Brian Morgan; lawyer's lawyer
Hyfler/Rosner
March 28, 2007 Wednesday
BRIAN MORGAN, LAWYER: 1950-2007;
Litigator blessed with a 'rare ability to extract simplicity
from complexity and to deliver his arguments with clarity
and persuasive force' took on Charter challenges with
vertiginous success, writes SANDRA MARTIN
The consummate lawyer's lawyer, Brian Morgan wore his
intelligence, his analytical insights and his achievements
lightly. A Rhodes Scholar, a law clerk for Mr. Justice Brian
Dickson (later Chief Justice of the Supreme Court), a
litigation partner at Osler, Hoskin & Harcourt, the lawyer
who successfully argued the first case heard by the Supreme
Court after the passing of the Charter of Rights and
Freedoms and the first case about enacting legislative
remedies under the Charter, Mr. Morgan was equally well
known in the profession for the way he championed pro bono
work at his firm - an organizational model that was adopted
by many other firms - and his dedication to teaching, both
at the university level and in legal education seminars.
His interests were as diverse as his prowess. "He had the
rare ability to extract simplicity from complexity and to
deliver his arguments with clarity and persuasive force,"
said his law partner Larry Lowenstein.
"He could do litigation on any issue," said Jamie Cameron, a
constitutional expert and law professor at Osgoode Hall. "It
didn't matter that there were six rooms of documents to be
read, it didn't matter how complex the statutory framework
was, it didn't matter that Brian wasn't an expert in the
area, because he could master all of that. He was very
effective, but he was never effective at anybody else's
expense and there are very few people like that," she said.
"If you stripped away all of Brian's accomplishments, he
would still be a great man . . . because of his deep caring,
his essential goodness," his friend Doug Young, a fellow
student at the University of Toronto and at Oxford more than
30 years ago, said at Mr. Morgan's funeral. "Despite Brian's
success, he was never arrogant. His curiosity, respect for,
and genuine interest in others made you feel like you were
always the most important person in the room."
Mr. Morgan loved the practice of law, but he wasn't married
to it in the way some lawyers are. He always put his family
first, serving as a Beaver leader for more than seven years,
making a point of being home for dinner every night and
rearranging meetings or business trips to be there for his
children's birthdays. "Everything reminds me of my dad and I
couldn't stop being sad," his 18-year-old daughter Catherine
said in her eulogy. "Then I realized that . . . is a good
thing. It shows how much a part of my life he has been, and
how much a part of me he is."
Brian Gerald Morgan was born in Lethbridge, the second of
four children of Frederick and Audrey (née Boyd) Morgan. His
father was a lawyer with the idealistically named firm
Virtue and Company and his mother was a war bride from
London, England. Brian grew up in a small, culturally and
historically rich community with lots of music and theatre.
After Gilbert Patterson elementary school, he went to
Lethbridge Collegiate Institute, where he served as
president of the student body when he was 17. When R. C.
(Bob) Clark was named Alberta's first youth minister in
Ernest Manning's last Social Credit Government, he set up a
youth advisory committee in Edmonton to advise him on issues
of concern to young people. Mr. Morgan was the council's
youngest member, recalled Marilyn Pilkington, now a
professor at Osgoode Hall Law School, but then a fourth-year
student who was "heavily involved in student government" at
the University of Alberta. He impressed her as an
"intelligent, thoughtful, articulate, and modest individual
who listened well, made positive contributions and helped to
build consensus. He demonstrated at that early age the same
exceptional talents and personal qualities that
characterized his success in later life."
After high school, Mr. Morgan went on scholarship to Trinity
College at the University of Toronto. He began in arts,
switched to architecture, quickly recognized it wasn't for
him and switched back to arts again in what might have been
his only stumble in a stellar academic and professional
career. As in high school, he was very active in university
life, becoming one of the first two student governors
elected to the governing council of the university. In 1970,
when he was in third year, he met Ann Wilton, a freshman at
Trinity, through her older sister Carol. At first reluctant
to meet a young man, whom she assumed must be pompous
because of his multitude of accomplishments, Ms. Wilton soon
realized he was actually a lot of fun. She got to know Mr.
Morgan better because she was a debater and he was the
president of the debating society. Then, they were cast
opposite each other as "the comic relief characters" in the
Noel Coward play, Still Life, and obliged to rehearse
together on a daily basis for months before the play opened.
They soon became an item off-stage as well as on.
In 1972, just after U.S. president Richard Nixon went to
China to meet with Mao Zedong, Mr. Morgan noticed an
announcement from the Department of External Affairs on a
Trinity College bulletin board about an upcoming scholarly
trip to China. Mr. Morgan applied and became the lone
student on the trip, along with 19 academics. "They were
there during the Cultural Revolution and were able to go
places that journalists couldn't go," Ms. Wilton said.
After graduating from U of T in 1973, Mr. Morgan won a
Rhodes Scholarship to Oxford from Alberta, his home
province. He studied law at Balliol College, graduating with
first-class honours in 1976 and won a ceremonial oar for
helping his team score four "bumps" in rowing. After his
first year at Oxford, he and Ms. Wilton (who by then had
graduated from U of T) were married on July 12, 1974. They
flew to Cyprus on their honeymoon and landed in Nicosia on
the eve of the coup to overthrow Archbishop Makarios III. At
first, the newlyweds mistook the gunshots for festival
firecrackers, but when the local grocer started closing up
shop, they realized they should get some provisions while it
was still possible. She grabbed a package of Smarties while
her husband went for a can of Spam, thereby illustrating
their respective "value systems," Ms. Wilton recalled. After
four days, the curfew was lifted and they made their way to
the British embassy, where an official denied that an
invasion was imminent. The Canadians eventually airlifted
them to their military base in Lahr in the Black Forest in
Germany, without their luggage or even the Spam. "And that
was our honeymoon. We've talked about it ever since," Ms.
Wilton said.
That September they both went to Oxford, where she did a
second B.A. in English and he completed his law degree,
after switching from his original intention to study
politics. In 1976 they moved to Halifax where he completed
his LLB at Dalhousie University, graduating first in his
class, and she began her own study of the law. Then they
headed to Ottawa, where he clerked for Mister Justice Brian
Dickson of the Supreme Court of Canada from 1978-79 and she
transferred to the law school at the University of Ottawa.
"We always stuck together," Ms. Wilton said.
That year in Ottawa was the beginning of both a working and
a personal relationship with Judge Dickson. He was one of
his very favourite law clerks, said Mr. Justice Robert
Sharpe of the Ontario Court of Appeal. "They worked
extremely well together because of Brian's intellect, and,
like Dickson, he was highly organized and he was an engaging
person, as was Dickson. I think Dickson saw something of
himself in Brian."
The following year, Mr. Morgan was called to the Ontario bar
and joined the litigation department at Osler, Hoskin &
Harcourt as Ms. Wilton articled in Toronto. Just before she
was called to the bar, their first child Andrew was born in
1981, followed by Eric in 1983, Colin in 1986 and Catherine
in 1988. Mr. Morgan's rise at Osler's was predictably
vertiginous. He was made partner in 1983, just four years
after joining the firm. It typically took at least six
years.
He had a diverse litigation practice that included the first
Charter challenge in what became known as the Skapinker
case. Joel Skapinker, a lawyer from South Africa who was
married to a Canadian citizen, immigrated to Canada in the
late 1970s, requalified at McGill University in Montreal and
took the bar admission course in Ontario, but couldn't
legally practise as a lawyer because he was a landed
immigrant and not yet a citizen. After the Charter was
promulgated in 1982, Mr. Morgan took on the case on a pro
bono basis and eventually argued successfully at the Supreme
Court that for the Law Society of Upper Canada to deny a
qualified landed immigrant the right to practise law in
Ontario was a denial of Mr. Skapinker's mobility rights.
"The guy was professional beyond your wildest imaginations
and extremely competent," Mr. Skapinker said. "I said to
myself, I'm going to become a lawyer in Canada and this is
the man I'd like to become."
In the Schachter v. Canada case, Mr. Morgan argued under
Section 15, the equality clause, that a biological father
had as much right to parental leave, with regard to
unemployment insurance benefits, as a natural or adoptive
mother. The significance of this case was that Supreme Court
ruled that the law violated the Charter in terms of gender
discrimination, but allowed enough time for Parliament to
modify its statutes before invalidating the law. Otherwise,
there would have been administrative chaos.
Always healthy, Mr. Morgan hadn't missed a day of school or
work since he was eight years old. Then, last November, he
developed a minor, but nagging, headache and his wife
noticed that he was occasionally searching for words and
sometimes seemed confused - totally uncharacteristic
behaviour. A month later, he was diagnosed with stage four
brain cancer. He had surgery and went back to work four days
later wearing a tuque to protect his incision, but despite
chemotherapy and radiation, doctors couldn't keep the cancer
from spreading like tentacles through his brain. He kept
working until January, but his decline became much more
rapid in February and the doctors eased him off the
experimental drugs he had been taking and arranged
palliative care instead. At Ms. Wilton's request, friends,
family and colleagues wrote letters that she read aloud to
him as his condition worsened.
Brian Gerald Morgan was born
in Lethbridge, Alta., on April 27, 1950. He died from a
malignant brain tumour at home in Toronto, on March 19,
2007. He was 56. He is survived by his wife Ann Wilton, his
children Andrew, Eric, Colin and Catherine, his mother
Audrey Morgan, two brothers, a sister and his extended
family.
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