Male: This is Conversations with the President presented by The Canadian Bar Association. 

Stephen Rotstein: Bonjour and hello everyone. Welcome to another episode of the season of Conversations with the President. My name is Stephen Rotstein President of the Canadian Bar Association. I am speaking to you from Toronto home to many nations including the Mississauga of the Credit, the Anishinaabe, the Chippewa, the Haudenosaunee, and the Wendat. I would ask each of you to consider the treaty lands and territories on which you reside as we acknowledge with respect and gratitude the many First Nation, Inuit and Métis whose footsteps have marked this land for century. My priority as President is to strengthen our community both on the sense of making sure that members have the tools they need to be the best themselves both professionally and personally but also in the sense of encouraging lawyers to volunteer in their communities. 

In this series of episodes I talk to accomplish legal professionals who are leaders in volunteerism. In today’s episode we discuss how an early interest in helping a friend not get kicked out of a sports team can lead to profound and long-lasting changes in international athletics. I hope you will be as inspired as I am by this example. My guest today is James Bunting the founding partner of a litigation boutique Tyr LLP. He has extensive experience in sports-related disputes, Jim has acted for athletes, coaches and agents in a variety of different matters including contractual claims, doping infractions, carding disputes, gender equality complaints, team selection appeals, and disciplinary appeals. Jim is ranked in the Canadian Legal Expert Directory as a repeatedly recommended practitioner in the area of corporate, commercial, and securities litigation and has earned many other recommendations and accolades from his peers. 

He earned his BA from the University of Western Ontario in 1999 and an LLB from the same university in 2002 and he was called to the Bar in 2003. We’re going to take a quick break and we’ll be right back after the following message. Hello Canadian Bar Association podcast listeners. The Institute for Research on Public Policy is proud to present the Policy Options Podcast. Join us weekly as we take a deep dive into a broad range of important and timely issued in Canadian public policy. We speak with experts on topics like western alienation, sick leave, reconciliation, the future of work and much, much more. Find the IRPPs Policy Options Podcast on your favourite streaming platform and policyoptions.irpp.org.

Stephen Rotstein: Jim welcome to the podcast.

James Bunting: Thanks for having me Stephen, pleasure to be here.

Stephen Rotstein: So I wanted to start by asking you a little about your career. You’re perhaps best known for your work in the field in sports but you maintain a busy commercial litigation practice. One of my areas of focus as CBA President this year is to encourage young lawyers to embrace careers that may be slightly out of the ordinary or non linear or in your case a career that combines elements that one would not necessarily assume go together such as gender equality and sports and commercial litigation. Could you please tell us a bit more about your career path and how you’ve gotten to where you are today?

James Bunting: Sure. I think obviously hard work, perseverance and great role models is probably how I got to where I am today in terms of the range of different practice areas and cases that I’ve touched on. You know the core focus of everything that I have always done in my career and what I’ve trained to try and do is be an excellent advocate which, you know, combined oral advocacy skills, written advocacy and strategic thinking. And you know when I was at Davies we learnt to do that across a broad array of different practice and that’s something that I’ve always embraced and followed. And so whether it’s a sports-related dispute or a corporate commercial piece of litigation or a charter case or a discrimination case the substantive law will change but the constituent elements of what it means to be a good advocate and to represent your client to the best of your ability are always the same to me. 

And so that’s really why I’ve always been focussed on doing a lot of different things if it’s possible to be focussed on doing different things. That’s what I have very much tried to do throughout the course of my career. And I think the one, you know the one thing as a litigator was to try and find opportunities to make sure that I was developing those advocacy skills in a practice that was predominantly corporate commercial-based with larger files, slower moving cases. And so one outlet for me to do that was the sports litigation where, and you know for the doping cases for example that I would do they would always go to a tribunal hearing because those cases don’t settle very often. And that became a good outlet for me to develop and continue to improve my advocacy skills.

Stephen Rotstein: So you mentioned earlier to me that you started your career at Davies and then you set up Tyr, so what kind of made you decide to I guess head out on your own I guess with others but to go from that firm to a boutique form that you founded?

James Bunting: Davies was a fantastic law firm, I had a great 16 years there and I was still happy when I decided that it was time to leave Davies. So it was really a decision that I made because I felt like doing something on my own and that was different, you know, with other partners. But creating a new platform would allow me to embrace even more broadly a diverse range of work across a diverse range of practice areas and also to partner with clients and to develop a firm culture that would work for peer, you know, peer litigation including mentoring and lawyers in a peer sort of litigation focussed way which was a little bit different than what was available at a larger firm structure which is a bigger machine. 

And you know, again I – Davies was a fantastic law firm, is a fantastic law firm, I had a great career there, and I wouldn’t change anything about it, and it’s a great place for lawyers to learn, train and collaborate together. It just felt to me like it was time to do something different for my career.

Stephen Rotstein: Right and what’s the genesis of the firm name?

James Bunting: The honest transparent genesis is that we decided that we would not name the firm after the founding partners which is really reflective of what we’ve tried to create at Tyr which is a law firm what is a platform for a diverse range of individuals who want a structure that will let them to – let them pick a career path that best suits their interests and lets them combine a variety of different practice areas. And by naming it something other than our own names we’re really reflecting that it’s a team-oriented institution that we are stronger together than we are individually. Tyr itself was a short we felt and hope a marketable name that we could come with. The genesis of the name is a very old Nordic god of law and justice. Tyr actually is Tuesday and Oden is Wednesday and there’s other gods for different days but that’s the genesis.

Stephen Rotstein: I feel like I need to brush up on some of my Nordic history now [laughs] after that description, but that’s an interesting genesis for the firm name. So I want to talk a bit about your work in sport because, you know, many people who know you will know kind of the leadership role that you’ve played in that area specifically in the area of gender equality in sports. So most people will know that you were involved representing the South African-born 800 metre Olympic champion Caster Semenya and Indian-born Dutee Chand, both athletes are women who naturally have a high level of testosterone. The regulations required them to lower their testosterone levels as a condition of participating in women’s sports. Before we get into your involvement in those cases can you explain for those who may not know about sports regulation what the issues in those cases were?

James Bunting: Sure. The issue actually goes back to basically women being permitted to compete in Olympic level sports. And since women were allowed to be in the Olympics the Olympic organizations at the time dominated by men decided that it was important to make sure that only women who were women enough were permitted to compete in those competitions; and so there’s a dark history of gender and sex testing in sport going back to the 1950s or 60s I believe, I would have to pull up my notes, but including at the earliest stages beginning with women getting a femininity or gender card where they would be examined by a doctor, at the time a male doctor, to confirm that they were in fact female, then they were given a card to verify their femininity. And with that card they were permitted to participate in women’s competition. 

And that rule or that rule or that regulation has evolved over time. It’s moved from a visual inspection piece at the very beginning that I mentioned to screening for chromosomes which people learned later wasn’t perfect. And there were women who were unfairly excluded from competition based on chromosomes with the result that they were also publicly stigmatized at the time as not being a woman or not being feminine which was just horribly damaging to anyone that happens to. And so over time those regulations evolved and we ended up with the regulation in 2014 which is the Dutee Chand case where the World Athletics at the time, International Athletics Federation put in a place a rule that was based on screening testosterone levels under the scientific theory that certain testosterone levels the regulation would flag women who were not women enough for lack of a better expression.

Stephen Rotstein: OK so how did you end up a, Canadian lawyer, how did you end up representing either one of these women?

James Bunting: Yeah so I think it all actually starts with having a great law firm behind you and Davies was supportive of me building up practice areas across a diverse range and supporting pro bono efforts including pro bono work for me to get experience on my feet doing litigation advocacy. And so, you know, that’s I think incredibly important in our profession is to recognize the value of pro bono and to be at a law firm that recognizes that value like Davies. And so because I had had that flexibility and those opportunities I had taken on a number of sports cases over the years predominantly pro bono earlier on in my career, now both, and therefore had developed a bit of a profile in that space. And so when Dutee Chand was flagged under this regulation in India she was put in touch with a team of international experts that included Professor Bruce Kidd from the University of Toronto. 

And Bruce Kidd got my name from others and he called me and asked whether or not I would get involved in the case. And one thing led to another and Davies and myself took the case on, on a pro bono basis. And so we represented Dutee successfully in front of the Court of Arbitration for Sport where we had the regulation as it existed at the time suspended. So they didn’t strike it down, the court didn’t strike it down but they suspended it and gave World Athletics two years to come back with better evidence. World Athletics ultimately didn’t come back with better evidence, withdrew that regulation and put in place a new regulation which also screens testosterone levels but was a little more targeted. 

And that new regulation no longer affected or impacted Dutee Chand for reasons I won’t get into on this podcast unless you ask for the blow-by-blow. And then – but that new regulation did impact Caster Semenya the world 800 metre champion. And sort of in a funny exchange Dutee contacted Caster and told Caster that she could have her lawyer and that was me. And so I was handed off from Dutee to Caster.

Stephen Rotstein: No good deed goes unpunished, so you do one good gig and you get a second client. So I mean progress in the Semenya what was the end result of that case because that was also an extremely high profile case as well?

James Bunting: It was and that was a case that had, you know, experts from around the world covering a very diverse range of different topics including, you know, genetics and legal ethics and legal opinions from various countries around the world, obviously experts in medical science. And it was complicated and difficult issue that ultimately did not go in Caster’s favour with a split panel two/one, so two of the three arbitrators found in favour of holding the regulations although even the majority of the panel noted that it was a slim margin. They described the regulation as being prima facie proportional, which is a bit of an odd concept in law. So people are still waiting to see how all of that evolved but regrettably for the time being Caster Semenya and other women with a similar genetic make-up are not permitted to compete in women’s competition unless they undergo invasive medical procedures.

Stephen Rotstein: So despite your efforts have we made any progress in this area, has the yardstick changed, and where is it going do you think.

James Bunting: Yeah so I don’t think we’re done but the yardstick has changed or the sphere of influence has changed pretty dramatically. When we started the Dutee Chand case in 2014 the testosterone regulation as it’s sort of often referred to generically applied to all women in all sports pretty much all of the time. And now the new revised regulation that was upheld by the slim margin in Caster Semenya case applies to a very narrow set of women and only at international events, international competition and not – and that rule has not been widely adopted across all sports. So we went from a very large sphere of impact to a much more narrow sphere of impact. The women that it does impact are devastatingly and negatively affected by the regulation. So it really – there is more work to be done but it’s not I suppose for a lack of a better expression as bad as it was.

Stephen Rotstein: Right, OK, well it’s – you know again it’s – the fights are going to continue but it’s good that you’re moving it forward. So I want to talk kind of a bit more about, not just about gender and sports, the talk about natural testosterone levels in female athletes but I want to talk about other issues such as transgender athletes and the rights of everyone to compete under rules that are transparent, fair and equitable. You know obviously there’s a lot of controversy in this area and there’s obviously people with strong emption I would say on both sides of the issue. So I’m wondering if you could speak to kind of, to the extent that the practice of law can contribute to ensuring that there’s fair competition for all athletes in the context where the competition is open for all.

James Bunting: You know it’s – I’m just pausing Stephen because the concept of fair competition or a level playing field is a little bit elusory. I mean it’s the genetic exceptions in life that make the heroes and heroines in sport because it’s individuals who have a somewhat exceptional genetic make-up who usually end being the most successful in sport. Law and ethics both come into play in trying to structure a fair set of rules for competition. It’s an incredibly complicated balance when we’re talking for example about whether there should be a line drawn at all based on someone who is a transgender woman or transgender man or someone who’s born naturally the way that they are. And different people have different views on whether there should be a line and if there should be line where it’s drawn and how it’s drawn and people have very strong views on all three of those questions. 

And I think really what the legal system does and what legal analysis allows us to do is to have those views and differing opinions discussed and debated with a view to trying to come to the best and most fair process. One of the difficult things is who is in the best position to make those decisions who is best situated to consider all those issues and get to the right result, and having done these cases and seeing the numerous areas of expertise that they touch upon. I don’t know that there is a specific tribunal that is properly equipped to deal with issues of this complexity where you’ve got really a social construct being gender straddling this idea of men’s and women’s competition. 

Stephen Rotstein: Interesting, interesting. We’ve spoken a lot about some of your cases dealing with some female athletes but have you done other sports cases on a pro bono basis that you’d like to let us know about?

James Bunting: Sure we’ve done a handful of pro bono cases for athletes that have been charged with anti-doping infractions because of what I’ll call environmental contamination. One that was somewhat publicised would have been for a Canadian cyclist named Jack Burke who tested positive for hydrochloride I believe it was. It’s a diuretic and a heart medication and we were establish in Jack’s case that he had actually ingested that substance from drinking water in an area Northern Québec that wasn’t treated which mean he wasn’t sanctioned for the substance that was found in his body. But you know the doping world is an interesting one because the concentrations at which the anti-doping authorities are now testing and reporting adverse findings for prohibited substances is so small that we’re seeing an increasing number of athletes who innocently and inadvertently come into contact with prohibited substances. 

And it’s a strict liability regime so it can be quite difficult establishing what the source of that environmental or inadvertent contamination was, you know, there’s a balance there. So lawyers working pro bono serve a very important role in that space protecting athletes who find themselves in that situation because these cases are complicated and you need good representation to get to the right outcome.

Stephen Rotstein: So obviously you’re a lawyer in demand and you great expertise in this area how do you decide which cases you take and which cases that you sadly can’t take?

James Bunting: You know a lot of that is circumstantial, it depends on when you’re getting the call, what else you have going on, on your plate. Now with our firm Tyr we’re able to take on more cases than we otherwise probably could have because it’s part of our firm mandate. But ultimately they’re – you know I have never had in my mind a particular number of pro bono hours or target that I thought had to be met. It’s really assessing the case, the cause, the person and then throwing that into the mix with everything else that you and the firm have going on to see whether or not you can provide the representation that’s being requested.

Stephen Rotstein: OK. So you know we’ve talked a lot about your pro bono work but you don’t just stop there, I mean you give back a lot to the community. You’ve served as the Athlete Ombudsman to the Canadian Olympic Committee during the Rio games and you’re a member of the Board of Jays Care Foundation and you were the Chair of the Board of Camp Oochigeas is where you and I know each other from. 

James Bunting: Yes.

Stephen Rotstein: Can you talk to me a little bit about what prompted you to get involved in well any of those organizations or volunteering generally?

James Bunting: Yeah I mean I think that it sort of starts with a general view about the value of volunteerism and devoting your time to something. And I started volunteering my time to Camp Oochigeas again which is where we go way back too, but I did that really when I was articling at Davies and I continued doing it ever since. And I always found that volunteer work was an amazing outlet to separate what I was doing day in and day out in a sort of high stakes corporate commercial litigation practice and providing a different lens through which I should and do view the word than how I otherwise would have seen things. So I’ve always looked at volunteering and pro bono work as really mutually beneficial, both you’re giving back but you’re also getting something in return and that it’s making me a more well-rounded more diverse person. 

And ultimately I think when you’ve pushed yourself through legal studies and you’re a practicing lawyer it’s important to give back where you can; and different people have lots of different ways in doing that. For me giving back was contributing some of my time to organizations that I had a relationship with or that I thought were particularly important to support. And so for that reason I started volunteering with Camp Oochigeas and that involved from volunteering as a counsellor up at the camp where I would spend a week every summer to eventually the board. And then, you know that just – having a volunteer outlet or organization that I support has really become part of my day-to-day as a lawyer. 

I always have something on the go that’s outside of my usual practice areas and so when, you know, when I moved off of the Camp Oochigeas board I joined the Jays Care Board and then I have the pro bono work sort of sprinkled in there as well. But it’s something that I think really is important to me and defined in a large way the lawyer that I am today and probably the person that I am today.

Stephen Rotstein: Yeah and I think those are the powerful words when you talk about volunteerism is something that I’ve been talking a lot about during my term as President that kind of – it benefits the community and it also benefits you personally; so you know I totally echo what you just said. Now you’re – we have other areas of commonality. You’re a father of two young daughters as am I though I think – how old are your daughters? This is not a normal podcast question but we’re –

James Bunting: [Laughs] It’s fine. They are 14 and almost 12.

Stephen Rotstein: OK so I have a 10 and 12 year old so you’re tight they’re pretty similar in age. So I could ask you about parenting but I won’t, I’ll ask you about something else that you do which is teaching, teaching law. I understand that you teach at the University of Western Ontario in civil procedure, and then you also teach at a university in Europe in the Masters of Sports Law program. So can you just give me a sense of what teaching – how the teaching helps you be a better lawyer?

James Bunting: Sure and first I’m glad you didn’t ask me a question about parenting because that would definitely fall outside of my expertise; we all struggle through that. But in terms of teaching, so I guess I need to update by bio. I did teach civil procedure at Western many years ago as an adjunct professor and I have taught, although I’ve now, now my partner Carlos Sayao has taken over the reins of that program, a section of an international Masters in Sports Law program in Madrid. I am currently teaching corporate remedies at [unintelligible 00:24:39] in the Masters program there. Teaching something that I think is – and I remember as a law student always having the best experiences when there was practitioner come in and teach the class and convey what they had done and what they had learned. 

And for that reason I have always felt that it’s important to try and make some time to give back and to impart what few things I may have learned over the course of my practice to those who are studying law. And it’s also very much like volunteerism, something where I feel like it is a two-way street whether it’s just the preparation to teach the topic that I’m covering which reminds me to go back and look at first principles on certain legal concepts or the interaction and dialogue that you have with individuals in the class. I always feel like I come out of a teaching mandate a better more informed lawyer than I was when I went in.

Stephen Rotstein: Great. Well I appreciate you taking the time to talk to me today and talking about important issues such as the work that you’ve been doing in the area of sports arbitration as well as obviously volunteerism generally, so thank you very much Jim and best of luck in the future.

James Bunting: My pleasure, thanks for having me I appreciate it.

Stephen Rotstein: I’ve been talking to James Bunting the founding partner of litigation boutique Tyr LLP. Merci thank you. We want to hear your stories about how you think legal professionals can help strengthen our communities. Do you know a lawyer who exemplifies this ideal or do you see a need for legal professionals that aren’t currently being met? Let us know at Twitter @CBA_News, on Facebook and Instagram @canadianbarassociation; you can also find me at Twitter @StephenRotstein. Thank you for listening to this episode of Conversations with the President. Subscribe to get the newest episodes as soon as they are released on Spotify, Apple Podcast or your favourite podcast platform and don’t forget to leave a review. Until next time.