Keeping-Tabs-Spring-2023
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.
Create successful ePaper yourself
Turn your PDF publications into a flip-book with our unique Google optimized e-Paper software.
KEEPING TABS<br />
The Advocates’ Society<br />
SPRING <strong>2023</strong> <strong>2023</strong>
THE ADVOCATES’ SOCIETY<br />
MENTORING GUIDE<br />
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 />
CONTENTS<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 />
3
WHAT’S COMING UP @ TAS<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 />
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 />
5
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 />
MENTORING<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>.
BUSINESS OF LAW<br />
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 />
CASE BRIEF<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<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
www.advocates.ca