Chief Justice Sir Lyman Duff was Fergus native

The following is a re-print of a past column by former Advertiser columnist Stephen Thorning, who passed away on Feb. 23, 2015.

Some text has been updated to reflect changes since the original publication and any images used may not be the same as those that accompanied the original publication.

Today the name of Lyman Duff is known to very few residents of Wellington County, and virtually everyone who can identify him is either associated with the legal profession or is drawing a pension.

Two generations ago he was a household name, not only locally, but across Canada. He served for 37 years on the Supreme Court of Canada, authored a couple of controversial reports, served two brief stretches as acting Governor General, and was among the last Canadians to be knighted.

Though he spent most of his youth and the early part of his professional career in Wellington, Duff was not born here. His father, Rev. Charles Duff, was a Congregational minister based in Meaford when young Lyman was born in 1865. 

Ten years later, the elder Duff accepted the duties at Speedside Church, and in 1878 he added to his responsibilities when he took over the small Congregational Church in Fergus.

Lyman Duff attended the one-room Speedside school for several years, graduating to the Fergus High School. He was a student there when its new building was constructed in 1878, on the property now occupied by James McQueen School. One of his high school instructors was A.W. Wright, later well known as a local historian and editor of the Mount Forest Confederate. Several of his schoolmates became lifelong friends, among them J.C. Templin, the Fergus newspaper proprietor.

After high school, Lyman enrolled at the University of Toronto, graduating with an honours degree in mathematics in 1887. That was a strange major for a young man who was interested in law, but the logic of mathematics appealed to him as strongly as legal arguments.

Money, though, was the most pressing issue for the 22-year-old. To replenish his coffers, he took a position for one year teaching at the Barrie High School. Then he was off to Osgoode Hall, where he received a law degree in 1889. While in Barrie a young lady, Elizabeth Bird, caught his eye. The couple married in 1898.

Duff had a remarkable ability to memorize facts, numbers and dates. That may account for some of the appeal of mathematics to him. His memory also helped in the study of law: his mind eventually became a walking reference library; he could cite precedents, quote arguments, recall trials, and recite dates with a facility that amazed colleagues throughout his long career.

With his new diploma in his pocket, Lyman Duff returned to Fergus, where he joined local lawyer Neil Munro in his office. Munro was the best lawyer in the area at that time, and invariably took part in the major cases that passed through the courts in the late 19th century.

Training for the legal profession at that time required a lengthy apprenticeship as well as a law degree. Duff worked in Munro’s office for four years before sitting to write his bar examinations. Passing with flying colours, he was called to the bar in 1893, and remained with Munro as a partner for another year.

A small-town law practice did not appeal greatly to Lyman Duff, and he soon sought a larger field. In 1894, at the age of 29, he headed west, joining the firm of Bodwell and Irving in Victoria. He was called to the British Columbia bar in 1895, and soon became a indispensable member of his firm. Within six years he was appointed a Q.C.

His abilities at analysis and clear argument earned him a junior place on Canada’s delegation to the Alaska Boundary Commission in 1903. His work drew the notice of senior government officials in Ottawa.

A year later, at the age of 39, Duff was appointed to the Supreme Court of British Columbia. Two years later, the Laurier government named him to the Supreme Court of Canada. He would remain on the federal bench for 38 years. By then many who encountered him thought Lyman Duff an eccentric. He rarely displayed any emotion, and when he did it involved some intricate legal argument. Lost in thought, he would pass close acquaintances on the sidewalk without recognition.

As he grew older, his habit of talking to himself grew more and more pronounced. That habit was the basis of stories and anecdotes around Ottawa for decades.

Sometimes strangers were alarmed; they thought they had encountered a madman. On one occasion, preparing for a major case before the court, Duff was seen at the Rideau Club, pacing up and down, gesturing wildly, and arguing both sides of the case to no one in particular.

The Canadian Supreme Court, in the era of Duff’s appointment, had not yet achieved the status it enjoys today. Though the British North America Act of 1867, which created the Canadian confederation, provided for a federal appeals court, it was not established until late in 1875. For years there were few cases. Indeed, many people thought it was unnecessary. Really important cases could be appealed to the Privy Council in London, where the legal minds were far superior to any that Canada could produce.

Lyman Duff did as much as anyone to establish the stature of the Canadian Supreme Court. His decisions were clearly and precisely written, and displayed a comprehensive understanding of the law and legal precedents. In demeanor, Duff seemed to fit the stereotype of the authoritative judge: he had a dignified bearing, was aloof and humorless (at least in public), and his opinions were so well supported with references that it was impossible to poke holes in them.

On several occasions Duff accepted additional tasks. During the First World War, he headed the appeals board for those who objected to being conscripted under the Military Service Act.

In 1931 he accepted a more onerous task: heading a royal commission into transportation problems, and particularly those of the railways, which were hemorrhaging cash in the Depression climate. There were proposals for large scale abandonments, the sale of Canadian National to Canadian Pacific, and other extreme solutions.

The members of the Duff Commission represented a wide range of interests and viewpoints. Resolving those took much diplomacy on Duff’s part. The conclusions, which became known as the Duff Report, disappointed many people. It did not recommend any radical actions. Instead, it advised against abandonments as a solution, and it urged CN and CP to co-operate on routes where there was ruinous competition. The railways consequently established pool services on a number of routes, and those lasted beyond the Depression into the 1960s.

The Duff Commission elevated Lyman Duff’s stature and profile immensely. In 1933 R.B. Bennett’s government promoted him to chief justice, and a year later, recommended him for a knighthood, one of the last Canadians to be so honoured.

Perhaps the most important decision by Duff’s court came in 1937. Alberta’s Social Credit government, led by “Bible” Bill Aberhart, passed bills that imposed high taxes and tight regulations on banks, and one that restricted the freedom and independence of newspapers. Those measures intruded on what most people regarded as purely federal authority, and they were appealed to the Supreme Court.

Duff, in writing the majority opinion, disallowed all of them, thereby clearly affirming the authority of the federal government, and rejected the claim of Aberhart that he could selectively overrule federal measures.

The last special assignment for Duff was a commission in 1942, investigated the disaster that befell the Canadian army in Hong Kong. It was not Duff’s best work. Most military historians consider the report a whitewash, absolving both senior army officers and the government of any responsibility.

By then Sir Lyman was 77, past the normal retirement age for a Supreme Court judge. He hung on for two more years, retiring in 1944. His health deteriorated in the 1950s, and he died in Ottawa in April 1955 following a two-month hospitalization. Four months earlier he had celebrated his 90th birthday.

Duff spent the better part of his youth and began his early career in Wellington County, and he maintained contact with old school chums all his life. He always enjoyed a visit with any of them when they visited the capital, talking over current events and recalling days of long ago.

Legal historians regard Sir Lyman Duff as something of a transitional figure, endowing the Supreme Court with dignity and authority during the period when it grew immensely in importance. When he was appointed in 1906, most people regarded the British Privy Council as the rightful last court of appeal. That route ended for criminal cases in 1933, and for civil cases in 1949. Duff’s erudition and vast knowledge helped the transition occur smoothly and with little controversy.

A little known fact is that Sir Lyman served twice as acting governor general: for five weeks in 1935, and from Feb. 11 to June 21, 1940, following the sudden death of Lord Tweedsmuir.

Wellington County can take pride in the fact that Sir Lyman Duff’s introduction to scholarship was at the schools of Speedside and Fergus. Later, he honed his legal mind in a Fergus law office, acquiring skills and attitudes that eventually impacted the country as a whole.

*This column was originally published in the Advertiser on Feb. 25, 2005.

Thorning Revisited