Feature Story

All Rise

The paths of three Allisonians converge at Canada’s Federal Court of Appeal
By: Aloma Jardine

Canada’s Federal Court of Appeal may soon need to start its own Mount Allison Alumni Network.

Two of its 15 current judges — The Honourable Justice David G. Near (’76) and The Honourable Justice Wyman W. Webb (’78) — are Mount Allison graduates, as is Near’s judicial law clerk, Elissa McCarron (’11).

The Federal Court of Appeal generally sits in panels of three judges and hears appeals from the Federal Court and the Tax Court. It also reviews directly the decisions of certain federal tribunals. Decisions of the Federal Court of Appeal can only be appealed to the Supreme Court of Canada with the leave of that court, which means that for many, the Federal Court of Appeal is the last stop on a legal journey. Its decisions have great influence on every aspect of life in Canada.

The Federal Court of Appeal hears cases related to federal income tax, GST/HST, administrative law, intellectual property law (patents, trademarks, and copyright), environmental law, constitutional law, and aboriginal law. One of Near’s cases — a ruling on whether American ads can be shown on Canadian television during the Superbowl — is currently before the Supreme Court.

Webb and Near came to the legal profession by very different routes.

Webb knew he wanted to be a lawyer before he graduated from high school.

“I was told that mathematics would be a good background for law because of the logic involved, so I studied math and computer science at Mount A,” says Webb, who spent two years on secondment with Revenue Canada Taxation Rulings Directorate and also worked in private practice in Truro and Halifax, NS for more than 20 years, specializing in tax law, before being appointed a judge of the Tax Court of Canada in 2006. He was appointed to the Federal Court of Appeal in 2012.

“Leaving private practice to become a trial judge is a big change because now you are the person deciding the case,” he says. “Every day is a challenge because each case is different. Some cases are factually complex while others raise interesting and challenging legal questions. For each case the court has to consider the facts, the arguments of the parties, the relevant statutes, and case law. The role of the court is to determine which party should succeed and provide reasons for the decision.”

Near actually planned to become a university professor and went on to complete a Master’s in Constitutional History at Queen’s University after graduating from Mount A.

“Then I got engaged to someone I met at Queen’s and I thought I had better do something where I could earn some money and law seemed like a good idea,” he says.

His path to the Federal Court of Appeal bench has been equally digressive.

After law school, he practised law for a couple of years, then in 1984 was asked to go to Ottawa to work for a cabinet minister in the newly-elected government. From there he moved on to work in the federal Department of Justice, then at Environment Canada, where he wrote several key pieces of wildlife legislation including the Species at Risk Act and the Canada Wildlife Act. He also worked as a judicial affairs advisor for the federal Justice Minister, advising on judicial appointments across the country, before being appointed a Federal Court judge in 2009. He was appointed to the Federal Court of Appeal in 2013.

“The creation and passage of the Species at Risk Act was certainly a major accomplishment for me. It took eight years, through three ministers and two prime ministers. It was a real marathon,” he says. “I always say to my law clerks, ‘Don’t be afraid to take chances once in a while and do something interesting.’”

McCarron also chose law almost by chance.

When she graduated from Mount Allison with a Bachelor of Science (honours) in psychology, law school was not in her plan. She moved to France to teach English for a year and returned do a Master’s in Developmental Psychology at McGill.

“Through a twist of fate, I made friends at the law school at McGill,” she says. “In talking with them, I realized law school would be a better fit for me.”

McCarron graduated from McGill law in 2016, articled in Halifax, NS at McInnes Cooper, and was called to the Nova Scotia Bar Society in 2018.

But before beginning her career, she decided to apply for a clerkship, a once-in-a-lifetime opportunity awarded to law school graduates that typically lasts a year.

“It is a pretty special opportunity to work one-on-one with a judge and to see how they think about the law, what is persuasive to them and what isn’t, and to build a relationship with someone who is very senior in the legal profession and who has risen to that point in their career where they are shaping the law,” McCarron says.

Clerking at the Federal Court of Appeal is a coveted assignment — Near says the court typically gets about 250 to 300 applications for the position. And yes, he always keeps an eye out for Mount A grads as he tries to narrow down the list.

“The number one thing for me is to have someone I’m going to get along with,” he says. “We meet almost every day one-on-one, so if you don’t get along, it’s going to be a long year.”

McCarron says she noticed Near’s Mount A connection when she was preparing for her interview.

“Most people who went to Mount A have a pretty glowing memory of it,” she says. “And one of his first questions in the interview was, ‘So, you’re an Allisonian, eh?’ and then we were sharing stories and laughing about this or that thing. It’s been nice having that personal connection. A lot of what we talk about is the law, but he’ll also tell me stories of what happened when he was at Mount A and I’ll get into stories of my own. It just makes it a very fun experience.”

Both Near and McCarron were also student-athletes at Mount Allison. Near played football, hockey, and rugby, McCarron soccer.

“I loved my three years at Mount Allison, but it was a bit of a fluke that I ended up there,” says Near, who grew up in Toronto.

Near’s father was a good friend of Mount Allison’s then-Alumni Board President Don MacLean (’49, LLD ’86). When MacLean found out Near played football, he sent the Mount A coach some film of Near playing.

“Next thing I know, I’m going down to Sackville. I had to ask someone if it was a place,” Near recalls, laughing.

Webb grew up in Mahone Bay, NS and liked that Mount Allison was a small university in a small town. Although he was the first of his family to attend Mount Allison, he now boasts a family of Allisonians: his wife, Janet MacKinnon (’77), and his son Michael (’08) and daughter-in-law Adrienne Skitch ('09), who were married at the Mount Allison Chapel in 2012.

While Near says he will likely retire in 2020, Webb is not ready to retire yet. McCarron, who specializes in labour and employment law and administrative law, expects to return to private practice when her clerkship is over at the end of July.

Photo caption: The Honourable Justice David G. Near (’76), The Honourable Justice Wyman W. Webb (’78), and Near’s judicial law clerk, Elissa McCarron (’11).