The working theory of legendary lawyer Earl Cherniak - National Post

Copy URL Facebook Linked In X (Twitter) Loading account options Sign In Manage Account Close account menu Sign Out Lawyer Earl Cherniak at the law firm Lerners in Toronto, Wednesday Oct. 21, 2026. (Peter J Thompson/National Post) By Joseph Brean November 1, 2026 at 9:18 a.m. Last Updated: November 1, 2026 at 10:21 a.m. After a long legal career that saw him stand up in court for many of Canada’s most notorious litigants and defendants — Conrad Black, Tim Hortons owner Ron Joyce, JTI-MacDonald Tobacco, the Canadian Red Cross in the tainted blood inquiry, even the National Hockey League in a case about player pensions that saw him cross-examine Gordie Howe and then immediately ask for his autograph — Earl Cherniak’s most famous client remains his most controversial, Shylock, the villain in Shakespeare’s The Merchant of Venice.

In 2010, Cherniak, 91, who has just published his memoirs, appeared as counsel for the fictional stereotyped Jewish moneylender in a University of Western Ontario production of an appeal of his trial in the play. This was later reprised in 2013 at the Stratford Festival with then Chief Justice Beverley McLachlin and former justice Ian Binnie as judges.

“I thought Portia was a fraud and that vitiated the conviction,” Cherniak said in an interview, about the scheming heroine who delivers the “quality of mercy” speech.

Shylock was, among other things, a victim of the antisemitism Cherniak has seen evolve from the “subtle” bigotry of his early years at the Ontario bar, when he appeared before judges “who wouldn’t have much use for a young Jewish punk lawyer like me,” and the Toronto Lawyers Club did not admit Jews, who had their own organization called the Lord Reading Club, to the more activist “1930s kind” he sees around him in Canada now.

Much has changed. The Toronto Lawyers Club merged with the Lord Reading Club, and later admitted women. The Ontario bar went from a collegial, clubby assortment of 5,000 lawyers to a vast industry of 60,000. Cherniak lamented the lost collegiality of lawyers who would gown at the courthouse rather than at the office, and engage in a chummy professional lifestyle he said is now “mostly gone. I miss it, but I got to the point that that’s what I did too.”

“I had an advocacy practice that is not repeatable in today’s world,” he writes in his memoir, released on Oct. 13.

In The Courts: A Counsel’s Memoir, published by University of Toronto Press for the Osgoode Society for Canadian Legal History, recounts Cherniak’s career since being called to the bar in 1960, and clerking for Chief Justice of the High Court of Justice for Ontario James C. McRuer.

To call him a senior lawyer is an understatement. Cherniak is so senior he went to Osgoode Hall in Osgoode Hall. (The law school is of course now at York University, and the actual building next to Toronto’s City Hall houses the Court of Appeal and Law Society, but no law school anymore.)

I don't have to like my client. I just have to think they have an arguable case.

In the memoir, he describes the stutter that, as a child, “hampered me from answering the telephone or responding in class, even when I knew the answer… While I have largely overcome that disability, it has never fully left me.”

He writes that he became a litigator “despite, or perhaps because of, my speech disability.”

The stutter remains barely noticeable, audible and visible in his jaw within the first few words of a recent interview, in a boardroom with a CN Tower view at Lerner’s LLP, the only firm he has ever worked for and for which he still works. His portrait by the prominent Canadian painter Joanne Tod hangs in the reception area.

One curiosity about this interview was that both subject and reporter have a stutter, similar speech impediments that are not much noticeable today but were serious in youth, and had to be overcome in the social, academic and professional worlds.

Two stutterers saying hello to each other is potentially humorous in principle. But Cherniak got a surprise laugh with a perfectly fluent opening quip. Told it was a pleasure to meet him, he said dryly, “We’ll see.”

It was. He spoke with good humour and nostalgia about a career in which he, for example, successfully argued a matter that redefined personal injury law, allowing for vastly higher damages to plaintiffs. This case, and other successes in civil law, inspired the nickname on the cover of Canadian Lawyer in 1985, “King of Torts — the Intransigent Earl Cherniak.”

“Better publicity would be hard to come by,” he writes. It was so good, in fact, that he was hauled before the Law Society on a complaint that he was improperly promoting himself, though he had not sought out the attention and said he only gave interviews if he thought it was in his client’s interest. The complaint went no further, but it reminded him “that having a public reputation does engender professional jealousy in some colleagues.”

Thereafter, most cases came to him by referral from other lawyers, which he cultivated on the principle that “nobody refers cases to a jerk.”

“I was well brought up,” he said. “I’m the kind of guy who would never ever leave an elevator before a woman. I just wouldn’t do it. And when I see people do it, I’m offended.”

He reflected on the ethical tensions that can face a lawyer in highly controversial matters involving all sorts of people, and the principles that allow him to give sound advice without being drawn on the question of whether his client is ultimately right or wrong.

“I was my client’s counsel, not their judge,” he writes, quoting the late defence counsel Edward Greenspan.

Asked if any client had especially tested him on this point, he reflects, then says if there was, he probably would not reveal it in a newspaper interview.

“I don’t have to like my client. I just have to think they have an arguable case. I would defend a Nazi if they had an arguable defence,” he said. (On the other hand, his memoir also tells the story of him punching an actual Nazi, a former German pilot called Martin Weiche, who was leader of the Canadian Nazi Party in the 1950s and also landlord to people Cherniak represented in a rental dispute. His clients tried to move out, Weiche blocked them, Cherniak showed up, and Weiche “grabbed me by the collar, ripped my white dress shirt, and shouted that the Nazis should have finished the job against people like me — meaning Jews. I slugged him.” Weiche wanted to press assault charges, but none were ever filed, and to this day Cherniak thinks he would have beaten them.)

JTI-MacDonald Tobacco, which he represented for many years, “wasn’t my more popular retainers with my kids,” he said. “But I wasn’t their judge, I was their lawyer, and the question was were they liable in these lawsuits. It was one of the longest retainers I’ve ever had, and it was intensely interesting, and very well paid.”

Other clients were more sympathetic, such as the Canadian Red Cross, which he represented at the Krever Inquiry into the 1980s tainted blood disaster.

“They had to supply blood all across the country every day while this completely unknown crisis was going on, so they did the best they could,” Cherniak said.

He maintains the American criminal case against Conrad Black, whom he represented in Canadian civil matters, was “a crock,” and that his infamous removal of 13 file boxes from his Toronto office was perfectly innocent because he had been evicted, and the contents of the boxes were available to prosecutors anyway.

In the Walkerton water contamination inquiry, he acted for the medical officer of health. He also represented the lawyer Joseph Groia, whose successful defence of a key player in the Bre-X Minerals gold mining scandal led to misconduct charges of incivility, which Groia and Cherniak fought all the way to vindication in the Supreme Court of Canada.

“We lost all the way up,” Cherniak said.

He represented the late Ron Joyce in litigation brought by Lori Horton, widow of Tim Horton, for half the value of the iconic coffee shop company.

“That was a great case, so interesting,” he said.

He acted for KPMG in the Garth Drabinsky and Livent fraud scandal, over a collapsed entertainment business, and for developer Tridel in the Patti Starr affair, a political controversy involving illegal political contributions to the Ontario Liberal Party.

He never wished to follow the traditional path from successful lawyer to a judge on the bench. He was moved by another lawyer’s comment that to be a respected counsel is “a sufficient calling,” and unlike in the United States, he said, in Canada you cannot go back to the bar once you join the bench.

“I didn’t have a calling. I mean, a lot of my friends had a calling, they wanted to be judges, they thought they should be judges,” he said. “I never did… If I’d have gone into journalism, I would have been a writer, I wouldn’t have been an editor. Even though I’m a pretty good editor.”

He probably would have been a good judge too. He was named a Queen’s Counsel in the 1970s, a designation that ended in 1985 and brought back in 2023, now as King’s Counsel. He writes that he has “known and appeared before every Chief Justice of Canada from John Cartwright to Richard Wagner, and every chief justice of Ontario from Dana Porter to Michael Tulloch.”

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