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Lawyer Allen Linden won compensation for thalidomide victims

Through his writing, Allen Linden helped usher in a new, modern era in Canadian tort law, which held corporations, individuals and governments to account through court action.

He was a young professor in love with tort law, the legal process by which people can seek damages from those who have harmed them. Torts were his elixir, his passion.

And here was a very big tort, or "civil wrong:" Dozens of Canadian children had been born with deformities because their pregnant mothers had taken the drug thalidomide.

It was 1963 when a Toronto law firm, pressed by a thalidomide family, came to Allen Linden for advice. But then, having received his advice, it refused to take on the fight. "This law firm is not a charitable organization," a senior partner told him. If he believed in it so much, the lawyer added, he was at liberty to take it on.

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But he had little trial experience, and in any event product liability law in Canada was in its infancy. He would have to prove that the drug company that distributed the drug had been negligent, a huge hurdle. In Britain and Germany, where the largest numbers of thalidomide babies had been born, governments had set up funds for the families. But in Canada, with 125 families affected, nothing.

So there was only tort law to provide hope, however slim. And then he hit on an idea: Seek out lawyers in the United States, and sue south of the border. After all, the drug's distributor, Richardson-Merrell, was in Ohio. And it wasn't necessary to prove negligence. Today, such a strategy would surprise no one. But at the time, it broke new ground.

"The notion of American lawyers taking on cases for foreign nationals in the American courts in the 60s? That was unheard of," says Philadelphia lawyer Stephen Raynes. "He had great foresight."

It took years, but compensation eventually began to flow for the Canadians. Mr. Raynes's father, Arthur, was a key figure in some of the litigation and negotiations, and the son keeps a textbook, Canadian Tort Law, co-authored by Mr. Linden, in his office, and featuring a 1969 inscription, which reads in part: "To victory and justice for all thalidomide children."

Mr. Linden, who died of pancreatic cancer on Aug. 23 at the age of 82, was a judge, teacher, author and legal reformer – and the dean of tort law in Canada.

His pivotal role in the quest for compensation and justice for Canada's thalidomide families was but one episode in a lifelong passion for the system by which a civil wrong, or tort, can be made at least to some extent right.

Largely through his writings, he helped usher in modern Canadian tort law, in which corporations, individuals and government could be held to account through individual or collective court action. The tenth and latest edition of his book, Canadian Tort Law, with co-author Bruce Feldthusen, was published just two years ago.

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"It's an underdog thing," his younger brother Sidney Linden explains. "Torts are for people who have been hurt and are trying to gain justice."

That outlook was nurtured during a Depression-era childhood. He was born on Oct. 7, 1934, in the heart of Toronto's Jewish garment district at Spadina and College, to immigrants from Poland who had little formal schooling. His father, Louis Lindenbaum, was a tailor who sometimes held two or three jobs to support the family.

"Our parents weren't that big on officials or officialdom," Sidney said. "You've got to fight for whatever you get. We weren't going to represent banks or insurance companies or real estate developers."

The underdog streak runs in Sidney, too. A former chief judge of the Ontario Court of Justice, he designed the first civilian police-complaints body in Ontario, which he then chaired; today, at 79, he is Ontario's Conflict of Interest Commissioner. (Supreme Court Justice Rosalie Abella calls the two brothers the Fabulous Linden Boys.)

Allen's intelligence and social smarts showed up early. When he was nine, his mother, Lilly, sent him off on his bicycle to Queen's Park to pick up a birth certificate for five-year-old Sidney. "How he did it remains a mystery. All we know for sure is that two hours later, he came back with my birth certificate in his hand," Sidney said in his eulogy at his brother's funeral last month.

Allen went to law school at Osgoode Hall, run at the time by the Law Society of Upper Canada. It was a stodgy place.

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After earning his law degree in 1960, he escaped the narrow horizons of home, heading to University of California, Berkeley, for his master's and doctorate in law, where he studied under two of the leading torts experts in the common-law world, William Prosser and John Fleming.

He quickly found his way into teaching, after a brief stint in private practice. It was an exciting moment, as York University took charge from the law society in running Osgoode. Mr. Linden, Harry Arthurs and other pioneering scholars who had gone abroad helped modernize legal education with the Socratic method of engaging students by asking questions.

"Prior to that, it was black letter law, the old method of telling you what the law is," Sidney said.

Allen taught from 1961 to 1978 at Osgoode, and made a deep impression on a generation of students.

"He was a wonderfully enthusiastic, outgoing, friendly, dynamic guy – a Pierre Trudeau type of guy. He wore a rose in his lapel," Toronto lawyer Frank Gomberg, who studied under him in 1974, recalls. "He had a bubbling enthusiasm for the law of torts. It was contagious. I spent my career in that area because of him."

Mr. Linden married his high school sweetheart, Bambi Shafran, in his early twenties, and together they raised three daughters.

On his sabbaticals, he took the family to Oxford, Melbourne and Paris. The first places they visited were the courthouses and the law schools, his daughter Wendy Linden said. (Even when they went to the Bahamas.) So inspirational was he that all three daughters became lawyers – and all three married lawyers.

He was not an ivory-tower sort; law connected him to politics and the problems of real life. He published a 1965 statistical study on car-accident victims, which helped lead to Ontario's first no-fault insurance plan in 1970. He wrote a 1968 report on compensating crime victims, which led two years later to Ontario's creation of a compensation program.

An active member of the Liberal Party before he became a judge, he developed a friendship with Mr. Trudeau, whose vision of a "just society" he shared. He worked for Mr. Trudeau at the 1968 party convention at which he became leader. For years afterward, Mr. Linden kept up a correspondence with him, sending him notes, for instance, recommending a book to read or a person for a particular post, Wendy Linden says.

Over the decades, his prolific writing on torts had an enormous impact. In his view, tort law was a kind "ombudsman," a vehicle by which ordinary citizens could challenge the powers that be.

"He created the field of Canadian tort law," Jeremy de Beer, a law professor at the University of Ottawa, says. "Before Allen Linden, tort law was the law of England applied in Canada." English law was formalistic, mechanical; Canadian law addressed public policy considerations.

For Supreme Court Justice Russell Brown, Mr. Linden's approach to torts was deeply influenced by a generosity of spirit. When Justice Brown was a junior law professor at the University of Alberta, he published a journal article criticizing the Supreme Court of Canada for its approach to torts. Then the phone rang. It was the dean of torts himself.

"I've never forgotten it," he said.

In the 1990s, academic critics challenged Mr. Linden's view of tort law as "ombudsman," Justice Brown said.

"Some scholars argued that perhaps tort law had gone too far, that personal responsibility perhaps had been shunted aside. But Allen would never change. He viewed tort law as one of the great creations of the common law [English body of precedents and case law written by judges]. And he thought it should be made generously available. It's entirely consistent with his personality, which I would characterize as one of generosity."

In 1978, the Trudeau government appointed Mr. Linden to the Supreme Court of Ontario [now called the Superior Court]. His eagerness to advance the law could be seen in a famous tort case, Allan v. Mt. Sinai in 1980, in which he found a doctor had committed assault by giving a patient a needle in her vulnerable-to-injury left arm when she had asked for it in her right arm – a major precedent on consent. The doctor won on appeal, however, because the case had been fought on grounds of negligence, and Mr. Linden had not given the defence a chance to argue the assault issue, according to Colin Campbell, the defence lawyer in that case.

"He genuinely thought the law should be able to make that happen," Mr. Campbell, later a judge, said.

Mr. Linden's time on that court was not happy.

"I think he always felt he wasn't treated very well there by the other judges, that they didn't welcome him as an academic," said Prof. Feldthusen of the University of Ottawa law school, his co-author on four editions of the torts textbook.

In 1983, Mr. Linden stepped away from the court to become the president of the Law Reform Commission of Canada, which undertook to modernize the Criminal Code (though Parliament did not heed its suggestions). He stayed until 1990, when he joined the Federal Court of Appeal in Ottawa.

In one respect, it was an unusual move.

"The Federal Court's jurisdiction is rarely torts," Prof. Feldthusen said.

The court deals with immigration, indigenous issues and other matters of federal jurisdiction. In a 1993 same-sex case, he dissented, saying that a homosexual couple was entitled to a federal spousal allowance. He was bilingual, and could hear cases in French. He enjoyed the court's itinerant approach.

"Our court, from the start, was conceived to be a 'People's Court,' travelling across Canada, deciding cases from coast to coast to coast, making it unnecessary for the litigants to travel to Ottawa," he said at a 2009 symposium.

He had much the same effect on his clerks as he had on his students.

"Before clerking for him I thought law was just a set of rules, and he showed me how much more it is," Prof. de Beer said. "He was able to humanize the law unlike anyone I've ever seen."

Sometimes the humanizing went only so far. Chief Justice Marc Noel of the Federal Court of Appeal said his former colleague tried as an appellate judge to interpret very technical tax laws as he would any other statute. "He tried to put a social bent on tax law. The Supreme Court didn't really agree with many of his rulings in the tax area."

Mr. Linden's first marriage ended after roughly a quarter-century, and in 1984, he married Marjorie Anthony, a broadcast executive who had once been part of the agency managing the Smothers Brothers comedy team. She died in 2013.

In 2015, he married Joanna Maxwell. For many years, he spent winters as a visiting scholar, teaching tort law at Pepperdine Law School, a Christian university in Malibu, Calif. It wasn't until last winter, when he became ill, that he gave it up.

"It was like having someone drop a golden egg on your property," said Pepperdine Prof. Rick Cupp, who specializes in torts. "He's one of the most distinguished torts scholars in the world. The William Prosser of Canada. Incredibly well-beloved."

In a 2005 essay, Viva Torts!, Mr. Linden said he preferred torts to Champagne. Mentioning public-health disasters such as tainted blood, asbestos, tobacco, Chernobyl and Bhopal, he said: "We torts people are blessed with a front-row-centre seat on the drama of life."

In a coda to the thalidomide story, he met Stephen Raynes, son of Arthur, as the Philadelphia lawyer led the Canadian Thalidomide Survivors Task Force, seeking additional help for nearly 100 adults whose money had run out. On Dec. 1, 2014, Canadian MPs voted unanimously to give the survivors full support.

Mr. Linden leaves his brother, Sidney; sister, Sandy; daughters, Wendy, Lisa and Robyn; wife, Joanna Maxwell Linden; and his grandchildren.

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