The Civil Litigator’s Survival Guide To Evidence 2022

Jacqueline L. King, C.S.
Shibley Righton LLP

Sandra Barton
Gowling WLG

What makes evidence admissible? An annual update focusing on recent case law, emerging issues and practical tips, dealing with:

• How to ensure your electronic evidence is admissible
• Relevance and materiality: their meaning and practical implications under current law
• How pleading technique influences how a judge will think about relevance and materiality in a particular case
• Arguing prejudicial vs. probative value
• Tactics for maximizing the weight of your evidence
• How to use virtual documents and business records to bolster your case

Geoff R. Hall
McCarthy Tétrault LLP

Rahat Godil
Fasken Martineau DuMoulin LLP

A discussion on the current evidentiary issues surrounding motions and applications, including:

• Motions vs. applications: the key differences and their role in determining the evidence you need
• Strategies for effective written motions and applications
• How to avoid common mistakes in gathering or preparing evidence on motions and applications (including summary judgment motions)
• Tips on how to gather evidence for a motion during a virtual case-conference

10:20 a.m.
Break

Jacqueline King, C.S.
Shibley Righton LLP

Emily Fan
Lerners LLP

How have the courts interpreted hearsay in virtual proceedings over the past year? This session will refresh your understanding of critical concepts and discuss emerging issues. Topics to be discussed include:

• Proven techniques when introducing or responding to a prior inconsistent statement
• Recent applications of the rule of Browne v. Dunn and impact on admissibility
• What should counsel consider in specific situations?
• Looking ahead – cases on the docket for 2022

The Hon. Todd Archibald
Archibald Mediation & Arbitration Solutions Inc.

Megan Keenberg
Van Kralingen & Keenberg LLP

Special considerations must be applied to evidence in these distinctive modes of dispute resolution – namely mediation and arbitration. Topics include:

• Evidence and the arbitral process
• Recent examples of the applicability of the rules of evidence
• Admissibility vs weight
• Hearsay, best evidence and the rules of common sense
• Recent application of the rule in Browne v Dunn in the arbitral context
• Rules applicable to expert evidence

Robert Bell
Lerners LLP

An update on evidentiary issues surrounding privilege, including:

• Proven strategies for challenging a claim of privilege
• Tools for protecting confidential corporate information
• Concerns relating to the disclosure of expert evidence and third-party information
• The exceptions to solicitor-client privilege and when the privilege is waived
• Dealing with the accidental disclosure of privileged documents
• Litigation privilege: its persistence after litigation ends
• Limitations on the privilege attached to mediation and settlement discussions

12:15 p.m.
Lunch Break

The Hon. Justice Michael Tulloch
Court of Appeal for Ontario

The Hon. Justice Jessica Kimmel
Superior Court of Justice (Ontario)

The Hon. Justice Sandra Nishikawa
Superior Court of Justice (Ontario)

This highly anticipated annual panel will let you hear directly from the decision makers. This is your chance to get your questions answered and engage with the judges. A selection of challenging situations (including the potential impact at the Court of Appeal) and practical solutions, drawn from such areas as:

• Evidence in virtual proceedings
• Applying the best evidence rule in relation to documents
• Evidence on summary judgment motions
• Affidavits and witness statements: when to choose one over the other
• Gathering evidence from persons outside the jurisdiction
• Getting around the business records exception in the Evidence Act
• Using electronic forms of evidence

The Hon. Justice Alison Harvison Young
Court of Appeal (Ontario)

Sheila Block
Torys LLP

Updates and recent case law on expert evidence, including:

• Techniques for handling experts in a virtual trial
• Determining the admissibility/reliability of expert evidence
• Tips on qualifying opinion evidence
• Which sources may be “inherently suspect”?
• Difficulties encountered (and surmounted) in challenging experts

2:25 p.m.
Break

Ranjan Das
Berkow Youd Lev-Farrell Das LLP

Brian Greenspan
Greenspan Humphrey Weinstein LLP

Frank Walwyn
WeirFoulds LLP

This session will explore commonly encountered fact situations that raise ethical and professional issues, with practical advice on how to address them in a manner consistent with your roles as advocate for your client and as officer of the court.

The Hon. Justice Peter Cavanagh
Superior Court of Justice (Ontario)

The Hon. Justice Cory A. Gilmore
Superior Court of Justice (Ontario)

The Hon. Justice Ria Tzimas
Superior Court of Justice (Ontario)

Chantelle Cseh
Davies Ward Phillips & Vineberg LLP (moderator)

Get trial advice directly from the decision-makers. This panel of judges will discuss what to do and what not to do in the courtroom, providing their unique perspective and practical tips on different evidentiary matters including, unfavourable evidence (oral and documentary), crafting compelling openings and closings, conducting successful electronic trials, dealing with electronic evidence, and more.

4:30 p.m.
Program Ends