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December 3, 2018

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PM #40762529 $5.00 • Vol. 29, No. 39 December 3, 2018 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Courts mindful of technology Judge says AI could have been used Carole Piovesan says courts are grappling with the use of AI in litigation. Photo: Laura Pedersen SYSTEM FAILURE Civil access-to-justice crisis persists P7 LOOKING INWARD External viewpoint sometimes needed P7 FOCUS ON Criminal Law P8 BY ANITA BALAKRISHNAN Law Times A judge capped the costs award in an occupier's liability personal injury costs judgment, writing that the use of artificial intelligence should have "significantly re- duced" counsel's preparation time. The decision in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959 reduced the starting point for dis- bursements by $11,404.08, citing both research fees as well as other aspects of the lawyers' bill, and awarded a total cost award against the plaintiff of $20,000. "What we are seeing from the bench, at least, is that the courts are mindful of the use of this tech- nology and are grappling with what it means for the litigation process," says Carole Piovesan, co-lead of the national cybersecu- rity, privacy and data management group at McCarthy Tétrault LLP in Toronto, who was not involved in the case. The Nov. 22 decision involves Kristen Cass, who alleged she slipped and fell on the f loor of 1410088 Ontario Inc., which then operated a bar called My Cottage BBQ & Brew. According to an earlier deci- sion in the case, Cass v. 1410088 Ontario Inc., 2018 ONSC 5439, Cass fell on the night of Sept. 2, 2007 and injured her ankle. Port Dalhousie Vitalization Corporation, also listed as a defen- dant, offered to settle for $4,000 but was rejected, presiding Justice Alan Whitten wrote. Defendant PDVC, represented by Benson Percival Brown LLP Barristers & Solicitors associate Eli Lipetz, was "entirely successful" at a September 2018 hearing and sought partial indemnity costs of $17,112.09 from before the offer and substan- tial indemnity costs of $23,989.51 after the offer, with disbursements totalling $24,300.67, Whitten wrote. But Cass' lawyer, Rosemary Book of Hillier & Hillier in Bramp- ton, Ont., argued that the fees were excessive. One of Book's questions was why there was a legal research fee for case precedents, "which are available for free through CanLII or publicly accessible websites." Whitten's analysis of the fees See Lawyers, page 4 Estates bar navigates competing decisions BY ANITA BALAKRISHNAN Law Times A n Ontario Superior Court of Justice judge last week granted the appointment of estate trustees for a will, going against a recent decision by his colleague. Lawyers say the new decision means that the estates bar is stuck between diverging judicial view- points within the same level of court on the validity of primary and secondary wills. The Nov. 13 decision, Panda Estate (Re), 2018 ONSC 6734, in- volves the estate trustees of a will requesting a certificate of appoint- ment. The judge, Justice Michael Penny, granted the application, breaking from a September 2018 de- cision by Justice Sean Dunphy that invalidated a similar set of wills. "The situation you have now in the law is that the law is unsettled on this point. You actually have precedent going each way. You have a situation in which one judge has said, 'These primary and second- ary wills may fail,'" says Patrick Aulis, principal lawyer at Aulis Law Firm PC in Toronto, who acted on the Panda case for the applicants, Asok Panda and Sunita Rajak. Lawyers say the pair of diverg- ing decisions raises a legal ques- tion that could affect thousands of wills, if a will is a type of trust. Dunphy's September decision said a will is a form of trust. "As with any trust, a valid will must satisfy the 'three certainties:' certainty of intent to create the trust, certainty as to the subject- matter or property committed to the trust and certainty as to the ob- jects of the trust or the purposes to which the property is to be applied." Penny said in the Panda deci- sion that he disagrees with the as- sertion that a will is a form of trust. "No authority was cited for this proposition," wrote Penny. "A will is a unique instrument. A will shares some of the attributes of a contract and some of the attributes of a trust but it is neither; a will is its See Substantive, page 4 Follow & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM THE CANNABIS C C What are the implications of the Cannabis Act? Visit the website that provides reliable news, analysis, experts and resources for professionals looking for answers. Untitled-3 1 2018-11-27 1:13 PM Jordan Atin says the disputed language in the wills aims to provide trustees flexibility and save taxes on an estate.

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