Advanced Evidence Law and Practice
for Civil, Commercial and Administrative Litigation

 

Hearsay Evidence: Law and Practice

Harvin Pitch
Teplitsky, Colson LLP, Toronto

Dealing with Privileged and Classified Material

Anil Kapoor
Kapoor, Barristers, Toronto

• Current issues regarding solicitor-client and litigation privilege
• When is the privilege lost? – exceptions and waiver
• How broad is the privilege and what does it cover?
• Practical considerations when handling issues of privilege
• Solicitors’ work product: how is it properly classified?
• An update on developments since Blood Tribe
  • can administrative tribunals determine privilege claims?
  • at what level of administrative decision making will the deference stop?
• Wigmore at the margins: where is the law of privilege being pushed?
  • the intersection with privacy legislation
  • are class privileges being expanded?
• Public-interest immunity
  • when does it arise?
  • does there have to be written agreement?
  • can a party without notice breach common interest privilege?
  • what are the consequences of breach?
  • national security and cabinet secrets
  • secret evidence
  • the rise and fall of the special advocate regime
  • what to do when confronted with an assertion of public-interest immunity based on national security
  • principles and practices for judges and tribunal chairs when dealing with S.38 and S.39 of the Canada Evidence Act
  • reconciling the jurisdictional conflict when a matter is in a superior court but the CEA is in the jurisdiction of the Federal Court of Canada

Organizing and Handling Evidence: Practical Tools

Michael Osborne
Partner, Affleck Greene McMurtry LLP, Toronto

Complex commercial and administrative litigation is document-heavy and data-centric. In this session, you’ll learn how an organized approach from receipt of the evidence through to the hearing will help you when:

• Identifying and tracking what is needed to prove your case
• Maintaining the chain of custody
• Proving the origin of evidence
• Tracking links between people and evidence
• Tracking links between undertakings and evidence provided in response to undertakings
• Organizing your evidence for trial

Obtaining and Using Evidence from other Proceedings

Marie Henein
Henein & Associates, Toronto

• The Deemed Undertaking Rule
• Will McNeil be applied outside the criminal-law context?
• Crown briefs
  • the application of Wagg in professional regulatory proceedings

Getting Evidence from Non-Parties

François Baril
Partner, Gowling Lafleur Henderson LLP

• ISPs and phone companies
• Financial Institutions
• Getting evidence from social networking sites
• Search warrants
• Special procedures such as O’Connor
• The status of the common-law action for discovery
• Locating information
• jurisdiction issues for data stored elsewhere who owns the data?

Understanding the Correct Use of Evidence from Out-of-Court Examinations

Rick Woyiwada
General Counsel, Justice Canada, Civil Litigation Section

• How may evidence from examinations for discovery be used at trial?
• What are the differences between affidavit evidence and evidence from discovery?
• Use of affidavits and cross-examinations in judicial review proceedings
• Common misconceptions
• When does an answer bind a party at trial?
• Avoiding potentially fatal errors in leading examination evidence
• Treatment of admissions

Short Snapper Session: How Do I Prove……?

Tim Pinos
Partner, Cassels Brock & Blackwell LLP, Toronto

Heather J. Williams
Partner, Cavanagh Williams Conway Baxter LLP

• Paternity?
• A business record?
• Foreign law?
  • are statutes published on the web acceptable?
• Translations?
• A death?
• That something is privileged?
• A criminal record?
• Bad character in a civil case?
• A medical record?

The Hon. Michael L. Phelan
Justice, Federal Court of Canada

Expert Evidence: How has the Landscape Changed for Counsel, Experts and Triers?

Sally Gomery
Partner, Ogilvy Renault LLP

Stephen R. Moore
Partner, Blaney McMurtry LLP, Toronto

• How are Ontario’s amended Rules of Civil Procedure changing the practice of experts and counsel?
  • are experts becoming gun-shy?
  • are they volunteering opinions outside their retainer and if so what do counsel do with that information?
  • wording letters of retainer
  • what to say and what not to say when briefing and speaking with experts
  • how much of your discussions with experts must be disclosed and when?
• Will courts and tribunals be requiring experts to meet with each other in advance of the trial?
  • what will the implications be for counsel?
  • maintaining privilege
  • can a jointly retained expert subsequently appear for one party?
• How do the new rules on expert reports apply to reports served before January 1st, 2010?
  • will the reports have to be amended, and if so at what cost?
  • should a jointly retained third party provide the range of possible outcomes?
• Strategies for counsel
  • at trial
  • what to demand before and at trial
  • making sure your experts are not disqualified for lack of impartiality
• Will other courts and tribunals impose similar rules with respect to experts?

Electronic Evidence: Proving Authenticity

Steven Bennett
Partner, Jones Day, New York

Andrew Bernstein
Partner, Torys LLP, Toronto

• When is it necessary to prove the evidence?
• What challenges may be raised to authenticity?
• The elements of authenticity
• Laying the foundation
• What does the best evidence rule mean in the electronic context?
• Questions to ask an expert
• Best practices for making copies of files
• Proving website content
• Proving evidence from chat rooms
• Managing the costs of proving authenticity
• When will the courts limit forensic analysis?
• U.S. case law and what it may mean in Canada

Preserving Electronic Evidence

Chuck Rothman, P.Eng.
Director of eLitigation Services, H&A eDiscovery

Susan Wortzman
Wortzman Nickle Professional Corporation, Toronto

• Instituting a timely and appropriate litigation hold on electronic evidence
• Identifying what evidence needs to be preserved
• What counsel should tell clients when litigation is anticipated
  • what constitutes reasonable efforts?
  • having the right document retention and destruction policies
  • special considerations with electronic evidence such as metadata
• An update on the first rulings made under Ontario’s amended Rules
  • will Canada now have a more comprehensive regime than the U.S. by virtue of simply referring to the Sedona principles?
• Avoiding the costs of over-preservation
  • proportionality: will principles from Ontario’s new rules of civil procedure expand to other provinces and tribunals?
  • working with opposing counsel
• The consequences of not preserving evidence
  • lessons from the U.S. case law
  • negligent vs. intentional destruction

Emerging Issues in Evidence

Chris Wirth
Partner, Stockwoods LLP, Toronto

• The growing clash between privacy interests and the need for a complete record
  • how will ediscovery of such extensive databanks as email records and hard drives, as well as growing internet access to court filings, change attitudes toward the privacy interests of witnesses and others?
  • how will the courts protect the right to make full answer and defence?
  • admissibility and application of evidence from social networking sites
  • recent case law
• The admissibility of evidence derived from Wikipedia, Google Scholar and internet sources
• The Canadian General Standards Board Standard on Electronic Records as Documentary Evidence
• The British standard for evidential weight and legal admissibility of electronic information
• What do you need to prove to obtain a remedy under s.24(2) of the Constitution Act?
• Self-incrimination in cross-border proceedings
• Finding relevant evidence within massive stores of electronic documents
  • the importance of finding the right search terms
  • using keywords to identify privileged documents
  • use of log-in/log out records as evidence
• How can parties minimize the evidence that goes in to get a just result at a reasonable price?