Gordon Harris: Welcome to you all wherever you may be watching or listening to this. I have been interviewing leading figures in the world of IP over the last few months and we have had some wonderful and interesting conversations. Up to now, I have been looking outside my own firm for subjects and I suppose technically the same could be said of my next guest but he has very much been part of the fabric of our firm for the last 40 years until his retirement at the end of 2020. Rob MacDonald is a legend in the IP world, head of the Gowling's IP team for so many years, but also involved to the full extent in the business of IP through Inter Marks and other organisations. To me, of course he is also a great friend and colleague but that not mean that I am going to let him off lightly as we seek to learn more about Rob's remarkable career. So welcome Rob MacDonald.
Robert MacDonald: Thank you Gordon. It is great to be here.
Gordon Harris: Good. OK well that us get started right at the beginning. Rob, where did it all start? Tell us about how you got into law in the first place.
Robert MacDonald: I wish I could say it was very linear and very planned Gordon but of course I cannot. I did an under-grad degree in political science, got interested in constitutional law and decided I would make the jump into law school. I did have as an inspiration, my father was a lawyer in the military for his career so the law was not entirely new to me. I went to law school. I really enjoyed law school but I will tell you this when I graduated from law school Gordon, I had no clue what I wanted to do. I knew I wanted to get called to the Bar, I needed that credential but beyond that no clue. So I started articling at Gowling Lafleur Henderson LLP 15 June 1981 and basically fell into a career in intellectual property, which I thought this could be fun for a few years and 40 years later, here I am.
Gordon Harris: Well indeed. Yes I know the feeling. I think we are quite parallel in that regard. So Gowling Lafleur Henderson LLP, can you remember your first day there and what made the biggest impression on you?
Robert MacDonald: I can remember my first day there. The first day stands out because the first day I sat in the reception on the 14th floor of 160 Elgin Street with class mates of mine who were all starting to article together, Ron Linnell, Wayne, Terry, myself, Bridy Roach and we were all sitting there anxiously awaiting and having no idea what we were getting into but that first day still stands out in my mind because we were welcomed, we were made to feel entirely at home and part of the fabric of the firm from the very first day and to my mind, and you and I have talked about tis many times Gordon, it was that sort of feeling of belonging, integration right off the bat which defined the firm for me then and it still defines the firm for me now as being just that great place to be a great place to work.
Gordon Harris: It is important is it not that first impression that a firm makes on you. As you said it can stay with you forever.
Robert MacDonald: Exactly.
Gordon Harris: One thing I know your early days at Gowling Lafleur Henderson LLP and you talked about sitting in the office. The office you were sitting in was 160 Elgin Street, Ottawa. What this means is that not only have you spent your entire career at one firm, you have actually spent it in one building. Did you ever feel like spreading your wings?
Robert MacDonald: You know what, I think it is truly remarkable in the practice of law today to have spent your entire career with one firm. You and I have done that but you have spent your entire career in the same building just really highlights how boring a person I actually am. I started out on the 14th floor, I worked on the 12th floor, I went to the 27th floor, I went to the 23rd floor, I went to the 27th floor again. I was on the west wall, the north wall, the east wall, the south wall and then back to the north wall so I have moved around in the building but one of the great things about my career at Gowlings is from the very first day I was travelling. I was going down to our Toronto office to work there and as we expanded I got to spend time in all of our Canadian offices, Montreal, Calgary, Vancouver and Waterloo and Hamilton and so it never seemed like I was in one place right just sitting at 160 Elgin Street because I was not and for what I wanted to do and as I got into intellectual property, I really enjoyed it and wanted to do, it was the best place to be, the best people to practice with, the best clients so spreading my wings and going somewhere, no I was happy. I still look back and think wow what an amazing opportunity I had.
Gordon Harris: Yes you cannot always tell can you when the door opens for you at the beginning of something like this where it is going to lead…
Robert MacDonald: Well you cannot and I got to tell you Gordon, you will remember David Clarke who was in our firm…
Gordon Harris: Yes very well.
Robert MacDonald: and who unfortunately passed away this past year. David, when I articled, came to me one day. As I said I did not know what I wanted to do with my life and in fact I thought about going up to Halifax to practice in Halifax and David was from Halifax and he came to see me, we had a conversation and he said look you are being foolish. I want you to come with, I want you to meet Graham Maclennan QC and I think the two of you should work together and so I went with him and I met Graham for the first time and I think Graham was just as taken aback by the conversation as I was and we talked and the smartest decision I ever made was when Graham said well do you want to work with me. I said sure and it was great. I had no idea what I was getting into still no idea Gordon but boy oh boy, brilliant decision.
Gordon Harris: It is funny is it not, like you I fell into IP and so grateful that I did? It was just one of those complete happenstance but there it is and then it defines your entire life and then I am in. I want to come back to the great Gordon Henderson later actually in our second session but you mention Graham there and David Clarke. Are there any other big names from Gowlings in those days that had a particular influence on you?
Robert MacDonald: Well I worked very closely with Graham right from the outset and learned a lot of him as a mentor. He was amazing and as somebody who gave me the full opportunity. He would just come into my office and say here is a case. I want you to go argue it. You cannot win but go and have fun. Go cut your teeth on this case so he was excellent from that perspective. There were others and of course Alex Maclean who was one of the senior patent litigators at the time. There was Gordon Henderson, Gordon was an IP litigator amongst many other things. I only got to go to Court with Gordon once and I still remember there was Gordon Henderson on his feet who had turned to Jane Steinburg and asked Jane to provide him with whatever he needed next and Jane would turn to me and I provide Jane with whatever Gordon needed next and it was just so exciting to be there with Gordon Henderson on a very small matter but you are excited to say I was in Court with Gordon. Then of course I got to meet and start to develop relationships with a lot of the next generation people, Scott Joliffe jumps to mind right away, going to Court with Scott back in the days so it was just a great learning opportunity.
Gordon Harris: So you mentioned the fact that you were not really trapped in Ottawa because you were moving around the other cities where Gowlings had offices in Canada but of course quite early on in all of this you started to cast your mind towards Russia. Now what were the drivers behind that idea, what made you think of opening up in Russia?
Robert MacDonald: I wish I could take any credit for our decision to open up in Russia but I cannot. I do remember because I was a partner when we voted to open our office in Moscow but we decided to open the office in Moscow before the fall of the USSR. It was still the USSR and one of our partners at Bela Barbre who is now the Justice of the Ontario Court who was doing a lot of work representing Canadian companies, Canadian joint ventures, going into the USSR to do business at the time during Perestroika and Glasnost and we had been encouraged to open up an office in Moscow and we did, a very small sort of hole in the wall but we did it just in time for the end of the USSR and so we found ourselves with an office in Moscow and the joint venture work lined up quickly but a real need and demand for an intellectual property services because if you had a USSR patent, you had to re-register it through the countries of the former Soviet Union, the same with trademarks and those clients who knew us for IP experience in Canada saw Moscow on our letterhead and would call and say is that Moscow, Ontario or is that Moscow, Russia and so we hired Vladimir Demerdzhive who was patent attorney 001 in the Russian Federation. We hired Tamara Istilmena who was one of the first trademark attorneys in the Russian Federation and we established that office and I will tell you this. I remember Graham Maclellan comes into my office. He had just come out of an executive committee meeting and he passed me the Russian patent back and said you had better read this because you are going to be spending some time in Russia and I thought I do not know what is happening here but OK.
Gordon Harris: What was it like being in Russia? We are in the Gorbachev era now post Perestroika, what was it like?
Robert MacDonald: My first trip was to Russia so the Gorbachev era had ended, Yeltsin was the president of Russia. My first trip was in 1994 and I will tell you that it was a hard place to visit. The years prior to 1994 so 1992/1993 were hard years in Russia, hard for a lot of reasons and even when I was there I came out of Russia, I had lost weight. My wife, Clare, looked at me said what happened to you? There was no food or very hard to get food and so when I left Russia on that visit, I was not keen to go back and then my next visit was in 1996, I had been at the Marx conference in Stockholm and then flew into Russia and I remember landing and thinking why am I here? What am I doing and just blown away by the change that had occurred in the two years and very excited about what we were doing and where we were going so that was the real transmission point for me and then from there on over the next 12 years, I spent a lot of time in Russia and saw that office grow, saw the business grow and got very firmly founded as one of the leading I practices in Russia. So very excited, very excited.
Gordon Harris: Which it still is to this day is it not and goes on growing so it has been a fantastic success story. So we are going to come back to the international merger in the second session but during your earlier years the firm was growing dramatically in Canada so what was it like integrating quite a number of pretty big mergers within Canada?
Robert MacDonald: Well you have gone through this in the UK as well. I was part of the executive committee in the late 90s into the 2000s when we started on a path to expand. We had already set up an office in Vancouver but it had not really met its full potential yet, by that I mean we knew we had to continue to grow it. We were not in Calgary, we were not in Montreal and we knew we needed to grow in Toronto and I will tell you there were a couple of things that I remember very much about those discussions and one was and Scott Joliffe was our chairman at the time. One was the need to have a vision of where you are going and why you are doing it? Right. It is no good saying hey we just want to grow for the sake of growth. You have got to have to have a reason and a rationale and we did. We wanted to be where corporate Canada was growing and that was Calgary, a lot of head offices moving to Alberta, Montreal and Toronto. The second thing is that finding the right merger partner is actually difficult. First of all you have got to find somebody who is interested in doing this and you have got to explain to them and get them on side with what you are trying to do, get them excited about what you are trying to do. But the big thing is making sure that the cultures of the firm click and it is sort of funny to sit here and think about the firm having a culture but you know and I know that a firm does have a culture and if you are going to merge you have got to make sure that there is a cultural fit and you spend a lot of time trying to get to know the firms and make sure that there is a cultural fit and then obviously there is the negotiation of the deal and getting to that ultimate vote and then the big third step is integration and that is massive so I have the privilege of being at the table means as we went down these paths and the end result I think is a fantastic Canadian presence. You know you can go to a Montreal office or a Vancouver office and you will encounter the same Gowling WLG ethos and spirit wherever you go and then obviously Russia and now, we will talk about this in a moment, the expansion internationally. Great challenge.
Gordon Harris: We are going to come back to that a little on probably in our second session but it is very interesting what you said there about culture, it rings a lot of bells and I will talk about that a little but more in the next session so let us go back to your actual working life then. You have been involved in a lot of cases over the years. Is there one that stands out and which is you biggest source of pride? The one that makes you glow a little bit when you think about it, when you look back at your career?
Robert MacDonald: There are actually a couple of cases where I can look back and say that was fund. That was a learning experience. I will give you two very quickly. One was the very first time I went to Court all by myself. It was a case that Graham had given to me and said you are not going to win this so go and have fun with it. I was up against the Attorney General of Canada, I was the appellant, I was gowned and it was all very sort of special and I was going through my argument and I had a throwaway argument. At least I thought it was a throwaway argument and the Judge stopped me and said you made a good point and he turned to counsel for the Attorney General and said what do you think and the counsel for the Attorney General said I think he has made a good point and the Judge said well what do I do and counsel for the Attorney General said I think you have to allow his appeal which he did from the bench and I went back to the office and I went into Graham's office and Graham said well how did it go? I said I won and he said how? I said I am not sure, really not sure how I won and you know what that first case, that first opportunity resonates with me because it was Graham giving me that opportunity. It was the opportunity to go in and engage in a philosophical legal debate with the Judge and the other side and by chance winning it. The other case I will mention was Graham was off, he had been retained a lead counsel on a major patent trial, I think was a five week patent trial and he called me down at the end of the third or fourth week, call med me up and said could you come down for the weekend and help write the submissions for this case and so I went down, I was a kid, I had no idea what the case was about, I had never read a patent and it was a patent trial and I remember just the collegiality of sitting in the office every day I would take what they gave me, I would work it into the draft submissions, the team would come back from Court that night, we would work late into the night on the submissions and they would feed in what had happened that day and by the end of the week we had wonderful submissions and we won that trial. Now we lost on appeal but I took a stay I would say that we lost on appeal because I was not engaged to write the submission. That is my conclusion but there you are. So those cases stand up. There are lots of cases that stand up and actually what stands out in my mind is not so much the case but the people I was there with right and a lot of the cases back in the day, James Buchan and I were litigating together and a lot of the cases I litigated the people on the other side still stand out, some good, some bad but most good actually. It is a very collegial law.
Gordon Harris: It is always people is it not that really stick in your mind after the event. Now I have given you a chance of tell us how wonderful you were which you have duly done. You did a lot of Court work. I cannot believe that you cannot recall of any moments which you wish had gone a little bit differently. I am sure you can tell us now.
Robert MacDonald: I will tell you this, every time I come out of Court and I do not think I am any different than anyone else, you come out of Court and you think I could have done something differently. I could have made my submissions slightly over here or I could have responded to the Judge a little bit better and so I think everything is a learning moment. Can I look back and say well there is one that I just really blew and I wish I had done it differently. I am sure opposing counsel might be able to tell us that but no. I do want to tell you about one of the things I learned that has stuck with me throughout my career is the importance of having a reputation, the importance of knowing your opposing counsel, the ability to call up and say listen we need to talk about something, we need to figure out we are going to do something or we need to talk about settlement or whatever and have the credibility with the other side that they think I can have that sort of conversation with Rob because I have confidence in him. I do remember being handed a case years and years and years ago which was a bit of a disaster and we were behind the right ball and the Associate chief Justice was going to have a conference call with counsel to read us i.e. me, the riot act and I called up opposing counsel and I reminded him of this sine but he does not recall it. I called him up and I said look we have to figure this out here is what I am proposing. He said I like that but I am going to have one more qualifier on it. I said fine I agree to your qualifier. We got on the phone with the Associate Chief Justice. We told him we had agreed on X, Y and X and the Associate Chief Justice kept waiting for the other shoe to drop, you know when is opposing counsel going to ask me to hammer Mr MacDonald and opposing counsel did not. He said no we have resolved everything that needs to be resolved. Let us move forward and it is that sort of collegiality and confidence and trust with your opposing counsel that is critical, it helps you serve your clients' interests best. My first lesion in collegiality though I will tell you. I was in the Court of Appeal for the first time, the Federal Court of Appeal on a case involving pharmaceuticals, those are fairly hard cases and opposing counsel, Malcolm Johnson QC, a Scot, who I do not think I had ever met but certainly I had talked to on the phone before, no I must have met him, I must have met him but Malcolm was the appellant, representing the appellant and he stood up and he argued and he was getting beaten up by the Court and after about 10 or 15 minutes he sat down. He said you have heard my submissions and he sat down and like the eager little kid that I was, I grabbed my books, I jumped up to the podium ready to go and the Judge growled something at me which I assumed meant stay calm, we will get to you when we get to you and he was busy writing, doing whatever and then he looked up at me again and he said I told you Mr MacDonald sit down. I do not need to hear from you and I had no idea what that meant, I know that that is a good thing but then I had no idea. So I sort of slumped back to my chair and sat down. They read out the decision from the bench, I won. Malcolm stood up and he was about 6'5" so when he stood up it was quite the sight and he said thank you my Lord. I just want to say that I feel sorry for Mr MacDonald and the Court looked at him and said why, he won and Malcolm said today was his day in the Federal Court of Appeal and he did not get to say a word and at that Judge smiled, he did smile and said well I am sure he will have another chance. That was a lesson on you know what you can litigate as hard as you want against each other but at the end of the day, you are still colleagues and that lesson has just stayed with me throughout.
Graham Harris: That is a great story. I love it. You are right that is the camaraderie of the Court room is it not and that is certainly how it should be. I have to say I have seen signs of that fraying a little bit in the UK in recent years but that is another story. When the history of the firm sis written which it might be you never know. What would you like it to say about your time as head of the IP team?
Robert MacDonald: It depends on whether you and I are going to write the history of…
Gordon Harris: I think I might...
Robert MacDonald: You know what, I got into management in early 90s. I was elected department head in the IP group in Ottawa in like 92 or 93, must be 92 and again it was engineered by David Clarke who engineered my career in IP and started off at that point as department head and then practice area leader and so on an d so forth. When I look back, I think Gowling WLG in Canada and around the world now but in Canada has, speaking just about Canada at the moment has an amazing group of professionals right. Partners and associates and right across Canada, they are great and I viewed my job as ensuring that they had what they needed to succeed and then get on to their way right so if part of the issue is resources and help with resources if part of the issue is with automation, help with automation but at the end of the day I am fortunate to have worked with an amazing team and my job was to just make sure they had what they needed to succeed and I think, I hope I did that well.
Gordon Harris: They key is what they would say and I talk to them and they do something along those lines so I think it is a success. Right well you have now handed over the reigns of the Canada team leadership role to Shelagh Carnegie who you have worked with for many years. If you have a single piece of advice for her, what would it be?
Robert MacDonald: One of the most important lessons, actually I am going to give you two lessons that I have learnt over the years is first of all, you have got to know your partners, your colleagues, everybody in the IP group and that means before COVID obviously, it meant you do a lot of travel, you go to offices, you sit down, you listen, you understand what the issues are that maybe causing them problems in that local and you help them try and find solutions and there is no substitute for the time spent listening to people talking to people. The second thing that is equally important is you have got to make a decision. At some point in every process you will gather your information, you will assess it but you have got to make a decision and then you have got to move forward based on that decision and so you have got to have the confidence to do that and you want your colleagues to be able to say look I may not agree with the decision but he listened, she listened and heard us out and so the classic I did not vote for this but I will get in line behind it and see it forward and I think that is important.
Gordon Harris: That is great. Well that takes us part of the way through your remarkable story but there is a lot more to come. So thank you or joining for this session. We will returning soon with the second part in which we will look at the long relationship between Gowlings in Canada and the firm originally known as Wragge & Co in the UK and how ultimately that came to fruition in the merger of 2016 but for today thank you Rob, thank you for your time and I look forward to the next time.
Robert MacDonald: Thank you very much Gordon. It has been a pleasure talking with you.