The Tiger In The Jungle: A Tribute To Neil Finkelstein

On June 12, 2018, the Canadian legal community lost an icon of the litigation bar with the passing of Neil Richard Finkelstein.

Neil's achievements as a litigator were legendary. After graduating from McGill Law School in 1979, obtaining his LLM from Harvard Law School in 1980, and serving as Law Clerk to Chief Justice Bora Laskin from 1980-1981, Neil went on to argue 30 appeals at the Supreme Court of Canada, 58 appeals in nine courts of appeal, 102 trials and hearings in eight provinces, two commissions of inquiry, and two international arbitrations.

Over the course of his nearly 40-year career, he successfully litigated some of the most important cases in Canadian legal history. Along the way, he found time to author, co-author and edit seven books and 32 articles, while teaching generations of students at the University of Toronto and Osgoode Hall law schools, and acting as a tireless mentor for countless junior lawyers. All this was secondary, of course, to Neil's primary calling as a devoted husband, father and grandfather.

Neil was a great lover of stories, and he constantly relayed old anecdotes about life and litigation to his juniors. One of his favorites concerned a conversation with his mentor, Justice Willard "Bud" Estey of the Supreme Court of Canada, early in Neil's career. As a young man with both a Chartered Accountant designation and two law degrees, Neil asked Justice Estey why he should stick with litigation, rather than make more money by pursuing a career in finance. Justice Estey responded, "Neil, once you've been a tiger stalking in the jungle, you can never be anything else".

Neil took that advice to heart. He went on to become a tiger of the Canadian litigation bar. In this blog post, we honour his legacy by tracing five of his most significant cases, and explaining their enduring implications for our legal system.

Ross v. New Brunswick School District No. 15,[1996] 1 SCR 825

Malcolm Ross was a Holocaust denier and an anti-Semite. He was also a schoolteacher in Lutes Mountain, New Brunswick. In 1988, a Moncton resident and parent named David Attis filed a complaint with the province's Human Rights Commission in respect of Ross's conduct. The Commission convened a Board of Inquiry, which ordered the school board to remove Ross from the classroom - and to fire him entirely unless he stopped spewing hatred. Ross sought judicial review, and won at the New Brunswick Court of Appeal. Attis, the Commission, and others brought the case to the Supreme Court of Canada.

Neil acted for the Canadian Jewish Congress in the New Brunswick Court of Appeal - judgment here - and for Attis before the Supreme Court of Canada. His submissions focused on the constitutionality of the Board's order, and the balance to be struck between Ross's freedom of expression and freedom of religion, and his students' right to a learning environment free from bias, prejudice and intolerance. Neil argued that Ross's conduct had "poisoned the educational environment at the school and created an environment in which Jewish students were forced to confront racist sentiment" (at para. 34). This, he said, made the infringements on Ross's Charter rights reasonable and demonstrably justifiable, and thus constitutional.

The Court agreed. It upheld the Board's order that...