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Pre-Conference Workshop
Fundamentals of Evidence: A Refresher
October 21, 2011: 1:00 p.m. – 4:00 p.m.
Workshop Leaders
Jacqueline L. King, Shibley Righton LLP
Thomas McRae, Shibley Righton LLP
Gaynor Roger, Shibley Righton LLP
This popular annual workshop regularly garners praise
for its lively commonsense review of the essentials of
civil evidence, and for its emphasis on topics which workshop participants indicate are of greatest interest
to them, 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 |
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Day One: Monday, October 24, 2011 |
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| 8:30 |
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Registration and Continental Breakfast |
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| 9:00 |
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Chairs’ Welcome and Introductory Remarks |
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| 9:05 |
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The Year in Review: The Most Important Evidence Cases in the Past Twelve Months
Robert B. Bell, Borden Ladner Gervais LLP
One of the most eagerly anticipated features of this annual program, enabling you to keep on top of the cases and their practical implications. The session will include opportunity for questions and discussion.
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| 10:15 |
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Refreshment Break |
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| 10:30 |
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Mastering Documentary Evidence
Andrew Bernstein, Torys LLP
Kenneth C. Cancellara, Q.C., Ricketts, Harris LLP
The focus of this popular topic this year is on the specific, practical applications of the Rules and caselaw to a variety of commonly-encountered situations and issues, such as:
• 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
• Third-party communications
• Altered document drafts versus final versions and distinguishing between earlier and later annotations
• Statutory notice periods
• Effective use of Requests to Admit
• Current applications of the parol evidence rule |
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| 11:30 |
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The Spectrum of Objections: A Practical Guide
Igor Ellyn, Q.C., C.S., Ellyn Law LLP
• When not to object – making the tougher judgment calls
• Arguments to make on objections or in response to objections
• Presenting the objection in the most effective and professional manner
• Objections you might not have thought to make
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| 12:10 |
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Luncheon |
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| 1:15 |
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Ethical and Professional Issues in Dealing With Witnesses (Expert and Non-Expert: Why What’s Right is Also Smart)
Sean Dewart, Dewart Gleason LLP
Practitioners’ attention has been focused recently on the amendment to Rule 53 governing their ethical and professional obligations in regard to expert witnesses and experts’ reports, and the impact of these obligations on items to address in commissioning experts’ reports. But the extent to which litigators must
be aware of, and sensitive to, a broader range of
potential ethical conundrums in dealing with both
expert and non-expert witnesses, demands equally
close attention. This session will identify the key
points every plaintiff’s and defence counsel must bear
in mind, illuminated by reference to specific examples and workable solutions. |
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| 1:50 |
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Expert Evidence Demo (Direct and
Cross-Examination, Judge’s Rulings
and Debriefing/Discussion)
Judge
The Hon. Justice Elizabeth M. Stewart
Superior Court of Justice (Ontario)
Counsel
Tom Curry, Lenczner Slaght Royce Smith Griffin LLP
Anne E. Spafford, Lerners LLP
Expert
Dr. David Rosenbloom, Clinical Professor (Neurology) Department of Medicine, McMaster University
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| 3:00 |
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Refreshment Break |
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| 3:10 |
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The Judges Speak!
Part I – Tough Calls for Counsel
The Hon. Justice Mark L. Edwards
Superior Court of Justice (Ontario)
The Hon. Justice Sarah E. Pepall
Superior Court of Justice (Ontario)
The Hon. Justice Nancy J. Spies
Superior Court of Justice (Ontario)
Moderator
James C. Morton, Steinberg Morton Hope
& Israel LLP
A retooled version of the panel that is a perennial favourite of program attendees. Get the judges’ perspective on how to enhance your skills in dealing
with evidentiary problems, with examples drawn from areas expected to include privilege, documents, evidentiary sources outside the immediate
proceeding, expert evidence, and problems relating
to social media (including Facebook).
As usual, the session will provide an opportunity
to have your most pressing questions addressed.
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| 4:30 |
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Day One Adjourns
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Day Two: Tuesday, October 25, 2011 |
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| 8:30 |
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Continental Breakfast
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| 9:00 |
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Chairs’ Introduction to Day Two |
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| 9:05 |
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Evidentiary Problems on Motions and Applications
The Hon. Justice Paul M. Perell,
Superior Court of Justice (Ontario)
Henry A. Gluch, General Counsel,
Justice Canada
The judge who wrote the recent and leading decision in this area joins with a distinguished Crown litigator to provide a thoughtful and practical examination in areas such as:
• How evidentiary problems on motions and applications compare to their equivalents at trial
• The difference between examinations for discovery and cross-examinations on an affidavit
• Undertakings given at an examination and on
cross-examination (and does consideration of this area differ under the Federal Court Rules?)
• What is full and frank disclosure on ex parte motions and applications?
• What are the consequences if, on review, you are
found not to have made such disclosure? To prevent this, should you lead evidence of what in your view are immaterial facts?
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| 10:15 |
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Refreshment Break
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| 10:30 |
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A Checklist of Best Practices in Using Demonstrative/Illustrative Evidence
Richard M. Bogoroch
Bogoroch & Associates
• Cost-effective use of demonstrative evidence in
smaller cases
• Getting the material admitted – establishing accuracy, necessity and lack of prejudice to the opposing party
• Judicial consideration of demonstrative evidence
• Tips on a variety of forms of demonstrative and illustrative evidence, from charts and photographs to animation and computer simulations
- making the evidence as persuasive as possible
- what works best, what doesn’t, and why
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| 11:25 |
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Confidentiality, Disclosure and Privilege: Application of the Wigmore Criteria
James C. Morton, Steinberg Morton Hope
& Israel LLP
Understanding and using, from both plaintiff’s and defence perspectives, the four key elements of the test:
• The requirement that communications originate
in confidence
• Establishing that this confidence is "essential"
• Significance of "the opinion of the community"
• The injury that would result from disclosure versus the benefit to the administration of justice
With an assessment of the current status and near future of the test under Canadian law.
• Key cases in the area and the questions they leave unanswered: Atlantic Sugar, Gruenke, Farnsworth, etc.
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| 12:00 |
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Luncheon, with Speaker
The Hon. Chief Justice Michael MacDonald
Nova Scotia Court of Appeal
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The Chief Justice’s talk will center on “Judicial Notice: What Are the Boundaries?”
• What are the natural justice issues flowing from
judicial notice?
• What obligation (if any) does the judge have to let
counsel know that judicial notice is being taken?
• Judges taking notice of material found via Google
Understanding the limits of judicial notice can have a significant (in some instances, decisive) impact on your case. Ensure that your grasp of the issues is fully informed and up-to-date.
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| 1:15 |
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Obtaining Evidence from Outside the Jurisdiction and from Other Proceedings
Thomas G. Heintzman, O.C., Q.C.
McCarthy Tétrault LLP
Are you confident that you have explored all the most useful and relevant sources of evidence to bolster your case, including evidence from other jurisdictions and proceedings, and that you can obtain and admit all
such evidence?
• Evidence on commission and de bene esse
• Using evidence obtained in other proceedings to
cross-examine in an Ontario proceeding
• Obtaining the waiver of the implied undertaking
• Proof and use of transcripts from other hearings
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| 1:55 |
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Refreshment Break
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| 2:10 |
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Prove It! Perennial and Sometimes Tricky Evidentiary Problems Solved
Sandra A. Forbes, Davies Ward Phillips & Vineberg LLP
W. Grant Worden, Torys LLP
A concise, focused grab-bag of evidentiary hurdles faced by every civil litigator at one time or another, with valuable and current tips on how to resolve them – such as:
• Handwriting
• Telephone conversations
• Doctors’ notes
• Proving aboriginal status
• Proof of government documents and public records
• Emails
• Minutes of corporate meetings
• Foreign statutes
• Bylaws
• Scientific testing
• Correcting the evidentiary record
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| 3:00 |
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The Judges Speak!
Part II – Tough Calls for Counsel in Civil Evidence
The Hon. Justice Joan L. Lax
Superior Court of Justice (Ontario)
The Hon. Justice T. David Little
Superior Court of Justice (Ontario)
The Hon. Justice Laurence A. Pattillo
Superior Court of Justice (Ontario)
The Hon. Justice Herman J. Wilton-Siegel
Superior Court of Justice (Ontario)
Moderator
Jacqueline L. King, Shibley Righton LLP
A continuation of the previous day’s discussion of key issues and problems, with a different panel of three justices of the Superior Court of Justice (Ontario).
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| 4:30 |
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Program Concludes |
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CREDITS
