The Power of Perspectives

The Canadian Bar Association

Alexander Gay

Technology

The use of predictive coding in Canada

By Alexander Gay October 30, 2017 30 October 2017

The use of predictive coding in Canada

 

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

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

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

Read More
Litigation

Expert shopping: Paying the price

By Alexander Gay September 21, 2017 21 September 2017

Expert shopping: Paying the price

 

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

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

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

Read More
Litigation privilege

Does litigation privilege always apply to internal investigations?

By Alexander Gay May 19, 2017 19 May 2017

Does litigation privilege always apply to internal investigations?

 

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

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

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

Read More
Corporate law

The law of corporate responsibility must reflect the new corporate reality

By Alexander Gay April 20, 2017 20 April 2017

The law of corporate responsibility must reflect the new corporate reality

 

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

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

Read More
Commercial disputes

Where did it happen? Causing loss by unlawful means

By Alexander Gay March 1, 2017 1 March 2017

Where did it happen? Causing loss by unlawful means

 

Torts are what happens when one person causes a loss to another.  Where they happen is an entirely different question. And it can be even trickier to figure out where a plaintiff should sue a defendant for interfering, unlawfully, in its business activities – what we call unlawful means tort. It’s a question Canadian courts have yet to resolve.

That’s because a series of events may be at play, and only one might determine where the tort happened.

It’s an issue we have mostly managed to ignore so far. In 2012 the Supreme Court in its Van Breda ruling gave us a two-stage inquiry into assessing whether a given court should assume jurisdiction over a tort. First, it’s up to the plaintiff to establish that a factor presumptively connects the litigation to the jurisdiction. That could be the location of where the tort was committed. Or it could be another connecting factor, such as where the defendant carries on business. Then, for the second part of the inquiry, it’s up to the defendant to rebut the presumption by showing that, based on the facts, the connection isn’t enough to be substantial and does not point to any real or strong relationship between the subject matter of the litigation and the forum.  If the defendant is successful on this count, the court must decline on jurisdiction.  

Read More