Day 1: Wednesday, April 7, 2010
8:00 Registration Opens and Coffee Served
9:00 Opening Remarks from the Co-Chairs
Jack Fitch
Partner
Hughes Amys LLP
Simona Jellinek
Partner
Jellinek Law Office
9:15 Update of Trends and Legal Developments in Institutional Liability for Sexual Assault and Abuse
Elizabeth Grace
Partner
Lerners LLP
John McKiggan
Partner
Arnold Pizzo McKiggan LLP
- Exploring new legal developments applicable to abuse, including new case law and statutory developments
- Anticipating exposures by examining trends in mass tort and class actions litigation
- Identifying the duties of the Crown: Considering Syl Apps Secure Treatment Centre v. B.D.
- Review of new developments in the law of limitations:
- Demystifying the 2004 Ontario Limitations Act in relation to child sexual assault and abuse claims:
- Understanding sections pertaining to abuse and waiver of limitation periods: How is the judiciary interpreting such sections?
- Clarifying the deeming provisions
- Considering the impacts of the new civil litigation regime in Ontario for abuse cases:
- Considering how changing monetary jurisdiction in both small claims courts and simplified rules will impact the bringing of sexual assault and abuse cases
- Mitigating institutional risk exposures by issuing a public apology: When it is appropriate to issue a public apology?
10:15 Developing Effective Litigation Strategies by Determining the Extent of Institutional Vicarious Liability for Sexual Assault and Abuse
Harmon C. Hayden
Partner
Watson Goepel Maledy LLP (Defence Counsel)
Loretta P. Merritt
Partner
Torkin Manes Barristers & Solicitors
(Plaintiffs’ Counsel)
- Uncovering emerging trends in types of institutions being named as defendants:
- Religious institutions, school boards, children’s aid societies
- Scrutinizing institutional liability for abuse in foster care situations:
- Identifying the duties attaching to the Crown or to the institution having oversight of child services
- Where is the line drawn between circumstances where vicarious liability will be found or not?
- Applying recent case law developments and examining trends for the future
- Evaluating limits on liability:
- What constitutes an “agent” of the institution? Is an institution vicariously liable for the acts of volunteers and visiting priests?
- Considering the liability of governments as funders of an institution against whom an allegation of abuse is made
- Extent of liability where the abuse occurred at a non-institution controlled location
- Pros and cons of claiming “victimization” by the alleged perpetrator as a possible defence
11:15 Networking and Refreshment Break
11:30 Protecting the Institution by Applying Best Practices in Investigating Sexual Assault and Abuse Claims
Jack Fitch
Partner
Hughes Amys LLP
Kristina Reitmeier
Chief Counsel/Director, Legal Services
Children’s Aid Society of Toronto
- Implementing the latest state-of-the-art forensic and investigative techniques: What they are; how to use them; what is involved
- Determining fair ways to validate victims’ claims without “re-victimizing” the victim
- Understanding the extent to which evidence obtained from an investigation can be used in civil or criminal proceedings:
- Top strategies for Plaintiff’s counsel to obtain evidence from investigations
- What can Defence counsel do to protect such evidence from being used?
- Checklist of key protocols in the investigation or development of a claim to minimize or manage the extent of the institution’s liability:
- Avoiding allegations of ineffective investigations and failure to remove a child from an abusive situation
- How to protect institutions from future claims
12:30 Networking Luncheon for Delegates and Speakers
1:45 Overcoming Key Discovery Challenges in Sexual Assault and Abuse Cases
Simona Jellinek
Partner
Jellinek Law Office (Plaintiffs’ Counsel)
Robert M. Zarnett
Partner
Smockum Zarnett Percival LLP (Defence Counsel)
- Top strategies for both Plaintiff’s and Defence counsel to determine the specifics of the alleged incident
- Overcoming hurdles in establishing causation in sexual assault cases: Methods to determine to what extent pre-and post-incident circumstances impact upon the psychological state of the Plaintiff
- Meeting the challenge of establishing economic loss
- Managing specific evidentiary challenges in historic assault and abuse claims:
- Top tips for finding historic records: How do you find people who may have moved to another location?
- Examining different methods in obtaining the parties’ recollection of the events
- Strategies to present the case from the Plaintiff’s perspective
- Strategies to defend a case of historical sexual assault and abuse
- Best practices for document management and e-discovery:
- Anticipating the financial cost of e-discovery: How to minimize time and expense
- Using electronic documents in court
2:45 Networking and Refreshment Break
3:00 Saving Time and Cost by Determining What You Can Expect to Receive at the Production Stage
James V. Maloney
Partner
Hughes Amys LLP
Kristina Reitmeier
Chief Counsel/Director, Legal Services
Children’s Aid Society of Toronto
- Advice to Plaintiff’s counsel on what kinds of documents you can and cannot expect to receive:
- Understanding Children’s Aid Society records and archival records of religious institutions: A primer on what you can get, how you get them, what you will not get
- What can you get from the perpetrator himself?
- Obtaining third party records:
- Examining the circumstances in R.v. O’Connor
- Determining what does the Court considers when defence counsel seeks child welfare records
- What procedures do the courts have to follow?
- Top strategies for Plaintiff’s counsel to obtain full production in advance of the examination
- Identifying special issues relating to dealing with privacy interests
- Sifting through what is relevant and what is not:
- Are insurance policies that were put in place years or decades ago still relevant?
4:00 Preparing for Class Action Sexual Assault and Abuse Cases
John McKiggan
Partner
Arnold Pizzo McKiggan LLP
- Cross-Canada update of class actions litigation against institutions and governments for child sexual assault and abuse:
- Considering the Antigonish diocese class action, the BC Woodlands School class action and others
- Determining core differences and challenges between bringing and defending an individual, a mass tort and a class actions case against an institution or government for sexual assault and abuse:
- Overcoming certification hurdles
- Dealing with multiple insurers
- Resolving quantification of damages issues in class actions proceedings
- Implementing winning strategies in litigating class actions sexual assault and abuse claims:
- Unique ways to bring and defend class action proceedings
- Working effectively with multiple sets of lawyers and other players
- Top tips to streamline and control the action
5:00 Conference Adjourns
Day 2: Thursday, April 8, 2010
8:00 Coffee Served
8:45 Opening Remarks from the Co-Chairs
Jack Fitch
Partner
Hughes Amys LLP
Simona Jellinek
Partner
Jellinek Law Office
9:00 Winning Strategies to Use Expert Evidence to the Best Advantage
Glenn R. Anderson, Q.C.
Senior Solicitor, Legal Services Division
Nova Scotia Department of Justice (Defence Counsel)
Robert Talach
Partner
Ledroit Beckett LLP (Plaintiffs’ Counsel)
- Determining the impacts of the Goudge Inquiry into Pediatric Forensic Pathology in Ontario on practice and use of expert evidence in investigations and criminal proceedings:
- Establishing links between the Goudge Inquiry and the new rules of civil procedure in Ontario
- Understanding what a doctor can and cannot say in relation to child abuse cases
- Staying out of hot water: Determining the extent to which you should work with your experts when developing their report:
- How far can you go?
- What do you target depending on the situation?
- Making or breaking the case: How much research should you put into looking for experts? Considering the pros and cons of using an expert that is not well known to the Court
- Top strategies for Plaintiff’s and Defence counsel in relation to development and use of expert evidence
- What to look for in an expert’s report when conducting an examination or cross-examination
10:00 Overcoming Legal Hurdles in Identifying, Proving and Quantifying Damages
Harmon C. Hayden
Partner
Watson Goepel Maledy LLP (Defence Counsel)
Paul Ledroit
Partner
Ledroit Beckett LLP (Plaintiffs’ Counsel)
- Obtaining the latest updates on cases dealing with the quantification of damages:
- Examining principles for the assessment of damages flowing from multiple tortious causes in B.P.B. v. M.M.B.; application to cases outside British Columbia
- Considering the “but for” and “material contribution” tests in establishing causation and assessing damages: Resurfice Corp. v. Hanke
- Linking causation with quantification of damages:
- Methods to advance the politically incorrect argument against the victim without alienating the court
- Dealing with multiple causation issues: Establishing divisibility of damages; considering the case of EDG v. Hammer
- Top tips for defence counsel on using statistical information and evidence effectively
- Analyzing leading techniques to assess loss of income and the psychological component
- Understanding ranges in damages awards:
- What are the ranges of damages being awarded?
- Influence of the types of injuries sustained in determining quantum of damages
- What is the rationale behind award of damages? Examining the influence of Evans v. Sproule
- Exploring the case for trying on individual circumstances rather than looking at the range
- Determining when the Plaintiff should bring the action: Is it fair for a lawsuit to be pursued immediately when the real effects of the abuse might not appear until adult-hood?
11:00 Networking and Refreshment Break
11:15 Incorporating Mental Health Expert Views on Memory Recall and Causation into Claim Management and Litigation Strategy
Dr. Richard Berry
Clinical & Forensic Psychologist
BerryChong Registered Psychologists
Dr. Nina Josefowitz
Psychologist
Private Practice (Toronto)
- Understanding what research tells us about normal and traumatic memory: What are the implications for the recall of sexual abuse?
- Do repressed memories exist and can they be accurate? What does the research say?
- Establishing causation factors: Methods used to determine the impacts of pre-existing factors and post-incident circumstances that may have contributed to the psychological state of the victim
- Understanding how mental health experts comment on whether the Plaintiff’s symptoms are consistent with what they would expect given their research knowledge and clinical experience
12:15 Networking Luncheon for Delegates and Speakers
1:30 Overcoming Evidentiary Thresholds to Establish Economic Loss
Cara L. Brown
Principal
Brown Economic Consulting Inc. (Calgary)
- What are the ranges in damages awards for economic damages?
- What is the evidentiary threshold to make the link between the abuse and the economic loss?
- Using Statistics Canada’s General Social Survey (GSS) data to calculate the economic impact of sexual assault on earnings:
- Presenting the results from actual case studies
- How do you adjust the data from the GSS when other abuses have occurred?
- Interpreting the impact of B.M.G. v. Attorney General of Canada on using economic evidence
- Additional heads of damage arising from sexual assault: Loss of marriage benefit
- How to use the Income Damages Calculator:
- Live demonstration of an online calculator that counsel can use to advise plaintiffs on quantum or assess exposure for the defendant
- Examples from actual mediations in a multi-plaintiff setting
- Considering different perspectives on the economic impact of sexual assault from forensic economists
2:15 The Latest Developments in Insurance Coverage for Institutional Liability
W. Colin Empke
Insurance Coverage Counsel
Blaney McMurtry LLP
- Examining recent case law and trends relevant to insurance coverage aspects of institutional liability claims
- Ensuring that your institution has adequate coverage for damages:
- Understanding what type of coverage is available for different types of damages: General, aggravated and punitive damages
- Identifying differences in insurance coverage for aggravated and exemplary or punitive damages
- What to look for when reviewing your policy to ensure that you have adequate coverage
- Understanding under what circumstances intentional act exclusions apply
- Examining developments in abuse exclusions and how they are used: Evaluating the increasing use of sub-limits
- Clarifying an insurance company’s duty to defend under a policy
- Identifying insurance coverage triggers:
- Understanding how allocation occurs between covered and non-covered items
- Examining recent changes in the law that might result in institutions paying substantially less in defence costs: Considering Hanis v. University of Western Ontario
- Avoiding situations where insurance coverage might become void: Identifying material misrepresentation and other conduct by the institution that can result in loss of coverage
- Overcoming specific insurance-related problems:
- Determining which insurance company is on risk where more than one insurer is involved:
- How do you determine the relative responsibility of each insurer?
- Best practices for insurance companies to interact with each other
- What to do when an insurer does not concede to consensus of coverage: Tips to avoid this situation
- What to do when an original insurer in a historical abuse case is no longer in existence or has been bought out by another company: Who has responsibility for coverage?
3:00 Networking and Refreshment Break
3:15 Using Alternative Dispute Resolution Mechanisms Effectively in Sexual Assault and Abuse Claims
Paul G. Torrie
Mediator
Global Resolutions Inc.
- Considering advantages and disadvantages in using ADR in sexual assault and abuse cases:
- When is mediation appropriate and when is it not?
- Examples of creative resolutions used in different types of sexual assault and abuse claims
- Saving time, money and further harm to both the victim and institutions and government by resolving a claim before pleadings or discovery:
- Putting ADR strategies into place
- Obtaining the cooperation of all the parties: Mechanisms to bring everyone to the table
- Dealing with multiple insurance players
- Evaluating the use of defense response committees and reporting
- Examining the use of ADR mechanisms in class action proceedings:
- Determining at what point you should have a pre-certification mediation
- Developing early strategies to deal with the claim
- Best practices for narrowing the defendants to a representative group
4:00 Incorporating Key Risk Management Considerations to Minimize Institutional Liability Exposures
James E. Doyle
Partner
Walsh McLuskie & Doyle Barristers & Solicitors
Lucien St-Martin
Managing Director
Catholic Religious Self Insured Retention Program
- Enabling institutions to reduce allegations of abuse by improving risk control systems:
- Considering and factoring in the mission and culture of an institution
- Preventative measures you need to have in place to protect your institution and those for whom you have responsibility
- Maximizing protections by ensuring adequate and effective training of staff: What they need to know; what they need to look out for; escalation procedures; reporting
- Underlining the necessity of ensuring that risk management procedures are followed:
- Examining the effects of not following established risk management procedures
- The insurance perspective: Understanding how insurance institutions measure an institution’s exposures depending on its risk management system
- Best practices for responding to and managing claims to avoid exposing your institution further:
- Top tips in documenting the process
- What considerations apply when there is no insurance coverage in respect of a claim?
5:00 Closing Remarks from the Co-Chairs
Conference Concludes
Conference Details
