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The Advocates'

Of advocates, artists and aspirations

By Michael Barrack, McCarthy Tétrault LLP

E-Brief

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Vol. 18, No. 2, Winter 2007

The Advocates' E-Brief

A publication of The Advocates' Society "The Advocates' E-Brief" is intended to be a forum in which members of The Advocates' Society can communicate with the board of directors and with each other. Submissions on subjects that are of widespread interest to the membership are welcome. Please contact the Editor: Sonia Holiad Director of Marketing & Communications The Advocates' Society 1700 - 480 University Avenue Toronto, ON M5G 1V2 Tel: 416-597-0243 x.112 Fax: 416-597-1588 E-mail: [email protected] Web site: www.advocates.ca For advertising information, please contact Middleton & Associates, 1-800-7109396 or [email protected] Change of address notices may be forwarded to The Advocates' Society at the address above.

"The Advocates' E-Brief" is published periodically in electronic format, distributed to members of The Advocates' Society, and posted to our web site. Opinions expressed within are not necessarily those of the Society, and the publication of advertisements does not imply endorsement. Contents may not be reproduced without written permission.

Recently we were honoured to have Norman Jewison, the award-winning film and television director and producer, present on the topic of "The Artist as an Advocate for Justice." Over the course of an evening in the Royal York's Ballroom, he described his efforts to "move the social yardsticks" through five of his films, The Russians are Coming, the Russians are Coming, In the Heat of the Night, ... and Justice for All, A Soldier's Story and The Hurricane. Mr. Jewison pointed out that during the 40 years over which these films have been made, both artists and lawyers have attempted to address racism, global international conflict and flaws in the justice system. He noted: Filmmakers and advocates share many things in common. We create theatre that touches people's lives, on film and in the courtroom. As the lead character from Fiddler on the Roof, Tevye, might put it, on the one hand, we can each pander to the most base instincts of people; on the other hand, we do have the ability to make a difference -- to behave in a way that gives life to the ideals that should be the foundation of our system of justice.

Michael Barrack

One of the most compelling aspects of the evening was Mr. Jewison's account of his preparation for filming ...and Justice for All. He recalled how he observed a number of American criminal courts and interviewed lawyers and judges to obtain an impression of the workings of these courts. The result was a satirical comedy that dealt with many of the absurd realities that plagued the American legal system of the day. It was a highly controversial film at the time of its release in 1979, and is criticized still for its portrayal of lawyers and the legal system. Mr. Jewison noted: In the course of my research, I also observed there was another struggle taking place in the courtroom. There is a human struggle in the hearts and minds of many gifted and committed advocates. This has to do with their knowledge of truth. When their talents are used in a manner that disquiets their inner beings, they become uneasy. To an outside observer, there is a danger of hypocrisy in the judicial system when the best lawyers are employed to defend the guilty.

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In This Issue

Pro Swing decision . . . . . . . . . . . . .3 New members . . . . . . . . . . . . . . . .4 Jewison gala photos . . . . . . . . . . . .6 Misbranding a client . . . . . . . . . . . .7 Bullock & Sanderson Orders . . . . .9 The latest on e-discovery . . . . . . 11 Bill 14 & no-contracting-out rule . .12 Judicial appointments. . . . . . . . . 14 Member news: Who's doing what .16 When M&As fail. . . . . . . . . . . . . . .17

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As lawyers, we are well aware that the artistic impressions of these issues are sometimes less nuanced than the reality with which we deal. In the final film he reviewed, The Hurricane, Mr. Jewison came to acknowledge that it is the very task of the justice system to not presume guilt. The conflict in the film is between a wrongly-convicted person and the weight of the justice system together with its ingrained prejudices that caused the miscarriage of justice. In this work, Mr. Jewison did not seek to portray justice being achieved by a lawyer rejecting his professional obligations. Instead, through his artist's eyes, he found justice in the courtroom as a result of the diligent efforts of supporters and lawyers to convince a court to move against the previous societal tide. He commented: My journey has come full circle. Despite probing and prodding the legal profession, despite tearing away the mask of hypocrisy in some of the legal institutions, despite lamenting and rising up against the role of racism and economic inequality in the prevention of justice rather than the promotion of justice, despite all of this, as an artist it is in the theatre of a courtroom that I ultimately portray the place where justice is found. As advocates, our challenge is to ensure that the courtroom is a place where justice is found. Many members of The Advocates' Society are involved in projects that promote this end. We are actively pursing reform of the civil justice system by working with the Honourable Coulter Osborne. Others are creating and participating in our pro bono publico programs. Through our Standing Committee on Advocacy and Practice, we involve ourselves in the justice issues that governments confront. Through our Education Committee we attempt to maintain a high level of competence among our members so that their clients receive the highest level of representation. Mr. Jewison is an example of a Canadian who stepped onto the world stage and made a difference. He speaks, through his films, to the highest ideals of the justice system. If life imitates art, then the body of work he reviewed with us is, perhaps, worthy of imitation.

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Pro Swing decision not a hole-in-one

The Advocates' Society 2006 - 2007

EXECUTIVE Michael E. Barrack, President Michael Eizenga, First Vice-president Peter J.E. Cronyn, Second Vice-president Sandra A. Forbes, Treasurer Marie T. Henein, Secretary DIRECTORS Raj Anand, LSM Stephen T. Bale Robert B. Bell Fay K. Brunning Clare E. Burns John E. Callaghan Alan D'Silva Peter A. Daley Hugh M. DesBrisay William D. Dunlop Stephen E. Firestone Peter H. Griffin Barbara L. Grossman Peter G. Hagen James R. Howie David M. Humphrey Jessica A. Kimmel Mark D. Lerner Alan H. Mark William C. McDowell Barbara A. McIsaac, Q.C. Paul F. Monahan Kimberly T. Morris David Morritt Patrick J. Murphy Michael P. O'Hara Michael A. Penny E. Jean Polak Brian J. Saunders Paul B. Schabas Jonathan P. Stainsby Myron W. Shulgan, Q.C. Paul R. Sweeny Nicole J. Tellier Karen A. Thompson Stephen J. Wojciechowski Johanna Braden, Ex Officio EXECUTIVE DIRECTOR Alexandra M. Chyczij DIRECTOR of EDUCATION Jessica Grant DIRECTOR of COMMUNICATIONS and EVENTS Sonia Holiad Pro Swing Inc. v. Elta Golf Inc., [2006] S.C.J. No. 52 is the Supreme Court's first decision concerning the rapidly evolving area of enforcement of foreign non-monetary orders. Prior to 1990, foreign orders were enforceable only where they were both final and for a fixed sum. These rules have been loosened in recent years, as businesses and individuals have continued to transact business in multiple jurisdictions. Many anticipated that the Pro Swing decision would set out a clear test that practitioners could use to advise their clients about the enforcement of non-monetary foreign orders. Unfortunately, the court did not provide a definitive answer to the questions of when and how such orders will be enforced. In Morguard Investments v. DeSavoye, [1990] 3 S.C.R. 1077, the Supreme Court took the first step toward reforming the way that Canadian courts recognize and enforce foreign judgments. That case concerned the enforcement of a default judgment from Alberta against a defendant who was resident in British Columbia. Relying on the principle of judicial comity, the Court held that the judgment could be enforced in B.C. This holding has since been applied to international as well as inter-provincial judgments. Morguard was eventually used to expand the Jane Southren recognition of foreign judgments to include nonmonetary orders, which was the approach taken by Justice Pepall of the Ontario Superior Court in Pro Swing. The same approach was adopted in Cavell Insurance (Re), [2004] O.J. No. 5166 (S.C.J.); aff'd (2005), 80 O.R. (3d) 500 (C.A.) and Grace Canada Inc. (Re.), [2006] O.J. No. 3643. In Pro Swing, the Court was split 4 - 3 (Deschamps, LeBel, Fish and Abella JJ for the majority, McLachlin CJ, Bastarache and Charron JJ in dissent). While the justices appeared to agree on the need to reform the traditional common law rules concerning the recognition and enforcement of non-monetary judgments, their views of how the change should be implemented diverged. The majority laid out the following test for the enforcement of non-monetary judgments: ...the conditions for recognition and enforcement can be expressed generally as follows: the judgment must have been rendered by a court of competent jurisdiction and must be final, and it must be of a nature that the principle of comity requires the domestic court to enforce. The majority, however, did not go on to describe what was meant by the requirement of finality, or provide any specific comments as to how the comity requirement should be considered. The dissent was more precise in its approach. In addition to the requirement that the judgment be final and not offend the principle of judicial comity, the dissent noted that

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By Bryce Rudyk and Jane Southren, Lerners LLP

Bryce Rudyk

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Welcome to our new members

Affiliate John Buordolone, Doherty & Colleagues Solicitors André G. Richard, Q.C., Stewart McKelvey Associate Professor Edward Ratushny, Q.C., University of Ottawa Associate Professor Janet Walker, Osgoode Hall Law School Government Laura Dalloo, Department of Justice Canada Susan Freeborn, Ministry of the Attorney General, Crown Law Office-Civil Carolyn Leach, Ministry of the Attorney General, Office of the Children's Lawyer Anita Lyon, Ministry of the Attorney General Crown Law Office-Civil Michal E. Minkowski, Corporation of the City of Mississauga Intermediate Audrey Ackah, Davis & Company LLP John Adair, Davies Ward Phillips & Vineberg LLP Melanie Adams, Ontario Securities Commission Jessica Amey, McCarthy Tétrault LLP Brent Arnold, Gowling Lafleur Henderson LLP Shelby Austin, Lerners LLP Marnie Baizley, Kuretzky Vassos LLP Gosia Bawolska, McCague, Peacock, Borlack, McInnis & Lloyd LLP Gleb Bazov, McCarthy Tétrault LLP David Bell, Ferguson Barristers Michael I. Binetti, Affleck Greene Orr LLP David E. Blais, Bereskin & Parr Margaret Bojanowska, Henein and Associates Hilary Book, Aird & Berlis Steven Bosnick, Watson Jacobs McCreary

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the foreign order must be clear. It defined finality and clarity as "distinct concepts. The first requires completeness; the second lack of ambiguity." It noted, however, that "in practice they may overlap. An order that is not final is likely to be unclear and vice versa." There are two interesting aspects to this case that call into question whether this decision will be persuasive in future matters. First, the respondent/defendant, Elta Golf, was not represented at the hearing. This meant that the majority engaged in a considerable amount of its own research in crafting its decision. Two issues not argued at the hearing, but raised by the majority in their decision, were letters rogatory and judicial economy. The majority noted that the denial of enforcement in this case was not the end of the road for the plaintiffs, as they could use a letter rogatory. (A letter rogatory allows the domestic court to look behind the foreign order and determine for itself whether the evidence requested is necessary and relevant to the foreign action, as defined by the foreign pleadings.) A letter rogatory, however, is a cumbersome affair. In this case, while it could have been used to obtain the damages information needed for the foreign court, there were provisions in the consent and contempt order, i.e. the injunction, that could not have been obtained with a letter rogatory. Indeed, this would have been perhaps the least economical route possible for the plaintiffs, from both a judicial and a financial perspective, since it would have required two separate proceedings -- one to enforce the letter rogatory and another to enforce the foreign order. The majority's approach to the issue of judicial economy raises more questions than it answers. It noted that courts must take judicial economy into account in enforcing non-monetary orders, but it was unclear as to how this was to be assessed. It raises the question: does the presence of an alternate, more judicially economical route act as a complete bar to the enforcement of the foreign order, or is it simply a factor to be considered in a court's exercise of discretion? A review of the jurisprudence suggests that the issue of judicial economy should be only one factor to be considered by a court in exercising its discretion. In the context of the enforcement of a letter rogatory, judicial economy is merely one factor to be considered; no one factor is determinative. Further, there is a general public policy

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M. Krista Bulmer, Wires Jolley LLP Richard Butler, Fasken Martineau DuMoulin LLP James B. Camp, Gowling Lafleur Henderson LLP Nadia Campion, Lenczner Slaght Royce Smith Griffin LLP Steven Canto, Wardle Daley LLP Allison Haid Caughey, Children's Education Funds Inc. Carrie Clynick, Watson Jacobs McCreary Patti Cross, Office of the Chief Justice Angela Currie, Gluckstein & Associates Brianna Davies, Fraser Milner Casgrain LLP Antonio Di Domenico, Fasken Martineau DuMoulin LLP Alex Dirlis, Tough & Podrebarac LLP Cheryl Dusten, Fasken Martineau DuMoulin LLP Charles Finlay, Torys LLP Iris Fischer, Blake, Cassels & Graydon LLP

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defence that bars enforcement of a foreign judgment where the judgment is repugnant to the Canadian judicial system or arises from the operation of the tax or penal legislation of a foreign jurisdiction. As the majority did not discuss the concept of judicial economy within that framework, it would be reasonable to assume that it is not a complete bar. The second interesting aspect of this case is that three of the four justices that formed the majority have a civil law background. Under the Quebec Civil Code, foreign orders are enforced without regard to whether they are monetary or non-monetary. Combined with the majority's focus on the distinction between equitable orders (which were sought to be enforced in this case) and non-equitable orders, it is possible that the majority felt the distinction between monetary and non-monetary orders to be less important than the distinction between equitable and non-equitable orders. As much as practitioners might wish otherwise, Pro Swing may have a significant impact on the development of the law concerning the enforcement of non-monetary foreign orders. The judgment's greatest weakness is that it does not make clear what the appropriate test is in determining whether a foreign non-monetary order will be enforced. But potentially more problematic is the introduction of the issue of judicial economy into the field of enforcement of foreign orders and judgments. Morguard and its successors made it clear that the principle of comity will not allow Canadian law to be used to protect Canadians who conduct business in foreign jurisdictions and run afoul of laws in those jurisdictions. If Pro Swing is read as requiring judicial economy to be the first issue to be considered, it would undermine -- or at least overshadow -- the principle of comity. If this were to happen, Morguard would essentially be left in tatters, and the courts would shift toward protecting Canadian litigants, even those who voluntarily entered into legal obligations in foreign jurisdictions fully aware of the consequences of doing so.

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Ian W.K. Furlong, Riley McGivney James Galan, Rizzotto Law Firm Carolyn Goldberg- Hackett, Cassels Brock & Blackwell LLP Jonathan Goode, McLauchlin & Associates Trevor Guy, Heenan Blaikie LLP Sana Halwani, Gilbert's LLP Emily Head, Torys LLP Jennifer Herzog, Blaney McMurtry LLP Naomi S. Horrox, Fraser Milner Casgrain LLP Samaneh Hosseini, Stikeman Elliott LLP Rebecca Yunfeng Huang, McMillan Binch Mendelsohn LLP Alexandra Humphrey, McCarthy Tétrault LLP G.L. Sonny Ingram, Affleck Greene Orr LLP Nadia Jandali, Fasken Martineau DuMoulin LLP Alison Keagan, McLeish Orlando LLP Cherolyn Knapp, Mann & Partners, LLP Jean-François Laberge, Nelligan O'Brien Payne LLP Emily Lawrence, Paliare Roland Rosenberg Rothstein LLP Jessica Leinwand, Osler, Hoskin & Harcourt LLP David Lobl, Goodman and Carr LLP Lucas Lung, McCarthy Tétrault LLP Erin MacKenzie, McCague, Peacock, Borlack, McInnis & Lloyd LLP Jill Makepeace, Henein and Associates Maria Marafioti, Ministry of Health Elder C. Marques, McCarthy Tétrault LLP Janet Mason, Theall Group LLP Taryn McCormick, Cassels Brock & Blackwell LLP Sean McFarling, Watson Jacobs McCreary Robin McKechney, Barrister & Solicitor Sharon E. McKeown, Fife Radocchia LLP Andrew McLachlin, Bennett Jones LLP John Navarrete, Greenspan, White Yue (Elaine) Navarrete, Malach & Fidler Cameron D. Neil, Feltmate Delibato Heagle LLP Susan E. Nickle, Lerners LLP David L. Noseworthy, Blake, Cassels & Graydon LLP

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Norman Jewison: The stuff of legends

Pictured at "The Artist as an Advocate for Justice," the Society's fund raiser for the Sir Wm. Campbell Foundation, are, left to right, Timothy Bates of Borden Ladner Gervais LLP and Jane Bates; Anne Hull; The Honourable Roy McMurtry, Chief Justice of Ontario; Rodney Hull, Q.C. of Hull & Hull LLP; Michael Barrack of McCarthy Tétrault LLP; guests of honour Lynn St. David and Norman Jewison; Michael Eizenga of Siskind, Cromarty, Ivey & Dowler LLP, and Penny Eizenga.

Leon Palvetzian, Barrister & Solicitor.

Top right, from left to right: Dr. Geoff Houlton; Norman Jewison; Michael Barrack, and Philippa Samworth of Dutton Brock LLP, flashing a copy of the Jewison autobiography, This Terrible Business Has Been Good to Me. Bottom, left to right: Diane Walker; Martha Pilkington and Michael Barrack; Norman Jewison; Alison Landy and David Morritt of Osler, Hoskin & Harcourt LLP, and Robert Bell of Borden Ladner Gervais LLP.

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Misbranding a client could cost you your case

By Michael Crystal, Crystal Criminal Law Office Years ago, I represented a government employee charged with a breach of trust. Were he to be convicted, the consequences to his personal and professional life would have been devastating. Ultimately, we were able to persuade the prosecutor to withdraw the charge and my client's nightmare was at an end. Though we parted company on the best of terms, our farewell stood in stark contrast to the stormy beginnings of our solicitor-client relationship.

Michael Crystal

Our first few meetings were emotional rollercoaster rides often producing very few results; understandably, the client was devastated that his employer could believe the allegations of disloyalty. Hostility soon gave way to anger and, ultimately, despair, as he contemplated his bleak future and the overwhelming costs of litigation. Working together was an arduous task on the best of days. As for my part, I found that I had mentally branded this client a "difficult client." My initial response was to avoid direct contact and, where possible, to pass him off to a member of the support staff. I did not see it at the time, but my conduct only made the direct interactions we did have all the more intense and less productive. I had fallen prey to the trap of wanting to practise law without having a client. While this sentiment may be understandable, the position is unacceptable. My problem was that I had wrongly convinced myself that the client was keeping me from doing "my work" for him; that his personality was this thousand-pound elephant I had to tip toe around. The truth was, I wanted "the case" without the client; I did not want to wade into the messy world of his pain and despair. What I failed to realize was that by excluding the client I was building an unnecessary wall between us and depriving myself of a critical resource. At some point during our relationship the clouds lifted and I was able to form a positive bond with him such that we were able to work together harmoniously. This synergy served us well as were able to package our views regarding the weaknesses of the prosecution's case in a persuasive and effective manner, which led to a successful outcome. Looking back on the case, the first thought that comes to mind is the amount of energy I wasted trying to avoid dealing with my client's pain. Had I just been aware of some basic strategies to address his issues I could have been much more effective as an advocate. My "duck and run" routine compromised my effectiveness and might very well have cost me my client or worse. Here I am reminded of a subsequent case I inherited wherein the client had fired his previous counsel mid-trial and I was forced to complete the matter. The charge was sexual assault and the first lawyer on the case had distanced himself from this "difficult client" largely on account of the client's L'il Abner appearance, his inability to communicate, and his lack of education. The client was illiterate and at first blush Supreme Court of Canada Counsel might be misjudged as a simpleton. The and Agency Services truth, however, proved the exact opposite. Client isolation in this case could Now in its 24th year have had devastating consequences as Available by e-mail the client, due to a lack of trust, failed to Same day service share important information relating to the scene (a motor vehicle with a unique The Gowling Lafleur Henderson LLP Supreme Court of Canada Service defect) of the alleged offence. Such includes a periodic summary, an Annual Report on all applications for leave to appeal, and related services. information might have appeared innocuous to the client, but any lawyer Supreme Court of Canada Group: would have known that it could bear Brian A. Crane, Q.C. Graham Ragan directly on the credibility of the comHenry S. Brown, Q.C. Eduard J.Van Bemmel, plainant. Luckily, I was able to establish Martin W. Mason Legal Assistant a relationship of trust and adduce this The Power of Original Thought evidence, which directly led to my client's acquittal. As we would not have been successful without this informa2600 ­ 160 Elgin Street Ottawa, ON K1P 1C3 Tel: (613) 233-1781 tion, I cannot help but think of the dire Montréal Ottawa Toronto Hamilton Waterloo Region Calgary Vancouver Moscow consequences that flow from branding a gowlings.com client as difficult.

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Scott Oldewening, McMillan Binch Mendelsohn LLP Kate Owen-King, Purser Dooley Cockburn & Smith LLP Matthew Owen-King, Rueter Scargall Bennett LLP Marie Isabelle Palacios- Hardy, Stikeman Elliott LLP Pamela D. Pengelley, Cozen O'Connor Professional Corporation Rebecca L. Pepper, Nesbitt, Coulter Andrey Pinsky, Pinsky Law Brendon Pooran, McCarthy Tétrault LLP Owen M. Rees, Stockwoods LLP Derek Ricci, Davies Ward Phillips & Vineberg LLP Amy Salyzyn, Lax O'Sullivan Scott LLP Andrea Sanche, Teplitsky, Colson Barristers Daniel Schwartz, Lax O'Sullivan Scott LLP Trevor L. Shaw, Lerners LLP Gregory P. Sheahan, Ogilvy Renault LLP Usman Sheikh, Lenczner Slaght Royce Smith Griffin LLP Stephany Simons-Mandin, Rueter Scargall Bennett LLP Michael Sims, Lax O'Sullivan Scott LLP Carlie Smith, Dutton Brock LLP Danielle Smith, Stikeman Elliott LLP Martin Smith, McCague, Peacock, Borlack, McInnis & Lloyd LLP Jon Smithen, Heenan Blaikie LLP John Sorensen, Lerners LLP Joshua W. Spicer, Bereskin & Parr Cynthia Spry, Davies Ward Phillips & Vineberg LLP Deborah Templer, Gowling Lafleur Henderson LLP Ryan D. Teschner, Heenan Blaikie LLP Dilani Y. Thurairajah, Blake, Cassels & Graydon LLP Erica Toews, Adair Morse LLP Christopher G. Tortorice, Bereskin & Parr Sivan Tumarkin, McCague, Peacock, Borlack, McInnis & Lloyd LLP Luciana Tummillo, Daniel & Partners LLP Raivo Uukkivi, Bigelow, Hendy LLP Anita Verma, Lofranco Romeo Pitaro Chagpar Shields, Barristers B. Joseph Villeneuve, Zuber and Company

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Master MacLeod reassigned to Ottawa

I am directed by the Chief Justice to publicly announce that the Attorney General has approved her proposal to reassign Master Calum MacLeod, the Administrative Case Management Master in Toronto, to Ottawa. He will be taking up his duties here on February 1, 2007. The Attorney General believes that this will be of great assistance in meeting the needs of Ottawa as quickly as possible under the existing authority of the rules while the Family Rules Committee continues to finalize a rule with respect to the appropriate powers for the family case manager.

Master Calum MacLeod

It is anticipated that the two Ottawa Masters will share duties in both the Family and the Civil Case Management areas. C.V. highlights: Master MacLeod practised law in Toronto and Barrie for 15 years after his call to the bar in 1983. As a lawyer his practice concentrated primarily on civil and family litigation, commercial law and dispute resolution. From 1995 to 1998, he focused more on dispute resolution. As a mediator, he resolved hundreds of disputes, including those in business and family law, and personal injury litigation. He implemented family mediation into his practice in Barrie and also provided mediation training for almost all family lawyers in Simcoe County. He was the Supervising Mediator at the Mediation Center in Barrie. From time to time he also represented children. He was appointed Master in November 1998. Since his appointment, he has been involved in the implementation of Mandatory Mediation. Master MacLeod brings with him a set of skills that will assist us in meeting the challenges we face. I know the bar will join me in extending him a warm welcome. The Honourable Monique Métivier Regional Senior Justice, East Region Superior Court of Justice

The Advocates' Society Mission Statement

The Advocates' Society is the professional organization for advocates in Ontario. As such, our mission is to: · be the voice of advocates in Ontario; · promote ethical and professional practice standards for advocates; · expand our leadership role in teaching the skills of advocacy; · protect the independence of the bar and the judiciary, and · foster collegiality among members

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LITIGATION TIPS & TRAPS: "Southren" style

By Jane Southren, Lerners LLP Costs, costs, costs. The bane of every litigator's existence, and in more ways than one; however, there are some tricky little strategies that you can turn to in some circumstances to reduce or eliminate the costs exposure being faced by your plaintiff clients. Patricia Corneil, a lawyer with Lerners LLP in London, recently came upon this issue in her insurance defence and commercial litigation practice and has agreed to share with us the proceeds of the time she spent learning all about them. A MATTER OF COSTS: BULLOCK AND SANDERSON ORDERS By Patricia Corneil, Lerners LLP Often a plaintiff must commence its action against several defendants, but then is ultimately only successful against one defendant. The plaintiff's victory in such proceedings is short-lived if the costs of the successful defendants must then be met. In Patricia Corneil these situations, prudent counsel will not overlook the possibility of requesting one of two forms of orders that reduce or even eliminate the plaintiff's liability for costs. The court can exercise its discretion through the issuance of either a Bullock Order or a Sanderson Order. Bullock Orders arise from Bullock v. London General Omnibus Co., [1907] 1 KB 264, a case in which the plaintiff claimed damages for injuries resulting from a collision between two vehicles. The judge found negligence on the part of one defendant and negatived negligence on the part of the other defendant. The court costs payable by the plaintiff to the successful defendant were ordered to be included in the costs recoverable by the plaintiff from the unsuccessful defendant. Sanderson Orders originated in the slightly older case of Sanderson v. Blyth Theatre Co., [1903] 2 KB 533. In this case, the court ordered that a more direct form of payment take place: the unsuccessful defendant was ordered to pay the costs of the successful defendant directly to the successful defendant. Since the Bullock and Sanderson cases, the Supreme Court of Canada has approved these types of orders, and numerous examples of such orders can be found throughout Canada's provincial case law. The threshold test that the plaintiff must meet for the issuance of a Bullock or a Sanderson Order is whether it was reasonable to join the defendants and keep them in the action until judgment. If the action was properly brought, and the plaintiff had legitimate doubt as to which of two or more persons was responsible for the act that caused the injury, then the plaintiff may escape paying the successful defendant's costs. The choice between a Bullock and a Sanderson Order is determined by the ability of either the plaintiff or the unsuccessful defendant to indemnify the successful defendant. The ability of the unsuccessful defendant to pay is an equitable consideration for the Court, and a Sanderson Order will not be made if there is a real risk that the successful defendant will not recover costs against the unsuccessful defendant because of the latter's impecuniosity. The element of fairness also comes into play. Courts will consider whether it is fair, in all the circumstances, to visit the costs of a successful defendant, directly or indirectly, upon the unsuccessful defendant. In deciding whether or not it was reasonable for the plaintiff to join the successful defendant in the action, the Ontario Court of Appeal held in Rooney (Litigation Guardian of) v. Graham (2001), 198 DLR (4th) 1 that a court will consider the nature, scope and interrelationship of the issues. Where the facts are interwoven, the allocation of responsibility between the defendants usually will be more uncertain. It is important to keep in mind that where the unsuccessful defendant cross-claims against the successful defendant, this "binds the two potential causes of action even more closely together," and is a factor that favours the granting of a Bullock or a Sanderson Order. Authority for this proposition can be found in two Ontario decisions: AKW Insurance Brokers v. Guarantee Co. of North America, [1992] O.J. No. 2043, and Posca v. Sotto [1997] O.J. No. 5039. Notably, the cost award in Posca was upheld on appeal by the Court of Appeal for Ontario. Courts in Ontario used to justify a Bullock or a Sanderson Order where the claims against the defendants overlapped, and where the same series of events was relevant to consider the liability of the successful defendant and the liability of the unsuccessful

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defendant. It was said to be inappropriate to award a Bullock or a Sanderson Order when independent causes of actions were alleged against each defendant (for example, when one was based in contract and the other in tort). However, the Court of Appeal for Ontario in Rooney adopted a more pragmatic approach, and held that there was no blanket rule that a Bullock or a Sanderson Order could not be made when independent causes of action are alleged against each defendant, or even when separate actions have been instituted. The Court emphasized that each case should be assessed on its own facts, and that each case should be considered in context. Furthermore, where the duty owed by each defendant to the plaintiff is based on different relationships, and where the roles of the defendants differ factually from one another, a Bullock or a Sanderson may still be appropriate. This principle is illustrated in Hock v. Hospital for Sick Children, [1998] O.J. No. 1857 (Ont. C.A.), where the Court of Appeal found that although the role of the intensive care unit defendants differed from that of the cardiologist, the claim against all defendants was based on the contention that the individual defendants, or some of them, were negligent. A Bullock Order was granted in the circumstances.

The estates list e-booking project

By Stephen Bale, Stephen Bale Law Office A Toronto Estates List Bench and Bar Committee, chaired by Justice Bonnie Croll, has recently been constituted. The Advocates' Society is represented on the committee by Barbara Grossman of Fraser Milner Casgrain LLP. One of the items on the committee's agenda is an e-booking pilot project that will begin with the Estates List and then be extended to the Commercial List. E-booking would allow counsel to check for and book dates on-line. Electronic verification of the booked date would be provided at the time of booking and final confirmation of the date would be provided once fees were paid and documents filed with the court office. Please also be aware that the bar is encouraged to communicate with the Estates List staff by e-mail to [email protected] Comments or suggestions relating to the e-booking project or any other matters relating to the Estates List may be forwarded to [email protected]

It is also possible to request a Bullock or a Sanderson Order on an interlocutory proceeding. In Chippewas of Sarnia Band v. Canada (Attorney General), although the Court of Appeal for Ontario set aside some portions of the Ontario Superior Court's judgment that favoured the plaintiffs, and therefore held that the costs order "fell away," the Ontario Superior Court's decision is still worthy of consideration and provides some guidance as to when a Bullock or a Sanderson Order will be awarded on an interlocutory motion. It appears that the test is not whether it was reasonable for the plaintiff to respond to the opposing motion as it did, but rather whether it was reasonable to join the successful defendant as a party defendant in the first place; moreover, it is proper to consider whether the motion would have been brought in any event. Counsel must be mindful from the outset of a file that the strategy adopted can ultimately have consequences on the payment of court costs. The prudent litigator should request a Bullock or a Sanderson Order with regard to a co-defendant where he is sued because of the position adopted by their co-defendant.

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VOLUME 18, NO. 2, WINTER 2007

TECHNO-TALK: The latest on e-discovery

By Jan Weir, Barrister The new amendments to the US Federal Court rules regarding e-discovery came into effect December 1, 2006. These rules deal with a number of issues that require changes due to the unique features of electronic evidence (http://www.uscourts.gov/rules ). The Campbell Task Force on the Discovery Process in Ontario produced guidelines for e-discovery in November 2005. CLE programs are planned for this spring. A group called Sedona Canada will have suggested guidelines shortly. Sedona refers to the Sedona Conference (held in Sedona, Arizona), a non-profit think tank founded by U.S. attorney Richard Braman to bring together interested practitioners, academics, judges and software developers to discuss e-discovery issues (www.thesedonaconference.org).

Jan Weir

Additionally, the Judges Technology Advisory Committee of the Canadian Judicial Counsel has established a project to develop national Canadian standards respecting evidence in electronic format. The first draft has been posted on a website at http://150.101.156.34/pdcanada. Comments are invited. A review of the salient U.S. Federal Court Rule Amendments may be of assistance in identifying some of the main issues in ediscovery and the solutions selected by the U.S. Federal Court. E-discovery rules recognize that most documents are produced on computers and the paper documents are copies. The "original" is stored in digital form on a computer with copies on any number of electronic storage media from back-up tapes to employee BlackBerries. These electronic versions are more easily copied, altered and destroyed than paper documents. The Federal Court rules incorporate a fundamental change in the approach to the discovery of electronic documents to account for these qualities. The focus has moved from primarily directing parties to produce whatever documents they have in their possession to, in effect, requiring parties to have specific policies in place to store and preserve documents. Parties must know where documents are located and produce a plan for retrieving the data in an unaltered state. A business may now have a duty to suspend the ordinary procedures through which its computer systems handle, recycle, and dispose of electronic data. Routine business may change or delete relevant electronic documents. According to U.S. case law, that duty may arise when a business reasonably anticipates facing litigation in the near future. Litigation counsel will have to advise parties of this obligation. The fundamental requirement of production has been expanded to include "electronically stored information." A paper document is static, but some electronic items are dynamic and change content, such as a database; hence the need for a new category. Rule 34 permits a party to specify the form in which it wants some or all of the data to be produced. Most document management programs convert all documents to a graphic format such as tiff or pdf and hence features such as "track changes" and other meta data may be "scrubbed." It may not be necessary to demand all documents be produced in the format in which they were created; however, in some cases, such as product liability actions, requesting the original format, called "native format" by the geeks, may be preferable. Recall that in the Vioxx case the "track changes" feature

(Continued on page 12)

E-discovery workshops in Ottawa & Toronto

The Judges Technology Advisory Committee, a committee of the Canadian Judicial Council, is engaged in the preparation of a national standard for the exchange in electronic form of pleadings and discoverable documents and for the presentation of electronic documents at trial. It is intended that the national standard will be incorporated into practice directions of the various provincial superior courts. The current draft of the proposed Ontario practice direction can be found at http://150.101.156.34/pdcanada/index_files/frame.htm#slide0001.htm.

Workshops:

Workshops at which the standards will be explained and feedback solicited have been scheduled in Ottawa on January 10, 2007 at the Courthouse, 161 Elgin St., and in Toronto on January 11, 2007 at Campbell House, and on January 12, 2007 at the offices of McCarthy Tétrault LLP. All workshops are scheduled to commence at 2 p.m. If you are interested in attending, please RSVP to: [email protected]

VOLUME 18, NO. 2, WINTER 2007

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(Continued from page 11)

revealed that harmful data had been deleted from a study by Vioxx staff. This data was not available in the graphic format in which the documents were originally produced. A LexisNexis survey revealed that only 8 percent of U.S. attorneys required native format for word processing documents (www.lexisnexis.com). Normally the producing party is responsible for its own document production costs, but with the soaring increase in the number of electronic productions, there is a specific provision to allow the producing party to object or seek cost-shifting remedies. In the famous U.S. Zubulake case, a female employee sued her employer for gender discrimination and required production of all employer e-mails from back-up tapes over a certain period, which would cost $175,000. She was ordered to pay 25 percent of the costs. The huge quantity of material makes inadvertent production of privileged documents more likely. Rule 26 permits parties to make their own arrangements, which can be incorporated into a court order, for a claw-back if privileged material is mistakenly produced. This innovation means that the producing party may assert the privilege on timely notice and obtain return of material without waiver of privilege; however, absent agreement between the parties, it appears the Court has no power to provide this protection. In the recent decision of Nordheimer J in Air Canada v. West Jet (2006), 81 O.R. (3d) 48, he refused to give Air Canada a protective order for future inadvertently disclosed privileged material on even a 40 percent manual review. Litigation is now prohibitively expensive for many small and medium-sized businesses. It is the document production and discovery stage that has been identified as the part of the process that most contributes to the expense. Will ediscovery rules create an exponential increase in these costs? The Advocates' Society Task Force on Technology and Law The Society's Standing Committee on Advocacy and Practice has struck a task force to respond to the many emerging technology issues such as those noted above. If you would like to play a role in forming the Society's position regarding the new rule changes on e-discovery and other issues, please indicate your interest in an e-mail to [email protected] There is a good source for information on all e-discovery issues on The Advocates' Society web site at www.advocates.ca/E-Discovery/discovery.html.

We welcome your articles, announcements & letters. Please forward them to:

[email protected] Fax: 416-597-1588 1700 - 480 University Avenue, Toronto, ON M5G 1V2.

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VOLUME 18, NO. 2, WINTER 2007

Bill 14 and its impact on the no-contracting-out rule

By Barbara Grossman and Meghan Thomas, Fraser Milner Casgrain LLP Bill 14, the Access to Justice Act, 2006 (Ontario) received Royal Assent on October 19, 2006 and is now in effect. Among other things, Bill 14 makes important changes to the no-contracting-out rule in the Limitations Act, 2002 (Ontario) (the Act). Section 22 of that statute -- which had provided that since January 1, 2004, it was not possible to contract out of or modify limitation periods governed by Ontario law -- has been replaced by a provision that, in essence, allows for the following relatively liberal although still limited modifications to such periods: - Any parties, whether consumers or business persons or entities, may suspend or extend the running of a limitation period to allow for resolution of a dispute, before or after a cause of action has arisen; however, only if the cause of action has already been discovered may the parties suspend or extend the running of the usual "ultimate" limitation period of 15 years.

Barbara Grossman

- Agreements involving one or more consumers may generally modify limitation periods only to provide for a period longer (not shorter) than the basic limitation period (which is, in many cases, two years following discoverability) but not exceeding the usual 15-year ultimate limitation period. The running of the ultimate limitation period cannot be suspended or extended until the relevant cause of action has been discovered. - Commercial parties may generally, by agreement, exclude the application of the basic limitation periods in the Act or may provide for a period longer or shorter than the basic two-year period but not exceeding the usual 15-year ultimate limitation period. The running of the ultimate limitation period cannot be suspended or extended until the relevant cause of action has been discovered and it appears to be impermissible to exclude the ultimate limitation period by contract (although it can be shortened). What follows is a summary of how the amended Act affects the variation of limitation periods by contract (including tolling agreements). The chart and notes that follow are largely based on a chart developed by Wayne D. Gray of McMillan Binch Mendelsohn LLP.1 Section 22 of the Act should be consulted for further detail.

Notes:

Limitation Period

Basic 2-year limitation period (ss. 4-5 of the Act)

Business Agreements

Can extend or suspend (eg. by way of a tolling agreement) or shorten or exclude

Consumer Agreements

Can extend or suspend (eg. by way of a tolling agreement) Cannot shorten Cannot exclude 1. No statutory restrictions on contractingout of limitation periods apply to agreements entered into before January 1, 2004. 2. The Act prohibits contracting out of any limitation period for any agreement entered into after December 31, 2003 but before October 19, 2006. 3. A "consumer agreement" is every agreement other than a "business agreement." 4. A "business agreement" is an agreement made by parties none of whom is a "consumer" as defined in the Consumer Protection Act, 2002. 5. The basic two-year limitation period runs from the day the claim is discovered (or was discoverable). 6. The ultimate 15-year limitation period runs from the day the act or omission on which the claim is based took place. 7. Tolling agreements (after the relevant claim has been discovered) are now permitted in all circumstances (business and consumer agreements) and for all limitation periods (basic and ultimate) regardless of whether the parties agree to have an independent third party (mediator or arbitrator) assist in resolving the claim.

Ultimate 15-year limitation period (s. 15 of the Act)

Can extend or suspend only if relevant claim has been discovered (i.e. tolling agreements only) Can shorten regardless of whether relevant claim has been discovered Cannot exclude

Can extend or suspend only if relevant claim has been discovered (i.e. tolling agreements only) Cannot shorten Cannot exclude

Footnote: 1. This chart formed part of a bulletin published in October 2006 entitled "Varying Limitation Periods by Contract made after October 18, 2006" and which is available at http://www.mcmbm.com/Upload/Publication/Bill_14_AmendmentsToLimitationsAct_ 1006.pdf.

VOLUME 18, NO. 2, WINTER 2007

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Appointments to the bench

The Honourable Justice C. Stephen Glithero of the Superior Court of Justice has been elevated to Regional Senior Justice, Central South Region. He replaces the Honourable Justice James Kent, who has elected to become a supernumerary judge. The Honourable Justice Gerald J. Rip of the Tax Court of Canada has been appointed the Associate Chief Justice of that Court. Harrison S. Arrell of Sullivan Festeryga Lawlor & Arrell in Hamilton, has been appointed a judge of the Superior Court of Justice. He replaces the Honourable Justice Jane Milanetti of Brantford, who is to be transferred to Hamilton to replace the Honourable Justice William Festeryga, who has elected to become a supernumerary judge. Gregory A. Campbell, a sole practitioner in Windsor, has been appointed a judge of the Ontario Court of Justice, assigned to Windsor. Barbara A. Conway of Fraser Milner Casgrain LLP in Toronto has been appointed a judge of the Superior Court of Justice. She replaces the Honourable Justice Susan Greer who has elected to become a supernumerary judge. Elaine I. Deluzio, an assistant Crown attorney in Hastings County, has been appointed a judge of the Ontario Court of Justice, assigned to Belleville. Stephen J. Fuerth of Benoit, Van Raay in Chatham-Kent has been appointed a judge of the Ontario Court of Justice, assigned to Chatham. Robbie D. Gordon, a sole practitioner in Haileybury, has been appointed a judge of the Superior Court of Justice. He replaces the Honourable Justice

Ian Gordon, who has elected to become a supernumerary judge. Douglas K. Gray of Hicks Morley Hamilton Stewart Storie LLP in Toronto has been appointed a judge of the Superior Court of Justice. He replaces the Honourable Justice Chris Speyer, who has elected to become a supernumerary judge. Gaston Jorré, Senior Deputy Commissioner of Competition with the Competition Bureau in Ottawa/Gatineau, has been appointed a judge of the Tax Court of Canada. Wendy B. Malcolm of O'Flynn Weese Tausendfreund LLP in Belleville has been appointed a judge of the Ontario Court of Justice, assigned to Belleville. Malcolm G. McLeod of McLeod, Baxter, Tremblay-Hall in Sault Ste. Marie has been appointed a judge of the Ontario Court of Justice, assigned to Sudbury.

(Continued on page 15)

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VOLUME 18, NO. 2, WINTER 2007

(Continued from page 14)

Gisele M. Miller, Assistant Crown Attorney with the Ontario Crown Attorney's Office in Barrie, has been appointed a judge of the Superior Court of Justice. She replaces the Honourable Justice Thomas Dunn who has elected to become a supernumerary judge. Francis J.C. Newbould, Q.C. of Borden Ladner Gervais LLP in Toronto has been appointed a judge of the Superior Court of Justice. He replaces the Honourable Justice John O'Driscoll who has retired. Laurence A. Pattillo of Torys LLP in Toronto has been appointed a judge of the Superior Court of Justice. He replaces the Honourable Justice Donald Cameron who has elected to become a supernumerary judge. Alex Pazaratz, a sole practitioner in Hamilton, has been appointed a judge of the Family Court branch of the Superior Court of Justice. He replaces the Honourable Justice George Czutrin, who was transferred to Toronto to replace the Honourable Justice Peter Jarvis, who has elected to become a supernumerary judge. Renee M. Pomerance of the Crown Law Office - Criminal Division of the Ministry of the Attorney General in Toronto has been appointed a judge of the Superior Court of Justice. She replaces the Honourable Justice Robert Abbey who has elected to become a supernumerary judge. Michelle J. Rocheleau of Legal Aid Ontario in Timmins has been appointed a judge of the Ontario Court of Justice, assigned to Haileybury. Alexander Sosna of Sosna & Burch in Oshawa has been appointed a judge of the Superior Court of Justice. He replaces the Honourable Justice Sandra Chapnik who has elected to become a supernumerary judge. Katherine M. van Rensburg of Gowling Lafleur Henderson LLP in Toronto has been appointed a judge of the Superior Court of Justice. She replaces the Honourable Justice Casimir Herold, who has elected to become a supernumerary judge.

HATS OFF TO YOUR SUPPORT!

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VOLUME 18, NO. 2, WINTER 2007

15

Stephanie A. Wakefield, Fenton, Smith Waikwa Wanydike, Barrister & Solicitor Laura A. Ward, Aylesworth LLP Cheryl Wiles-Pooran, Stikeman Elliott LLP Ryan Wozniak, Zuber and Company Howard Wright, Sun & Partner Professional Corporation Brian M. Yung, Bennett Best Burn LLP Judicial The Honourable Justice Michael G. Quigley, Superior Court of Justice Quasi-judicial Andrew Diamond, Superior Court of Justice Regular - Outside of Toronto Peter Archambault, Weaver, Simmons Christopher Beckett, Ledroit Beckett Talaal F. Bond, Brown, Beattie, O'Donovan Bruce Cook, Hughes, Amys LLP Michael H. Gordner, Miller, Canfield, Paddock and Stone LLP Jennifer Malchuk, Hughes, Amys LLP K. Scott McLean, Fraser Milner Casgrain LLP John H. McNair, McKenzie Lake Lawyers LLP Joseph Y. Obagi, Cooligan, Ryan Camille E. Riggs, Szemenyei Kirwin MacKenzie LLP Laurie Tucker, Doucet McBride LLP J. Thomas Wiley, Barrister & Solicitor Regular - Toronto Ian R. Dick, Hicks Morley Hamilton Stewart Storie LLP Joseph Grossman, Rachlin & Wolfson David P. Jacobs, Watson Jacobs McCreary Shelley Johnson, McCague, Peacock, Borlack, McInnis & Lloyd LLP Ted R. Laan, Barrister Sloane Litchen, McCague, Peacock, Borlack, McInnis & Lloyd LLP Ronni London, Barrister & Solicitor Erik Penz, Macleod Dixon James Schacter, Zuber and Company J. David Watson, Watson Jacobs McCreary Laura C. Young, Doane Phillips Young LLP

MEMBER NEWS: Who's doing what

Martin Teplitsky, LSM, Q.C. of Teplitsky Colson received the Law Foundation of Ontario Guthrie Award in November 2006. The Award recognizes those who perform outstanding public service, make significant contributions to access to justice, and symbolize excellence in the legal profession. McCarthy Tétrault LLP received the Canadian National Pro Bono Law Firm Award at the recent National Pro Bono Conference, for outstanding contribution towards the establishment of policies and programs that encourage lawyers to volunteer to represent low-income individuals. The Honourable Justice Ted Ormston recently assumed the chair of the Consent and Capacity Board. Paul A. Ivanoff of Osler, Hoskin & Harcourt LLP has been certified by the Law Society of Upper Canada as a Specialist in Construction Law. John L. Stout of Cavalluzzo Hayes Shilton McIntyre & Cornish LLP has been certified by the Law Society of Upper Canada as a Specialist in Labour Law. Kimberley A. Whaley of Whaley Hollaman LLP has been certified by the Law Society of Upper Canada as a Specialist in Estates and Trusts Law.

Janice B. Payne of Nelligan O'Brien Payne LLP will be celebrated at the 2007 Ottawa Advocate Honoree Dinner on March 28 at the National Arts Centre.

For information & tickets, please see our calendar of events at www.advocates.ca/events/calendar.html.

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VOLUME 18, NO. 2, WINTER 2007

What litigators should know when M&As fail

By Ajay Chadha, CA, MBA, Partner, PricewaterhouseCoopers LLP Mergers and acquisitions (M&As) rarely fail due to flawed strategy, but more often because their strategy is not executed in a timely and controlled fashion. When this happens and litigators become involved, they should know why the transaction didn't turn out as planned and what to look for in the aftermath. Historically, the success rate for M&As is poor, with 60 to 80 percent of deals being considered a failure. This is often due to a lack of monitoring and risk management at all stages of the process. A formal and holistic M&A process helps reduce the risk of making poor or uninformed decisions, improves transparency and shows that all parties are completing their responsibilities appropriately. Litigators should know that execution with focus is the key to successful M&As. Companies need to plan for transition, integration and the optimization of operations after the deal is closed. Great ideas are just great ideas until they are executed -- and executed correctly. Requirements for success There are two key requirements for M&A success: having a clear purpose of why the deal is being done and maintaining a controlled process for capturing the value. This means the transaction must support a broader, long-term strategy and be managed diligently. Although these requirements may be obvious, applying them is not.

Ajay Chadha

There are four additional requirements that support a merger or acquisition's success: - Paying the correct price: Companies need to define the value of the target and maintain their analytical discipline during the deal. - Having a comprehensive plan: Value will be lost without a detailed plan. - Integrating operations at a compelling pace: Faster is always better. - Working with committed people: Stakeholders must understand and buy into the transaction's benefits. Speed is critical Speed is critical in M&A planning and execution because delays cost potential savings in synergies. If the company expects to achieve $100 million of annual synergies from the deal, every month of delay costs more than $8 million. Every day of delay costs, and this hurts the new company's bottom line as well as shareholder value. Speed with focus, rigour and discipline is essential throughout the transition planning and implementation process. Almost 80 percent of companies surveyed by PricewaterhouseCoopers said they should have managed the transition faster. Speed is associated with fewer post-deal difficulties and transition speed drives economic performance. Other important M&A considerations include: - Communication: A robust communication plan is critical to successful integration. It can help stabilize the organization, build support from stakeholder groups and engage all business departments during the transaction. - Resources: Companies should never underestimate the demand on resources after the deal is closed. These include the time demands on management and supporting staff. If a gap develops between resources and the expectations or requirements of these resources, companies have to fill it, either internally or externally. M&As: The stakes are getting higher More and more, growth through M&As is a critical part of a company's long-term strategy. This increasing importance, combined with their historically high failure rate, means there will be a strong demand for litigators who can appreciate the nuances of the area. Litigators who understand why M&As succeed and why they don't will be well-placed to provide sound counsel when deals fail.

The Advocates' Society thanks the sponsors of our 2006 Fall Convention

VOLUME 18, NO. 2, WINTER 2007

17

The gift of time: A tribute to peer volunteers

By Leota Embleton, MSW, I.C.A.D.C., Program Manager, OLAP The Ontario Lawyers Assistance Program provides professional counselling services and volunteer support. A fundamental aspect of the program is "lawyers helping lawyers" and this season of giving is an opportunity to focus on the heart and soul of the program: our peers who volunteer their time and share their experiences. Peer volunteers make OLAP an exceptional program for three reasons: Common Ground and Understanding: Someone who has gone through similar experiences knows what it feels like. This works for lawyers who are having difficulty because they don't have to pretend that all is okay. Breaking down the isolation: There is a sense of isolation that comes from struggling with an issue, a doubt, anxiety or general pressure. It can look and feel like you are the only one who is having difficulty. Lawyers are helpers and it is very difficult for a helper to ask for help. Positive vibes from giving and receiving: People who turn to OLAP for help receive encouragement from others who have learned from their struggles and overcome difficulties. In turn, the experiences of volunteers become helpful to others and they are able to give back to the profession. Why do lawyers volunteer to help other lawyers? Do they not have enough to do? Stanley Kershman, OBAP Volunteer of the Year 2005, describes why he volunteers with OLAP this way: "Everybody needs somebody sometimes." That song, sung by Dean Martin, is more true than you think. Whether you work in a solo practice, a small, medium or large-size firm, sometimes you just need to go outside your organization to get help. The reason I became an OBAP volunteer was so that I could be that "somebody sometimes." Everybody needs someone to talk to. My specialties deal with stress and financial distress. It's important that we be a helping profession to those within the profession, as well as others. That's why I became an OBAP volunteer." The volunteer role calls for the ability to take off the lawyer hat and wear the supporter hat, and to actively listen without judging. This is not a lawyer-client relationship in which the volunteer is expected to solve a problem or give advice. In one-on-one contact, an effective peer volunteer needs to be able to set boundaries, listen, not tell, and be part of the process without necessarily providing a solution. What do OLAP volunteers do? - Provide one-on-one support, reassurance and encouragement to individual lawyers who are struggling with personal or professional stress; make presentations about their personal experiences and available resources at law schools and professional seminars and gatherings; write articles for publication; work on committees to help get the message out about OLAP resources; help to set up support groups for other lawyers, and accompany lawyers to a meeting (such as AA) or a treatment centre. What do volunteers NOT do? - Act as legal counsel; provide legal advice, and act as a counselor or a therapist. In 2005, volunteers were directly connected to those seeking help in over 130 one-on-one situations. (See the annual report at www.olap.ca). This connection may be brief -- perhaps one phone call or conversation -- or it may be many conversations over a long period of time and may evolve into a mentor type situation or friendship. Every connection has a story; there is no wasted contact even if there is no visible result. Why does it work? Volunteers make it easier to seek help. Lawyer Assistance Programs across North America have learned that there are many ways to support quality of life and improved functioning while preserving the dignity and privacy of lawyers. Volunteers are key to seeking and getting appropriate help and support. Bill Kane, Director of the New Jersey LAP, said: Lawyer assistance programs began by helping with pesky alcohol problems because we discovered they were treatable and a helping hand from a colleague reduced denial. That specific help was broadened to include ... a panorama of human aches. Assisting members of our legal profession has reduced disciplinary cases and improved professional functioning and enhanced well-being. How are volunteers connected with those who seek support? The list of OLAP volunteers is not shared outside of the program or posted on its website. We try to match volunteers with callers

(Continued on page 19)

18

VOLUME 18, NO. 2, WINTER 2007

(Continued from page 18)

who can benefit from their experience. When we recommend a connection we check first with the volunteer to determine availability and comfort level with the person and the issue. We determine the method of contact and follow up to see how the process is going. If additional help is required, we make these arrangements. There are many stories of success we'd love to share, but the program is confidential. We sincerely thank all of our peer volunteers and members of the Board of Directors for the gift of time that you give. If you have an experience you would like to share with others, please contact: Leota Embleton, Program Manager Ontario Lawyers Assistance Program Email: [email protected] Mail: OLAP, 5025 Orbitor Drive, Bldg 2, Ste 220, Mississauga, ON L4W 4Y5 For confidential help, information, counselling or peer support: Toll free 1-877-576-6227 GTA 905-238-1740 www.olap.ca

Calendar of events

Wed., January 17 Mentoring Dinner Series in Toronto "A Dialogue with Judges and Masters" Toronto: Campbell House Tricks of the Trade Toronto: The Sheraton Centre Junior Counsel Series: Ready, Set, Litigate! Toronto: MaRS Collaboration Centre New Members' Breakfast Toronto: Campbell House Criminal Litigation Skills Certificate Program: Do a Trial! Toronto: Federal Court of Canada Court House Series: From Back Stage to Centre Stage Thunder Bay Court House Series: From Back Stage to Centre Stage London, Ottawa, Toronto, Windsor Arnup Cup Regional Trial Advocacy Competition Toronto: Superior Court of Justice Civil Litigation Skills Certificate Program: Effective Examination-in-chief Toronto: MaRS Collaboration Centre Court House Series: From Back Stage to Centre Stage Hamilton, London, Ottawa, Toronto, Windsor Court House Series: From Back Stage to Centre Stage Ottawa, Toronto Criminal Litigation Skills Certificate Program: Cross-examination of Fact and Expert Witnesses Toronto: Federal Court of Canada Managing Difficult Business Conversations (Joint with Triad Consulting) Toronto: MaRS Collaboration Centre Civil Litigation Skills Certificate Program: A Trial from A to Z Toronto: MaRS Collaboration Centre Sopinka Cup National Trial Advocacy Competition Ottawa Ottawa Advocate Honoree Dinner Ottawa: National Arts Centre

Fri., January 19 Thurs., January 25 Fri., January 26 Sat., January 27

Wed., February 7 Thurs., February 8 Fri., February 9 & Sat., February 10 Wed., February 14

Thurs., February 15 Thurs., February 22

Judicial discretion

... It is not something new, in historical terms, to expect our courts to play a leading role in the evolution of our laws. What is new, and therefore untested, is the expectation that they can adapt to changing social needs about as quickly as any legislature could, and do so with sensitivity to individual situations, with wisdom and, of course, with "discretion." This is not the traditional role of our courts of law and equity, and it requires renewed thinking on all our parts about the appropriate criteria for the exercise of so much additional discretion.... M. James O'Grady, Q.C. Burke-Robertson Barristers & Solicitors LLP "Discretion of a Judge: Playing God or Quintessential Judicial Work?" Fall Convention, November 2006

Sat., February 24

Fri., March 2 & Sat., March 3 Thurs., March 8

Fri., March 16 & Sat., March 17 Wed., March 28

See our complete Calendar of Events with fliers at www.advocates.ca/events/calendar.html

For further information, please call: The Advocates' Society - Education: 416-597-0243 x.110 The Advocates' Society - Events: 416-597-0243 x.113 Campbell House Museum: 416-597-0227 The Robinette Dining Room at Campbell House: 416-597-0542

VOLUME 18, NO. 2, WINTER 2007

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