CCCA / McCarthy Tétrault Litigation Seminar Series ... litigation.pdf · • Business Reasons • Regulatory Requirements • Litigation Risks • Risks of operating without a policy

CCCA / McCarthy Tétrault Litigation Seminar Series: Managing Litigation May 30, 2007 Terminal City Club 837 West Hastings Street

McCarthy Tétrault LLP P.O. Box 10424, Pacific Centre Suite 1300 – 777 Dunsmuir Street Vancouver BC V7Y 1K2 Canada www.mccarthy.ca

CCCA / McCarthy Tétrault Litigation Seminar Series

Contents

A Agenda

B Document Retention – Managing the Risk

C Managing Claims and Losses – Protect Your Insurance Coverage and Your Premiums

D Internal Investigations: A Primer

E The Varieties of Privilege: Solicitor-Client, Common Interest, Litigation, and How to Protect Them

F Defending Class Actions: Perils, Pitfalls and Practical Tips

G Class Actions in British Columbia – Brief Primer

H Managing (and Budgeting for) Litigation: Top Ten Methods to Manage Outside Counsel

I Lawyer and Speaker Profiles

Litigation Management for Corporate Counsel

Wednesday May 30th Terminal City Club, Vancouver

Program Agenda

0730 Continental Breakfast 0800

Introductory remarks from the Co-chairs Hon. James Farley, Q.C., Counsel, McCarthy Tétrault LLP Martin MacLachlan, Senior Vice President, Legal Affairs, Canaccord Capital Corp.

0815 Prevention Issues - How to prepare your enterprise for litigation risks

0820 Document retention (Warren Milman)

Document management and retention are now important cost drivers. Disclosure obligations in litigation can be very onerous, especially with the advent of e-disclosure. In most situations, policies are developed by corporate counsel, based on murky statutes and uncertain risk environments – learn the latest on management of email, voice mail, the law on spoliation of evidence, and the duration of your storage obligations.

0840 Managing Claims and Losses to Protect your Coverage (Ariel DeJong)

Modern enterprises face an array of claims/losses, and pay considerable premiums for CGL, D&O, and specific risk insurance. How can you enhance the chances that your claims will be covered or losses paid by the insurance you paid for? What you should do and what you should not do about managing claims/losses? Here’s how to put together a team to get the best result possible.

0900 Internal Investigations (Bob Cooper)

Whistleblowers and regulators are increasingly raising issues of how you deal with internal controversies, business and professional errors, and media inquiries. Internal investigations must comply with fairness obligations, employment law, and still be completed in a timely fashion.

0920 Questions from the floor

0945 Break

1000 Management of Litigation and Litigators 1010 Privilege and how to keep it (Andrew Wilkinson)

You are legal counsel, and should seek to maintain solicitor-client privilege over appropriate communications within your enterprise. When the threat of litigation arises, you must be careful to protect the advice you provide in-house, and any advice you receive from outside counsel. And it is essential to be aware of the limited duration of litigation privilege, as described in Blank v. Canada 2006 SCC 39

1030 Class actions (Elaine Adair)

Class actions are a fact of life, and can strike almost any enterprise. But what is the realistic overall risk, and how are they managed in Canada? Learn the procedural steps you should be ready to take, and how to warn your enterprise of impending threats before they become a reality.

1050 Budgeting for litigation (Ariel DeJong)

Many in-house counsel have little experience with litigation, and find it challenging to manage files where each step seems to exceed expectations in time spent and headaches endured. You can work with litigators to plan your way through litigation, and anticipate costs and time commitments, and thereby budget your time and cash flow accordingly.

1110 Questions from the floor

1140 Closing remarks from the Co-chairs

Networking Luncheon

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Document Retention – Managing the Risk

Warren B. MilmanMay 30, 2007

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Overview

• Why have a Retention/Destruction Policy?• Business Reasons• Regulatory Requirements• Litigation Risks

• Risks of operating without a policy• Risks of having a policy but not complying with it• Tips for developing and managing a policy

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A Hot Topic

• Sedona/Sedona Canada: www.thesedonaconference.org• “Paperless office” - Information Explosion:

• 99% of information stored in the U.S. is created electronically• estimated 100 billion e-mails sent daily in 2006 (up from 31

billion in 2002 and 5.9 billion in 1999)• estimates are that business data is presently growing at 70 to

120% per year• if an average employee sends and receives 50 emails per

business day, then an organization with 1,000 employees will generate 13 million emails per year

• 70% of documents are never printed

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Why have a Policy?

• Without an effective records retention policy an organization may be:• destroying records that it is required by law to keep• keeping records that it is required by law to destroy• destroying records that, based on sound litigation policy,

should be kept• exposing itself to allegations of spoliation, and potential

adverse inferences and costs penalties in litigation• exposing itself to litigation costs associated with recovering

“destroyed” electronic information• exposing itself to unnecessarily high costs associated with

document production during a lawsuit

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Risks of Operating Without an Effective Policy

• Litigation sanctions• Regulatory infractions• “out of control” data

(stolen laptops/mobile devices/laptops on e-Bay)

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Litigation Considerations

• Preserving the evidence you need to make and defend claims

• Spoliation• adverse inferences• loss of right to call evidence (U.S. v. Philip Morris)• damages

• Contempt

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“E-discovery”

• Costs rising higher than legal costs• Cases settling to avoid costs of e-discovery• Email candour and the “smoking gun” – famous examples:

• “Gates delivered a characteristically blunt query: how much do we need to pay you to screw Netscape?”(actual email from director of AOL, which emerged in a DOJ anti-trust investigation of Microsoft)

• “ATHM is a piece of crap!”(actual email from the Merrill Lynch analyst who published high rating for ATHM, which emerged in an SEC investigation of Merrill Lynch, leading to $100 million fine)

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Step 1: Taking Stock

• What do you keep? • What do you destroy? • How do you keep data?• How do you destroy data?• What do you need?• Costs• Staffing

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Step 2: Collecting Regulatory Requirements

• Statutory Retention Periods:• Corporate accounting records = 6 years• Tax records = 6 years• Payroll records = 2 years (after employment is terminated)

• Statutory Destruction Periods• e.g. – Privacy legislation

• Industry Specific Standards• Securities• Financial Institutions

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Step 3: Setting the Scope of the Policy

• “records management” is defined by the Sedona working group as:

“the planning, controlling, directing, organizing, training, promoting and other managerial activities involving the life cycle of information, including creating, maintenance (use, storage and retrieval) and disposition, regardless of media”

• “record” is defined to mean “information, regardless of medium or format, that has value to an organization”

• “E.S.I.” (as opposed to “documents”)• all devices: laptops, BlackBerries (CIBC-Genuity case),

PDAS’s, cell phones, sticks, iPods, video games(Desgagne v. Yuen)

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Step 4: Setting Standards

• Format (Discuss with Regulators)• Destruction Period: Regulatory High Water Mark• Limitation Periods

• General and Ultimate (Postponement)

• Preserving Privilege (Classification Coding)• Integration with other policies and practices

• e.g. Confidentiality and IP protection, email and internet usage, security

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Implementation

• Communication• Monitoring

• Practice should be consistent with policy• Updating policy as necessary

• ensuring full destruction of data (18 layers of rewrites)

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Implementation (Cont’d)

• Litigation Holds• “as soon as litigation is contemplated or threatened”

(moving target)• Who can suspend• Who is responsible for failure (counsel: Zubulake)• Only for lifetime of litigation

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Dangers of Misapplication of Policy – Bad Faith

“[I]f it's destroyed through the course of [the] normal [document retention] policy, and litigation is filed the next day, that's great… [W]e’ve followed our own policy, and whatever there was that might have been of interest to somebody is gone and is irretrievable.”

Comment made by Michael Odom, a senior partner at Arthur Anderson, during a Webcast to several Andersen offices on Oct. 10., 2001, shortly before the SEC served Enron and Arthur Anderson with subpoenas for records, and cited by the United States Supreme Court in Arthur Anderson LLP v. United States, 125 S. Ct. 2129 (U.S., 2005).

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Dangers (Cont’d)

“Per DAVE – No more shredding … We have been officially served for our documents.”

[email sent from the assistant to David Duncan, the head of Arthur Anderson’s Enron audit team, to the remainder of the Houston team, Arthur Anderson LLP v. United States, 125 S. Ct. 2129 (U.S.S.C., 2005)]

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1

Managing Claims and Losses –Protect Your Insurance Coverageand Your Premiums

Ariel DeJongMay 30, 2007

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Organization & Due Diligence

• Who is responsible for insurance coverage in your company?• Risk manager or risk management department• Broker – good relationship important• Counsel (internal or external) – liaison critical• Access to coverage expertise essential

• Understand the coverage you have• Read your policies and know what they say• Know what policies you have (CGL, Property and BI, Builder’s

Risk, D&O, E&O, project specific, umbrella, excess)• Policies others you contract with have covenanted to provide

– “additional insured”

• Ensure your and others covenants to insure are being complied with

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Organization & Due Diligence

• Keep all your policies including those others are obliged to place• Don’t throw away old policies (especially occurrence based)

• Includes application, declarations page, policy wording, all endorsements

• Don’t rely on your broker to keep copies• Manage, retain and store (30 years)

• Make informed decisions about coverage• Avoid overlapping coverage• Avoid gaps in coverage (claims made, exclusions)

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Responding to a major claim or loss - General

• Put together a team• Business drivers (marketing, production, customers,

relationships)• Risk manager• In-house counsel• Insurance advisors (legal and other)• Experts

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Responding to a major claim or loss - General

• Why?• To understand potential coverage issues before claim or loss

presented or denied (statements to adjusters)• To avoid denials by way claims and losses presented• To ensure compliance with obligations under policies• To manage information flow• To ensure coverage implications of decisions made are

considered

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Responding to Claims (Liability – Third Party)

• Reporting duty (read your policy - don’t assume)

• Occurrence based policies• Report claims immediately before you settle or defend• Report occurrences• Report to all insurers under all possible policies (umbrella/excess)• Delay – relief - policyholder good faith and insurer prejudice

• Claims made policies• Report circumstances which may give rise to a claim• Report claims made during the policy period (excess)• Delay – can result in no coverage – no relief• Purchase extending reporting period coverage

• Tender claims to insurer where insurer has duty to defend

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• Duties of policyholder• Co-operate in defence and investigation of a claim• Access to documents• Protect right of subrogation• Not to admit liability• Not to make voluntary payments or settlements without

insurer’s consent except at own expense• Non-waiver agreements

• Don’t sign them without seeking advice – no obligation• Respond to them – invite specifics regarding coverage concerns• Reservation of rights – unilateral• Conflicts - independent counsel- can waive if don’t respond

• Understand potential coverage issues before you meet with adjuster

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• Duty of insurer to defend and indemnify• Duty to defend is broader• Real value in many liability policies• Not always a duty to defend but obligation to pay for defence

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• Dealing with denials of coverage• Don’t take no for an answer• Get it in writing• Obtain advice on coverage position• Respond to denials – ask for reasons• Challenge denial – meeting, lawyer’s letter, arbitrate, litigate• Be wary of limitation periods – can be one year from

unequivocal denial of coverage despite what policy says (Demers case)

• Insurance Act amendment being considered - 2 year limitation

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• Allocation of defence costs between covered and uncovered claims

• Insurer required to pay for all defence costs except those “solely and undeniably” referable to an uncovered claim

• Onus on insurer• Costs which benefit both are payable by insurer• Allocation before judgment or settlement usually premature• Don’t agree to an allocation up front• Some policies have a specific allocation clause (80/20) • Get advice

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Responding to Losses (Property – First Party)

• Report to insurer as soon as loss occurs• One person should be responsible• Failure to comply can result in no coverage• Understand potential coverage issues before you meet with

adjuster – get advice• Consider retaining consultants and experts

• Faulty design/workmanship/material exclusion – resultant damage• Soft costs/business interruption/delayed opening

• Track costs and maintain records of expenses based on coverage

• Sue and labour• Purpose: to require the policyholder to take reasonable steps

to prevent imminent loss or damage to insured property and to require the insurer to pay for those costs

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• Proof of Loss• Interim or final• Insurance Act sets out requirements (s. 6 of s.126)• Insurer required to send form• Get experts involved if complicated (sometimes these costs

are covered)• Any fraud or wilfully false statement vitiates claim• Get advice on potential coverage issues before you file• Usually sworn – be careful and be accurate• Loss usually payable within 60 days – can’t sue till then

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• Dealing with denials of coverage

• See above• What are the issues in dispute (amount of loss or coverage)• Appraisers or experts needed?

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Lessons Learned

• After each loss or claim evaluate outcome• Can you avoid unfavourable outcomes in future• Coverage gaps or overlap• Internal policies and procedures – how can we respond

better

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Internal Investigations: A Primer

Bob CooperMay 30, 2007

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When do they occur?

• OHS• Regulatory action• Employee misconduct• Whistleblower complaints• Media reports

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What’s at stake?

• Health and safety of employees• Risk of regulatory or criminal prosecution• Civil liability• Reputation

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Example #1

• Forestry company operating on private land• Forestry operations being carried out by contractors and sub-

contractors• A faller is critically injured in an accident and dies on-site before

he can receive medical attention• Investigations are started by WCB, police and coroner’s office• The incident has a high media profile• Labour and industry groups use the incident to lobby for changes

to the industry• Coroner announces public inquest• At issue for the company is the likelihood of regulatory

sanctions, the risk of prosecution and significant reputationalrisk

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Example #2

• Through a whistleblower hotline established by a major company, an anonymous complaint is made that certain key employees have engaged in insider trading

• The employees named are members of senior management• The whistleblower provides few specifics• If true, the allegation has serious consequences for the

company and individuals involved• At issue is the integrity and reputation of the company and

individuals involved and the possibility of regulatory or civil action

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Example #3

• A routine review raises a serious issue of misconduct by a long-time employee

• The issue raises questions about the employee’s trustworthiness and calls into question the employee’s future with the company

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What do you do?

• Anticipate the event• Prepare the initial response• Assess the risks• Choose a process

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Anticipate the event

• Something bad will happen; it is only a matter of time• Decide who will be the point person• Decide who will respond to media• Know who your outside sources are

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Initial response – Workplace accident

• Secure accident site• Notify WCB• Inform employees of rights/obligations• Advise counsel• Understand the scope of the duty to cooperate• Document and record

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Initial response - Regulatory Investigation

• Protect privilege• Determine the purpose• Contact counsel• Search warrants• Requests for production

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Initial Response – Employee Misconduct

• Establish clear policies for conduct• Complaints procedure in place – whistleblower program?• Understand privacy and confidentiality obligations

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Assess the risks

• What are the legal consequences?• Closure• Fines• Prosecution• Civil actions

• Distinguish between risks to the company and to the individuals involved

• Is there an obligation to report or disclose?• Is the reputation of the company at stake?

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Choose a process

• The process must be gauged to the seriousness of the incident

• Decide early if outside counsel is needed• Will the investigation remain internal or will the results be

made known to outside bodies?

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What to watch out for

• Know your client• Manage internal and external communications• Maintain privilege• Understand the regulatory environment

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Know your client

• Decide who will provide instructions• Management• Directors• Committee

• Make an early decision to go outside or stay home• To be credible, the investigation must be independent

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Manage internal & external communications

• It is easy to lose control over the investigation• Limit knowledge inside the company to those who need to

know• Limit speculation and rumours by communicating what you

can• Have one external spokesperson

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Understand the regulatory environment

• Know the regulator• Understand what matters to them• What are the current hot buttons?• Beware of overlapping jurisdictions• Kiss and make up or pistols at dawn

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General considerations

• Investigations are hard on people• The manner in which the investigation is carried out has

the potential to cause more harm than the conduct under investigation

• Serious incidents get the attention of senior management• There is increasing pressure from regulators to “cooperate”

by disclosing the contents of the investigation• Done properly, they can allow a company to get ahead of

the curve

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The Varieties of Privilege:Solicitor-ClientCommon InterestLitigation

and How to Protect Them

Andrew WilkinsonMay 30, 2007

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Solicitor-Client Privilege

• Three preconditions for solicitor-client privilege: “(i) a communication between solicitor and client;

(ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties.”

(Pritchard) 2004 SCC

• “It exists whether or not there is the immediacy of a trial or of a client seeking advice”(McLure) 2001 SCC

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Critical Reminders on Solicitor-Client Privilege

• Privilege does not extend to communications:1. where legal advice is not sought or offered; 2. where they are not intended to be confidential; or3. that have the purpose of furthering unlawful conduct.

(Pritchard)

• The privilege belongs to the client, not the lawyer. (Lavalee) 2002 SCC

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Critical Reminders on Solicitor-Client Privilege

• Waiver requires the client’s informed consent. (Lavalee)• If a party starts a “suit or raises an affirmative defence

that makes its intent and knowledge of the law relevant”, it will be taken to have waived solicitor-client privilege. (R v. Campbell) 1999 SCC

• Where a party inadvertently comes into possession of privileged material belonging to an adversary, it should not only promptly return the inadvertently disclosed privileged material, but also advise the adversary of the extent to which those materials have been reviewed. (Celanese) 2006 SCC

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In-House Counsel Privilege

• “If an in-house lawyer is conveying advice that would be characterized as privileged, the fact that he or she is ‘in-house’ does not remove the privilege, or change its nature”. (Pritchard)

• The only difference is that in-house counsel “act for one client only, and not for several clients”. (Campbell)

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In-House Counsel Privilege (cont’d)

• Where “corporate lawyers … give advice in an executive or non-legal capacity … such advice is not protected by the privilege”. (Pritchard)

• “Whether or not the privilege will attach depends on the nature of the relationship, the subject matter of the advice, and the circumstances in which it is sought and rendered.” (Pritchard)

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“Limited” Waiver of Privilege – Auditors, Securities Commissions and Law Societies• When producing privileged information to auditors, etc.,

you should document your intentions by way of a “limited waiver” letter as part of the terms of the engagement or response.

• Even without a letter, Ont. Div. Court accepted implied limited waiver (Philip Services v. O.S.C. (2005) 77 O.R. (3d) 209)

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Common Interest Transactional Privilege (Pritchard)• “The common interest exception originated in the context

of parties sharing a common goal or seeking a common outcome…It has since been narrowly expanded to cover those situations in which a fiduciary or like duty has been found to exist between the parties so as to create common interest.”

• Legal opinions can be shared without loss or waiver of privilege, where sharing “facilitated completion of the transaction because parties were informed of the respective legal positions of others.” (Pitney Bowes of Canada v. Canada )

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Common Interest Transactional Privilege (Pritchard) (cont’d)

• The possibility that parties might later become adverse in interest is not sufficient to deny the existence of a common interest privilege.(Almecon Industries Ltd. v. Anchortek)

• “it is hard to imagine how the requirements of full and true disclosure imposed by securities legislation in Canada could be satisfied if the consequences of such disclosure in merger negotiations are a loss of privilege over highly sensitive and proprietary information. Such an outcome would have a chilling effect on disclosure and would cripple negotiations.”(Anderson Exploration Ltd. v. Pan-Alberta Gas)

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Litigation Privilege

• The leading Canadian authority is Blank v. Canada 2006 SCC 39.

• Fish J. in Blank states: “Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties.”

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Litigation Privilege (cont’d)

• The Supreme Court of Canada has adopted a “dominant purpose” test for litigation privilege.

• “While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.”

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Three Elements of Litigation Privilege

1. Solicitor-client = forever2. Solicitor work product

(USA = “Attorney work product”)3. Solicitor’s work with outside parties

(investigators, experts)Issues:

• Whether litigation privilege applies to documents gathered and copied, but not created, for the purpose of litigation remains controversial

• Privilege clawback agreements are increasingly common in the face of massive discovery using electronic data

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Principles Governing Litigation Privilege

• “Litigation privilege … applies only in the context of litigation itself”

• Litigation privilege “aims to facilitate a process, … while solicitor-client aims to protect a relationship.”

• “Once the litigation has ended, the privilege to which it gave rise has lost its specific and concrete purpose – and therefore its justification.”

• “The distinction between the solicitor-client privilege and the litigation privilege does not preclude their potential overlap in a litigation context”

• “anything in a litigation file that falls within the solicitor-client privilege will remain clearly and forever privileged”.

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Litigation Privilege Survives Where There is Related Litigation• All subsequent litigation will remain subject to a claim of

privilege if it involves the same or related parties and the same or closely related issues.

• But litigation privilege is lost:• when expert appears at trial;• when litigation and related litigation ends (does privilege

over individual claim still apply when class action commenced?);

• litigation must be “closely related” for litigation privilege to apply; and

• consider parties, cause of action, forum, process (e.g. subprime lenders – foreclosure, class action, regulatory).

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Common Interest (Joint Defence) Litigation Privilege• Emerging area of law.

• Must anticipate that interests of parties may later diverge.

• Waiver must be mutual, not unilateral.

• Consider signed agreement.

• Beware of cross border issues, settlement by one party.

• Marking of documents critical, especially for searches later.

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Specific Steps to Maintain and Enhance Privilege

• Confirming by labels and content that particular documents are protected by privilege (and identifying the nature of the privilege claimed)

• Labelling communication as privileged/confidential

• Maintaining segregated files

• Limiting communication of privileged information

• Not over-using privilege or claiming privilege without appropriate foundation

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Particular Challenges to Maintaining Privilege in E-Mail

• Recognize that in any e-mail chain, privileged portions risk being only a part, and thereby risk wider than appropriate disclosure, compromising your claim to privilege

• Consider starting a new email whenever your commentary is privileged

• Important to recognize these risks and set up separate channels of communication to establish and maintain appropriate claims for privilege

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Defending Class Actions: Perils, Pitfalls and Practical Tips

Elaine J. AdairMay 30, 2007

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Defending Class Actions

• Do not panic

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• Know your true adversary: plaintiff’s counsel

• Entrepreneurial lawyers are encouraged to seek out and file claims that will (or might) further the goals of judicial economy, access to justice and behaviour modification

• The key to plaintiff’s counsel realizing the (often) very substantial rewards from class action litigation is “certification”

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• Certification: the court must certify a proceeding as a class proceeding if:

• The pleadings disclose a cause of action;

• There is an identifiable class of 2 or more persons;

• The claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;

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• A class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues

• There is a representative plaintiff who:• Would fairly and adequately represent the interests of the class;• Has produced a plan for the proceeding on behalf of the class and of

notifying the class members of the proceeding; and• Does not have, on the common issues, an interest that is in conflict

with the interests of other class members;

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• Fundamentals matter

• Given the high stakes, a defendant must develop its litigation strategies and goals in the very early stages of the action

• In B.C., unlike Ontario, a plaintiff doesn’t need a personal cause of action against a defendant

• Defence Counsel

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• What’s your defence?

• Use your statement of defence as one of the weapons against certification

• The statement of defence can be an important preview for the court of the issues that the defendant says make the case unsuitable for certification

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• Certification is not (necessarily) Nirvana for class counsel

• Even if the action is certified, only the common issues will be tried

• Depending on what the common issues are, their resolution may still put the class members (and class counsel) a long way away from getting any compensation

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• Mind the “settlement gap” (otherwise known as the “take-up rate”)

• Class action settlements must be approved by the court

• A key factor in settlement approval is the amount a defendant has agreed to pay (or make available) to settle claims

• This amount does not necessarily have any relationship to what is actually paid out to class members who make claims

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• Popular Targets

• Manufacturers and producers

• Governments

• Financial Services

• The “[insert name] Industry”

Class Actions in British Columbia – Brief Primer Elaine Adair

May 30, 2007

McCarthy Tétrault LLP P.O. Box 10424, Pacific Centre Suite 1300 – 777 Dunsmuir Street Vancouver BC V7Y 1K2 Canada

www.mccarthy.ca

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Class Actions in British Columbia – Brief Primer

Class Actions in British Columbia – Brief Primer (Prepared by McCarthy Tétrault LLP – Vancouver, B.C.) (Revised January, 2007)

1. This is intended to provide a very brief historical overview of class actions in B.C., and to describe briefly the procedural steps normally required in a class action in British Columbia. See McCarthy Tétrault, Defending Class Actions in Canada (CCH, 2002), for more detailed information, or contact a member of the Class Actions Group.

Brief History

2. The B.C. Class Proceedings Act (the “CPA”) came into force August 1, 1995. In February, 2005, the B.C. Deputy Attorney-General reported that approximately 230 proposed class actions had been filed since August 1, 1995, and of those approximately 135 cases had been assigned to judges for case management.1 Many of the actions filed have not been pursued. Sometimes the reason is that a parallel action in Ontario is being prosecuted, and the B.C. action lies dormant, or is discontinued or abandoned (which can be done without leave of the court).2 In the light of the (current) ability of Ontario judges to certify national classes on an opt-out basis, the B.C. cases brought forward for certification are still largely confined to claims involving mostly (or exclusively) B.C. residents.

3. Research3 indicates that, as of September, 2006, approximately 84 cases had reached a decision on certification in B.C. Out of 54 cases in which certification was contested, certification was granted in 33 (a number of which have subsequently been settled in whole or in part). As of late 2006, there have been about 30 consent certifications, 22 of which were certified for settlement. Five certified cases have proceeded to trial.4 In four of these cases, the court ruled in the defendant’s favour.

4. The B.C. Court of Appeal has considered the appropriateness of certification of an action as a class proceeding on a number of occasions, and can probably be described as “certification friendly.”

1 The Deputy A-G described these 135 cases as ones where someone had sufficient interest in prosecuting the case that counsel requested assignment of a case management judge. 2 The cases involving Bre-X Minerals are an example. About a dozen cases were filed in B.C., and all have been abandoned. 3 See Branch, Class Actions in Canada, para. 4.1970. 4 Withler v. Canada (Attorney General), 2006 BCSC 101; Elms v. Laurentian Bank of Canada (2004), 35 B.C.L.R. (4th) 373 (S.C.), aff’d 2006 BCCA 86; Gregg v. Freightliner Ltd. 2004 BCSC 1574, aff’d (2005), 42 B.C.L.R. (4th) 225 (C.A.); Nanaimo Immigrant Bingo Society v. British Columbia (2003), 22 B.C.L.R. (4th) 308 (S.C.), aff’d (2004), 30 B.C.L.R. (4th) 194 (C.A.); Kilroy v. A OK Payday Loans Inc., 2006 BCSC 1213.

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To date, the Court of Appeal, for the most part, has upheld the order made by the chambers judge. Orders refusing certification at first instance have been reversed in several cases.5 To date there are only three cases where the Court of Appeal allowed a defendant’s appeal against certification.6

5. In 2004, the 5-judge panel of the B.C. Court of Appeal was asked to consider whether an action filed by a single named plaintiff against defendants against whom the plaintiff clearly had no personal cause of action should be struck out as disclosing no reasonable cause of action. The Court of Appeal dismissed the motion to strike, and allowed the claim to stand against all defendants. In so ruling, the Court of Appeal coined a new term for a proposed class action, calling it “an action with ambition.”7 The B.C. Court of Appeal refused to follow Ontario appellate authority, which requires a named plaintiff with a personal cause of action for each defendant named. To date, Alberta and Québec are following Ontario; Saskatchewan appears to be following B.C.

6. In cases where there are a large number of individual issues, the B.C. Court of Appeal has endorsed the approach of restricting the common issues in order to maintain the desirability of a class proceeding (i.e., to make it the preferable procedure).8 This was done in Harrington v. Dow Corning Corp.9 (breast implant class action), where common issues that had been certified in the U.S. and Ontario were rejected, in favour of a single common issue: was the product reasonably fit for its intended purpose. This case, certified in 1996, was the first case to be certified in B.C., but thereafter moved at a glacial pace. As of July, 2002, the pleadings had not been closed, and there was no

5 See e.g., Rumley v. British Columbia (1999), 72 B.C.L.R. (3d) 1 (C.A.); Halvorson v. British Columbia (2003), 13 B.C.L.R. (4th) 205, 2003 BCCA 264; Collette v. Great Pacific Management Co., 2004 BCCA 110 (“Collette”). 6 Cooper v. Hobart (2000), 75 B.C.L.R. (3d) 54 (C.A.), aff’d (2001), 206 D.L.R. (4th) 193 (S.C.C.) (the appellate court ruled that no reasonable claim had been pleaded); Ernewein v. General Motors of Canada Ltd. (2005), 46 B.C.L.R. (4th) 234 (C.A.) (“Ernewein”) (the Court of Appeal ruled that the plaintiff had failed to provide an appropriate evidentiary basis for the proposition that the resolution of proposed common issues would significantly advance the litigation); and Williams v. College Pension Board, 2007 BCCA 19 (the appellate court ruled no reasonable claim had been pleaded). 7 MacKinnon v. National Money Mart Company, 2004 BCCA 472, (2005), 33 B.C.L.R. (4th) 21 (C.A.), at para. 33 8 Rumley is an example. The Court of Appeal said (para. 25) that the error of the chambers judge was in failing to recognize the limited grounds on which the plaintiffs proposed to advance the claims and the greater commonality of those limited grounds. This decision was upheld on appeal to the Supreme Court of Canada. However, see subsequent events in Rumley described in the judgment at (2003), 12 B.C.L.R. (4th) 121 (S.C.), 2003 BCSC 234. Collette is another example: the case management judge twice refused to certify; however, on appeal from the second dismissal of certification, the Court of Appeal (Mackenzie J.A.) identified common issues that the court concluded could be certified. 9 Harrington v. Dow Corning Corp.(1996), 22 B.C.L.R. (3d) 97 (S.C.), aff’d (2000), 82 B.C.L.R. (3d) 1 (C.A.)

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approved trial plan.10 Despite the initial enthusiasm expressed by the Court in 1996, and again by a majority of the Court of Appeal in 2000, the case appeared to be unmanageable as a class proceeding. A settlement, involving a modest, capped fund with a reversion to the defendants, was approved in August, 2005.

7. In another case involving allegedly defective toilet tanks,11 the judge who certified Harrington (Mr. Justice Mackenzie, who now sits on the B.C. Court of Appeal) rejected a list of more specific questions in favour of a single question: was the defendant negligent in the manufacture and distribution of toilet tanks over an 11 year period. The judge also certified a question whether the defendant was guilty of conduct which justified an award of punitive damages. Despite developments since 1996 in the substantive law concerning punitive damages, this case is still cited and followed regularly as authority that “punitive damages” can be certified as a common issue.12

8. Early pronouncements from the B.C. Court of Appeal indicated that it was sufficient for certification if a common issue or issues could be identified the determination of which would simply “move the litigation forward.”13 This observation was made in the specific context of the CPA, where the question whether issues are common is relatively narrow, and predominance of individual issues over common issues is not relevant to the question whether common issues can be identified.14

9. The “move the litigation forward” statement continued to be a source of confusion for some chambers judges, who referred to it as support for a conclusion that there are common issues and that a class proceeding is preferable.15 However, in 2003, the B.C. Court of Appeal clarified the nature of the “cost/benefit analysis” in the context of the preferability question. It involves an assessment of whether a class proceeding would advance the claims in any meaningful way. If resolution of the common issues goes a considerable measure toward obtaining relief for the class members, then certification promotes the objects of judicial economy and improved access to the courts.16

10 Harrington v. Dow Corning Corp. (2002), 3 B.C.L.R. (4th) 51 (S.C.). 11 Chace v. Crane Canada Inc. (1997), 26 B.C.L.R. (3d) 339 S.C.), aff’d (1998), 44 B.C.L.R. (3d) 264 (C.A.) 12 See the discussion in Hamer, David I. and Lehman, Troy H., “Class Actions and Punitive Damages in Canada: Some Lessons for Prospective Defendants,” (2003), 28 International Legal Practitioner, and available on Robinette. The B.C. Court of Appeal recently affirmed that “punitive damages” could be certified as a common issue in Fakhri v. Wild Oats Markets of Canada, Inc., 2004 BCCA 549. 13 Campbell v. Flexwatt Corp. (1997), 44 B.C.L.R. (3d) 343 (C.A.) 14 See Class Proceedings Act, s. 4(1)(c), and see Rumley v. British Columbia, [2001] 3 S.C.R. 184 (“Rumley”), para. 33. 15 See, e.g., Olsen v. Behr Process Corporation, 2003 BCSC 1252, para. 36. 16 Hoy v. Medtronic, Inc. (2003), 14 B.C.L.R. (4th) 32 (C.A.), at para. 54.

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10. Useful guidance was provided in a “trilogy” of decisions released by the Supreme Court of Canada in 2001.17 The Supreme Court clarified that the question of whether a class proceeding is preferable must take into account the importance of the common issues in relation to the claims as a whole, including any individual issues that would have to be determined, and that the question whether an action should be allowed to be prosecuted as a class action necessarily turns on the facts specific to that particular case. Unlike the Ontario Class Proceedings Act, the CPA specifically directs that the court must consider whether common issues predominate over individual issues as a factor in assessing preferability.

Procedure under the CPA

11. Under the CPA, an action is commenced as a proposed class action. It is not a “class proceeding” until the action has been certified as such. The British Columbia Rules of Court apply to class proceedings to the extent that the Rules are not inconsistent with the CPA.

Appearance and Statement of Defence

12. The first step normally taken by a defendant when duly served with process is the filing of an appearance. The time to file an appearance depends on whether the defendant has been served within or outside the jurisdiction. A defendant served in B.C. has 7 days (not counting the day of service) to file an appearance. The time for filing an appearance is 21 days if the defendant resides and was served anywhere in Canada outside B.C., 28 days in the case of a person residing in the U.S., and 42 days in the case of a person residing elsewhere.

13. Under the Rules, a statement of defence is to be delivered within 14 days from the time limited for appearance or from the delivery of the statement of claim, whichever is later.

14. There is no consistent practice in B.C. concerning the filing of a statement of defence before the application certification. Some plaintiffs’ counsel are content to grant indefinite extensions, and will not require a defence prior to the hearing of the application for certification. The B.C. Court of Appeal has clarified that whether a statement of defence should be filed in advance of the certification application should be left to the case management judge.18 If certification is being opposed, a well drafted statement of defence can be a very useful tool – supporting the evidentiary record – in opposing certification. At least one judge appeared critical of a defendant for not having

17 Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, Hollick v. Toronto (City), [2001] 3 S.C.R. 158, and Rumley. 18 See MacLean v. Telus Corporation, 2005 BCCA 338, overruling Scott v. T.D. Waterhouse Investor Services (Canada) Inc. (2000), 83 B.C.L.R. (3d) 365 (S.C.).

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filed a statement of defence prior to the certification application, pleading the issues it was arguing made the case inappropriate for certification.19

15. The B.C. Court of Appeal has also given encouragement to defendants who are interested in early disposition of claims on the merits, without incurring the very significant time and expense associated with a certification application.20 A defendant who wishes to bring a summary trial application in advance of certification must file a statement of defence.

16. The statement of claim should be analyzed thoroughly. A defendant should consider carefully, and in the light of its overall goals and objectives with respect to the litigation, whether causes of action have been properly pleaded, whether particulars should be demanded, and whether it is appropriate to apply to strike out parts or all of the statement of claim.

Challenges to Jurisdiction

17. A defendant served outside of B.C. may wish to challenge the jurisdiction of the B.C. court, or assert that (even if the court has jurisdiction over it) B.C. is forum non conveniens. Such applications have been brought in a number of proposed class actions. 21 The B.C. court has been asked specifically to address the question whether such applications should be heard in advance of, or at the same time as, the application for certification. The court rejected the defendant’s request to schedule the hearing of application in advance of the certification application, and ruled that both applications should be heard at the same time.22

Appointment of Case Management Judge

18. Once the pleadings have been closed, or the time for filing the statement(s) of defence has expired, a request can be made to the Trial Co-ordinator for the assignment of a case management judge, who, unless he or she is otherwise unavailable, will hear the certification application and any other applications. This judge may, but need not, preside over the trial of common issues. Once the case management judge is assigned (which can take up to 3 months), plaintiff’s counsel generally requests that an initial case management conference be scheduled. 19 Reid v. Ford Motor Company, 2003 BCSC 1632, paras. 50-52. 20 Dahl v. Royal Bank of Canada, 2006 BCCA 369. See also Consumers’ Association v. Coca-Cola Bottling Company, 2005 BCSC 1042 and 2006 BCSC 863 21 See, e.g., Furlan v. Shell Oil Co. (2000), 77 B.C.L.R. (3d) 35 (C.A.) (defendants’ jurisdictional challenge dismissed); Robson v. Chrysler Canada Ltd., 2002 BCCA 354, [2002] B.C.J. No. 1232 (C.A.) (defendants’ jurisdictional challenge dismissed on appeal); Nutreco Canada Inc. v. F. Hoffman-La Roche, 2001 BCSC 1146 (alleged price-fixing conspiracy; defendants’ jurisdictional challenge dismissed). 22 Lieberman v. Business Development Bank of Canada, 2005 BCSC 389 (S.C.), leave to appeal refused 2005 BCCA 268.

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19. B.C. does not, as yet, have a designated rota of class actions judges. Thus, a case could be assigned to a judge with considerable, some or no experience case-managing a proposed class action.

The Certification Application

20. The plaintiff is required under the CPA to make the application for certification:

(a) within 90 days after the later of:

(i) the date on which the last appearance or statement of defence was delivered, and

(ii) the date on which the time prescribed by the Rules for delivery of the last appearance or statement of defence expires without its being delivered; or

(b) at any other time, with leave of the court.

However, very often this time is extended by agreement between counsel, or a more relaxed schedule is set by the case management judge.

21. The requirements for certification (set out in s. 4(1) of the CPA) are that:

(a) the pleadings disclose a cause of action;

(b) there is an identifiable class of 2 or more persons;

(c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;

(d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;

(e) there is a representative plaintiff who:

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding on behalf of the class and or notifying the class members of the proceeding; and

(iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members.

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The claims of the representative plaintiffs do not have to be “typical” of the claims of the class members.

22. The CPA goes on to direct the court, in determining whether a class proceeding would be preferable, to consider all relevant matters, including (see s. 4(2)):

(a) whether questions of fact or law common to the members predominate over any questions affecting only individual members;

(b) whether a significant number of the members have a valid interest in individually controlling the prosecution of separate actions;

(c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings;

(d) whether other means of resolving the claims are less practical or less efficient;

(e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

Despite the direction that the predominance of individual issues must be considered as a factor, at least one B.C. products liability case was certified even though the court found a predominance of individual issues.23 However, that case involved tainted blood products, and there was very strong pressure to find a way to certify. The Court of Appeal has put “predominance” of individual issues over common issues at no higher than a factor to be considered.

23. The Supreme Court of Canada has clarified that, on the application for certification, it is incumbent on the plaintiff to tender evidence and show some basis in fact for each of the requirements for certification (with the exception of the question whether the pleadings disclose a cause of action). The B.C. Court of Appeal has confirmed that the evidence must satisfy the normal tests for admissibility.24 A defendant also has the opportunity to tender evidence – which may touch on the merits – to show that the requirements for certification have not been met. Because identification of common issues is a relatively narrow question under the CPA, the key question on certification is usually whether a class proceeding is the preferable procedure in the context of the claims as a whole.

23 Endean v. Canadian Red Cross Society (1997), 36 B.C.L.R. (3d) 350 (S.C.). 24 Ernewein, para. 31

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24. Under the CPA, the application for certification must be supported by an affidavit of the applicant, in which the deponent must:

(a) set out the material facts on which the person intends to rely at the hearing of the application,

(b) swear that the person knows of no fact material to the application that had not been disclosed in the affidavit or in any affidavits previously filed in the proceeding, and

(c) provide the person’s best information on the number of members in the proposed class.

If the defendant wishes to deliver an affidavit (or affidavits) in opposition to certification, the same requirements as to contents apply. This is a unique feature of the CPA, and the requirements can be difficult to satisfy properly.

25. The minimum time per the CPA between delivery to the defendant by the plaintiff of its material in support of the certification application and the date for hearing the application is 14 days, unless the court otherwise orders. Any affidavits in response must be delivered not less than 5 days before the date set for hearing, unless the court otherwise orders. The fixing of dates for delivery and exchange of materials on the certification application, dates for any cross-examination on affidavits, and setting a date for the hearing of the certification application are typically on the agenda for the first case management conference.

26. There is no consistent practice in B.C. concerning cross-examination on the affidavits filed on the certification application. There is no cross-examination as of right. If the parties do not agree there will be cross-examination, the party who wants it must apply to the court for an order, and faces an uphill battle.25 One judge who allowed cross-examination (on unusual facts) nevertheless limited the scope of cross-examination by the defendants to those matters set out in s. 4 of the CPA, and did not permit cross-examination on the merits of any proposed common issues, even though the plaintiff’s affidavits addressed the merits.26

25 Collette v. Great Pacific Management Co. Ltd. (2001), 86 B.C.L.R. (3d) 92 (S.C.), 2001 BCSC 237 (defendant’s application for cross-examination dismissed); MacKinnon v. National Money Mart Co., [2004] B.C.J. No. 2413, 2004 BCSC 1533 (defendants’ application for cross-examination dismissed). 26 Hoy v. Medtronic Inc. (2000), 78 B.C.L.R. (3d) 302 (S.C.), 2000 BCSC 1105, leave to appeal dismissed, and 2000 BCSC 1715.

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27. Under the CPA, B.C. residents falling within the class description are class members unless they opt out. Non-residents must opt in, in order to be included, and there must be a non-resident sub-class established with an appropriate non-resident representative plaintiff.

Appeal of the Certification Order

28. Either party can appeal the certification order as of right.

Notice of Certification

29. The representative plaintiff must give notice of certification to all members of the class, in accordance with directions given by the court. It is not uncommon in B.C. for a defendant to be ordered to pay the costs of the notice program.

Discovery

30. Named parties to a class proceeding have the same rights of discovery against one another as they would have in any other proceeding. Under the B.C. Rules of Court, one party may examine for discovery only one representative of an adverse party as of right. After discovery of the representative plaintiff(s), a defendant may, with leave of the court, discovery other class members. In deciding whether to grant leave, the court is required to consider a number of factors, including whether the discovery is necessary in view of the defences, the approximate monetary value of individual claims and whether discovery would result in oppression or undue hardship to the class member.

Determination of Common Issues and Individual Issues

31. The common issues for the class (or subclass) must be determined together. A judgment on the common issues is binding on all members of the class who have not opted out. If there are then individual issues to be determined, the court may:

(a) determine those issues in further hearings presided over by the judge, or by another judge;

(b) appoint one or more persons to conduct an inquiry and report back to the court; or

(c) with the consent of the parties, direct that those individual issues be determined in any other manner.

Limitation Periods

32. The provisions in the CPA concerning limitation period were amended in October, 2004 to expand the period during which a limitation period is suspended, to include the period between filing the writ and final determination of the certification application. In effect, under the new provisions, a

Page 11


limitation period for a cause of action asserted in a proposed class action is suspended in favour of persons falling within the class description for the period beginning on the filing of the writ and ending on the date 30 days after the certification application is dismissed without any appeal being brought, or if an appeal is brought of an order granting or refusing certification, that appeal is finally disposed of.

33. Subject to these new provisions, a limitation period applicable to a cause of action in a proceeding that is certified as a class proceeding is suspended in favour of a class member on the commencement of the proceeding. The limitation period recommences when the class member opts out, an amendment is made to the certification order that has the effect of excluding the class member, a decertification order is made, the class proceeding is dismissed without an adjudication on the merits, the class proceeding is dismissed or abandoned with leave of the court, or it is settled.

Costs

34. The CPA prohibits costs being awarded to any party to an application for certification (including an appeal) or to a class proceeding, with limited exceptions. The court has a discretion to award costs in respect of the application for certification or any part of a class proceeding or appeal from a class proceeding, but it is limited to:

(a) any time that the court considers there has been vexatious, frivolous or abusive conduct on the part of any party;

(b) any time that the court considers that an improper or unnecessary application or other step has been made or taken for the purpose of delay or increasing costs or any other improper purpose; or

(c) any time the court considers that there are exceptional circumstances that make it unjust to deprive the successful party of costs.

Class members other than the representative plaintiff are not liable for costs except with respect to determination of their individual claims.

Every effort has been made to ensure the accuracy of this publication, but the comments are necessarily of a general nature, are for information purposes only and do not constitute legal advice in any matter whatsoever. Clients are urged to seek specific advice on matters of concern and not rely solely on the text of this publication.

VANCOUVER P.O. Box 10424, Pacific Centre Suite 1300, 777 Dunsmuir Street Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900

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1

Managing (and Budgeting for) Litigation:Top Ten Methods to Manage Outside Counsel

Ariel DeJongMay 30, 2007

78

Number One

• Create clear outside counsel guidelines and follow them• Retainer letters• Confirm agreement to guidelines in writing• Include billing guidelines – acceptable disbursements• Electronic billing systems to monitor spending, track budgets

and enforce billing guidelines• Consistently enforce• Set communication rules – email v. meetings• Staffing of files• General expectations on how files are approached

2

79

Number Two

• Understand and communicate your company’s brand and strategic plan• Litigation strategy decisions need to be consistent with this• Expect outside counsel to operate within these • Invite outside counsel to visit your company• Measure and track outcomes and results based on objectives –

“high cost of low priced lawyers” – reward better results• Don’t assign new work to under-performers• Regularly evaluate work performed to identify opportunities

for improvement• Reward better results

80

Number Three

• Put litigation plan in place and regularly monitor progress• Set out objectives and expectations• Insist on creative and imaginative solutions and approaches• Early case assessment – what are the facts and issues based on what

is known at the time? – who are the players?• Tactics to reach potential early resolution• Identify impediments to early stage resolution and design a process

to overcome and get beyond them• Monitor milestones as bills reviewed and updates received• Cost containment should not be primary focus - “The Surprisingly

High Cost of Low-Priced Lawyers”• Should reflect an analysis of the problem and a proposal for its

resolution – there are many ways to resolution• Avoid too much detail• Beware of one-track-solution lawyers and overly bullish predictions

3

81

Number Four

• Require experienced staffing of litigation files and pre-approval of any significant changes• Create an appropriate “team” for specific file• No over-lawyering• Avoid file huggers – “delegate, delegate, delegate”• Confirm that experience levels match the work• Confirm responsible lawyer is most appropriate• Beware of the “expert on everything”• Insist work is done by least expensive yet still qualified person• Needs to be effective delegation – highest and best use of time

82

Number Five

• Obtain litigation budgets (cost projections) and track bills against them• Is an implementation of the litigation plan• Goal is not to reduce costs but to map out the most cost efficient

and pro-active route to the best outcome• Should inform the reader about the litigation process (timelines)

and time involved • Is always based on assumptions – not a science• Break down by litigation phase, major activity or time (yearly,

quarterly, monthly) and require updates/revisions• E-discovery and experts• Costs to company of internal human and technical resources –

preparation and experts• See handout for sample budget

4

83

Number Six

• Confirm hourly rates and expenses are (and remain) reasonable for level of expertise• Insist on being advised of rate increases• Discounts for volume and premiums for success• Review internal expenses for reasonableness• Eliminate inappropriate overhead charges• Pay your accounts in a timely fashion (incentives)• Ask for breakdown of effective billed rates (even with rate

increases this can stay flat where work is delegated appropriately)

84

Number Seven

• Require detailed legal bills that specifically describe the services performed• Numerous billing formats available• Vagueness can hide inefficiencies and duplication of effort• Ensure billing revisions promised are made – follow up• Track against budget (be flexible but understand

discrepancies)• Ask to see pre-invoicing reports• If bills are always inaccurate you need to be concerned about

the rest of the work being done – mistakes are made

5

85

Number Eight

• Obtain ongoing assessments and measure against plan and initial predictions• Exposure estimate• Best case and worst case outcomes and costs of same• Obtain information you need early and often to continually

make informed decisions as litigation progresses• Re-evaluate after each stage• Where can your money best be spent to increase the

likelihood of a resolution • Avoid surprises

86

Number Nine

• When files are completed, track results achieved and lessons learned• Measure and track outcomes and results based on objectives• Identify areas of legal liability and take preventative action• Identify specific ways to handle files better – what worked

what did not• Request client audits – 360 degree constructive feedback• Rate outside counsel on efficiency, responsiveness,

understanding of goals and business objectives and predictive accuracy – capture information and share internally

• Lawyers to do better when someone is keeping score• Share analysis of results with outside counsel which will

increase likelihood that your expectations will be met

6

87

Number Ten

• Tell counsel how they can make your life easier• Communicate the challenges and internal issues you face• We can’t assist if we don’t know• What are the pressures on you?• What are the relevant internal politics• What are the business drivers for the various business units• Communicating will enable outside counsel to manage the file

in a way assist you in dealing with these issues• E-billing systems – easier to track to budget and compliance

with billing guidelines • Intranets

McCarthy Tétrault LLP

Lawyer Profile

ELAINE ADAIR

TITLE Partner

OFFICE Vancouver

DIRECT LINE 604-643-7964

E-MAIL [email protected]

LAW SCHOOL University of Toronto, LL.B., 1981

BAR ADMISSIONS British Columbia, 1982

Biography

Elaine Adair is a litigation partner in the Vancouver office. She is a member (and past head) of the Class Actions Group and a member of the Insurance Group.

Her practice encompasses most areas of commercial civil litigation, including contract disputes, product liability claims, insurance coverage disputes and other complex commercial matters. Over the last 10 years, Ms. Adair has defended a variety of clients involved in class actions, including in litigation following the collapse of Bre-X Minerals, product liability claims, alleged price-fixing conspiracies and actions involving a well-known payday lender.

Ms. Adair is a contributing author of Defending Class Actions in Canada, a concise resource on class actions in Canada from a defence perspective, published by CCH. Her other recent activities have included speaking at the British Columbia Continuing Legal Education Society’s 2005 conference entitled “Class Actions: the 10th Anniversary Platinum Collectors’ CLE” and participation as a workshop leader and panel moderator at the Canadian Institute’s Annual National Forums on Litigating Class Actions, held in Toronto, Ontario.

In 2006, Ms. Adair served on the CBABC’s Electronic Evidence Committee and assisted in the drafting of British Columbia’s Practice Direction re Electronic Evidence. She also participates regularly as an instructor for and contributor to the firm’s Advocacy and Knowledge Management programs.

Ms. Adair joined the firm in 1982. She received her M.A. from the University of Western Ontario in 1978 and her LL.B. from the University of Toronto in 1981.

Ms. Adair is a member of the Canadian Bar Association and the American Bar Association (including the Litigation Section, Class Actions and Derivative Suits Subcommittee, and Tort Trial & Insurance Practice Section).


Lawyer Profile

ROBERT COOPER

TITLE Partner

OFFICE Vancouver



LAW SCHOOL Osgoode Hall Law School, LL.B., 1982


Biography

Robert Cooper is a partner in the Vancouver office practising in the Litigation Group. He practises as general counsel, primarily in commercial, criminal and securities litigation.

Mr. Cooper is experienced in complex litigation and public law. He advises individuals and corporations on securities matters relating to corporate governance, shareholder disputes, discipline and regulatory offences. He frequently appears on criminal and regulatory matters relating to fraud, employee misconduct and corporate liability.

Mr. Cooper participates as a guest instructor at trial advocacy programs for the Advocates Society and Continuing Legal Education Society. He speaks frequently as a guest lecturer on securities litigation.

Mr. Cooper received his BA in 1979 from Queen's University and his LL.B. in 1982 from Osgoode Hall Law School. He was called to the British Columbia bar in 1984.


Lawyer Profile

ARIEL DEJONG

TITLE Partner

OFFICE Vancouver



LAW SCHOOL University of British Columbia, LL.B., 1988


Biography

Ariel DeJong is a partner in our Litigation Group and Insurance Group in Vancouver.

Mr. DeJong's practice focuses on insurance coverage issues, construction litigation, corporate and commercial disputes and education law. He has argued cases at all levels of the courts of British Columbia and has been involved in numerous mediations and arbitrations. Private sector clients include those in the manufacturing, real estate development, energy, fish farming, education, processing, professional engineering services and technology industries. He is currently involved in a wide range of insurance coverage files and construction and professional liability litigation. Mr. DeJong has also acted for numerous independent schools, churches and other charitable organizations.

Mr. DeJong is a member of:

• BCRIMA, the British Columbia Risk and Insurance Managers Association;

• the Insurance Coverage Litigation Committee of the Tort Trial and Insurance Practice section of the American Bar Association; and

• the Insurance and Construction Law sections of the Canadian Bar Association.

Mr. DeJong currently serves on the Board of Directors of the Federation of Independent School Associations for British Columbia and has served in that capacity since 1989. He is also a director of the Elim Housing Society which provides housing to seniors. He served for six years on the Board of Governors of the King’s University College located in Edmonton, Alberta and for three years as a Director of the Surrey Christian School Association. He is a member of the Fleetwood Christian Reformed Church.

Mr. DeJong received his B.A. in 1985 from Calvin College and his LL.B. in 1988 from the University of British Columbia. He was called to the British Columbia bar in 1989.

Lawyer Profile JAMES FARLEY, Q.C.

Biography

The Honourable James Farley, Q.C. was appointed to the Superior Court, then named the Supreme Court of Ontario, in 1989. Since its inception in 1991 and until his retirement on May 1, 2006, he acted as supervising judge of the Commercial List in Toronto. The Commercial List deals with complex corporate / commercial litigation in addition to its insolvency foundation. He also took a periodic rotation in the Criminal List. He is a graduate of the University of Western Ontario (B.A. 1962), University of Oxford (Rhodes Scholar; B.A. 1964; M.A. 1968) and the University of Toronto (LL.B. 1966). He was called to the Ontario bar in 1968 and practised as a corporate / commercial solicitor.

He has returned to the bar in August 2006 as Senior Counsel to McCarthy Tétrault LLP. He will work with our business law, bankruptcy and restructuring and litigation groups on a firm-wide basis, including work on our cross-border initiatives, and will provide our clients with strategic business, litigation and insolvency-related advice.

He is a member of the International Insolvency Institute, Insolvency Institute of Canada, Insol International, American Law Institute, American College of Bankruptcy, American Bankruptcy Institute, International Bar Association and International Law Association. He has participated in the American Law Institute NAFTA transnational insolvency project, the INSOL / UNCITRAL judicial colloquia and the World Bank insolvency practices project. As well he has delivered papers on various topics including insolvency, corporate law, commercial courts, ADR, WTO and law practice management in Canada, the USA, England, China, Nigeria, Bermuda, Germany, France, the Bahamas, Jamaica, Brazil, Austria, Tanzania, New Zealand, Argentina and Australia.

TITLE Senior Counsel

OFFICE Toronto

LAW SCHOOL University of Toronto, LLB, 1966 Oxford University, BA (Jurisprudence), MA, 1964, 1968




Speaker Profile

MARTIN MacLACHLAN

TITLE

Senior Vice President, Legal Affairs

Canaccord Capital Inc.

OFFICE Vancouver

DIRECT LINE

604-643-7450

E-MAIL

martin_maclachlan@ canaccord.com

LAW SCHOOL University of British Columbia, LL.B., 1981 University of London, LL.M., 1987


Biography

Martin MacLachlan is Senior Vice President, Legal Affairs and Corporate Secretary of Canaccord Capital Inc. and Senior Vice-President, Legal Affairs, of its wholly owned subsidiary, Canaccord Capital Corporation, a member of the Investment Dealers Association of Canada (“IDA”).

Mr. MacLachlan received a B.Com. in 1980 from the University of British Columbia and his LL.B. from the University of British Columbia in 1981. He was called to the Bar of B.C. in 1982, and in 1987, obtained his LL.M. (with merit) in Commercial and Corporate Law from the University of London (London School of Economics and Political Science).

Prior to joining Canaccord in 2004, Mr. MacLachlan was a partner of Miller Thomson LLP. The Vancouver office of Miller Thomson was formed by a merger with Swinton & Company in Fall 2000. Mr. MacLachlan joined Swinton & Company in 1981 as an articled student and was a partner of that firm at the time of the merger. His practice was concentrated in securities, corporate and societies law. He counselled clients on public and private financings, securities registration and compliance, corporate governance and general corporate matters. One of his major clients was Canaccord Capital Corporation.

Mr. MacLachlan is a prolific member of the law community. He has been a member of several committees advising the provincial government and the Continuing Legal Education Society of British Columbia; has acted as course chair, course coordinator, co-chair, instructor and panel member for various Continuing Legal Education seminars; has authored papers, chapters and companion materials for the above-named organizations; and is an occasional lecturer at the Professional Legal Training Course in company law and mortgages.

Mr. MacLachlan’s memberships have included the Securities Law Advisory Committee of the British Columbia Securities Commission and he has and continues to devote much of his time to community endeavours including roles with the Liberal Party of Canada and the B.C. Liberal Party, the Canadian Mental Health Association, and the Greater Vancouver Food Bank Society.


Lawyer Profile

WARREN MILMAN

TITLE Partner

OFFICE Vancouver



LAW SCHOOL McGill University, LL.B., 1992 B.C.L., 1992

BAR ADMISSIONS British Columbia, 1993 California, 1993

Biography

Warren B. Milman is a partner in our Litigation Group in Vancouver. Mr. Milman’s practice is focused on both civil and criminal litigation, including class action defence. He has considerable experience acting for both the Defence and the Crown in criminal and regulatory prosecutions, and also for various parties in commercial litigation, particularly in the Energy and Financial Services sectors, both through the courts and in mediations and arbitrations.

Mr. Milman was a member of the prosecution team on the Air India case and has acted in civil matters for the B.C. Securities Commission. He has represented government attorneys and others in a malicious prosecution suit. He has defended class action proceedings on behalf of a financial institution (in connection with a dispute over service charges), a supermarket chain (in connection with a dispute over an outbreak of an infectious disease) a hydro-electric utility (in connection with a dispute over flood damage) and a medical equipment manufacturer (in connection with a product liability dispute).

Mr. Milman has appeared on numerous occasions before the British Columbia Court of Appeal, the Supreme Court of British Columbia, the Provincial Court of British Columbia, the Federal Court of Appeal and the Federal Court of Canada.

He has written and published on topics ranging from “screen scraping” to regulatory prosecutions under the Canadian Charter of Rights and Freedoms.

Mr. Milman is a member of the firm’s Pro Bono Committee and is currently President of the board of Pro Bono Law of B.C. He has served as legislative liaison for the Class Action subsection of the Canadian Bar Association and has also served as Chairman of the Board of Har-El Congregation in West Vancouver.

Mr. Milman joined the firm in 1992. He received a B.A. (1985), an LL.B. (1992) and a B.C.L. (1992) from McGill University. Mr. Milman was called to the British Columbia and California Bars in 1993.


Lawyer Profile

ANDREW WILKINSON

TITLE Partner

OFFICE Vancouver



LAW SCHOOL Dalhousie University, LLB, 1987 Oxford University, B.A. (Law), 1982


Biography

Andrew Wilkinson, a physician as well as a practicing lawyer, is a partner in the firm’s Litigation Group in Vancouver. He has extensive experience as a court room lawyer, including acting for plaintiffs and for defendants in numerous negligence and fiduciary duty claims against professionals, in general insurance defence, and at Coroner’s inquests. His current practice includes product liability actions, class actions and commercial disputes. He also has significant experience as a barrister in the B.C. Court of Appeal, and at the Supreme Court of Canada.

Prior to joining the firm in 2006, Dr. Wilkinson was Deputy Minister of the British Columbia Ministry of Economic Development, where he revitalized the policy function of the ministry with responsibility for economic issues, trade, tourism, and business marketing. He was responsible for important initiatives during his tenure including the British Columbia Climate Change Plan, the 2010 Olympic Tourism Strategy, reorganization of the Columbia Basin Trust governance relationship with Columbia Power Corporation, and the British Columbia Ports Strategy, which culminated in a federal investment of $590 million dollars into the Pacific Gateway Project. For this work, he was awarded the Medal of Merit by the Association of Canadian Port Authorities in 2005.

He also served as Deputy Minister for Intergovernmental Relations in the Premier’s Office for two years, during which time he negotiated the unanimous Provincial-Territorial position on Climate Change in 2002, and led the Provincial-Territory negotiation team on the final terms of the $27 billion Health Accord.

Andrew Wilkinson was born in Australia, and raised in Kamloops, Lethbridge and Ottawa. Dr. Wilkinson graduated in medicine from the University of Alberta and was a Rhodes Scholar, taking his first two law degrees at Oxford University. He received his LL.B. from Dalhousie and was called to the British Columbia Bar in 1988.

He has served in the past as President of the B.C. Civil Liberties Association, President of the B.C. Mountaineering Club, and President of the B.C. Liberal Party. He currently serves on the panel of arbitrators for the B.C. – Alberta Trade, investment and Labour Mobility Agreement (TILMA).

Lawyer Profile

ANDREW WILKINSON

Page 2

Lawyer Profile

Andrew Wilkinson has been a frequent presenter for the Continuing Legal Education Society of B.C.

He has served on numerous boards, including the Vancouver Convention Centre Expansion Project, the Canadian Tourism Commission, Tourism B.C., Forest Innovation and Investment, the Michael Smith Foundation for Health Research and the Rhodes Scholarship Selection Committee for B.C. He has also been a director of the Deux Mille Foundation for the Arts, and is currently a member of the Arts Umbrella Cabinet.

Every effort has been made to ensure the accuracy of this publication, but the comments are necessarily of a general nature, are for information purposes only and do not constitute legal advice in any matter whatsoever. Clients are urged to seek specific advice on matters of concern and not rely solely on the text of this publication.

VANCOUVER P.O. Box 10424, Pacific Centre Suite 1300, 777 Dunsmuir Street Vancouver BC V7Y 1K2 Tel: 604-643-7100 Fax: 604-643-7900

CALGARY Suite 3300, 421 - 7th Avenue SW Calgary AB T2P 4K9 Tel: 403-260-3500 Fax: 403-260-3501

TORONTO Box 48, Suite 4700 Toronto Dominion Bank Tower Toronto ON M5K 1E6 Tel: 416-362-1812 Fax: 416-868-0673

OTTAWA The Chambers Suite 1400, 40 Elgin Street Ottawa ON K1P 5K6 Tel: 613-238-2000 Fax: 613-563-9386

MONTRÉAL Suite 2500 1000 De La Gauchetière Street West Montréal, QC H3B 0A2 Tel: 514-397-4100 Fax: 514-875-6246

QUÉBEC Le Complexe St-Amable 1150, rue de Claire-Fontaine, 7e étage Québec QC G1R 5G4 Tel: 418-521-3000 Fax: 418-521-3099

UNITED KINGDOM & EUROPE 5 Old Bailey, 2nd Floor London, England EC4M 7BA Tel: +44(0) 20 7489 5700 Fax: +44 (0) 20 7489 5777

Documents

CCCA / McCarthy Tétrault Litigation Seminar Series ... litigation.pdf · • Business Reasons • Regulatory Requirements • Litigation Risks • Risks of operating without a policy