#Civil Litigation Lawyer Calgary

[tauruslawcalgaryab]

Taurus Law Calgary | Family, Business, and Litigation Lawyers

Phone: (780) 285-5474

Address: 908 17 Ave SW, Calgary, AB T2T 0A3

Website: https://tauruslaw.ca/

At Taurus Law Calgary, we tackle legal challenges with the precision of hitting a bullseye. Our litigation team is skilled in offering steadfast advocacy and cost-effective solutions for a range of issues, including directors’ liability and shareholder disputes, landlord-tenant and commercial lease disputes, builders’ liens, injunctions, debt collections, new home warranty and insurance disputes, coverage denial, property and real estate disputes, and intellectual property disputes. We also take care of various family law-related cases like uncontested divorce and child support. Whether you're dealing with a difficult dispute or need proactive legal counsel, Taurus Law is dedicated to achieving exceptional results with unwavering precision.

[tafsircareercounselor]

Career Success with Online Legal Training

Pursuing a career as a legal assistant is an excellent choice for individuals with an eye for detail and a passion for law. The role of a legal assistant is crucial in the efficient functioning of law firms, corporate legal departments, and the justice system. With the advancement of technology, acquiring a Legal Assistant Diploma online has become more accessible than ever before. ABM College in Calgary offers a comprehensive online diploma program designed to equip students with the knowledge and skills needed to excel in this demanding profession. In this article, we'll explore the benefits of earning your Legal Assistant Diploma online at ABM College's Calgary campus.

Why Choose an Online Legal Assistant Diploma?

By Tingey Injury Law Firm

In today's fast-paced world, flexibility and convenience are key. Online education provides the opportunity to study from anywhere, at any time, making it an ideal solution for those juggling work, family, or other commitments. ABM College's online Legal Assistant Diploma program offers several advantages:

Flexibility and Convenience

Online courses allow you to set your own pace and study schedule. ABM College's program is designed to be flexible, catering to both full-time students and working professionals who wish to advance their careers.

Interactive Learning Experience

Despite being conducted online, the program at ABM College is interactive, engaging students through virtual lectures, discussions, and assignments. This ensures a rich learning experience that mirrors the classroom environment.

Career-Focused Curriculum

The curriculum is tailored to provide practical and theoretical knowledge that is directly applicable to a career as a legal assistant. Students gain an understanding of legal principles, procedures, and documentation that they will encounter in the workplace.

What You Will Learn in the Legal Assistant Diploma Program

ABM College's Legal Assistant Diploma program covers a comprehensive range of topics essential for a successful career in the legal field. Here are some of the key areas of study:

Legal Office Procedures

Gain proficiency in the day-to-day operations of a legal office, including client communication, file management, and effective use of legal software.

Legal Document Preparation

Learn how to prepare various legal documents such as contracts, wills, court pleadings, and corporate documents with accuracy and attention to detail.

Understanding of Legal Principles

Develop a solid understanding of Canadian law, including family law, criminal law, civil litigation, and real estate law.

Professional Communication

Enhance your written and verbal communication skills to effectively interact with attorneys, clients, and court personnel.

Ethics and Professional Conduct

Understand the ethical considerations and professional standards expected of legal assistants in their role.

Career Opportunities with a Legal Assistant Diploma

By Bench Accounting

A Legal Assistant Diploma from ABM College Calgary opens doors to a variety of career paths within the legal industry. Graduates can pursue positions in:

Law Firms

Work alongside lawyers and paralegals in private law firms, assisting with case preparation, client relations, and legal research.

Corporate Legal Departments

Join the legal team of a corporation, handling business-related legal tasks such as contract reviews, compliance, and corporate governance.

Government Agencies

Provide support to government lawyers in various departments, contributing to the development and enforcement of policies and regulations.

Non-Profit Organizations

Assist with legal matters in non-profit organizations, focusing on areas such as human rights, environmental law, or social justice.

The ABM College Advantage

ABM College's Legal Assistant Diploma program is not just about academic learning; it's about preparing students for the real-world challenges of the legal profession. Here's why ABM College stands out:

Experienced Instructors

Learn from instructors with real-world experience who bring practical insights into the classroom.

Career Services

ABM College offers career services to help students with job placement, resume writing, and interview preparation, ensuring they are ready to enter the workforce upon graduation.

Recognition

ABM College is recognized, ensuring that the education you receive meets industry standards and is respected by employers.

Financing Your Education

ABM College understands that financing education is a concern for many students. The college offers various financial aid options to eligible students, including:

Student Loans

Government student loans may be available to those who qualify.

Payment Plans

Flexible payment plans can be arranged to suit individual financial situations.

Legal Assistant Diploma Online vs. In-Person

Choosing between an online or in-person Legal Assistant Diploma program depends on your personal circumstances and learning preferences. While in-person programs offer a traditional classroom setting, online programs like the one at ABM College provide the same quality education with greater flexibility.

Online Program Benefits

Study from anywhere with an internet connection.

Balance your studies with other commitments.

Access course materials 24/7.

In-Person Program Benefits

Face-to-face interaction with instructors and peers.

Immediate feedback and support.

Structured learning environment.

Conclusion

Earning a Legal Assistant Diploma online at ABM College Calgary provides a flexible and comprehensive education that can lead to a rewarding career in the legal field. With a focus on practical skills, experienced instructors, and career support services, ABM College prepares students for success. If you're ready to take the next step in your career, consider the advantages of an online diploma program and how it can fit into your life.

Whether you're just starting out or looking to advance your career, the Legal Assistant Diploma program at ABM College Calgary is a stepping stone to a dynamic and fulfilling profession. Start your journey today by exploring the program and embracing the opportunities that await in the legal industry.

[career-courses-canada]

How To Become A Legal Assistant?

Legal assistants are indispensable members of the legal office. Their communication and administrative responsibilities ensure that day-to-day operations run smoothly. 

Legal secretaries are in demand in Alberta, with 60 per cent of employers having recruited legal assistants in the last two years. While the average Canadian salary is $54,630, they earn anywhere from $47,000 to $87,000 per year. 

This article delves into what it means to be a legal assistant and the qualifications necessary to become one. 

What Is A Legal Assistant?

Legal assistants work in law offices, courts, real estate, insurance companies, corporations, land title offices, federal, provincial and municipal offices. The extent of their responsibilities, however, may vary based on the type of company they work for, according to Zaki Ahmad, Calgary lawyer and former legal assistant.

“In civil litigation you have the commencing document, which is a statement of claim typically, and that will include the style of cause, the file number, who the parties are and who the service needs to be addressed to. This will be put in by the legal assistant.”

“In family law, legal assistants generally take a more active role,” he compares. “There are a lot of applications that need to be done, or divorce documents… often legal assistants know these nuances and they can draft documents accordingly.”

If you are interested in a career as a legal assistant, here are some responsibilities you will have upon the required completion of a legal assistant course:

Draft and proofread legal documents and correspondence.

Collect, organize and examine evidence and other legal documents for your attorney, in preparation of a case. 

Research laws and regulations to help with the preparation of reports and case files. 

Communicate with clients and witnesses to schedule meetings, interviews and depositions. 

Manage client billing and organize physical and electronic documents. 

Other general administrative responsibilities may be given to you based on the type of firm you work for and upon the discretion of the employer. 

What Qualifications Do You Need To Be A Legal Assistant?

A minimum 1 year of postsecondary education is required to become a legal assistant in Alberta. A legal assistant diploma program is the fastest way to get work in this field. 

A legal assistant diploma in Canada will teach you about Canadian law, civil litigation, commercial and corporate law, real estate, intellectual property, immigration and refugee law, just to name a few. You will also learn how to conduct legal research, interviews and different legal office procedures, as part of the program.  

If you are interested in this career, discover other ways to build upon your education and achieve success as a legal professional.

[familycentrall]

Family Central Law Office LLP

We put emphasis on mediation, negotiation, and arbitration as effective means to reach an acceptable solution for all parties involved.  Best Law Firms | Custody/Family Lawyers in Calgary Canada We understand that each case is unique, and we tailor our representation to your individual needs. We practice in the diverse areas of divorce and family law, wills and estates, and civil litigation.

Address:333 11 Ave SW #545, Calgary, AB T2R 1L9, Canada      

Phone:     587-392-7970  

Business email : info@familycentrallaw.com

Website:   https://www.familycentrallaw.com

[dimiclaw]

DIMIC LAW is a full-service legal firm practicing in the areas of civil litigation, family, wills and estates, real estate, defense, commercial and corporate law, as well as providing Commission and Notary Public services. We assist both Legal Aid and private clients, ensuring access to justice for all.

[sassyeverlarking]

Top Lawyers In Canada

Alice Woolley

Professor and associate dean-academic, University of Calgary Faculty of Law, Calgary, Alta. Woolley is a true changemaker in the area of technology and law in addition to law regulation.  She has been a valuable member of the Canadian Bar Association's ethics and professional responsibility committee.  Her work with the CBA Futures job as an ethics and regulatory problems team member is truly making a mark in the legal community.  Woolley is responsible for sweeping educational changes as chairwoman of the committee which developed and adopted significant curricular changes in the University of Calgary's Faculty of Law, which concentrate on the technical elements of legal instruction and will come into effect in September. What Republicans needed to say: top expert on legal profession and integrity; once she talks, people listen.  Alice is a visionary.  Educating law students in a way that will prepare them for a 21st century practice is of crucial importance to the future of the profession.

Justice Beverley McLachlin

Chief justice, Supreme Court of Canada, Ottawa, Ont.  A frequent member of the Top 25 list and also the very best vote-getter in years ago, McLachlin continues to make waves, handing down two quite important conclusions on aboriginal law.  The 2014 Tsilhqot'at Nation v. British Columbia decision directed by McLachlin is the earliest of its kind in the history of British Columbia.  Last year the Supreme Court of Canada granted announcement of aboriginal title to over 1,700 square kilometres of land.  She is also responsible for upholding the decision of the Ontario Court of Appeal in Keewatin v. Ontario (Natural Resources) published in July 2014, she has overhauled what the Lamer court started and has left her mark in this region for decades to come.  The chief justice is still a highly effective proponent of greater justice for all Canadians.  As her unbelievable number of votes once again this year reveal, McLachlin is greatly admired not only for her rulings but also her public support in favour of free speech, diversity, and comprehensive direction.  What voters had to say: An excellent judge that, again and again, marries the legislation with common sense.   Justifiably most respected legal mind in the nation; outstanding integrity; trusted public servant; obviously guided by the law and a strong ideology.

Rocco Galati

Rocco Galati Law Firm PC, Toronto, Ont.  Rocco Galati is famed for being a one-man opposition to the present authorities, so much spending $42,000 of his own money on court challenges.  He successfully launched a situation that blocked Stephen Harper's appointment of Justice Marc Nadon into the Supreme Court of Canada.  His resistance to the appointment of Federal Court of Appeal Justice Robert Mainville into the Quebec Court of Appeal Wasn't as Profitable.  While he doesn't win, Galati is dogged in his efforts to defend the Constitution against a government he sees pushing the boundaries using a lack of respect to the Charter of Rights and Freedoms.  He's now also been elected as bencher of the Law Society of Upper Canada and it'll be interesting to see what he brings to the regulation of the profession.What voters needed to say: A true Canadian constitutional and individual rights hero.

Mark Tamminga

Partner, Gowling Lafleur Henderson LLP, Hamilton, Ont. Tamminga has devoted his career to automating lawful practices.  His information technologies focus started in 1986 while he was still a law student and has been given the task of systemizing the production environment for files.  Since then, Tamminga's aptitude for legal technology has just grown with Gowlings LLP.  Three decades back, he had been called Gowlings' Innovation Initiatives leader.  He is responsible for automating the Gowlings recovery services practice.  He has designed and built a number of further training systems in the fields of debt collection, loan positioning, and civil litigation.  His role has required re-thinking the thornier aspects of big business operations: managing cultural change, inducing client-side believing, and constructing the compensation mechanics, which induce new behaviour. Exactly what the board had to say: Tamminga has shown real vision in handling tough issues that lots of law firms are not quite prepared to take on.

[settledownsailor]

Top Canadian Lawyers In 2019

Murray Klippenstein

Founder, Klippensteins Barristers & Solicitors, Toronto, Ont. Back to the next year on the Top 25, Klippenstein's ongoing representation of 13 members of this native Mayan Q'eqchi' population from El Estor, Guatemala, continues to make waves.  Three associated lawsuits are before the Ontario courts against Canadian mining firm Hudbay Minerals over the brutal killing of Adolfo Ich along with the gang rape of 11 women from Lote Ocho.  In a precedent-setting judgment in July of 2013, an Ontario court determined that lawsuits can proceed to trial in Canada over the objections of Hudbay Minerals.  At home he is also taking on the big men in a case against Encana Corp. which 's challenging the law and practice of hydraulic fracking in Canada. What Republicans needed to say: Kudos for standing up for, upholding Canadian values, where we function.

Alice Woolley

Professor and associate dean-academic, University of Calgary Faculty of Law, Calgary, Alta. Woolley is a true changemaker in the area of technology and law in addition to law regulation.  She's been a valuable member of the Canadian Bar Association's ethics and professional responsibility committee.  Her work with the CBA Futures project as an ethics and regulatory issues team member is really making a mark at the legal community.  Woolley is responsible for sweeping educational modifications as chairwoman of the committee which developed and embraced significant curricular changes at the University of Calgary's Faculty of Law, which concentrate on the practical elements of legal instruction and will come into effect in September. What Republicans needed to say: Leading expert on legal profession and integrity; when she speaks, people listen.  Alice is a pragmatic visionary.  Educating law students in a means that will prepare them for a 21st century practice is of critical importance to the future of our profession.

Marie Henein

Senior partner, Henein Hutchison LLP, Toronto, Ont. Considered one of Canada's best criminal defence lawyers, Henein is known for representing high-profile clients such as former CBC radio host Jian Ghomeshi -- charged with seven counts of sexual assault, of which two have been dropped -- former Ontario attorney general Michael Bryant, along with junior hockey coach David Frost.  Most recently Henein has taken on the case of defence counsel colleague Leora Shemesh, who was charged with perjury and obstruction of justice by Peel Police.  Henein is well known in the profession as a go-to attorney for most high-profile criminal issues.  She's a superb history of wins versus losses and was a part of the team that recently was victorious in getting John Salmon's conviction in a 1970s murder . What Republicans needed to say: Most observable leader of [the] criminal defence bar.

Mark Tamminga

Partner, Gowling Lafleur Henderson LLP, Hamilton, Ont. Tamminga has devoted his career to automating legal practices.  His information technology focus started in 1986 while he was still a law student and has been given the job of systemizing the production environment for mortgage files.  Since then, Tamminga's capability for legal technology has only grown with Gowlings LLP.  Three years ago, he was called Gowlings' Innovation Initiatives leader.  He is in charge of automating the Gowlings recovery solutions clinic.  He has designed and built lots of further training systems in the areas of debt collection, loan placement, and civil litigation.  His role has required re-thinking that the thornier aspects of big business operations: managing cultural change, causing client-side thinking, and building the reimbursement mechanics, which drive new behaviour. What the panel had to say: Tamminga has shown real vision in tackling tough issues that many law firms aren't quite prepared to take on.

[crashlawyers1]

Lawyer Spotlight: Meet Nitin aka Nick. Nick is a Senior Counsel (litigation) at Crash Lawyers. Nitin loves his general litigation practice with focus on personal injury, medical malpractice, estate planning, and litigation matters. Nitin is a Dual Qualified Lawyer in Alberta (2017) and India (2010) with experience both in trial and appellate jurisdiction matters. Nitin obtained his law degree from prestigious Delhi University, India (2010) and Master of Laws degree from the University of Calgary (2015). He is a published author, an avid blogger, and public speaker. Nitin is deeply connected with the local community and practice the Canadian value of “paying it forward” through his volunteering activities as a Mentor for Internationally Trained Lawyers at Calgary Region Immigrant Employment Council (CRIEC), and as a Director at Rocky Mountain Civil Liberties Association (RMCLA). He is also actively involved in the legal community by his association with ACTLA, CBA Section – South, GLC, FACL- Western Chapter. Nitin is married and a proud father. Outside of law, Nitin enjoys spending time with his family and friends, cooking, sketching, and reading with his favorite glass of scotch. (at Calgary, Alberta) https://www.instagram.com/p/CdZGRCHvdm3/?igshid=NGJjMDIxMWI=

[tafsircareercounselor]

How to Choose the Best Online Legal Assistant Diploma Program

The legal profession is a prestigious and challenging field, and becoming a legal assistant is a great way to get your foot in the door. With the rise of online education, choosing the best online legal assistant diploma program is more important than ever. This article will guide you through the critical factors you should consider when selecting an online legal assistant or paralegal program, especially if you're looking at options in Alberta or Calgary.

From flexibility to real-world application, we will cover all you need to know to make an informed decision. So, whether you’re looking to enhance your skills, start a new career, or just expand your knowledge, read on to learn how to choose the program that’s right for you.

Understanding the Role of a Legal Assistant

Before we dive into the specifics of selecting an online diploma program, let's clarify what a legal assistant does. Legal assistants, also known as paralegals, work closely with lawyers to prepare for hearings, trials, and corporate meetings. Their duties may include conducting legal research, drafting documents, organizing files, and other administrative tasks. The right diploma program will equip you with the knowledge and skills necessary to perform these tasks effectively.

Key Factors to Consider

When selecting an online legal assistant diploma program, several factors come into play. Here's what you need to look out for:

by Thomas Lefebvre (https://unsplash.com/@magellol)

Curriculum and Specializations

An excellent legal assistant diploma program should cover all the fundamental areas of legal studies, including civil litigation, corporate law, criminal law, and family law. Some programs offer specializations in areas like immigration law or real estate law, which could be beneficial if you have a particular field of interest.

Faculty and Expertise

The quality of the faculty can make a significant difference in your learning experience. Look for programs with experienced instructors who have practical knowledge of the legal system. Their insights can provide you with a deeper understanding of the material and prepare you for real-world legal scenarios.

Flexibility and Course Delivery

One of the main advantages of an online program is the flexibility it offers. Check if the courses are asynchronous (pre-recorded) or synchronous (live), and whether they require you to be online at specific times. Choose a program that fits your schedule and learning style.

Support and Resources

Online learning can be isolating without the right support. Ensure the program offers comprehensive resources, such as virtual libraries, discussion forums, and technical support. Additionally, access to career services can be a valuable asset in your job search after graduation.

Practical Experience and Internships

While online programs offer great theoretical knowledge, practical experience is crucial. Some diploma programs may offer internships or practical modules that give you a taste of what it's like to work in the field.

Legal Assistant Diploma Online in Alberta and Calgary

For those in Alberta or Calgary, there are specific considerations to keep in mind when choosing a program.

Provincial Regulations

Legal assistants in Alberta may need to meet particular provincial regulations or standards. Ensure the program you choose is recognized by the Alberta legal community.

Local Market Needs

Choose a program that is tailored to the needs of the local market. For example, if you're looking to work in Calgary, a program with a focus on oil and gas law might be beneficial, as the city is a hub for the energy industry.

Networking Opportunities

Even in an online program, networking is essential. Look for a program that provides opportunities to connect with local legal professionals and alumni. This can be invaluable when you're ready to enter the job market.

Comparing Legal Assistant Diploma and Certificate Programs

When choosing between a diploma and a certificate program, consider your career goals and the time you're willing to commit. Diploma programs typically offer a more comprehensive education and may be better suited for those seeking in-depth knowledge or planning to advance in the legal field. Certificate programs might be shorter and more focused, ideal for those looking to quickly gain the skills needed for entry-level positions.

Tuition and Financial Considerations

Don't forget to factor in the cost of the program. While online programs can be more affordable than their in-person counterparts, they still represent a significant investment. Look for programs that offer financial aid, scholarships, or flexible payment plans.

Student Reviews and Reputation

Do your research and read reviews from current and former students. Their experiences can provide you with valuable insights into the quality of the program and what you can expect. Additionally, the reputation of the institution offering the program can affect your degree's value in the eyes of employers.

Making the Decision

by Hunters Race (https://unsplash.com/@huntersrace)

When you've considered all the factors, it's time to make a decision. Remember, the best program for you is one that aligns with your career goals, fits your lifestyle, and provides the education you need to succeed as a legal assistant.

Conclusion

Choosing the best online legal assistant diploma program requires careful consideration of many factors. By evaluating curriculum, faculty, flexibility, support, practical experience, and cost, you can find a program that sets you up for success in the legal field. Whether you’re in Alberta, Calgary, or anywhere else, the right diploma program is out there waiting for you.

Remember, the legal assistant role is crucial in the legal profession, and with the right education, you can embark on a rewarding and exciting career path. Good luck in your search for the perfect online legal assistant diploma program!

[sidhu-lawyers]

Top Personal Injury Lawyers in Calgary

If you need to hire a lawyer, there is no shortage of legal experts in Calgary. The type of lawyer you need to choose will be determined by the nature of your legal case. Most attorneys specialize in one or two areas of law, such as family law, criminal law, employment law, personal injury law, bankruptcy, or civil litigation. As a result, it is critical to hire a lawyer who is knowledgeable and experienced in the professional area in which you want their services. Selecting a good lawyer is like selecting any other product or service. To make an informed decision, it is essential to conduct extensive study to ensure the services you need are met. After obtaining numerous legal references with competence in the relevant practice area, you should thoroughly research each applicant. 

How to find a good personal Lawyer

Referrals and word-of-mouth

The greatest approach to discover a lawyer is by word of mouth and referrals from friends, relatives, neighbors, business partners, and acquaintances. These individuals have no financial or other vested interest in suggesting a certain attorney and can express any positives or negatives they encountered in their contacts with a certain attorney or law practice.

Local Bar Associations

Your local bar organization is another excellent resource for locating a lawyer in your area. Most county and local bar associations provide the public with lawyer referral services; however, they do not always test for credentials.

Other Lawyers

Lawyers can frequently refer you to other lawyers in the legal community who can help you with your requirements. Legal circles are tiny, and most lawyers will know numerous other professionals who specialize in the practice area you need guidance on. Lawyers are also aware of the reputations of other lawyers in a specific professional field. Keep in mind, however, that lawyers frequently obtain referral fees when they refer a case to another lawyer, which may affect their recommendation.

Frequently asked questions

What are the 3 most common types of lawyers?

Civil Litigation, Real Estate, and Criminal Law are the three most common kinds of essential attorneys that individuals need when they require assistance with their cases.

What are the two main types of lawyers?

Personal Injury Attorneys and Criminal Lawyers are two of the most common categories of lawyers. Personal Injury Lawyers specialize in seeking monetary compensation for accidents caused by third parties. Criminal Lawyers are well-versed in all issues relating to summary convictions and indictable offenses in Canada.

What do personal injury lawyers cover?

Civil law is a specialty of personal injury attorneys. This includes private or civil wrongs or injuries, such as defamation and claims for breach of contract in bad faith. Civil law's principal purpose is to ensure the injured party is made whole again while discouraging others from causing injury and harm.

How much does a lawyer typically cost?

In general, a lawyer's hourly wage in a private business is between 75.00 CAD and 750.00 CAD. Lawyers in Canada are responsible for guiding their clients through the legal system. Settlement in a client's case can be accomplished with the assistance of a lawyer, depending on the applicable legislation. Personal Injury Lawyers generally work under a contingency fee agreement- meaning you only pay if and when you win your case.

[adelineadkin]

eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

By: Gideon Christian

PDF Version: eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing

In adversarial litigation, oral questioning is an out-of-court pre-trial or pre-hearing proceeding where a party to litigation orally examines (by way of questioning) under oath another party adverse in interest, or their agents, for the purpose of adducing information that may be used as evidence. In the Alberta Rules of Court, Alta Reg 124/2010 (Alberta ROC), oral questioning can take the form of questioning for discovery (Rules 5.17 and 5.22) or questioning on application (Rules 6.7 and 6.8). Before the COVID-19 crisis and its social-distancing requirements, the default method of oral questioning in civil litigation was in person, with the parties and their lawyers present at a physical location accessible to all, such as the lawyer’s office or some other location chosen by the parties. A certified court reporter must also be present, who swears the witnesses and also takes record of the ‘question and answer’ proceeding.

The COVID-19 pandemic has resulted in public health and judicial directives enforcing isolation and social-distancing rules. Consequentially, in-person questioning became impractical on public health grounds. Although the justice system was substantially paralysed by the pandemic, litigation must go on even in that state of paralysis. In response to the realities imposed on the justice system, in-person oral questioning gave way to virtual or remote questioning using audio- or video-conferencing technologies. This method of questioning is what I refer to in this post as eQuestioning (short for electronic questioning).

eQuestioning is no stranger to the civil justice system, although before the COVID-19 pandemic, it was the exceptional and sparsely used alternative to in-person questioning in litigation. But the COVID-19 crisis has changed the world in many ways, and in response to its travel restrictions and social-distancing measures, eQuestioning has become the default means of conducting oral questioning in litigation.

In this blog post, I will examine oral questioning in civil litigation and the rules governing eQuestioning in the Alberta ROC. I will also critique the recent decision on eQuestioning by the Alberta Court of Queens Bench in Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2020 ABQB 359 (CanLII) (Sandhu).

Questioning for Discovery vs. Questioning on Application

Oral questioning for discovery enables a party to litigation to obtain information which is relevant and material to the litigation from parties adverse in interest, or their agents. This process is also known in some jurisdictions as oral discovery, examination for discovery, examination on discovery, oral examination or deposition. Rule 5.17 of the Alberta ROC allows for questioning under oath of a party adverse in interest for the purpose of obtaining “relevant and material records and relevant and material information.” The questioning can be done orally or in writing (Rule 5.22, Alberta ROC).

Oral questioning on application arises in two situations. First, a party adverse in interest may question the person swearing “an affidavit in support of an application or in response or reply to an application” (Rule 6.7, Alberta ROC). This is known as cross-examination on affidavit. Second, a witness at the hearing of an application may be questioned under oath before the hearing for the purpose of obtaining evidence admissible at the hearing of the application (Rule 6.8, Alberta ROC).

Some important similarities between questioning for discovery and questioning on application are:

Both proceedings are pre-trial or pre-hearing proceedings.

Unlike a normal court proceeding, they are not open to the public and involve only the parties, their counsel, and other authorized persons.

Both proceedings are out-of-court and do not involve the judge; the lawyers run the process. This can sometimes lead to chaotic drama, like the American deposition seen here.

Notwithstanding the similarities, there are also important differences between the two. The transcript of proceedings in oral questioning on application is evidence before the court and can be relied on by either party. In oral questioning for discovery, the transcript is not evidence before the court. The transcript (or a portion of it) becomes evidence only when “read in”, generally by the party who conducted the questioning.

The Pre-COVID-19 In-Person Default

Although the Alberta ROC do not explicitly provide any default method for the conduct of questioning in litigation, prior to the COVID-19 pandemic, as noted earlier, the default was in-person presence at a predetermined location by the parties and their lawyers. Thus, the party seeking to conduct questioning in litigation initiates the process by serving on the party to be questioned a notice of appointment (Form 29) specifying date, time and place for the appointment for questioning. The notice must be served along with reasonable payment for accommodation, meals, and transportation expenses (Rule 6.17, Alberta ROC).

The main problem associated with this in-person process is cost. That is especially the case when the parties, their lawyers, and the persons to be questioned live in different and distant locations. The expense in travel and accommodation for all persons involved adds to the cost of the litigation, and the farther their locations from the venue of the questioning, the higher the cost. Now, with the COVID-19 crisis, in-person questioning is practically impossible. This has resulted in a “new normal,” where questioning using tele- or video-conferencing technology has become the default means of conducting questioning. As would be expected, not all litigants have been receptive to the change. Some would rather have the oral questioning process suspended until the world returns to a normality that would allow the continuation of the in-person process. See Arconti v Smith, 2020 ONSC 2782 (CanLII) (Arconti); Sandhu.

eQuestioning and the Alberta Rules of Court

Before the COVID-19 pandemic, Alberta courts had on some occasions authorized the use of eQuestioning in civil litigation. This was done without any reference to any applicable provision in the Alberta ROC as a basis for the order. The use of eQuestioning in Geophysical Service Incorporated v Falkland Oil and Gas Limited, 2019 ABQB 314 (CanLII), for example, seemed to have been based largely on the agreement of the parties rather than on any applicable provision in the Alberta ROC. However, in Franiel v Toronto-Dominion Bank 2020 ABQB 66 (CanLII) (Franiel), the court was rather hard on a party for insisting on in-person questioning when eQuestioning via video conference was an available and viable option. In that case, Master Andrew Robertson ruled that if the plaintiff insisted on in-person questioning of the defendant bank’s witness who resides in Toronto, then the plaintiff must “pay for airfare, hotel (likely two nights), meals, and conduct money for that witness’ attendance in Calgary” (at para 42). In the alternative, Master Robertson recommended that the plaintiff conduct the questioning using videoconferencing, which was less expensive and more efficient:

My recommendation is that videoconference be used. It would be less expensive and likely could be arranged more quickly and easily than an attendance requiring the witness to spend, in practical terms, three days in total to travel to Calgary, testify, and then travel back to Toronto. (at para 43)

It should be noted that in recommending the use of eQuestioning via videoconference, Master Robertson made no reference to any provision in the Alberta ROC. Rather, he noted that “[t]he Foundational Rules direct that the Court and the parties are to find the most efficient way to find a resolution to the case” (at para 40). I will come back to these foundational rules later.

So, what rule or rules govern eQuestioning in Alberta? Unlike in Ontario, which clearly provides for the use of tele- and video-conferencing technologies in all or part of a proceeding or steps in a proceeding (Rule 1.08, Rules of Civil Procedure, RRO 1990, Reg 194, emphasis added), the Alberta ROC lack a similarly worded provision. Justice Michael Lema was faced with this difficulty in Sandhu. The issue in that case was whether the cross-examination on affidavits should be suspended until the COVID-19 pandemic has cleared, or whether it should be conducted sooner by videoconference.

In Sandhu, Justice Lema seemed to consider Rule 6.10 of the Alberta ROC as one of the governing rules for remote questioning. Rule 6.10 deals with “electronic hearing”, which is defined as:

an application, proceeding, summary trial or trial conducted, in whole or in part, by electronic means in which all the participants in a hearing and the Court can hear each other, whether or not all or some of the participants and the Court can see each other or are in each other’s presence. (emphasis added)

Clearly, electronic hearing can only apply to any of the above listed proceedings in which the participants and the court are involved. As has been noted above, questioning for discovery and questioning on application are out-of-court pre-trial or pre-hearing proceedings that involve the parties and their lawyers. The court is not involved, and the judge does not participate. The absence of the court’s involvement takes the proceeding outside the context of Rule 6.10.

Justice Lema initially acknowledged this in his judgment (at paras 19-20), but then sought to invoke a predecessor rule and caselaw in support of the use of Rule 6.10 as a governing rule for eQuestioning – Rule 261.1 of the old Alberta Rules of Court, Alta Reg 390/1968. The old rule provides that “[o]n application to the Court and on showing good reason for doing so, the Court may permit evidence to be admitted by telephone, audio?visually or by other means satisfactory to the Court.” Justice Lema went further, citing De Carvalho v Watson, 2000 CanLII 28217 (AB QB) where Justice Craig Jones broadly interpreted Rule 261.1 “to allow for the continued examination of an individual on an examination for discovery by appropriate audiovisual techniques” (at para 18).

Without disputing Justice Jones’ broad interpretation of Rule 261.1, it is vital to note the important difference between Rule 261.1 (the old Rule) and Rule 6.10 (the new Rule). The difference lies in the latter’s clear and obvious requirement of the court’s involvement in a hearing in order for Rule 6.10 to apply. This requirement is not evident in Rule 261.1, which only requires an application be made to the court to authorize the use of electronic means for the admission of evidence. Unlike Rule 6.10, this can be broadly interpreted to apply to out-of-court proceedings in a matter before the court such as questioning for discovery or questioning on affidavit.

Clearly then, the argument I am making here is that Rule 6.10 cannot be used as a basis for virtual or eQuestioning. What rule(s) then will apply? In Franiel, Master Robertson alluded to the foundational rules’ requirement that the court and parties seek out the most efficient means of resolution of the litigation. In Sandhu, Justice Lema rightly considered the foundational rules in justification of his order to permit remote cross-examination on affidavit.

The Foundational Rules

The foundational rules are found in Part 1 of the Alberta ROC. They provide guidance on the interpretation of the Rules, including practice and procedural orders that the court can make to achieve the purpose and intention of the Rules. The foundational rules appear to provide substantive grounds for ordering the use of eQuestioning in litigation. Rule 1.2, for example, clearly lays out the purpose and intention of the Alberta ROC which includes, among other things, “to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost?effective way…” and “to facilitate the quickest means of resolving a claim at the least expense” (emphasis added).

In a COVID-19 era where the court system has almost come to a grinding halt, eQuestioning provides a means of safely and efficiently conducting questionings in litigation, thus enhancing timely resolution of matters before the court. Even with the social-distancing rules in place, parties can still conduct this aspect of the litigation process without necessarily having to wait until the world returns to in-person normality. Also, it need not be re-emphasised that eQuestioning may prove to be the least expensive means of conducting questioning, as in-person questioning can add significantly to the cost of litigation, especially where the parties reside in locations very far from the venue of the questioning.

In addition, Rule 1.4 provides further assistance in this regard. Rule 1.4 advances the purpose and intention outlined in Rule 1.2 by permitting the court to “make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court.” Further to that, Rule 1.4 (2) provides:

Without limiting subrule (1), and in addition to any specific authority the Court has under these rules, the Court may, unless specifically limited by these rules, do one or more of the following:

            …

(c)  give orders or directions or make a ruling with respect to an action, application or proceeding, or a related matter.

Although eQuestioning is not expressly provided for in the Alberta ROC, these foundational rules undoubtedly provide legal basis for its use in civil litigation, especially in the era of COVID-19. eQuestioning falls in line with the purpose and intention of the Rules in achieving a timely and cost?effective resolution of litigation.

Making a Case for eQuestioning

A starting point in making a case for eQuestioning in civil litigation is an inquiry into its necessity in our civil justice system. Currently, the strongest case for eQuestioning is clearly related to the travel restrictions, isolations and social-distancing requirements imposed by the COVID-19 pandemic. But even beyond COVID-19, there are other reasons that justify the use of this electronic process. Cost, time efficiency, and effectiveness of the process count. In-person processes often entail a longer timeframe.

eQuestioning is also a very convenient process and is often easier to schedule than its in-person alternative. Counsel and the parties are able to participate from the comfort of their homes or offices. This is especially important where any of them has limitations such as physical mobility. The convenience associated with this process also limits the likely absence or unavailability of the participants in the proceeding.

While time, cost, and efficiency are some of the major factors in support of eQuestioning, some concerns have been raised against this process and in support of the pre-COVID-19 status quo. Some of these arguments were raised by the plaintiff in the Ontario case of Arconti, COVID-19 era litigation where the plaintiff objected to examination for discovery by videoconference. These objections included: (i) the difficulty in assessing a witness’s demeanour remotely; and (ii) that the use of technology in the questioning process will facilitate the ability of the party to cheat and abuse the process. I will address both of these concerns.

First, in conducting examination of a witness in the course of a proceeding, observation of the demeanour of the witness may be important. When the credibility of the witness is an issue in the proceeding, the observation of their demeanour is best made in an in-person proceeding. But it is important to make a distinction between a pre-trial proceeding and the actual trial. While credibility issues often arise in hearings or trials where a judge (or jury) is present, in most pre-trial proceedings such as questioning for discovery or questioning on affidavit, credibility is rarely an important issue. Hardly (if ever) do the transcripts from these proceedings (which are or may become evidence in court) record information about the demeanours of the witnesses. Hence, the need to observe the demeanour of the witness is not a significant enough factor to warrant an in-person process in all situations. This position is further supported by the fact that the Alberta ROC allows for written questioning (in questioning for discovery), which provides no opportunity for observing the demeanour of the party responding to the questions (Rule 5.22(b)).

The second argument relates to the use of technology to facilitate the ability to cheat and abuse the questioning process. Concern may be raised about the ability of a remote witness to be coached or unduly influenced in the course of eQuestioning. This is a practical reality which cannot be totally eliminated, but it can be checked. First, the person being questioned may be placed in an environment where they can be subject to a 360-degree view on a video camera or cameras, and any individual (except counsel) whose presence is not relevant to the questioning may be required to leave the room. Further, our code of professional conduct as lawyers provides an ethical check on cheating or abuse of court (and out-of-court) processes in the conduct of litigation. Lawyers have an ethical obligation to prevent their clients from engaging in such conduct. Rule 5.1-5 of the Law Society of Alberta Code of Conduct prohibits counsel from misleading the tribunal or assisting a client or witness to do the same. Justice Frederick Myers rightly summed this up in Arconti:

While no one is immune from cheating, regulated professionals must maintain professional ethics [or] have their licenses at risk. Their professional reputations are their lifeblood. While the court remains open to receive evidence of abuse of any examination or other process in a lawsuit, and should deal strongly with any proven abuse, I do not think an amorphous risk of abuse is a good basis to decline to use available technology. (at para 26)

In making a case for eQuestioning in litigation, I must admit that there are cases where in-person questioning may be a better alternative to eQuestioning. For example, where the questioning involves the examination of physical objects, or an expert witness examining detailed technical presentations and models, in-person presence of the participants in a physical location will be a better alternative.

Conclusion

So why must lawyers continue to push for the use of eQuestioning in civil litigation? Because, to quote Justice Myers in Arconti (at para 19), “It’s 2020.” Technology will continue to disrupt our usual ways of doing things. It will continue to provide us with better and innovative alternatives. It is important that our profession and the justice system embrace these better and innovative alternatives rather than stick to the old and often expensive and time-consuming ways of doing things.

This post may be cited as: Gideon Christian, “eQuestioning: Oral Questioning in Litigation in the Era of Social Distancing” (June 22, 2020), online: ABlawg, http://ablawg.ca/wp-content/uploads/2020/06/Blog_GC_eQuestioning.pdf

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We are currently reviewing hernia mesh lawsuits for individuals who are interested in pursuing compensation, justice and accountability in the United States Federal Courts. The Ethicon Physiomesh™ Hernia Mesh lawsuits in the United States are individual lawsuits. These individual lawsuits in the United States are now multi district litigation (MDL) consolidated in the Northern District of Georgia in front of the Honorable Honorable Richard W. Story, “for coordinated or consolidated pretrial proceedings.” *** Some individuals have opted to file lawsuits in various state Courts.

PHYSIOMESH CLASS ACTION LAWSUIT IN CANADA

In Canada, the Ethicon Physiomesh™ Flexible Composite Mesh litigation constitutes a class action. In Canada there was a mesh recall for Physiomesh. Many Canadian victims may be unaware of their potential right to utilize the Federal Courts in the United States to pursue justice and accountability as a result of defective hernia mesh. Can Canadian Ethicon Physiomesh hernia mesh victims file a hernia mesh lawsuit in the United States of America (USA)? Certain Canadian citizens, who are victims, may be able to file a mesh lawsuit in the United States.

Canada Hernia mesh lawsuit | Canada mesh class action

HERNIA MESH LAWSUIT ATTORNEYS

We are not attorneys in Canada. We do not represent any clients in the Canada Physiomesh class action. If you need legal advice concerning the law in Canada related to the Canadian Physiomesh class actions or Canada hernia mesh lawsuits or the Ethicon Physiomesh Class Action, contact a Canada hernia mesh lawyer.

The author of this article is attorney David Slepkow. David Slepkow is an attorney licensed to practice in front of the United States Supreme Court. David is also a personal injury lawyer licensed to practice In Rhode Island and Providence Plantations as well as the Commonwealth of Massachusetts. David was a longtime member of the bar for The U.S. Federal Court, First Circuit, District of Rhode Island.

ETHICON PHYSIOMESH™ HERNIA MESH:  RECALL IN CANADA | MARKET REMOVAL IN THE UNITED STATES

The laws in the United States and Canada are different as far as product liability and defective hernia mesh litigation is concerned. On May 25th, 2016, Health Canada recalled Ethicon Physiomesh™ Flexible Composite Mesh from the Canadian markets.  Recall and Safety Alerts PHYSIOMESH FLEXIBLE COMPOSITE MESH (2016-05-25) “Health Canada is the Federal department responsible for helping Canadians maintain and improve their health, while respecting individual choices and circumstances”  About Health Canada “According to our mission and vision, Health Canada’s goal is for Canada to be among the countries with the healthiest people in the world.” Id.

CANADA CLASS ACTION- HERNIA MESH RECALL IN CANADA

According to cbc, “Siskinds, a law firm from London, Ont., is applying to certify a class action lawsuit on behalf of Canadian patients who have had problems with Physiomesh™” cbc  According to cbc, “What happens is, we allege, is that it triggers major complications” Id.  “It moves, and then people have mesh that’s either pulled apart or moved, and isn’t doing the job it was put in to do.”  Id.

“According to the class action’s statement of claim in Canada, the plaintiffs allege that there is a “design defect” in the Physiomesh™ that causes it to contract, tear, or migrate, leading to such injuries as perforations, abscess and adhesion formations, infections, and the need for further surgery.” CTV

“These Canadian victims assert that there were not properly warned of the dangers of the device.” Id.

According to CTV news, “The device at the center of the claims is Ethicon’s Physiomesh™ Hernia Mesh which Health Canada recalled in 2016. The Canadian agency’s action came after it learned that recurrence and reoperation rates with the device were higher than those of other meshes.” CTV NEWS, Canaadian news

SUPREME COURT OF CANADA: “FAIR AND EFFICIENT RESOLUTION”

The Supreme Court of Canada underscored the importance of Class actions in Canada stating: “While the class action has existed in one form or another for hundreds of years, its importance has increased of late.  Particularly in complicated cases implicating the interests of many people, the class action may provide the best means of fair and efficient resolution.” Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 SCR 534, 2001 SCC 46 (CanLII), <http://canlii.ca/t/520c>, retrieved on 2017-06-10.

Some provinces in Canada have enacted comprehensive legislation related to class action causes of action “And in Canada, the provinces of British Columbia, Ontario, and Quebec have enacted comprehensive statutory schemes to govern class action practice:  see British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50; Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6; Quebec Code of Civil Procedure, R.S.Q., c. C-25, Book IX.”  https://www.canlii.org/en/ca/scc/doc/2001/2001scc46/2001scc46.html

If there is no comprehensive legislation,” Absent comprehensive codes of class action procedure, provincial rules based on Rule 10, Schedule, of the English Supreme Court of Judicature Act, 1873 govern. Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 SCR 534, 2001 SCC 46 (CanLII)  https://www.canlii.org/en/ca/scc/doc/2001/2001scc46/2001scc46.html

ETHICON PHYSIOMESH™ HERNIA MESH USED IN CANADA SINCE 2010

Physiomesh™ Flexible Composite Mesh has been surgically implanted into patients in Canada since September 2010. CTV  Some Canadian victims in Canada have filed a class action against Ethicon Inc.  Ethicon is a subsidiary of Johnson and Johnson.

VICTIMS ACROSS CANADA | CANADA PHYSIOMESH RECALL

Victims across Canada including victim’s from: Toronto, Montreal, Vancouver, Ottawa, Calgary, Edmonton, Quebec City, Winnipeg, Halifax and Hamilton may find the Hernia Mesh lawsuit information in this blog helpful in making important decisions concerning their claim for compensation. There may be thousands of victims across the following provinces: Canada: Ontario, Quebec, British Columbia, Manitoba,  Manitoba,  Newfoundland and Labrador. Victims in Canada should consult with hernia mesh attorneys in the United States as well as Canadian Class action lawyers.

THE 411 ON THE CANADA ETHICON PHYSIOMESH RECALL

“Starting date: May 25, 2016 | Posting date: June 13, 2016 | Type of communication:Medical Device Recall | Subcategory: Medical Device | Hazard classification: Type II | Source of recall: Health Canada | Issue: Medical Devices |Audience: General Public, Healthcare Professionals, Hospitals | Identification number: RA-58846” http://healthycanadians.gc.ca/recall-alert-rappel-avis/hc-sc/2016/58846r-eng.php

ETHICON’S MARKET REMOVAL IN THE UNITED STATES

In the United States,  on May 26th, 2016, Ethicon issued an “urgent” field safety notice concerning  ETHICON PHYSIOMESH™ Flexible Composite Mesh (All Product Codes).  Ethicon is a subsidiary of Johnson and Johnson. These product codes are: PHY0715R, PHY1015V, PHY1515Q, PHY1520R, PHY1520V, PHY2025V, PHY2030R, PHY2535V, PHY3035R, PHY3050R. In that notice, Ethicon stated: “We have initiated a worldwide medical device removal of ETHICON PHYSIOMESH™ Flexible Composite Mesh (for laparoscopic use) (“ETHICON PHYSIOMESH™ Composite Mesh”).

THE LAWSUITS IN THE UNITED STATES ARE INDIVIDUAL LAWSUITS THAT ARE PART OF  MULTI DISTRICT LITIGATION

The Panel on Multi District Litigation in the United States (US) ordered that “IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Northern District of Georgia are transferred to the Northern District of Georgia and, with the consent of that court, assigned to the Honorable Richard W. Story for coordinated or consolidated pretrial proceedings.  Transfer order

More in depth information about the United States Individual lawsuits

WHAT IS PHYSIOMESH™FLEXIBLE COMPOSITE MESH BY ETHICON?

According to medline.com, “ETHICON PHYSIOMESH™ Flexible Composite Mesh is a sterile, low profile, flexible composite mesh designed for the repair of hernias and other fascial deficiencies. The mesh product is composed of a nonabsorbable, macroporous polypropylene mesh laminated between two polyglecaprone-25 films. An undyed polydioxanone film provides the bond between the polyglecaprone-25 film and polypropylene mesh. The polypropylene component is constructed of knitted filaments of extruded polypropylene. An additional dyed (D&C Violet No. 2) polydioxanone film marker has been added for orientation purposes.”http://www.medline.com/product/PHYSIOMESH-Flexible-Composite-Mesh-by-Ethicon/Z05-PF47325

CANADIAN CITIZENS MAY BE UNAWARE OF THEIR RIGHTS TO PURSUE JUSTICE IN THE UNITED STATES’ COURT SYSTEM

Apparently, the vast majority of aggrieved Canadian Ethicon Physiomesh™ victims are not aware that they have the option of utilizing the United States Judicial system for compensation* “As Americans continue to file hernia mesh lawsuits, Canadians began their hernia mesh class action claiming they weren’t warned of the implant’s risks.” More info

IN UNITED STATES ETHICON PHYSIOMESH™ CLAIMS ARE INDIVIDUAL LAWSUITS , NOT CLASS ACTIONS!

This is a very important distinction. These Ethicon Physiomesh™ in The U.S. are not a “class action” under United States law as defined by the Federal Rules of Civil Procedure, 28 U.S.C.A. § 23

WE ARE REVIEWING POTENTIAL CASES OF DEFECTIVE HERNIA MESH, MADE OF NON-ABSORBABLE POLYPROPYLENE THAT MAY HAVE CAUSED INJURIES, INCLUDING:

Ethicon Physiomesh™

Atrium C-QUR

Composix® Kugel® mesh patches (manufactured by C.R. Bard subsidiary Davol)

All C.R. Bard mesh patches made of Marlex polypropylene

PROBLEMS WITH CLASS ACTIONS

Class actions can be very problematic since individual claimants do not have control over their own case. Individual claimants may not have control over a settlement. Lawinfo sets forth one of the main problems with class actions: “Lack of decision making control. Class action lawsuits are, by definition, representative rather than group litigation. That means that representatives of the affected class make the important litigation decisions – including when to settle. A plaintiff who is not a representative does not have a say in whether to settle or continue to litigation.”  Lawinfo Resource

WHAT IS THE PURPOSE OF A CLASS ACTION

“Class actions are a mechanism designed to provide access to the courts for claims that are too small to be prosecuted economically on their own,” said Robb, a partner in class actions at Siskinds LLP in London, Ont.” https://www.theglobeandmail.com/globe-investor/personal-finance/household-finances/thinking-of-joining-a-class-action-lawsuit-know-your-options/article19777681/

“Class actions lump together all those who might meet the stated criteria for the class. A certified action has two phases. A first phase sorts out the “common issues” for all the class members, and the second looks at the individual circumstances for each class member. So while class actions do eventually look at an individual’s situation, this doesn’t happen until much later in the case. That “common issues” phase can take a long, long time. The controversy is whether it’s fair, post certification, to make all class members wait until that common issues phase wraps up before individual class members can settle their own claims.” http://business.financialpost.com/legal-post/the-opt-out-option-controversy

DO I NEED TO OPT OUT OF A CANADIAN CLASS ACTION?

Please consult with a Canadian class action hernia mesh lawyer whether you have to opt out of the class action. A Canada Ethicon Physiomesh™ hernia mesh attorney can explain your legal rights in Canada regarding whether you need to opt out of the Canadian Hernia mesh class action. A mesh recall is a serious matter and you should seek legal advice.

“Ontario is an “opt-out” jurisdiction. That means if a representative plaintiff succeeds in getting an action certified, potential members of the class are given a window of time during which they can declare that they want out. After this “opt-out” period expires, qualified members of the class action are in, whether they like it or not. Cue the Eagles … and welcome to the Hotel California.”  Opt out info

“Canadian jurisdictions have adopted opt-out regimes subject to one exception to be discussed.  The opt-out regime was adopted because of the widely held view that most class members are passive in the proceedings. Thus, to have an opt-in regime would have the effect of greatly diminishing the size of most classes in many instances because potential members would not take the necessary steps to have themselves included in the class or they might not have obtained actual notice at all. At the same time, opt-out regimes do permit class members who are actively opposed to the proceedings to exclude themselves if they are so inclined; few have done so. Class action

“Since the same witnesses and authorities will be relevant in each case, consolidating them makes sense. It also allows a Defendant to settle knowing that they will then not face individual claims later for the same thing. Once a class action is brought everyone who has a similar claim becomes a member of the class and subject to the findings in the class action lawsuit unless they specifically choose to opt out of the class action so they can bring their own claim.” http://adrworks.com/class-action-lawsuit/

CLASS ACTIONS IN CANADA

“Most class action claims settle and all settlements must be approved by the court and found to be in the best interests of the members of the class who are claiming. Individual class members may give input to the court when a settlement is proposed. This may include opposing the settlement especially if they would not benefit from it or if they believe the compensation is not adequate. Once a settlement is approved by the court people who are entitled then file claims which are assessed by a claims administrator in accordance with the settlement agreement. Once all claims are assessed it can be determined how much any person will receive as compensation. It may still take a long time from settlement to payment as many of our clients have experienced with the Vioxx case which settled with an agreement in January 2012, with court approval given in September 2012 and claims still being assessed almost to the end of 2015. Payment of those claims is now expected early in 2016.” http://adrworks.com/class-action-lawsuit/

Referring to transvaginal tape litigation, “Matthew Baer, a lawyer with the Siskinds Law firm in Ontario tells MDND they don’t have Multidistrict litigation in Canada, instead a person can file an individual claim or join a class action. In Canada, we file on behalf of one person and get that certified as it applies to everyone else. The individual issues will be sorted out down the road. It can take two years to be certified and we don’t get access to discovery until the case is certified. It is only after the class is certified that a Canadian law firm can move ahead on discovery getting documents from the other side.  As the case proceeds individual are brought forward to represent the class like a mini-trial.” http://www.meshmedicaldevicenewsdesk.com/canadian-courts-take-aim-at-ethicon/

WHAT ARE THE COMPLICATIONS OF MESH REJECTION

According to CLG.org, “The alleged injuries, conditions and complications suffered due to hernia mesh products include, but are not limited to:

– Hernia recurrence – Chronic pain – Mesh contraction – Mesh migration – Scarring – Adhesions – Infection and abscess formation – Pain with sex – Testicle removal – Bleeding – Intestinal blockage – Fistulas – Hematomas – Seromas – Liver abnormalities – Perforations – Bowel obstructions – Dental problems – Autoimmune disorders” https://www.clg.org/Class-Action/List-of-Class-Actions/Hernia-Mesh-Injury-Canadian-Class-Action

*** The U.S. Judicial Panel on Multidistrict Litigation (JPML) ordered that all Ethicon Psyiomesh hernia mesh causes of action are transferred to the Northern District of Georgia. “IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside the Northern District of Georgia are transferred to the Northern District of Georgia and, with the consent of that court, assigned to the Honorable Richard W. Story for coordinated or consolidated pretrial proceedings.” Transfer order

The Court reasoned that,“We are also not persuaded that informal coordination is a practicable solution here. Almost 70 actions are pending in 36 district courts, and dozens of law firms are involved in this litigation. Section 1407 centralization will place all actions before one judge who can structure pretrial proceedings to enhance efficiency and more effectively minimize overlap.” Id. ” Centralization will eliminate duplicative discovery; prevent inconsistent pretrial rulings; and conserve the resources of the parties, their counsel, and the judiciary.” Id.

THE RECEIPT OF SUCH HERNIA MESH INFORMATION DOES NOT CONSTITUTE, AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN SLEPKOW SLEPKOW & ASSOCIATES INC. AND THE READER OR VISITOR. IN THE EVENT THAT ANY INFORMATION ON THIS WEBSITE DOES NOT FULLY CONFORM TO REGULATIONS, LAWS OR CASE LAW IN ANY JURISDICTION, THIS LAW FIRM WILL NOT ACCEPT SUCH CLIENTS.. IN CERTAIN STATES THIS HERNIA MESH ATTORNEY BLOG MAY BE DEEMED ATTORNEY ADVERTISING. WE AT SLEPKOW SLEPKOW ASSOCIATE’S INC..HAVE MADE EVERY EFFORT TO COMPLY WITH ALL ADVERTISING LAWS AND RULES. THE RHODE ISLAND SUPREME COURT LICENSES ALL LAWYERS AND ATTORNEYS IN THE GENERAL PRACTICE OF LAW, BUT DOES NOT LICENSE OR CERTIFY ANY LAWYER / ATTORNEY AS AN EXPERT OR SPECIALIST IN ANY FIELD OF PRACTICE. WHILE THIS FIRM MAINTAINS JOINT RESPONSIBILITY, MOST CASES OF THIS TYPE ARE REFERRED TO OTHER ATTORNEYS FOR PRINCIPLE RESPONSIBILITY. David Slepkow is not licensed to practice law in Canada. This website does not constitute legal advice in Canada. David Slepkow is not an Ethicon Physiomesh™ Class Action lawyer in Canada.

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Issuing vs. Posting a Certificate of Substantial Performance under the Builders’ Lien Act

In a recent Alberta Court of Appeal decision, the court had to determine the different consequences that may arise from the Builders’ Lien Act’s Certificate of Substantial Performance issuance and posting requirements.

What Happened?

In July 2014, a tank truck services company (“truck company”) entered into a contract with a construction company to build a building under which the construction company was to be paid approximately $5.1 million. In March 2015, the construction company sub-contracted with a plumbing and heating company (“plumbing company”) to perform some of the work.

On January 25, 2016, the construction company issued a Certificate of Substantial Performance (CSP) for the work in question. However, there was conflicting evidence as to whether and when the CSP was posted at this worksite.

The plumbing company registered a lien against the title of the land in the amount of $111,146 on March 11, 2016, which was 46 days after the CSP issued.

The truck company alleged that the lien was filed one day after the expiry of the time period during which it was obliged to retain a major lien fund on the project and that the major lien fund was paid out by the time the lien was filed so that there was nothing against which it could attach. The truck company declined to pay any of the money the construction company owed to the plumbing company, arguing that its lien was ineffective because it was out of time.

On August 10, 2016, the plumbing company filed a Statement of Claim in which it alleged outstanding invoices to the construction for work done that had not been paid.

Lower Court Decision

On December 15, 2016 a chambers judge granted a without prejudice consent order directing that upon security in the amount of $122,260 (being the amount of the plumbing company’s lien of $111,146.03, plus 10% for costs) being paid into court, the lien would be removed, with the right to bring a further application to determine the proper value of the lien.

In November 2017, the truck company unsuccessfully applied to the same chambers judge to have the security reduced to $8,100.

The chambers judge concluded that he did not have sufficient evidence before him to resolve the entire dispute. He agreed that if the lien period started to run from the date the CSP was issued rather than the date it was posted, then the date of posting was irrelevant. He nonetheless declined to decide the issue on a summary basis because if he determined that the 45 day time limit ran only from the date of posting, there remained a factual issue of whether the posting actually occurred and there was no evidence before him to allow him to determine whether and when the CSP was posted.

The truck company appealed.

The Law

The court explained that  s. 20(1) of the Builders’ Lien Act (the “BLA”) requires a CSP to be posted on a worksite within three days after it has been issued.

Additionally, s. 18(1) of the BLA obliges an owner to create and retain a “major” lien fund for a minimum period of 45 days from the date of the issuance of a CSP, after which it may pay the monies in that fund to the contractor if no lien has been filed. A major lien fund is to contain a minimum of 10% of the value of the work actually done and materials actually supplied prior to the issuance of the CSP. Section 18(2) provides that the fund also contains any additional monies the owner owed the contractor, but had not yet paid to it as of the date of the filing of a lien.

Finally, s. 23 of the BLA provides for the creation of a minor lien fund which consists of a minimum of 10% of the value of the work actually done or materials supplied after the CSP was issued.

Court of Appeal Decision

The court identified one of the main issues as whether the 45 day period within which a party must register a lien starts to run on the date of issuance of the CSP or the date of posting of the CSP.

The plumbing company argued that the 45 day lien period ran from the date of the posting of the CSP. It submitted that the obligation to post an issued CSP created by s. 20(1) of the BLA should be interpreted in this fashion because such an interpretation is required to allow suppliers and tradespersons to know that the 45 day period has started to run. Otherwise, their right to file liens and obtain security for indebtedness cannot effectively operate.

However, after reviewing the numerous relevant provisions in the BLA, the court concluded:

“The [provisions] from the BLA together expressly provide that the 45 day lien period runs from the date of the issuance of the CSP, not the date of its posting on the jobsite.”

The court found that s. 20(2) creates a separate remedy from a claim against the major lien fund as a result of a failure to post, but does not also create, after the fact, a right to payment of its debt by the owner as a result of its release of the lien fund where no lien has been filed. Instead, where a failure to ever post the certificate of substantial performance on the jobsite deprived sub-contractors of knowing when and if the 45 day period had begun to run, the remedy of those subcontractors lay only in seeking damages in a civil lawsuit from the party who issued that certificate.

The court concluded that, while the evidence before the chambers judge was that the certificate of substantial performance was issued January 25, 2016, the date of posting was disputed.

As a result of the fact that the chambers judge lacked evidence to make these necessary findings of fact, the court found that he was acting well within his area of discretion in concluding that he could not resolve this matter summarily. The appeal was therefore dismissed.

Get Advice

The knowledgeable Calgary construction lawyers and staff at DBH Law understand the complex risks of both multimillion-dollar and smaller construction projects and the expensive disputes that can arise when something goes wrong in all cases. We handle all elements of a construction relationship, including builders’ liens. We can proactively advise and help draft important documents such as contractor and subcontractor agreements and similar, to make expectations clear and eliminate as much risk as possible. We can also represent you in any litigation or other dispute resolution that may be needed if a dispute arises.

The team of professional and experienced construction lawyers at DBH Law have the experience and technical knowledge to provide you with the legal advice needed in the modern construction industry. We understand the number of moving pieces involved in construction projects and work tirelessly to resolve issues quickly. Contact us online or by phone at 403.252.9937 to discover how we can help you today.

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