Updated: Apr 16, 2021
Click here for an audio recording of Kristy Foreman reading this blog post: https://soundcloud.com/user-381880794/forereach-consulting-blog-post-audio-recording-of-my-most-embarrassing-moment-as-an-articling-student
“Are you sure that you can do the hearing all on your own?” my supervising lawyer asked me.
“Absolutely!” I confirmed enthusiastically.
I was three weeks into the Tax rotation of my articles at the Department of Justice. After observing half a dozen taxpayer appeals, I had been waiting for the opportunity to get into Tax Court and run my own hearing. This was the reason I went to law school: to be a litigator. I had been on my feet before during a clinical program at Queen’s Law. I had embraced the feelings of nervous excitement and then pride when the hearings went my way. I felt confident that I was ready to take the training wheels off now that I was an articling student.
The file was a simple appeal from a Revenue Canada decision that a business owner had been paying his workers as independent contractors rather than employees to avoid paying his share of their employment insurance premiums. I reviewed the documents that were in the file to support Revenue Canada’s decision and it appeared to be a slam-dunk. All I had to do was cross-examine him to confirm his signature on the documents and it would be almost impossible for him to meet his burden of proof. There was one document that was particularly persuasive, so it was my plan to build up to it during my cross-examination.
On the day of the hearing, there was an unusually full docket. The gallery was packed with DOJ lawyers, Revenue Canada witnesses and taxpayers. My supervising lawyer was sitting in the front row, after I had assured her that I didn’t need her to sit with me at counsel table.
My file was the first one called. I was a bit daunted by the size of the audience, but I felt confident in my preparation and the strength of my case. The taxpayer took the stand and testified that he had never considered the workers to be his employees and it was always his intention that they would be independent contractors. The documents I had photocopied to enter into evidence suggested otherwise.
When it was my turn to cross-examine him, I methodically went through each document like I had practiced, identifying and marking them as exhibits. While he had been giving plausible explanations, I knew that he could not talk his way out of the final document, my smoking gun.
When that time came, I went to pull the document from my exhibits folder but it wasn’t there. Thinking it must be stuck to another document, I shuffled through all of the papers in the folder but still couldn't find it. The judge cleared his throat, waiting patiently for me to continue. My panic started to rise as I furiously flipped over page after page trying to find the document. The words on the pages began to dissolve. Every piece of paper looked the same.
And then I felt it. Darkness appeared and creeped forward from my peripheral vision. I felt like I couldn’t breathe. I leaned forward to rest my head on the lectern, just for a second to catch my breath, and then…blackness.
I regained consciousness lying on my back on the courtroom floor. When I opened my eyes, I saw the judge in his robe standing over me with a look of shocked concern calling out, “somebody call 9-1-1!”
I was told later that the taxpayer had caught me as I was crumpling to the floor and broke my fall. The court adjourned as we waited for the paramedics to arrive. I tried to put on a brave face, but I kept thinking over and over that I was never going to get hired back after my call to the bar. What employer would hire a litigator who passes out in court??
My supervising lawyer was very worried, especially when I told her weakly that I didn’t think I could finish the hearing. Only a 3-year call herself, she freaked out. “I don’t know anything about the file! I can’t do it!”
It wouldn’t be fair to the taxpayer to delay the hearing, so I had no choice but to carry on after the paramedics cleared me to proceed. As soon as I returned to counsel table, the document I had been looking for was right in front of me. After thanking the witness for catching me, I continued my cross-examination and put the final document to him. He admitted that it was his signature on the document and I made my closing submissions.
The judge rendered his decision from the bench. The taxpayer’s appeal was dismissed. In his reasons for judgment, the judge said that the documentary evidence proved that the taxpayer had treated the workers as employees and he was therefore liable for the EI premiums assessed by Revenue Canada. Justice had prevailed, despite my potentially career-limiting, panic-induced fainting spell.
I went on to conduct three more Tax Court hearings during my articling rotation without incident, and I was miraculously hired back as a Tax litigator after my call to the bar. I appeared before that judge dozens of times in my career and, unsurprisingly, he always remembered my name.
My most embarrassing moment as an articling student became one of those courtroom legends passed down to each successive articling class. The story was shared to reassure them that if you can become a litigator after fainting in court, anything is possible.