Law Times

lAw Times • April 28, 2014 Page 5 www.lawtimesnews.com NEWS KeelCottrelle_LT_Apr28_14.indd 1 14-04-23 10:27 AM Deposition, says Neeson, whose company has previously covered live-streamed hearings. Following the decision to hold a simultaneous trial in the Nortel case, some observers said the arrangement might prove problematic in case the two judges decide diff erently with no appeal court to bind them. But that's more of a substan- tive concern, notes Rogers. De- spite the risk of contradictory decisions, he expects the judges will work to arrive at the same conclusion. ere has been added judi- cial pressure on counsel lately to embrace technology, particularly electronic trials. Superior Court Justice David Brown recently warned the courts will become "irrelevant museum pieces" if they continue to lag on technology. In Bank of Montreal v. Faibish, Brown said he had asked coun- sel to conduct an electronic trial but noted "some counsel (I will not indicate whom) communi- cated a desire to work in paper." "Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to con- tinue to provide a most needed service to the public in a way the public respects?" Brown wrote in his April 4 case conference memorandum. "How many wakeup calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?" Rogers agrees on the need to embrace technology. He feels the courts should be more willing to work creatively with technology even if it's not always in this spe- cifi c format. "Embracing technol- ogy is something we should do more of in the future in order to provide more effi cient access to courts and service," says Rogers. In the Nortel case, the alter- native to the joint proceeding would have been an out-of-court arbitration hearing. Several me- diation eff orts aimed at resolv- ing the dispute over what's ow- ing to Nortel creditors around the world have already failed. In the meantime, the pot of cash available has shrunk as profes- sional fees mounted. Mississau- ga, Ont., independent fi nancial analyst Diane Urquhart says the latest disclosures indicate pay- ments of $1.3 billion in profes- sional fees since the telecommu- nications giant declared bank- ruptcy in 2009. In a matter separate from the May 12 proceedings, Nortel employees on long-term disabil- ity have launched a class action against two administrators of their health funds. ey're seek- ing $60 million in punitive dam- ages for alleged breach of trust. None of the allegations have been proven in court. Urquhart says that according to the 104th report released in March by court monitor Ernst & Young LLP, the professional fees in the Nortel bankruptcy for the Canadian unit alone will total $469 million by October. LT LSUC says no to Trinity Western er two days of impassioned debate and weeks of contemplation, the benchers of the Law So- ciety of Upper Canada voted not to accredit Trinity Western University's proposed law school last week because of its community covenant that bans gay sex. In a move that went against their counterparts at the Law Society of British Columbia, LSUC benchers voted 28-21 to reject Trinity Western's bid. "I cannot accept that it's in the public interest to ac- credit a law school that wants to control its students in the bedroom," said Bencher Howard Goldblatt in a re- mark reminiscent of a famous comment by former prime minister Pierre Trudeau. During the debate, Bencher Julian Falconer said last week's decision would be a historic one. "To my 13-year-old son, who will not read these tran- scripts today but [will] fi ve or 10 years from now, I say to him: 'I will do the right thing. I will vote against accredit- ing TWU,'" he said. Despite assurances from Trinity Western president and vice chancellor Bob Kuhn that the university is "a community of safety," Falconer wanted to know what would happen to students who discover they're gay while studying there. e covenant urges students to make sure others fol- low it, he said, adding those who discover they're gay be- come "a target." Kuhn addressed Convocation at the beginning of ursday's debate. He told benchers there's no legal or logical basis for them not to accredit the law school. In fact, if the LSUC went against the decision of the Fed- eration of the Law Societies of Canada and the Supreme Court of Canada's ruling in Trinity Western University v. British Columbia College of Teachers, it would be holding itself out as a court of appeal, said Kuhn. Kuhn said Trinity Western follows Christian virtues such as love and respect for others. ere's no evidence the school's graduates will exhibit discriminatory at- titudes, he said, adding that if benchers rejected Trin- ity Western's bid, they would be validating the "vitriolic" comments directed at the university. Some benchers, like Constance Backhouse, said they took issue with the idea that Trinity Western could do what it wants because it's a private institution. Law schools are public institutions, Backhouse said, noting the school is also a registered charitable organization. Kuhn said the LSUC's decision was disappointing but noted the unversity would move forward with its law school. "We don't see the necessity of gaining unanimity of every province," he said. LT Counsel pressured to embrace technology in court has been that counsel may interact with experts to ensure that the ex- perts understand their role, the diff erence between the way the court approaches scientifi c questions and how those questions might be ap- proached from a purely scientifi c perspective, the court's process, and that they are not being asked to fi nd facts but to draw conclusions on the basis of facts presented to them," says Domenic Crolla, a partner at Gowl- ing Lafl eur Henderson LLP in Ottawa and a Holland Group member. "Counsel may also test the conclusions that the experts have drawn by way of understanding the four corners of their opinion." On the merits, Wilson found that the plaintiff had met the burden of proving causation. e decision is under appeal. At issue is whether Wilson erred in her treatment of the expert opinion evidence called by the defendants. In its leave materials, the Holland Group acknowledges it's inappro- priate for counsel to attempt to persuade experts to articulate opinions they don't genuinely hold. But the group takes the position that review and discussion with experts doesn't undermine the rules of practice or an expert's credibility or neutrality. "To the contrary, early review of expert reports by counsel ensures that the court receives, and opposing counsel can cross-examine on, a focused, comprehensive report that accurately states the facts and assumptions relied upon and emanates from the ex- pert's fi eld of expertise," the Holland Group wrote in its factum. In a related position paper, the Holland Group argued that absent dis- cussions with counsel, experts' reports will be less comprehensive with less focus. In addition, it suggested the approach might hamper the prep- aration of reports that are helpful to the court in understanding complex issues with counsel potentially feeling compelled to retain a shadow ex- pert to communicate with or risk missing important issues. "All of this will, together with numerous other adverse conse- quences, considerably increase the cost of litigation and limit access to justice," says Morse. "It is contrary to the very clearly articulated objective of the judiciary that costs of litigation should not be exces- sive and should remain proportional." e Holland Group is advising the profession to continue current best practices pending the appeal. eir position fi nds support in Mendlow- itz v. Chiang, an unreported 2011 decision of current Ontario Superior Court Associate Chief Justice Frank Marrocco. Marrocco held it was appropriate for counsel to make suggestions while the expert was formulating his report. He also ruled it wasn't neces- sary for the expert to keep all dra s of the reports. While both of these is- sues could provide fodder for cross-examination, they didn't necessarily serve to exclude an expert's opinion. Crolla says he expects other interested parties, including e Advo- cates' Society, will seek leave to intervene. LT Lawyers warn of 'adverse consequences' Continued from page 1 Continued from page 1 BY YAMRI TADDESE Law Times A

• Cover