The Power of Perspectives

The Canadian Bar Association

Alexander Gay

Arbitration

Arbitration and the challenge of maintaining confidentiality in Canada

By Alexander Gay November 24, 2017 24 November 2017

Arbitration and the challenge of maintaining confidentiality in Canada

Confidentiality is often touted as one of the key benefit of arbitration.  But the promise of confidentiality is a tricky matter in Canada, where the open court principle is enshrined. The tension arises when courts find themselves in a position where they require access to documents produced during an arbitration proceeding.

And yet, the courts have a role to play in supporting arbitration.  They must be sensitive to the appeal commercial arbitration holds for parties and be mindful that a legal system that allows easy disclosure of confidential information risks undermining it.  What’s more, in a context where the courts are over-burdened with Jordan applications and where arbitration affords an opportunity to alleviate some of these pressures, the courts need to reach a delicate balance between the open court principle and the confidentiality provisions of an arbitration agreement.

In Ontario, the Arbitration Act and the International Commercial Arbitration Act contain a number of provisions that allow arbitration issues to be put before the courts.  The same holds true in almost all other provincial jurisdictions.

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Technology

The use of predictive coding in Canada

By Alexander Gay October 30, 2017 30 October 2017

The use of predictive coding in Canada

 

The last few decades have seen an explosion of electronic information which counsel must manage to meet production obligations under the Rules of Civil Procedure.  These obligations remain intense and costly.  Technology can help to lessen the burden, such as keyword searches.  Perhaps the most promising tool to help us tame the electronic information beast is “technology-assisted review,” also called predictive coding.  However, to reach its full potential will require wider acceptance of this review method by counsel and the courts.

Predictive coding is a method where software analyses documents and ranks them for relevance.  Typically, parties agree on a protocol or a methodology in advance.  A representative sample of potentially relevant documents is then drawn from the database.  We call these “seed documents”.   A lawyer will review the initial sample, then rate its relevance to "train" the software to review the whole production.  There is then further statistical sampling to ensure that the exercise is fully responsive.  Once it reaches an acceptable level of accuracy, the software then categorizes all the documents for the parties, without the parties having to manually review any more documents.  

While it all sounds complicated, it is not. And predictive coding has a number of important advantages. It costs a fraction of what it would to review documents manually.  It is faster and more accurate than traditional document review. 

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Litigation

Expert shopping: Paying the price

By Alexander Gay September 21, 2017 21 September 2017

Expert shopping: Paying the price

 

Expert shopping is an all-too-common practice that undermines the legal system as a whole.  It can it result in egregious miscarriages of justice and undermines the confidence in the judicial system.

In 2015 the Supreme Court sounded warning bells on the misuse of expert evidence in its White Burgess ruling and opened the door for challenging witnesses at the voir dire stage for bias. But we have to consider more radical solutions to temper what can only be described as an unsavory practice by counsel.  The manner in which expert evidence is handled in the United Kingdom offers some clues that may assist us in tracing a path forward.      

The root of the problem is that we pay experts to provide testimony.  When counsel do not get full co-operation, or receive evidence that is not as favourable to their case as they would like, they can move on to the next expert and bury the first expert’s conclusions in his or her files.  Litigation privilege shields them from informing the court on the number of experts that have been consulted.  

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Litigation privilege

Does litigation privilege always apply to internal investigations?

By Alexander Gay May 19, 2017 19 May 2017

Does litigation privilege always apply to internal investigations?

 

Lawyers are often asked whether a given communication is subject to litigation privilege. In answering this question, lawyers have to assess the facts and objectively determine whether the dominant purpose of a communication is in respect of litigation that is contemplated, anticipated or ongoing.

The issue is far more tenuous, however, in criminal matters.   The question is whether all internal investigations in respect of a contemplated, anticipated or ongoing criminal investigation are privileged.  Determining when litigation is being contemplated calls for different considerations that have yet to be fully considered by the courts in Canada.  But a recent decision from England’s High Court recent may come as a surprise to in-house counsel who assume that litigation privilege is more encompassing than it may really be.  

The basic rule is that litigation privilege applies to communications between a lawyer and third parties or a client and third parties, or to communications generated by the lawyer or client for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing.

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Corporate law

The law of corporate responsibility must reflect the new corporate reality

By Alexander Gay April 20, 2017 20 April 2017

The law of corporate responsibility must reflect the new corporate reality

 

The last few months have seen a great deal of activity before the courts on the issue of corporate responsibility. Plaintiffs are struggling to find different legal avenues to attribute legal responsibility between related companies. Two recent cases that have dealt with this issue are Yaiguaje v. Chevron Corporation and Garcia v. Tahoe Resources Inc. The former involves the piercing of the corporate veil, and the latter, the attribution of liability from a subsidiary to a parent company under tort law.

These cases are anchored on legal theories that are not responsive to a new modern corporate reality, where related companies act in concert as a group of companies, yet are allowed to enjoy limited liability. The challenge for the courts will be to find a legal theory that allows companies to act as legally distinct entities, and yet be accountable for the actions of related companies operating within a group of companies in certain circumstances. 

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