Law Times

Law Times • sepTember 8, 2015 Page 7 www.lawtimesnews.com COMMENT Ruling a reminder about usefulness of Apology Act BY DARRYL SINGER For Law Times recent decision by Superior Court Master Donald Short raises an in- teresting advocacy opportunity based upon a little-known and fairly recent piece of Ontario legislation, the Apology Act. The aim of the act was to allow a potential defendant to express re- morse or regret without fear of such comments precluding a defence on the mer- its and with no impact on a determination of liability. The legislature thought it might encourage emotional bridge building between aggrieved parties that could have the positive effect of either preventing or circumscribing litigation. In Simaei v. Hannaford, the master reviewed the principles enunciated in the Apology Act. In Simaei, the plaintiff wished to plead in her statement of claim that her former employer's apology arising from the termination of her employment was an admission of fault or wrongdoing. As such, the plaintiff wished to use the apology as a quiver in the arrow of her case. The defendant's lawyers argued the court should strike that part of the statement of claim as being prejudicial to her in addition to being vexatious and an abuse of process. None of the allegations have been proven in court. Short agreed, citing the provisions of the act that mandate that a party can- not use an apology made in good faith (unless made in the context of an on-the- record discussion as part of the litigation) against the other side in the context of the litigation. The master went even further and suggested the court must by necessity strike the portion of the pleading referring to the apology since a party, under the Rules of Civil Procedure, "cannot plead facts that go nowhere." In light of the wording of the Apology Act, pleading the apology goes no- where because the provisions state that a party cannot use the apology in the litigation as an admission of liability. Further, the trier of fact cannot consider it in any determination of fault. Thus, even pleading the fact that there was an apology by the defendant offends the principles of pleading and potentially prejudices the defendant at the trial. Additionally, if the apology remains a part of the pleading, it becomes a live issue on discovery. While the case on its face appears to provide some practical advice on the principles of pleading, it is the discussion of this relatively unknown statute that is the real lesson for lawyers to draw from the decision. Specifically, the act essentially allows a client in any potential civil case where a putative plaintiff feels aggrieved or possesses a level of moral superiority to strategically issue an apology in an attempt to diffuse the situation. The master, in obiter, under- scored the virtue of a strategic apology when he noted: "My personal involve- ment in mediation, arbitration has provided me with examples of the value of an apology in reaching a mutually acceptable out-of-court resolution." I concur with Short. My own experiences over 22 years of litigation are that a properly timed and genuine expression of remorse can avert a law- suit or mitigate the eventual cost to the defendant of settling the lawsuit. As lawyers, we think of the facts of a potential case in emotionally detached and almost clinical terms. But to the clients sitting in front of us, if we listen closely, mixed with their explanations of how they suffered economic losses by the proposed defendant will be expressions of moral indignation about how someone could do something so bad to them. Settling or avoiding lawsuits involves understanding more than just the law. It involves trying to get inside the head of the opposing party to empa- thize with its perspective. Plaintiffs often just want someone to hear and un- derstand them. As counsel for a potential defendant or for you if you are deal- ing with an unsatisfied client, Short reminds us that the Apology Act gives us a very useful tool. Used effectively and, most importantly, with authenticity and compassion, an apology may save thousands of dollars. It did not have that effect for the defendant in Simaei, but the plaintiff will not be able to use an ostensibly heartfelt expression of regret against her in the civil action. LT uDarryl Singer is a Toronto area litigation lawyer and principal of Singer Barristers PC. Electronic production emphasized in recent case BY BRUCE ROHER For Law Times n the recent case of Camino Construction Inc. v. Matheson Constructors Ltd., the court shed impor- tant light on issues dealing with the format of relevant productions in civil litigation. In a claim dealing with construction delay, Camino Construction brought a motion for an order to compel Matheson Constructors to produce documents in electronic format. The parties had agreed both sides would produce their documents electronically and in native format. A native file is the same format in which it was created. Camino Construction provided Matheson Constructors with a personal storage table containing its e-mails in native format. Matheson had not provided its e-mails. On the motion, counsel for Matheson Constructors said the company was ready to produce e-mails in a near-native format. Its counsel argued that format would maintain the integrity of the e-mails and allow for searching the documents. They further maintained that the provision of native e-mails in a personal storage table file created risk due to the potential to manipulate the metadata. A lawyer for Camino Construction responded that the issue was arising for the first time in argument, something he suggested was inconsistent with the agreement with the other side's counsel and was inconsistent with the Sedona Canada principles. The court agreed that the Sedona Canada principles provide that it should uphold the agreement of the parties regarding the format of electronic production. With respect to the potential for manipu- lation of documents, the court decided it should deal with that prospect if and when it becomes an issue. In deciding that point, the court considered the decision in Gamble v. MGI Securities in which the master held that a party has a right to production of electronic documents in the form in which they were created and stored and that production in DVD or paper format was not meaningful as it did not permit the other party to take full advantage of available document-management technology. Accordingly, the court ordered production in the format in which the documents were created. Another critical issue in electronic document discovery covered by the Sedona Canada prin- ciples is to take appropriate steps to ensure document requests are proportionate. Proportionate requests take into account the importance and complexity of the issues, the quantum of poten- tial damages or loss, the relevance of the electronic information, the importance to the court's adjudication, and the costs, burden, and delay that may result. According to the Sedona Canada principles, in refusing a request for further production, the producing party must provide evidence that the cost, burden, and disruption of retrieving and processing the information from sources other than those accessed in the normal course of business are not justified. That issue arose in Camino. Counsel for Camino Construction wanted the affidavit of documents produced in electronic format in either Microsoft Word or Excel. Counsel for Matheson Construc- tors objected on the basis that the parties had produced hard copies of the affidavits of documents and requiring an electronic format would involve needless repetition. He also argued that the hard copies were sufficient given the quantity of the potential productions. Counsel noted there were about 1,000 documents from Camino Construction and 600 to 700 documents from Matheson Constructors. The court ordered production of the affidavit of documents in electronic format for several rea- sons. First, the productions were significant in size. If there is repetition of work because of the previ- ous hard-copy versions, it is still worth it since the discoveries and trial will be more efficient. Second, the parties had already agreed to significant production in electronic format. Third, producing an electronic affidavit of documents would facilitate the organization of the electronic documentation. And fourth, commentary to the the Sedona Canada principles states that the document lists the par- ties are to exchange in relation to electronic production "should be exchanged in electronic format, which facilitates searching, sorting, and reporting." It appears that in deciding motions involving electronic productions, the court will place considerable reliance on the Sedona Canada principles and any prior agreements between the parties on the format of disclosure. The Sedona Canada principles state that "production of electronic documents and data should be made only in electronic format unless the recipient is somehow disadvantaged and cannot effectively make use of a computer, or the volume of docu- ments to be produced is minimal and metadata is known (and agreed by all parties) to be irrel- evant." Therefore, it is clear that when it comes to electronically stored data, the parties should produce it in an electronic format in most circumstances. LT uBruce Roher is a partner at Fuller Landau LLP in Toronto who practises in the areas of busi- ness valuations, damages quantification, and forensic accounting investigations. He's available at broher@fullerllp.com or 416-645-6526. u SPEAKER'S CORNER A I KEY ARGUMENTS MISSED IN ORIGINALISM CRITIQUE Matthew Gourlay's comment in the Aug. 10 edition (see "Originalist creed a prob- lematic approach to assessing the law") missed the salient arguments related to the living-tree versus originalism theories of constitutional interpretation. No one argues for a rigid, inf lex- ible document wedded to a historical understanding of its provisions. The ar- gument is over who should change the Constitution. Living-tree advocates argue that because democratic changes to the Constitution are so difficult, activist judg- es have the obligation to ensure it remains up to date and relevant. Originalists argue the Constitution should be democratically changed and that the difficulty in amend- ing it in this fashion is precisely the point. In their view, it is only when the social consensus has reached the point of achiev- ing the multiple pluralities necessary for formal amendment that the Constitution should be amended at all. To believe oth- erwise is to allow special interest groups to bypass Parliament and lobby the Supreme Court of Canada instead. How, they argue, can the Constitution serve as a foundational document when its foundation is made of clay as it constantly shifts and lacks certainty and stability due to continual change in interpretation? In this view, the living tree results in consti- tutional ping-pong with cases swinging in different directions based on who sits on the court rather than the changes in social mores because of the passage of time. At the same time, once an ideology has cap- tured the Supreme Court of Canada, it is democratically very difficult to dislodge it, a fact that makes the views of a supposedly enlightened activist judiciary as to what the Constitution is the law of the land re- gardless of the social consensus. Do we not interpret contracts based on the shared intention of the parties at the time of the contract? Do we not interpret treaties based on the shared in- tention of the parties at the time they made them? Why is it that our foundational social contract is not subject to the same rules? In Obergefell v. Hodges, one of the judges captured the originalist view with a comment that to allow nine non-repre- sentative jurists to change society by con- stitutional edict was "to violate a principle even more fundamental than no taxation without representation: no social transfor- mation without representation." Whatever one's view, it is a serious de- bate worthy of more than the smug dis- missal of originalism by Gourlay. David Debenham, McMillan LLP, Ottawa u Letter to the editor

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