One of the founders of Atlantic Canada’s largest law firm, Neil McKelvey was at the helm of the Canadian Bar Association before breaking new ground by becoming the first Canadian to be president of the International Bar Association in 1978.
Recognized as a top litigator in New Brunswick, he was equally well known for his unwavering belief in the importance of solid, legal ethics. During his time as president of the Canadian Bar Association, between 1973 and 1974, a new code of professional conduct was brought in. Considering it his mission, he travelled the country advocating the new code.
“He firmly believed in the rule of law and that if we lost that then we lost our freedom,” said Ken McCullogh, a partner at Stewart McKelvey law firm.
Born in Saint John in 1925, he joined the Royal Canadian Artillery in 1944 and a few months later sailed to Scotland. He was in northern Holland when news broke that the war was over. He was later transferred to the Canadian occupation force in Germany and returned home in May, 1946. A proud veteran, he remained involved with the military throughout his life and in 1992 was appointed honorary lieutenant-colonel of 3rd Field Artillery Regiment of the Royal Canadian Artillery. He held that position until 2009.
Three years after returning home from the war, he was admitted to the New Brunswick bar. In 1955, he founded Saint John law firm McKelvey Macaulay Machum. The firm merged with Stewart MacKeen & Covert and others in 1990. Known now as Stewart McKelvey, it is Atlantic Canada’s largest regional law firm with more than 220 lawyers.
McKelvey faced a tough decision in the early 1960s when there was a vacancy in the Queen’s Bench Division and his name was suggested. “I had to choose whether I wanted to be a judge or to remain a lawyer; I concluded that the secluded life of the bench, listening to lawyers argue cases and then having to prepare a decision, was not for me,” he wrote in his memoirs I Chose Law.
“He was an artist at debating,” said his son Peter, who remembers frequent debates with his father and brother, Roger. “We would do it for the fun of it. It was mental sparring.”
When McKelvey went to trial it was a 24-hour-a-day marathon that he relished, especially when arguing before the country’s top court. More than 21 cases took him to the Supreme Court of Canada. The last case was in 1990 in a pro-bono medical malpractice case that involved a surgeon removing a cataract from a patient’s eye. The patient, whom McKelvey represented, later lost sight in that eye as a result of optic nerve atrophy. Expert witnesses were unable to state with certainty whether the operation caused the atrophy. The case is now studied in law schools because it involved determining whether the burden of proof of causation in a malpractice case is on the plaintiff.
Practising in Saint John meant that McKelvey delved into marine law on several occasions. His first major foray involved the tragic 1957 collision between the Saint John Harbour Boat and the freighter Fort Avalon. A formal investigation under the Canadian Shipping Act was held following the accident. When the Liberian tanker Arrow ran aground on Cerberus Rock in Chedabucto Bay, N.S., in 1970 and broke in half, spilling its cargo of 108,000 barrels of Bunker C fuel, McKelvey was hired to represent the Canadian Coast Guard and its response to the environmental disaster before a Royal Commission. In 1971, amendments to the Canada Shipping Act followed, giving the minister of transport broad powers to combat the effects of marine oil spills and making ship owners responsible for cleaning up spills.
For years McKelvey was also counsel for the owners of the Irving Whale, an oil carrying barge that sank on Sept. 7, 1970, in the Gulf of St. Lawrence. Loaded with 4,200 tons of Bunker C heavy fuel oil and approximately 6,800 litres of cargo heating fluid, oil leaked from the barge for two days following the sinking. Environmentalists dubbed it a ticking time bomb and 26 years after its sinking it was salvaged from the water.
When McKelvey became head of the International Bar Association in 1978 he had to turn his attention temporarily away from his busy legal practise to devote his energies to what is considered the world’s leading organization of international legal practitioners, bar associations and law societies. When he arrived on the job, the association was so low on funds he feared it might have to declare bankruptcy. But by the time he left in 1980, it was in good financial standing.
The position took him around the world. At a conference in Berlin in 1980, he asked the international lawyers, including some from countries where the profession was not independent, how they could maintain their independence when subjected to influences and interferences. He concluded that lawyers must have the “… courage to disregard influences of third parties whose interests may differ from the client, even though those third parties may be in a position to bring strong pressure to bear, financial or otherwise, on the lawyer.”
While McKelvey felt that the practice of law had changed for the better in his lifetime, he recognized that the status of lawyers had suffered. “We [lawyers]were looked up to and respected 50 years ago. We are still respected to some extent, but frequently subject to severe criticisms and questioning of our ethos,” he wrote in his memoirs.
But he remained an optimist and continued to hold on to the adage of one of his law professors: “Lawyers are the lubricants of society. Just as lubricants keep a machine functioning, lawyers minimize the frictions in society to keep it functioning.”
In 1986, he was made an officer of the Order of Canada for his contributions to the legal profession.
“He always took people at face value. You never had to win his respect. You had to work very hard to lose that respect,” McCullogh said.
McKelvey, who had been diagnosed with lymphoma, died on Sept. 10 in Saint John. He leaves his wife, Joan, sons Peter and Roger and four grandsons.
Special to The Globe and Mail
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