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Left to RIght: Michelle Miranda (Victor Award), Zadiha Iqbal (ILCO Chair of Education), Leana Esposito (David Boakes Award, Balfour Award, and Honours Certificate), Margaret-Ann Kingerski (Bristow Award).
On Saturday February 4, 2017, the Institute of Law Clerks of Ontario, in conjunction with the Education Committee, hosted its annual Education Awards Ceremony at the glamorous and prestigious Ritz Carlton Hotel in Toronto.
The ceremony recognizes and acknowledges students who are members of ILCO who have achieved (a) the highest mark in each of the Associate and Fellowship courses, or (b) an honours standing (80%) or higher on each of the four provincial examinations, which include Litigation, Corporate, Real Estate and Estates.
The ceremony was attended by award recipients, their family and friends and ILCO college instructors who shared personal thank-you’s and acknowledgments of what these awards meant to them.
Zadiha Iqbal Co-Chair Education was the MC for the day and the Keynote Speaker was Alexandre Fallon, from Osler, Hoskin & Harcourt LLP, who shared the value of Law Clerks and their skills, as he was a Law Clerk before transitioning into the role of a lawyer, and gave some valuable tips for what’s next to the dedicated students as they embark upon their journey in the Law Clerk field.
Following the awards ceremony, award recipients and their guests were treated to a delicious lunch sponsored by Stewart Title, ESC, Emond Montgomery Publishing and Cartel Inc.
On behalf of ILCO and the Education Committee, we congratulate the 2016-2017 award recipients and wish them the very best of success as they embark in their future endeavors.
Zadiha Iqbal and Kathryn Rizzi
Co-chairs Education Committee
Spring is around the corner! Although winter was a busy time for us at ILCO, we are all looking forward to the longer days and warmer weather.
One of my favourite winter events is the ILCO annual Education Awards. It is always great to recognize the achievements of students and the support that they receive from their families and friends while they are taking the ILCO courses. Take a look at the pictures and articles in this issue.
The ILCO AGM was held on February 16, 2017. Please join me in welcoming our new and re-elected directors. Volunteering to be part of the board of directors is a big time commitment but also a rewarding one for all involved.
The annual conference is fast approaching. It has been ten years since we were in Halifax and we are excited to be returning there. We have another great line up of speakers with lots of networking opportunities.
As technology continues to grow and become an integral part of our day, the tools we use also must change to keep up. One of the big things we are working on is updating the ILCO website to add functionality and ease of use with mobile devices. We will let everyone know when the new site is ready to go live.
A special thanks to the ILCO staff who have been working hard to get the website update and other projects on the right track!
ILCO’s 27th Annual Conference, ILCO by the Sea, will be held at the Halifax Marriott Harbourfront in Halifax Nova Scotia from May 17 – 20, 2017 and promises to be an event to remember! Take this opportunity to learn, network and connect with old friends and new colleagues. Please see the ILCO website for the conference brochure and registration form. We have some fantastic speakers lined up and great networking events that you won’t want to miss.
To learn more about things to do in and around Halifax, before, during or after the conference, we also invite you to visit our page on Destination Halifax’s website: ILCO 2017.
Ian Curry, Rose Kottis and Margaret Tsetsakos, Co-Chairs
Karen Daly, Wanda Doiron, Zadiha Iqbal, Gina Lohnes,
Lisa Matchim, Rana Mirdawi, Tammy Parker, and
ILCO’s 18th annual golf tournament is being held at the Royal Woodbine Golf Club in Toronto on Saturday June 3, 2017. It is the first golf tournament taking place as a wind-down post-conference event. It is a great way to re-connect with conference participants, colleagues, exhibitors and sponsors, as well as bringing your family and friends to share in the fun and camaraderie. For more information and a copy of the Golf Registration form, click here.
Have you reviewed your membership benefits recently? Be sure to take advantage of these new benefits...
To see a full listing of all Membership Benefits click here.
2016 was a great year for our CLE committee! We held many very well-received programs. If you were not able to attend, you can now order program materials from our 2016 CLE programs by following this link: http://ilco.on.ca/education/ilco-cle-programs/ilco-cle-programs-archives and clicking on the order form.
Do not forget to join us for the Real Estate CLE Program on March 29, 2017. We also are excited to announce that on June 14 the first ever Personal Injury CLE will be held! Details to follow.
Thinking ahead to the Fall -- yes, we know Spring has barely arrived -- planning is already underway for the Corporate and Litigation CLE Programs. If there is a speaker you would like to hear, or a topic you are interested in, please let us know.
We are always eager to hear you so if you have any suggestions or questions please contact us at firstname.lastname@example.org.
Russell Connelly and Natasha Khan, Co-Chairs
Lisa Matchim, Rana Mirdawi, Shay Babb,
Peuly Rahman, Rupi Ahuja and Anne Marie MacIntosh
Continuing Legal Education Committee
The Law Clerks’ Review is an excellent resource for timely articles of interest to law clerks as well as notices to keep up to date with ILCO’s initiatives like CLE programs, new memberships, conferences and social events. This newsletter is published quarterly and emailed to all members, in addition to being posted on ILCO’s website. We are always pleased to receive and consider your articles for publication.
To submit an article for consideration, please send the article to email@example.com.
Rana Mirdawi and Clint Savary (Co-Chairs),
Shaneen Laity, Michelle Alexander,
Michelle Shikatani and Karen Daly
JOIN AN ILCO COMMITTEE
ILCO committees are always in need of members. Consider joining any one of the committees - Education, CLE, Certification, Newsletter and Public Relations. It is a great way to tap your resources and network. Contact Karen Daly, Office Administrator, at 416-214-6252 or at Karen_Daly@ilco.on.ca for further information.
We are hard at work planning CLE programs and we want to hear from you! Do you have a topic you would like to see covered? Let us know! Submit your requests to: CLE@ilco.on.ca
Alexandre Fallon, Osler, Hoskin & Harcourt LLP
I’d like to begin by thanking the Institute for inviting me to this wonderful event and giving me the privilege of saying a few words to all of you on this special day for you and your families.
As a sessional lecturer at the University of Montreal, grading student work is my least favourite part of teaching - and I know I share this sentiment with many teachers and professors at all levels, including no doubt a few of the course instructors here today.
However, rewarding excellent student work with an excellent grade, and knowing the pride that that student will feel when they receive their grade – now that is a true pleasure.
I hope the recipients we are here to honour feel that same pride as we take a few moments to recognize and celebrate their achievements.
Please join me in congratulating the award-winners.
To all graduates here today, many of you already have experience working in the legal field, and already know how valuable the skills and training acquired through the Institute’s education programs are to the legal market. (And for those of you who do not have that experience yet, the good news is your skills and training are extremely valuable!).
In all seriousness, the Institute’s educational programs and accreditations train law clerks according to the highest professional standards.
Through these programs, the Institute plays a crucial role in supporting and building a body of highly skilled law clerks.
In turn, when you, graduates of these programs, enter or re-enter the legal market, you bring those crucial skills with you, and help make the case for a greater role for law clerks within the legal profession.
The quality of your work, and the breadth of your expertise, command nothing less.
Although law clerks are already firmly established as key actors within the legal market, I believe that you should continue to aim for an even greater role.
Indeed, I firmly believe that a specialized and professionally trained body of law clerks is a very big part of the solution to the imperatives of increasing efficiency and reducing costs for people accessing the judicial system.
The Canadian Forum for Civil Justice released its overview report on the cost of justice and everyday legal problems last year, and found that almost half of Canadians will face at least one civil or family justice issue in any given 3-year period.
The cost of these legal issues to the average Canadian household represents almost as much as the cost of food for that same household in 2012. And, these are conservative numbers according to the CFCJ.
On that note, the Report also found that when Canadians do spend money resolving their legal problem, they are less likely to feel that the outcome of their legal issue is fair.
So I take that as an important reminder that the reality is, no one really enjoys spending money on their legal services. Just like with car repairs, we’re happy to leave the repair-shop rolling again, but we still wish we never had to be there in the first place.
But just as we aren’t all mechanics, the services we as legal professionals provide are specialized, and we must continue to find ways to ensure that we reach as many people as possible who are in need of legal help.
And we must strive to provide the highest quality of legal services at the lowest possible cost when clients do make the choice of investing in our services to resolve their issues.
It is only by delivering value in this fashion that our clients will come away from their experience as a consumer of legal services satisfied.
Partnering with highly skilled, highly trained law clerks is, in my view, absolutely key to delivering value to our clients and maintaining their faith in our legal system, as well as access to justice.
The award recipients we honour tonight are examples of such law clerks.
To those recipients, I commend you once again on your achievements, and I wish you success in all your endeavours, professional and personal. Thank you.
James Bristow Award
Since 1995, ILCO has donated an award for excellence in Estates in commemoration of David Boakes, founding member of ILCO. This award is presented to an ILCO member who attains the highest mark on the estates provincial exam.
In 1971, David Boakes, founding member of ILCO, expressed a wish to donate an award for excellence in Real Estate. In honour of David’s father Balfour Boakes, this award is presented to an ILCO member who attains the highest mark on the real estate provincial exam.
David Boakes Award for Excellence in Estates Law & Balfour Award for Excellence in Real Estate Law
Fellowship Award for Excellence
ILCO has been presenting honour certificates to students that have taken the 4 provincial exams since 2002. These certificates are presented to the student members that achieve an honours standing (80%) or higher on each of the four (4) provincial examinations (Real Estate, Litigation, Estates and Corporate).
I am thrilled and delighted to receive the James Bristow Award today. I am both grateful and honoured to be recognized by the Institute.
Litigation was my final course in the program and I am thrilled to have achieved Associate level. I actually started the Law Clerk’s program many years ago but never quite finished – I was lured away into a career in human resources. While I enjoyed working in human resources, I decided it was time to finish what I started especially as I had just celebrated my 10th anniversary in the corporate law department of a financial institution. It was a tough two years as I was working and studying at the same time but completely worthwhile. It’s incredibly satisfying to have finally completed the program and being honoured with the James Bristow award is like icing on the cake!
I have several people I would like to thank for their support throughout my journey – my husband first of all although I think he was secretly happy to have full command of the remote control while I was studying. I would also like to thank my children, my parents and of course my boss and my colleagues at Home Trust. Everyone was very supportive of me whether it was with words of encouragement or a little extra time off in order to prepare for exams. Finally, I would also like to thank the Institute for their tireless efforts in promoting and elevating our profession. I have many more windows of opportunity open to me now and I am sincerely grateful for the wonderful programs and support offered by the Institute.
I am honoured to be amongst the other award recipients here today, receiving the Victor Award. In the words of Albert Einstein, “Intellectual growth should commence at birth and cease only at death.” These words describe the lifelong journey of learning.
My journey in corporate law began over 15 years ago, as a Contracts Clerk for the legal department of Harlequin Enterprises Ltd, and then continued to Hallcon Corporation as a Contracts Administrator and finally, to Randstad Interim Inc. where I was a Contracts Administrator, a Team Lead, a Manager, and am currently the Director of Contracts and Legal Affairs. I have learned so much in my various roles, which have expanded and morphed over the years. The turning point for me, though, was in the last 4 years, when I was working under direct supervision of Lara Speirs, General Counsel at Randstad. Lara encouraged me to invest in my future and complete the Law Clerk Program. After a couple of years of procrastination and hesitance, I finally decided to go back to school and commence the Associate program, with Corporate Law being my first course.
I thank God for giving me the strength and wisdom to successfully complete the Corporate exam. I thank both Lara and Randstad for believing in me and investing in my development. I would also like to thank my husband and two children, who were so encouraging and supportive while I was juggling home life, a full-time career, and this course.
As you can imagine, I was so nervous and excited to be back in school after so many years. Unsure of how I would be able to juggle work, family and school, I jumped in head first. I had no idea what to expect and was overwhelmed to know that my grade was dependent on the result of this one final exam. However, my teacher, Rose Plue, did an amazing and thorough job of preparing us for this exam. When my grade came in the mail, I was expecting a pretty decent grade, but it came to me as a surprise to receive honours, let alone be the recipient of the prestigious Victor Award. I was so excited and proud to share the award with my family and my team at work. Definitely one of the highlights of my career. I am so glad that both my husband and I (who are both in continued learning) can provide a good example to our children that learning doesn’t end when you graduate, and, if you want something badly enough, you can achieve it, but it takes hard work and preparation.
Thank you ILCO for organizing this awesome event which takes a moment to recognize me and my peers for a job well done. As I continue this journey and look to complete the Associate Level program, I know that I can confidently move forward with my career development knowing I am well prepared for whatever the future holds.
I am very honoured and proud be the recipient of the David Boakes Award in Estates, the Balfour Award in Real Estate and the ILCO Honours Certificate.
I would like to thank my husband, my grandmother, family and friends for all of their support during these past two years while I completed the ILCO Associates program. When I first started my daughter was only a few months old and without their support I would not have had the time required to dedicate myself to my courses, while working full time and being a new mom.
I truly appreciate the recognition of my achievement and I thank you for all being here today to celebrate with me.
This past fall, I had the pleasure of being the instructor for the Fellowship Course in Estate Accounting.
When I learned that Anna Bernecka had won this award, having achieved a quite extraordinary mark in the course, I requested that I be allowed to present the award. I have taught this course on a number of occasions and I have always encountered bright, dedicated and engaging students, but, even in that context, Anna was an exceptional student. She very committed to achieving the best that she should, always posing interesting questions in class (which I very much welcome as it adds greatly to the experience of all the students and the instructor) and sending me email questions between classes. It was clear to me that Anna was, as I said, exceptional and I wanted to be here to congratulate her on her achievement by presenting this award.
I was therefore very pleased to be advised by ILCO that I would be permitted to present this award. Then not quite two weeks ago, I learned that Anna Bernecka had suddenly and unexpectedly passed away. This is a great loss, most importantly for her family, but also for her colleagues and for the larger legal community, to which Anna had so much to offer in the future.
Today, Sheila Crummey, with whom Anna worked at Miller Thomson for 16 years, is here at the request of Anna's family, to accept the award and read the remarks that Anna had prepared, which is another testament to her diligence and commitment.
I am very proud & honored to be the recipient of ILCO’s 2016 Award for Excellence in Fellowship.
I would like to express my gratitude to Jim Sweetlove for his guidance and patience in answering all of my many questions and for his expert teachings of the estate and trust accounting program, and to my daughter for understanding why her mom had less time to spend with her but still pushing me to continue developing my success story, even though it was to her own disadvantage.
I began my career in the field of law in 1999 when I was a college co-op student in the firm of a sole practitioner, Cindy L. McGoldrick. I was later hand picked out of my graduating Legal Office Administration class to work at Osler Hoskin & Harcourt. After I left Oslers, I went to work at Donahue LLP in 2000 and a few months later began working for an estates lawyer, Sheila Crummey, with whom I still have the privilege of working with today. During these 16 years, Sheila has taught me almost everything I now know. She is a Certified Specialist in the Estates & Trusts area of law and has great experience in estate and trust planning and administration and I am very grateful to her for teaching me and for answering my questions all these years and for always pushing me to achieve more. Without Sheila’s encouragement and support I would not have signed up for the estate accounting fellowship course and would not be here today. Having completed the estate accounting course has closed the loop for me and I am now happy to be able to perform all duties of an estates clerk which has been a goal of mine for quite some time.
I started off as a Student Member of ILCO in 2014 and am very pleased to have now upgraded to an Ordinary Membership. In 2015, I successfully completed the Associate Level courses and was flattered to received ILCO’s Honors Certificate last year for achieving an honours standing on each of the four provincial examinations for these courses. I am now honored to have won this Award for Excellence in Fellowship for having received the highest mark in a fellowship course given by ILCO last year. Both of these achievements are one of my greatest accomplishments as I did not think that I was able to let alone pass any of these courses – especially the estates accounting fellowship course – while being a single mother and working fulltime, but to achieve the highest grade in Ontario! It feels amazing!
I love working in Estates and Trusts, both on the planning side as well as on the administration side. Every client’s story and circumstances are different and it is always a great privilege to be able to assist clients in planning for their futures and to help them during the emotional time when they are faced with having to administer the estate left behind by their loved ones.
I cannot express enough gratitude to my daughter, my parents, Sheila Crummey, Jim Sweetlove and to the Institute for having played their parts in allowing me to excel in my legal career.
Ontario is very lucky to have the Institute of Law Clerks of Ontario be part of the legal community and all of the members of ILCO, we are all very lucky to have a place which provides us with amazing opportunities to expand our knowledge and achieve greater successes than we ever imagined possible!
Effective March 1, 2017, the Court of Appeal for Ontario adopted a new Practice Direction Concerning Civil Appeals at the Court of Appeal. This Practice Direction will revoke and replace the Court of Appeal’s previously issued Practice Direction Concerning Civil Appeals (effective January 1, 2004, updated November 2008).
Summary of Items in the New Civil Practice Direction
(i) Summary Judgment Appeals
1. Guidelines for Filing Electronic Documents at the Court of Appeal
2. Reference Guide for Citation Practices at the Court of Appeal
3. List of Frequently Cited Civil Authorities
For a copy of this Practice Direction and Related Guidelines click here.
The Advocacy Centre for the Elderly occasionally receives calls from seniors who have friends or relatives living with them in their home. At times, problems may arise between the senior and the person living with the senior, whom we shall call the "occupant". This article will deal with remedies that a senior who owns and lives in their home may have when dealing with an unwanted occupant in their home.
Section 5 of the Residential Tenancies Act, 2006 (RTA)1 provides as follows:
This Act does not apply with respect to,
(i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouse's child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located.
This means that where an occupant shares a bathroom or kitchen facility with the senior, the occupant does not have the protections that are provided to tenants under the RTA. Specifically, the occupant does not have "security of tenure" - meaning a right to stay in the home. Consequently, the senior owner does not have to go to a court or tribunal to get an order to force the occupants to move out of the premises.
If the occupant does not pay any rent, they may be considered to be a "bare licensee". This means that they have permission from the senior owner to be on the property, but this permission can be withdrawn on relatively short notice. If the occupant pays rent to the owner, then it is arguable that the occupant has a contract with the owner. For example, if the occupant paid a certain amount of money for rent for October, it is arguable that there is a contract that the occupant could stay until the end of October. This contract could be terminated if there is a change in circumstances amounting to a breach of contract by the occupant, such as the occupant committing an illegal act on the premises or engaging in other objectionable behaviour.
Seniors who are property owners sometimes act on their own to tell occupants that they will have to find another place to live by a certain date. Notice may also be provided, orally or in writing that the occupant will be trespassing if the occupant remains on the premises after that date. If the occupant does not move out, the senior/owner can contact the local police and ask them to lay trespass to property charges against the occupant. Senior property owners can also change the locks to the premises. However, the occupant's personal belongings are the occupant's and should not be thrown out.
The senior/owner may wish to retain a lawyer to write to the occupant to advise the occupant that they must leave by a certain date. It is not uncommon for the lawyer to recommend that a copy of any letters be sent to the local police, together with an explanatory covering letter, in case the assistance of the local police is required. The police may have a role to play in these situations, in that they may be called upon to "keep the peace." Because there is always a danger that these close living situations may erupt in violence, a preventative visit from a police officer may have a great effect in preventing future harm. If the occupant engages in unacceptable conduct at any time, such as making threats, yelling, shouting or breaching the peace, the police can be called to remove the occupant immediately.
Where problems have arisen between owners and occupants, each party should consider obtaining legal advice.
1 S. 0. 2006, c. 17, s. 5(i)
ILCO wishes to thank Rita Chrolavicius, Staff Lawyer, Advocacy Centre for the Elderly for permitting ILCO to reprint this article.
Lawyers may fear or be skeptical of talk around the rise of artificial intelligence and what it might mean for their profession, but experts say it could actually raise the level of work to be done and drive greater social equality.
At a panel discussion held Feb. 2 in New York at the Legaltech conference, experts from ROSS Intelligence, IBM and Littler Mendelson PC discussed the possibilities of AI for the legal profession.
While the panel members agreed AI is an “umbrella” term for various technologies, the difference between artificial intelligence and traditional systems used today is that the ones they are working with today continuously learn for better understanding.
“The way we go about it at Watson is understanding that it reads and understands like a person,” said Brian Kuhn, Watson sales executive with IBM Global Business Services, who meets with law firms and corporate law departments to do workshops and prioritize a starting place for technology adoption.
“After reading potentially millions of different sources, it generates a hypothesis and puts forward a recommendation supported by evidence.
“It then continues to learn - in a law firm it learns in the context of what you do and how you represent your clients, and never stops learning.”
For law firms, broadly speaking, they benefit most from what the technology tools can deliver for knowledge management. Watson can read everything in the KM system and produce recommendations.
Kuhn said it can elevate the performance of younger lawyers up to the level of more senior lawyers, and through learning not only scale expertise but serve clients in a more tailored way.
Andrew Arruda, CEO and cofounder of ROSS Intelligence, said that while artificial intelligence has been around for decades, it is in its very early days as an everyday application.
He encouraged the audience of lawyers and technology professionals to “not be scared about it” and educate themselves about the technology and how it can “support us in what we do.”
Arruda worked in a Toronto litigation boutique and with the Canadian Department of Foreign Affairs before cofounding ROSS.
He is a graduate of the University of Saskatchewan and University of Toronto.
ROSS Intelligence started in legal research and has been shaving 20 to 30 per cent off research time by implementing its tool. Now it is working on firm KM systems and contract review systems. ROSS can read more than one million pages of case law in a second.
“We’re building out an entire ecosystem of legal AIs with the goal towards a day where you would have a device that you wheel into a room and ask it a question. What is the law regarding this? At this price point, who are the best lawyers to put on the file? It has a dynamic understanding of everything that has been occurring,” Arruda said.
For those who are skeptical, he pointed out that Google, Amazon and IBM Watson are all going “all in” on AI - every major technical giant has said it’s the future. It’s one of the first times in history that is happening.
“Just because AI can mimic tasks we do in law, it doesn’t take away what we do as lawyers,” said Arruda.
“What this technology is meant to do is allow us to specialize in what we do — advocate and advance our clients’ needs.
“We have to stop thinking of it as us versus the machine and, rather, what we can do together.”
He said he is already seeing it make significant breakthroughs in a variety of different tasks.
“A lot of that centres around data retrieval.
“Where we are today is like the Model T of the automobile.
“It is something that can outperform the traditional methods — but we know how these things go - things keep happening that no one would have seen coming,” he said.
Unlike those who predict lawyers will be losing jobs, Arruda said there will be more opportunities for lawyers and, perhaps more importantly, it will provide greater access to justice to those currently shut out of the market due to cost. “
AI systems will do as much as they can.
“The human lawyer doesn’t get removed. In law, because our current system isn’t addressing the full market, there is actually a lot of money out there right now,” he said.
“We also have a duty that those who need access to legal services get it.
So it’s actually a unique situation in law that we haven’t fully penetrated our market to begin with.”
Zev Eigen, global director of analytics at Littler Mendelson, cautioned that AI is not the “panacea” some may think it is and cautioned they don’t need to run to adopt it just because they are afraid.
There are also those, he noted, who are skeptical and think machines are going to replace them.
“It’s somewhere in the middle that is likely the case,” said Eigen.
“The most important part for me is you don’t have to learn to be an engineer, but you do need to learn the difference between using a horse and buggy and using a whip to make the horse go faster and a gas pedal and a steering wheel.
You don’t need to learn how to code; in fact, I think it’s probably a suboptimal use of your time.”
Learning how to be a good consumer of the information generated is also going to be important.
“Be slow, be purposeful in your adoption of technology,” he added. “It’s going to take time to make sure you’re doing it in a wise way.”
Kuhn said the greatest confusion right now is around the term artificial intelligence and is open to interpretation that results in articles that predict robots replacing lawyers.
“Alarmist articles get readers but don’t help lawyers evaluate important, meaningful technology,” he said.
“There is confusion over what AI means and having no precedent for how this is going to turn out is a challenge.”
Natalie Pierce, co-chairwoman of the robotics, AI and automation industry group at Littler Mendelson, said that while she thinks there will be fewer lawyers, to not understand how technology can be used in the legal profession is how lawyers and others in the workforce will be left behind.
She said the world is “unprepared” for what this next wave of technology will do to the future workforce.
She pointed out that when you combine what big data and cognitive computing can do in a 24/7 on-demand economy, you get a very competitive value proposition.
“The biggest problem for us is we don’t have time to adapt and a real need for up-skills training. I’m hopeful maybe AI could be a solution.
“We have eight million unemployed Americans and 4.5 million jobs that go unfilled, so there could be an opportunity to use cognitive computing to make those matches.
“Employers have to look for opportunities so workers don’t get left behind,” she said.
In the nearly two years since the Supreme Court of Canada set out a framework to assess the independence of expert witnesses, there has been an increased spotlight on this kind of evidence, and subsequent lower court decisions have stressed the importance of a judge’s gatekeeper role in this area.
Where there remains a difference of opinion among litigators though is whether it is too difficult to exclude the evidence of expert witnesses altogether on the basis of bias.
“It is very hard to get it excluded,” says Linda Matthews, a partner at Matthews Abogado LLP in Toronto.
Gradually, though, this may change as trial court judges pay more attention to the backgrounds of expert witnesses, suggests Matthews, who practises in the insurance litigation field.
“If counsel presents it in the proper way, I think these arguments [to have experts ruled inadmissible] will be more persuasive,” she says.
The Supreme Court’s ruling in White Burgess Langille Inman v. Abbott and Haliburton Co. in April 2015 stated that expert evidence may pose “special dangers” and courts must ensure that basic standards are met before the testimony is admitted.
The decision, written by Justice Thomas Cromwell, stated an expert’s first duty is to the court and to be fair, objective and non-partisan.
The obligation to be independent is to be considered for admissibility, as well as weight, said the Supreme Court.
However, it explained that the threshold for admissibility will usually be met.
“Once the expert attests or testifies on oath to this effect, the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty,” wrote Cromwell.
Since that decision was released, the Ontario Court of Appeal has applied the White Burgess principles on at least two occasions.
“The decisions on whether a witness is biased, and whether to accept expert evidence, are quintessentially within the trial judge’s mandate,” the appellate court stated in Froehlich-Fivey v. Fivey, a ruling issued last November.
In its ruling last fall in R v. Shafia, the Court of Appeal said that expert opinion evidence must first satisfy the test established more than 20 years ago in R v. Mohan of relevance, necessity, absence of an exclusionary rule and qualifications.
If an expert is found to be impartial, a second gatekeeping step must be followed, which involves the trial judge balancing potential risks and benefits of admitting the evidence.
“The inquiry is equally case-specific. It involves the exercise of judicial discretion, not the application of a bright line rule,” wrote Justice David Watt for the Court of Appeal.
The role of experts in both criminal and civil litigation is continually being refined by the courts, suggests Daniel Reisler, a founding partner at Reisler Franklin LLP in Toronto.
“There is a lot of attention being paid to the use of experts,” he says.
While the fundamental rules about the use of expert evidence are not dramatically different from what the Supreme Court said in 1994 in Mohan, there appears to be a greater tendency for plaintiffs, especially in personal injury litigation, to allege that a defence expert is biased, he says.
The appropriateness of this “needs to be clarified,” says Reisler, who primarily represents defendants in civil proceedings and is a past president of the Canadian Defence Lawyers organization.
In a decision issued last year on a threshold motion in a civil jury trial, a Superior Court judge expressed regret for having permitted a doctor to testify as a defence expert, in a case where Reisler was counsel for the defendant.
Justice Paul Kane referred to “the very high threshold” to exclude an expert for bias under White Burgess. At the same time, the judge stated that he would not qualify witnesses in the future who presented the same approach to their testimony.
The jury awarded a modest amount of damages in that case, Bruff-Murphy v Gunawardena, and an appeal will be heard by the Court of Appeal this spring.
Without commenting on the specifics of the litigation, since it is before the Court of Appeal, an expert who comes to similar conclusions in more than one case is not necessarily biased, says Reisler.
“These are honestly held beliefs on issues that come up again and again,” he explains.
This is especially common in motor vehicle accident litigation, Reisler says.
At the same time, he says, it is crucial in the selection of an expert that the person really is an expert in their field.
“I have never gone out to find an expert to say what I want them to say. Finding the right expert means finding someone who is going to be straight with you,” says Reisler.
Matthews cautions against retaining experts who might testify too frequently in court and generate a large amount of their total income from this work.
“I look for experts who practise in their field, not just people who are expert at being experts,” she explains.
Insurance-based litigation is an area where expert evidence is very common, but the principles set out in White Burgess may also impact other areas, such as in aboriginal law cases, says Toronto lawyer Senwung Luk.
“White Burgess is a reasonable and sensible approach” to dealing with the alleged bias of experts, says Luk, a partner at Olthuis Kleer Townshend LLP in Toronto.
There should be a low threshold for admissibility, especially in the aboriginal law field, and then it is up to the trial judge to determine the weight it is given, he says.
“There are different types of expertise and not always one right answer,” says Luk.
It is not uncommon for the federal government to allege an anthropologist is biased simply as a result of spending many years studying an indigenous community, he notes.
While aboriginal law litigation often takes years before a case is completed, Luk believes the long-term impact of White Burgess may be positive for indigenous communities in the use of experts in these cases.
By Darryl Singer & Andrea Sesum with Meena Saini
Everything you need and want to know about accident benefits (AB), and much more, can be found in this excellent, accessible, and practical reference book.
For almost 25 years there have been numerous significant changes in the Statutory Accident Benefits Schedule (SABS) legislation, the most recent being on June 1, 2016. It’s hard to imagine, given the quagmire of complexity that the SABS legislation has spawned in these years, that there has not been a comprehensive compilation discussing this very important area of law.
I am happy to say that Accident Benefits: A Practical Desk Reference has now filled this vacuum. This book is a must for anyone working in AB law—not only lawyers and paralegals, but also law clerks, adjusters, and claims managers as well.
From its accessible physicality to its in-depth substance, this is a very well-thought-out book.
Physically, it is convenient to carry around. It is lightweight, with a spiral back for easy handling. The chapters are separated by coloured pages, each with its own detailed table of contents and coloured headings to help you find what you need quickly and easily.
Substantially, the writing style is simple and straightforward. Using a conversational tone, it easily guides you through every aspect of handling an AB file from beginning to end. Moreover, it provides you with all the necessary regulations and guidelines, forms, and precedents that are needed in handling an AB file. In addition, this book has links to other relevant online resources that can be conveniently accessed through a password that is provided in the book itself.
Although the principal author of this book, Darryl Singer, represents applicants, three of the substantive chapters (Attendant Care Benefits, Income Replacement Benefits, and Caregiver and Housekeeping Benefits) were written by Stanley Razenberg, who has worked in insurance defence for over six years.
This balance between applicant and insurer perspectives is reflected in what I like most about this book: numerous, very practical practice tips for both the applicant and the insurer throughout the main text, or highlighted in coloured boxes.
Accident Benefits was published in 2016—before the License Appeal Tribunal (LAT) took over from FSCO and the June 1, 2016 legislative changes were put into effect. Fortunately, those changes were anticipated and are referenced throughout the book and highlighted in blue. And, although the book explains how to navigate the FSCO process, most importantly, the majority of Accident Benefits is focused on the SABS and its application in a practical manner that can easily be applied to adjudication at the LAT.
While the webpage has a link to LAT procedures, it would be helpful if the publisher also included links to cases that have been decided at LAT. This would certainly enhance the relevance of the book.
In summary, this in-depth, practical, well-organized book on AB is more essential than ever. With the new changes in the legislation and 90 percent of adjudicators at LAT having little or no SABS experience, counsel, paralegals, adjusters, and claim managers appearing at LAT would do well to have this reference book with them at all times.
As a lawyer for over 34 years, Joyce brings extensive legal, adjudicative and mediation experience to her private mediation practice.
Joyce has adjudicated for over 22 years. For 18 of those years (1995-2013) she was an Arbitrator at the Dispute Resolution Group at FSCO, a quasi-judicial tribunal that had concurrent jurisdiction with the Superior Court of Justice to deal exclusively with personal injury claims pursuant to NoFault accident benefits legislation throughout the Province of Ontario. At FSCO, Joyce presided over hundreds of hearings and conducted thousands of mediations, which earned her the reputation of being a proactive, positive, and persistent mediator of disputes.
As an adjudicator, Joyce made binding decisions on substantive issues, preliminary issues, legal issues, and expense hearings. As a private mediator, Joyce's expertise rests not only in her extensive experience, but lies in her meticulous preparation for each mediation.
Joyce also presided at informal pre-hearings to define issues for the hearing, make rulings on productions and other preliminary matters, as well as facilitate the settlement of the case through mediation and negotiation.
ILCO is pleased to welcome the following upgrades (UG) and new members as of March 1, 2017.
Miranda K. Boodram
Andreia Da Costa
Erica C. Danton Gervacio
Leanne M. Greenaway
Dana M. Kelsie
Ola A. Weinstein
Anita Belmonte (UG)
Quinn Family Law
Jennifer L. Densham
McGibbon, Bastedo, Armstrong & Armstrong
Kelly J. Furneaux
Vandeputte Law Professional Corporation
Amy M. Hamilton
Gowling WLG (Canada) LLP – Ottawa
Laura L. Herd
Borden Ladner Gervais LLP – Toronto
Laura A. Illerbrunn
Steven Cooper, Barrister and Solicitor
Cynise F. Lepage (UG)
Joyce G. Marsden-Oliver (UG)
Cassels Brock & Blackwell LLP
Wendy A. Murray
Stephanie E. Racine
Cunningham, Swan, Carty, Little & Bonham LLP
Jennifer D. Robinson (UG)
Will Davidson LLP
Tanya N. Rumo
Lenczner Slaght LLP
Sarah J. Stuart
Lenczner Slaght LLP
Dominique A. Wall
Borden Ladner Gervais LLP - Ottawa
Tatiana Aksenova (UG)
The Regional Municipality of York
Torkin Manes LLP
Ruth M. De Sousa
Michelle L. Dimmick
Teplitsky, Colson LLP
Melissa J. Maslej
ILCO is pleased to welcome the following new ILCO Certified Experts in their area of law as of March 1, 2017.
Heather Giff (Real Estate)
Brazeau Seller LLP
Zadiha Iqbal (Corporate Law)
Greater Toronto Airports Authority
Natasha Khan (Real Estate)
McCarthy Tétrault LLP
Joseph K. Ng (Litigation)
Willms & Shier Environmental Lawyers LLP
Lisa Trader (Corporate Law)
LaBarge Weinstein LLP
See www.ilco.on.ca for further details. Dates may be subject to change.
ILCO Board of Directors 2019
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