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© 2016 The Advocates’ Society.

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present:

The Advocates’ Society presents:

Civil Litigation Skills Certificate Program:

Mastering Winning Discovery Techniques

Monday, October 31, 2016 The Advocates’ Society Education Centre 250 Yonge Street, Suite 2700 Toronto

TOTAL CPD Morning Only: 1.75 Substantive Hours and 1.25 Professionalism Hours.

This organization has been approved as an Accredited Provider of Professionalism Content by the Law Society of Upper Canada.

What is the LAWPRO Risk Management credit program? The LAWPRO Risk Management Credit program pays you to participate in certain CPD programs. For every LAWPRO-approved program you take between September 16, 2016 and September 15, 2017, you will be entitled to a $50 premium reduction on your 2018 insurance premium (to a maximum of $100 per lawyer). Completing 3 new modules of the Online COACHING Centre or one Members Assistance Program e-Course from Homewood Health also qualifies for the credit.** Access the OCC at www.practicepro.ca/occ and Homewood Health at www.myassistplan.com

Why has LAWPRO created the Risk Management Credit? LAWPRO believes it is critical for lawyers to incorporate risk management strategies into their practices, and that the use of risk management tools and strategies will help reduce claims. Programs that include a risk management component and have been approved by LAWPRO are eligible for the credit.

How do I qualify for the LAWPRO Risk Management Credit? Attendance at a qualifying CPD program will NOT automatically generate the LAWPRO Risk Management Credit. To receive the credit on your 2018 invoice, you must complete the online Declaration Form.

STEP 1: STEP 2:

Attend an approved program in person or via webcast; and/or

Self-study a past approved program; and/or

Complete 3 new modules on the Online COACHING Centre* and/or

Completing a Homewood Health e-Course*

Complete the online Declaration form at www.lawpro.ca/RMdec by Sept. 15, 2017. The credit will automatically appear on your 2018 invoice.

You are eligible for the Risk Management Credit if you chair or speak at a qualifying program provided you attend the entire program. You can claim credit for an approved program on an archived webcast, CD-ROM, audio tape or video replay, provided you watch or listen to the entire program and have a copy of the program materials. In this case, you should claim credit for a self-study review on the CPD declaration form.

Where can I access a list of qualifying programs? See a list of approved programs at www.lawpro.ca/RMcreditlist

Whom do I contact for more information? Contact practicePRO by e-mail: [email protected] or call 416-598-5899 or 1-800-410-1013. *Three modules of the Online Coaching Centre courses can be redeemed for one $50 credit once per year. In addition, one Homewood Health e-Course is eligible for the credit on a yearly basis.

This program qualifies for the

2018 LAWPRO Risk

Management Credit

Premium Credit

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© 2016 The Advocates’ Society. These materials may not be reproduced, published, distributed or posted on-line without the written permission of The Advocates' Society.

Civil Litigation Skills Certificate Program: Mastering Winning Discovery Techniques

October 31, 2016

Program Chairs:

Brian G. Grant, Lerners LLP Linda M. Plumpton, Torys LLP

Program Agenda

8:30 – 9:00 Registration (Continental Breakfast provided) 9:00 – 9:05 Welcome and Introductory Remarks

Brian G. Grant, Lerners LLP 9:05 – 9:20 Practical Tips for Preparing Your Witness for Discovery

Daniel Dooley, Dooley Lucenti Barristers and Solicitors

9:20 – 9:55 Panel: Strategic Considerations when Preparing for Discovery Andrew Faith, Polley Faith LLP Rebecca Jones, Lenczner Slaght Royce Smith Griffin LLP Catherine A. Bruder, Bruder Springstead LLP Moderator: Linda M. Plumpton, Torys LLP

9:55 – 10:30 Panel: Conducting a Discovery and Implications for Trial J. Sheldon Hamilton, Smart & Biggar Lisa Talbot, Torys LLP

Moderator: Linda M. Plumpton, Torys LLP

10:30 – 10:50 Demonstration and Commentary: Opening and Closing the Discovery Opening Examination: J. Sheldon Hamilton, Smart & Biggar

Closing Examination: Lisa Talbot, Torys LLP Witness: Linda M. Plumpton, Torys LLP

10:50 – 11:05 Break 11:05 – 11:40 Panel: Post-Discovery Preparation and Obligations

James Bunting, Davies Ward Phillips & Vineberg LLP Sarit E. Batner, McCarthy Tétrault LLP Master Ronald M. Dash, Superior Court of Justice Moderator: Brian G. Grant, Lerners LLP


11:40 –11:55 Demonstration and Commentary: Discovering the Difficult Witness Examining Counsel: Sarit E. Batner, McCarthy Tétrault LLP Opposing Counsel: James Bunting, Davies Ward Phillips & Vineberg LLP Witness: Brian G. Grant, Lerners LLP Observing: Master Ronald M. Dash, Superior Court of Justice

11:55 – 12:00 Concluding Remarks Linda M. Plumpton, Torys LLP


Mastering Winning Discovery Techniques

Table of Contents Practical Tips for Preparing Your Witness for Discovery TAB 1 Note paper Practical Tips for Preparing Your Witness for Discovery Daniel Dooley, Dooley Lucenti Barristers and Solicitors Jessica Connell, Dooley Lucenti Barristers and Solicitors Strategic Considerations when Preparing for Discovery TAB 2 Note paper

List of Questions for Automobile Accident Examination of Plaintiff Catherine A. Bruder, Bruder Springstead LLP

Conducting a Discovery and Implications for Trial TAB 3 Note paper Demonstration and Commentary: TAB 4 Opening and Closing the Discovery Note paper Finch v. Condominium Corporation #123: Summary of Case Post-Discovery Preparation and Obligations TAB 5 Note paper Demonstration and Commentary: Discovering the Difficult Witness TAB 6 Note Paper Relevant Readings TAB 7 Conducting an effective oral discovery in 7 hours or less Master Joan Haberman, Superior Court of Justice Top Ten Tips for Drafting and Implementing a Discovery Plan J. Patrick Brown, McLeish Orlando LLP Preparing and Conducting Time Efficient Discoveries J. Patrick Brown, McLeish Orlando LLP Considerations When Preparing for Discovery Troy H. Lehman, Oatley, Vigmond LLP Faculty Biographies TAB 8

TAB 1


Practical Tips for Preparing Your Witness for Discovery

Daniel Dooley, Dooley Lucenti Barristers and Solicitors

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Practical Tips for Preparing Your Witness for Discovery

Daniel Dooley, Dooley Lucenti Barristers and Solicitors Jessica Connell, Dooley Lucenti Barristers and Solicitors

Three scenarios (the first two actually happened)

(i) the undisclosed document

The plaintiff is testifying at a personal injury action. Defence counsel has taken the

plaintiff through the documentary evidence as disclosed in the plaintiff’s Affidavit of

Documents. After doing so, defence counsel asks the plaintiff what he did after the

accident. The plaintiff responds that he sent a text message to a family member. The

text message is not listed in the plaintiff’s Affidavit of Documents. Defence counsel

asks plaintiff’s counsel why there is no reference to this electronic document in the

plaintiff’s Affidavit of Documents. Plaintiff’s counsel responds: “this is the first I have

heard of it.” Plaintiff’s counsel refuses to undertake to produce the document,

because plaintiff’s counsel has never seen it. He does not know what his client wrote.

He wants to see it so takes the requested undertaking “under advisement” although

the text is obviously relevant. A motion ensues. Plaintiff’s counsel is embarrassed in

the face of the court for not knowing of an obviously relevant document.

(ii) the un-reviewed document

a) Defence counsel is examining the plaintiff for discovery in a professional negligence

action. The plaintiff alleges that he was never warned by his advisor of the risks of

closing a purchase. Defence counsel produces a text message warning of just that.

The plaintiff testifies that he has never seen the document even though it is listed in

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Schedule “A” of the defendant’s Affidavit of Documents and has been produced to

the plaintiff’s lawyer. After reviewing the document, the plaintiff testifies

unconvincingly that he must not have ever received it.

b) In another personal injury action, the plaintiff is being asked about his ability to

work outside the home:

Q. Do you have any work capacity at all? A. Not at this time, no; with a level of pain that I have, no. Q. You go to see Dr. (omitted) for treatment? A. Yes Q you follow her recommendations? A. Yes. Q. Okay (shows the plaintiff the doctor’s clinical note for a certain date). She seems to think that you are capable of working part-time. Do you know that? A. No, I did not know that that was said.

(iii) “Woodshedding”

The defendant is asked to describe the events in issue. She testifies to a series of events.

She is confronted with a statement she gave some months previously which is inconsistent

with her testimony on discovery. When plaintiff’s counsel asks the defendant to explain

why her testimony on discovery is different from what she said some months earlier, she

responds: “my lawyer explained to me that what I had said at that point was not really

accurate, and that this is what I should say today.”

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The importance of examinations for discovery cannot be over-stated

Cases are won and lost at the examinations for discovery. Examination for discovery has been

described as the single most important contribution to the success of litigation.1 This applies not

only to your examination for discovery of the opposing party, but also to your client’s

examination for discovery. John Olah wrote in The Art and Science of Advocacy:

Do not underestimate the importance of your client’s examination. It can offer important insights into your

opponent’s case. The questions may disclosure your adversary’s theory of the case and how he intends to

prove it at trial. The examination will also allow you to assess the competence of your opponent. But more

important, the examination will help you measure how your client will fare under cross-examination at trial.

It may also reveal weaknesses in your client’s testimony. Always listen carefully to, and analyse, your client’s

examination with these objectives in mind.2

Thorough preparation of your witness is therefore essential. You want your client to put his or

her best foot forward. The following paper provides an overview on how to prepare your client

and identifies some of the ethical pitfalls along the way. Attached as appendices are a number of

precedents that we hope you will find useful in your preparations.

Get all the documents

We stress to our clients the need for all the relevant documentary evidence: the client is told

that we need every “scrap of paper”, every text, every email, every social media posting. We

demand the same from opposing counsel. We almost always refuse to schedule discoveries

1 F. MacIsaac, “Examinations for Discovery” (1967) 10 Can. B.J. 224, cited in J.A. Olah, The Art and Science of Advocacy (Toronto: Carswell, 1990) (loose-leaf) Vol. 1,ch. 5 at 5-4 – 5-5 [The Art and Science of Advocacy]. The Art and Science of Advocacy at 5-78 - 84 is an excellent resource, as is Martha Sandor, “Discovery Practice: Preparing your Witness for Discovery” (Paper delivered at the Continuing Legal Education Society of British Columbia’s Discovery Practice program, Vancouver, May 2013). 2 The Art and Science of Advocacy, ibid at 5-12.

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(unless the client instructs us to the contrary) until we are satisfied that we have full documentary

disclosure from the opposing litigant(s).

We report to the client in writing concerning the documentary evidence. We ask the client to

comment. We review any questions or concerns.

By the time the client is examined for discovery, there should be no surprises. The client should

never testify that she or he is seeing a document for the first time. The client will have already

discussed with you the client’s evidence with respect to any specific document and particularly

those that appear inconsistent with the client’s version of events.

Write to your client

Once the discovery has been booked, notify your client. Confirm who will be attending with the

client at the client’s examination for discovery. Confirm when you will meet to prepare.

Our sample letter is attached as Appendix “A”. We also send the client a “Discovery Attendance

Confirmation Form” that we ask the client to sign and return. We never want a client’s non-

attendance at the client’s examination for discovery to be attributed, rightly or wrongly, to our

failure to notify the client as to when and where the client is being examined for discovery. Our

sample “Discovery Attendance Confirmation Form” is attached as Appendix “B”.

We include with our letter a more detailed summary on what to expect, how to prepare and how

to give evidence. Our summary, at Appendix “C”, is modelled on John Olah’s suggested

memorandum to client in The Art and Science of Advocacy.3

3 Supra note 1 at 5-78 – 5-81.

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Our instructions include reference to “helpful tips”. In reality, these are not “tips” or suggestions.

They are “rules”, even if we do not call them such so as to avoid causing undue stress to the client

(“I must remember the rules”) at an early stage of the lawsuit. We reiterate and emphasize the

“rules” when we meet with the client to prepare for the client’s examination for discovery.

Meet with your client

Of course, the lawyer who will attend with the client at the client’s examination for discovery

must meet with the client before the client is examined for discovery – and, if at all possible (and

it should almost always be possible) - not just the morning of the discovery. Clients are anxious.

Part of the task is to reassure and relax the client. The client should not be left to fret about what

is for many an unfamiliar and unsettling process notwithstanding your previous communications

to the client concerning the process.

Indeed, and particularly where the documentary evidence is extensive, you will need to meet

with the client for a lengthy period of time and/or on several occasions to prepare. These

meeting should be scheduled for as soon as there is sufficient documentary evidence to review

and again as the client’s examination for discovery comes near.

Review the logistics

As noted, many clients have never been examined for discovery. Depending on the client’s level

of sophistication and experience, begin by explaining the basics. Explain that discovery is not a

court hearing in front of a judge but rather takes place in a board room, describe the room set

up and outline the different people who will be in attendance - you, the other lawyer and a court

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reporter. Describing these seemingly trivial details can go a long way to help a client feel more at

ease.

Explain to the client that before the questions start, he or she will be asked by the court reporter

to swear or affirm that their evidence will be truthful. Remind the client that the evidence is being

recorded by the court reporter and may later transcribed and that hand gestures, head shakes,

“umm” and “ahh” do not translate well on a written transcript.

Explain the purpose of discovery

Once you have set out the logistics, explain in more detail about the nature and purpose of

discovery.

Discovery helps each side understand the strengths and weaknesses of their respective cases.

Explain that the objective of discovery is for each side to learn more about the evidence so that

no party is surprised at trial. Because of this, unlike on TV or in the movies, in most cases, there

is no “smoking gun” moment in the courtroom.

Emphasize to the client that their answers will be under oath. Explain that one of the purposes

of discovery is to obtain admissions under oath which may be used against the client at trial.

Also explain that one of the purposes of discovery is for the opposing counsel to the client’s

strengths and weaknesses as a witness. The client should present as trustworthy and likable.

Making a good impression may encourage settlement.

Confirm your role. You cannot help the client to answer the question, but you may object to a

question. Tell the client that if you object, they must stop speaking until the objection is on the

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record and any discussion between counsel concerning the objection is completed. Explain to

your client that you cannot speak to them about their evidence on breaks, etc. once the

examination is underway.4

Be mindful of your professional obligations. Rule 5.1-3.1 of the Rules of Professional Conduct

provides:

Discovery Obligations

5.1-3.1 Where the rules of a tribunal require the parties to produce documents or attend on examinations for discovery, a lawyer, when acting as an advocate

(a) shall explain to their client

(i) the necessity of making full disclosure of all documents relating to any matter in issue, and

(ii) the duty to answer to the best of their knowledge, information, and belief, any proper question relating to any issue in the action or made discoverable by the rules of court or the rules of the tribunal;

(b) shall assist the client in fulfilling their obligations to make full disclosure; and

(c) shall not make frivolous requests for the production of documents or make frivolous demands for information at the examination for discovery.5

Review “the rules”

Review the “rules” you communicated to the client when you introduced the client to the

litigation process. As noted, you will want to reiterate, and emphasize, these “rules”:

The client must always tell the truth - no exceptions;

The client must listen carefully to the question. If the client does not understand the question, the client should so indicate. You will tell the client that if this occurs, you will ask for clarification. You will tell the client that you will intervene if a “question” is, in reality, a series of questions that opposing counsel should break down. You will tell the client that you will object if a “question” is, in reality, a submission or argument that should be saved for the courtroom. You will object if the question is based on a false premise or assumption;

4 The Law Society of Upper Canada, Rules of Professional Conduct, Rule 2. 5 Ibid, Rule 5.1-3.1.

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The client must always let opposing counsel finish asking each question. The client must then think about the question and then answer. A discovery is not a race. It is a time for thoughtful consideration. Advise the client that the transcript does not show how long the client paused before answering the question and that you will intervene if opposing counsel suggests on the record that any inference should be drawn from the length of time it took the client to answer;

Emphasize to the client that the preferred answer is a short answer so long as it is responsive to the question. Tell the client to answer completely, but as succinctly as is appropriate. Tell the client that she or he is not required to explain or justify an answer;

The client must be cautioned against “rambling” answers, storytelling or lengthy narratives, conversing on the record with or engaging on the record in banter with opposing counsel;

The client must be told on a “no exceptions to the rule” basis that the client must never argue with opposing counsel, never insult opposing counsel, never disparage anyone, including the opposing litigant(s) or unfavourable witnesses, never be sarcastic, never be evasive and NEVER lose your temper. Always be polite. Always answer the question;

The client should be told that lawyers have different styles of questioning. Most will want to portray themselves as confident. This may take the form of aggressive questioning, a skeptical demeanour, engaging in conversation or even feigned (or sometimes real) bumbling. The client must be told to ignore opposing counsel’s demeanour and focus solely on listening to the question, answering it as succinctly and completely as possible and leaving to you any objections or interventions that become necessary because of counsel’s behaviour;

The client must be told that “telling the truth” includes testifying “I don’t know” or “I don’t remember” if this is the truth and never to speculate or guess;

The client must be told, and must practice with you, distinguishing between what the client knows firsthand (direct knowledge) as against what the client has been told or believes for some other reason that the client will discuss with you;

The client must regard as another “no exceptions rule” that the client must never answer a question that is not asked; that to do so gives the appearance of the client wanting to argue the case or desperately wanting to persuade opposing counsel or litigant – either of which diminishes the client in the opposition’s eyes.

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You should tailor your “rules” to your client’s personality.6 For example, a nervous and

unsophisticated witness will likely need lots of explanation and reassurance. You will want to

emphasize to this type of witness that you will help them prepare and by the time that the

preparation is complete they will feel more comfortable and more confident. By contrast, a more

self-confident or arrogant personality may need to be reminded that they need to focus on

answering the questions put to them, not argue with opposing counsel, etc.

In my experience, professional litigants, particularly when they are defendants, need to be told

and then reminded that they are not to argue their case in answering questions on discovery, any

more than they are to argue their case in the witness box if the case goes to trial.

Similarly, if you have past experience with opposing counsel, tell your client how counsel

generally conducts his or her discovery. If opposing counsel has an aggressive style, the client

may need to be reminded to keep their cool. By contrast, if in your experience counsel is more

laid-back and likeable, explain that a standard technique is for counsel to be friendly to put the

client at ease and caution them from volunteering too much information as a result.

Preparing the witnesses

Once the client is oriented to the logistics, purposes of discovery and the “rules” for giving

evidence, you will review the facts of the case from the client’s perspective. You will have already

developed your “theme” of the case. Review the pleadings. Review once again all the relevant

6 Martha Sandor, supra note 2, describes five categories of client - The Nervous Ned, The Know It All, The Don’t Worry, Be Happy, The Seriously Injured and the Perfect Witness – and provides helpful tips for each: p. 1.1.3-4.

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documentary evidence. Discuss the client’s evidence in relation to each document. Highlight key

issues and potential questions on who, what, where, when and why.

Review in as much detail as necessary every critical document. The client’s prior statements must

always be reviewed and discussed in the context of the pleadings, the client’s version of events

and your theme of the case. Bring the client’s attention to passages in any document or

statement that might be the subject of examination. Consider documentary and other evidence

from the perspective, and anticipated theme, of the opposition. Prepare your client to answer

questions in the manner that the question is likely to be framed or phrased by opposing counsel.

Discuss in as much detail as possible, and for whatever time it takes, any information from your

client that is not, or appears not to be, consistent with any single piece of documentary or other

evidence (for example, the client’s prior statements, the evidence of apparently independent

witnesses or the assumptions on which experts have based reports).

Some documents contain highly sensitive information. For example, medical records may include

reference to issues of sexual intimacy, substance use or emotional vulnerability. Prepare your

client for the possibility, or probability as the case may be, that personal and perhaps

embarrassing questions may be asked. Ask the questions yourself, assuring the client of the

utmost confidentiality between you. The documentary evidence must be reviewed with the

client even if irrelevant to the issues in the pleadings, if only to alert the client to the possibility

that a question may be asked on a matter of sensitivity. Reassure the client that you will be right

beside them to object to any question that calls for an answer that is not relevant to the case as

pleaded.

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Reassuring the client in this regard will help the client remain composed if irrelevant questions

are asked as to matters that are sensitive to the client.

Some authors recommend questioning the client as if you were conducting a mock examination.

We do not generally conduct a full mock examination but we do ask the client pointed questions

on areas that we would expect opposing counsel to explore so that the client is prepared to

respond to any apparent inconsistencies in those documents or prior statements.

Ethical Issues – Proper Preparation or “woodshedding”

The client’s paramount obligation to “tell the truth”, and counsel’s obligations as an Officer of

the Court are to be understood in the context Rule 5.1-2 of the Rules of Professional Conduct:

When acting as an advocate, a lawyer shall not

…

(j) improperly dissuade a witness from giving evidence or advise a witness to be absent,

(k) knowingly permit a witness or party to be presented in a false or misleading way or to impersonate another,

“Woodshedding” (or “horse shedding”) is said to have its origins in the era when wood and/or

horse sheds were located next to or near the local courthouse. Lawyers used the nearby shed as

a place to talk to witnesses before trial.7

7 E. Carter, Horse-shedding, Lecturing and Legal Ethics <http://www.kentlaw.edu/faculty/rwarner/classes/carter/2008_lectures/Horseshedding,%20Lecturing%20and%20Legal%20Ethics.pdf>

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The term is now used to graphically describe lawyers who unethically instruct a client or

independent witness as to the “proper” testimony to give.8 In essence, the witness is “coached”

by counsel to testify in the manner most favourable to that counsel’s case.

Master McLeod, as he then was, has described telling a witness what answers to give as “the

gravest impropriety” and explained:9

There is a clear distinction between proper preparation assisting the witness to understand the issues and the documents, the nature of questions that will be asked, reviewing the documents and referring the witness to material that will refresh or assist his or her memory and improper “woodsheding” in which the answers are provided or suggested.10

Woodshedding is sometimes suspected, but difficult to prove because of solicitor-client

confidentiality. Perhaps not surprisingly, there are few cases addressing the issue. In one case,

the court refused to remove two prosecutors despite a concern having arisen as to

“woodshedding”, noting that “to reach such a conclusion, the court would have to adopt a

speculative conspiracy theory without evidence to support it.”11 On the other hand, an

Immigration and Refugee Board appeal adjudicator concluded after reviewing the documentary

evidence and the oral testimony that certain witnesses’ evidence “appears well-rehearsed,

carefully scripted or they are well woodshedded or both”.12

Woodshedding your client is unethical. But woodshedding is very different from preparing your

client to be confronted with unfavourable independent evidence, inconsistencies in the client’s

8 R. v. Maragh, 2003 CanLII 23212 (ON SC) at para. 37 [Maragh] 9 Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2006 CanLII 35616 (ON SC) at para. 18. 10 Ibid, at fn 11. 11 Maragh, supra note 8 at para. 37. 12 Khan v. Canada (Citizen and Immigration), 2009 CanLII 80820 (CA IRB) at para. 37.

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previous statements or contradictions in the documents – not so as to tell the client what to say

but, rather, to ensure that the client has a thorough understanding of the issues, the

documentary and other evidence and potential areas of questioning.

Privilege and the review of prior written statements or other documents

Reviewing privileged documentation to refresh the witness’ memory in preparation for

examination for discovery does not amount to a waiver of the privilege.13 For example, in Knox

v. Applebaum Holdings Ltd., the court confirmed that a written statement made by the

defendant's property manager to her insurer was litigation privileged. 14 The court went on to

hold that the privilege was not waived by the witness' review of the statement prior to her

examination for discovery.15

13 Wroniak v. Allstate Insurance Co. of Canada, 1997 CarswellOnt 424. 14 Knox v Applebaum Holdings 2012 ONSC 4181 (CanLII) at para. 6-8. 15 Ibid at paras. 9-14.

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APPENDIX “A” – SAMPLE LETTER TO CLIENT

October 31, 2016 John Smith, President Hotel Transylvania Group, North America Division Toronto, ON Dear Mr. Smith: Re: Hotel Transylvania Group, North America Division ats Jonathan Harker Our File No.: 12345

We confirm that your Examination for Discovery has been scheduled for Friday, January 13, 2017 commencing at 10 a.m. The discovery will take place at Top Notch Court Reporting Services, 10 Any Street, Barrie, Ontario.

An Examination for Discovery is a pre-trial hearing at which the parties being examined give their evidence under oath. The facts learned during the examination for discovery process, either documentary or oral, are to be kept confidential and not disclosed except to us when answering questions or otherwise participating in judicial proceedings in this litigation, such as your examination for discovery, at mediation or at trial. Closer to the date, we will call you to schedule an appointment for me to meet with you to prepare you for your discovery. In order to assist you in preparing for your upcoming examination for discovery, we enclose Examination for Discovery Instructions for your review and information. We will discuss this further when we meet. In the meantime, please return the enclosed Discovery Attendance Confirmation form in the enclosed self-addressed, stamped envelope at your earliest convenience. Yours very truly,

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APPENDIX “B” – DISCOVERY ATTENDANCE CONFIRMATION FORM

John Smith, President Hotel Transylvania Group, North America Division Toronto, ON Re: Hotel Transylvania Group, North America Division ats Jonathan Harker Our File No.: 12345

I confirm that I will attend on the examinations for discovery arranged for for Friday, January 13,

2017 commencing at 10 a.m. at the offices of Top Notch Court Reporting Services in Barrie and will

attend at the reporter’s office on that date at 9:30 a.m.

DATED this day of , 2016.

John Smith

(Contact Phone Number)

Please include your telephone number so that we may contact you in the event of any change

or cancellation on short notice)

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APPENDIX “C” – EXAMINATION FOR DISCOVERY INSTRUCTIONS We will be meeting with you shortly to prepare you for your examination. At the meeting, we will explain the discovery process to you in more detail and go over your testimony with you. We will also explain to you at that time your obligations at the discovery. HOW YOU SHOULD DRESS FOR THE EXAMINATION Most cases settle before trial. The examination may be the only occasion on which you will meet the opposing lawyer. It is important that you create a favourable impression. The lawyer will be judging you not only on what you say, but also on how you appear. He will be assessing how you will conduct yourself at trial and your honesty, truthfulness, and your appearance. For this reason, you should be dressed appropriately, as though you were attending a formal occasion. SOME HELPFUL TIPS 1. Be full, fair, and honest in your answers. First and foremost, tell the truth. Do not try to help

your case by embroidering your evidence; this will only hurt you. The worst mistake you can make is not to tell the truth.

2. Do not guess. If you are unsure about an answer, tell the examiner that. Err on the side of

caution. Be conservative in your answers. It will be difficult to change your evidence later, and you will have to explain why you have changed your testimony. Stick to the facts.

3. Do not volunteer information. However, be sure that you have conveyed your point to the

examiner fully and fairly. 4. Be polite and respectful. 5. Do not lose your temper. Some examiners will try to bully you, hoping to make you angry

and to obtain a bad answer. Do not fall into this trap. We will be with you throughout the examination to assist you.

6. If you do not understand or if you did not hear a question, ask the lawyer to repeat or to

rephrase his question. Take all the time you need to answer the question. If you are unable to give the answer but you have some means of acquiring the information, we can undertake to give the answer at a future time.

7. Many of us suffer from the bad habit of not listening to the question or not answering the

question that is being asked. Listen to the question carefully. Answer the question; do not give speeches.

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8. Trick questions. One of the favourite trick questions is whether you have discussed your testimony with anyone before coming to the examination. In preparation for the examination, you will have discussed your evidence with your lawyer; this is not only normal, but perfectly proper. Do not be afraid to tell the examiner this. However, you are under no obligation to tell the opposing lawyer what was discussed.

9. You may be asked to give estimates. Most of us are not very good at giving estimates. Do

your best. Be sure that you tell the examiner that it is only an approximation. 10. You may be asked about any statements, testimony, or documents you prepared on an

earlier occasion about the case (lawyers call these "previous statements"). If what you said on the previous occasion was true, tell the opposing lawyer. If, for some reason it was mistaken, do not be afraid to point this out to the examiner.

11. Your lawyer will be with you throughout the examination to protect your interest. His or her

function is to make sure that you are not asked any improper questions. If your lawyer objects to a question, listen to the objection and follow his or her instructions given to you. You cannot consult with your lawyer during the examination.

12. Speak slowly and clearly. Remember that the reporter is trying to record every word you

say. The reporter cannot record a non-verbal expression such as shaking your head or motioning with your hands.

13. Do not memorize your testimony. All that is expected from you is your best recollection.

TAB 2


Strategic Considerations when Preparing for Discovery

Andrew Faith, Polley Faith LLP

Rebecca Jones, Lenczner Slaght Royce Smith Griffin LLP Catherine A. Bruder, Bruder Springstead LLP

Moderator: Linda M. Plumpton, Torys LLP ________________________________________________________________________________________

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List of Questions for Automobile Accident Examination of Plaintiff BACKGROUND Full name Age (date of birth)

Address When moved there? Living where as of date of loss? How long? Live with who?

Married? How long married? (ITR notes married until 2010). (separated? counselling? Separation agreement?)

Children? names, dates of birth, healthy? students, working, etc.

Describe current accommodations (size of home, lot, number of bedrooms, bathrooms. Finished basement? Tenants?) Currently working? Where? Income, hours, tasks, remuneration. Currently doing any volunteer work? LIABILITY Confirm date of MVA. Time of day Weather Visibility Location People in vehicle. Type of vehicle


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Valid licence? Still? Drugs/alcohol/medication Observations of other car before the impact? location, speed, movement, lane, direction. Your speed, direction, etc. Turn Signal? Facing what direction? How many lanes? Location of vehicles. Traffic signals, stop sign? Colour of traffic lights when first observed, when entered I/S, at time of MVA Damage to vehicles: amount, location. Secondary Impacts? Honking horns, screeching of brakes before the accident? Evasive measures taken? Location of vehicles at rest Vehicles moved after MVA? Before police arrived? Discussions with others at scene: other driver, passenger, your passengers, fire fighters, tow truck drivers, witnesses, police. Activities at scene after accident. INJURIES Height Weight at D/L and current weight. Ambulance? Hospital? when, how long. list complaints at hospital. treatment. discharge instructions.


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NEXT MEDICAL TREATMENT Family Doctor? how long treating. when attend. complaints to doctor. List all complaints related to the car accident When did they start? What medical treatment did you seek for those injuries/problems? Have any of those complaints resolved completely? Go through each one asking about severity, etc. and improvement, and restrictions in movement, etc. due to pain TREATMENT

Physio Rehab Chiro Medication – prescription printout Any other treatment

Current complaints Honest and accurate with the health professionals that you’ve seen since the accident? Described all of your past health accurately? Described complaints accurately? PRE-ACCIDENT HEALTH All health problems prior to the car accident Prescription medication in the three years prior to the accident? Physiotherapy, chiropractic treatment or massage prior to the accident? Did you ever have any counselling for depression, anxiety or emotional upset? Treatment for psychiatric issues, depression, anxiety? Counselling of any sort? Prior MVA or injuries? prior hospitalization or surgery? Traumatic events pre-mva? Go through childhood, parents separation, upbringing, school, relationship with siblings, any abuse (mental or physical). Ever involved with the law? When? Criminal record?


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Drugs – when started, what kind, ever involved in treatment, rehab? - still taking any drugs in the two years prior to the accident? SUBSEQUENT INJURIES, ETC. Since MVA ever involved in any other car accidents? Have you sustained any other injuries? Have you developed any other health problems? Have there been any events in your life that have caused you emotional upset, anxiety, etc.? ACTIVITIES – PRE AND POST Household chores. How big is your apartment. Any assistance currently with cleaning, cooking, laundry, grocery shopping? Any other assistance with your activities currently? Outdoor chores? Social groups Sports clubs, teams Community involvement Crafts, hobbies Spare time Holidays, trips Post–mva – any restrictions on activities childcare


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EDUCATION Highest grade achieved prior to accident Any courses, training beyond that? EMPLOYMENT-PRE Employer When started – plan to keep working there? till what age? Previous work history Number of hours Rate of pay Go thru income tax returns Get EI file Social assistance/ODSP/Ontario Works EMPLOYMENT-POST ITRs Training courses Number of weeks, hours Nature of course How did you do Attempt to work Applications for job Current CV IF WORKING: number of hours, rate of pay, employment file, etc. Intentions before the accident re: employment Income since MVA


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Accident benefits insurer pay IRBs? Any disability plan either private or through work Any insurance for treatment, medication, etc. Unemployment insurance benefits? Any other form of benefits or income (mortgage?) CPP? MISC. Accident benefits – get complete file and letter from AB insurer setting out benefits. Deemed catastrophic? Current payments? STD and LTD benefits UNDERTAKINGS

Property Damage documents and colour copies of vehicle damage pix

Ohip summary – 3 years prior

C N R of family doctor – 3 years prior

Employment file

Social Assistance File if any

WCB file if any

UI file or EI file (pre and post accident)

Prescription print-out – 2 years prior

CN&Rr of all treating doctors

Hospital records and Emergency call report

CD containing x-ray or MRI

AB file – complete + letter from AB re: benefits paid to date.

STD and LTD file

CPP

TAB 3


Conducting a Discovery and Implications for Trial

Opening Examination: J. Sheldon Hamilton, Smart & Biggar

Closing Examination: Lisa Talbot, Torys LLP Moderator: Linda M. Plumpton, Torys LLP

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TAB 4


Demonstration and Commentary: Opening and Closing the Discovery

Examining Counsel: J. Sheldon Hamilton, Smart & Biggar

Opposing Counsel: Lisa Talbot, Torys LLP Witness: Linda M. Plumpton, Torys LLP

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Finch v. Condominium Corporation #123: Summary of Case* On the evening of December 11, 2005 Donna Finch was visiting friends who lived at a condominium complex located at 1111 Langley Road in Toronto, with her husband, Will Finch. The Finches were there for a doubles table tennis game in the building’s recreational centre. Will, an avid table tennis player, was playing with Earl Tang, Kim Anderson and Ken Kraft. Earl and Kim were residents of the building. Ken and the Finches were frequent guests. Donna, who was still a beginner to the sport of table tennis, was watching the game. The ping pong table was set up in the center of a squash court, located in the basement of the building’s recreational centre. The squash court was converted to a table tennis facility, at the request of the building residents, because the building’s multi-purpose game room was too small. Table tennis was very popular with the building residents and their guests. There was a second squash court on site that was used for recreational squash games and tournaments. During play, Kim had to excuse himself for a few minutes. Donna was asked to substitute until he returned. She joined the game as Ken’s partner and play resumed. As Donna attempted to return a serve, she fell and struck her head on the rigid wall of the squash court. She sustained serious injuries, including a mild brain injury. The case is proceeding to trial on the issue of liability only (the parties have come to an agreement on damages). At the time of the accident, Donna was 61 years old and worked as a sales representative in Toronto. Plaintiff’s Theory The plaintiff’s theory of the case is that Ms. Finch was injured because the condominium failed to take reasonable care and precautions to ensure the condition of the court was safe for use by residents and their guests for games of recreational ping pong. The proximity of the hard squash court wall to the sides of the ping pong table was an identifiable hazard, particularly given the lateral and lunging movements that are typical of players in doubles table tennis. There were no mats or partitions to shield players from the surrounding squash walls. Defendant’s Theory The defendant’s theory is that the condition of the court was safe for recreational ping pong use. The court provided plenty of space on all sides for recreational ping pong play. No previous accidents had occurred at the court. The defendant alleges that the plaintiff fell because she was not wearing appropriate footwear at the time of the accident. Instead of table tennis, or other sport shoes, Ms. Finch was wearing a pair of ladies leather boots with a high-heeled sole. *This fact situation and the accompanying materials were prepared by, and/or with the

assistance of, and are reproduced with the permission of Advantage Forensics Inc.

TAB 5


Post-Discovery Preparation and Obligations

James Bunting, Davies Ward Phillips & Vineberg LLP

Sarit E. Batner, McCarthy Tétrault LLP Master Ronald M. Dash, Superior Court of Justice

Moderator: Brian G. Grant, Lerners LLP ________________________________________________________________________________________

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TAB 6


Demonstration and Commentary: Discovering the Difficult Witness

Examining Counsel: Sarit E. Batner, McCarthy Tétrault LLP

Opposing Counsel: James Bunting, Davies Ward Phillips & Vineberg LLP Witness: Brian G. Grant, Lerners LLP

Observing: Master Ronald M. Dash, Superior Court of Justice ________________________________________________________________________________________

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TAB 7

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Conducting an effective oral discovery

in 7 hours or less

Prepared by Master Joan Haberman and revised October 2015

In April 2010, Rule 31.05.1(1) was introduced. Since that time, the ability to conduct a

discovery as an event consisting of endless hours of pummelling a witness with every

conceivable question has gone by the wayside. Unless you have the consent of all parties or

leave of the court, you have a total of only 7 hours to examine all parties you are entitled and

want to examine for discovery, so economy is critical.

For most cases involving only 2 parties, 7 hours is usually more than enough. But this is

Toronto, so many of you likely find yourselves regularly embroiled in multi-party litigation,

where you haul volumes of documents to the examiner’s office. In such situations, most counsel

will recognize that more time will be needed and consent will be forthcoming.

But what if you have “that guy” on the case – that unreasonable lawyer who never consents to

anything? Or what if one of the parties is self-represented and assumes anything that you want

can’t possibly be good for him?

That puts you in the position of having to pay a visit to masters’ court to seek leave for further

time. You know you will have to convince us that you really need more time and that you really

need as much more time as you propose.

Rule 31.05(2) sets out the criteria you will have to address in order for us to consider the

request – be sure you address them as we will be looking for evidence to support the request to

extend in all but the most obvious cases.

In appropriate cases, you will get more time, but only as much time as you establish you need.

So, for those of you who have a spontaneous approach to the practice of law, be aware that you

can no longer show up at the discoveries, take your time to consider what you really need to

know, rifle through your documents and hope inspiration comes. An examination for discovery

is not the kind of event that you should ever approach as an improvisational performance. Cases

are won and lost on effective discovery techniques so you should always strive to use your time

at the examiner’s office well.

In view of our current Rule setting a time limit for this event, the clock will be ticking so you

need a real strategy to make the most of the time you have and, when required, to convince

the master as and when you believe more time is needed. In order to do that, you and your client

must be well prepared.

Some of you already do a lot of what I am going to tell you, but from excerpts from a number of

transcripts I have read in the last few years, it seems to me that a refresher course is clearly

needed.

So start the process by bearing in mind what you are trying to accomplish at a discovery:

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find out the other side’s version of events;

narrow the issues for trial; and

get admissions, both to narrow issues AND to weaken your opponent’s case, thereby

strengthening your client’s position.

Unlike trial, this IS the time to ask questions you don’t know the answers to – you are trying

to figure out the case you have to meet so ask away.

This paper deals with four areas and each is important:

Preparing yourself;

Preparing the client;

What to do at the table; and

Following through back at the office.

A. PREPARE YOURSELF Being a litigator is not a job you can do by rote - it is not formulaic even if you work only in one

discrete area of the law. No two clients and no two cases are identical. Don’t fall into the rut of

treating them all as if they were. That means you should undertake the following steps before

you attend any examination for discovery, no matter how mundane or repetitive it is in the

context of your practice. If you don’t take the time to prepare properly, you will miss critical

areas and find trials are full of unpleasant surprises.

1. Make sure you understand what you are entitled to ask for and to refuse:

What does the term relevance actually mean and how will it impact on what you can

get at discovery and on your client’s disclosure obligations?

How does the concept of proportionality affect things?

Over which documents can and should you claim privilege?

Keep a binder of recent cases in these areas that you up-date frequently so that you

are always current regarding disclosure obligations.

2. Figure out the main issues in the action:

This is your first – or 5th or 100th – examination for discovery. Have you considered what

questions to ask and what to ask for? Have you thought about what the other side will likely

want from you, what will be involved in getting it, the ramifications of producing it and whether

you can refuse it? Always anticipate – consider all of these issues before the event.

a. Start with the pleadings:

What is your client seeking and what elements must they prove in order to get it?

What have the defendants admitted or denied?

Bear in mind that there are at least two main issues at stake in most actions: liability

and damages. Most counsel neglect the latter at discoveries. That extends the life an

action before it gets to trial as it leads to myriads of undertakings and a possible

further round of discoveries to deal with proper questions arising from answers given.

If you act for a plaintiff, come to the discovery table, ready with respect to both

issues.

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Your list of issues to be covered at discoveries should include every element of every claim

you are bringing that has not been admitted or, if you act for a defendant, every element of every

claim you are resisting unless you have admitted it. If you have not done your research before

pleading (as you ought to have) be sure to do it now. What are the constituent elements of each

tort pleaded? What was the term of the contract that your client says was breached and how and

when did that occur? You have to anticipate what it is you will need to prove at trial in order

to prepare yourself for discoveries.

b. Review the documents carefully to see what other issues they raise

Identify those that help your position and those that hinder it;

Make a list of those you want to discuss with your client if you have questions about

them;

Make another list of those you want to ask the other side about at discoveries – if the

document is clear on its face and helps you, stay away from it unless you need to

establish it was sent or when it was sent or prepared, as you will only be giving your

opponent an opportunity to clarify or qualify;

Read critically – can the documents be read as your opponent suggests? Consider

what else you have on hand that can bolster your client’s interpretation;

Use the documents to help you understand the story – are there gaps? Do they tend to

support your client’s version or your opponent’s? This is an important time to assess

the highs and lows of your client’s case. Missing documents that one would expect to

be there also tell part of the story.

3. Figure out what issues are going to be highly contentious and do your homework:

Figure out which questions you want to ask when examining that are likely to touch a

nerve;

Identify those questions you expect your opponent will ask that you would prefer to

avoid; and

Then do your research to see where you stand legally – must they answer your loaded

questions and must you respond to theirs? Have the cases with you (the binder I refer

to above). While you don’t want to enter into a debate, one relevant and helpful case

set out before reasonable counsel could resolve the issue quickly in your client’s

favour.

4. Decide on the structure of the examination, generally

There are many different ways to approach your questions. When I was counsel, I tended to deal

with liability before damages, moving chronologically through each of those two main issues.

That helped me keep myself organized.

I also worked my way through the documents as I dealt with the issue they related to. I did the

same with the pleadings, weaving my questions about them into the area on which I was

examining that they related to. I generally left my contentious issues for the end, so that the

good rapport I had built with the witness, which resulted in an open and comfortable setting for

the discovery, was not weakened or destroyed until the end of the event. That allowed me to get

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the witness to relax and talk, often revealing nuggets I might not have gotten had I come across

as very aggressive at the start.

Some counsel prefer to skip from issue to issue and back again, hoping to rattle the witness and

tease out inconsistencies. Some counsel seem to have no apparent plan at all – they just get

there, pull out their pleadings and start to ask questions. Don’t do that. You can’t rely on your

memory to take you back to where you want to be after you follow a thread, particularly if you

have a busy practice, usually work in the same area and conduct a lot of discoveries. Did you

ask that question at 11:00 today or was that yesterday’s discovery in another file?

However you plan to proceed, you should have a list of areas you want to ask questions about.

If you work in a particular area of the law all or most of the time, it’s a good idea to create a

generic list of questions but don’t rely on the list alone. So, for example, if you are a personal

injury defence lawyer, your list will include standard questions about whether the plaintiff was

wearing her seat belt at the time of the accident; whether she had ingested alcohol or taken drugs

prior to the incident. But you will have to tailor your questions to address the way in which the

accident occurred – did it happen during a lane change? Was it a rear-ender? So use the generic

list as your back-up, to make sure you remember to ask about whether there were any witnesses

to the event or if there has been surveillance but don’t rely on it exclusively. You must still do

your preparation on a case by case basis. So:

List the areas you want to hit;

Check your generic list to ensure you have covered all of the issues that arise in each

case;

Arrange the areas as you think best for the particular case;

Be sure to reference any documents or paragraphs in the pleadings you want to deal

with when you hit each area so that you don’t forget to ask about them and so you can

locate them quickly and easily;

If there is a particular wording you want to use in hopes of getting an admission,

write that down, too;

Put the tough questions that are likely to trigger a hostile response at the end, however

you approach the exercise. This way, you avoid losing valuable time arguing about

them mid discovery and you do not negatively impact on the tone of the event before

you have the information you need.

5. Consider how to make your personality work for you:

We each bring our own personality to the work we do, but most of us have different aspects to

our personality. You don’t speak to your spouse the way you speak to your boss; to your 3

year-old the way you speak to your now 23-year old. So who do you want to be at the discovery

table on any given day?

Again, there are different approaches that can be applied here. You can decide you will be gruff

at all discoveries, your intention being to scare the witness so badly that the thought of facing

you again at trial will drive them to an improvident settlement.

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The downside to this approach is that a witness who is very nervous tends to have difficulty

focusing, hence remembering and then tends to clam up. If your gruffness comes across on the

record, all those great inconsistencies you unearthed and admissions you obtained may end up

being worthless if the trial judge is invited to see how you harassed the poor witness.

You may want to try the “I’m your best buddy” approach instead. Your intention here is to

put the witness at ease. A relaxed witness will talk - they will respond to your questions and

elaborate. They may even ramble and reveal all kinds of things you would never have even

thought to ask about that help your case. So, when using this approach, you may want to drop

formal legal language, lean in to listen, and do what you can with your face and voice to show

the witness you hear them and accept what they are saying. The one thing everybody in a law

suit wants is to be heard – you are giving the witness that opportunity. This can work to our

advantage.

Is there a downside here? Yes, but a small one. Allowing a witness to rambling can waste

valuable time, so you have to know when to step in and rein the witness in.

My view is that it is often best to use a combination of techniques, depending on the nature of

the case and the point you are at in the discovery. So, when dealing with an action that raises

highly contentious issues – fraud, defamation, malice – I tended to have a little less honey in my

voice than when I was doing mostly motor vehicle defence work. But most of the time, I started

off with a pleasant manner, adjusted my way of speaking to match the sophistication level of the

witness, and allowed my empathy for the plaintiff’s plight to come through. And I saved those

tough questions to the end.

B. PREPARE YOUR CLIENT

You have done this before – your client likely hasn’t. You want to ensure that he is comfortable

yet focused, cooperative but not helpful, cautious but not evasive when he gets to the table. It

is up to you to tell him what he needs to know to help him reach that state.

1. The room and who will be in it:

Explain that you will be in your office/ the other lawyer’s office/ a neutral’s office;

Tell him you will remain beside him throughout;

Tell him who else will be in the room;

Explain what other lawyers will be there and why;

Tell him what you know about the other lawyers – will they be gruff with him or try

to be overly friendly. Prepare him for either scenario;

If you expect other parties to be present, make sure he is alerted to that;

Tell him he will be asked to swear an oath or affirm to tell the truth;

Explain the role of the reporter and the fact that a transcript of the proceeding will

be available. This means that he must speak slowly and clearly for the reporter and

use words rather than gestures. It also means that if his evidence shifts at trial, there

will be a record to show the trial judge that he has not been consistent in his

responses;

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If you have asked for an interpreter, tell him the interpreter will be beside him, too.

Remind him that it is critical that he not begin to respond to questions until after the

interpreter has translated for him and to avoid speaking English in the room;

Ensure that he knows that, while your role at discoveries is to protect him, he cannot

turn to you to speak privately. He has to have faith that you will intervene when it is

appropriate and if you haven’t, then he must respond.

2. The purpose of the exercise, your role and the client’s role

Make sure your client understands that there will be no judge or master present and that no

decisions will be imposed on him at oral discoveries as this is simply a fact gathering event –

list the purposes of oral discovery for him and explain what each means.

It is also very important that he understands that you are the advocate, not him, so he should just

answer the questions as asked and not embellish or volunteer information beyond the responses

to the questions that were asked.

He should understand that this is a standard part of a civil action and that it occurs in most cases.

Tell him that the best way he can help his cause is:

to be prepared, so he should review his/the other side’s documents and read the

pleadings;

to be cooperative;

to listen attentively to each question;

to seek clarification if he does not understand a question;

to ask for time to review any document put to him.

Make sure he understands and agrees with the theory of the case, one that you have

developed in concert with him, after reviewing all of the pleadings and the documents of all

parties. I cannot overstress this. If the witness’s evidence is at odds with his pleading, his

credibility will be called into question.

Review the pleadings with him so he knows what he has effectively said and what all other

parties have to say about that. Review the documents with him, particularly those that are very

helpful or harmful so that he is ready to explain. Bear in mind that it is not your job to tell him

what to say, but to alert him to the minefields so he can figure out how best to skirt them or be

prepared to make admissions as required.

Explain to him that he must only respond to proper questions and that you, not he, will know

which questions fall into that category. There may be certain questions he will be asked that he

will be uncomfortable with but in view of the way the case has been pleaded, they will likely be

asked and will have to be answered – give him some idea, in the context of the action, what those

will likely involve so he is not caught off guard. I have seen many a plaintiff in a personal injury

case who has claimed diminished libido turn to their lawyers in disbelief when asked questions

about their sex life. Personal? Certainly. So personal that he need not respond? Not in the

context of that pleading.

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Explain to the client how you will go about protecting him – that you will object to improper

questions, a phrase that has a legal meaning. I used to tell my clients that if I am concerned

about a question, I will place my arm on the table in front of them. If that happens they should

remain quiet and let me discuss the issue with opposing counsel. They should not add anything

in hopes that it will be helpful and not utter a word until you give them the green light.

Be sure to also tell the client that he should also refrain from:

guessing, though opposing counsel is entitled to his best estimate. Explain the

difference between the two a guess and an estimate;

giving undertakings to do or find anything unless he thinks he can do so without

excessive cost or effort;

talking to you during the course of the discovery;

being combative with other counsel; and

asking for breaks unless it is understood that the nature of his illness or injuries

requires this format. Tell him in advance that there will be a morning break of 15

minutes around 11:30 or when it is convenient and a lunch break of at least one hour,

starting around 1:00.

After you have done all that, review the list of areas you expect the other side will ask him

about. Be sure he understands each and that he has prepared himself to respond regarding all

elements of his claims or his defence. While you cannot tell him what to say, you can point out

if his responses during preparation are not consistent with what he has already told you, with

the documents or what he has pleaded and the impact that will have on his case insofar as how

his memory and/or credibility will be perceived.

C. WHAT TO DO AT THE TABLE

If you have done all the above, your discovery of the opponent and theirs of your witness should

go relatively well. But, like most things in life, there are no guarantees – your witness might

blurt out something that destroys their position without having a clue of the impact it will have.

They may become forgetful as a result of nerves and they may have difficulty focusing and end

up giving responses that are all over the map. These things are all good for you and the client to

know before you go to trial. Consider this a dry run which you can then use as leverage with

the client when settlement proposals are discussed. If this is how he conducts himself under

pressure, the trial will, indeed, be a trial for him and this is something he should consider when

discussing possible settlement. The client must understand that the case can never get better than

the evidence.

Whether you are sitting with a client who is being questioned or you are counsel asking the

questions, at all times be polite – you are an officer of this court, the very court that may be

asked to review the transcript you are creating at some later date. Always consider how you will

come across to the court if you behave badly, even if “the other guy started it”? Do not get

dragged down into the mud!

1. When your client is being examined:

Listen carefully to each question that is asked;

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While you should not unduly interfere with examining counsel’s questions, you are

there to ensure that he is fair to your client so breaking in is fair if you do so for

clarification; to correct the record if a question assumes a fact you have not conceded;

to claim privilege; to help your client find a document that he has been asked about;

or when a question is otherwise improper;

Always indicate what you ARE prepared to give if you refuse to allow your client

to respond to a question that you say is too broad;

Always ask for clarification if you feel a question, as asked, is too vague;

If you have a legitimate objection to a question that has been asked, explain it once

and clearly;

Keep a list of what you have undertaken, refused and taken under advisement;

Bear in mind that all undertakings given have to be answered unless you are clear at

the table that you are unsure if the materials exist or whether you can locate them. So

consider whether you can do so before agreeing to any. Coming back after the fact to

say it is too hard or too expensive to do so can be very difficult.

2. When you are examining counsel

Bear in mind the reporter is trying to take a note so do not speak in a rapid clip;

Ask the witness one question at a time so you get a transcript you can use;

Ask your questions in clear English. Do not use double negatives or lengthy

convoluted sentences replete with legalese gymnastics if you want clear responses

that you can use as admissions or to challenge credibility. If the question was not

clear, the response will not take you anywhere;

Keep a running list of undertakings given, under advisements and refusals. I used to

circle them with a red pen in my notes as the event proceeded;

Don’t ask overly broad questions or you will be shut down;

Don’t ask vague questions or you will be shut down;

In most cases, it is best not to show your entire hand but to save your most cutting

cross-examination for trial;

Do not fight with the witness or other counsel. The transcript will be ugly and you

and it will end up in court.

D. FOLLOWING THROUGH WHEN BACK AT THE OFFICE Take out your list of undertakings, under advisements and refusals that you created during

the examination. If you were examining counsel, write to the party examined, setting out each

question that falls into each of these three categories. Don’t wait to do this until after you have

ordered and reviewed a transcript – this will take time and add costs. It will take longer for you

to do as you will have to put yourself back into that examination, and you have done 20 more in

the intervening period.

If your client was examined, send out your letters to both the client and third parties from

whom you seek documents immediately so that you can comply with undertakings BEFORE

being asked to do so.

9



Consider if the position you took regarding refusals was appropriate. If you are unsure, research

the areas they touched on, along with areas covered by the questions you took under

advisement.

If you report to a client in writing, write the reporting letter as soon as you can. If not, do a

memo to file about how the discoveries went. If you conduct a large number of discoveries,

include a brief note about the physical appearance and demeanour of the witness so that when

you pick up the file 6 months hence, you will be able to “see” the face across from you at the

table. If you can see the face, it makes it easier to ‘hear” the voice.

All request letters sent should be entered in your tickler system. If you have not had responses to

your first set of letters, send another request within 4-6 weeks of the first. Keep track of what

you have received and what you are still missing.

Send what you have to the other side as you get it. Tick it off on your list, adding the date it was

sent, and make sure opposing counsel is aware you have written twice already for the remainder.

At some point soon after discoveries, consider what the exercise has added to your body of

knowledge about the case. Whose evidence was more credible – your client’s or theirs? Why? What came up that is troubling? Address these issues with your client sooner rather than

later so they are not in shock when they see the numbers at mediation. Give the client the bad

news as soon as you can so they can get used to it and adjust their expectations. So much of the

practice of law is about managing those expectations.

Hopefully, the above tips will assist you in making the most of your 7 hour or less examinations

for discovery and keep you out of court on discovery-related motions.


Civil Litigation Skills Certificate Program Mastering Winning Discovery Techniques

Top Ten Tips for Drafting and Implementing a Discovery Plan

Patrick Brown McLeish Orlando LLP

Introduction Since changes to the Rules of Civil Procedure came into effect on January 1, 2010, a Discovery Plan is now a mandatory requirement in the discovery process. The parties are to agree to a written Discovery Plan in advance of the examinations for discovery to establish the scope of documentary evidence and other relevant information. This paper will outline the top ten tips (in no particular order) for drafting and implementing a Discovery Plan. The tips are intended, firstly, to assist counsel in complying with the Rules respecting Discovery Plans and, secondly, to ensure a cost-effective and efficient discovery process for all parties that should strategically assist with your case. Top Ten Tips 1. Schedule Specific Examinations for Discovery Before Sending the Discovery Plan The rule requires that the Discovery Plan include the names of persons to be produced for examination. Setting the date of examinations for discovery before sending the Discovery Plan will allow counsel to provide the date, time, and location of the examination for discovery, in addition to the names of persons to be produced. 2. Attach a Draft Affidavit of Documents A helpful tip is to ensure that a draft Affidavit of Documents is provided at this stage and a request to the opposing counsel to advise which Schedule A documents they would like. Complete disclosure is required throughout the litigation, but early disclosure of documents will assist defence counsel with obtaining authority from their clients and setting reserves. 3. Include a List of Mediators Provide a preferred list of mediators at the end of the Discovery Plan to start the process of arranging mediation early in the litigation proceeding. While mediation may


not always be successfully scheduled at that time, it will be useful to know of any agreements or disagreements with respect to mediators early on. A set date with a named mediator is preferable, if able. 4. Standard Template Discovery Plan It is efficient practice to have a standard template to utilize in similar actions that can be easily tailored to suit the facts and circumstances of the case. For example, in the area of personal injury, there could be a template for motor vehicle accidents, slip and fall accidents, and actions involving road authority defendants. Standard templates for various actions are enclosed for your reference as Appendix A, B, and C. 5. Intended Scope of Documentary Discovery It is a mandatory requirement that the Discovery Plan include the intended scope of documentary discovery. In that respect, it is important to consider the principles of proportionality and relevance in deciding what documents should be produced. Keep the language of this section broad enough so that it may encompass documents that are not yet identifiable, but narrow enough that it is still relevant to the issues in the matter. You do not want to limit the scope of what evidence may be produced but refrain from such broad language that would be too costly or time-consuming for the parties to obtain and produce. Further, a line simply stating “Any and all documents relevant to the issues of liability and damages” would render the Discovery Plan meaningless. 6. List Any Areas of Disagreement After exchange of the Discovery Plan, if the parties are unable to agree on something particular in the Discovery Plan, there should be an additional paragraph listing the areas of disagreement. That way, it still allows the parties to continue to examinations for discovery without the need to re-schedule or cancel them. Any disagreements can be addressed at a later date and may become moot in any event after examinations for discovery. 7. Electronic Discovery For examinations for discovery that involve electronic discovery, counsel shall consult The Sedona Canada Principles Addressing Electronic Discovery, which are guidelines specific to electronic documents. 8. Obligations under the Rules of Civil Procedure Remain Paramount It would be prudent to include a line to indicate that the Discovery Plan in no way derogates from the parties’ responsibilities to fulfill their obligations under the Rules.


This is to ensure that parties cannot sidestep their disclosure obligations by pointing to the Discovery Plan at a later stage.

The parties acknowledge and agree that this proposed Plan shall not restrict the parties’ respective obligations under the Rules to produce relevant documents not otherwise contemplated within the scope of this Plan.

9. Establish Costs and Manner of Production of Documents Counsel should be clear about the payment of obtaining and producing documents in advance of discovery. One option is to request payment of the reasonable costs associated with obtaining and producing the documents. Alternatively, a second option would be to request repayment ($0.25 per page) for making photocopies. 10. Plaintiff’s Counsel Should Draft the Discovery Plan In order to obtain direction and control of the litigation process, it should be up to counsel for the Plaintiff(s) to prepare the Discovery Plan. That way, counsel for the Plaintiff(s) can use their standard templates setting out their preferred wording and documents they would like to obtain for the examination for discovery. Opposing counsel will, of course, have an opportunity to provide suggestions to the Discovery Plan, but they can do so after review of the Plaintiff’s proposed Discovery Plan.


INDEX OF SAMPLE TEMPLATES

Appendix Sample Discovery Plan

Appendix “A”

Motor Vehicle Accident cases

Appendix “B”

Occupiers Liability cases

Appendix “C”

Road Authority cases


APPENDIX “A”

J. Patrick Brown Email: [email protected]

DATE

Defence counsel Address

Attention: Counsel

Dear Ms. xxx:

RE: Our Client: XXXX Your Client: XXXX

MVA: XXXX Discovery Plan Rule 29.1.03

In preparation for the Examinations for Discovery, we would propose the

following Discovery Plan in accordance with Rule 29.1 of the Rules of Civil Procedure.

Rule 29.1.03(1)(a): The Intended Scope of Documentary Discovery

The parties agree that the intended scope of the documentary discovery

with respect to the examination of each of the parties shall be as follows, and

acknowledge and agree that this proposed plan shall not restrict the parties respective

obligations under the Rules to produce relevant documents not otherwise contemplated

within the scope of this plan:

Defendant(s)

1. Any and all liability documentation including:

Police and Investigation Records

We ask that you produce any and all police records and investigation

records in your possession, including but not limited police field notes; police notebook

notes, witness statements, accident reconstruction reports, raw data, black box data,


certificates of analysis, alcohol influence reports, audiotapes, videotapes, photographs;

and any other documents, whether investigative or otherwise, generated, obtained or

compiled by the police, or otherwise kept by the police.

Any and all Damage Documentation

We ask that you obtain and produce any and all independent damage

documentation including photographs of the damaged vehicles and all damage

documentation including repair invoices and estimates.

Any Witness Statements

We ask that you produce any statements obtained by the Defendant, or

Defence counsel, or anyone retained by Defence counsel with respect to the

circumstances of the accident. In the event that you are claiming privilege on any

statements, we request that you provide a summary of the information obtained, and

advise when the statement was obtained and who the statement was obtained by in

advance of the discovery.

Emergency Service Provider Records

If any services were rendered to the Defendant following the accident, we

ask that you obtain and produce those records including ambulance records, fire

department records and tow truck records.

Surveillance Records

If any surveillance or investigation of the Plaintiff has been conducted, we

ask that you provide, in advance of discovery, a summary of the surveillance, including

but not limited to, the name and address of the person conducting the surveillance, a

summary of their observations of the plaintiff, and if any video or photographs were

taken, what the video or photographs depict as well as the times the video camera was

turned on and off. In the event that you intend to rely on the surveillance at trial as part

of your case, we would ask that you also produce the surveillance reports, video and

photographs before discovery.

Insurance Records of the Defendant

We ask that you produce any document proving the existence of a policy

of insurance and the limits of the policy. If there are any coverage issues, the policy

and provisions pertaining to the issue.


Maintenance Records

We ask that you obtain and produce any document pertaining to the

Defendant’s automobile including any and all records in the possession of the

Defendant, and/or for which the Defendant is able to obtain through third parties

pertaining to any maintenance performed to the Defendant’s automobile in the three

years prior to the motor vehicle accident, including but not limited to regularly scheduled

maintenance, tune ups, and any repair work done for previous accidents, or damage

otherwise caused.

Health Records of the Defendant

We ask that you obtain and produce any medical records pertaining to a

medical condition which could impact the Defendant’s ability to operate a motor vehicle

within a reasonable time period prior to the accident, depending upon the particular

condition in question. This includes any medical documents pertaining to the

Defendant’s vision and hearing.

If the Defendant was taken to hospital immediately following the accident,

we ask that you obtain and produce any hospital records pertinent to liability, including,

but not limited to any reports or records with information as to the Defendant’s alcohol

consumption and/or drug consumption.

Cellular Telephone or Electronic Device Records

We ask that you obtain and produce records pertaining to any electronic

device for which the Defendant had on his person or in his vehicle at the time of the

accident.

The Plaintiff

1. Liability documentation, including but not limited to:


We will request and produce the motor vehicle accident report, self

reporting collision center forms, driver searches, vehicles searches, and any and all

police records obtained by our office.


Damage Documentation

We will request and produce any and all vehicle damage documentation

including photographs from the insurer responsible for the vehicle the plaintiff was in.


We will request and produce the ambulance call report and any fire

department records.

2. Damages documentation, including but not limited to:

We will request and produce;

Family Doctors records up to five years pre accident

Decoded OHIP summary

Ministry of Finance Canada Revenue Agency Tax Returns

Hospital records from the Treating Hospitals

Employment records from Employer

Accident Benefits File

Rule 29.1.03(3)(b): Dates for service of Affidavit of Documents

The parties agree to provide their respective unsworn Affidavit of

Documents in advance of the examinations for discovery. In that regard, please find

enclosed the Plaintiff’s draft Affidavit of Documents.

The parties agree to serve their respective Sworn Affidavit of Documents

in advance of or at the time of the examination for discovery.

Rule 29.1.03(3)(c): Information Respecting the Timing, Costs and Manner of

Production of Documents

The parties agree that they will use their best efforts to request and

exchange documents listed above before the discovery.


The parties agree to pay the reasonable costs of obtaining and producing

the documentation listed above.

If you do not wish us to obtain any of the documents listed under the

Plaintiff’s documents, kindly advise.

Please also advise which Schedule A documents as listed in the Plaintiff’s

draft Affidavit of Documents you require.

Rule 29.1.03(3)(d): Names of Persons To Be Produced For Examination

We have listed a proposed schedule for Discoveries. If these dates are not suitable,

kindly contact our office and we will coordinate dates that accommodate you and your

client.

EXAMINATIONS FOR DISCOVERY

Date and Time Party(ies) Being

Examined

Location

Wednesday, August 22,

2012 @ 10:00 a.m.

Defendant Network Reporting &

Mediation

1 First Canadian Place

100 King Street West,

Suite 3600

Toronto, Ontario


2012 @ 12:00 p.m.

Plaintiff Network Reporting &

Mediation


100 King Street West

Suite 3600

Toronto, Ontario


Rule 29.1.03(3)(e): Any Other Information

Once you have obtained instructions from your client, we would ask that

you contact our office to select a mediator and dates for said mediation. We have

attached a list of mediators we are agreeable to using. If you wish to propose a

mediator not on the list please do so for our consideration.

Mediator A Mediator F Mediator B Mediator G Mediator C Mediator H

Mediator D Mediator I Mediator E Mediator J

We shall assume that the above Plan is agreeable unless we hear from

you within the time frame provided.

Yours very truly,

McLEISH ORLAND LLP

Per:

J. Patrick Brown


APPENDIX “B”


DATE


Attention: Counsel

Dear Ms. xxx:











The Discovery of the Defendants, XXXXXX

1. Any and all liability documentation including but not limited to:

Business Records We ask that you obtain and produce:

o Any records pertaining to relevant procedures or protocols employed by the Defendants, including but not limited to procedures and protocols


relating to the cleaning, maintenance, inspection, safety, and security of the premises;

o Any records pertaining to outside contractors providing cleaning, maintenance, inspection, safety, and/or security services to the premises;

o Any contracts pertaining to the maintenance, inspection, safety, and security of the premises that were in effect at the time of the incident;

o Any training or instructional manuals with respect to the responsibilities of employees and/or outside contractors including but not limited to responsibilities relating to the cleaning, maintenance, inspection, safety, and security of the premises;

o Any records pertaining to the cleaning, maintenance, inspection, safety, and security of the premises including, without limitation, logs, notebook records, and diary entries;

o Any records pertaining to the incident, its investigation and/or remedial action taken; and

o Any records or surveillance which captured or recorded the incident.

Employment Records We ask that you obtain and produce:

o Names, addresses and contact information of the employees and any independent contractors who were working on the day of the incident, and on the day prior to the incident;

o Any records pertaining to the time the employees or independent contractors began and ended their shifts at work on the day of the incident and on the day prior to the incident;

o Any records pertaining to the work being done by the employees or

independent contractors on the day of the incident and for a reasonable


period of time prior to the incident sufficient to properly explain the responsibilities of these persons; and

o Any records pertaining to the past performance of the employees or

independent contractors who were working on the day of the incident and on the day prior to the incident.

Any Witness Statements

We ask that you produce statements obtained by the Defendants, or Defence

counsel, or anyone retained by Defence counsel with respect to the

circumstances of the incident. In the event that you are claiming privilege over

any statements, we request that you provide a summary of the information

obtained and advise when the statement was obtained and who the statement

was obtained by in advance of the discovery.

Surveillance Records

If any surveillance or investigation of the Plaintiff has been conducted, we ask

that you provide in advance of Discoveries a summary of the surveillance,

including but not limited to the name and address of the person conducting the

surveillance, a summary of their observations of the Plaintiff, and if any video or

photographs were taken, what the videos or photographs depict as well as the

times the video camera was turned on and off. In the event that you intend to

rely on the surveillance at trial as part of your case, we would ask that you also

produce the surveillance reports, video and photographs before Discoveries.

Insurance Records of the Defendant We ask that you provide any document proving the existence of a policy of

insurance and the limits of the policy. If there are any coverage issues, we ask

that you provide the policy and provisions pertaining to the issues

The Plaintiff












department records.





























client.



Examined

Location


2012 @ 10:00 a.m.


Mediation



Suite 3600

Toronto, Ontario


2012 @ 12:00 p.m.


Mediation




Suite 3600

Toronto, Ontario










Yours very truly,

McLEISH ORLAND LLP

Per:

J. Patrick Brown


APPENDIX “C”


DATE


Attention: Counsel

Dear Ms. xxx:











Defendant, City of XXXX

1. Any and all liability documentation including:

Police and Investigation Records We ask that you produce any and all police records and investigation records in

your possession, including but not limited police field notes; police notebook

notes, witness statements, accident reconstructions reports, raw data, black box


data, certificates of analysis, alcohol influence reports, audiotapes, videotapes,

photographs; and any other documents, whether investigative or otherwise,

generated, obtained or compiled by the police, or otherwise kept by the police.

Insurance Records of the Defendant We ask that you produce any document proving the existence of a policy of

insurance and the limits of the policy. If there are any coverage issues, the policy

and provisions pertaining to the issue.

Municipal standards and guidelines Regarding design, construction, maintenance, inspection, snow and ice

removal/treatment or signage for the area in question.

Municipal and departmental policy and procedure manuals

Including any written material that may resemble a policy, practice, procedure

and/or prohibition, and can include manuals regarding maintenance, emergency

responses, snow removal, salting, sanding, ploughing, winter maintenance, cold

patching, work orders, and inspections for the road and area in question.

Municipal Council documents regarding design and repair of roadway

Including Council Minutes relating to the discussions concerning the roadway in

question; reports and studies prepared for Council regarding the roadway; the

municipal budget in place during construction, the municipal budgets for when

improvements may have been recommended; written memorandum, notes and

directives to and from Council, staff, and third parties regarding the deficient

roadway.

Applicable bylaws, ordinances, city plans, and drawings

Agreements between the Municipality and other Government Authorities

Including those relating to the construction, maintenance, and repair of the subject

property including production of all contractual documents, including amendments.

Agreements between the Municipality and Subcontractors

More specifically, production of all agreements, contracts, subcontracts,

amendments, appendix, correspondence, performance reviews, complaints, etc.

between the municipality and subcontractors relating to the construction,


maintenance, repair, and any invoicing and work orders for the work performed for

the area in question.

Training manuals, directives, and guidelines Regarding maintenance, emergency responses, snow removal, salting, sanding,

ploughing, winter maintenance, cold patching, work orders, and inspections for the

area in question.

Seasonal schedules and protocols

For the area in question during the 2009/2010 winter season.

Complaints policy and procedure manuals

Including any documentation relating to the receipt and processing of complaints for

the area in question.

Complaint documentation

Including any documents relating to the processing of the complaint, action taken,

investigations, interviews, and remedial action taken for the area in question.

Roadway Studies, Statistics, Appraisal Sheets and Reports

Including any studies, statistics, appraisal sheets and reports dealing with the

volume of traffic and recommendations made for improvement.

Weather condition reports kept by Municipality Including any reports detailing weather and road conditions, including snow

accumulation, forecasts, and weather warnings before the above noted collision

took place.

Municipal collision summaries For the area in question.


Communication log sheets and records

Including any internal communications between road patrols, road crews, ploughs

and salting and sanding operators including radio logs, phone logs, after hours

service requests, dispatch logs, and dispatch sheets for the area in question.

Daily activity sheets Including any daily activity sheets detailing the activities of the Municipalities

employees in relation to the above noted incident and location.

Time cards and log sheets

Including any time cards and log sheets detailing the start and finish times of patrol

and maintenance crews for the area in question.

Patrol Diaries Including diaries are regularly maintained by supervisors, patrol workers,

maintenance workers, and equipment operators for the location of the collision and

surround areas.

Roads inspection schedules, logs and reports

Including any documents detailing when and who conducted the inspection of the

roadway in question prior to the collision.

Ploughing schedules, logs and reports

Including any documents detailing when and who was responsible for ploughing the

roadway in question.

Sanding and salting schedules, logs and reports Including any documents detailing when and who was responsible for salting and

sanding of the roadway in question.

Employee(s) file Including job applications, resumes, job descriptions, and performance reviews for

those responsible for maintenance, emergency responses, snow removal, salting,

sanding, ploughing, winter maintenance, cold patching, work orders, and

inspections for the area in question.


Written directives regarding sand/salt mixture

Including any directives concerning the agents, ratio of mixtures, and the rate of

application.

Tally Sheets Relating to the load of salt, sand or other agents expended by the spreaders.

Dickey-John ICS Material Spread Data Tapes.

The Plaintiff











department records.





























client.




Examined

Location


2012 @ 10:00 a.m.


Mediation



Suite 3600

Toronto, Ontario


2012 @ 12:00 p.m.


Mediation



Suite 3600

Toronto, Ontario











Yours very truly,

McLEISH ORLAND LLP

Per:

J. Patrick Brown



Page 1

Civil Litigation Skills Certificate Program: Mastering Winning Discovery Techniques

Preparing and Conducting Time Efficient Discoveries

Patrick Brown

The need for ongoing consideration of proportionality during discoveries was clearly

identified by Justice Osborne when seeking to streamline litigation and reduce both the

time and expense within the system. Under the Rules, counsel will be required to use

new and innovative means of streamlining discoveries. Fishing expeditions during

discovery will be rare. Greater consideration will have to be given at the beginning of

the file to determine what specific facts will be agreed upon and what facts will need to

be established. As well, counsel will need a more definitive understanding of what the

case is worth. Greater emphasis will also have to be placed on the use of other rules

such as Requests to Admit. Utilization of these rules will ensure that unnecessary steps

are not taken in the litigation process and admissions are obtained outside of the now

more limited discovery process.

Relevant to any matter in Issue Not Semblance of Relevance

Under the 2010 amendments to the Rules, the scope of documentary and oral

discovery has changed. Despite this, some still conduct discoveries as though the old

rules apply. The scope of the discovery was previously determined by the phrase

“relating to any matter in issue.” The phrase was interpreted by case law to mean a

“semblance of relevance.”1 Under this interpretation, the rule allowed for virtually any

document or question that can be remotely tied to the issues raised in the pleadings to

be produced or answered, often regardless of the fact that such evidence would never

1 Kay v. Posluns, (1989), 71 O.R. (2d) 238.



Page 2

be admissible at trial. The “semblance of relevance” test was summarized in Air

Canada v. McDonnell Douglas Corp.:

The present philosophy in the conduct of civil litigation in Ontario, as which applies, to examinations for discovery, requires very wide disclosure. Questions on examination for discovery should be answered unless the court is satisfied that they have no semblance of relevancy: see Kay v. Posluns (1989), 71 O.R. (2d) 238 (H.C.J.). Information may be elicited on discovery even though the precise question and answer might not be admissible at trial. There is a discretion in the trial judge to control what may be read into evidence from the examination of a person examined for discovery on behalf of a party…Questions on discovery are proper if they may lead to a line of inquiry which would uncover admissible evidence.2

The “relating to any matter in issue” test resulted in voluminous affidavits of documents,

drawn out examinations for discovery, and a list of undertakings a mile long. While the

intent of the previous rule may have been to prevent trial by ambush, it created a

different problem, which, in the words of Justice Osborne, is “trial by avalanche.”3

Under the new Rules, the changes to the scope of discovery are intended to avoid trial

by avalanche. Under the new Rules, the scope of discovery is “relevant to any matter in

issue.” The change is intended to send a clear signal to the profession that restraint

should be exercised in the discovery process and that discovery should be conducted

with due regard for cost and efficiency. According to Justice Osborne, the discovery

process was becoming increasingly long because of factors which included

inexperienced and unprepared lawyers, and lawyers’ billing targets.

Counsel will need to reconsider standardized questions and ask themselves what is

needed to move the case forward. Discoveries should not be a tool to find out about

one’s case but rather a means to streamline the issues and build and enhance your

client’s position.

2 Air Canada v. McDonnell Douglas Corp. (1995) 22 O.R. (3d).

3 Supra 1, at page 85.



Page 3

Know what you are trying to Achieve within the Time Required

The traditional goals of discovery have not changed. These include:

to learn of the other party’s case;

to obtain a preview of the documentary evidence available to the other

side;

to obtain admissions that can be used as substitution for calling other

evidence at trial;

to commit the other party to positions;

to fix and narrow the matters in issue; and

to obtain some insight into the qualities of the other party.

However, the amount of time given to counsel to achieve these goals is now more

limited. The specific rule reads as follows:

Not to Exceed Seven Hours 31.05.1 (1) No party shall, in conducting oral examinations for discovery, exceed a total of seven hours of examination, regardless of the number of parties or other persons to be examined, except with the consent of the parties or with leave of the court. Considerations for Leave (2) In determining whether leave should be granted under subrule (1), the court shall consider: (a) the amount of money in issue; (b) the complexity of the issues of fact or law; (c) the amount of time that ought reasonably to be required in the action for oral examinations; (d) the financial position of each party;



Page 4

(e) the conduct of any party, including the party’s unresponsiveness in any examinations for discovery held previously in the action, such as failure to answer questions on grounds other than privilege or the questions being obviously irrelevant, failure to provide complete answers to questions, or providing answers that are evasive, irrelevant, unresponsive or unduly lengthy; (f) a party’s denial or refusal to admit anything that should have been admitted; and (g) any other reason that should be considered in the interest of justice.

Counsel will need to develop methods to use their discovery time effectively. Therefore

preparation in advance is crucial.

Tools to Reduce and Save Time

Once you have prepared in advance for the discovery, you will need to ensure you have

the necessary tools to conduct not only an effective discovery of your opponent, but you

should also be ready for the discovery of your own client.

A Discovery Brief

A discovery brief, in addition to a well laid out discovery plan, will not only shorten

preparation and discovery time, it will also show opposing counsel that one is prepared,

organized, and taking the case seriously. Although each counsel should develop a

system that works for them, it is helpful to have a brief that includes the pleadings, the

affidavit of documents, a chronology of events, statements, and key documents.

In addition to these, plaintiff counsel should also develop ways of streamlining their own

client’s discovery by having information ready so as to avoid unnecessary corrections or

undertakings. In their brief plaintiff’s counsel should have the following:

1. Breakdown of all accident benefits paid to date



Page 5

2. Status of any outstanding accident benefit issues

3. Privileged statements ready to be summarized

4. Pre Accident Health History Chart for reference

5. Pre and Post Accident Employment Information in Privileged Client Resume

Defence counsel should have ready the following:

1. All surveillance reports ready to be summarized

2. All privileged statements ready to be summarized

3. Insurance limits

Document Management Software

One of the best ways to coordinate efficient time management is to ensure you have

document management software that allows you to download all the privileged and non-

privileged documents into your laptop. It is quicker and easier to review a file on the

computer than it is a hard copy. By having the file on your laptop and using your

annotations, you can identify those specific relevant documents and passages that may

be needed. This should be done in advance of the discovery so that you are ready to

go. The software also has powerful search tools that will also allow you to search key

words to extract and provide information during the discovery of your client and avoid

unnecessary undertakings.

Discovery Templates

As one continues in their practice, they should develop a series of discovery templates

that can be used repeatedly. These templates become valuable tools for keeping track

of usable information, thoughts, ideas, undertakings and to-dos. Each template has

standard items that are used repeatedly. You can develop these to suit your practice.

Before the start of any discovery, I open up the following Word templates:



Page 6

1. Post Discovery Notes Template

2. Undertakings Status Letter Template

3. Post Discovery To Do List Template

All three templates are open during the discovery and can be used throughout.

I also have a template to guide me in the areas that need to be discovered of the

defendant. Instead of listing each specific question, I use headings to guide me into the

areas that need to be explored.

I store the templates in Microsoft Word templates on the computer. I simply open the

blank templates at the beginning. When the discovery ends, one can quickly clean up

the documents, add additional to dos, and complete the discovery work-up in a

relatively short period of time. By saving the documents into the folder, there is no need

to dictate from a series of handwritten notes. If you are diligent, you will not have to

review and re-dictate from the transcript. The finished documents are saved in a post-

discovery folder which is transferred to the assistant, associate and clerk to be used at

the post discovery preparation team meeting which can be held immediately after the

discovery.

Time Saving Tips when Asking Questions

Don’t Make Everyone Wait While You Type

The defendant is generally examined first. During the examination of the opposing

party, counsel should always concentrate on listening to the answers given as opposed

to concentrating on precise note taking or typing. There will be a transcript that

accurately sets out what was said. It can be very difficult to type comprehensive notes,



Page 7

read the demeanour of the deponent, and prepare for your next question all at the same

time. Counsel will also be very annoyed if the flow of the question and answers are

delayed because you are taking additional time to type.

Making a Record

It is always preferable to attempt to use simple and clear language when formulating

one’s questions. This avoids misinterpretation of the question which may result in the

answer or admission being qualified or explained at a later date. As well, one should

also avoid questions which allow long, drawn out answers. By keeping your questions

short and to the point, you contain the deponent’s answers and thus, avoid having to

decide, on a later date, whether it is worth reading in the admission at trial, knowing that

it is preceded or followed by potentially damaging statements.

Object Early to the Intrusive Counsel

An intrusive opposing counsel can wreak havoc on one’s discovery strategy, not to

mention the record. If defence counsel continually attempts to answer for their client,

object early and indicate that you will not permit the practice to continue.

Securing Admissions by knowing what you want

Discoveries are also an important forum to obtain admissions of facts and the specific

documents one intends to introduce as exhibits at trial. For example, if the defendant

has produced damage photographs favorable to your case, establishing admissibility of

the photographs at the discovery stage is critical:

Q. Mr. Johnson, I am showing you a photograph produced by you and would

ask that you examine it. Do you recognize the photograph?

A. Yes

Q. And did you take this photo?



Page 8

A. Yes

Q. When was that taken?

A. January 1, 2013

Q. Does the photo accurately and fairly depict the condition of your car on

January 1, 2013?

A. Yes

Q. Did any of the damage to the car as seen in the photo occur before this

accident?

A. No

In order to establish the necessary foundation for admitting a particular piece of

evidence at trial, one should seek to obtain admissions of this nature at discovery. If

you have specific documents you wish to introduce, be sure that they are contained

within the Discovery Brief so that nothing is forgotten.

Expert Evidence

A request for expert reports should not only include written reports but oral reports as

well. If opposing counsel is not prepared to divulge the findings, opinions, or

conclusions of an expert, demand an undertaking that they will not be calling the expert

at trial. Although the Rules state that a party is required to serve an expert’s report prior

to trial, one should always request opposing counsel to undertake to produce any

reports that they intend to rely on at trial immediately following their receipt. In addition,

one should also request specific production of any and all documents reviewed by the

expert in formulating their opinion, including raw data, field notes and records.

Surveillance

A request should be made for production of any and all surveillance reports, videos, and

photographs taken of one’s client. In most cases, the defendant will claim privilege on

the surveillance report. However, one is entitled to a detailed synopsis of the



Page 9

surveillance conducted. Simply requesting a synopsis of the surveillance requires

counsel to give you a brief summary, granted with only very little detail, of what has

taken place. It is important therefore, that one specifically request: the name and

address of the person who conducted the surveillance and which company they work

for; the date, times, and precise locations of the surveillance; particulars of the

observations made; a description of each photograph taken; and a description of what

is contained on any video tape. If counsel maintains they will comply with the Rules,

ensure you ask what their understanding of the rule is. The case law has been settled

that the plaintiff is entitled to a summary of the surveillance regardless of how defence

counsel intends to use it. Instead of using up valuable time on the transcript to debate

the issue, simply advise counsel that you take their answer as a refusal unless they

otherwise inform you what they are prepared to disclose and when.

Potential Witnesses

A quick reference to the Rules and the precise wording used is always helpful when

formulating certain questions. Many counsel will request the names and addresses of

persons that the defendant intends to call as witnesses at trial along with a synopsis of

their anticipated evidence. The rule is much broader and does not restrict itself to the

evidence the defendant intends to rely on at trial:

Q. Can you please provide me with the names and addresses of all persons who

might reasonably be expected to have knowledge of transactions and occurrence

in issue in this action, along with a summary of their evidence?

A. I will provide you with a list of witnesses before trial.

Q. Thank you counsel, but I would also request the names and addresses of all

persons who might reasonably have knowledge of the transactions and

occurrences in issue in this action, along with a summary of their evidence.

When conducting your discovery, you should consider having an open Word document

which lists standard undertakings so that you can recite the proper wording. The



Page 10

template will have additional room to insert the non-standard undertakings. If you are

diligent in entering the undertakings as you go, you will have a finished undertakings

letter ready to present to your assistant to send out to opposing counsel when you

return to the office. By having those standard undertakings already built into the

template, you never forget to ask for them.

Listing To Do’s following the Defendant’s Discovery

In addition to having the above Word documents open during your discovery, you

should consider having a Post Discovery To Do List opened to insert to-dos as you go

along.

Before the discovery even takes place, counsel will have obtained liability source

documents. These would include the police reports, officers' notebooks, witness

statements, field notes, accident reconstruction notes, diagrams and photos. Despite

having all these documents and your own initial investigation, the factual basis for

liability invariably always changes when the parties give their evidence at discovery. It is

at this stage that careful consideration is to be given as to what additional liability

documents are needed, what will say statements should be tracked down, and what

expert reports will be obtained.

Conclusion

It is hope these tips offer counsel an overview of ways to manage a time and conduct

an efficient discovery.


CONSIDERATIONS WHEN PREPARING FOR DISCOVERY

Troy H. Lehman Oatley, Vigmond LLP

When it comes to examination for discovery, “by failing to prepare you, are

preparing to fail.”1 In order to conduct a good discovery a lawyer must know the case, know the issues, know the technical matters involved and know the documents. PREPARATION IS KEY

Ensure that you have all of the necessary documents from the other side before discovery. The Rules of Civil Procedure obliges parties to prepare affidavits of documents listing all relevant documents that are or have been in the party’s possession, control or power.2 This obligation is often not complied with. Very often relevant documents are not disclosed. Affidavits of documents must be reviewed with a critical eye to ensure that all relevant documents are produced before discovery. If necessary, a motion for a further and better affidavit of documents or a cross-examination on the affidavit of documents can be brought before the discovery.3 Giving careful consideration to a discovery plan setting out the documents that should be produced is a good way to ensure that you receive everything that is needed. If you go to discovery without all of the relevant documents, you will be relying on undertakings and lawyers’ answers to important questions.

Ensure that you have all of the necessary documents from third

parties before discovery. Going to discovery in a motor vehicle involving contentious liability issues without having all of the police records is a mistake. Very often, police forces produce incomplete or redacted records. Rule 30.10 motions are often required to get all of the police materials. If you do not have everything, you could be examining the other side without knowing what they told the police (or what other witnesses told the police). It is also essential for plaintiff’s counsel to obtain relevant medical records (including pre-morbid records) before discovery so that the plaintiff can be properly prepared about what doctors have said about their condition and their pre-morbid history.

Get advice from the required experts before discovery. In a medical

malpractice case, no competent lawyer would think of going to discovery without obtaining advice from appropriate medical experts beforehand. If there are any technical issues at play in the case, it is important to get advice from an expert before discovery. Engineering experts can advise lawyers on documents that should be requested before discovery and technical questions that should be asked at discovery.

1 This is actually a quote from Benjamin Franklin and probably had nothing to do with discovery but is certainly true. 2 Rule 30.03. 3 Rule 30.06.


Make sure that you understand the subject area. In cases that involve technical issues it is essential to know the subject area before discovery. Experts are an invaluable source of information. However, independent research to identify applicable standards and guidelines is something that a lawyer can do before discovery. For example, if you are examining a municipality on a road design case there a number of publically available standards that will be relevant (eg. Ontario Traffic Manual, Transportation Association of Canada Guidelines). Having a working knowledge of the applicable standards and guidelines will allow you to effectively examine and cross-examine the other party (particularly if they have not reviewed the guidelines closely in preparing for the discovery).

Know who you want to examine. If you are suing a corporation or a

municipality you have the right to choose to examine any officer, director or employee of the defendant.4 It is important to review the documentary production and identify the person who is most likely to assist your case the most. In a case against a municipality for failure to plow a roadway, it may be best to examine the patroller who directed the winter maintenance activities. If you do not specify a witness the defendant will choose someone who may have little first-hand information about the events. Obtaining a further discovery with a second witness can be difficult (although not impossible).5

Have your own client well prepared. It is easy to place too little focus on

preparing your own client when you are focused on preparing to examine the other party. This is a mistake. A case can be destroyed on discovery. If a plaintiff gives evidence that he absolutely cannot do something that he has been seen to do on surveillance it will be a disaster for the plaintiff’s case. Good preparation can avoid this. Many injured people will say that they cannot do something when they can do it but with difficulty. It is essential to prepare plaintiffs to distinguish between things they absolutely cannot do and things they can do but with difficulty. In addition to this (as a plaintiff’s lawyer) I always give my clients the following advice:

The worst mistake you can make is to not tell the truth.

Do not guess.

Listen carefully to the questions.

Answer the questions directly and fully.

Be polite and respectful.

Don’t try to outthink the examining lawyer – just answer the questions.

Don’t look to me to give answers.

Do not minimize your pre-morbid issues or minimize/exaggerate your injuries and impairments.

4 Rule 30.03(2). 5 See Yang (Litigation Guardian of) v. Simcoe (County) (2009) CarswellOnt 6572 (S.C.J.) and Waxman v. Waxman (2011) CarswellOnt 8817 (S.C.J.).


Know why you are there. The best discoveries are the ones that are focused and directed towards the objectives of the discovery process. The objectives of discovery are as follows:

1) To obtain admissions helpful to your case and to pin down the evidence of the other party on important points.

2) To gather information necessary to prove your case or necessary for your expert’s analysis.

3) To learn the case you have to meet and expose the strengths and

weaknesses of your opponent’s case. 4) To assess and weaken the credibility of the opposing party.

Proper preparation, with these objectives in mind, will help you focus and obtain helpful evidence.

TAB 8

Faculty Biographies

Mastering Winning Discovery Techniques October 31, 2016

Co- Chairs Brian G. Grant, Lerners LLP Brian Grant is a partner at Lerners LLP in Toronto. Since his call to the Bar in 1994, he has litigated personal injury, negligence and professional liability cases, for plaintiffs and defendants. Brian’s practice also includes cases involving municipal liability, property loss, wrongful arrest and insurance disputes. Brian has conducted jury and non-jury trials and appeals at all levels of court in Ontario. He teaches often, including acting as a Team Leader and Instructor at the Intensive Trial Advocacy Workshop each summer. Brian is certified by the Law Society as a Specialist in Civil Litigation. For more information, see Brian’s bio at www.lerners.ca. Linda M. Plumpton, Torys LLP Linda Plumpton is a partner in Torys’ Litigation and Dispute Resolution Practice. She has a broad commercial litigation practice focusing on class action defence, competition litigation, corporate/commercial disputes and securities litigation. Linda has appeared as counsel in the Supreme Court of Canada, in all levels of court in Ontario, and in the Federal Court, as well as before the Competition Tribunal and the Ontario Securities Commission. Speakers Master Ronald Dash, Superior Court of Justice Master Dash was called to the Ontario Bar in 1974. He received his intensive mediation training certificate in 1998. He was a partner with the law firm of Zammit, Dash & Semple in Toronto from 1974 to 2001 practicing in the areas of civil litigation, mediation and family law. He is a member of the Canadian Bar Association - Ontario, the Toronto Lawyers Association, the Advocates Society and the A.D.R. Institute of Ontario. Master Dash was appointed as a case management master of the Superior Court of Justice in Toronto in March 2001. As a case management master, Master Dash hears interlocutory motions and conducts pre-trials, settlement conferences, case conferences, status hearings and references. He has spoken at numerous continuing education programs for the legal community on issues of case management, pre-trials, motions, mediation, advocacy and civil procedure. Master Dash served as Administrative Master for Toronto Region from January 2007 until April 2010. Sarit E. Batner, McCarthy Tétrault LLP Sarit E. Batner is a partner in McCarthy Tétrault LLP’s Toronto Litigation Group. She maintains a significant trial and appellant litigation practice, with a focus on complex commercial litigation and arbitrations. Ms. Batner has extensive trial and appellate experience in cases considering breach of contract, shareholder disputes, taxation, oppression, professional negligence and breaches of fiduciary duties. Ms. Batner has experience before courts of appeal, including as lead counsel before the Supreme Court of Canada, and trial courts with juries, arbitration panels, administrative and regulatory tribunals. She has a particular interest in professional liability matters, having acted as counsel for doctors as well as engineers, accountants and lawyers, in a wide variety of cases. Set out below are some of the trials and appeals in which she has been counsel, as well as some of Ms. Batner’s other recent cases before the courts. Ms. Batner has a record of success before all levels of courts in Ontario and often speaks and writes on matters of substantive law and procedure. She also teaches Trial Advocacy to both students and lawyers. She is frequently invited to speak at legal conferences. The current edition of Lexpert / American Lawyer Guide to the Leading 500 Lawyers in Canada lists Ms. Batner as a leading lawyer in the area of Corporate Commercial Litigation. She is also listed as a leading lawyer in the current editions of Chambers Global: World’s Leading Lawyers for Business in the areas of Litigation and Dispute Resolution, and in Chambers Canada in the area of Dispute Resolution. She is listed as a leading lawyer in the current edition of Canadian Legal Lexpert Directory in Personal Injury, Professional Liability, Litigation: Corporate Commercial and Medical Negligence. She is also listed as a future star in the current edition of

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Faculty Biographies


Benchmark Litigation: Guide to Canada’s Leading Firms and Attorneys. In 2015, Ms. Batner was included in Benchmark Canada’s list of the Top 25 Women in Canadian Litigation for the second consecutive year. In 2013, she also received the Rising Star in Litigation Award at Euromoney Legal Media Group’s Americas Women in Business Law Awards and was selected by Lexpert as one of the Rising Stars – Leading Lawyers under 40. Ms. Batner obtained a B.Sc. with Distinction in Mathematics and was awarded the Gold Medal in Sciences from the University of Western Ontario in 1995. She obtained a JD from the University of Toronto in 1998, was called to the Ontario bar in 2000 and was made a partner in 2006. Catherine A. Bruder, Bruder Springstead LLP Catherine A. Bruder is an experienced civil litigator, and founding partner of Bruder Springstead LLP. Catherine has appeared as counsel in the Ontario Superior Court of Justice, Divisional Court, and the Ontario Court of Appeal. Catherine has also appeared on applications and arbitrations before the Workplace Safety and Insurance Appeals Tribunal and the Financial Services Commission of Ontario, respectively. Catherine has a diverse civil litigation practice, encompassing areas including serious personal injury, professional negligence, product liability, commercial disputes and insurance coverage issues. Catherine has a keen understanding of her clients’ needs and interests, and takes pride in servicing those needs in an innovative, effective and timely way. Catherine has deep ties in the legal community. She has presented a number of seminars to lawyers and insurance professionals on topics including commercial general liability policies, automobile insurance policies, Workplace Safety and Insurance Act applications, and advertising injury offences. James Bunting, Davies Ward Phillips & Vineberg LLP Jim Bunting is a partner in the Litigation group. He is a trial lawyer experienced in a diverse range of areas, including arbitration, class actions, franchise disputes, advertising and deceptive or unfair trade practice disputes, securities litigation, defamation, executive employment matters, misuse of confidential information claims and sports-related disputes. Jim has been involved in a wide variety of complex trials and hearings. His experience includes a precedent-setting case involving deceptive advertising allegations made by the Commissioner of Competition, a landmark case before the International Court of Arbitration for Sport and a number of appeals involving challenges under the Canadian Charter of Rights and Freedoms. Jim is consistently named one of Canada’s leading litigators by legal directories. His recognitions include being named in the Report on Business/Lexpert special edition Canada's Leading Litigation Lawyers, in Chambers Canada as an up-and-coming lawyer in Dispute Resolution and in Benchmark Canada as a Litigation Star in Class Actions, Commercial Litigation and Securities. In 2014, Jim was named as one of the Lexpert Rising Stars: Leading Lawyers Under 40 and in 2016 he received Lexpert’s Zenith Award in recognition of his contribution to the advancement of diversity and inclusion in society through his pro bono work with athletes. Daniel Dooley, Dooley Lucenti Barristers and Solicitors Dan Dooley is one of the founding partners of Dooley Lucenti Barristers & Solicitors in Barrie. He has a wide range of mediation, tribunal, trial and appellate experience. His tort work includes professional negligence and personal injury defence litigation, fires, contamination spills, construction disputes, mortgage remedies and general litigation. His insurance work relates to title insurance opinions, remedies and litigation and insurance coverage opinions relating to the duty to defend and policy language interpretation. Dan has been counsel of record in over 50 reported judgments. Dan successfully completed the Advanced Mediation Workshop in Mediating Complex Disputes, an Executive Education course in the Program on Negotiation at Harvard Law School. Dan has been officially named on the Best Lawyers in Canada list for 2016 and 2017. Since 1996, Dan has served as a Deputy Judge of the Small Claims Court.

Andrew Faith, Polley Faith LLP Andrew Faith is a partner of the Toronto law firm Polley Faith LLP. His practice focuses on commercial, regulatory, and criminal litigation. Andrew is a Fellow of the International Academy of Trial Lawyers, adjunct professor of Trial Advocacy at Osgoode Law School, and serves as duty counsel for the Ontario Court of Appeal

Faculty Biographies


Inmate Appeals program. In addition to his business litigation practice, Andrew has a significant focus in health law, representing nurses and physicians in civil, regulatory and criminal matters. Andrew was counsel to the Canadian Critical Care Society before the Supreme Court of Canada in the landmark end-of-life case Cuthbertson v. Rasouli and was counsel to the applicant in A.B. v. Canada (Attorney General), the first decision in Ontario to authorize a physician-assisted death for a terminally ill patient. J. Sheldon Hamilton, Smart & Biggar Sheldon Hamilton has been recognized as one of Canada’s leading patent litigation lawyers. Over the course of 21 years, Sheldon has acted as counsel for many of world’s most innovative companies in relation to commercially significant products. Sheldon has particular experience in pharmaceutical litigation, appearing as both trial and appellate counsel, including in proceedings under the Patented Medicines (Notice of Compliance) Regulations. Sheldon has extensive trial experience focusing on issues of patent infringement and validity, and damage quantification. Sheldon has been recognized by a range of leading Canadian and international publications, including Who’s Who Legal: Life Sciences, IAM Patent Litigation 250, Benchmark Canada, and The Best Lawyers in Canada. Sheldon writes and speaks on intellectual property issues and is active in committee work in a number of professional organizations, including as a Director of The Advocates’ Society. During his off-hours, Sheldon is an avid runner, having completed 24 marathons including Boston (twice), New York, Chicago and Prague.

Rebecca Jones, Lenczner Slaght Royce Smith Griffin LLP Rebecca Jones is a partner at Lenczner Slaght. Rebecca's practice encompasses a wide range of areas, with a particular focus on class actions, professional liability, and public and administrative law. Rebecca's clients include medical professionals and other individuals, corporations, law firms, and administrative bodies. Rebecca has appeared before all levels of court in Ontario and acted as co-counsel in a case that was argued before the Supreme Court of Canada. She acts as counsel in private arbitrations aimed at resolving complex commercial disputes, and provides advice on constitutional issues faced by her clients. Rebecca acts as counsel in complex class actions, with particular expertise defending lawyers and law firms. Rebecca's expertise in the professional liability area includes defending physicians in court and before their College, and acting as a prosecutor for other Colleges governed by the Regulated Health Professions Act. Rebecca appears regularly before Discipline and Fitness to Practice Committees at these Colleges. Rebecca also acts as independent legal counsel. Rebecca is asked to speak at conferences in the area of professional regulation. She also chairs the firm's Pro Bono Committee and co-chairs the firm's Associate Program.

Lisa K. Talbot, Torys LLP Lisa Talbot is a partner in the firm’s Litigation and Dispute Resolution Practice and Pensions and Employment Practice. She is co-head of the Pensions and Employment Litigation Practice and also heads the firm’s Privacy Practice. Lisa’s practice focuses on employment litigation and advisory work, privacy and commercial disputes. She has appeared as counsel in the Superior Court of Justice and the Court of Appeal for Ontario, the Ontario Human Rights Tribunal, the Ontario Workplace Safety and Insurance Appeals Tribunal and in numerous mediations and arbitrations. Lisa has expertise in all aspects of employment law, acting in an advisory capacity and as litigation counsel. She regularly acts for and advises employers on sensitive and high-profile executive departures, individual and mass terminations, wrongful dismissal claims, hiring and competitive recruiting issues, departing fiduciary and restrictive covenant issues, bonus disputes, policy-setting, internal investigations, human rights, and harassment claims. Lisa also advises clients in a range of industries on workplace privacy issues, cross-border transfer of personal information, policy-setting and compliance with privacy law obligations.