An Interview with Al Meghji

"A planned life is not worth living”

Al Meghji is a tax litigator in Toronto and head of the tax controversy division at Osler, Hoskin & Harcourt LLP. By many accounts, he is the best tax litigator in Canada. Nevertheless, he considers himself a litigator who happens to have specialised in tax. “People call me a tax litigator, and that’s what I am,” he said. “But first and foremost, I’m fundamentally a litigator. That’s who I really am.”

Al never planned on becoming a tax litigator, let alone the top tax litigator in Canada. He worked as a chartered accountant for several years prior to law school. “I used to practice tax as a CA, and I decided, you know, enough of this, and I packed up, and I went to law school. And in law school I took a bunch of tax courses, but only because they were easy courses for me, so I thought, ‘I can actually get four credits for doing tax.’” His background in accounting, he says, is helpful for tax litigation, but “plays a very small part in how [he] thinks,” and merely provides contextual knowledge for his cases.

Al took an unorthodox route to the top. After graduating from Dalhousie School of Law, he clerked at the Federal Court of Appeal and then completed his LLM at Harvard Law School. When his wife secured a clerkship at the Supreme Court of Canada, she and Al moved to Ottawa. Al needed a job, and there was an opening at the Department of Justice in their tax litigation section. Al planned to stay for one year but wound up staying for six.

“It was the beginning of a great career,” he said. “I stayed in it, and it grew on me, and I kept getting better cases. So I’m one of those guys that didn’t end up doing this because I planned on it. I basically said, ‘A planned life is not worth living.’ You just kind of do things that come to you, and you live with opportunities that present themselves and try them out, and if they work, they work, and if they don’t, try something else.”

Practising tax litigation at the highest level

Al represents some of Canada’s largest companies in high-profile tax cases before the Tax Court of Canada, the Federal Court of Appeal, and the Supreme Court of Canada. For example, Al recently acted for the respondent at the Supreme Court in Canada v Loblaw Financial Holdings Inc, 2021 SCC 51. The court held that the meaning of “business” within the relevant section of the Income Tax Act only applied to efforts to earn money, not to the source of the bank’s initial funding, and consequently that Loblaw’s investment bank in Barbados was not subject to taxation in Canada.

In high-profile tax cases, tens or hundreds of millions of dollars of the client’s money can hinge on the court’s decision about the meaning of a specific statute. You might expect counsel to experience extreme highs and lows depending on the outcome. However, Al has learned to moderate his reactions to wins and losses. “When I win a big case, I think of it as ‘I dodged a bullet,’ I don’t think of it as euphoria and celebration,” he said. “My reaction isn’t celebration. I’m very pained by losses, and I’m motivated to avoid losses. I used to deal very poorly with losses. I deal with it much better now. Now, I kind of understand that my role is to do the best I can and my role is to solve a problem. I didn’t create a problem. I’m just trying to solve it.”

Al’s method of preparing a case is like a method actor preparing for a new role:

“The way I typically prepare a case is I become the Crown before I even start preparing,” he says. “I live the life of a crown. I go back to my old days. ‘How would I argue this?’ I become completely possessed with the Crown’s case. I have a trial notebook, so in my trial notebook I actually write the Crown’s submissions. Then I write a judgement in favour of the Crown. So my notebook will say, ‘Meghji J., appeal dismissed.’ And then, I write a set of reasons, paragraphs after paragraphs. I live it for a long time. I live it very consciously. And then when I have the Crown’s case at its best, then I turn to, OK, this is what I'm faced with. And then I start preparing for my case.”

When preparing that case, both written and oral submissions are crucial for securing a favourable result. “Written advocacy is critical in setting down the framework and the terms of the debate,” said Al. “The way I think about it is: written advocacy is mostly about the mind. Oral advocacy is mostly about the heart.”

Written advocacy, he says, should set up the case so that you have a fighting chance in the courtroom: “Judges mostly come in with a preliminary view of the case. If you haven’t used your written advocacy to at least put yourself in contention, it’s very difficult to do it in oral advocacy. Meaning your written advocacy has to at least put you in the fight. So I always say to people: ‘This is a game day case. When we write our factum we’re not going to win.’” Other times, when he has a strong enough case, Meghji says that “Our case is so good, we can win this with a great factum and when we go into the oral advocacy, we’re playing defence and those guys are gonna have to win this.”

Litigation as a “morality play”

Al’s winning record in high-profile cases raises questions about the role played by exceptional counsel in the administration of justice. Is it good for the justice system that one talented litigator can influence the outcome of a dispute to such a great extent? For his part, Al believes that the adversarial system is an excellent way to reach the correct legal outcome. The exception, he says, is when one side is not effectively represented. In high-level tax disputes, where cases are argued by the government on one side and clients who can afford the best lawyers on the other side, this is not an issue. What results is a clash of competing narratives—what Al calls “a morality play.”

“I’ve often said that litigation is almost always—not always, but almost always—a morality play. It’s a debate. And so, [in Loblaw], you had two competing narratives. And the government’s narrative was extraordinarily simple. As the Crown’s lawyer said, ‘This case is about very rich people stuffing their money in a Barbados company to avoid taxes.’ Now that’s a very appealing narrative—if it’s true. Our narrative was, ‘This case is about the interpretation of a very technical, narrow rule, and the trial court found that there was no person trying to stuff money down in those cases.’ So our narrative was about the appropriate role of a court interpreting a statute.”

Al suggests that the way that institutions such as the courts, the Canada Revenue Agency, and Parliament think about tax law is “often a mirror of public morality.” In the 90s, he said, the prevalent view was commercial certainty: courts viewed themselves as primarily interpreting the law as opposed to making it. Moreover, they were hesitant to disregard the plain text of statutes and were more willing to allow clients to minimise their tax burdens. Now, however, the cultural conversation has shifted to income inequality, corporations paying their fair share, and anger about tax shelters and tax avoidance. Therefore, Al stresses the importance of being empathetic to the changing moral sentiments of the public when litigating cases. By doing so, a litigator can more effectively persuade judges to their point of view.

“Judging is fundamentally a human process,” he observes. “We are taught as lawyers that judges are Cartesian reasoners, that they deduce facts and they basically listen to evidence, and they look at the facts, and they arrive at decisions—and that’s a somewhat mechanical description of what judging is all about. Judging is nothing like that. Judges are in the business of doing the right thing.”

Advice for law students going into litigation

Meghji thinks that an open and flexible mind is the most essential tool for a litigator, and it’s not something that law school will teach you: “I think the worst thing for advocates is law school. I think law school makes you a terrible advocate. Because what law school does is it gives you a false sense of security about how judges think. It minimises the impact of humanity and humanness and human psychology in decision making.”

Instead, future litigators should focus less on statutes and doctrine, and focus more on learning about human beings, creativity, and psychology. “You need to learn about how human beings think, and then anything that teaches you to connect to human beings is what makes you a great advocate. And all of the law stuff, the statute and the facts, that all plays into it, but I developed my skills—well, here’s what I did. I just read. I got an email from a guy from England who’s going to law school there, and he said, ‘I’m thinking about what courses to take. I’m interested in doing litigation. What courses should I take in my last year at law school?’ And I said, ‘Take whatever you want. But the best education you can get is to go to every play you can catch while you’re in London. Just go to every play you can catch. Go to every symphony you can catch. Read every Russian novel that you can. Because that will make you a great advocate, because it will teach you creativity, it will teach you suppleness.’”

Meghji also stressed the importance of learning from other lawyers. “Go watch great barristers. Go sit in the back of the court room. Sometimes these trials go forever. You don’t have time. But find out when somebody who’s really good is arguing a big case, and when the opening statement is, and when the closing argument is. Just go.” Find a mentor, somebody that you get along well with, “somebody who you wanna work with, who will teach you, who will take an interest in you.”

Finally, stay open to new opportunities, and don’t stay set on a single path: “Just be open to things. Don’t have a carved path. Don’t have a path. Like for me it happened: I went to the Department of Justice. I wasn’t going to go there for five years. I stayed for six! I went there for one year, and I stayed for six because I was learning a lot.”