Gone are the days when a family law judge would tell a child’s counsel in a custody and access case that they should have their mouth washed out with soap for even broaching the idea of a judicial interview with the youngster. It happened to Toronto family law lawyer Martha McCarthy in the early ’90s. “I suggested a judicial interview with a child. The Children’s Law Reform Act provides that a child’s views and preferences shall be taken into account to the extent they can be ascertained. I said to the judge, ‘I’d like you to interview the child,’ and he said, ‘I will not — and you should have your mouth washed out with soap for even suggesting it.’”
Until recently it’s been a no-no in Ontario family law: judges talking directly to the children has been largely considered “politically incorrect; that is not the way we do things in Ontario,” says McCarthy. These days however, some judges are dipping their toes into the once-scalding waters of interviewing and meeting with children, albeit in varying degrees depending on the individual and jurisdiction. Bottom line: it’s an emerging issue that has its controversies, say lawyers.
While children’s voices have always been heard in these matters, they’re usually vocalized through a third party, says Cathryn Paul, an Oakville family law mediator and agent with the Office of the Children’s Lawyer. “It does happen now in Ontario that a judge will meet with a child in chambers, but it is fairly rare here because there are other ways to bring that voice into court,” she says.
But a dialogue happening now in Ontario could result in adding another tool to the kit for judges in these matters, including a system that assists in hearing from children directly, says McCarthy.
In spring 2011, a province-wide committee co-chaired by McCarthy and Dan Goldberg of the Office of the Children’s Lawyer, was struck under the umbrella of the Advocates’ Society and the Association of Family and Conciliation Courts, Ontario chapter, to write a discussion paper that will include draft guidelines for judicial interviews/meetings with children in custody and access cases, she says.
The committee, made up of judges, family lawyers, and mental health professionals, wrapped up a series of Ontario-wide town hall meetings with family law stakeholders in December. “The goal is to continue the dialogue about ways to put the child’s voice before the court, provide some suggested guidelines for when judicial interviews are more or less appropriate, and set out considerations for judicial interviews when they are occurring,” says McCarthy.
The idea isn’t to eliminate the already-tried-and-true methods that include mental health professionals, social workers, and/or the Office of the Children’s Lawyer, but rather add another option for certain cases that would benefit.
Toronto family law lawyer Murray Maltz says he has had clients who wanted their children to testify and “the judge has not been particularly receptive to it,” even though the Canada Evidence Act does provide that “. . . a person of any age is presumed to be competent to give evidence . . .”
And, of course, every situation will not call for it. Justice Ruth Mesbur, for example, in the 2010 alienation case S.G.B. v. S.J.L. wrote: “I do recognize that children’s wishes and preferences are relevant to determining their best interests, particularly in the case of older children such as JB. That said, the court does not have to hear from children directly to find out what their wishes and preferences are. . . . I saw no benefit in meeting with the boys in the course of the trial. To the contrary, I saw only negative effects in doing so, which is why I did not.”
“There are cases in which it will not be appropriate,” says McCarthy. “But there are also situations in which children want to have a say, or in which an entire dispute can be resolved by a judge speaking to a child, with great efficiency and savings for all. Think about a teenager whose parents are fighting about whether he should go on a trip over the summer; both parents say the child wants to spend the summer with them, but in five minutes a judge might discover the child would rather go to camp.”
Maltz says there is an ongoing discussion around the concept that in some instances children should be heard by judges directly, but in his experience, through the current method of third-party assessors, the “truth is ferreted out.”
The discussion paper idea evolved over three years, says McCarthy, after she had a conversation at a conference with Justice George Czutrin, Toronto’s chief family law judge. McCarthy says Czutrin had many international judicial colleagues who were surprised to hear that judges don’t regularly meet with children in Ontario. He suggested that renewed, thoughtful discussion about judicial interviews should be engaged to see if the current attitudes and approaches were best for serving children and families in custody cases. “I said to him, ‘Let’s do a program together.’ We went to the Law Society [of Upper Canada] and put together a program that became known as ‘The Voice of the Child.’ The program is a full day, multi-disciplinary, and starts with the co-chairs emphasizing that this is a dialogue and there is no
right or wrong answer. . . . It’s a true colloquium.”
The first was held in March 2009 and the third will be held this year on March 28. “At the end of the first year there was really a lot of interest and discussion and flexibility and people talking about all kinds of circumstances in which interviews were helpful or appropriate. Judges came and talked about how they have had interviews with children; they told stories about times that it worked and didn’t work. Custody assessors, social workers, children’s lawyers, child protection lawyers, and all kinds of family lawyers attended. We had a very diverse representation and there was way more flexibility and openness to discuss and consider the issue than I think anybody thought,” says McCarthy.
After the second conference, McCarthy says there was a consensus that, “we should be writing down some guidelines for judicial interviews — circumstances under which they’d be recommended or not and if they’re conducted, what should happen.”
There was also some change noticed, particularly in Toronto, after that conference. “We’ve seen an increase in judicial interviews in Toronto, though you’d still have to describe them as rare. But it is happening that judges are meeting children, lawyers are asking at motions and case conferences if the judge will see a child,” says McCarthy. “What I would say we saw as a trend emerging from our conferences is that there can be circumstances in which a judge or the family find interviews to be helpful. So we had judges telling stories about learning about a child’s particular extracurricular interest and taking that into account in fashioning a remedy, or a judge meeting with children after having rendered a decision to explain what was decided to the child.”
McCarthy says her opinion falls in the middle of the spectrum. “I think the forensic interview can be problematic and there’s real issues about procedural fairness,” she says. “During a trial I would have serious concerns about a forensic interview occurring. . . . But I am in favour of talking about it and being open to circumstances in which it can be a very helpful thing to everyone in the process, including the child.”
For her part, Paul says while she recognizes she may be biased, she believes Ontario’s OCL system is effective and, in fact, an unusual approach as
compared to the rest of North America to bring children’s voices to family law matters. “It’s rare that I hear anything as complete as what the Office of the Children’s Lawyer does.
“I will often hear from kids they just want their parents to fix it, to solve it, and they don’t want to make the decisions. They appreciate being heard about some things but they don’t want to be the ones who ultimately make the decisions,” says Paul. “You also have cases where there is strong alignment or estrangement or alienation and those are much more tricky and I think can be very hard to analyze based on only one meeting in a place that is not comfortable for children. It will take some kids several meetings to warm up to me and I’m not that scary. . . . I don’t have decision-making power.”
Paul says she doesn’t like the idea of the judicial interview and thinks it would have to be an extremely rare case that it would be the best option.
Maltz says he thinks “it is incredibly difficult for a child to be in a situation of divorce and separation. For the most part children love both their parents and to force the child to testify and give evidence against one or the other or put a child into a trial that’s adversarial in nature would be devastating.”
The town hall meetings have shown that diverse practices are already occurring “across the country and the province,” says McCarthy. “There are some judges who have never and will never interview children. There are some who already regularly meet with children, five days a week.”
She says the discussion doesn’t come without its concerns. For example, there is a provision in the Children’s Law Reform Act that says the conversations are supposed to be recorded, but that’s not happening at the moment.
And, she adds, that part of the mix is the proposition from the assessors that they do it best, arguing they see the child on several occasions, build a rapport and “that’s the way to do it. It’s a big issue. Other concerns we’ll deal with in our paper include questions like, are we going to have more judicial education, or judges who specialize in this, what the basic considerations are including who should be in the room, whether they are recorded, and what happens with the recording.”
McCarthy says what has emerged is “very diverse views and diverse experiences. I’m really glad we did the town halls because it’s going to give a level of authenticity and buy-in.” At the end of the day, she says: “There are all kinds of different children and problems and different ways of putting the children’s voices before the court.”
The paper is targeted for release this month at The Voice of the Child program.
|Illustration: Jacqui Oakley|
Monday, 05 March 2012 08:02 Written by Dera J. Nevin
A database of electronic documents to review presents a number of challenges, including how to find relevant and privileged documents in a quick and cost-effective manner. By taking simple steps to improve the search context, you could improve your review efficiency and accuracy.
By search context, I do not mean understanding what the legal issues are (although this is important, too), but rather understanding how the database containing the electronic evidence will respond to your proposed search. Search context can be improved with attention to three things: the state of the index; the searchability of the documents; and the bias of the search engine or search feature.
First, determine the state of the document database index. Understanding what is in the index and how it is built is necessary, because the quality of the index is critical to effective search. In almost every document database, the computer is not actually searching the documents in a literal sense. Instead, the computer is searching the index. The index can be analogized to a table of contents, or a detailed index in the back of a textbook; when a user types a keyword, the computer looks first to the index and then uses the index to locate and highlight the indexed words inside the documents. If a word is not in the index, the computer may not be able to find it in the documents. That is why a well-built index is essential to search.
Indexes are built using index engines, and different document review tools contain different index engines and not all index engines behave the same way, or include the same words or characters in their lists. It is therefore important to check how the program is building that index if you want to really understand how and whether your searching will generate the results you want. Start by asking what the index engine is in your tool, and what it can index. Are there some words or figures it will not index? Can parts of words or numbers be indexed? What about punctuation, special characters, or elements of foreign languages?
Second, determine whether all the documents in your database that contain text are searchable. A document that contains text in the image may not, in fact, have that text available to the index engine, and that text is therefore not searchable. For example, pdf documents, which are created or converted to images, are not necessarily searchable. I encounter this often with pdfs that are attachments to e-mails. Often, these pdfs have been created on an office scanner which has not had its settings configured to create searchable text within the scanned document. When there are unsearchable files in your document population, you may wish to run a secondary process across those documents to make them searchable. Two related processes — optical character recognition and optical word recognition — can make the letters and words in those images available to the index engine, and therefore searchable.
Most litigation support systems that process files can produce a report that identifies files and file types that have not been indexed. Where a file type that could contain or that does contain text exists, but is un-indexed, you can send those files for additional processing, and rerun the index engine across those documents (or across the extracted text from those documents). It might also be useful to give any service providers you work with standing instructions to make text searchable where text is indicated or available.
Third, determine how the search engine within your document review platform works. Search engines are not neutral in the sense that each one has been programmed to work and return results in a certain way. This is a search bias and it is advisable to understand how those biases operate and whether your searching strategy needs to change as a result. For example, in many databases containing law, the newest results are presented first. Usually, that is not a problem, and we adjust our review of the results accordingly. However, one can imagine a situation in which the newest results (at a local court), are not as important as those from an older but more persuasive authority (for example, a Supreme Court of Canada decision). In litigation support databases, search engines can affect the presentation of results, usually in the context of the order in which results are returned. Understand how the search engine returns results and make any adjustments to your search strategy that may be necessary to offset the bias.
Understanding the context of your search helps you design appropriate searches and validate your search results. Now, check your search tool and determine whether it offers a larger range of functionality than keyword and Boolean searching. Some search tools offer fuzzy searching and thesaurus-based searching. These features can enhance searches.
Determine as well whether you need a tool with advanced search analytics that can recognize related concepts. Consider this: using the keyword “dog” will turn up only items in which that specific word is used. However, in a case about “dog,” relevant documents may also contain the terms: poodle, dachshund, canine, puppy, and Rover, as well as the related words “walk” and “bone.” Such documents would not appear in any search using the keyword “dog” unless the tool has functionality, such as word- or concept-clustering or thesaurus-based features that would also return those documents. I use this example to show both the limitations of relying solely on keywords, and to prompt inquiry into what other search functionality may be available or required.
Finally, do a quality assurance check on your search results. Do both a qualitative (testing related concepts) and a quantitative (testing a certain proportion of the remaining records) check to validate your search. Check a sample of the records not returned in search to verify that nothing was inadvertently omitted. Take good notes throughout your search, or save system reports, so that you can rely on those if ever your search results are challenged.
Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm’s e-discovery operations and can be reached at firstname.lastname@example.org.A database of electronic documents to review presents a number of challenges, including how to find relevant and privileged documents in a quick and cost-effective manner. By taking simple steps to improve the search context, you could improve your review efficiency and accuracy.
When it comes to dealing with First Nations issues in Canada, increasingly, industry and native groups are getting out in front of government in an attempt to build relationships and business. They are working on progressive agreements to advance opportunities economically both for the First Nations communities and the companies to expedite projects, particularly in the resource sector.
The missing link in this push forward, according to many aboriginal law experts, is government’s inability to make decisions and keep Canadian resource projects of interest to investors. “That is the elephant in the room — the government part of the issue and I think many of my First Nation friends would agree. What exactly is the game plan?” says Thomas Isaac, a partner with McCarthy Tétrault LLP who heads up the firm’s aboriginal law group based in Vancouver.
Isaac says neither provincial nor federal governments have been able to keep pace and develop sustainable treaties or interim measures to allow business and First Nations to feel they are being brought into the governance model. The ability to participate in the mainstream economy is what many First Nation groups are looking for, he says. It’s a concern held by many who represent both First Nations groups and business entities. “As one chief told me, ‘We can’t eat rights and title,’” says David Bursey, a partner with Bull Housser & Tupper LLP in Vancouver. “A lot of First Nations are looking to build something for their community.”
When it comes to big business and aboriginal groups working together, there has been significant change in the last five to 10 years, says Bursey. “We counsel First Nations and companies not to wait for government; try to develop relationships directly and there can be great success in that. Most companies are already there — they would rather work out the relationships. Business wants certainty. They want to know what roles and relationships will govern the transactions and projects they are seeking to develop. There are lots of disputes over rights and title, but we’re trying to focus on sustainable economic enterprise.”
Bull Housser has also worked on rights and title cases and represented various parties in some major cases right to the Supreme Court of Canada, but where Bursey sees the big drive these days is really on the business side.
Rio Tinto Alcan is one example of a company that a decade ago was looking to develop better relations with the First Nations groups they deal with. In 2000, Rio Tinto Alcan decided it wanted a different kind of legal counsel to assist it with First Nations projects so the mining giant interviewed a number of law firms. “From the outset of our work with Rio Tinto Alcan, it was that they were more interested in building good relations with neighbouring First Nations communities than litigating. That interest fit well with our approach,” says Bursey. “They told us we were the only ones they interviewed who brought business lawyers to the meeting. We told them, ‘You can fight, but we would rather build things with you, and you need to start working on your relationships with the First Nations. It will take some time but it will pay dividends in the long run.’”
A decade later, Bursey says the approach seems to have worked. Rio Tinto Alcan’s landmark agreement in principle with the Haisla Nation in support of its primary metal operations in British Columbia was officially ratified by the Haisla Nation membership in March 2010. The Haisla Nation-Rio Tinto Alcan Legacy Agreement establishes a formal framework for the two organizations to work together for the next 30 years to maximize the opportunities and benefits of aluminum operations in Kitimat, B.C. It is, in essence, a private treaty between the company and the Haisla.
Rio Tinto Alcan is going through a major modernization of its smelter to reduce emissions and create efficiency. The agreement helps establish a base from which both sides can benefit. It also represents a $3-billion investment in the B.C. economy. The deal also helps resolve some of the long-standing disputes from the past, says Bursey, who admits encouraging big business and First Nations to work together towards agreements that serve both groups economically and socially is not a revolutionary idea, but emphasizes it requires a certain mindset.
The Haisla have also formed a tripartite partnership in the Kitimat Liquid Natural Gas plant on land the Haisla held, which recently obtained a permit to export held by Encana Corp., Apache Corp., and EOG Resources Inc. “That could be a $5-billion to $7-billion project that we will hear about later this spring as to whether it will go forward,” says Greg D’Avignon, president and chief executive officer of the Business Council of British Columbia. “It was a key opportunity to do something that is vital to British Columbia and Canada’s future, which is to enable the export of natural gas which is about $3.50 in Canada, but by exporting it to Asia the price goes up to $10 to $12. The Haisla have done a phenomenal job, as one example, but it isn’t happening in every corner of the province.”
The negotiate-versus-fight approach has also worked in areas where business is extremely competitive such as the Prince Rupert Port Authority, which competes for business with other ports along the West Coast. The port’s inside legal counsel says over the years it’s proven to be more fruitful to take a business law approach. “We’ve moved away from a litigation footing and more into a commercial type of discussion,” says Andrew Mayer, vice president for commercial and regulatory affairs with the Prince Rupert Port Authority. “We don’t look to retain litigators to negotiate deals with First Nations, we look to retain business lawyers with an aboriginal law background who have a track record for negotiating accommodation agreements with First Nations.”
The port reached a comprehensive settlement agreement in March 2011 with the Tsimshian First Nation in Prince Rupert with respect to the port’s existing Fairview Container Terminal for a project that will quadruple the size of the terminal to 2 million 20-foot equivalent units (containers). The comprehensive settlement agreement provides the First Nations people with contracting opportunities for construction of the facility and a commitment to provide employment during the construction and operations phases and provides an ability to get some benefits in the form of ongoing payments throughout the life of the project. “The solution has been to work with aboriginal rights and title in mind, but to strike arrangements with local First Nations to give them opportunity to participate in all phases of the project,” says Mayer.
The deal also includes a framework for dealing with other types of consultation along the way and that gives aboriginal groups certainty over what their entitlements are for the next 40 years. “It also gives us certainty knowing we settled those issues around container-related development for the next 40 years,” says Mayer.
It’s all about convincing First Nation groups and corporations that going in with a strictly winner-takes-all approach doesn’t work, says Bursey. “We always say we’d rather build things than fight. We can fight if necessary, but [what] will really help is getting some sustainable economic enterprise within the communities to help resolve a lot of the issues.”
These kinds of business deals have been embraced by corporations and native groups alike as B.C.’s treaty process drags on. A report issued recently by Sophie Pierre, chief commissioner of the B.C. Treaty Commission, referenced the frustration with how sluggish the treaty process has been, says Bursey. “It’s been almost 20 years with very little to show for it.” Isaac says government is frozen by not wanting to make tough decisions. “You generate risks by not making decisions,” he says. “In my view that’s probably the single biggest public policy issue in this area. Sustainability — are our governments putting in processes that are in fact sustainable over time?”
What frustrates Isaac is that the Supreme Court of Canada has, in his view, been consistent in its approach to First Nations issues. “The one single theme flowing out of every decision on [Charter of Rights] s. 35 and the duty to consult — some 30-odd decisions — the consistent theme is the willingness of the court to defer to the Crown. It is the Crown’s obligation, not the court’s, to do the balancing act between aboriginal and competing societal interests. This is the fundamental message flowing out of the case law.”
D’Avignon of the Business Council of B.C. calls the treaty process “stagnant” and a “millstone” around the neck of the economy in terms of not providing certainty for capital to be invested in the marketplace. For government, it creates uncertainty with respect to the relationship it has with First Nations in the future. The Business Council of B.C is actively engaged with government and First Nations, particularly around the energy and resource sector. In 2005, it identified the 10 key trends that would shape the B.C. economy through 2010. Expanding the role of First Nations in economic and business development was identified as the No. 1 trend affecting business. “It’s a very heterogeneous issue depending on the First Nation, the region of the province, the government. It’s not just government but federal and provincial governments. Then you discern that into three areas: permitting around ongoing operations, the second would be projects and significant investments to create opportunity and wealth, and the third is with respect to treaty work that gets done,” says D’Avignon.
Companies have the choice to make an investment in central Asia or central British Columbia, says D’Avignon, and at the end of the day it’s about the certainty of the opportunity and the return on investment. He adds that while it has a good plan in place, the province of B.C. and the federal government tend “to be timid” in their approach to consultation and accommodation issues and vague in creating clear expectations for what agreements can and should look like.
In his experience, Mayer says there have been challenges but he doesn’t blame the federal or provincial government. Some of the challenges relate to determining the nature and scope of First Nations’ aboriginal rights. “Those issues need to be considered prior to development and when there have been delays or difficulties it often arises out of a need for clearer direction from the federal government,” he says.
Lawyers say First Nations issues are where environmental law was at in the late 1980s. Companies have realized they can be viewed as progressive or good corporate citizens if they develop good relationships with First Nations groups. Building trust is perhaps the biggest hurdle. On the corporate side, there has to be a willingness to try to be transparent and open. Some may see that as a loss of control because it involves accommodation that has a cost attached to it. On the flipside, native groups often fear giving up something in trying to establish rights and title with the Crown in a more permanent way. “You can satisfy both of those concerns by putting the rights and title fight to the side, because a private company cannot confirm or deny rights and title — that’s for the Crown to work out, but you can work into a business relationship a collaborative economic venture that doesn’t affect rights and title,” says Bursey.
But companies can’t go with the approach that they can fly into a community in their helicopters and expect they can work business magic with First Nations. There has to be a high degree of trust and that means big business has to be clear about what its interests are from the outset.
D’Avignon says both provincial and federal governments need to have very clear, definitive timelines around how long is adequate consultation. “Some First Nations are being inundated with licence renewals and permit renewals and review as well as project reviews and they don’t have the capacity.” On the other side, he says, industry doesn’t have the capacity either. He predicts the tipping point is coming where projects will slow and/or operations be interrupted because the cost of doing business will exceed the company’s ability to manage it either from a personnel standpoint or pure cost standpoint.
Governments desperately need a plan, says Isaac, especially at the provincial level, given some of the ideas they are considering. For example, B.C. is looking at offering revenue sharing — upwards of 37.5 per cent of mining tax on new projects provided to First Nations. “I’m not opposed to it — my question is ‘has anyone done an economic analysis of how do we replenish the monies as mines close in British Columbia?’”
Isaac says he coaches his clients to look at First Nations issues as just another area of risk management in their business. “You have to look at aboriginal issues as you would any other legal or practical risk issue,” says Isaac. “It can take the emotion out of the issue and from my observation that has been extremely helpful for my clients.”
|Illustration: Huan Tran|
ustice Paul Perell cracked open a hornets’ nest last July when he delivered a decision from the Ontario Superior Court ordering a group of corporate defendants to file their defence in a proposed class action, even though the case hadn’t yet been certified.
The judge’s order in Pennyfeather v. Timminco Ltd. — a shareholder lawsuit — ignited a wave of commentary among class action practitioners, bloggers, and Twitterers. “This decision represents a marked departure from the prevailing procedure in class actions,” said an article co-written by Bennett Jones LLP defence litigator Robert Staley. Mary Jane Stitt, a partner at Blake Cassels & Graydon LLP, was more blunt. Defendants, she told the Globe and Mail, are now “being asked to fight the battle before you even know whether you’ll have to go to war.”
Although Perell’s ruling actually reflects the wording of Ontario’s class action statute, it undercuts a 15-year, unwritten custom in which defendants typically wait until a case is certified before filing their defence. Perhaps the noisy reaction to it was less aimed at the decision itself, and more an expression of years of built-up frustration among the defence bar — a sense that the certification game is becoming increasingly stacked against them, and that courts are offering advice, re-interpreting conventions, and otherwise ushering plaintiffs through the certification gates.
Perhaps Perell’s ruling was simply the last straw. “There’s been a real surge in the common-law provinces in a liberalization in the courts’ approach to certification,” says Adrian Lang, a class action litigator with Stikeman Elliott LLP. “I’d like to think as a defendant that we will start to see a bit of retrenching. . . . We certainly can’t get more liberal than we are right now.”
Certification may be simply a procedural matter, but the stakes are high for both sides. Corporate defendants say a certified class action creates lousy optics: an impression in the public’s mind that the company has committed a wrong, even though the merits of the claim have yet to be judged. For plaintiffs, certification can be a tool to apply pressure against a defendant to settle before the case goes to trial.
Lang and her colleagues in the defence bar say in the early years, Canadian courts outside Quebec took a more cautious approach to certifying cases, following the introduction of class action legislation in Ontario and British Columbia in the 1990s. Individual preliminary motions were routinely accepted from defendants in advance of
certification. And statements of defence were commonly withheld with the courts’ approval until after certification, a custom that emerged from Ontario (now Chief) Justice Warren Winkler’s 1996 decision in Mangan v. Inco Ltd. that judges had wide discretion to allow such delays by defendants.
Laila Brabander, assistant vice president and specialty claims manager for Chubb Insurance Co. of Canada, who manages litigation against corporate defendants insured by Chubb, says there’s been a “noticeable change” in the courts’ approach in recent years. “There’s no question that the pendulum has swung, and recent decisions likely suggest that certification is easier,” she says.
In 2005, for example, in the national residential schools class action Baxter v. Canada, Winkler again influenced the system by ruling that certification motions should be heard promptly, and should not be delayed by other motions. That led to an increasing reluctance by other judges to entertain a series of technical challenges by defendants.
Elsewhere there have been examples of judges helping plaintiff lawyers draft more sustainable pleadings, as Perell did before he certified the overtime labour class action McCracken v. Canadian National Railway Co. in 2010.
There are also cases — as in Smith v. Inco, recently overturned by the Ontario Court of Appeal — of judges actively rewriting common issues during a trial. “There’s a perception that the practice of some judges assisting plaintiffs in improving their pleadings is unfair to defendants,” says Sonia Bjorkquist, a class action litigator at Osler Hoskin & Harcourt LLP. “I wonder about whether it’s tipping the balance in favour of plaintiffs.”
Other lawyers say judges are behaving properly. After all, the purpose of class actions is to extend justice to large groups of people who otherwise might not receive it. Why toss out a proposed lawsuit with the correct germ of an idea, simply because it hasn’t been pleaded correctly by the plaintiff’s counsel? “In the CNR case, the plaintiff lawyers didn’t describe the common issues exactly the way they should have to get certified, so Justice Perell modified them. He was doing his job,” says Kirk Baert, a plaintiffs’ litigator at Koskie Minsky LLP in Toronto. “To me it’s not logical, in a claim of half-a-billion dollars, to say, ‘You lose certification because of the way you worded your claim.’ That’s not the purpose of the justice system, to have a series of trap doors people can fall into. Cases should be decided on their real merit, and sometimes there are pleadings problems.”
The trouble is that judicial re-working of plaintiff pleadings has become so common
that defendants now have trouble knowing what precisely to defend, says Lang. “It makes litigating prior to certification a challenge, because you’re dealing with a constantly moving target.”
Meanwhile in competition class actions, “every province in this country, I would argue, has more recently become overwhelmingly plaintiff-friendly,” says Katherine Kay, a competition law specialist with Stikeman Elliott LLP. The B.C., Quebec, and Ontario courts have since 2009 certified a series of price-fixing cases — including Pro-Sys Consultants Ltd. v. Infineon Technologies AG in the B.C. Court of Appeal — despite difficulties in showing how harm was passed down through a distribution chain to indirect purchasers. Two similar cases in B.C. produced different rulings — Pro-Sys Consultants Ltd. v. Microsoft Corp. and Sun-Rype Products Ltd. v. Archer Daniels Midland Co. — that were granted leave to appeal to the Supreme Court of Canada
on Dec. 1, 2011.
Kay says certification has become almost a foregone conclusion in the competition area, not solely because the courts favour plaintiffs, but because in light of the complexity of these cases — and the conflicting expert evidence — courts are passing the buck to trial judges rather than scrutinizing whether a proposed class action meets the certification test. As a result, a series of “messy” cases, as Kay puts it, with “unbounded and inappropriate” common issues and class definitions, are winding up at trial. “The only time you have to resolve the issue of whether or not it’s an appropriate case to be treated as a class action, the only kick you get at that can is on certification,” she says. “So I would argue it’s an abdication — that’s a strong word, I appreciate that — but it’s an abdication of the court’s responsibility to duck these issues on certification and say, ‘You know what, we’re not up to dealing with them, so lets certify it and leave it to the trial judge.’
“The courts have made a policy decision, I would argue, that class actions are good, and we’re not going to subject them to the kind of scrutiny that we do other cases.”
The access to justice that class actions offer large groups of citizens, defence lawyers say, is likely what’s motivating judges to ease the way for plaintiffs in many certification proceedings. That, and the desire to streamline lengthy, expensive, and drawn-out pretrial procedures, may be the impetus behind Perell’s ruling on the early filing of statements of defence. “I don’t see that as a particularly pro-plaintiff decision,” says Baert. “I’d say it’s intended to make it easier for judges doing these cases to have a grip on what’s in dispute, earlier in the case.”
In his decision, Perell argues that the early delivery of a statement of defence “could be a fresh step that could foreclose any subsequent attack by the defendant for any pleadings’ irregularities.” But defence lawyers warn that Perell’s desire to streamline class actions, if adopted by other courts, could have the opposite effect. Rather than making the pre-certification phase more efficient, it could force defendants to file numerous technical and substantive preliminary motions at the very start of the pre-certification process, before their defence-filing deadline. “We’ll have to see how it unfolds,” says Bjorkquist. “Allowing defendants to attack dubious claims or sloppy pleadings, or over-broad pleadings before engaging in the costly certification process, could actually improve the system. On the other hand it may also threaten access to justice, because requiring defendants to bring a variety of motions will simply delay certification. Think about it — you bring a motion, you lose, you appeal, etc.”
What’s more certain, says Bjorkquist, is that filing an early defence will mean more defence amendments in response to ongoing plaintiff amendments, and therefore higher costs for defendants, as the case proceeds through certification. More importantly, she says: “Is it fair that defendants are forced to plead earlier, and disclose positions or strategy before determining whether the plaintiff has met their burden under the legislation, as to whether the proposed class action should succeed at all?”
Of course it’s fair, says Baert. “In all other types of litigation, no matter how complex, defendants file defences at the beginning, within the time limits and the rules. They manage to do so without the sky falling, or the world coming to an end.” Baert also calls complaints about a plaintiff-friendly trend in the courts “a lot of smoke.”
“I certainly don’t think it’s remotely plausible to argue that judges in this country are bending over backwards to help plaintiffs,” he says. “You only have to look at, where do most judges who handle complex litigation come from — the corporate law side. Is it likely there’s this cadre of extremely liberal judges who are looking to completely open the floodgates of class action litigation by bailing out incompetent plaintiffs counsel? Seems unlikely to me.”
|Illustration: Sara Tyson|
Tuesday, 03 January 2012 09:33 Written by Dera J. Nevin
In large civil litigation and regulatory cases, the discovery process is becoming increasingly automated, scientific, and objective. This is evident by the increasing use of “predictive coding.”
Predictive coding are the new e-discovery buzzwords. Articles about the benefits of predictive coding have appeared in Forbes magazine and The New York Times. In mid-2011, one company announced a patent for the technology, sparking a war of words in the e-discovery press.
Let’s start with what predictive coding is not. It is not the “eyes on every document” approach of traditional linear review, where a lawyer starts with the first document and looks at every collected document until every document is reviewed. That approach works well when there is a small amount of documents or in circumstances that require human eyes on every page. However, that approach becomes unwieldy and expensive when hundreds of thousands or millions of pages require review.
Predictive coding remains poorly understood because it is not just a technology but also a project management technique. Predictive coding is a series of computer search and sampling technologies, coupled with a new approach to searching for and reviewing potentially responsive documents. Properly combining all of these elements permits expedited, cost-effective, and highly accurate document review. Lawyers who use predictive coding need to understand how to combine these elements. It’s not necessarily the technologies that are indefensible — just certain uses of them. Judges need to learn to recognize when their use has been or will be ineffective.
Predictive coding has been described as lawyer-driven, computer-assisted document review. At its most basic, it is a form of automated document review; but strictly understanding it this way is to misapprehend the role predictive coding technology plays in searching for and retrieving potentially relevant documents. Predictive coding groups and organizes potentially relevant documents in a way that permits human reviewers to maximize their review time and look at potentially related matters together. I prefer to think of predictive coding not as review technologies, but as search retrieval and information organization technologies applied to the discovery review process.
Usually when predictive coding is described, lawyers who are intimately familiar with the case specify relevant criteria within small sets of data that define the crux of the issues. Lawyers generally do this through keywords or key concepts, but this can also be accomplished by reviewing a small set of documents to “train” the computer on the key issues.
Through an iterative search process, computer algorithms retrieve a set of documents based on the criteria input by the lawyers. The reviewing lawyers may determine that some results are not relevant and request that the algorithm pass through another search iteration, or as many iterations as desired. As the computer learns to distinguish what is relevant, each iteration produces a smaller relevant subset, and a larger set of irrelevant documents that can be used to verify the integrity of the results, by confirming the absence of any relevant material through techniques such as sampling. The extent of the end use of the relevant set depends on the risk threshold of the clients and lawyers.
Different predictive coding tools use different algorithms and computing techniques to obtain the smaller set of documents, but the effect of the technology is generally the same: a weighted ranking of documents according to likely relevance as established by the lawyer.
Predictive coding is generally defined by these characteristics:
• it leverages small samples of documents (input criteria) to find other relevant documents;
• it reduces the number of non-relevant documents that lawyers must review, thereby reducing the overall amount of lawyer time spent reviewing documents; and
• unlike straight manual review of documents by lawyers, the results generated by predictive coding algorithms can be validated through statistics.
The use of predictive coding for document review raises at least two legal issues. First, does the use of this technology meet counsel’s obligation to conduct a reasonable and defensible search for responsive documents under applicable discovery rules? Second, can counsel safeguard a client’s solicitor-client privilege when a privileged document is disclosed? To date, although some judges in the United States have spoken positively of predictive coding, its use has not yet been tested through a defensibility motion.
Arguably, the use of technologies, including predictive coding, is encouraged within the Sedona Canada Principles. In particular, Principle 7 states that “[a] party may satisfy its obligation to preserve, collect, review, and produce electronically stored information in good faith by using electronic tools and processes such as data sampling, searching, or by using selection criteria to collect potentially relevant information.”
Perfection is not required in the e-discovery process or in document review. The operative standard is reasonableness, which requires that counsel implement a document review system (regardless of whether predictive coding is used) that relies on reasonable steps to make disclosure of relevant documents and prevent disclosure of privileged ones. Manual review of documents will not always meet this standard; neither will predictive coding.
Some of the very traits that appear to make predictive coding unreasonable actually make it reasonable. For example, it makes document review more efficient by exposing the human reviewer only to those documents that have been algorithmically identified based on the specifications input by the lawyer, but in a more powerful way than just by keyword. Assuming lawyers input criteria correctly, predictive coding makes it more likely that responsive documents will be produced. Second, the iterative nature of predictive coding refines relevant subsets for review in a way that can be validated statistically, both for opposing counsel and the courts. The key to validating predictive coding is to establish metrics that surpass standards that previously prevailed under past document review paradigms. Fortunately, models for these metrics already exist.
As to the second legal issue, it’s true the computer might get the privilege call on a document wrong; however, so too might humans. Arguably, humans are less likely to get it wrong if they are looking at an overall smaller set of documents. Remember too, that predictive coding techniques help the quality check process by identifying inconsistently tagged records, allowing for a final cross-check of privilege records prior to production.
Dera J. Nevin is the senior director, litigation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm’s e-discovery operations and can be reached at email@example.com.In large civil litigation and regulatory cases, the discovery process is becoming increasingly automated, scientific, and objective. This is evident by the increasing use of “predictive coding.”
|Illustration: Jeremy Bruneel|
|Illustration: Sara Tyson|
Monday, 03 October 2011 09:00 Written by donalee Moulton
|Illustration: Anson Liaw|
Monday, 05 September 2011 09:00 Written by Dera J. Nevin