Nickle on “The New Rules: How To Use Them & What You Need To Know”

On Wednesday, November 24, 2010, the Canadian Defence Lawyers hosted a well-attended half day conference on the above topic. Susan Nickle spoke on the topic of “Discovery”, covering both the production of electronically stored information and proportionality. The latter topic found its way into almost all of the presentations, and sparked a lot of interest in the room.

The focus on proportionality was due in part to the presence of the Honourable Justice Coulter Osborne (author of the Ontario Civil Justice Reform Report), and the Honourable Justice Colin Campbell (Ontario Superior Court of Justice). Both judges have a profound interest in the concept, especially as it relates to increasing access to justice for litigants.

By the end of the conference, proportionality had been covered from three different angles: 1) as a policy framework for change; 2) as an academic doctrine; and, 3) as a practical construct (how proportionality is playing out in practice).

The presentations yielded some interesting discussion points about proportionality:


• The concept of proportionality has caused a “cultural revolution” in litigation and it is here to stay.
• Proportionality is not synonymous with “efficiency”.
• Time and cost, while important factors to consider, are not more significant than the nature and scope of the litigation, including the importance and complexity of the legal issues at stake.
• Proportionality includes the notion that missing the proverbial “smoking gun” is a chance worth taking.

​All presenters agreed that further cultural shifts are required in the legal profession to ensure that trials (of meaningful legal issues) continue to be held and adjudicated. One presenter even advanced proportionality as a “new element of professionalism” for lawyers.