Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m O c t O b e r 2 0 1 4 31 lot of people do it anonymously. It's one of the advantages of blogging or commenting on the Internet — there is a broader scope for anonymity." There are also lots of questions being raised around the traditional law and how it applies to claims related to new media — partly because Canada's Libel and Slander Act hasn't been updated in a long time and when it was written the Internet did not exist. For example, "In Ontario, with libel for a newspaper or television publication there are notice requirements — you must give notice within a certain period and if you don't, you are barred. There are lots of questions about the extent to which the notice requirements apply to Internet publications," says Radnoff. Jurisdiction is another issue and arose in the 2012 case of Breeden v. Black, which involved Conrad Black. In Breeden, the plaintiff commenced defamation actions in Ontario against the defendants, who were directors, advisers, and a vice presi- dent of a corporation headquartered in the United States. The Supreme Court of Canada was asked to determine whether Ontario had jurisdiction and ruled that generally, it would. "This means plaintiffs in Ontario can sue defendants in the U.S. for defamation," he says. LITIGATION • INVESTIGATIONS "B ig ticket litigation is on the rise in Eastern Canada," says Andre Roy, managing partner with Stikeman Elliott LLP in Montreal, referencing the Lac-Mégantic train disaster as one example where cross-border focused litigation has become more sophisticated. In part, this is due to U.S. clients coming to Canada. "A lot of our practice here is inter- nationally focused." There's also a great alignment of corpo- rate and litigation practices, says Roy, ref- erencing corporate activist cases. "Another area where you see litigation and corporate groups being put together is with corporate inquiries/investigations into corporations, we're seeing more of that," he says. A growing area in litigation crying out for lawyers with specialized knowledge is e-discovery. With the enormous amount of data now involved in litigation — just think about how many e-mails and elec- tronic documents you look at on an aver- age day — e-discovery is a complex and mostly misunderstood area of the law yet is often integral to the litigation process. It is not taught at law school and almost every e-discovery lawyer in Canada is self-taught through necessity, which is not efficient and can lead to serious mistakes. In a recent issue of Canadian Lawyer 4Students, e-discovery lawyer Dera Nevin pointed out it's an area that could be of great interest to budding lawyers because they've grown up understanding the complexity of technology but "a lot of people perhaps mistakenly misunder- stand e-discovery as an administrative [area] and not a legal area." She argures there is now enough jurisprudence, prac- tice, and commentary to ground aca- demic treatment of the subject beyond the occasional course. ESTATE & ELDER LAW N ot all practice areas are being influ- enced by technology. Kristine Anderson, a partner with Basman Smith LLP in Toronto has a broad civil/ commercial litigation practice that touches on condominium law but she does very little construction lien work anymore. She says she's in the middle of a "practice reboot" of sorts and wants to focus more on estate litigation, which she sees as a growth area. She's been practising law for 13 years and recently took stock of what she wants to do in the future. "I think this happens to a lot of general civil litigators," she says. "You start to lop off the things you don't really want to do. A long time ago, I lopped off personal injury. You're hop- ing at some point you develop a practice of work you enjoy that is also relevant." About a year ago she thought her practice wasn't developing as well as she would like it to. She tried to look at areas of law that would be evolving. One of those areas was estate litigation. She had done some cases in the past and found it to be a nice bal- ance with commercial litigation because estate litigation is more "emotional." "Why I think it's a growth area is because we have an aging population in Canada and things like guardianship applications, dis- putes over powers of attorney and also will challenges — the typical things you associ- ate with estate litigation," says Anderson. "I think it's also a good growth area for a firm of our size with the availability of the other service areas we have." Anderson also has her eye on the area of elder law. She says there are lawyers who feel civil litigation is a dying field, in part due to costs driving some to seek alternatives to litiga- tion, but she feels there is saturation in the market. "There's a bigger pool of lawyers for those who are litigating," she says. "What I think is happening is that traditional civil litigation is dying but I think there is growth opportunity as well and the ability to grow depends on whether you are able to think outside the box and provide more cost effective scenarios for your clients." She's decided to take the approach that she wants to be her client's resource before the matter gets to the point of litigation — resurrecting the relationship of "general counsel" with a client where she becomes their adviser on legal and business issues in a legal framework. "The growth that could happen in civil litigation is more of an intel- lectual shift," says Anderson. "There are also people out there needing help doing disputes." INTERNATIONAL RISK MANAGEMENT M anaging corporate risk interna- tionally is an area of law Marc Philibert, managing partner of Davis LLP in Montreal, says is a "game changer." The firm has been focusing on the practice because it felt there was a growing demand from its client base. "I would say this is the emerging one in our firm because it has a very broad reach that seems to be extremely unknown in the legal and business community," he says. Due diligence in transactions is extreme- ly important especially in light of anti-cor- ruption laws in the U.S., U.K., and Canada. "We've been dormant in Canada for so many years but the Canadian government is ramping up its enforcement and we now have convictions. We decided to introduce very strong mapping in our projects where we look at where a company has offices, the type of operations, key suppliers, and where are they located? We make an assessment and risk report based on those things." For the most part lawyers in the M&A practice have stepped into this area of law based largely on their interest. Some come from litigation. ESTATE LITIGATION • INTERNATIONAL RISK MANAGEMENT ELECTRONIC COMMERCE • ENTERTAINMENT • GAMING LAW

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