Canadian Lawyer InHouse

MAY/JUNE 2018 22 INHOUSE TDSB building litigation strength in-house F or some time, Leola Pon has quietly wished she had the ability to proactively litigate more files in-house at the Toronto District School Board. Last year, the right litigator walked through her door to make it happen. In what could be a landmark case, the school board is going after a provincial regulation that prevents it from collecting millions in educational development charges to buy land for new schools where there is a growing population of students. The board filed an application in the Ontario Superior Court of Justice at the end of February for a judicial review, arguing the regulation be declared "constitutionally inoperative." The regulation says boards of education with available school space can't qualify to the money developers pay when they build new residential housing. "Our former associate director Carla Kisko [now retired] was always thinking about EDCs and why we can't access them," says Leola Pon, general counsel at the TDSB. "It was always one of those things we could never get and too big of an issue for us to even challenge it. We never really had the thrust to take it one step further," she says. But when Pon was looking to fill some vacancies in her team recently, she converted one spot to a senior litigation counsel and was intending to hire a labour and employment lawyer when she interviewed Patrick Cotter, who was looking to leave private practice after a long career as a civil litigator. Cotter started his career at litigation boutique Genest Murray LLP, which eventually merged with Heenan Blaikie LLP, where he was for six years, then moved to Sim Ashton & McKay LLP Hughes for 10 years. He went to the TDSB in March of last year. "Initially, the job was offered to someone who was a labour and employment litigator, but Pat did such an amazing job in his interview and I realized he could do civil litigation and labour arbitrations," she says. On his own initiative, Cotter started reading into EDCs and told Pon, "I think we have a case." "We started talking about it and I said I don't want this to be a litigation factory but let's make use of his litigation skills," she says. Cotter says going in-house has given him the opportunity to do interesting work without worrying constantly about getting to the next file. "What was great about coming in-house is the freedom to do something interesting, creative and [that] will have [a] huge impact — we're talking $300 million to $400 million over the next 15 years over the life of the bylaw if it keeps getting renewed and could easily be a billion-dollar issue," he says. The flipside of it is that, in a case like this, Pon and Cotter don't have to address why they are spending potentially hundreds of thousands of dollars on legal fees challenging the province. The board always saw it as a political fight and one it didn't want to appear to be spending taxpayer dollars attacking. In taking on the case, the TDSB is effectively acting as representative of all the school boards in Ontario on the issue. Right now, only 27 of 71 boards are collecting EDCs. Even of the 27 collecting, most would not re-qualify based on the regulation that exists. "We don't want to be seen to be using public money to essentially be going against the government. This helps when some people may question why we are spending the time and money on this, but at the same time, it means so much. It's something the school board has been wanting to fight but never got past a certain point," says Pon. While she is limited in terms of adding staff to her team, Pon would like to expand her litigation team. "I certainly want to bring more litigators into the office because I think that's where we can save a lot more money," she says. "If you want to attract talented lawyers, you still have to be able to pay so it's still an issue that I'm trying to sort out, but I'm lucky that for Patrick the salary wasn't the biggest attractor but the ability to do good quality, interesting work and having a good atmosphere in the legal team." IH able to show and regularly report how much money we're saving them by handling the files in-house," says Evans. The case management system generates data every month on how the team is per- forming. "I report the benefits we save the company by files going to us instead of to ex- ternal counsel and that's based on the billing practices of our external counsel," says Fur- long. "I am able to report how much money we are saving. While 2016 was our transfor- mation year, 2017 was the year we started reporting benefits and the year we were able to show our trial capability. We did things in 2017 that I don't think other in-house de- partments have ever done. We ran seven tri- als with great success, we did summary judg- ment motions, we did an appeal and we were successful there as well." Last year, Vanessa Tanner, one of Aviva Trial Lawyers' senior counsel, did three tri- als in a 12-month period — two back to back. She worked 16 hours a day and moved up to North Bay to do it. "She took a young lawyer with her and put teeth to the name of Aviva Trial Lawyers. She won it and Aviva gave her a 'living legend' award," says Furlong. Tanner won that case, it was appealed and, in February, the company also won the appeal of that case. "I've done a lot of reflection on different types of benefits we provide and they go be- yond money because we have a partnership with the company and there are things we do that our external lawyers are not provided the opportunity to do because we're inside the doors," she says. Aviva has adopted a "principled approach" to its litigation, says Evans. "This means that, in motor vehicle personal injury cases, where we feel the plaintiff's injuries don't meet the legislative 'threshold', we will not make a 'nuisance payment' to make the case goes away. Likewise, in a slip-and-fall case where we feel our insured has met the stan- dard of care, we will fight for them all the way if necessary." At the end of January, Aviva was in the news when it lost a case in which it had taken that position, but it was not defended by the Aviva Trial Lawyers team, it was handled by an external partner law firm. The case arose in February 2009, when the car Maria Persampieri, 84, was in was rear-ended. Persampieri initially sued for LEOLA PON PATRICK COTTER

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