to Canada and become a professional like a lawyer. I like to think anything is possible in a democracy like Canada. Immigrants can make Canada better and more diverse to improve our society. I hope Canada continues receiving immigrants from all over the world.