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Winkler shocked to get job as Ontario’s top judge

|Written By Jennifer McPhee

Warren K. Winkler, the new chief justice of the Ontario Court of Appeal, grew up in Pincher Creek, a tiny town in Alberta, and had never even met a lawyer when he selected his future profession while hiking through the Rocky Mountains almost half a century ago.

Chief Justice Warren Winkler says he was taken completely off guard when the justice minister called to offer him the new job. Photo: Jennifer McPhee

“I sat down on a rock and started thinking, am I going to be a historian? Am I going to be a biologist? All of a sudden my mind just came across the idea of being a lawyer.”

After a renowned legal career that has spanned more than 40 years, the former Ontario Superior Court regional senior justice for the Toronto region was still taken completely off guard when federal Justice Minister Rob Nicholson called to ask him to accept the position of Ontario’s top judge.

“I couldn’t catch my breath and was totally inarticulate because I was so shocked,” says the avid outdoorsman, known for his down-to-earth nature and sense of humour.

He immediately left a message with his wife, asking her to call him right away. She thought their dog Gretzky must have died because of the tone of Winkler’s voice.

And although his appointment also took the legal community by surprise, those who know him say he is a highly-respected judge who will bring the right experience and attributes to the table.

“He is a supremely-intelligent, masterful problem solver who has a great common touch,” says Ontario Attorney General Michael Bryant. “We are very much looking forward to working with him in the future.”

For the past three of his 14 years on the bench, Winkler has administered the third-largest trial court in Canada. He is considered the pre-eminent expert on labour and class action law.

Winkler has also acted as a judicial mediator for many large multi-party disputes, including the Walkerton tainted-water disaster and the Air Canada restructuring.

Prior to his appointment to the then-General Division of the Ontario Court in 1993, he was a practising labour lawyer for many years and sat on numerous arbitration panels.

In his spare time, Winkler chairs the Long Point Waterfowl and Wetlands Research Fund and acts as a member of the board of directors of Bird Studies Canada.

“I was surprised because I hadn’t heard that he was in the running, but when you think about it, he’s someone who has got all the qualities to be perfect for that position,” says Sandra Forbes, a partner at Davies Ward Phillips & Vineberg LLP, who has appeared before Winkler and worked with him in her role on the executive of the Advocates’ Society.

“He’s got the experience of a practising lawyer. He was an experienced mediator and he’s a fabulous people person and administrator. I think it’s a very positive appointment for the bar,” says Forbes.

Winkler was instrumental in laying the foundation in the development of Canadian class action jurisprudence, says class action lawyer Joel Rochon of Rochon Genova LLP.

“The class action bar’s loss will be the appellate court’s gain,” he says.

Winkler has demonstrated a remarkable ability to find the middle ground, and to distil the core facts and legal principles at stake in complicated situations, says Linda Rothstein, managing partner of Paliare Roland and past president of the Advocates’ Society.

“He has a very sharp legal mind and I think he has a huge commitment to the justice system and to improving access to justice, which is one of the huge issues for any chief justice of Ontario in our complicated, modern, overly-costly legal environment.

“He has a great sense of humour, which is a blessed attribute in just about any complicated administrative job.”

He is actually quite similar to his predecessor, Roy McMurtry, in some important ways, she says.

“The same kind of humanity and compassion are very much part of who he is and how he conducts himself as a judge,” she says. “He has a real human touch and a real ability to understand the importance of the justice system to everyone.”

Winkler says he enjoys class action work because it’s still a new area of law and therefore requires creativity and original thinking. But also, at its core, class actions are about giving ordinary people - who have often suffered great personal tragedies - access to justice, he says.

“People couldn’t have this remedy if it weren’t for class actions.”

Access to justice is also important to his predecessor, McMurtry, and to the other members of the Court of Appeal for Ontario.

“I’m going to continue with that because it’s been a big thing for me too,” he says. “I think it means a lot to the public.”

He has also noted the increasing diversity of the bar and plans to reach out to lawyers from different backgrounds to make sure they feel included and heard.

And he feels equally strongly about reaching out to lawyers in small communities across the province. Winkler splits his time between his Toronto home and his farm in Markdale, Ont.

“I know about small towns . . . and I think people in those places have to feel that they’re not left out, that they are part of the society too.”

Another priority will be visiting schools, so that young people understand how the justice system works.

“I’m a great believer in transparency of institutions. I don’t think people show respect for institutions that they don’t understand or look mysterious.”

When asked about his consensus-building and problem-solving skills, Winkler says he developed these abilities long before law school. People from small towns are forced to learn to settle disagreements, because they have no other option, he says.

“You couldn’t go hide,” he says. “There was nowhere to hide. . . . My parents were like that. If we had something going on in our family, it just got discussed and worked out . . . . I can’t remember one single fight in our family.

“When I’m involved in one of these big disputes, I just listen to people and they tell me [the solution],” he says. “Somewhere along the way, the solution will emerge. It’s like that in every walk of life. The solution is there, it’s just not obvious.”

Winkler is looking forward to this next phase of his career.

“It’s a great honour and a great challenge, and there’s a terrific responsibility that goes with it. I’ve always liked challenges.”

But he also says the Court of Appeal is much smaller than the Superior Court, and his new position will require some adjustments.

“It’s a court with an international reputation that’s based on the individual talents of the people. I have to understand that. That’s the heart of the court.”

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