In the summer of 1990, near the end of my Supreme Court clerkship with Justice John Sopinka, he called me into his office to ask me a question: Would I be interested in being his co-author on a book he wanted to write about appellate law and practice? Of course, it took me only a few seconds to collect myself and answer with a resounding “yes”.
Over the next couple of years, we built the book from scratch. There was nothing like it in Canadian legal literature at the time. The first edition of The Conduct of an Appeal in 1993 completed a Sopinka trilogy that began with The Law of Evidence in Civil Cases in 1974 and continued with The Trial of an Action in 1981. These books, as they evolve in subsequent editions, remain as a tribute to John’s important contributions to Canadian legal scholarship.
With his untimely passing in 1997, we lost the benefit of the further strong contributions he would have made to Canadian jurisprudence in his judgments on the Supreme Court of Canada. On a more personal level, several generations of his former juniors and clerks lost the benefit of his guidance and mentorship. He was a giant on the Canadian legal landscape, without an obvious analogue on the scene today. I would like to thank Mrs. Marie Sopinka and Melanie Sopinka for entrusting me to continue to revise a book that carries John Sopinka’s name.
In the time that has passed since the publication of the second edition of The Conduct of an Appeal in 2000, there have been many judicial and statutory developments in the subject matter of this work. I have endeavoured to capture and reflect those changes in a way that will be as user-friendly as possible for practitioners and academics alike.
I am very grateful to a number of people who assisted me in the preparation of this third edition. A dedicated group of my colleagues at Osler, Hoskin & Harcourt LLP provided me with research assistance and substantive drafting: Mary Paterson, Craig Lockwood, Rob Carson, Victoria Creighton, Kevin O’Brien, Jennifer Fairfax, Karin Sachar, Jason MacLean, Lauren Tomasich, Patricia McMahon, Dave Mollica, Carly Fidler and Stephanie Fujarczuk. I acknowledge with thanks the support of my partners at Osler. Many thanks also to my former partner Justice David Stratas for his helpful comments on Chapter 6.
Finally, I would like to thank retired Justice Ian Binnie, Justice Sopinka’s distinguished successor on the Court, for contributing the Foreword.
As new developments in appellate law and practice occur, I will be commenting on them at conductofanappeal.com. Information or suggestions concerning new cases or other content that might be of interest to readers of this book would be gratefully received.
Mark A. Gelowitz
October 2012