Justice Bertha Wilson: One Woman's Difference (review)

Kim Brooks's success at herding twenty-two scholars to the task of writing a preface and sixteen commentaries on the diverse life and work of the late Madame Justice Bertha Wilson (1923–2007) bodes well for her future as the Dean at Dalhousie Law School (renamed the Schulich School of Law in 2009). As Madame Justice Claire L'Heureux Dubé points out in the preface, these authors are very adept at illustrating how Wilson J. managed to advance her commitment to equality and justice by alternating between the "strident" jurist and that of a "balanced incrementalist."

In her introduction, Brooks summarizes several dimensions of Wilson J.'s "multi-faceted talents and career."¹ Wilson J. was a "marvellous legal technician" who was willing and very able to take on controversy as illustrated in her many well-crafted dissents and her infamous 1990 Betcherman Lecture, "Will Women Judges Really Make a Difference?" at Osgoode Hall Law School. Wilson J. believed in the importance of social context in judicial decision making and thought it to be an important component of judicial education. She had an ability "to locate law in its social, economic, and political context" and, in so doing, exposed her passion "for the protection of the equality rights of marginalized communities and 'ordinary citizens,' which in turn was fuelled by her capacity for 'entering into the skin' of litigants."² The subtitle to the book, "One Woman's Difference" raises questions over the type of difference one judge might make and the importance of life's experience in judicial decision making. Brooks divides the sixteen chapters into three parts.

The first part of the book entitled "Foundations" contains five chapters. In Chapter 1, Angela Fernandez and Beatrice Tice, "Bertha Wilson's Practice Years (1958–75): Establishing a Research Practice and Founding a Research Department in Canada," provide an inside view of how Wilson J. developed a novel idea and practice—that of a research department in a law firm and later at the federal Department of Justice. Through interviews with people who worked with Wilson J. and documents provided by them, the authors provide a fascinating account of Wilson's "behind the scenes" legal work. Although the target of much sexism, both intentional and not, her response was to "simply work hard, demonstrate her value, and do her best, gender discrimination be damned."³ However, by 1990, when Wilson J. became the chair of the Canadian Bar Association's Task Force on Gender Equality in the Legal Profession, she was more willing to take a vocal stand for the women lawyers that followed her into the profession and onto the bench. When I met her as a researcher for her task force, her tone about gender discrimination was definitely of the more strident nature.⁴ The chapter ends with a discussion of how Wilson's research skills made her the judge that she became and had an impact on how she approached writing her decisions.

Many readers who read Larissa Katz's Chapter 2, "A Traditionalist's Property Jurisprudence," might be surprised to hear that Wilson J. was a property law expert. As Katz illustrates through her rehabilitation of Wilson J.'s decision in the adverse possession case of Keefer,⁵ Wilson's "property jurisprudence reveals a self-conscious commitment to working out the law in terms of the values and concepts that are intrinsic to it."⁶ The adverse backlash to Wilson's decision resulted from a misunderstanding of the rule in Shelley's Case, and Katz concludes there is nothing in Wilson J.'s judgment that merited the label "heretical" or put her into Lord Denning's camp.

In Chapter 3, "Power, Discretion, and Vulnerability: Wilson J. and Fiduciary Duty in the Corporate/Commercial Context," Janis Sarra illustrates how Wilson J. developed the common law on fiduciary obligations, and the resulting remedies in the corporate and commercial context, by focusing on fiduciary principles rather than on categories of fiduciary relationships. Thus, Wilson J. extended principles of law...