The Lexpert Guides to the Leading US/Canada Cross-Border Corporate and Litigation Lawyers in Canada profiles leading business lawyers and features articles for attorneys and in-house counsel in the US about business law issues in Canada.
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LITIGATION BOUNDARIES sponse to a significant interjurisdictional commercial case" (see Nortel Networks Corporation (Re), 2013 ONCA 427 at para. 5). In the corresponding US decision, Judge Gross noted that there is the possibility that each court will arrive at different allocations, but that difficulty should not be a reason for a court with jurisdiction, detailed knowledge of the case and the means to preside over that case to abandon its authority. It would be easier, but improper, for the courts to abdicate their responsibility by sending the parties to arbitration without any justification. Judge Gross was confident that the parties would assist the courts in minimizing any practical problems (see Nortel Networks, Inc., et al. (Re), Case No 09-10138 (KG) at page 8). As with prior matters, the mechanics of the Nortel trial hearings will be governed by the Cross-Border Protocol. An additional "Allocation Protocol" approved by both courts sets out the procedure for determining the allocation of sale proceeds among the debtors. Among other things, the Allocation Protocol delineates rules concerning pleadings, fact discovery, experts, joint conferences, the content of joint hearings, written submissions, decisions of the courts and appeals. In addition to the Allocation Protocol, Justice Morawetz and Judge Gross each approved a "Litigation Timetable and Discovery Plan." Together, the Litigation Timetable and Discovery Plan will move the parties from the filings of pleadings to trial. The Litigation Timetable imposes deadlines upon the parties with respect to all procedural steps in the litigation, while the Discovery Plan sets out the rules regard- ing, among other things: the applicable procedural regime; the scope of documentary discovery; oral examinations or depositions; and the general procedure applicable to all oral examinations/depositions. The Discovery Plan also helps to bridge the gap between Canadian and American rules of civil procedure. In some cases the Discovery Plan creates a hybrid rule, while in others each court will follow its domestic procedure. For example, in Ontario, unlike the US, discovery witnesses are not usually required to answer a question that is subject to an objection until there has been a ruling from a court directing the witness to do so. Under the Discovery Plan, questions that are objected to on grounds other than privilege will be answered under reserve of the objections. Each court retains its independent jurisdiction and the usual routes of appeal still apply. As Chief Justice Winkler warned in his opening remarks before beginning mediation, there is a very real potential for the appeal process to become a quagmire. Therefore, until the trial is completed and appeals (if any) are resolved, it will be impossible to say whether the Nortel trial has been a success. But, while their ultimate success remains to be seen, as with Parsons and IMAX, the judicial innovations on display signal courts' willingness and creativity to deal with jurisdictional issues in a manner that challenges the traditional approach in favor of something that will help the legal system keep up with the speed and scope of global commerce. THE AUTHORS WOULD LIKE TO THANK PATRICK CORNEY FOR HIS CONTRIBUTION TO THIS ARTICLE. Eliot N. Kolers Stikeman Elliott LLP Tel: (416) 869-5637 ekolers@stikeman.com Eliot Kolers is a partner in the Litigation Group of the Toronto office of Stikeman Elliott whose practice concentrates on corporate commercial litigation, competition litigation and securities litigation. He has particular expertise with regard to class actions, regulatory proceedings, injunctions, contracts and shareholder disputes and complex civil matters. Kolers is currently the Chair of the Canadian Bar Association's Competition Law Section's Class Actions and Private Enforcement Committee. Maria Konyukhova Stikeman Elliott LLP Tel: (416) 869-5230 mkonyukhova@stikeman.com 48 | LEXPERT • December 2013 | www.lexpert.ca Maria Konyukhova is a litigation associate in Stikeman Elliott's Toronto office who practices in the area of insolvency law and represents debtors, court-appointed monitors, court officers, secured lenders and purchasers. She frequently appears in Commercial List matters before the Ontario Superior Court of Justice and the Court of Appeal, focusing on Companies' Creditors Arrangement Act proceedings, court-appointed receiverships and bankruptcies.