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Page 12 February 12, 2018 • Law Times www.lawtimesnews.com encourage clients to think be- fore they post. Think how it can be spun," she adds. For younger clients, espe- cially if the litigation is going to cover a longer period, it can be more challenging to convince them of the risks of social media activity. "It is hard because this is the way they communicate. They can't have a five-year gap," notes Burn. The defence will have done its own online investigation, and requests for the plaintiff 's social media information are now standard, she adds. "The list gets longer every discovery I go to," says Burn. Meghan Walker, a lawyer at Will Davidson LLP in Oakville, Ont., says it is also necessary to be informed about the con- stantly changing technologies used by clients. "There are so many social media applications. We have to make sure we are up to speed," she notes. "For people new to social media, we tell our clients we are there to help," Walker says. Even some applications such as Snapchat, where the content is only accessible temporarily, may still pose risks in litigation. "You are more safe, but peo- ple can take screenshots" that can be preserved, says Walker. While the plaintiff will have to produce some social media content in the normal course of discoveries, she explains that the litigation risks can be re- duced. "The problems happen when all of your posts are public," she says. "If the client keeps every- thing private, then it also be- comes more difficult for defence counsel to become aware of it." In addition to advising cli- ents about the risks of social me- dia posts during litigation, it is essential that lawyers for plain- tiffs conduct online research re- lated to the defence, such as its experts and their qualifications, explains Bent. "We search social media for every defence witness. You would be surprised what is out there," she says. LT islation has been effective for 25 years in adjudicating simi- lar types of lawsuits involving sporting activities that have an element of risk. "Without the benefit of the jurisprudence currently in place, it will be difficult for de- fence lawyers to properly advise their clients in circumstances where waivers are involved," wrote Jim Tomlinson, partner at McCague Borlack LLP in To- ronto. In response, lawyers rep- resenting the plaintiffs in the litigation argue that there is not a conf lict between the two stat- utes. "The plaintiff is both a con- sumer under the CPA and a per- son entering onto the premises under the OLA. The defendant is both a supplier of services under the CPA and an occupier of premises under the OLA," wrote Paul Pape and Shantona Chaudhury of Pape Barristers in Toronto, who are acting for Schnarr at the Court of Appeal. "The consumer's claim in breach of the deemed warranty under the CPA and his claim in tort/occupier's liability un- der the OLA are separate and concurrent causes of action. Pursuant to the law set out by the Supreme Court of Canada, a claim in contract may proceed although a claim in tort based on the same facts may be barred, or vice-versa. "There is no absurdity or in- equity in this; to the contrary, it is a well established principle of law," they wrote. "Where a consumer agree- ment exists, the legislature has provided another cause of ac- tion that exists independently of the OLA," they explained in their written submissions. The Ministry of Govern- ment and Consumer Services is arguing that, under the con- sumer protection legislation, an occupier is not permitted to restrict its liability in providing goods and services that are of an unreasonable quality. As well, the OPA does not "supersede" the CPA, stated law- yers for the province in its writ- ten submissions. The Ontario Trial Lawyers Association supports the po- sition of the plaintiffs in the appeal and states that the two statutes can both apply without "absurd" results. "Occupiers licensing lands for consumer's activities can- not abdicate all responsibility for lands they wish to license by excluding all liability even for their own conduct," wrote Derek Nicholson on behalf of the OTLA. "These protections are de- signed to balance the interest of the consumer against corpora- tions where there is a practical imbalance of negotiating pow- er," stated Nicholson, a partner at Beament Hebert Nicholson LLP in Ottawa. The Tourism Industry As- sociation of Ontario, the On- tario Federation of Snowmobile Clubs and the Ontario Cycling Association are also interveners. The Court of Appeal is not expected to release its decision for several weeks. LT Continued from page10 OTLA supports position of the plaintiffs Not 'settled law' Continued from page 11 Zohar Levy says there are non-profit orga- nizations without significant budgets to defend potential lawsuits that might arise. FOCUS The Canadian Lawyer InHouse Innovatio Awards is the preeminent award program recognizing innovation by members of the in-house bar within the Canadian legal market. These awards celebrate in-house counsel, both individuals and teams, who show leadership by becoming more efficient, innovative and creative in meeting the needs of their organizations. The Innovatio awards program draws on a panel of in-house counsel judges to determine the winners, based on a range of criteria. Accepting nominations from large, small and public sector/non-profit legal departments. NOMINATIONS OPEN FROM JANUARY 15 - MARCH 15, 2018 For more information or to nominate visit www.innovatio-awards.com SAVE THE DATE September 20th | Arcadian Court, Toronto NOMINATE AN INDIVIDUAL OR TEAM IN THE FOLLOWING CATEGORIES: • Law department leadership • Law department management • Diversity • Best practices in compliance systems • In-house M&A/Dealmakers • Working with external counsel • Litigation management • Risk management • Tomorrow's leader in innovation FORGING A STRONGER FUTURE Untitled-4 1 2018-02-06 1:42 PM

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