Digital and online research databases and services have employed various forms of artificial intelligence technology for many years. At OnPoint, we are closely monitoring developments in generative AI as a potential tool to assist in conducting Canadian legal research. Given the high levels of skill, judgment, and common sense required in legal analysis and writing, particularly in matters involving any degree of complexity, we continue at present to rely on our experienced research lawyers in our delivery of OnPoint’s many services. We look forward to supplementing our existing research tools with generative AI, where appropriate, when fully satisfied that the emerging technology meets our high standards of accuracy, reliability, and professionalism.
“…generative AI is still no substitute for the professional expertise that the justice system requires of lawyers. Competence in the selection and use of any technology tools, including those powered by AI, is critical. The integrity of the justice system requires no less.”
~The Honourable Justice D.M. Masuhara, at para 46 of Zhang v. Chen, 2024 BSCS 284
On the flip side of the Podcast coin
As a big fan of podcasts, it was great to be on one! Thanks to Shelley Appleby-Ostroff for having me on XL Legal Podcast to chat about OnPoint. https://podcasts.apple.com/ca/podcast/outsourcing-legal-research-drafting-with-sarah-picciotto/id1510039293?i=1000558123621
We are hiring!
Love research and drafting? Consider joining OnPoint.…
March issues of BC and Alberta Take Five Now Available
In the March BC Take Five issue, we have summarized what we think are the five most interesting cases from the BCCA in February. We are grateful to this month’s counsel who generously contributed counsel comments: Cora Wilson; Mike Wagner; James Kondopulos; Frederick Wynne; Jeff Langlois; and Georgialee Lang
To read this month’s newsletter, please click BC Take Five March 2019
In the March Alberta Take Five issue, we have summarized what we think are the five most interesting cases from the BCCA in February. Thank you to Kent Jesse and Timothy Byron for contributing their comments.
To read this issue, please click here: Alberta Take Five March 2019
What We Are Working On This Week
Here is a sample of what we are working on this week:
Research and Drafting- Memo and Pleadings
Our client had taken over a file shortly before the scheduled trial involving a number of intertwined common-law issues and a complex array of remedies. We produced (1) a list of relevant cases for the purposes of trial brief preparation; (2) a comprehensive analysis, in the form of a long memorandum, of all issues at play with the relevant case law identified and summarized; and (3) drafted the “Legal Basis” portion for a proposed Amended Notice of Claim.
Stay Current on Wills and Estates
Our latest Research Bites has just been posted:
Staying Up to Date on Wills and Estates
Interested in staying current on Wills and Estates matters? Hull & Hull LLP, a law firm out of Ontario, has an excellent blog with short, regular updates on substantive and procedural issues. You can subscribe and receive emails of posts to keep up to date on developments in the field. Visit https://hullandhull.com/blog/.
Research Bite #2- Researching the Charter
Charterpedia (http://www.justice.gc.ca/eng/csj-sjc/rfc-dlc/ccrf-ccdl/check/index.html) is a great starting point for considering claims involving the Charter of Rights and Freedoms. It provides information about the purpose of each section of the Charter, the analysis or test developed through case law in respect of the section, and any particular considerations related to it. Each Charterpedia entry cites relevant law, and citations to Supreme Court of Canada decisions are hyperlinked whenever possible.
Research Bites
In this new feature, will be providing a single ‘morsel’ of legal research advice from time to time.
Tips might include comparing or introducing research sources, describing helpful ways to use those sources, or other tricks of the trade. We want these tips to be useful, so please- pass them on, and let us know if you have any ideas to make future tips more useful, or if you have any research tips of your own.
Tip One: “But What Did That Statute Used to Say?”
Often we need to know what a statute said at a particular point in time. One quick way to look up former version of a statute is through BC Laws’ online “Archived Statute Consolidations”, available on the BC Laws’ homepage (www.bclaws.ca). This tool allows you to quickly look at a statute at various points between 1991 and today. While this doesn’t guarantee that you have the exact wording on a particular day (though other parts of BC Laws can), it is one of the fastest ways to see how a statute has changed over time. There is even one for regulations, going back to 2003.
BCCA Registrar Confirms That OnPoint is “Far More Than Simply Legal Research”
In Hokhold v. Gerbrandt, 2016 BCCA 5, Court of Appeal Registrar Outerbridge tackled the appropriate treatment of outsourced legal work when assessing costs. The decision confirms that OnPoint Legal Research provides much more than just research to its clients and that, by delegating to OnPoint, lawyers are able to attain appropriate and reasonable legal fees for their clients.
The appellant, Mr. Hokhold, was a self-represented litigant in a contentious family law appeal. Larry Kahn, QC, an experienced family law litigator, represented the respondent, Ms. Gerbrandt. In the course of the appeal preparations, Mr. Hokhold continued to breach court orders, leading the court to dismiss his appeal after significant expense had been incurred by Ms. Gerbrandt. The court awarded Ms. Gerbrandt increased costs, to be assessed by the Registrar.
Registrar Outerbridge set the increased costs at 42.5% of Ms. Gerbrandt’s actual legal costs. While these legal costs obviously included Mr. Kahn’s own fees, it raised the question of how to treat fees for outsourced legal work. As he often does, Mr. Kahn hired OnPoint Legal Research to perform some of the appeal work. This included factum drafting and preparation of the appeal books. Mr. Kahn explained that he used OnPoint at least in part because OnPoint lawyers, who have little to no overhead, bill out at a lower hourly rate than associates, thus saving his client legal fees.
As an aside, Mr. Kahn reasonably bills OnPoint’s fees to his clients at rates commensurate with those of his own firm’s associates so as to fairly profit on the OnPoint work that he adopts for his files. As such, the OnPoint rates that were listed on the bills before Registrar Outerbridge were actually higher than those charged by OnPoint to its clients. Even with this markup, Registrar Outerbridge still determined that the fees were at or below market rates.
Registrar Outerbridge reviewed OnPoint’s bill, and noted that OnPoint’s lawyers provide “far more” than just legal research. Registrar Outerbridge stated:
[44] A review of the bill shows the work done was far more than simply legal research. Entries for OnPoint’s lawyers included review of correspondence, preparation of the appeal book, revision of the factum, conferences and emails, as well as the preparation of affidavit material. Though such activities often complement research done, they are services that might otherwise be provided by an associate lawyer.
As OnPoint’s services were essentially those of an associate, Registrar Outerbridge held that OnPoint’s fees should be treated in the same fashion as associate fees when assessing costs. In the context of increased or special costs, this means the entire bill should be included in the calculation of a cost award before applying any applicable reduction.
Registrar Outerbridge also recognized the importance of delegating work to outside lawyers as a manner of limiting legal fees. As Registrar Outerbridge noted, OnPoint’s hourly rates are at or below market rates for lawyers with similar levels of experience. Accordingly, Registrar Outerbridge concluded that Mr. Kahn’s decision to hire OnPoint was an example of “appropriately delegated” work that cut down legal fees. This in turn assisted in demonstrating that the overall bill was reasonable.
The Take Away
Gerbrandt demonstrates the value of hiring OnPoint to help with your files. OnPoint’s fees are below the market rate for comparable associates, and OnPoint’s services run the full range of what you expect from any experienced lawyer at your firm. This not only saves your clients money, but also can support you in defending the reasonableness of your bill. Gerbrandt confirms that delegating work, whether it’s researching a legal issue or drafting a factum, can demonstrate that a lawyer is taking steps to keep costs within reason.
Featured New BCCA Case Summary, “Palmer v. Palmer, 2015 BCCA 438”
Every month, in our newsletter, Take Five, we feature what we consider to be the 5 most interesting cases from the B.C. Court of Appeal from the previous month. Sign up here to receive our complimentary newsletter each month. Here is a sneak peak of what is coming in our November issue…
AREAS OF LAW: Property law; Estate law; Certificate of pending litigation
~Even where a certificate of pending litigation is found to have been filed for improper reasons, the court may not find abuse of process if the property owner is not affected by it and does not take steps to have it removed.~
BACKGROUND: The Palmer parents gave properties with different values to each of their sons. To the Respondent Alistair Palmer they gave property on West 27th Avenue in Vancouver. He mortgaged this property and paid his parents $500,000. The parents gave property on French Street in Vancouver to the Respondent Gavin Palmer, who transferred the property into a company, caused the company to mortgage the property, and paid his parents $500,000. The Appellant, Iain Palmer, received property in Roberts Creek from the parents, and he granted an interest-free mortgage for $500,000 back to them, payable on the death of the last parent. The Appellant also received an interest-free loan of $100,000 from the parents, payable when he sold his home. In 2008 there were differences in the properties’ values, and the parties engaged in discussions regarding equalization. A binding agreement was reached at a meeting held with the father in November 2009, but disagreement among the siblings continued. On May 18, 2012, the Respondents filed a notice of civil claim and filed a certificate of pending litigation (“CPL”) against the Appellant’s Robert’s Creek property. On February 5, 2013 the Appellant demanded that the CPL be removed, and on March 7, 2013 he counterclaimed seeking damages arising out of the filing of the CPL. The Appellant also delivered a settlement proposal to the Respondents on February 8, 2013. In proceedings brought to remove the Appellant as an executor, a consent order was made on April 18, 2013. A letter of the same date included a requirement that the CPL be discharged. The CPL was discharged on May 22, 2013. A second consent order, made on January 7, 2014, provided that the Respondents would be at liberty to argue in the action that when the court is determining the issue of equalization between the parties, the Appellant should be required to pay interest on the Roberts Creek mortgage. The trial proceeded on May 5, 2014. Counsel for the Respondents advised the trial judge that the only issues for determination were the scope of the equalization and interest. The trial judge concluded that the Appellant had benefitted from not paying interest at 3% on the mortgage and loan, and that this should be taken into account in the equalization. She dismissed the Appellant’s counterclaim for abuse of process and costs were awarded to the Respondents at Scale B.
APPELLATE DECISION: The appeal was allowed in part. The Appellant argued that the trial judge erred in finding that the parties had agreed she could take interest into account in the equalization process, and that this agreement was embodied in the second consent order. He also contended that the judge erred in dismissing his counterclaim and in awarding costs to the Respondents rather than special costs to him. In the alternative, he argued that he should be awarded costs on Scale B to February 8, 2013 when he made the offer to settle and double costs thereafter, or costs on Scale C. The Respondents took the position that the judge did not err in taking into account interest as a benefit that flowed to the Appellant, or in dismissing his counterclaim based on the finding that there was a legitimate reason for filing the CPL. The Court of Appeal found that there did not appear to be any legal basis on which the judge granted the declaration sought by the Respondents. The equalization process was governed by a binding agreement reached at the meeting held between the parties and their father, and interest or simple benefit was not included. It was also clear that the Appellant had taken the position that interest could not be taken into account in the equalization process. The Court declared that the Appellant was obliged to pay interest to the estate at 1%, not 3%, on the loan and his mortgage from February 19, 2012, which was the date of the last parent’s death. The interest was not to be taken into account in the equalization process. With respect to the counterclaim, the Court found that it was clear the CPL should not have been filed. The Respondents sued mainly to collect debts owed by the Appellant to the parents’ estate, and it was a stretch to suggest there was a sustainable claim for an interest in land. At the same time, the Appellant did not take steps to remove the CPL. He did not challenge it directly in his initial response, but demanded its removal eight months later. The Court questioned whether the CPL affected the Appellant, and noted that the Appellant did not challenge the Respondents’ standing to file the CPL until March 2013. The claim for abuse of process was not made out on the facts of the case. With respect to costs, the Court saw no reason to interfere with the judge’s exercise of discretion in refusing to order special costs.