Workshop Leaders

James C. Morton, Steinberg Morton Hope and Israel LLP
Jacqueline L. King, Miller Thomson LLP

This popular annual workshop regularly garners praise from registrants for its brisk, commonsense review of the essentials of civil evidence, and its emphasis on points of particular interest to the workshop registrants, drawn from such areas as:

• Onuses, burdens and presumptions
  
• The rule in Browne v. Dunn
  
• The best evidence rule: getting to the right source
  
• Organizing documents for maximum efficiency
  
• Objections on discovery and their use at trial
  
• Powerful advocacy on motions and applications
  
• Requests to Admit, stipulations and admissions in pleadings
  
• Witness preparation and communicating with the witness

  during trial
  

• Drafting effective pleadings on admissibility of evidence
  
• Use of affidavit evidence as evidence-in-chief
  
• Use of evidence where the witness is no longer available to testify
  
• The missing witness: what happens when evidence isn’t called?
  
• Admissibility of expert evidence
  
• Establishing (or undermining) an expert’s credibility
  
• Admissibility of novel science
  
• Similar fact evidence – tips on how and when to use it
  
• Presentation of illustrative evidence

Welcome and Introduction

James C. Morton, Steinberg Morton Hope and Israel LLP
Jacqueline L. King, Miller Thomson LLP

The Year in Review: The Most Important

Evidence Cases of the Past Twelve Months

John J. Chapman, Miller Thomson LLP

One of the most eagerly anticipated features of this annual program, and a concise way to keep on top of the cases and their practical implications. The session will include a full opportunity for questions and discussion.

The Impact of Privacy Interests on the Admissibility

of Evidence: Where We Are, Where We’re Headed

Vincent M. de Grandpré, Torys LLP
Mary O’Donoghue, General Counsel and Manager of Legal Services – Information and Privacy Commissioner/Ontario

• The impact of PIPEDA on the use and disclosure of personal information
  
• Limits on evidence culled from online sources
  
• Protecting trade secrets and other confidential information
  
• Limitations on disclosure of Crown briefs and disciplinary records
  
• Protecting confidential corporate information within the court process
  

Solicitor-Client and Litigation Privilege Update

• Litigation privilege: its persistence after litigation ends
  
• Scope of the privilege
  
• Limitations on the privilege
  
• Waiver of the privilege
  
• Practical advice on how to challenge a claim of privilege

Mastering Documentary Evidence

Robert B. Bell, Borden Ladner Gervais LLP
Gary H. Luftspring, Ricketts Harris LLP

• Effectively using or countering documentary evidence
• Approaches to using affidavit evidence as
  evidence-in-chief
  
• Adducing evidence where the witness is no longer able to testify
  
• Tactics for introducing business records at trial
  
• The latest on third-party communications
  
• Potential difficulties in proving documents at trial
  
• Altered document drafts vs. final versions and distinguishing between earlier and later annotations
  
• Statutory notice periods
  
• Effective use of the Request to Admit
  
• Current state of the parol evidence rule
  

How To Make the Most Effective Use of Discovery Transcripts

The speakers will go beyond generalizations and principles to examine best approaches to a number of specific, challenging situations of the kinds that you have encountered or will encounter in your practice.

The Judges Speak!
Part I – What’s Admissible, When?

The Hon. Justice J. David Watt, Court of Appeal for Ontario
The Hon. Justice David M. Brown, Superior Court of Justice (Ontario)
The Hon. Justice Paul M. Perell, Superior Court of Justice (Ontario)
The Hon. Justice Julie A. Thorburn, Superior Court of Justice (Ontario)

Moderator
James C. Morton, Steinberg Morton Hope and Israel LLP

A retooled version of the panel that is a perennial favourite of program attendees, focused this time on specific problems of admissibility and their
solution, in the areas of:

• Electronic evidence
  
• Discovery evidence
  
• Evidence from sources outside your proceeding
  (from prior proceedings, non-parties, etc.)
  
• Expert and opinion evidence along with the impact of privilege

on admissibility

The session will provide opportunity for questions, answers and discussion.

Is It or Isn’t It Hearsay? Getting Down to Cases

J. Thomas Curry, Lenczner Slaght Royce Smith Griffin LLP
Kenneth Jull, Baker & McKenzie

• Recent law on hearsay
  
• “Traditional” hearsay – does it still exist?
  
• Hearsay in written evidence: ruses and remedies
  
• Hearsay in oral evidence: if, when and how to object
  
• Statutorily permissible and strategic uses of hearsay
  
• Admissibility and weight: how to persuade the Court

Evidence from Diverse Sources: Have You Gone Everywhere

You Need to Go? (And How to Handle What You Find)

Thomas G. Heintzman, OC, QC, McCarthy Tétrault LLP
Marie Henein, Henein and Associates

Are you confident that you have explored all the most useful and relevant sources of evidence to bolster your case? This panel will provide authoritative practitioner perspectives on gathering and adducing evidence.

• From individuals and institutions other than the parties?
  
• From other proceedings
  
• From out-of-court examinations

Electronic Evidence and SOAPS

(Sources, Organization, Admissibility, Preservation, Spoliation)

Andrew E. Bernstein, Torys LLP
Duncan C. Boswell, Gowling Lafleur Henderson LLP
Edmund Huang, Counsel, Crown Law Office—Civil
Ministry of the Attorney General (Ontario)

• Preserving the evidence – and what it means to your

case if you don’t

• Communicating with clients re: their obligation to preserve evidence
  
• Proportionality: best arguments for limiting the obligation
  
• The most relevant recent caselaw identified and surveyed
  
• Online/social networking evidence, evidence from Internet providers, etc.
• It came from the office photocopier
  
• Is it authentic? Prove it!
  
• Current thinking re: the Sedona Canada E-Discovery Guidelines
  
• Understanding the scope of production obligations
  
• Consequences of destroying electronic records

Best Approaches to Opinion and Expert Evidence

James R. Lane, Bersenas Jacobsen Chouest Thomson Blackburn LLP
Barbara A. MacFarlane, Torkin Manes LLP
David S. Rose, Neuberger Rose LLP

A panel of experienced counsel takes you through vexing problems of admitting and dealing with opinion and expert evidence in light of the most recent law. Includes:

• How to determine the reliability of expert evidence
  
• Lawyers’ difficulties in challenging experts
  
• Techniques for handling experts on the stand
  
• What constitutes acceptable opinion evidence?
  
• Tips on qualifying opinion evidence
  
• Techniques for qualifying expert reports
  
• Delivery requirements for opinion evidence
  
• The ultimate issue
  
• Experts
  - admissibility, qualifications
  - experts foundation, sources, completeness and trial
  
• Picking the right expert
  
• Rule 53.03 and “the substance of his/her proposed testimony”; how much “substance” do you need to provide?
  - weight to be placed on facts not proved in evidence
  - limitations to the rule
  - which sources, other than parties, may be “inherently suspect”?
  - kinds of sources – which are best and weightiest?
  
• Litigation privilege and experts
  
• Independence of experts

The Judges Speak!

Part II – Turning Evidentiary Sow’s Ears Into Silk Purses

The Hon. Justice Susan E. Lang, Court of Appeal for Ontario
The Hon. Justice Michael Brown, Regional Senior Justice (Central East Region), Superior Court of Justice (Ontario)
The Hon. Justice Maureen D. Forestell, Superior Court

of Justice (Ontario)
The Hon. Justice Michelle Fuerst, Superior Court of Justice (Ontario)
The Hon. Justice Peter Lauwers, Superior Court of Justice (Ontario)

Moderator
Jacqueline L. King, Miller Thomson LLP

Once in a while the facts all line up for you to generate the proverbial “slam dunk”. Then you wake up. How do some counsel manage to deal with unpromising or inconvenient evidence in a way that turns ambiguous
cases (and even outright long-shots) into examples of outstanding advocacy? Our judges’ panel provides detailed commentary on the specifics of how to best assist the Court and your clients’ interests in these situations.