The Civil Litigator’s Survival Guide To Evidence 2023

Jacqueline L. King, C.S., Shibley Righton LLP

The Hon. Justice Peter Lauwers, Court of Appeal of Ontario
Robert Bell, Lerners LLP

What makes evidence admissible? An annual update focusing on recent case law, emerging issues and practical tips, dealing with:

• Recent changes to the Rules of Civil Procedure
• 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
• Strategies for introducing expert reports

The Hon. Justice Michael Tulloch, Court of Appeal of Ontario
Jacqueline L. King, C.S., Shibley Righton LLP

This session will refresh your understanding of critical concepts and discuss emerging issues. Topics to be discussed include:

• Hearsay objections and rulings – when should you object and when should you insist on a ruling?
• Proven techniques when introducing or responding to a prior inconsistent statement
• Recent applications of the rule of Browne v. Dunn and impact on admissibility
• Hearsay evidence on appeal

The Hon. Justice Susan Vella, Superior Court of Justice (Ontario)
Gary Luftspring, Ricketts Harris LLP

Don’t miss this focused discussion on the current evidentiary issues surrounding motions and applications. Hear multiple perspectives on how to handle the following problems and evidentiary issues, 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

Break (10:35 a.m. – 10:50 a.m. ET)

Lisa Munro, Lerners LLP
Kathryn Podrebarac, Podrebarac Mediation

Learn key distinctions in how to treat evidence in multiple 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
• Recent examples of the applicability of the rules of evidence
• Admissibility vs weight
• Hearsay, best evidence and the rules of common sense
• Rules applicable to expert evidence

Kimberly Potter, Fasken Martineau DuMoulin LLP

Get the latest 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

The Hon. Justice Julie Thorburn, Court of Appeal for Ontario
William C. McDowell, Lenczner Slaght LLP

Get the top tips and tricks litigators need to know about evidence law from the experts. Receive pragmatic advice you can immediately apply to your practice, with a take‑home tip sheet provided for future reference.

Lunch Break (12:10 p.m. – 12:55 p.m. ET)

The Hon. Justice Eileen Gillese, Court of Appeal for Ontario
The Hon. Justice Charles Chang, Superior Court of Justice (Ontario)
The Hon. Justice Jamie Trimble, Superior Court of Justice (Ontario)

This highly anticipated annual panel will let you hear directly from the decision makers. This is your chance to get your questions answered and engage with the judges. A selection of challenging situations (including the potential impact at the Court of Appeal) and practical solutions, drawn from such areas as:

• 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
• Getting around the business records exception in the Evidence Act
• Admitting additional evidence on appeal

Sheila Block, Torys LLP
Sarah Shaikh, General Counsel, Public Prosecution Service of Canada

Updates and recent case law on expert evidence, including:

• Techniques for handling experts before and during trial
• Determining the admissibility/reliability of expert evidence
• Tips on qualifying opinion evidence
• Which sources may be “inherently suspect”?
• Difficulties encountered (and surmounted) in challenging experts

H. Michael Rosenberg, McCarthy Tétrault LLP

A large number of civil disputes are settled before trial. Learn about processes, procedures and best practices to obtain the best evidence for your case in a timely manner so you can settle early.

Break (2:40 p.m. – 2:55 p.m. ET)

Geoff R. Hall, McCarthy Tetrault LLP
Michael H. Morris, Senior General Counsel, Department of Justice, National Litigation
Hossein Moghtaderi, Filion Wakely Thorup Angeletti LLP
Justin W. Yuen, Barrister & Solicitor

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. 

The Hon. Justice David Brown, Court of Appeal of Ontario
The Hon. Justice Sandra Nishikawa, Superior Court of Justice (Ontario)

Get advice directly from the decision‑makers! This panel of judges will discuss the differences in handling evidence at trial vs. appeal, providing their unique perspective and practical tips on topics including:

• Unfavourable evidence (oral and documentary)
• Appropriate trial and appeal evidence etiquette
• Hearsay objection rulings at trial (and the impact on appeal)
• The right way to produce a book of documents