Law Times

Page 2 May 5, 2014 • Law TiMes www.lawtimesnews.com NEWS Resolve discovery plan issues yourselves, court tells lawyers arties, not the courts, are in the best position to create a discovery plan in commercial litigation cas- es, according to a Superior Court master who has raised the option of hav- ing a third-party referee to deal with dis- putes over the issue. In a breach of contract dispute in Sie- mens Canada Ltd. v. Sapient Canada Inc., Siemens asked the court to approve a dra discovery plan aer the parties failed to come to an agreement among themselves. Although he ultimately provided guid- ance, Master Donald Short expressed his discomfort at being the one to create a discovery plan. He asked if it was "rea- sonable or appropriate" for the court to get into the technical issues of electronic discovery while there were experienced counsel and information management experts available to both parties. He added: "Here the problem that the court faces is that the determination of what is a proportional degree of produc- tion and . . . the extent of complexity nec- essary to obtain the information sought is being made from a view of 30,000 feet without a true working knowledge of the current 'state of the art' technical and practical issues to be overcome if one were to try to obtain the information sought." e motion at hand sought to have the defendant, Sapient Canada, redo a portion of its electronic discovery due to searches that missed 17,474 documents due to inadvertence, according to the ruling. Short said the parties were "the authors of their own misfortune" for not agreeing on a plan in advance and award- ed no costs in the case. e ruling is "a good wakeup" for all counsel, says Kate Manning, a lawyer at electronic discovery advice firm Wortzmans. "It's really the parties who can come up with the best plan for their case because they know the case and they're getting instructions from their clients," she says, adding the master was right to question the need for him to make choices for them. "is decision shows that the courts aren't happy when you don't put your heads together and try to work it out." A lot of lawyers aren't comfortable with meeting and conferring with their opposing counterparts, ac- cording to Manning. "It doesn't come naturally in litigious circumstances but it's become very necessary," she notes. Gowling Lafleur Hen- derson LLP corporate and commercial dispute lawyer Duncan Boswell says the parties could have avoided the repetition of efforts in Sapient Canada had counsel first agreed on the scope of the searches. "e major takeaway is that if you do not sit down with opposing counsel and come up with a discovery plan, you run a serious risk that you will have to redo your efforts" and bear the costs associated with it, says Boswell, who calls the deci- sion a warning for all counsel. If parties can't agree on a discovery plan, it's best if they come to the judge with their own proposed dras as the plaintiff in Sa- pient Canada did, according to Boswell. In the past, he notes, courts have accepted the dra plan of a party that asked for a smaller scope of search and will try that first before approving a request for a larg- er breadth of documents. Applying the proportionality rules as amended in 2010, Short sought a nar- rower scope of discovery. "e rule now requires documents to be 'relevant to any matter in issue.' us, facts pleaded, but not disputed, and not otherwise relevant to a matter in issue would fall out of the require- ment of production, in my view," he wrote. Short went on to suggest a third-party referee might be the best way to deal with elec- tronic discovery plans when parties can't hash it out be- tween themselves. "Failing an agreement on a discovery plan, had the parties in this case agreed at the out- set on a neutral, data recovery expert to make the determina- tions now before me, I believe that, for the most part, mat- ters would have been resolved much more promptly and the case would be much further along than it is." He added: "Perhaps Rule 54.03 could be used to appoint a referee in such disputes in the future and avoid resolving a difficult motion." at suggestion is unique and is one that may well work, says Manning, who notes it could also mean additional costs to parties. In a postscript to his ruling, Short reiterated a point about proportionality in electronic discovery he had made in a previous case. "e time has come to recognize that the 'broad and liberal' default rule of dis- covery, has outlived its useful life. It has increasingly led to unacceptable delay and abuse. Proportionality by virtue of the recent revisions has become the gov- erning rule. To the extent that there re- mains any doubt of the intention of the present rules, I see no alternative but to be explicit," he wrote. LT Court bolsters LSUC oversight of Crown workers rown immunity doesn't shield government em- ployees from the Law So- ciety of Upper Canada's licensing requirements if they pro- vide legal services under the Occu- pational Health and Safety Act, the Superior Court has found. On April 22, the court granted a declaration sought by the law society requiring Crown employees to be li- censed as paralegals if they provide legal services to the public with re- spect to employer conduct prohib- ited by the act. e Ontario Public Service Em- ployees Union had argued the licens- ing requirements shouldn't apply by virtue of Crown immunity. e union said the Law Society Act doesn't bind the Crown and that there's a stringent test for a finding to the contrary. When the law society started regulating paralegals in 2007, the Crown's office of the worker adviser and the office of the employer adviser were exempt from para- legal licensing requirements for legal services provided in relation to the Workplace Safety and Insurance Act. Licensed paralegals were to perform all other legal work. e recent licensing issue followed amendments to the Occupational Health and Safety Act in 2011 aimed at preventing reprisals from employers with legal ser- vices under the new rules provided by Crown employ- ees, says Roy omas, a spokesman for the law society. "In the interests of protecting the public interest under the amended provisions of the Law Society Act (2006, when paralegal regulation was begun) and maintaining as much as possible a single regulator for the provision of legal services in Ontario, the law society decided to seek this declaration," he said. But in OPSEU's view, Crown employees should be able to pro- vide services to the public under the amended rules without requiring a licence from the law society. ere are sufficient internal complaint processes within the government to prevent harm to the public, the union argued. e court, however, agreed with the regulator. It argued excluding Crown employees from the licens- ing requirements would "frustrate the purpose" of the Law Society Act. "While OPSEU argues that s. 13(3) expressly ex- empts the attorney general of Ontario from the op- eration of the act and thus constitutes an express statement that the Crown, and the attorney general, in particular, are not bound by the act, I do not find this argument to be convincing nor the conclusion drawn by OPSEU to be persuasive," wrote Justice Carole Brown. Brown said she accepted the law society's position that "by necessary implication, all Crown employees practising law or providing legal services are bound" by the Law Society Act. Skilled Crown employees have long provided quality services to the public without a need for licensing, says OPSEU's counsel, David Wright. New paralegal licens- ing requirements will limit their careers as they won't be able to take up new positions arising from the Crown of- fices' expanded mandate, he adds. "e concern is that it shuts windows to people who have demonstrated they can provide services to the public without risk to the public." He adds: "We don't think public servants are in the same position as other persons who may want to open up shop as a paralegal or a lawyer without regulation. There is oversight already on the job that these people do." According to John Tzanis, president of the Paralegal Society of Ontario, more and more workers are find- ing they need to be licensed paralegals in order to keep their jobs. "A paralegal licence is one of the credentials that's becoming important for an increasing number of jobs," he says. "I wouldn't be surprised if [the number of paralegals in Ontario] goes from 6,000 to 10,000 in the next few years." Since 2007, the number of licensed paralegals has risen to 6,000 from 2,000, according to Tzanis. He notes the paralegal society is hearing from more companies, governmental organizations, and collec- tions agencies looking to hire paralegals. e organi- zation doesn't have many Crown members but "that's something coming down the pipe," he says. As for licensing requirements, Tzanis says paralegal accreditation is in the public interest. "It's in the public interest to have consistency at least in the regulation of legal service providers," he says. LT BY YAMRI TADDESE Law Times P 'This decision shows that the courts aren't happy when you don't put your heads together and try to work it out,' says Kate Manning. Photo: Robin Kuniski 'A paralegal licence is one of the credentials that's becoming important for an increasing number of jobs,' says John Tzanis. BY YAMRI TADDESE Law Times C

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