The Hon. Bora Laskin: A Legendary Force at the University of Toronto
By Professor Martin L. Friedland
University Professor, Professor of Law Emeritus, and former Dean of the University of Toronto Faculty of Law
This paper was presented at a Law Society of Upper Canada Symposium on May 25, 2005, commemorating the life and contributions of The Right Honourable Bora Laskin. It draws on the author's The University of Toronto: A History (Toronto: Osgoode Society and University of Toronto Press, 2002); Philip Girard, Bora Laskin: Bringing Law to Life (Toronto: University of Toronto Press, 2005); C. Ian Kyer and Jerome E.Bickenbach, The Fiercest Debate: Cecil A.Wright, the Benchers,and Legal Education in Ontario 1923-1957 (Toronto: The Osgoode Society, 1987); and Irving Abella, "The Making of a Chief Justice: Bora Laskin, The Early Years," (1990), 24 Law Society of Upper Canada Gazette 187.
Bora first entered the University of Toronto as a student in September 1930, graduating with a BA in law three years later. It was not a carefree time to go to university. A sacrifice had to be made by the family to send Laskin to Toronto because he entered the University the year after the stock market crash of 1929. Because of his marks at Fort William Collegiate Institute, he was able to enter directly into the second year of W.P.M. Kennedy's honour law course, an undergraduate program that Kennedy had started in 1927. In future years, all students would have to study for four years, rather than three, to get their degrees.
Laskin's undergraduate life at the U of T is well documented in Philip Girard's fine biography of Laskin, recently published by the Osgoode Society and the University of Toronto Press. As a Jew, Laskin automatically enrolled in University College - the non-denominational 'godless' college. He became involved in student politics, becoming the literary director of the University College Literary and Athletic Society, and was active in debating and sports, particularly track and field and rowing. He also joined a Jewish fraternity, Sigma Alpha Mu.
Bora had lectures from some of the leading figures of the period - in philosophy from George Brett, history from Frank Underhill, and political science from Alex Brady. The law side of the program was dominated by Kennedy, who, surprisingly, was not trained as a lawyer. He had come to the University as a professor of English literature, then switched to history, then to political science, and finally to law. He was an impressive scholar. By the end of the 1920s he had published 10 books. He was also a sparkling teacher. J.J. Robinette, one of Canada's greatest lawyers, who was taught by Kennedy in the 1920s, recalled that 'Kennedy was one of those brilliant Irishmen who could dazzle you
a performer as much as a teacher.'
The program attracted students who became leaders of the profession - Charles Dubin, William Howland, G. Arthur Martin, and Sydney Robins, to name only some students who later became members of the Ontario Court of Appeal. Perhaps their success was because they were inspired by Kennedy's view that legal education should 'create a body of citizens endowed with an insight into law as the basic social science, and capable of making those examinations into its workings as will redeem it from being a mere trade and technique and
make it the finest of all instruments in the service of mankind.'
Jacob Finkelman, a graduate of the honour law program and who had a special interest in labour law, had started teaching the year that Laskin arrived and no doubt influenced Laskin's lifelong interest in labour law. Finkelman, I should note, was the first Jew to be appointed to a full-time position at the University.
The Law Society of Upper Canada gave no credit for Kennedy's law course. Laskin therefore had to enroll in Osgoode's law program, which combined lectures and articling. Before he was permitted to enroll, however, he had to find someone who would give him employment and sign his articles. In his first year at Osgoode, he was 'employed' by his fraternity brother Samuel Gotfrid, who had received his call a year earlier, but could not offer his articling student very much work or remuneration. The following year, Laskin articled for a non-Jewish lawyer in the same building, who had a busy real estate practice, which no doubt accounts for Laskin's later interest in land law. He graduated near the top of his class at Osgoode, just as he had done in Kennedy's honour law program.
While at Osgoode, he obtained an MA in law from the U of T and after his call to the bar went to Harvard Law School on a scholarship where he came under the influence of some of the greatest names in academic law - Felix Frankfurter in administrative law, Roscoe Pound in jurisprudence, and Zechariah Chafee in equity. Two of the seventeen LLM students at Harvard that year received their degree cum laude - they were Bora and his best friend at Harvard, Albert Abel. Many years later, Bora persuaded Dean Caesar Wright to bring Abel to the U of T from the University of West Virginia. That was in 1955, the year that I entered first year law. Abel diligently and effectively taught legal writing and so one can add to Laskin's legacy Abel's important influence on legal scholarship in Canada.
Bora returned to Toronto, but could not find a job teaching or practicing law. In those years, there was, as was well known, a great divide between Jewish and non-Jewish lawyers and so practicing with an established non-Jewish firm was out of the question. He was also unsuccessful in obtaining satisfactory work with a Jewish firm and so did summaries of legal cases for the Canadian Abridgment - a job that paid twice as much as he later earned as an academic.
When Larry MacKenzie, who had been teaching at Kennedy's school, resigned in 1940 to become the president of the University of New Brunswick, Kennedy had the opportunity to hire a replacement. Kennedy was very fond of Laskin and Laskin was one of the two candidates he considered for the position. The other was J.K. Macalister, someone I had never heard of until I did research for my book on the history of the University of Toronto. Macalister had graduated from Kennedy's law course in 1937, with, according to Philip Girard, the highest marks ever recorded in Kennedy's program - an A in every subject in every year. He won a Rhodes scholarship to Oxford, where he obtained a first, and later topped the standings for the English bar exams.
In September 1940, MacKenzie's appointment at UNB became official and Kennedy could now offer an appointment. He offered it to Macalister, who had earlier expressed an interest in teaching at the U of T. Macalister cabled back immediately: 'IN ARMY SINCE YESTERDAY SORRY MANY THANKS - MACALISTER.' The appointment was then offered to Laskin. How much Laskin knew of the offer to Macalister is not known, but he would obviously have known that Macalister was a serious competitor for the position.
To complete the story, Macalister had joined the Canadian infantry, was later assigned to British intelligence, and along with another U of T graduate was parachuted behind enemy lines in France in June 1943 to act as a secret agent. They were captured, tortured, and executed at Buchenwald concentration camp in September 1944.
Laskin taught at the U of T until he left for Osgoode Hall Law School in 1945. My study of the evidence suggests that Laskin's move may have been part of a plan by Caesar Wright, then a professor at Osgoode Hall Law School, and his good friend, Sidney Smith, the new president of the University of Toronto, to have legal education in Ontario shift from the Law Society to the U of T. Smith wanted to establish at the University, in his words, 'a Law School that would rank first in Canada, and be among the leading schools of the North American continent.' He had already offered the deanship at the University to Caesar, but it had not been accepted at that time.
The plan was that Laskin would join Caesar at Osgoode and then at an appropriate time would move with Caesar and others to the University. It was thought necessary to convince Kennedy that the plan made sense. At that time, academics tended to spend most of the summer at their cottages. Laskin went to Wright's cottage in northern Ontario and then the two of them went to Kennedy's summer place north of Huntsville and west of Algonquin Park. The large property near Kearney, Ontario, that Kennedy called 'Narrow Waters,' had been purchased by Kennedy in 1940. In 1983, it was sold by Kennedy's son, Frere, to my wife and me, and so I have a particular interest in this story. Kennedy, Wright, and Laskin walked along a lakeside trail and Wright attempted to convince Kennedy of the wisdom of his plan. Kennedy grudgingly agreed and Laskin then left the University for Osgoode. I should add that I keep that trail very well groomed and I'm considering putting up a small plaque saying that the plan to create the modern U of T Law School was in part consummated on this path.
The Hon. Laskin congratulates a young John I. Laskin 69 at his graduation.
In any event, as we know, and as Horace Krever, has told us from his personal perspective, Wright and Laskin, along with John Willis, found an opportune time to leave Osgoode and start a new three-year post-graduate law school at the University of Toronto, with Wright as dean. They had resigned from Osgoode because of the Law Society's reactionary proposal to increase the articling experience at the expense of the academic program. It was thought that the Law Society would quickly recognize the new program at the University, which had an outstanding faculty that also included Jim Milner and Wolfgang Friedmann. But the Law Society was reluctant to even discuss that possibility and grudgingly gave students credit for only two rather than three years. Students therefore had to spend an extra year at Osgoode after articling. This was not an incentive for attracting large numbers of applicants. Willis resigned, telling Wright that 'just two years after it start- ed up as a professional school, the School of Law is to all intents and purposes dead.'
As previously stated, I entered first year law at the U of T in 1955, thinking, as did my classmates, who included such notable lawyers as Harry Arthurs, Jerry Grafstein, and John Sopinka, that we would later have to spend an extra year at Osgoode. As it turned out, on February 14, 1957, in our second year of law school, the Law Society recognized the U of T Law School as equal to its new Osgoode program - a wonderful Valentine's Day present to all of us.
We had Bora for three subjects, real property in first year, constitutional law in second year, and labour law in third. Today, most professors concentrate on one area of law, perhaps two. Laskin specialized in all three areas. Laskin's first year property course was the most technical course we had in law school. We learned in great detail such arcane subjects as future interests and shifting and springing uses. Although Laskin was more open to questions than Caesar, he always had a tremendous amount of material to cover and so lectured most of the time. He left the Socratic Method to Milner and Abel.
Although Laskin's door was always open and he would deal with whatever you wanted to discuss with him, he never had time for much chit-chat at the law school. Many of us went to see him about where we should article. We were in and out of his office in less than five minutes. He was a no-nonsense professor. When he happened to mention critically to our first year class something about the Queen's Counsel list that had been published that morning in the Globe and Mail and a voice in the back row shouted 'sour grapes', Laskin walked out, but soon came back. Nor was he amused in his upper year labour law class when someone had secretly brought in a record player and opened the class with Pete Seger's 'There once was a union maid.' Laskin did not want to be identified with one side in labour-management relations. He mellowed over the years, particularly after he became a judge. He was also more relaxed when not teaching or at his desk. I have it fixed in my mind that during my two years as a student at the law school's temporary quarters at the Glendon estate, he would sometimes walk with us down in the Don Valley forests between classes. It is possible, I admit, that those walks never actually took place. I am, however, sure that he and Peggy came to our wedding at the end of third year. In later years, like many others, I often turned to him for advice.
My wife and I happened to be having dinner with the Laskins at an Italian restaurant in London, England, in early July 1965 when Laskin was called to the telephone. He did not say anything about the call when he returned to the table, although it was clear to us that it had been an important conversation. We later found out that the call had been from the solicitor general, Larry Pennell, telling Laskin that the cabinet had appointed him to the Ontario Court of Appeal. Jerry Grafstein, who had close ties with the Liberal Party and had played an important role in the appointment, had tracked Laskin down at the restaurant. The announcement would not be made until the Laskins returned to Canada from their holiday towards the end of August and Laskin was asked to keep the appointment private. Laskin's acceptance was a great loss to the University because he was the clear choice to succeed Wright as dean.
As an academic, Bora had always been busy with outside assignments, giving opinions, conducting labour arbitrations, involved in faculty association matters, participating in civil liberties issues, and writing government reports. He also wrote headnotes for the Dominion Law Reports, the case law series edited by Caesar. I'm reasonably certain that his appointment to the Ontario Court of Appeal in 1965 allowed him to slow down a bit.
Perhaps his most important non-legal contribution to the University was chairing an influential committee, established in 1964, on graduate studies. The committee was composed of 12 persons, including Northrop Frye, John Polanyi, and Ernest Sirluck, the dean of the graduate school. President Claude Bissell later called it 'the strongest internal committee in the history of the University.' The committee's unanimous report was written by Laskin. The result was a centralization of graduate studies in the university. This was no surprise to his former students. It reflected his constitutional view that it was desirable to have a strong central presence. The University of Toronto's graduate school has been a major factor in the present high reputation of the University of Toronto.
Laskin continued his involvement in higher education after his appointment to the bench. He chaired the board of directors at the Ontario Institute for Studies in Education, which was established in 1966, and joined the board of York University in 1967.
Like Caesar, he produced important casebooks, and wrote a large number of articles and notes, particularly for the Canadian Bar Review, but, as with Caesar, he never produced a major text in any of his fields of expertise. Moreover, he died just prior to the development of Charter jurisprudence by the Supreme Court of Canada, so his judgments are not as frequently cited today as they otherwise would have been. Nevertheless, I believe that his approach to adjudication influenced other members of the court, particularly Brian Dickson, in their readiness to give a broad interpretation to the Charter. He also indirectly influenced the enactment of the Charter. This was not because he was active behind the scenes, but because he looked and acted like a wise Solomon-like figure, who the public could trust to deliver sound judgments under a new Charter of Rights and Freedoms.
He was a powerful force in the law and in higher education and an inspiration to his students, fellow judges, and law clerks, many of whom are gathered here today. He was a great Canadian.
This article was first published in the Fall 2005 issue of Nexus.