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March 27, 2019 | 19
Reflections on the Davies Moot Or how I learned to love the Securities Act TOM COLLINS (2L) 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 “It’s all downhill from here” where we stood as a team. Historically, our strongest Finishing the factums markedly changed the nacompetition has come from Western University and ture of the preparation. With our arguments more the University of Calgary, and or less set, my team and I we did not face either in our could focus on learning first four rounds. The Responthem. This was when we beAll I remember is dents faced Queen’s University gan doing regular internal pointing urgently at the and the University of Manitoand in-firm run-throughs. the Appellants faced UBC Internal run-throughs massive print edition of ba; and Dalhousie. were a lot more like my trythe Securities Act... The announcement of finalout experience. I usually ists came at 3:30 pm. It is a surworked with Hesam, who prisingly brief announcement had written the appellant’s where the organizers thanked version of the respondents’ everyone for their participation and then named the submissions that I had drafted. The idea was to find two teams. The school that amassed the most points as many weaknesses in each other’s arguments as in the preliminary rounds also got to choose which possible and to account for those, while learning side they wanted to argue. both sides of the argument. We scored the most points, and so we had the benIn-firm run-throughs were more of an opportuefit of choosing which side to argue. The consensus nity to get the unique perspectives of practitioners on the team was that the Respondents had inherently who specialize in the sort of securities market issues stronger arguments, especially from a policy standwith which we were dealing. That is to say that durpoint. Daryna and I, who wrote those arguments, ing those run-throughs, we are not supposed to ask were chosen as representatives. We were then questions while others moot. I learned that by acciwhisked away to get robed-up. I just remember being dent, when my coaches passed a note down a long in this utility closet with a chair that Dylan had table at McCarthy Tétrault LLP telling me to stop spilled coffee on. Chris was playing a meditative asking questions of Hesam, so that the practitioners breathing exercise video on his phone, and someone could have a go. Oops. was yelling at me to do something while I was busy During the final run-through at McCarthy’s, trying to find a citation in this monstrously long two of our practitioner coaches, Andrew Matheson ABSC decision called Re Ironside ([2002] ASCD No and Simon Cameron (’17), fired twenty-seven ques158 (Alta Sec Comm)). tions at me in just twenty minutes. It took me twelve The final panel was made up of five judges: The minutes just to off my introduction! I really believe Hon. Justice Robert Armstrong, former justice of the that run-through, and others like it, gave my team a Ontario Court of Appeal; the Hon. Mr. Lucien discernible advantage. None of the three rounds Bouchard, PC, GOQ, AdE, a former Premier of that I mooted at the competition presented any Québec, Secretary of State, Cabinet Minister in the similarly hot bench. Canadian government and Ambassador to France; the Hon. Justice Kathryn Feldman of the Ontario Year five Court of Appeal; the Hon. Justice Siobhan We agreed that the competition was just going to be Monaghan of the Tax Court of Canada; and Grant like another run-through, and looking back, it was. Vingoe, Vice Chair of the Ontario Securities ComBut I have to admit that the pressure to succeed was mission. felt. Speaking after Osgoode gave Daryna and I time The University of Toronto has won the Davies to strategize. I could no longer tell you what the stratMoot more than any other school. We had placed egy was. The only record I have is a page of notes that first for four years in a row. On the one hand, that we scrawled to each other during Osgoode’s submissuggests something about the strength of our prosions. For those watching, I hear that my own submisgram and of our coaching. On the other hand, the sions were nerve-wracking, because I started a new pessimist in me remembered the 2018 Baby Gale, argument with only a minute left and finished at 0:00 when U of T lost to Osgoode (I had competed in the on the dot. Daryna was much more methodical. In a Baby Gale). I wondered if, maybe, I just wasn’t that mix of good luck, good timing, and good preparagood. And, certainly, each one of my coaches is far tion, she got a question from Justice Feldman with more accomplished than I am. Ultimately, I manabout twenty seconds on the clock. Daryna got an aged to negotiate this self-doubt into cautious acindulgence to answer, which gave her time to really ceptance: “I’m just going to do my best and forget drive home what was probably our most devastating the rest (with a bottle of gin)”. policy argument. I remember the weight of her last I felt a lot more confident when I finally stepped few words thudding against my eardrums. up to the podium as first speaker for the responI knew that we had won, and I knew that she dents. I believe that most mooters would confirm would be Top Oralist. It was an amazing feeling. that that moment is a transformative one: you enter the zone and make the pitch that you have been 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. THE U OF T MOOTERS AT THE FINAL. FROM LEFT TO RIGHT: DARYNA KUTSYNA (2L), TOM FEORE (2L), HESAM WAFAEI (2L), AND TOM COLLINS (2L). PHOTO CREDIT: SEAN MACKAY.
“I heard it through the hemp vine” Introduction: “Days of Thrinder” Davies released the official problem around midIf you were to ask someone who has participated in a day on January 8. The problem was about a fictionmoot—competitive or not—to describe their experial, publicly-traded cannabis producer, Sativa Hotence, you could expect a variation on one of two house Hydroponics, facing a class action for answers: (1) it was the most amazing experience that allegedly breaching its timely disclosure obligations I have had at law school, or (2) it was all-consuming under s. 75 of the Ontario Securities Act. Rather than and I am so happy that it is over. It is not unlikely issue material change reports when various disasters that you will hear both from the same person. I ravaged its facilities, Sativa preferred to let informawould certainly say both about my time on the Dation travel “through the hemp vine”. vies Corporate/Securities Moot, which was held at Daryna and I represented the respondents (Satithe Federal Court at 180 Queen Street West on va and its management) and Tom and Hesam repreMarch 8 and 9. sented the appellant (the class representative). Admittedly, my opinion of mooting is coloured by It is one thing to be told that something is going to the success that my team and I achieved (first-place be challenging, and a whole other thing to live it. overall, third-place factum, top oralist for Daryna Starting January 8, mooting became my life. If I was Kutsyna (2L), my teammate). not eating, sleeping, or in class, I was noting up secuNevertheless, I want to provide as objective a rerities cases, researching the legislative history of the flection as I can and inspire others to pick the Davies relevant provisions of the Securities Act, writing new Moot as their top choice. This year, my team was arguments, or attending run-throughs. coached by Adil Abdulla (3L), Dylan Murray (3L), That level of dedication Chris Puskas (3L), and Shaan seemed common among comTolani (3L), and supervised petitive mooters. I had friends by Professor Anita Anand, I wrote at least fifteen in nearly every moot and the J.R. Kimber Chair in Invesdrafts of my arguments consensus was that “moot is tor Protection and Corporate love; moot is life.” That said, Governance & Academic Dibefore getting the my own motivation may have rector, Centre for the Legal version that I submitted been more unusual. I really beProfession and Program on lieved that winning the moot Ethics in Law and Business. to the Moot. could dramatically change my Next year, you would have career prospects. me, Daryna, and my other phenomenal teammates Tom This is a case about... Feore (2L) and Hesam Wafaei (2L). I wrote at least fifteen drafts of my arguments before I wanted the Davies Moot for two reasons. First, I getting the version that I submitted to the Moot. If wanted to try something new. At the time, I did not you do the math, that was an average of one neareven know what a security was. Second, I thought full re-write every other day. Restructuring arguthat it would look good on my CV, and I needed ments was a big part of that, but so was crafting a that. I blew the 2L recruit. I didn’t get a single OCI. narrative. You need to communicate why your case I found out the same day that we got the try-out matters. problem and I was gutted. I was afraid that if I told Rewriting can be disheartening at times, but it is people that I had failed so completely, they would important to remember that your coaches are pointnot want to prepare with me, because they would ing out your problems so that you can fix them. And think that I was incompetent. it feels so good when you finally do something right. I was selected for the Davies Moot after a weekFor me, the highlight came the night before the facend of ridiculous over-preparation with a group of tum was due. Chris and I were in the Moot Court friends who were more than content to explore the Committee Boardroom, trying to tighten the appelboundaries of what could possibly be asked about lant’s arguments. We really needed a case that said the limited s. 15 problem we had to argue. I distinctthat bad publicity alone can be “material” within ly recall Jason Lamb (2L) finding a 200-page BCSC the meaning of the Securities Act. This was something decision on polygamy that the rules barred us from that had eluded us for a month. Just after midnight, using; James Aston (2L) comparing a polygamous I struck gold: a US Supreme Court case, Matrixx Inirelationship to a Caesar salad in which the denial of tiatives, Inc v Siracusano, 563 US 27 (2011), said just marriage was like the omission of croutons; and a that. series of room-bookings with such inspired titles as Of course, our work was far from over. Two days “St. Augustine was an Ethical Non-Monogamist”, earlier, I had been sitting in that same room, and “Mad Moot: Beyond Thrinderdome”, and “I Knew Daryna had confidently ventured that we could You Were Throuple When You Walked In”. probably get out of there by 11:00 pm. The coaches looked at each other and then Shaan burst out
