The Civil Litigator’s Survival Guide To Evidence 2024

Program Chair’s Welcome and Introductory Remarks
Jacqueline L. King, Shibley Righton LLP

Hearsay Evidence: Updates and Practice Tips
The Hon. Justice Peter Lauwers, Court of Appeal of Ontario

Practical knowledge and advice on hearsay evidence, including dos and don’ts, relevant case law, best practices, including:
• What is hearsay and common exceptions
• Hearsay objections and rulings – when should you object and when should you insist on a ruling?
• What should counsel consider in specific situations?
• Hearsay evidence on appeal

Admissibility of Evidence
Robert Bell, Lerners LLP

What makes evidence admissible? An annual update focusing on recent case law, emerging issues and practical tips, dealing with:
• How to ensure your evidence is admissible
• Relevance and materiality: their meaning and practical implications under current law
• How pleading technique influences how a judge will think about relevance and materiality in a particular case
• Arguing prejudicial vs. probative value
• Tactics for maximizing the weight of your evidence
• How to use virtual documents and business records to bolster your case

“Why Evidence Matters” – Q&A with Chief Justice of Ontario Michael H. Tulloch
The Hon. Michael H. Tulloch, Chief Justice of Ontario

Evidentiary Issues on Motions and Applications: Perspectives from Both Sides of the Bench
The Hon. Justice John R. McCarthy, Superior Court of Justice (Ontario)
William C. McDowell, Lenczner Slaght LLP

Don’t miss a discussion between a judge and senior litigator on the current evidentiary issues surrounding motions and applications, including:
• Motions vs. applications: the key differences and their role in determining the evidence you need
• Strategies for effective written motions and applications
• How to avoid common mistakes in gathering or preparing evidence on motions and applications (including summary judgment motions)
• Tips on how to gather evidence for a motion during a case-conference

The Latest on Privilege
Maureen Littlejohn, Davies Ward Phillips & Vineberg LLP

An update on evidentiary issues surrounding privilege, including:
• Proven strategies for challenging a claim of privilege
• Tools for protecting confidential corporate information
• Concerns relating to the disclosure of expert evidence and third-party information
• The exceptions to solicitor-client privilege and when the privilege is waived
• Dealing with the accidental disclosure of privileged documents
• Litigation privilege: its persistence after litigation ends
• Limitations on the privilege attached to mediation and settlement discussions

Judges Panel: Tackling Evidentiary Problems and How to Solve Them
The Hon. Justice Julie Thorburn, Ontario Court of Appeal
Justice Susan Vella, Superior Court of Justice (Ontario)

A selection of current challenging situations (including the potential impact at the Court of Appeal) and practical solutions, based on what these judges are seeing in their courtrooms. Past topics have included:
• Evidence on summary judgment motions
• Applying the best evidence rule in relation to documents
• Affidavits and witness statements: when to choose one over the other
• Gathering evidence from persons outside the jurisdiction
• Getting around the business records exception in the Evidence Act
• Using electronic forms of evidence
• Admitting additional evidence on appeal

Day One Concludes

The Rule in Browne v. Dunn and Prior Inconsistent Statements
Tom Curry, Lenczner Slaght LLP

• Recent applications of the rule of Browne v. Dunn and impact on admissibility
• Proven techniques when introducing or responding to a prior inconsistent statement
• Effects of improper use of rules and what counsel should do

Expert Evidence
The Hon. Justice Cory A. Gilmore, Superior Court of Justice (Ontario)
Yael Bienenstock, Torys LLP

The latest strategies and practical advice on expert evidence from a judge and senior litigator, including:
• How to decide if you need an expert
• Techniques for handling experts before and during trial
• How to successfully cross examine expert testimony
• What is effective/ineffective expert testimony?
• What concerns arise when an expert is testifying?
• What should counsel consider in preparation of examination in chief and cross?

Evidence in Mediations/Arbitrations
The Hon. Todd L. Archibald, Archibald Mediation and Arbitration Solutions Inc.
Lisa Munro, Lerners LLP

Distinctions in how to treat evidence in these unique modes of dispute resolution – namely mediation and arbitration. Topics include:
• Evidence in mediation briefs
• Making an impact through visual aids/demonstrative evidence
• Evidence and the arbitral process
• The applicability of the rules of evidence
• Admissibility vs weight
• Hearsay, best evidence and the rules of common sense
• Rules and procedure applicable to expert evidence

Ethical and Professional Issues Relating to Evidence
Geoff R. Hall, McCarthy Tetrault LLP
Lorne Sabsay, Sabsay Lawyers
Sarah Shaikh, General Counsel, Public Prosecution Service of Canada

This session will explore commonly encountered fact situations that raise ethical and professional issues, with practical advice on how to address them in a manner consistent with your roles as advocate for your client and as officer of the court.

Judges Roundtable: Advice from the Bench
The Hon. Justice Charles Chang, Ontario Superior Court of Justice
The Hon. Justice Heather McGee, Superior Court of Justice (Ontario)
The Hon. Justice Jamie Trimble, Ontario Superior Court of Justice

Get advice directly from the decision-makers! This panel of judges will discuss their biggest dos and don’ts for litigators when it comes to evidence. Providing their unique perspective and practical tips on topics such as:
• Unfavourable evidence (oral and documentary)
• Dealing with electronic evidence
• The return to in-person trials
• Hearsay objection rulings at trial
• The right way to produce a book of documents

Program Concludes