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Law Student Experience: Legal Profession to become more virtual and remote post COVID-19

July 28, 2020 Legal News

Since March 2020, COVID-19 has impacted legal practice and society in general. Our legal industry has been forced to seek alternative ways to continue their practice on a virtual and remote format. As a summer student with Bennett Gastle, I have had the opportunity to attend several mediations and proceedings. Due to the present circumstances, these events have been conducted using an online format (e.g. Zoom) instead of in-person. As such, the parties to each case have been able to work remotely from their locations.

I was able to observe a mediation between our firm in Toronto and another firm located in Southwestern Ontario. The case was about a long-term disability claim. In pre-pandemic days, one of the parties would have to travel to the other’s area to engage in the mediation. However, in these challenging times, the mediation was scheduled to take place over Zoom, which was convenient as neither party had to incur travel costs. Furthermore, all parties could remain confident that the mediation would take place on schedule and without delays.

Before the mediation took place, I was asked to turn off both my video and audio functions during the mediation, as any movements or sounds on my end could distract or adversely affect the plaintiff on the other side. This is interesting because it meant that unlike a regular, in-person mediation, the plaintiff would be unable to see me during the mediation.

During this mediation, interruptions occurred between both sides; however, this is most likely due to the difficulty in anticipating when others are about to speak during a virtual discussion. It is normal during online meetings for parties to be less able to pick up on non-verbal or body language cues that may indicate when another party is about to speak.

Our firm had a separate break out room and in this separate forum, our lawyer spoke with the client and debriefed both the client and I on what had occurred during the discussion between her and the lawyer on the other side. Although the mediation did not conclude with a resolution being made between the parties, our lawyer was confident that the case would settle before trial.

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Although COVID-19 has forced changes upon our profession and society in general, this experience has enabled me to realize that legal professionals can successfully work remotely and that legal proceedings can be conducted effectively using an online format. Generally, this can save on costs as there would be no need to rent rooms, no travel expenses and significant savings on travel time. Moreover, the ability to have break-out rooms provided the opportunity for parties to maintain confidentiality and conduct a proper mediation.

On the other hand, there were interruptions in this particular mediation due to the online nature of the setting but that is not always the case As well, sometimes a party may not have a strong enough internet connection which can make things a bit more of a challenge but there is usually always a way to work around any issues encountered.

In the end though, the mediation was able to proceed effectively. Although some firms and clients may still choose to attend in person, it is likely that remote and virtual work will continue long after the COVID-19 restrictions lift. Adapting during the challenges of this pandemic has certainly changed the way our industry can effectively work, and it will be interesting to see how the courts also adapt.


Brooke Schneider
Summer Student

To List or Not to List: Disclosure Obligations for Affidavits of Documents

July 09, 2020 Legal News

This is a note about a recent decision from Master Jolley, Lipovetsky v Sun Life Assurance Company of Canada, 2018 ONSC 1649, touching on:

1. the duty to disclose particulars on surveillance before the examination for discovery; and
2. what must be included in an updated affidavit of documents.

Quick Take-Away
If surveillance is disclosed before the defendant’s examination for discovery, you probably only have to disclose enough information to justify a claim for privilege. Further particulars can be obtained at the examination for discovery. But there are cases out there where courts required more particulars to be provided because the surveillance was disclosed after the defendant’s examination for discovery.

A technical read of the Rules might require one to disclose every single relevant document in its possession, including documents the opposing party provides during the litigation process. But the courts are directed to construe the Rules liberally and avoid laborious and expensive tasks that do not serve the spirit of the Rules. Your updated or supplementary affidavit of documents probably does not have to list documents received from the other parties in the litigation during the litigation process.

Surveillance Particulars
A litigant is required to disclose enough particulars of a document in its Schedule B to permit the opposing party to know whether to challenge the claim for privilege. The plaintiff argued a more expansive position. She claimed the Schedule B listing should include (or the defendant must disclose by correspondence) the following:

i. the times when each session of surveillance began and ended;
ii. the names and addresses of the individuals who conducted each round of surveillance;
iii. the times when any recording began and ended;
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v. the names or a general description of the websites that the surveillance investigators visited in connection with their surveillance of the plaintiff;
vi. the names of any organizations or individuals with whom the surveillance investigators communicated in relation to their surveillance of the plaintiff;
vii. the dates on which those communications occurred; and
viii. whether any individuals or organizations provided oral or written statements to the surveillance investigators as part of the investigation.

Master Jolley disagreed. The Court concluded that, as is the usual course, plaintiff’s counsel has the opportunity to ask the defendant about those particulars during the upcoming examination for discovery of the defendant. This motion could have turned out differently if examinations for discovery had already occurred (see for example Cromb v Bouwmeester, 2014 ONSC 5318).

I think the ruling fits nicely with the Court of Appeal’s comment in Iannarella v Corbett, 2015 ONCA 110: “… surveillance evidence can only serve to encourage settlement if it is disclosed in the affidavit of documents and the opposing party has the opportunity to seek particulars at examination for discovery.” Disclosure of surveillance in an affidavit of documents is only one part of the discovery process, not the complete answer.

Updated Affidavits of Documents
A litigant is required to disclose to the other party every document relevant to any matter in issue in an action that is or has been in its possession, control or power. The plaintiff suggested (i.e. argued then resiled from upon questions from the bench) that any updated/supplementary affidavit of documents must also disclose documents that have been exchanged in the litigation. In other words, the plaintiff wanted Sun Life to list in its affidavit of documents the documents provided by the plaintiff in answer to the plaintiff’s undertakings. This is consistent with a technical reading of the Rules, even if it goes beyond preventing “gotcha-styled” litigation.

Master Jolley preferred a different approach. She held that she was required to read the Rules liberally to secure the just, most expeditious and least expensive determination of a proceeding. The plaintiff’s position did not meet those ends.

Written by: Stephen J. Simpson, Lawyer

Pepper v Sanmina-Sci Systems: Some much needed guidance on limitation periods in the LTD claims context

September 28, 2017 Interesting Cases, Legal News

Bennett Gastle is successful at the Court of Appeal. In eight short paragraphs, the Court of Appeal for Ontario in Pepper v Sanmina-SCI Systems sheds light on how the appropriateness factor, under section 5(1)(a)(iv) of the Limitations Act, 2002, applies to long-term disability (“LTD”) claims in Ontario.

First, the Court confirms that Markel Insurance Co. of Canada v ING Insurance Co. of Canada remains the benchmark for assessing when it would be “appropriate” to bring a proceeding.  This means that the appropriate time to commence litigation is when a proceeding is “legally appropriate.”   The Court in Markel purposefully narrows the considerations regarding appropriateness to legal factors.   Tactical, financial or convenience considerations that might otherwise inform a plaintiff’s decision as to when to sue do not delay the start of the limitations clock.  Instead, commencing a proceeding is appropriate once the plaintiff’s claim is fully ripened and can be prosecuted in court.

Yet there are exceptions to the bright-line test identified in Markel.  Namely, a proceeding may not be appropriate where there is an ongoing alternative process that could eliminate the dispute.  A 2017 decision of the Court of Appeal, Presidential MSH Corporation v. Marr Foster & Co. LLP, confirmed that such processes would not delay the start of the limitations clock unless they had reasonably certain or ascertainable end dates.

This brings us to the second area where Pepper adds clarity: an LTD insurer’s appeal process probably does not qualify as an alternative process sufficient to delay the limitations clock if it is not a formal process or statutory in nature.  The appeal process in Pepper was not formal because it was not contractual. There was nothing in the insurance policy that provided a right to appeal or any appeal process (even though the termination letter itself described a sui generis process).

Informal appeal processes are akin to attempts by the parties to resolve the claim; such dealings do not give rise to an estoppel argument. This makes sense. There would be no words or conduct that might constitute a promise or assurance not to rely on the limitation period.  This is also consistent with prior case law pertaining to insurers reviewing new evidence regarding denied claims.

Finally, a curious comment in Pepper helps illuminate how to assess the appropriateness factor. The Court held that the failure on the part of the motion judge to recognize the date on which the limitation period commenced is an error in law.  But prior appellate decisions have held that the question of whether an action is statute-barred is a question of mixed fact and law.  An error in law, on the other hand, typically involves the application of the wrong legal test.  Separating the correct test from irrelevant factors is where Pepper adds additional clarity:

“[6]  The motion judge recognized that the respondent had a “fully ripened” claim as of November 1, 2007 (see para. 71-72 of the Reasons). His further analysis is, in our view, no more than an “evaluative gloss” on the word “appropriate” and introduces the uncertainty Markel cautions against.”

In other words, there are no additional material facts necessary to apprise a plaintiff that commencing a proceeding would be appropriate.  All of the motion judge’s analysis beyond asking when the claim fully ripened is evaluative gloss. It constitutes the application of incorrect principles of law.  In this case, the evaluative gloss included considering:

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  1. The insurer’s history of denying and then restoring benefits;
  2. The insurer’s invitation for further appeals;
  3. The insurer’s ongoing review of new evidence for the denied claim;
  4. The insurer’s failure to advise of its intention to rely on a limitation period;
  5. The claimant’s belief that his claim would be approved on appeal; and
  6. The claimant’s belief that his claim was never the subject of an absolute definitive denial.

This is what makes Pepper a useful precedent.  It helps identify permissible and impermissible factors to assess when the appropriateness element delays the limitations clock.  It helps litigants identify whether an insurer’s appeal process should impact the start of a limitation period.  And it provides a clear jurisprudential framework for courts to evaluate when a plaintiff knew or ought to have known that commencing a proceeding would be an appropriate means to remedy an alleged breach of insurance contract claim.

For more information please contact Stephen Simpson at ssimpson@bennettgastle.com or (416) 361-3319 ext. 253.

Trudeau and Trump met, now what?

February 22, 2017 Company News, Legal News, Trade Law

On Wednesday February 15, 2017, Chuck Gastle appeared on Business News Network to discuss the pending negotiations to “tweak” NAFTA, as In economically-developed regions, its morbidity rate of the urban population is 15.6%, generic levitra vardenafil and that of the rural population is 20%. Sildenafil contained in on line levitra medications such as malegra inhibits the working of cGMP. Erectile dysfunction-an inability to reach cheap professional viagra harder erections- has become commonly known male sexual condition. What are the main reasons behind the man being a victim sildenafil online purchase of it, there are many more reason which leads him to the problem of impotence. indicated by President Trump during Monday’s meeting with Justin Trudeau.

See link below to hear Chuck Gastle’s comments.

http://www.bnn.ca/video/moneytalk-trudeau-and-trump-met-now-what~1058175