Keeping-Tabs-Spring-2023

KEEPING TABS
The Advocates’ Society
SPRING 2023 2023

THE ADVOCATES’ SOCIETY
MENTORING GUIDE
The Advocates’ Society (TAS) has always embraced mentorship as one
of its core objectives, and strives to promote and foster mentorship
through its educational programs and other initiatives to create a variety
of mentorship opportunities for its members.
CONTENTS
In conjunction with the launch of our new mentoring portal, we are proud
to present our revised TAS Mentoring Guide. We hope this guide will be
a valuable resource as you navigate your next mentoring relationship,
whether in micro-mentoring sessions on the new TAS portal or other
mentoring relationships at TAS and beyond.
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Chair Chat
Claudia Cappuccitti, Dyer Brown LLP
Ten Tips For Drafting High Data e-Discovery Plans
Michael Lalande, Barrister & Solicitor & Tatiana Lazdins, Hicks Morley
Summary Trials: Maybe a Goldilocks Solution
to Access to Justice Issues
Daniel Hermann, Osuji & Smith Lawyers
Interview with John Trueman, Associate,
Allen/McMillan Litigation Counsel
Compiled by Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP
Scan the QR code
to download the
Mentoring Guide!
Editor: Khrystina McMillan, Ontario Securities Commission | kmcmillan@osc.gov.on.ca
Deputy Editor: Sania Chaudhry, Forte Workplace Law | sania@fortelaw.ca
Keeping Tabs Editorial Team: Eric Blay, Pallett Valo LLP, Nina Butz, Bennett Jones LLP, Michael Ding, WeirFoulds LLP, Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP, Patrick
MacDonald, Barrister & Solicito, and Sean Petrou, McCarthy Tétrault LLP
The Young Advocates’ Standing Committee (“YASC”) is a standing committee of The Advocates’ Society with a mandate to be a voice for young advocates (advocates
who are ten years of call or fewer) within the Society and within the profession. We do this through networking/mentoring events, by publishing articles by and
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for young advocates, and by raising issues of concern to young advocates as we work with the Society’s Board of Directors. The opinions expressed by individual
authors are their own and do not necessarily reflect the policies of The Advocates’ Society.
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WHAT’S COMING UP @ TAS
(Click on the program to learn more)
May 3
Calgary Trivia Challenge
(Calgary, AB)
May 08
Fireside Chat with The
Hon. Nicholas McHaffie
(Toronto, ON | Live Online)
May 10
Toronto Mentoring Dinner
(Toronto, ON)
CHAIR CHAT
Chair Chat
Claudia Cappuccitti, Dyer Brown LLP
May 11
Edmonton Bench
& Bar Reception
(Edmonton, AB)
May 24
Cocktails & Catch-Ups
(Toronto, ON)
May 17
In-House Counsel Social
(Toronto, ON)
May 31
Wine & Cheese
with the Bench
(Toronto, ON)
May 23
Spring Patio Social
(Toronto, ON)
June 13
Technology for Litigators
(Toronto, ON)
Ed note: To e-discovery and beyond, TAS has you covered! Read “Ten tips for drafting high
data e-discovery plans” on page 8 of this issue. And check out TAS’s programming on tech
issues that affect you as a litigator. Learn more at our upcoming program on Technology for
Litigators. And if you missed our Documentary Production: What You Need to Prove Your
Case or Digital Evidence for Litigators programs, check them out in our Webcast Archives.
As the 2022/23 term winds down to a close, I
want to use my Chair Chat to say thank you.
Thank you to our Young Advocates’ Standing
Committee members for their dedication
and commitment to YASC: Karen Bernofsky,
Michael Bookman, Debbie Boswell,
Nina Butz, Angela Cao, Katherine Chau,
Sania Chaudhry, Alice Colquhoun, Katrina
Crocker, Lisa Delaney, Michael Ding, Kristen
Duerhammer, Richard Glennie, Tiffany
Glover, Webnesh Haile, Ali Haji, James
Hardy, Chris Kinnear Hunter, Elise Kohno,
Dora Konomi, Sandy Lockhart, Patrick Mac-
Donald, Sara A. McGregor, Khrystina McMillan,
Tayler Meagher, Sarah Naiman, Sarah
Naughton, Teodora Obradovic, Sean Petrou,
Tim Phelan, Melissa Pike, Sebastian Pyzik,
Jean-Simon Schoenholz, Sarah Strban, Annie
Tayyab, Catherine Thall Dubé, Zachary
Thiffault, Chris Trivisonno, Kate Robertson,
Irina Rosca, Alexandra Shelley, and D. Bronwhyn
Simmons.
Thank you to the Keeping Tabs editorial
team for all their hard work this term:
our editor, Khrystina McMillan; deputy editor,
Sania Chaudhry; Eric Blay; Nina Butz;
Michael Ding; Aly Haji; Patrick MacDonald;
and Sean Petrou. I would also like to thank
everyone who has contributed to Keeping
Tabs this term. Thank you to TAS staff for
their guidance.
And finally, I would like to thank you, dear
reader, for your continued support of The
Advocates’ Society, YASC, and Keeping Tabs.
In this edition of Keeping Tabs, Michael
Lalande and Tatiana Lazdins share their ten
tips for drafting high data e-discovery plans,
Daniel Hermann discusses Summary Trials,
and we have an interview with John Trueman.
If you’d like to contribute to an upcoming
edition of Keeping Tabs, please email our editor,
Khrystina McMillan, at kmcmillan@osc.
gov.on.ca for more details. If you’re looking
to get involved, you can join our Volunteer
Roster by reaching out to Katrina Crocker at
katrina.crocker@queensu.ca.
Be sure to check your inboxes or follow The
Advocates’ Society on Twitter, LinkedIn, and
Facebook for the latest on our events and
initiatives.
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Testimonials from our mentoring portal mentees!
“I never felt like there were any questions I couldn’t ask. The mentors were so
candid with me about their experiences, around partnership, finances, business
development. I learned more about running my firm through these meetings
than anywhere else.”
“It can be hard to find a dedicated mentor as a young lawyer, especially outside
of your firm, given everyone’s commitments. But to be able to have an hour or
two here and there with lawyers that you can learn a lot from has been invaluable
to me”
NEW TAS
MENTORING
PORTAL
“I really think it is an excellent program and I look forward to being a mentor in
it one day.”
The Advocates’ Society is proud to announce a
new online mentoring program exclusively for TAS members.
A key goal of this new mentoring program is to create a simple way for our Junior Members to
feel more connected to their professional community and obtain some career advice from more
experienced members of the bar. This program model is convenient, efficient and effective:
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√
√
No long-term commitments.
No extensive questionnaires or matching.
No heavy agendas, minute taking or long-term planning.
Just simple connection and conversation for junior lawyers to get some tips and connect with
someone new.
More information is available on the
TAS mentoring website page.
TAS Junior Members are
automatically signed up.
Set up your profile today!
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****At this time, the program is only available in English but we are working with Mentorship Rocket to build a bilingual (English and French) site for later in 2023.

BUSINESS OF LAW
Ten tips for drafting high
data e-discovery plans
Michael Lalande, Barrister & Solicitor &
Tatiana Lazdins, Hicks Morley
As technology advances, it is essential for
lawyers to understand the importance of
e-discovery when drafting a discovery plan.
Electronic discovery, or e-discovery for short,
involves the collection, review, and production
of electronically stored information (ESI).
This includes emails, text messages, social
media posts, documents, and other types of
data that may be relevant to your case. In this
article, we outline some key practical tips and
technical considerations for when drafting an
e-discovery plan that deals with a lot of data.
1. Assemble your e-discovery team: This
type of work often involves a team of experts
specializing in e-discovery who are
familiar with the software, processes, and
tools necessary for e-discovery, as well as
the ability to analyze, interpret, and cull
down the data collected during discovery.
Not every firm has the capacity to develop,
retain, and support a team of e-discovery
experts. For firms dealing with this scenario,
there are outside experts who can assist
with the e-discovery process.
2. Know the applicable rules and practices:
It may seem obvious, but you
need to be aware of (and comply with)
the governing legal requirements (e.g.
rules of court) surrounding e-discovery
in your jurisdiction. In addition, there
are multiple industry standards you can
use as a reference to create an effective,
fair, and efficient e-discovery process.
3. Implement appropriate privacy protections:
In Canada, the Personal Information
Protection and Electronic Documents
Act (PIPEDA) sets out the requirements
for the collection, use, and disclosure
of personal information. Your e-discovery
plan should comply with PIPEDA and
any other relevant privacy laws. Protecting
the privacy and security of the parties
in the e-discovery process can require
implementing appropriate security
measures to prevent unauthorized access
to ESI, such as ensuring that ESI is
stored in a secure location, and limiting
ESI access to only those individuals who
need it. The prudent approach may also
call for adding document redactions or
requesting a sealing order on records
that are ultimately submitted to court.
4. Define the scope of the data: ESI can
be stored in a variety of different formats,
some of which are more easily
captured than others. Defining the
scope of ESI at the beginning can help
streamline the process, ensuring that
all relevant data is collected while also
reducing the amount of irrelevant data
that is collected. This may include identifying
custodians, timeframes and locations
of relevant ESI. If necessary, you
may be able to narrow the scope of
e-discovery by agreeing to limit discovery
to only crucial issues or timeframes,
or limiting the scope of discovery based
on data format (e.g., prioritizing emails
over collaboration data or vice versa).
5. Use technology-assisted review (TAR):
TAR is an e-discovery software technique
that uses algorithms to assist in the review
process. This can dramatically reduce
the time and cost associated with
manual review, especially when dealing
with large volumes of data. A TAR approach
can be helpful on review projects
with documents numbering from
the thousands to millions. Software
features that enable TAR are becoming
standard inclusions in review software.
6. Consider using a data map: A data map
is a visual representation of the data that
an organization has, including where it is
stored and who has access to it. Creating
a data map can help identify potential
sources of data and ensure that all relevant
data is collected. On smaller scope
matters, a simple conversation with your
client will help you to understand the location
or locations of relevant documents.
7. Establish a protocol for the collection
and review of data: A good protocol will
provide guidance on types of relevant
documents that are expected to be located
within each portion of the collected
data. Usually, a review protocol will
provide guidance on categories of documents
that are related to the issues in
dispute. This guidance can help ensure
that the data is collected and reviewed in
a consistent and defensible manner. The
protocol should include guidelines for the
collection and processing of data, as well
as procedures for reviewing and producing
the data. Ideally, the protocol itself is
proportionate to the nature of the matter
and the issues in dispute. A large-scale
review team with dozens of third-party
reviewers will require more training, instruction,
and background information
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than a small team of lawyers who have
close knowledge of the client needs
and issues in the case. Consider listing
the document categories from the review
protocol within the discovery plan.
8. Consider the use of sampling: Sampling
is a technique that involves reviewing
a representative subset of
the data, rather than reviewing all of
it. This can help reduce the time and
cost associated with manual review,
while still providing a reasonable level
of confidence that all relevant data
has been reviewed. To increase the efficacy
of sampling, you can follow up a
sample review with analysis targeted at
identifying specific categories of relevant
documents identified in a sample.
9. Use secure methods for data transfer:
Ensuring that data is transferred
securely during the discovery process
can help protect the data from unauthorized
access or disclosure. Secure
methods may include using encryption
or secure file transfers. The
data and the encryption keys or passwords
should never travel together.
10. Document the process: It is important
to document the entire discovery process,
including the collection, processing,
review, and production of data. This
documentation can be used to demonstrate
that the process was conducted in
a defensible manner and can help avoid
potential challenges to the discovery
process.
By keeping these practical considerations
in mind, lawyers can help ensure that the
e-discovery process is conducted in a defensible
and efficient manner.
CASE BRIEF
Summary trials: Maybe
a Goldilocks solution to
access to justice issues
Daniel Hermann, Osuji & Smith Lawyers
Access to justice doesn’t just mean having access to legal representation or legal resources. It also
includes having access to an effective, speedy and affordable adjudicatory mechanism. With trials
taking years and summary judgments sometimes not appropriate to decide all the issues in an
action, Goldilocks’s lawyer may advise her that a summary trial could be “just right” to resolve her
claim against Three Bears Inc.
As Feasby J. recently explained in Benke v Loblaw Companies Limited, even for cases worth no more
than $200,000, legal fees can exceed $50,000 if required to proceed to a full trial. Such costs of
litigating are not proportional to the claims’ worth. A more just solution is a summary trial, but as
His Honour notes in Benke, summary trials have been underutilized.
In Alberta, summary trials can be scheduled at almost any point in an action. They can also act as
a powerful motivation for settlement, as the certainty of a scheduled trial means that there is little
likelihood of the plaintiff simply “dropping” their action.
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Not that summary trials guarantee speedy and
affordable adjudication of a matter. In Alberta
where I practise, summary trials may not be
scheduled for over a year after application, but
the Alberta Rules of Court require litigants to file
their evidence for trial on application no matter
how far away the trial dates are. 1 The Alberta
Rules of Court also allow opposing parties to
object to a summary trial application, and at any
stage of a summary judgment application, the
court may order the trial of the action generally
or on certain issues. 2
To avoid sinking time and money into an application
that is ultimately dismissed, it may be helpful
to first canvass the possibility with opposing
counsel to see if they would agree to proceeding
by way of summary trial. In my practice, I have
also found it is sometimes possible to file an application
for trial without an affidavit by indicating
in the application that our client’s affidavit is
forthcoming, especially where all parties have
agreed to a litigation schedule setting out timelines
for delivery of the parties’ affidavit
evidence.
As counsel representing litigants with limited
money to spend on litigation, we need to look
at all available tools and avenues to provide the
appropriate answer to the appropriate problem.
Though they are still underutilized in Alberta,
summary trials may just offer the “just right”
solution to claims that exceed the small claims
limit, but are not so large as to justify a full trial,
but also not simple enough for summary judgment.
Notes
1. See rules 7.5(2)(d) and 7.5(3) of the Alberta Rules of Court
2. See rules 7.8-7.11 of the Alberta Rules of Court.
Now Live! Friends Who Argue - TAS podcast is jointly hosted by
our Young Advocates and 10+ Standing Committees. Segments
feature dialogue with the people who get what you do, as we
delve into both the serious and lighthearted aspects of life as
an advocate in Canada. Know a TAS member we should talk
to? Contact Christopher Horkins at chorkins@cassels.com and
Karen Bernofsky at KarenB@stockwoods.ca .
Friends Who Argue is sponsored by
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Q. Could you give some background on your career before law school?
A. I sometimes joke that I’m constantly trying to decide what I want to be when I grow up. I had
always wanted to be a lawyer, since I was about twelve years old. But I’ve taken a couple of detours
on the way there. I dropped out of university to become Executive Director of Youthquest!
Lesbian and Gay Youth Society of British Columbia, which was a network of queer youth drop-in
centres in suburban and small-town communities. After I finally completed my undergrad degree
in Canadian Studies, I had an opportunity to work on an alternative dispute resolution program
for survivors of Indian Residential Schools – that became the start of a fifteen-year odyssey on the
national class action settlement.
Q. How did working on the Indian Residential Schools Settlement Agreement shape how
you viewed the law?
A.The Indian Residential Schools Settlement Agreement demonstrated how law can provide a vehicle
for remedying grave historical wrongs. The settlement, which included the Truth and Reconciliation
Commission, has sparked a continuing national conversation on reconciliation. And the compensation
part of the settlement, which I worked on, helped bring a measure of healing and closure to many of
the people who suffered the most.
INTERVIEW
Interview with John Trueman,
Associate, Allen/McMillan
Litigation Counsel
Compiled by Aly Haji, Lax O’Sullivan Lisus Gottlieb LLP
However, my experience also underscored the importance of a legal profession that can understand
and relate to the people it serves, and the need for regulators to take swift action to protect the
integrity of the legal profession and the justice system when lawyers go off the rails. For example, we
received complaints of lawyers setting up high-interest loans, charging fees above the court-ordered
maximums, using unsupervised ‘form fillers’ to recruit clients, etc., and we ended up having to take action
against some of these predatory practices. To be honest, seeing some of this unfold made me seriously
question whether I wanted to be a lawyer. Today, I try to be mindful of the importance of building
and maintaining trust: with clients, with opposing counsel, and with the bench.
Q. How old were you when you started law school? What made you decide to go to law
school as a mature student?
A. I was 36 when I started law school in 2015. I had thought about it off and on for some time, but as
the litigation work mushroomed — including two Supreme Court of Canada appeals — I realized it was
time to get some actual qualifications.
John Trueman is an Associate at Allen/McMillan Litigation Counsel in Vancouver, where he maintains a
broad civil litigation practice with a focus on employment claims, administrative law, and appellate work.
In addition to providing excellent service to his own clients, John works with the firm’s other lawyers on
large, complex litigation matters in a variety of different subject areas. John is active in the community,
having served as the Executive Director of Youthquest! Lesbian and Gay Youth Society of British Columbia,
and as the Treasurer and Vice Chair of Mole Hill Community Housing Society. John lives with his
partner in Vancouver and spends his free time travelling, skiing, and collecting modernist fountain pens.
He has not yet started his post-modern fountain pen collection.
Q. Going into law school, how did you intend to use your law degree? Has that differed from
your practice today?
A. My dream was to do primarily public law, and I was lucky to work with Joe Arvay, Q.C. for a brief time
before he passed away. Today, I have a more diverse practice, including general civil litigation with specialties
in administrative and employment law. About 70% of my work is with my own clients, which is
incredibly satisfying. Ultimately, I think being a lawyer is about helping people solve problems, and it’s
possible to do that really well even if you don’t have a Charter blockbuster on your hands. The other
30% is working with senior counsel on larger files, and I feel really lucky to be at a firm with partners
who are serious about getting junior lawyers into court and on their feet.
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Q.How old were you when you started practice? How did you feel, starting a new career as
a lawyer at that stage in your life?
A. I was 40 when I was called to the bar in 2019. I’d spent most of my career up to that point being the
youngest person in every room, and suddenly I was clerking at the Supreme Court of Canada and was
the oldest of 36 clerks in my year.
Although I’d been working around the law for a long time, it was tough starting out in practice after so
long in one place. I went from being an expert in a very niche field to an advocate who must constantly
learn about different areas of the law and the diverse industries that my clients operate in.
Q. Because we clerked together, I know you had some unique perspectives on the role of an
advocate and what constitutes good advocacy based on your past experiences. Could you
give some insight into those views and how they have evolved because of practice?
A. One of the things I learned from Joe Arvay is that you’re always advocating on (at least) two levels. Of
course, you need to provide the court with a viable legal path to getting the result you want. But you
also need to persuade the court that your client should win.
I was reminded of this in a recent appeal. The respondent had all sorts of ingenious arguments about
why the court shouldn’t find that they were holding property in trust for our clients. But nowhere did
they explain why their client should win: why their client should get to keep property they didn’t pay for.
In the end, no matter how sophisticated your legal argument, to be a successful advocate you have
to help the court understand your client’s situation and want to do the right thing for them. This sounds
really obvious, but law can be such a technical pursuit that lawyers sometimes lose sight of that.
Q. Were there any benefits or difficulties you faced being a relatively junior lawyer at a later
stage in your life?
A. People often assume I have more experience than I really do. This can be a good thing when you’re
trying to gain your client’s confidence, but when I make a rookie mistake in court I’m unlikely to get a
free pass.
Q. What are some advantages and disadvantages of government work relative to private
practice? Which do you prefer, and why?
A. To be honest, I really miss the oodles of guaranteed vacation time that comes with government
work. The pension is pretty sweet, too. Government jobs are also famously family-friendly.
The other big plus of government work is that you get to work on fascinating things that really aren’t
found anywhere else. The public service does important work that really matters to Canadians, and
lawyers (and former lawyers) play a huge part of that.
On the other hand, as a government lawyer you can’t choose or fire your client, and you’re often far
removed from the people who make the big decisions that you’re asked to defend. Private practice
definitely comes with a grind, but in my experience it has felt easier on the conscience too.
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