Stay up-to-date on news and events from our Young Advocates' Standing Committee (YASC) with Keeping Tabs.

Stay up-to-date on news and events from our Young Advocates' Standing Committee (YASC) with Keeping Tabs.


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The Advocates’ Society<br />

SPRING <strong>2023</strong> <strong>2023</strong>



The Advocates’ Society (TAS) has always embraced mentorship as one<br />

of its core objectives, and strives to promote and foster mentorship<br />

through its educational programs and other initiatives to create a variety<br />

of mentorship opportunities for its members.<br />


In conjunction with the launch of our new mentoring portal, we are proud<br />

to present our revised TAS Mentoring Guide. We hope this guide will be<br />

a valuable resource as you navigate your next mentoring relationship,<br />

whether in micro-mentoring sessions on the new TAS portal or other<br />

mentoring relationships at TAS and beyond.<br />

05<br />

08<br />

11<br />

14<br />

Chair Chat<br />

Claudia Cappuccitti, Dyer Brown LLP<br />

Ten Tips For Drafting High Data e-Discovery Plans<br />

Michael Lalande, Barrister & Solicitor & Tatiana Lazdins, Hicks Morley<br />

Summary Trials: Maybe a Goldilocks Solution<br />

to Access to Justice Issues<br />

Daniel Hermann, Osuji & Smith Lawyers<br />

Interview with John Trueman, Associate,<br />

Allen/McMillan Litigation Counsel<br />

Compiled by Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP<br />

Scan the QR code<br />

to download the<br />

Mentoring Guide!<br />

Editor: Khrystina McMillan, Ontario Securities Commission | kmcmillan@osc.gov.on.ca<br />

Deputy Editor: Sania Chaudhry, Forte Workplace Law | sania@fortelaw.ca<br />

<strong>Keeping</strong> <strong>Tabs</strong> Editorial Team: Eric Blay, Pallett Valo LLP, Nina Butz, Bennett Jones LLP, Michael Ding, WeirFoulds LLP, Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP, Patrick<br />

MacDonald, Barrister & Solicito, and Sean Petrou, McCarthy Tétrault LLP<br />

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<br />

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<br />

2<br />

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<br />

authors are their own and do not necessarily reflect the policies of The Advocates’ Society.<br />



(Click on the program to learn more)<br />

May 3<br />

Calgary Trivia Challenge<br />

(Calgary, AB)<br />

May 08<br />

Fireside Chat with The<br />

Hon. Nicholas McHaffie<br />

(Toronto, ON | Live Online)<br />

May 10<br />

Toronto Mentoring Dinner<br />

(Toronto, ON)<br />


Chair Chat<br />

Claudia Cappuccitti, Dyer Brown LLP<br />

May 11<br />

Edmonton Bench<br />

& Bar Reception<br />

(Edmonton, AB)<br />

May 24<br />

Cocktails & Catch-Ups<br />

(Toronto, ON)<br />

May 17<br />

In-House Counsel Social<br />

(Toronto, ON)<br />

May 31<br />

Wine & Cheese<br />

with the Bench<br />

(Toronto, ON)<br />

May 23<br />

<strong>Spring</strong> Patio Social<br />

(Toronto, ON)<br />

June 13<br />

Technology for Litigators<br />

(Toronto, ON)<br />

Ed note: To e-discovery and beyond, TAS has you covered! Read “Ten tips for drafting high<br />

data e-discovery plans” on page 8 of this issue. And check out TAS’s programming on tech<br />

issues that affect you as a litigator. Learn more at our upcoming program on Technology for<br />

Litigators. And if you missed our Documentary Production: What You Need to Prove Your<br />

Case or Digital Evidence for Litigators programs, check them out in our Webcast Archives.<br />

As the 2022/23 term winds down to a close, I<br />

want to use my Chair Chat to say thank you.<br />

Thank you to our Young Advocates’ Standing<br />

Committee members for their dedication<br />

and commitment to YASC: Karen Bernofsky,<br />

Michael Bookman, Debbie Boswell,<br />

Nina Butz, Angela Cao, Katherine Chau,<br />

Sania Chaudhry, Alice Colquhoun, Katrina<br />

Crocker, Lisa Delaney, Michael Ding, Kristen<br />

Duerhammer, Richard Glennie, Tiffany<br />

Glover, Webnesh Haile, Ali Haji, James<br />

Hardy, Chris Kinnear Hunter, Elise Kohno,<br />

Dora Konomi, Sandy Lockhart, Patrick Mac-<br />

Donald, Sara A. McGregor, Khrystina McMillan,<br />

Tayler Meagher, Sarah Naiman, Sarah<br />

Naughton, Teodora Obradovic, Sean Petrou,<br />

Tim Phelan, Melissa Pike, Sebastian Pyzik,<br />

Jean-Simon Schoenholz, Sarah Strban, Annie<br />

Tayyab, Catherine Thall Dubé, Zachary<br />

Thiffault, Chris Trivisonno, Kate Robertson,<br />

Irina Rosca, Alexandra Shelley, and D. Bronwhyn<br />

Simmons.<br />

Thank you to the <strong>Keeping</strong> <strong>Tabs</strong> editorial<br />

team for all their hard work this term:<br />

our editor, Khrystina McMillan; deputy editor,<br />

Sania Chaudhry; Eric Blay; Nina Butz;<br />

Michael Ding; Aly Haji; Patrick MacDonald;<br />

and Sean Petrou. I would also like to thank<br />

everyone who has contributed to <strong>Keeping</strong><br />

<strong>Tabs</strong> this term. Thank you to TAS staff for<br />

their guidance.<br />

And finally, I would like to thank you, dear<br />

reader, for your continued support of The<br />

Advocates’ Society, YASC, and <strong>Keeping</strong> <strong>Tabs</strong>.<br />

In this edition of <strong>Keeping</strong> <strong>Tabs</strong>, Michael<br />

Lalande and Tatiana Lazdins share their ten<br />

tips for drafting high data e-discovery plans,<br />

Daniel Hermann discusses Summary Trials,<br />

and we have an interview with John Trueman.<br />

If you’d like to contribute to an upcoming<br />

edition of <strong>Keeping</strong> <strong>Tabs</strong>, please email our editor,<br />

Khrystina McMillan, at kmcmillan@osc.<br />

gov.on.ca for more details. If you’re looking<br />

to get involved, you can join our Volunteer<br />

Roster by reaching out to Katrina Crocker at<br />

katrina.crocker@queensu.ca.<br />

Be sure to check your inboxes or follow The<br />

Advocates’ Society on Twitter, LinkedIn, and<br />

Facebook for the latest on our events and<br />

initiatives.<br />


Testimonials from our mentoring portal mentees!<br />

“I never felt like there were any questions I couldn’t ask. The mentors were so<br />

candid with me about their experiences, around partnership, finances, business<br />

development. I learned more about running my firm through these meetings<br />

than anywhere else.”<br />

“It can be hard to find a dedicated mentor as a young lawyer, especially outside<br />

of your firm, given everyone’s commitments. But to be able to have an hour or<br />

two here and there with lawyers that you can learn a lot from has been invaluable<br />

to me”<br />

NEW TAS<br />


PORTAL<br />

“I really think it is an excellent program and I look forward to being a mentor in<br />

it one day.”<br />

The Advocates’ Society is proud to announce a<br />

new online mentoring program exclusively for TAS members.<br />

A key goal of this new mentoring program is to create a simple way for our Junior Members to<br />

feel more connected to their professional community and obtain some career advice from more<br />

experienced members of the bar. This program model is convenient, efficient and effective:<br />

√<br />

√<br />

√<br />

No long-term commitments.<br />

No extensive questionnaires or matching.<br />

No heavy agendas, minute taking or long-term planning.<br />

Just simple connection and conversation for junior lawyers to get some tips and connect with<br />

someone new.<br />

More information is available on the<br />

TAS mentoring website page.<br />

TAS Junior Members are<br />

automatically signed up.<br />

Set up your profile today!<br />

6 7<br />

****At this time, the program is only available in English but we are working with Mentorship Rocket to build a bilingual (English and French) site for later in <strong>2023</strong>.


Ten tips for drafting high<br />

data e-discovery plans<br />

Michael Lalande, Barrister & Solicitor &<br />

Tatiana Lazdins, Hicks Morley<br />

As technology advances, it is essential for<br />

lawyers to understand the importance of<br />

e-discovery when drafting a discovery plan.<br />

Electronic discovery, or e-discovery for short,<br />

involves the collection, review, and production<br />

of electronically stored information (ESI).<br />

This includes emails, text messages, social<br />

media posts, documents, and other types of<br />

data that may be relevant to your case. In this<br />

article, we outline some key practical tips and<br />

technical considerations for when drafting an<br />

e-discovery plan that deals with a lot of data.<br />

1. Assemble your e-discovery team: This<br />

type of work often involves a team of experts<br />

specializing in e-discovery who are<br />

familiar with the software, processes, and<br />

tools necessary for e-discovery, as well as<br />

the ability to analyze, interpret, and cull<br />

down the data collected during discovery.<br />

Not every firm has the capacity to develop,<br />

retain, and support a team of e-discovery<br />

experts. For firms dealing with this scenario,<br />

there are outside experts who can assist<br />

with the e-discovery process.<br />

2. Know the applicable rules and practices:<br />

It may seem obvious, but you<br />

need to be aware of (and comply with)<br />

the governing legal requirements (e.g.<br />

rules of court) surrounding e-discovery<br />

in your jurisdiction. In addition, there<br />

are multiple industry standards you can<br />

use as a reference to create an effective,<br />

fair, and efficient e-discovery process.<br />

3. Implement appropriate privacy protections:<br />

In Canada, the Personal Information<br />

Protection and Electronic Documents<br />

Act (PIPEDA) sets out the requirements<br />

for the collection, use, and disclosure<br />

of personal information. Your e-discovery<br />

plan should comply with PIPEDA and<br />

any other relevant privacy laws. Protecting<br />

the privacy and security of the parties<br />

in the e-discovery process can require<br />

implementing appropriate security<br />

measures to prevent unauthorized access<br />

to ESI, such as ensuring that ESI is<br />

stored in a secure location, and limiting<br />

ESI access to only those individuals who<br />

need it. The prudent approach may also<br />

call for adding document redactions or<br />

requesting a sealing order on records<br />

that are ultimately submitted to court.<br />

4. Define the scope of the data: ESI can<br />

be stored in a variety of different formats,<br />

some of which are more easily<br />

captured than others. Defining the<br />

scope of ESI at the beginning can help<br />

streamline the process, ensuring that<br />

all relevant data is collected while also<br />

reducing the amount of irrelevant data<br />

that is collected. This may include identifying<br />

custodians, timeframes and locations<br />

of relevant ESI. If necessary, you<br />

may be able to narrow the scope of<br />

e-discovery by agreeing to limit discovery<br />

to only crucial issues or timeframes,<br />

or limiting the scope of discovery based<br />

on data format (e.g., prioritizing emails<br />

over collaboration data or vice versa).<br />

5. Use technology-assisted review (TAR):<br />

TAR is an e-discovery software technique<br />

that uses algorithms to assist in the review<br />

process. This can dramatically reduce<br />

the time and cost associated with<br />

manual review, especially when dealing<br />

with large volumes of data. A TAR approach<br />

can be helpful on review projects<br />

with documents numbering from<br />

the thousands to millions. Software<br />

features that enable TAR are becoming<br />

standard inclusions in review software.<br />

6. Consider using a data map: A data map<br />

is a visual representation of the data that<br />

an organization has, including where it is<br />

stored and who has access to it. Creating<br />

a data map can help identify potential<br />

sources of data and ensure that all relevant<br />

data is collected. On smaller scope<br />

matters, a simple conversation with your<br />

client will help you to understand the location<br />

or locations of relevant documents.<br />

7. Establish a protocol for the collection<br />

and review of data: A good protocol will<br />

provide guidance on types of relevant<br />

documents that are expected to be located<br />

within each portion of the collected<br />

data. Usually, a review protocol will<br />

provide guidance on categories of documents<br />

that are related to the issues in<br />

dispute. This guidance can help ensure<br />

that the data is collected and reviewed in<br />

a consistent and defensible manner. The<br />

protocol should include guidelines for the<br />

collection and processing of data, as well<br />

as procedures for reviewing and producing<br />

the data. Ideally, the protocol itself is<br />

proportionate to the nature of the matter<br />

and the issues in dispute. A large-scale<br />

review team with dozens of third-party<br />

reviewers will require more training, instruction,<br />

and background information<br />

8 9

than a small team of lawyers who have<br />

close knowledge of the client needs<br />

and issues in the case. Consider listing<br />

the document categories from the review<br />

protocol within the discovery plan.<br />

8. Consider the use of sampling: Sampling<br />

is a technique that involves reviewing<br />

a representative subset of<br />

the data, rather than reviewing all of<br />

it. This can help reduce the time and<br />

cost associated with manual review,<br />

while still providing a reasonable level<br />

of confidence that all relevant data<br />

has been reviewed. To increase the efficacy<br />

of sampling, you can follow up a<br />

sample review with analysis targeted at<br />

identifying specific categories of relevant<br />

documents identified in a sample.<br />

9. Use secure methods for data transfer:<br />

Ensuring that data is transferred<br />

securely during the discovery process<br />

can help protect the data from unauthorized<br />

access or disclosure. Secure<br />

methods may include using encryption<br />

or secure file transfers. The<br />

data and the encryption keys or passwords<br />

should never travel together.<br />

10. Document the process: It is important<br />

to document the entire discovery process,<br />

including the collection, processing,<br />

review, and production of data. This<br />

documentation can be used to demonstrate<br />

that the process was conducted in<br />

a defensible manner and can help avoid<br />

potential challenges to the discovery<br />

process.<br />

By keeping these practical considerations<br />

in mind, lawyers can help ensure that the<br />

e-discovery process is conducted in a defensible<br />

and efficient manner.<br />


Summary trials: Maybe<br />

a Goldilocks solution to<br />

access to justice issues<br />

Daniel Hermann, Osuji & Smith Lawyers<br />

Access to justice doesn’t just mean having access to legal representation or legal resources. It also<br />

includes having access to an effective, speedy and affordable adjudicatory mechanism. With trials<br />

taking years and summary judgments sometimes not appropriate to decide all the issues in an<br />

action, Goldilocks’s lawyer may advise her that a summary trial could be “just right” to resolve her<br />

claim against Three Bears Inc.<br />

As Feasby J. recently explained in Benke v Loblaw Companies Limited, even for cases worth no more<br />

than $200,000, legal fees can exceed $50,000 if required to proceed to a full trial. Such costs of<br />

litigating are not proportional to the claims’ worth. A more just solution is a summary trial, but as<br />

His Honour notes in Benke, summary trials have been underutilized.<br />

In Alberta, summary trials can be scheduled at almost any point in an action. They can also act as<br />

a powerful motivation for settlement, as the certainty of a scheduled trial means that there is little<br />

likelihood of the plaintiff simply “dropping” their action.<br />

10 11

Not that summary trials guarantee speedy and<br />

affordable adjudication of a matter. In Alberta<br />

where I practise, summary trials may not be<br />

scheduled for over a year after application, but<br />

the Alberta Rules of Court require litigants to file<br />

their evidence for trial on application no matter<br />

how far away the trial dates are. 1 The Alberta<br />

Rules of Court also allow opposing parties to<br />

object to a summary trial application, and at any<br />

stage of a summary judgment application, the<br />

court may order the trial of the action generally<br />

or on certain issues. 2<br />

To avoid sinking time and money into an application<br />

that is ultimately dismissed, it may be helpful<br />

to first canvass the possibility with opposing<br />

counsel to see if they would agree to proceeding<br />

by way of summary trial. In my practice, I have<br />

also found it is sometimes possible to file an application<br />

for trial without an affidavit by indicating<br />

in the application that our client’s affidavit is<br />

forthcoming, especially where all parties have<br />

agreed to a litigation schedule setting out timelines<br />

for delivery of the parties’ affidavit<br />

evidence.<br />

As counsel representing litigants with limited<br />

money to spend on litigation, we need to look<br />

at all available tools and avenues to provide the<br />

appropriate answer to the appropriate problem.<br />

Though they are still underutilized in Alberta,<br />

summary trials may just offer the “just right”<br />

solution to claims that exceed the small claims<br />

limit, but are not so large as to justify a full trial,<br />

but also not simple enough for summary judgment.<br />

Notes<br />

1. See rules 7.5(2)(d) and 7.5(3) of the Alberta Rules of Court<br />

2. See rules 7.8-7.11 of the Alberta Rules of Court.<br />

Now Live! Friends Who Argue - TAS podcast is jointly hosted by<br />

our Young Advocates and 10+ Standing Committees. Segments<br />

feature dialogue with the people who get what you do, as we<br />

delve into both the serious and lighthearted aspects of life as<br />

an advocate in Canada. Know a TAS member we should talk<br />

to? Contact Christopher Horkins at chorkins@cassels.com and<br />

Karen Bernofsky at KarenB@stockwoods.ca .<br />

Friends Who Argue is sponsored by<br />

12 13

Q. Could you give some background on your career before law school?<br />

A. I sometimes joke that I’m constantly trying to decide what I want to be when I grow up. I had<br />

always wanted to be a lawyer, since I was about twelve years old. But I’ve taken a couple of detours<br />

on the way there. I dropped out of university to become Executive Director of Youthquest!<br />

Lesbian and Gay Youth Society of British Columbia, which was a network of queer youth drop-in<br />

centres in suburban and small-town communities. After I finally completed my undergrad degree<br />

in Canadian Studies, I had an opportunity to work on an alternative dispute resolution program<br />

for survivors of Indian Residential Schools – that became the start of a fifteen-year odyssey on the<br />

national class action settlement.<br />

Q. How did working on the Indian Residential Schools Settlement Agreement shape how<br />

you viewed the law?<br />

A.The Indian Residential Schools Settlement Agreement demonstrated how law can provide a vehicle<br />

for remedying grave historical wrongs. The settlement, which included the Truth and Reconciliation<br />

Commission, has sparked a continuing national conversation on reconciliation. And the compensation<br />

part of the settlement, which I worked on, helped bring a measure of healing and closure to many of<br />

the people who suffered the most.<br />


Interview with John Trueman,<br />

Associate, Allen/McMillan<br />

Litigation Counsel<br />

Compiled by Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP<br />

However, my experience also underscored the importance of a legal profession that can understand<br />

and relate to the people it serves, and the need for regulators to take swift action to protect the<br />

integrity of the legal profession and the justice system when lawyers go off the rails. For example, we<br />

received complaints of lawyers setting up high-interest loans, charging fees above the court-ordered<br />

maximums, using unsupervised ‘form fillers’ to recruit clients, etc., and we ended up having to take action<br />

against some of these predatory practices. To be honest, seeing some of this unfold made me seriously<br />

question whether I wanted to be a lawyer. Today, I try to be mindful of the importance of building<br />

and maintaining trust: with clients, with opposing counsel, and with the bench.<br />

Q. How old were you when you started law school? What made you decide to go to law<br />

school as a mature student?<br />

A. I was 36 when I started law school in 2015. I had thought about it off and on for some time, but as<br />

the litigation work mushroomed — including two Supreme Court of Canada appeals — I realized it was<br />

time to get some actual qualifications.<br />

John Trueman is an Associate at Allen/McMillan Litigation Counsel in Vancouver, where he maintains a<br />

broad civil litigation practice with a focus on employment claims, administrative law, and appellate work.<br />

In addition to providing excellent service to his own clients, John works with the firm’s other lawyers on<br />

large, complex litigation matters in a variety of different subject areas. John is active in the community,<br />

having served as the Executive Director of Youthquest! Lesbian and Gay Youth Society of British Columbia,<br />

and as the Treasurer and Vice Chair of Mole Hill Community Housing Society. John lives with his<br />

partner in Vancouver and spends his free time travelling, skiing, and collecting modernist fountain pens.<br />

He has not yet started his post-modern fountain pen collection.<br />

Q. Going into law school, how did you intend to use your law degree? Has that differed from<br />

your practice today?<br />

A. My dream was to do primarily public law, and I was lucky to work with Joe Arvay, Q.C. for a brief time<br />

before he passed away. Today, I have a more diverse practice, including general civil litigation with specialties<br />

in administrative and employment law. About 70% of my work is with my own clients, which is<br />

incredibly satisfying. Ultimately, I think being a lawyer is about helping people solve problems, and it’s<br />

possible to do that really well even if you don’t have a Charter blockbuster on your hands. The other<br />

30% is working with senior counsel on larger files, and I feel really lucky to be at a firm with partners<br />

who are serious about getting junior lawyers into court and on their feet.<br />

14 15

Q.How old were you when you started practice? How did you feel, starting a new career as<br />

a lawyer at that stage in your life?<br />

A. I was 40 when I was called to the bar in 2019. I’d spent most of my career up to that point being the<br />

youngest person in every room, and suddenly I was clerking at the Supreme Court of Canada and was<br />

the oldest of 36 clerks in my year.<br />

Although I’d been working around the law for a long time, it was tough starting out in practice after so<br />

long in one place. I went from being an expert in a very niche field to an advocate who must constantly<br />

learn about different areas of the law and the diverse industries that my clients operate in.<br />

Q. Because we clerked together, I know you had some unique perspectives on the role of an<br />

advocate and what constitutes good advocacy based on your past experiences. Could you<br />

give some insight into those views and how they have evolved because of practice?<br />

A. One of the things I learned from Joe Arvay is that you’re always advocating on (at least) two levels. Of<br />

course, you need to provide the court with a viable legal path to getting the result you want. But you<br />

also need to persuade the court that your client should win.<br />

I was reminded of this in a recent appeal. The respondent had all sorts of ingenious arguments about<br />

why the court shouldn’t find that they were holding property in trust for our clients. But nowhere did<br />

they explain why their client should win: why their client should get to keep property they didn’t pay for.<br />

In the end, no matter how sophisticated your legal argument, to be a successful advocate you have<br />

to help the court understand your client’s situation and want to do the right thing for them. This sounds<br />

really obvious, but law can be such a technical pursuit that lawyers sometimes lose sight of that.<br />

Q. Were there any benefits or difficulties you faced being a relatively junior lawyer at a later<br />

stage in your life?<br />

A. People often assume I have more experience than I really do. This can be a good thing when you’re<br />

trying to gain your client’s confidence, but when I make a rookie mistake in court I’m unlikely to get a<br />

free pass.<br />

Q. What are some advantages and disadvantages of government work relative to private<br />

practice? Which do you prefer, and why?<br />

A. To be honest, I really miss the oodles of guaranteed vacation time that comes with government<br />

work. The pension is pretty sweet, too. Government jobs are also famously family-friendly.<br />

The other big plus of government work is that you get to work on fascinating things that really aren’t<br />

found anywhere else. The public service does important work that really matters to Canadians, and<br />

lawyers (and former lawyers) play a huge part of that.<br />

On the other hand, as a government lawyer you can’t choose or fire your client, and you’re often far<br />

removed from the people who make the big decisions that you’re asked to defend. Private practice<br />

definitely comes with a grind, but in my experience it has felt easier on the conscience too.<br />

16 17


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