David Byers, a lawyer at Stikeman Elliott, has gone before Mr. Justice James Farley seeking approval of a newspaper notice regarding one of the myriad commercial cases Farley has heard in his court. But lo, subsequent to the court meeting in question, Byers notices an error or two, which he decides to correct.
Those who know Justice Farley and his ways might already be smiling.
For those who don't, here goes. Justice Farley reads the notice in the paper, unapproved amendments and all. His mood is not good. It is not, shall we say, sunny. He orders Byers to his chambers. He threatens, how shall we put this, to remove Byers' balls, a procedure for which, he informs Byers, he has no professional training.
Justice Farley's blue eyes grow very merry when he smiles, and he's smiling now, reliving that very moment. "It's a guy thing," he says of the encounter. Well, yes, of course it is.
Here's the second part of the story. During the encounter in Farley's chambers, his ever-faithful court registrar, Neville Bhagat, is standing station outside the door. When Byers emerges, Bhagat turns to him and says, "Oh Mr. Byers. I was going to call the fire department. There was smoke coming out from under the door."
There are many tales to be told as Justice Farley marks his retirement, a signal moment in the history of the oddly named Commercial List. Monumental because Farley was one of the first judges appointed to the list at the time of its creation in 1990, overseeing restructurings, bankruptcies, liquidations and such. And monumental because, as every lawyer who made an appearance before his bench can attest, none could hope to predict what a day in Farley's courtroom would bring.
On Friday, when Farley wrapped up the restructuring of Stelco Inc., it was the longest restructuring of his career. "Two years, two months, two days," he says. "I'm not certain about two hours, two minutes and two seconds, but it might have been."
In the aftermath, he can relax in his Osgoode Hall office, with a career full of memories and memorabilia. The painting that hangs behind him is of a single shoe, which he purchased, he says, because his boys, when they were boys, were always losing one shoe, not two. To his right is a vintage Clairtone stereo, replete with its black bubble-shaped turntable and round speakers. A gift from his son Max. Farley is an opera buff, and recently spent a good, long time listening to Bellini's Norma while travelling in the car.
The scene is so peaceful it seems appropriate to recount the day when he was driving home to Oakville from a family gathering in Fonthill. His trip took him across the Burlington Skyway, and as he cast his gaze to the Hilton Works he said to himself, as he would later say in the courtroom. "What would ever happen if that place shut down?"
He is not, he insists, being operatic. There were times he believed the company would go splat, a courtroom word that Farley used during the proceedings. "There were more than a few moments," he says now.
"I never thought we were dead," says Courtney Pratt, who stepped in as Stelco CEO in January 2003. "But I certainly had my doubts as to whether we would be able to cross the next bridge." Pratt attests to being exhausted. "I'm just trying — I'm not joking — to recover from this whole process," he says.
Farley appears astonishingly bushy-tailed for someone with reputedly punishing work habits. "I must have the best team of unpaid public relations people in the world," he says. "All I have to do is decide cases."
Here's an anecdote. Michael Barrack is a lawyer at McCarthy Tétrault. He has appeared before Farley time and time and time again. Which cases? "Bags of them over the years, big and small," says Barrack, including, most recently, Stelco. Most memorable anecdote? "He called me at 11:30 on a Saturday night, when I was at home in bed with my wife to tell me that I had lost a case."
This is the same judge who once walked into his courtroom with a drill he had picked up from a renovation job at the old courthouse on Queen Street and said to the lawyers assembled something along the lines of, "Has anyone seen the movie Marathon Man?" A painful image of Sir Laurence Olivier drilling Dustin Hoffman's teeth emerges.
"I playfully enquired as to whether any counsel need any assistance in coming to a resolution of matters," he says.
Where this courtroom shtick comes from we cannot say. There seemed to be nothing about growing up in Guelph, the son of a dyer who worked in a textile factory, to predetermine Farley's manner and style. In his teens he took a job working in a butcher shop, which explains why he is missing half his index finger on his right hand. "There was a jam in the grinder and notwithstanding that I had turned off the power I put my finger in and I cleared the obstruction but there was just enough torque left to crush the finger."
In the Guelph days there was a lawyer who worked on Douglas Street named Jim Clare. In those days all the lawyers' offices existed on a 200-metre street off Douglas between St. George's Square and St. George's Church. If Jim Clare had a case pending, he'd likely as not head over to opposing counsel's office and have a coffee. "It was the best form of alternative dispute resolution I could think of," says Farley. "The courthouse had cobwebs on it."
Perhaps this explains Farley's predilection for off hours communiqués with the lawyers who came before him.
As for the courtroom, few have filled it so colourfully, or at least not in the land of insolvency. But the court became a focal point for business tales, not least because of the number of corporations that came to file for protection under the Companies' Creditors Arrangement Act, or landed before Farley's bench on the way to liquidation. It's a long list. Loewen Group. (Farley particularly seemed to enjoy the fact that the funeral company was most proud of its "retention incentive plan" for workers, or RIP.) Cadillac Fairview. Ivaco. The bankruptcy of Stephen Mernick, the failed saviour of the Jim and Tammy Faye Bakker televangelical empire.) Algoma, twice. A fight between the Ballards. Air Canada, in which he asked the more than 100 participating lawyers to predict whether the company would ultimately tank. Or not. "These are good stories," he says in reflection, "and they become better in the retelling."
The stories perhaps detract from an inestimable legacy. The Commercial List was established as a means to achieve timely and efficient resolutions to commercial cases. Farley recalls the Massey Ferguson case. "If memory serves me that case went on for, I don't' know, five years," he says.
"The concept of the commercial list would allow for a degree of specialization." Michael Barrack says this is the legacy, and the culture that has been adopted by the court.
"These are disputes that have a lot of money involved, have sophisticated clients, and they demand efficiency and they hire the lawyers that that kind of money can attract."
In the Commercial List, Farley found his calling. He can speak abstractly today about measuring whether companies should live, or die.
"There are some enterprises that are not salvageable, are not able to be reconstructed on any meaningful basis," he says.
"What the parties should be looking at is, do we have a viable enterprise and if so under what particular conditions?"
These are matters that will likely not concern Farley going forward, though he does not say what his future plans are. At a recent roast for Farley, Richard Swan, a lawyer at Faskens, offered what may be the best closing sound bite.
"Years from now, a whole new generation of lawyers, having heard legendary stories from the Farley era, will ask, `Was it really like that in Farley's courtroom?' And the answer, of course, is `Yes it was.'"
Additional articles by Jennifer Wells