Keeping Tabs - Spring 2022

KEEPING TABS
The Advocates’ Society
SPRING 2022

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CONTENTS
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06
09
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16
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Chair Chat
Erin Pleet, Ross Nasseri LLP
The Legal Professional’s Role in Addressing
Systemic Discrimination of Indigenous Peoples
Zachary Thiffault, Métis Nation of Ontario
Emerging Judicial Guidance–
Tips from Recent Decisions
Vincent DeMarco, Weintraub Erskine Huang LLP
Way of the Future?: The Production and
Preservation of Social Media Evidence
Eleni Loutas, Henein Hutchison LLP
The Charter of Rights and Freedoms – 40 Years On
Patrick MacDonald, City of Hamilton
Interview with Natalia Vandervoort, TD Canada Trust
Compiled by Carlo di Carlo, Stockwoods LLP
Editor: Alexandra Shelley, Torys LLP | ashelley@torys.com
Deputy Editor: Khrystina McMillan, Mathers McHenry & Co
Keeping Tabs Editorial Team: Carlo Di Carlo, Stockwoods LLP, Patrick J. MacDonald, Sean Petrou, McCarthy Tétrault LLP,
Timothy J.L. Phelan, Cambridge LLP, Sebastian L. Pyzik, Woods S.e.n.c.r.l.
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a
voice for young advocates (advocates who are ten years of call or fewer) within the Society and within the profession. We do this
through networking/mentoring events, by publishing articles by and for young advocates, and by raising issues of concern to
young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual authors are their own
and do not necessarily reflect the policies of The Advocates’ Society.
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CHAIR CHAT
Chair Chat
Erin Pleet, Ross Nasseri LLP
This month marks the 40 th anniversary of the Charter of Rights and Freedoms.
It seems safe to say the introduction of the Charter has been one of the biggest
developments in Canadian law. Imagine what first year constitutional
law classes looked like before it – was it all cases about who gets to regulate
apples, alcohol, and margarine? While federalism is no doubt important (see,
for example, who oversees what aspect of health care during the pandemic),
I am excited to see and read reflections on 40 years of the Charter, and to
dream big on constitutional rights and litigation in the future.
In that vein, take a few minutes to enjoy a celebratory Charter anniversary
quiz compiled by Patrick MacDonald. I consider myself a law and trivia
nerd, but some of these had me stumped.
Also in this issue of Keeping Tabs, Vincent DeMarco of Weintraub Erskine
Huang LLP has written an article on judicial guidance on some of the practical
aspects of modern court proceedings, including best practices for Case-
Lines and when and how to email judicial assistants.
We have an interview with Natalia Vandervoort, who moved from private
practice into an in-house role at TD Bank. Natalia shares insights into her
career path, what it is like working as in-house counsel, as well as tips for
working with in-house lawyers as clients.
Eleni Loutas of Henein Hutchison LLP has written a timely and useful article
about producing and preserving social media evidence. For curiosity’s sake, I ran
a search for “TikTok” (or “Tik Tok”) in CanLII and there are already over 50 hits!
In February 2022, the Young Advocates’ Standing Committee hosted The Legal
Professional’s Role in Addressing Systemic Discrimination of Indigenous Peoples.
Zachary Thiffault, Barrister & Solicitor, has written a summary of the informative
and well-attended event. Zachary has included a number of links
and other resources we can review to further our efforts in reconciliation.
If you’d like to contribute to an upcoming edition of Keeping Tabs, please
email Alex Shelley. To get more involved in YASC, please email our Volunteer
Roster coordinator Lisa Delaney.
Be sure to check your inboxes or follow The Advocates’ Society on Twitter,
LinkedIn and Facebook for the latest on our events and initiatives. We
hope you’ll join us!
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Now Live! Friends Who Argue - A new TAS podcast jointly
hosted by our Young Advocate and 10+ Standing Committees.
Segments will feature dialogue with the people who get what you
do, as we delve into both the serious and lighthearted aspects of
life as an advocate in Canada. Know a TAS member we should
talk to? Contact Webnesh Haile at WHaile@singleton.com

EVENT REPORT
The Legal Professional’s
Role in Addressing
Systemic Discrimination
of Indigenous Peoples
Zachary Thiffault, Métis Nation of Ontario
On February 9 th , 2022, the Young Advocates’ Standing Committee hosted
The Legal Professional’s Role in Addressing Systemic Discrimination of Indigenous
Peoples. This panel was organized in answer to the call from the Family
of Colten Boushie to mark February 9 th as a day of action to commemorate
the anniversary of the acquittal of the man responsible for Colten’s death
by making space to address the inequitable treatment of Indigenous peoples
within, and by, the Canadian legal system. Watch nîpawistamâsowin: We
Will Stand Up for more information on Colten’s story, and the ongoing need
to respond to this call to action.
This event brought together a panel of Indigenous lawyers: Margaret
Froh (President of the Métis Nation of Ontario), Alexandra Winterburn
(Senior Associate at Pape, Salter Teillet), Dr. Danielle Lussier (Assistant
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Professor and Academic Director of the ALOY
Program at the Royal Military College), and
me as moderator. The panelists shared their
insights on what legal professionals can do
to address ongoing systemic discrimination
faced by Indigenous people within, and by,
the legal system:
1. Continue to educate yourselves on the
issues. A resource list for continuing
your education on this topic was created
and sent out to attendees. A copy
can be found here.
2. Take advantage of the unique opportunities
you have as lawyers to remedy
the systemic racism faced by Indigenous
people. For example, encourage
the law school you attended to implement
mandatory courses in Indigenous
peoples and the law in accordance with
the Truth and Reconciliation Commission’s
Call to Action 28.
3. Read the various reports on these matters
and assess how your own practice
or local bar association can work to address
the recommended courses of action
laid out therein.
It is important that we, as legal professionals,
consider the oath we’ve taken and use our critical
thinking to assess where our own actions,
our practices, or the profession more broadly
are contributing to the systemic discrimination
Indigenous peoples face. But to ensure meaningful
change, it is vital that the voices of your
Indigenous colleagues and clients are part of
this conversation. As the late Cree lawyer and
writer, Harold Johnson, said in his book, Peace
and Good Order: “You are never going to find
solutions if you continue to have conversations
about us without us.”
For decades, Indigenous communities and independent
reports and inquiries have called for
changes within the Canadian legal system based
on the manner it engages with Indigenous peoples
and communities. The takeaway from this
panel is that the tools and resources are there,
and now is the time for action. Thank you to
all who attended, those who have committed
to doing the work, and those who we hope will
move beyond asking what they can do and start
taking steps to remedy the ongoing systemic
discrimination Indigenous peoples face within
the Canadian legal system.
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JUDICIAL GUIDANCE
Emerging Judicial
Guidance – Tips from
Recent Decisions
Vincent DeMarco, Weintraub Erskine Huang LLP
Courts sometimes provide practice tips and guidance to counsel in their
reasons for decisions, especially in the wake of systems such as CaseLines.
It can be easy to overlook the part of a decision that provides direction to
the profession or that touches on an issue that has implications beyond
the particular case at hand. Below are some such tips from the bench coming
out of recent Ontario cases, with guidance for lawyers practising not
only in Ontario but in other provinces and territories as well.
Tip #1: Don’t litigate through judicial assistants
We are always trying to advocate on behalf of our clients, sometimes in
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emails copying judicial assistants. In Navartnarajah
v. FSB Group Ltd., in the context of a class
action, Justice Morgan cautioned counsel to limit
their email communication with his judicial assistant
to scheduling matters, and directed against
engaging in “full-blown advocacy by email”. 1
Tip #2: Use presentation mode in CaseLines
By now, many of us are familiar with CaseLines.
Typically, counsel will provide a page number reference
or use ‘direct to page.’ In Bowman v. Uwaifo,
an appeal to the Divisional Court from the Consent
and Capacity Board, Justice Myers extolled Case-
Lines’ presentation mode: “the use of Presentation
mode freed me from having to manage CaseLines
to find documents referred to by counsel. It allowed
me to concentrate solely on the merits of counsel’s
arguments and to see the documents quickly and
with no effort or distractions.” 2
According to Justice Myers, such efforts would
“increase the chances of comprehension by the
judge and therefore the persuasiveness of the
presentation” and would also be “likely to garner
some appreciation for the effort to simplify
cumbersome and distracting technical tasks”. 3
(Of course, be sure to take instruction from the
particular decision-maker before whom you are
appearing: some judges or associate judges may
prefer to retain control of their CaseLines.)
Tip #3: Injunctions require a heightened degree
of civility
Cooperation and civility with opposing counsel is
always important but can be more so in the context
of injunctions. In 1162268 Ontario Limited v. Uddin,
4 Justice Dunphy noted that a high degree of civility
and cooperation between counsel is required
if a fair hearing is to be held in the limited time
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available, failing to take such an approach contributed
to a finding of substantial indemnity costs.
Tip #4: Failure to hyperlink, tab and upload
in CaseLines could sink your motion
Counsel need to ensure that evidence in Case-
Lines is easily navigable: hyperlinks, bookmarks,
and separately-uploaded tabs are all useful
tools to this end.
A failure to hyperlink references in facta
and motion records and upload materials to
CaseLines has been likened by Justice Dunphy
to a request to “sort through an overturned
bowl of spaghetti.” This alone was
more than sufficient to dismiss a motion
(Basaraba v. Bridal Image Inc.). 5
In Monster Snacks Inc. v. David, Associate Justice
Ilchenko required counsel to file fresh as
amended hyperlinked facta and compendia
due to a lack of bookmarks. 6
Another decision, Parekh et al v. Schecter et al,
held that a failure to bookmark delays the administration
of justice. 7
Tip #5: Think twice before scheduling a summary
judgment motion or trying to strike affidavit
evidence
The Courts have long been critical of counsel’s
overuse of the summary judgment path.
Also in Basaraba (referenced above), Justice
Dunphy notified the profession that 2022 would
see a very significant re-allocation of judicial resources
in Toronto away from motions and towards
trial. In spring of 2022, motion dates are
being booked into December.
Counsel in the Toronto region should be mindful
of the delay they will face in scheduling motions
and only schedule motions for summary judgment
in rare circumstances in the face of this direction.
In a recent Alberta Court of Queen’s Bench decision,
Justice Feasby noted that applications to
strike affidavit evidence are typically not a good
use of the Court’s time. Counsel should reserve
applications to strike such evidence to situations
where it is material and where its admission
would be genuinely prejudicial. 8
Tip #6: The Court retains discretion to require
in-person attendance
Both the Nunavut and B.C. provincial courts
have reiterated that judges should not be
rubber-stamping applications that seek orders
to allow accused, witnesses, and other
participants to appear in court proceedings by
videoconferencing. Counsel making such a request
outside of a provincial practice direction
should be prepared to provide an evidentiary
foundation as the court retains discretion to
require personal attendance. 9
Need some help implementing this practice advice
from the judiciary? TAS has you covered:
- Principles of Civility and Professionalism for
Advocates
- Introduction to Thomson Reuters – CaseLines
- Best Practices for Remote Hearings, Second
Edition
Notes
1. Navartnarajah v. FSB Group Ltd. 2022 ONSC 1757
at paras. 19-20
2. Bowman v. Uwaifo 2022 ONSC 678 at paras. 47-58.
3. Bowman v. Uwaifo 2022 ONSC 678 at paras. 47-58.
4. 1162268 Ontario Limited v. Uddin 2022 ONSC 822 at
paras. 7-8.
5. Basaraba v. Bridal Image Inc., 2021 ONSC 8038,
[Basaraba] at paras. 6-8.
6. Monster Snacks Inc. v. David 2022 ONSC 1647 at para.
19.
7. Parekh et al v. Schecter et al, 2022 ONSC 302 at paras
3-9 (Justice Sharma).
8. Lupuliak v. Condominium Plan No 8211689 2022 ABQB
65 at para. 35.
11

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RULES OF EVIDENCE
Way of the Future?:
The Production and
Preservation of
Social Media Evidence
Eleni Loutas, Henein Hutchison LLP
In the movie “The Social Network,” Rooney Mara’s character angrily confronts
Mark Zuckerberg (played by a smarmily perfect Jesse Eisenberg) after
he publishes an insulting online blog post about her. In a pivotal scene, she
yells “the Internet’s not written in pencil, Mark. It’s written in ink!” Although
this scene is gratifying for a myriad of unrelated reasons, this assertion is,
nowadays, subject to qualification. Facebook pages are often private and
Snapchat and Instagram videos will often disappear after a period of time,
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which can make the “ink” of an individual’s social
media presence much more difficult to see.
The preservation, production and privacy interests
associated with social media evidence
are issues that courts continue to grapple with.
This article addresses two cases which deal
with production of a plaintiff’s “private” social
media content in the personal injury context.
As these cases show, the pervasiveness of social
media does not necessarily entitle a litigant
to unfettered access to an individual’s social
media posts, even where relevant to the legal
issues in an action.
In Merpaw v Hyde, 2015 ONSC 1053, the plaintiff
claimed that she was incapacitated from any
employment, including sedentary, and suffered
from reduced enjoyment of life, depression
and chronic fatigue as a result of a back injury
she suffered after a trip and fall. On a discovery
motion, the defendant sought, amongst other
items, access to the plaintiff’s private Facebook
page. Facebook was the only social media platform
the plaintiff used, and there were ten photographs
on her public page. She was in six of
the ten photographs and, in each, was standing
with her cane or sitting.
In her decision, Justice LeRoy first noted that
the Court can refuse disclosure when the information
is of little importance to the litigation
and disclosure may constitute a serious
invasion of privacy. As there were pictures and
communications on the plaintiff’s public page
that were relevant to the action, it was reasonable
to infer there was relevant information
contained in the private forum; this raised the
enquiry to more than mere fishing, meeting the
defendant’s burden to establish the relevancy
of the documents sought beyond mere specu-
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lation. However, there was no reason to expect
the private page to contain information that
was inconsistent with her public page and other
evidence in the action. As such, the plaintiff
was not required to produce the content of the
private section of her Facebook.
More recently, in Smith v Jarnell, 2020 ONSC
6433, the plaintiff sustained injuries after a motor
vehicle accident, claiming loss of earning potential
and an inability to participate in household,
recreational, social and athletic activities
to the extent he had participated before the
accident.The defendant sought production of
all posts and photos from the plaintiff’s social
media accounts that showed him participating
in activities or going on trips since the accident.
Relying on Regional Senior Justice Heeney’s decision
in Stewart v. Kempster, 2012 ONSC 7236, the
Court reiterated that “[t]he onus is on the moving
party to establish that the plaintiff’s social
media accounts have relevant information. The
simple existence of a social media account like
Facebook does not meet the test of relevance.”
During the hearing, counsel attempted to
demonstrate that the plaintiff’s social media
account had relevant information in two ways:
first, through a review of the plaintiff’s questions
about his social media on his examination
for discovery and, second, through the
real-time sharing of the plaintiff’s public Facebook
account. With respect to the first method,
although the plaintiff had preserved his Facebook,
Instagram and Snapchat accounts as requested,
he indicated he did not post very often.
He was not asked on discovery whether any
of the postings would be of activity relevant to
limitations he alleges he has experienced since
the accident or any of his complaints in this action.
The discovery evidence was therefore insufficient
to establish the plaintiff’s social media
pages bore any relevance.
Master Jolley held that the second method
of screen-sharing the plaintiff’s public Facebook
page was not evidence; the contents of
the account were not in the motion record or
attached to any affidavit. As it was not in evidence,
the content of the plaintiff’s public social
media account could not be relied upon to establish
the relevance of his private account. As
such, Master Jolley concluded that there was no
evidentiary basis to conclude that any relevant
documents existed on the plaintiff’s social media
platforms to justify an order for production
and this portion of the motion was dismissed.
As social media becomes more pervasive
in our daily lives, it will inevitably continue to
raise interesting evidentiary questions that
may warrant a re-watch of The Social Network.
Consider it CPD!
Interested in learning more about social media
evidence and digital evidence generally?
Check out our Digital Evidence for Litigators program
from March 2022, available for purchase
as an archived webcast.
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The Charter of Rights and
Freedoms – 40 Years On
Patrick MacDonald, City of Hamilton
On April 17, 1982, Queen Elizabeth II signed the Constitution Act, 1982 into law in
a rainy outdoor ceremony on Parliament Hill, which means that April 17, 2022
marked the 40 th anniversary of the Charter of Rights and Freedoms.
In honour of 40 years of the Charter, we present this little quiz to see
what you know about this important part of Canadian history!
1. Law Society of Upper Canada v. Skapinker was notable for what?
a. Striking down the Canadian Bill of Rights
b. It is the only time Section 14 of the Charter (interpreter rights) has been adjudicated
c. The Supreme Court finding that the Charter did not apply due to the facts of the case
occurring prior to 1982
d. It was the first Charter decision to reach the Supreme Court
2. Despite playing a key role in constitutional negotiations, which provincial premier was
defeated in a general election just nine days after the signing ceremony with the Queen?
a. Allan Blakeney (Saskatchewan)
b. Bill Davis (Ontario)
c. Brian Peckford (Newfoundland)
d. Robert Stanfield (Nova Scotia)
3. Quebec premier René Lévesque was notable for doing what at the signing ceremony
on April 17, 1982?
a. He wore a Quebec flag pin
b. He turned his back to the Queen
c. He boycotted it and did not attend
d. He signed with an X
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ANSWERS: 1. d. Decided by the SCC in 1984, 2. a. After 11 years in power, Blakeney’s NDP suffered a huge defeat to the provincial
Section 16.1 was added, 7. b. David Oakes was arrested for possession of 8 grams of hash oil and $619.45. That amount of cannabis

4. As a further protest, Quebec inserted the Notwithstanding Clause into all provincial
legislation from 1982 to 1985. Why did it stop?
a. Because of the delayed coming into force of section 15
b. The Supreme Court ruled that the practice was unconstitutional
c. Quebec made an agreement with Prime Minister Mulroney to re-enter constitutional
negotiations
d. There was a change in government
5. Despite being signed into law in 1982, Section 15 of the Charter did not come into
force until 1985. Why?
a. To allow governments time to review existing statutes for constitutional issues
b. The final language of Section 15 was not yet agreed to
c. To allow for a reference case on that section to the Supreme Court
d. To guarantee at least one more federal general election before coming into force
6. The most recent amendment to the Charter was made in 1993. What was added or
changed?
a. Freedom of the press was expanded to include electronic communications
b. Equal language rights for New Brunswick
c. Mandating fixed election dates for provinces
d. Gender equality rights
7. Due to the recent legislative changes, the fact scenario of which famous Charter
case would likely not attract criminal charges if it happened today?
a. R. v. Stinchcombe
b. R. v. Oakes
c. United States v. Burns
d. R. v. Jordan
8. The Notwithstanding Clause has been brought into force just five times in Canadian
history. Three of those were in Quebec. The most recent was in Ontario in 2021. In
1986, what was the only other province to bring into force legislation invoking the
Notwithstanding Clause, to end a public sector employees’ strike?
a. Alberta
b. New Brunswick
c. Manitoba
d. Saskatchewan
Progressive Conservatives, 3. c, 4. d. The PQ lost the 1985 election and the new Liberal government ceased the practice., 5. a, 6. b.
oil is now legal for individuals to possess., 8. d. Saskatchewan and Premier Grant Devine passed the SGEU Dispute Settlement Act, 1986
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INTERVIEW
Interview with
Natalia Vandervoort,
TD Canada Trust
Compiled by Carlo di Carlo, Stockwoods LLP
Q. Why did you become a litigator or advocate?
A. As I went through the early stages of my legal career, I enjoyed helping people solve their disputes
and found litigation intellectually stimulating and exciting. Each new case was different and
presented its own novel challenges. I knew litigation was for me when I won a small claims trial as
an articling student and experienced my first court adrenaline rush. There was no turning back.
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Q. What is your year of call?
A. 2013.

Q. What is your greatest
extravagance in your
everyday life?
A. A monthly wine
subscription from Charlie’s
Burgers Wine Program. Wine
delivered to my door during
lockdown was a necessity.
And, of course, $6 lattes.
Q. What is your favourite part about the practice?
A. My favourite part is developing a strategy for
a case. It is high level, complex and involves a
consideration of many non-legal factors. In-house
lawyers need to digest advice provided by external
counsel and deliver a practical recommendation
to the business. There is so much thinking and
creativity that happens behind the scenes to land
on a decision.
Q. What made you want to make the leap to in-house practice?
A. It was a quick decision for me and was not part of any long-term plan I had. A great opportunity
presented itself to practise securities litigation at TD and I jumped on it a couple of months before
I was due to return to the firm after maternity leave. I thought of it as a chance to enhance my skill
set and see what it’s like to work for a large institution. So far, it’s been a very rewarding experience
that I highly recommend to all litigators (through a secondment, for example). And no, I did not leave
private practice because I wanted a slower pace that would allow me to focus on my family (not that
there is anything wrong with that).
Q. What are the differences between your career now as opposed to when you were at a firm?
A. There are many differences. I could write an essay. The top three that come to mind are: volume,
breadth of experience and the non-linear career path. The number of matters that I am engaged
on is significantly more than in private practice, and on each matter, I do not operate in a silo. I am
always thinking about the broader implications. I also have an opportunity to analyze more diverse
legal issues than at a firm and see the issues presented from all different angles. I often have to be
the first to identify a litigation risk and take steps to address that risk. The last thing I will note is that
a career trajectory in-house is not as linear as at a firm. There is no magic formula to get to General
Counsel and there are many exciting non-legal opportunities available that simply would not be
available to a lawyer at a firm.
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Q. What are the things about in-house practice that surprised you or that you wished you
understood when you worked at a firm?
A. I think what surprised me the most is the significant and important function the in-house
legal department has. The role is so much more than managing litigation files, which I did not
appreciate when I was at a firm. We are effectively managers of risk.
Q. What advice do you have for younger lawyers looking to make a career change?
A. As they say, change is good and we benefit from shaking things up once in a while. There
is a world outside your current bubble and it’s a big world. There is no guarantee that the
grass will be greener, but you don’t need that guarantee. As long as the career change
could lead to professional growth and it is something that excites you, go for it and don’t
look back. But, please don’t make the decision in a vacuum. Talk to your friends, family and
mentors about your decision to get more perspective.
Q. What advice do you have for lawyers working with in-house lawyers?
A. Be responsive and do what you say, and if you can’t, that’s usually ok, but tell us. No one likes
following up. Learn the business as much as you can and take initiative in doing so. The more you
understand the business, the more of a valuable partner you will become to your in-house lawyer
in resolving disputes. Take initiative to set up touchpoints to discuss the strategy for the matter, if
appropriate, at least once a quarter.
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The Legal Professional’s Role in Addressing
Systemic Discrimination of Indigenous Peoples
February 9, 2022 | Live Online
Fireside Chat on Advocacy
March 1, 2022 | Live Online
21

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