Law Times

Law times • OctOber 27, 2008 NEWS PAGE 3 the day before mediation "smacks of gamesmanship," reinstated a To- ronto lawyer as solicitor of record on a case involving his elderly aunt who broken a hip in a slip and fall. "In view of the timing of this motion, on the eve of me- diation involving an 85-year-old plaintiff, and the undisputed facts of this case, we have con- cerns about the motivation for bringing this motion," wrote Divisional Court Justices John Lawyer reinstated to aunt's slip and fall case T BY ROBERT TODD Law Times he Divisional Court, say- ing a defendant motion to remove opposition counsel Brockenshire, Janet Wilson, and Andromache Karakatsanis. "We agree with the appellant's submission that this was a tactical motion that brought into ques- tion the professional integrity of counsel," they wrote in fixing costs for the aborted mediation and other fees at $27,500. Harvey Consky says it was vital for the court to restore his profes- sional reputation by striking the lower court decision. He says the Law Society of Upper Canada opened an investigation into his conduct based on the initial ruling, but that file will now be closed. "I did feel terrible with the original decision," says Consky. Changes a huge boost for litigators BY ROBERT TODD Law Times A set of changes to Ontario's Rules of Civil Procedure are on the way, and an expert in e-discovery says the apparent introduction of a "proportionality principle" would be a huge boost for litigators trying to prevent crushing discovery costs seen south of the border. "This concept of making parties to litigation obligations proportional to what the litigation is about is something that's really been explored a lot in the context of electronic discovery," Ogilvy Renault LLP commercial litigation lawyer Kelly Friedman tells Law Times. Friedman says she's been told from a source on the Ontario "I was devastated by that decision, because it questioned my profes- sional integrity." Koskie Minsky LLP lawyer Al- fred Esterbauer, who represented Consky, said the ruling will clear up possible confusion about the application of the Rules of Profes- sional Conduct. "The Divisional Court's decision in overturning the original decision will be of as- sistance to the profession in clari- fying what the law should be in terms of lawyers' communications to non-parties," says Esterbauer. Todd McCarthy of Flaherty Dow Elliott & McCarthy LLP, who represents Famous Players Inc. on the case, says the defence felt an obligation to seek an order removing Consky from the case. "We believed it was our duty to bring it to the court," said McCarthy. "The fact that Jus- tice Allen saw it one way and the Divisional Court saw it another way I think reflects that reason- able persons, lawyers, and judges looking at this situation could see it differently. We respect the dif- ference of opinion, but this was not designed to be tactical." The Divisional Court ruling Rules Committee that it has given approval in principle to a number of discovery reform initiatives. Included, says Friedman, will be an amendment to Rule 1.04 stating courts "shall make orders and give directions that are proportionate to the importance and complexity of the issues in the proceeding," Friedman, who is a member of working groups for U.S. law and policy think tank The Sedona Conference, quotes in a report this month. The effort to reform discovery rules follows Justice Colin Campbell's "Discovery Task Force Report" in 2003 and Former Ontario associate chief justice Coulter Osborne's 2006 "Summary of Findings and Recommendations of the Civil Justice Reform Project." Because corporations have such a massive amount of electronic data, a "blanket obligation" to offer up everything relevant to litigation can be crushing, says Friedman. "If you have a very broad definition of relevance — which our case law did have and it's any semblance of relevance — then if it's about one product, anything that touches on the product in the corporation would be producible, and that could be an overwhelming amount of data and can essentially cripple the organization," she says. For example, says Friedman, if you're dealing with a $100,000 breach of contract case, it shouldn't be necessary to hire a forensic expert and spend $500,000 to collect data. "The idea of proportionality is, for both the parties but more importantly the judges when there's a dispute over production, to be able to say, 'OK, let's look at . . . all other aspects of the case: how important is the data sought to the case, how complex are the issues,'" she says. Friedman says the effort by the rules committee aims to pre- empt the northern flow of a problem that has gotten out of hand in the United States. There have been situations in that country where parties have been afraid of being ordered by judges to spend whatever it takes to produce materials, she says. Another rule amendment on its way, according to Friedman, will see parties required to come to terms on a discovery plan "before obtaining evidence under documentary, oral, or inspection discovery rules." She says, "These rules, hopefully, will be implemented in Ontario and then we won't have some of the U.S. experience." Rules committee secretary John Kromkamp says it's "fairly premature" to suggest these rule changes are imminent. "There's a fair amount of discussion going on as to exactly what it should look like at the end of the day, and there's not necessarily an agreement in principle yet as to where it's going to go," says Kromkamp. He says "by and large" the committee plans to adopt Osborne's recommendations. "But there's some technical details that have to be worked out to fit his philosophy of discovery into the rules of discovery," he says. Feedback on a consultation report regarding civil rules is due LT addressed Consky's actions in Consky v. Famous Players Inc. The matter involves his aunt, Molly Consky, who suffered a broken hip after a slip and fall in 2004 while entering the auditorium of a Toronto film theatre. The elderly Consky sued for dam- ages against Famous Players Inc., which at the time occupied the theatre. Third- and fourth-party claims also exist on the matter. On April 7, Superior Court Photo: Robert Todd Harvey Consky says he was 'dev- astated' by a decision to remove him from his aunt's case. improper" and a breach of the Rules of Professional Conduct. In an affidavit, Consky stated Entertainment. Making that con- tact was risky and not the appro- priate means for Consky to obtain the information he sought." The judge later wrote, "By my decision, I am not concluding Consky's actions had an improper motive or were in bad faith or were intended to do harm." "I find Consky should have been discouraged by the Rules of Professional Conduct from making the contact with Fitzger- ald without the consent of the defendant's solicitors, under cir- cumstances in which it was not clear what the relationship was between the defendant Famous Players Inc. (CBS Holdings Inc.), its solicitors and Cineplex Entertainment," wrote Allen. But the Divisional Court judges that in January 2008 he noticed the theatre where the slip and fall happened had changed its name. He said he got in touch with the senior vice president and general counsel to Cineplex Entertain- ment to clarify ownership of the theatre, wrote Allen. While the Cineplex counsel was not a client of defendant's law firm, Allen ruled that wasn't enough "to overcome the broad scope of the threshold developed by the courts in exercising their discretion to re- move a solicitor from the record." Allen added, "I find it was im- Justice Beth Allen ordered Con- sky removed as solicitor of record for his aunt on the case, citing his contacting corporate counsel of a non-party as "imprudent and prudent and improper for Consky to contact the theatre under cir- cumstances in which he had in- formation before the contact that there was a lawyer/client relation- ship between the defendant's law firm and the theatre on the prem- ises. He did not find out until after the contact . . . about the sale of Fa- mous Players' interest to Cineplex on Oct. 14 found that Allen "mis- characterized the proper legal test for removing a solicitor of record. "She misconstrued uncontested facts and was clearly wrong in her conclusion that the Rules of Profes- sional Conduct had application to the uncontested facts of the case." Specifically, the judges found that Consky had clarified with the Cineplex corporate counsel before speaking with her that her com- pany was not a client of the defen- dant's law firm, that the company was not aligned with the theatre owner, and that Cineplex had not taken on liabilities or obligations of the theatre owner. Further, wrote the judges, the two lawyers did not discuss any "confidential or prejudicial information," dur- ing the telephone call. "There was no conduct by Mr. Consky when considered objec- tively that brings into question public confidence in the justice system," wrote the judges. Meanwhile, the trial in the case is slated for June 2009. LT by mid-November, and Kromkamp says the committee hopes to have the new rules in place early in the new year. AIDSbeat_LT_Oct27_08.indd 1 www.lawtimesnews.com 10/23/08 11:43:17 AM

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