On the Record: Bay Street associates get their first pay raise in a decade

In 2016, Fasken Martineau DuMoulin LLP embarked on its first firm-wide strategic review in a decade. “After that,” recalls Martin Denyes, the managing partner of the firm’s Ontario offices, “we sat down with our associates and asked for feedback.”

One complaint pervaded those conversations: it had been more than a decade since Fasken — or, for that matter, any large Bay Street firm — had made a large-scale adjustment to its associate salary grid. In other words, the associates wanted more money.

Throughout the post-recession era, firms easily parried such requests. “Since 2008, there have been more lawyers than there has been work,” says Denyes. So large firms never struggled to land and retain top talent.

But two years ago, that changed. At Fasken, the attrition rate among mid-level associates rose sharply. The strategic review uncovered the reason. Fat-walleted companies — in technology, engineering and accounting — were poaching a growing number of associates to fill non-legal roles, luring them away, in part, with higher salaries. “We learned that the pinch-point was third year,” says Denyes. “Once our people had that level of experience, there was a lot more competition in the business community for their services. This was new.”

In August 2017, Fasken revamped the salary grid at its Toronto office and the numbers soon leaked across Bay Street. The firm left compensation the same for first years (at $100,000) and sixth years (at $190,000). But it raised the salaries for second years (to $120,000), third years (to $150,000), fourth years (to $165,000) and fifth years (to $175,000).

“We figured the other large firms would match our numbers within a few days,” says Denyes. And, in the end, the Fasken pay bump set off a frenzy.

“I received a few calls that week,” recalls Frances Mahil, the director of associate and student programs at Davies Ward Phillips & Vineberg LLP. “My gut was that the Street would likely move to at least match Fasken at the third-year level.”

Davies, however, left its salary structure intact. “We’ve always been a little higher than the Street,” says Mahil, “so the bump at Fasken did not impact our levels as they were still below what we already paid.” (For example: first-year associates at Fasken earn $100,000, while the base salary for their counterparts at Davies is $130,000.)

When contacted by Precedent, most large firms declined to comment on associate compensation. But Eva Bellissimo, chair of the practice excellence committee at Cassels Brock & Blackwell LLP, confirmed in an email that her firm had also increased its associate salaries. (She declined to provide exact numbers.) “We wanted to make sure,” she wrote, “we remained more than competitive in our markets.”

When Fasken announced its raise, last summer, associates were thrilled. “I think we caught them by surprise,” says Denyes. “It went over very well.”

Spring 2018 cover webThis story is from our Spring 2018 Issue.




Illustration by Alina Skyson

Cover Story: Baby talk

Part one: Timing isn’t everything

Illustrations by Emily Taylor

When Sara Cohen turned 29, she thought, Uh-oh. At the time, a decade ago, she was a commercial litigator at a large Bay Street firm and her proverbial biological clock was ticking. Cohen knew she wanted to have children, but she didn’t want to give up her career to do it.

“If you want to be a successful lawyer at a demanding firm, you need to be dedicated and available all the time,” she says. “Unfortunately, the reality is that when you have a family, you have fewer hours to dedicate to your practice. It’s naive to think that won’t affect your career. If you can’t be as dedicated, you may not be given the same quality of files.”

This makes timing a family tricky. Many women in private practice feel they must first make partner, often putting children on hold until their late 30s. Others simply abandon big-firm life. Take Cohen. After she had her first child, in 2010, she left her firm to start D2Law LLP — with her husband, Anatoly Dvorkin — where she practises fertility law (she now has two sons, aged four and seven).

Building up a career before having a child is widespread in the legal profession. “This is understandable,” says Sheena MacAskill, a legal-career coach in Toronto, who practised at McCarthy Tétrault LLP for 13 years. “It makes particular sense today, when it’s more difficult to make partner. I understand why women delay having children in the face of this uncertainty.”

The idea, of course, is that once a woman reaches a certain level of success, she’ll have the authority to take time off work — for maternity leave and to raise a child — without suffering in her career.

But here’s the problem: that isn’t really what happens. As Cohen explains, even though she runs her own firm, she still struggles to fulfill the needs of her clients and simultaneously pay enough attention to her kids. “Being a parent makes you look at things differently. You start asking yourself, ‘Is this valuable?’ and ‘What am I doing with my life?’”

At large firms, women with children still face unconscious bias even if they have a spot in the partnership. “When a male lawyer is absent from the office, it’s assumed he’s dealing with a client matter,” says MacAskill. “When a woman lawyer is absent, it’s assumed she’s dealing with a family issue.” The end result: no matter how strategically women may have timed their pregnancies, they still can’t win.

It’s no secret that some new parents flee private practice for an in-house role, hoping to have a work schedule that allows for more time to be at home. But this solution, too, is not as simple as it sounds.

Consider the story of Andrew Nisker and his wife, Sarah Nisker. Over the past decade, the couple has had three children. And, along the way, they’ve made multiple adjustments to their careers, always trying to strike the right balance between work and family.

Before the birth of their first child — a daughter, in 2009 — Andrew left a large Bay Street firm to work as a prosecutor, where he was able to log slightly fewer hours.

In 2010, the couple had a second daughter. A year later, Sarah left her job at Stikeman Elliott LLP for an in-house gig at Loblaws. “And yet, I worked just as hard, if not harder,” she says. “There are fewer associates or admin staff to help when you work in-house.”

Not all parents want to be home all the time, but the Niskers did. “We wanted one of us to be there for our kids after school,” says Andrew. “That was important to us.”

Shortly after having their third child — a son, in 2013 — they scaled back their careers even further. Sarah switched her role at Loblaws to vice-president of food safety, quality assurance and regulatory affairs, a less-demanding gig than in-house counsel. The couple then moved to Guelph, for the low cost of living. This allowed Andrew to start job sharing and be home three days a week.

Their solution is not for everyone. But it demonstrates that simply “going in-house” won’t solve all your problems. “Parents have to get creative,” says Andrew. “Once you find something that works, it’s totally worth it.”

Part two: When babies don’t come easy

Illustrations by Emily Taylor; Photography by Vicky Lam

When Christine Davies of Goldblatt Partners got married five years ago, she was 29. Her partner, Meaghan, also a lawyer, was three years older. Both women wanted children and they decided that they should each carry one. In 2013, Meaghan gave birth to a daughter.

Unfortunately, when Davies’s turn came, she discovered it wasn’t going to be easy. She underwent several unsuccessful fertility treatments. First, they tried intrauterine insemination (in which sperm are inserted directly into the uterus after ovulation). When that didn’t work, they opted for in vitro fertilization (in which eggs are removed, fertilized, then returned to the uterus).

Though IVF is a scientific marvel, it has its downsides. It involves regular hormone injections, which can be deeply unpleasant. Eventually, the doctor has to perform a trans-vaginal egg retrieval, which can be painful. But, for Davies, the hardest thing might have been coping with the stress and grief of not being able to get pregnant. “I tried to manage my job as best I could,” she says. “Sometimes work even helped because it offered a distraction. The emotional part of fertility treatment was so much harder than the physical.”

In the end, Davies was unable to carry a child. So the couple decided to transfer a fertilized embryo from Davies to Meaghan. They had a second daughter in 2016.

“I know many lawyers keep quiet about infertility because there’s still a lot of stigma around it,” says Davies. “Or they don’t want others in their firm to know they’re trying to start a family.”

Dr. Marjorie Dixon, the founder and medical director of Anova Fertility & Reproductive Health in Toronto, sees the power of stigma in her medical practice. “I often bring women into the clinic after hours so no one will suspect,” she says. “No matter how educated and self-assured these women are, there’s a lot of shame and guilt around infertility and they don’t want anybody to know.”

When Jennifer Hunter, a partner at Lerners LLP, went through fertility treatment, she found it difficult. Seven years ago, when she was 30 and still an associate, she decided to have a child with her husband, Scott Hunter (who’s now a stay-at-home dad, but previously worked as a restaurant manager).

At first, things went well: she got pregnant. But one morning early on in her pregnancy, she started spotting and suspected that she was having a miscarriage. She still went to court that day. “I felt I had to put my personal problems aside,” she says, “and put on a professional face and just do my job.” When court was over, she saw her health-care provider, who confirmed it was a miscarriage.

After that, Hunter had difficulty getting pregnant a second time. By 2014, she had started IVF treatment. “I didn’t know how invasive it would be, both physically and emotionally,” she says. “There are a lot of needles, internal ultrasounds, hormones and physical examinations. Sometimes daily.”

At the office, it was often very difficult to leave for injections. “You kind of hope nobody notices,” she says. “But it’s a hard thing to hide.”

After two rounds of treatment, she got pregnant. And in 2016, she gave birth to a healthy son. “The reward is absolutely worth it,” she says, adding that it was a long, tiring journey. “I don’t think we all need to be talking about infertility all the time, but if more people understand the struggle, then the women and the men going through it might feel a little less lonely.”

Infertility can be particularly stressful for lawyers because they tend to be high achievers who are used to reaching their goals through hard work, explains Dr. Prati A. Sharma, a reproductive endocrinologist in Toronto.

“They come to see me, they’re of reproductive age, they’re healthy and they feel great,” says Sharma. “So they can’t understand why, in this one situation, they’re unable to be successful.”

Part three: Father figures

Illustrations by Emily Taylor; Photography by Vicky Lam

The day you bring a new baby home is the day things get complicated. “Even for lawyers who have help at home — like a nanny or extended family — it can be overwhelming,” says MacAskill. “You have to manage your practice along with all aspects of home life, from medical appointments to school activities.”

Historically, women have had to perform this balancing act alone. But a positive new parenting trend has found its way into the legal profession: an increase in the availability — and acceptance — of paternity leave.

In most of Canada, parents can split up to 35 weeks of leave, on top of 15 weeks that biological mothers can take on their own. (In Quebec, the benefits are more generous.) In Ontario, the government will pay parents taking time off 55 percent of their salary. Every employer then has the option of topping up that government benefit.

When female lawyers take parental leave, most large firms generously top up the government payments. Historically, men were left out of the equation.

But in the past half-decade, most large firms have started to offer new fathers four weeks of paternity leave at full pay. For heterosexual couples, this allows men to take time off alongside their partner, immediately after she has given birth. Davies Ward Phillips & Vineberg LLP is one firm that has put in place such a policy.

“We recognize that becoming a dad is a life-changing event and that child care is a shared responsibility for both parents,” says Frances Mahil, the director of associate and student programs at the firm. “There’s also lots of research to support the fact that, when dads take a leave, they are more involved in the long run. We’ve been excited to see male lawyers take advantage of the policy, as it helps lessen gender imbalances.”

Ryan Elger, a 33-year-old associate at Davies, recently made use of this policy. When his son was born in April, he took his newly allotted four weeks of leave.

“I was really happy when my firm adopted the policy a couple of years ago,” he says. “I was happy to be home following delivery, during my wife’s recovery, to spend time with both of them.”

Meanwhile, Sunil Gurmukh, counsel with the Ontario Human Rights Commission, is in the middle of a 17-week paternity leave, which he took to spend time with his new daughter. With the top-up he’s receiving from his employer, Gurmukh will earn 93 percent of his salary during this period.

Gurmukh’s wife is also on leave from her job at the family’s business. The couple plans to sneak some travel into their time off.

Although Gurmukh does respond to the occasional email and remains engaged with what’s going on at work and in human-rights law, he’s asked colleagues not to copy him on most emails. “I want to make it a full parental leave,” he says. “It gives me time to bond with my daughter and to have an impact on her life. That’s why I took leave in the first place.” He spends entire mornings at the St. Lawrence Market with his daughter, Amaia, and they’re taking music classes at the community centre in his Harbourfront neighbourhood. They also read a lot of books. “I’m definitely not bored,” he says. “She’s at the smiling-and-laughing stage — and I love it.”

Andrew Nisker also sees the social importance of men taking parental leave. He took time off after the birth of each of his children: five months with his first, seven months with his second, eight months with his third. (Since he’s a Crown, his top-up brings him close to his full salary.)

After each birth, Sarah, his wife, took off some time, but didn’t want to wait a whole year before returning to work. “If a family chooses for the woman to go back to work early and have the husband take a leave, it should be okay to do that,” says Andrew. “I don’t see why professional men and women should be treated any differently when it comes to parental leave.”

For her part, Sarah loved that her husband wanted to take as much leave as he did. “It’s so important for both parents to build a strong foundation for their family.”

But there’s another side to this trend. Although a growing number of men have taken parental leave over the past several decades, there’s no guarantee that this will continue. In 2014, according to the latest figures from Statistics Canada, 27.1 percent of recent fathers either claimed or intended to take parental leave. That’s not a bad number, but it’s actually a slight drop from the previous year, where that figure sat at 30.9 percent.

To Gurmukh, that’s a shame. “Parenting is a joint responsibility,” he says. “I hope there is a cultural shift, in which more men are able and willing to take parental leave.”

Precedent Magazine winter issue 2017 coverThis story is from our Winter 2017 Issue.




Illustrations by Emily Taylor; Photography by Vicky Lam

Best Practices: When athletes find themselves in trouble, they call James Bunting

During his first year of law school at Western University, James Bunting saw his best friend, Stefan, get cut from the national alpine team following an injury. After seeing his friend’s lifetime of passion and hard work snatched away in an instant, Bunting was infuriated. “I remember arrogantly telling him not to worry,” recalls 39-year-old Bunting, better known to buddies as Jim. “I told him I’d handle it.”

Bunting got to work, scouring Alpine Canada’s policies. He found one that essentially forbade teams from cutting athletes who were healing from an injury. “We appealed the decision, it went to arbitration, and we won.”

James Bunting headshot

“These cases are deeply rewarding. I can give athletes the chance to get back to their passion,” says James Bunting.

From that moment on, the Torontonian began carving a spot for himself in the sports-law world. In 2002, as a 3L, he nabbed a job that any budding sports lawyer would covet: during the Winter Olympics in Salt Lake City, he clerked with the Court of Arbitration for Sport, which deals with any disputes that crop up during the games. To make it happen, he missed three weeks of school. “Somehow I still passed,” he jokes.

After graduation, Bunting articled at Davies Ward Phillips & Vineberg LLP, and moved into litigation. “I like the strategy and being on my feet,” he says, “and some people will tell you I never shut up.”

Most days, Bunting does general litigation including class action and securities work. But he also handles between two and four sports cases per year, sometimes pro bono. One of his more interesting cases involved the Canadian cyclist Jack Burke, who tested positive in 2013 for hydrochlorothiazide, a heart medication and diuretic that causes rapid weight loss. “I couldn’t even pronounce it,” says Burke, who was then 18. He called his father, who asked Cycling Canada for legal advice, and soon received a list of lawyers who might take the case pro bono. “Jim was the first person to call back.”

During that call, Bunting was blunt with Burke. “He said, ‘Are you being honest? Did you take anything?’” recalls Burke. “I said, ‘No, of course not.’ He was completely behind me from then on.” This was around the time of Lance Armstrong’s doping confession, so everyone was primed to presume cyclists were guilty.

Bunting set out to prove Burke’s innocence. He started by locating the site where Burke filled his water bottles in Malartic, Que. It turned out to be beside a golf course, which uses fertilizers made from waste byproducts — that often contain, you guessed it, small amounts of hydrochlorothiazide. Bunting argued that the fertilizer contaminated Burke’s drinking water. The result: a very rare and difficult no-fault finding that saved Burke’s cycling career.

Bunting’s clients are often just like Burke — athletes who, by no mistake of their own, need serious help. Take the Indian runner Dutee Chand, who at 18 was flagged for hyperandrogenism (having naturally high testosterone levels) and deemed ineligible to run in the 2014 Commonwealth Games. “It was unfair,” says Bunting. The ban was outright discrimination, no different than punishing a sprinter for having long legs. In early 2015, Bunting became her lawyer through his connections in the sports-law community. His goal was to lift her ban in time for her to qualify for the 2016 Summer Olympics in Rio de Janeiro. “In my initial call with her, I told her I’d fight for her like she was one of my own daughters,” says Bunting, a father to two girls.

So, in March 2015, Bunting travelled to the Court of Arbitration for Sport in Switzerland and argued on Chand’s behalf in a week-long hearing. He was up against the International Association of Athletics Federations, which said that Chand must lower her hormone levels — for instance, through surgery or by taking hormone-suppressing drugs — to compete. Bunting countered that athletes have all sorts of advantageous genetic attributes. In July 2015, the IAAF suspended its regulations concerning hyperandrogenism for two years. Chand was therefore allowed to run the Olympics in Rio and continue to follow her dreams. (She ran in the 100m event, but failed to qualify for the semi-finals.)

“These cases are deeply rewarding,” says Bunting. “I can give athletes the chance to get back to their passion.” After all these years, he gets the same rosy feeling he did after helping out his very first client — still his best friend. Stefan now owns SXS Fitness, a gym near Yonge and Eglinton, and Bunting enjoys free membership. “They just had hats made for all the members,” he laughs. “Mine says ‘legal department.’”

James Bunting seated

James Bunting, pictured here at Davies, is Bay Street’s go-to sports lawyer

Timeline of a sports lawyer

2000: As a first-year law student at Western University, Bunting finds that his coursework comes easily. And so he fills all those extra hours with volunteering as a Big Brother.

2003: He finishes articling at Davies Ward Phillips & Vineberg LLP.

2004: Bunting marries his wife, Sarah Lesser, who works as a guidance counsellor. They now have two daughters, aged nine and six. “We’re through what I call ‘the haze,’” he jokes.

2006: In January, in his third year of practice, Bunting makes partner at Davies.

2016: Bunting spends two weeks in Rio as the athlete ombudsperson at the Summer Olympics, representing any athlete facing a sports-law problem. For example, when Canadian pole vaulter Shawn Barber tests positive for cocaine, Bunting acts on behalf of the Canadian Olympic Committee in Barber’s appeal. In the end, it’s established that Barber had recently kissed a woman who had, without his knowledge, ingested cocaine. Barber goes on to finish 10th.

This story is from our Spring 2017 issue.




Photography by Raina + Wilson

Best Practices: How Kerry O’Reilly Wilks became one of Toronto’s top mining lawyers

Kerry O’Reilly Wilks, head of legal for North America and the U.K. at the behemoth mining company Vale, had no plans to practise law anywhere but in her home province of Newfoundland. “Bay Street seemed too busy to be my scene,” says the 39-year-old. But she knew the food wasn’t bad. So in 2000, as a recent law grad from the University of New Brunswick, she decided to visit Toronto to interview (and schmooze) at a handful of firms. “You get free dinners and drinks, you know,” she laughs.

In the interviews, she was carefree. So imagine her shock when a partner from Davies Ward Phillips & Vineberg LLP offered her an articling position. “I looked right at him and said ‘Shut the hell up.’” Though hesitant, O’Reilly Wilks agreed to give it a try — just so she wouldn’t always wonder about life in the big city.

Kerry O'Reilly Wilks, lawyer

“Where I’m from, nobody gives a shit who you are or how much money you have,” says Kerry O’Reilly Wilks.

At first, Toronto was a maze. To get oriented, she used the city’s moose sculptures as landmarks. The hours were long. She routinely slept on the floor of her office. But she never thought to complain: having grown up in a tiny coastal town, Placentia, she always admired the fishermen and women who worked hard and never griped.

“Kerry’s all about achieving excellence through hard work,” says Kent Thomson, Davies’s head of litigation, who O’Reilly Wilks often hires as her external counsel. “At the same time, she’s easy to work with and always retains her sense of humour.”

That down-home, pretense-free East Coast charm is “so deep within me,” she says of her hometown. “Where I’m from, nobody gives a shit who you are or how much money you have.” Her parents are both grade-school teachers who taught O’Reilly Wilks to treat the janitor the same way she’d treat the teacher, a lesson she’s carried into law. “If you’re an arsehole, people remember.”

In 2005, she made partner at Davies and, two years later, after meeting him at a fundraiser, married Lloyd Wilks, a lawyer who runs a litigation-support firm. Following the arrival of their daughter Mairirois — that’s Gaelic for Mary Rose — Vale approached O’Reilly Wilks.

The thought of working on a global scale intrigued her. So she took the job with Vale, one of the world’s largest mining companies, headquartered in Rio de Janeiro. If only she spoke Rock. “It was like learning a new language,” she says.

One of her first roles with Vale was to be the head of legal for Asia and the South Pacific. Part of the job was to get mining projects off the ground by securing permits from multiple levels of government. At the time, she worked a great deal with an affiliate in Indonesia. That meant mastering foreign business customs. “Hand over your business card with both hands, otherwise it’s very disrespectful.”

The worst part of her job is when there’s a fatality in the mines. (This has happened four times in her tenure.) “I think about those individuals every day, and I know how easily accidents happen.”

Self-deprecating and immune to intimidation, her outsider qualities make her a refreshing addition to the Toronto establishment. “She brings a unique perspective with entirely different experiences,” says Vincent Mercier, a partner at Davies who has known her for 20 years.

That includes some deeply personal experiences. In 2014, when O’Reilly Wilks was 33 weeks pregnant with her second child, she was diagnosed with a life-threatening form of pre-eclampsia. The only way to save her was to deliver the baby. So her son, Malachy, was born prematurely and spent almost four weeks in the Neo-Natal Intensive Care Unit at St. Michael’s Hospital. And O’Reilly Wilks spent five days in critical care. Both made a full recovery, and O’Reilly Wilks left the hospital vowing to give back to the place that saved her and her baby.

So in July 2015, she threw a swanky fundraiser at the Granite Club, dubbed Malachy’s Soiree, which raised $300,000 for the NICU that saved her child. And it’s become an annual affair: this September, take two of Malachy’s Soiree raised $500,000, in part because O’Reilly Wilks assembled a team of legal power players — including Carol Hansell (a leading corporate lawyer), Anne Ristic (the co-managing partner of Stikeman Elliott LLP) and Marie Henein (Toronto’s celebrity criminal lawyer) — to rally the legal community to the cause.

O’Reilly Wilks has, without thinking about it much, become a towering figure in the legal community. And, though it’s not the case at Vale, in most boardrooms today she’s often one of the only women. But she hardly notices. “Honestly, I don’t really give a shit,” she says. “For good or bad, I’m quite oblivious.”

Kerry O'Reilly Wilks, lawyer

Kerry O’Reilly Wilks
Head of Legal, North America and the U.K., Vale
Year of call: 2002

Timeline of a mining lawyer

1983: In elementary school, O’Reilly Wilks plans to be a lawyer so she can get a briefcase like her dad, a grade-school teacher. “He had an awesome one that went click-click-click and I wanted one.”

1998: She graduates from Dalhousie University with a degree in neuropsychology.

2000: Now in Toronto, O’Reilly Wilks starts articling at Davies Ward Phillips & Vineberg LLP.

2008: She moves to Vale. Her first visit to an underground mine in Sudbury is nerve-racking. “I was so nervous. Some of them are as deep as the Empire State Building is tall.”

2009: Promoted to head of legal for Asia and the South Pacific, she travels to mines in Indonesia.

2014: Her second child, Malachy, is born. “I always loved this name.”

2015: She becomes head of legal for North America and the U.K.

This story is from our Winter 2016 issue.




Photography by Lorella Zanetti. Shot on location at The Chase.