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Posts from the ‘Judges’ Category

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

Ontario Superior Court Justice Pazaratz Speaks Out Against Legal Aid Squandering – Again

A recent Family law decision by Justice Pazaratz of the Ontario Superior Court of Justice caused a stir this past few weeks. In his written endorsement of a consent order, he bluntly stated that the case before him should not have been dragged out so long, and should not have been funded by public coffers so indiscriminately. He chastised both Legal Aid Ontario and the parties themselves for “squandering scarce judicial and community resources”, writing:

After confirming that Legal Aid was paying for all of this, I couldn’t help but ask some obvious questions:

a. Is it fair for people who have never paid any taxes to be so cavalier about how they spend other people’s money?

b. Is it fair that Legal Aid has decided to fund this easily resolvable case, when every day I see people with much more serious and complex problems who have been denied any help by Legal Aid?

c. Is it fair that more important cases, many involving the well-being of children, couldn’t be dealt with on March 9, 2017 because our court was required to devote one of our limited timeslots to this case?

The balance of the decision has much the same no-holds-barred tone. And while his comments might be unusually critical and frank for a judge, this isn’t the first time Justice Pazaratz has spoken out this way.

In several prior cases he provided similar disapproval of profligate spending on needless motions and other procedural wrangling — whether paid by from the public purse or otherwise.

For example, in Scipione v Scipione, he railed against Family law litigants who run up legal costs, and then ask the losing party to pay them. In explaining that costs rulings are to be directed by an “overall sense of reasonableness and fairness”, he added that “The Rules [of court] do not require the court to allow the successful party to demand a blank cheque for their costs.”

Next, displaying perhaps a little more creative flair, in Izyuk v Bilousov, Justice Pazaratz wrote:

The popular beverage has a catchy slogan: “Red Bull gives you wings.”

But at this costs hearing, the self-represented Respondent father suggested a wry variation:  “Legal Aid gives you wings.”

He now seeks costs in relation to a 1- day custody trial … He won; sole custody.  The Applicant mother was represented by counsel.  Her poor finances qualified her for Legal Aid.   Now she says those same poor finances should excuse her from paying costs.

The Respondent asks a valid question:   Does she have wings?   Can she do whatever she wants in court, without ever worrying about fees – hers or anyone else’s?

Justice Pazaratz ultimately made the following ruling:

In the case at bar, the Applicant conducted herself as if her Legal Aid certificate amounted to a blank cheque – unlimited resources which most unrepresented Respondents would be hard-pressed to match.  A scheduled 3-4 day trial turned into 17 days, largely because the Applicant fought every issue and pursued every dubious allegation, to the bitter end.  She appeared to make up evidence and allegations as she went along.  She defied court orders directly impacting on the child, even while the trial was underway. There have to be consequences.  Either we sanction this irresponsible and destructive behaviour, or we invite more of the same.

Encouraging settlement and discouraging inappropriate behaviour by litigants is important in all litigation – but particularly in family law, and most particularly in custody cases.  No litigant should perceive they have “wings” – the ability to say or do anything they want in court, without consequences.

Returning to the most recent of decision that is now under controversy: It’s a 2017 case called Abdulaali Salih in which Justice Pazaratz simply turns up the volume a little, on what has apparently become a recurring theme with him.

To give his latest comments context: The divorcing husband and wife, both of whom had immigrated from Iraq and had never worked in Canada, were both monthly recipients of government money from the Ontario Disability Support Program. Their litigation was being funded by Legal Aid Ontario, and since they had “no children. No jobs. No income. No property. Nothing to divide.”, he added that it should be “a simple case”.

Yet the couple had repeatedly returned to court to settle even minor issues, and seemed to have no impetus to slow down the steady stream of hearings between them. In expressing his exasperation at the needless dissipation of public money, Justice Pazaratz wrote:

At the March 9, 2017 attendance, apart from paying for the lawyers, taxpayers also had to pay for the following government employees to be present in Courtroom #5 to deal with this matter:

 a. A Court Services Officer.

 b. A Court Reporter.

 c. A Court Registrar.

 d. And me.

I have no idea how much the other players in the courtroom get paid. But as a Superior Court Judge I receive approximately $308,600.00 per year. So you can see that not even counting overhead charges and administrative staff in the building, every hour of court time is hugely expensive.

Many taxpayers can’t afford their own lawyers, and don’t qualify for free assistance through Legal Aid. So they end up representing themselves in court. Or facing financial reality and settling without going to court.

But when you pay no taxes and Legal Aid gives you a free lawyer, there’s no incentive to be sensible. Why worry about the cost when some unsuspecting taxpayer out there is footing the bill?

Clearly Justice Pazaratz has an axe to grind. Does he go too far? Or is he right?

For the full text of the decisions, see:

Scipione v Scipione, 2015 ONSC 5982 (CanLII)

Izyuk v Bilousov, 2011 ONSC 7476 (CanLII)

Abdulaali v Salih, 2017 ONSC 1609 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

 

Can a Judge Go “Off the Map” When Making a Ruling?

Can a Judge Go “Off the Map” When Making a Ruling?

In an interesting recent Court of Appeal case named Gomez v. McHale, a question arose as to whether a motion judge, asked to award an amount for equalization of net family property, was constrained to award only the exact dollar amount proposed by the spouse who succeeds on the motion, or whether the judge was entitled to craft a different monetary award that made sense in the circumstances.

The couple’s relationship had lasted about five years. Under s. 5(6) of the Ontario Family Law Act, a court can award un unequal amount for equalization of net family property in cases where awarding an equal amount would be “unconscionable”, in light of various factors including the length of time the couple had lived together.

They both brought summary judgment motions against each other, with the wife asking for one of two things:

• A straightforward equalization of net family property, which would result in her receiving $268,000 (which we will call “Option 1”); or

• An unequal division, to the tune of four-fifths of that amount, which was $214,000 (“Option 2”).
The husband, in contrast, wanted the either of the wife’s claims – whether under Option 1 or Option 2 – to be dismissed outright by the court.

Ultimately, a court granted the wife a third Option – but one that neither of them had asked for. For various reasons related to the specific facts, the court ordered the wife to receive an equalization payment of $60,000.

The wife appealed, claiming that the motion judge had strayed from the available choices presented at the motion hearing. In particular, the wife contended that the judge’s only available choices were to pick either Option 1 or 2, or possibly to grant her partial judgment in some amount, and direct that the rest of the issues be sent on to be resolved at a full trial.

The Court of Appeal disagreed. As that Court wrote:

Put bluntly, this is not the way motions for summary judgment, especially duelling motions, work. The motion judge was entitled to consider all the evidence and then apply the relevant statutory provision, s. 5(6) of the FLA, and determine both whether an unequal division was appropriate and, if so, the quantum of the unequal division. He was not limited to choosing one of the two amounts proposed by the appellant and, if he was inclined to reject them, referring the question of quantum on to a trial. … He was not limited to choosing only one of the appellant’s alternative positions.

The wife also claimed that the judge had made an error by not following a mathematical formula for calculating the unequal division of net family property (using the actual period of cohabitation as a percentage of the five-year period specified in s. 5(6) of the Family Law Act). The court disagreed: While a mathematical approach might help the court in some cases, it did not have to be applied in every single one.

In the end, the Appeal Court concluded that the motion judge’s final amount of equalization, set at $60,000, was fair and reasonable in view of all the circumstances, which included the fact that the wife had not made any significant contributions to the home during the period of cohabitation and marriage.

For the full text of the decision, see:

Gomez v. McHale, 2016 ONCA 318 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Do Judges Need to Actually Give Reasons?

Do Judges Need to Actually Give Reasons?

For those of you “armchair lawyers” who like to follow real-life trials, watch TV crime shows, or even just read books by John Grisham, here’s an interesting question for you:

In law, can a litigant appeal a judicial ruling simply because the judge’s reasons were brief?

The answer is: Maybe.

The sparseness of the reasons given by the trial judge was among the grounds for appeal in the recent Ontario Court of Appeal decision in Filanovsky v. Filanovsky. A 45-year old woman had sued her parents for alleged physical and emotional abuse when she was a child, including violent blows to the face that left her with traumatic brain injuries.

After a 10-day trial in which the court considered evidence from the woman, her brother, various experts, and the parents themselves, the woman’s claims were dismissed.

She appealed and requested a new trial, with one of the grounds being that the judge failed to give adequate reasons to explain the reason her claim was dismissed.

The appeal court rejected this particular argument.

To begin with, the court conceded that prior decisions have established that a judge must give reasons:

1) to justify and explain the result;

2) to explain to the losing party why she lost;

3) to provide public accountability and to satisfy the public that justice has been done; and

4) to permit review by an appeal court.

However, the Appeal Court relied on another recent decision of its own called Dovbush v. Mouzitchka, where it had a chance to examine those requirements in detail, saying:

Trial judges are called upon to make difficult decisions, often in difficult circumstances. They preside as the particular dynamics of the trial unfold. Inadequate reasons therefore pose a particular challenge for appellate review.

On the one hand, as [Supreme Court of Canada justice] Rothstein J. noted in F.H. v. McDougall, … “an appeal court cannot intervene merely because it believes the trial judge did a poor job of expressing herself. Nor, is the failure to give adequate reasons a free-standing basis for appeal.”

However, the Appeal Court in Dovbush had pointed that in determining the issue of the reasons’ sufficiency,

…[I]t turns on the overarching principle of whether the reasons permit meaningful and effective appellate review. Appellate courts will take a contextual and functional approach to addressing whether reasons meet this standard. The exercise has been variously described as one of determining whether the reasons demonstrate: “the path taken by the trial judge through confused or conflicting evidence” … or that “the trial judge came to grips with the issues and explained sufficiently his … conclusions and the reasons and basis for them” … or, the “what” and the “why” of the result.

Returning to the Filanovsky case, the judge who dismissed the woman’s abuse claim against her parents had actually given lengthy reasons, in which she assessed credibility, analyzed all the witness’ evidence, and pointed out inconsistencies. The reasons as rendered by the judge did allow for a meaningful appellate review.

The woman had raised other grounds of appeal, and these were dismissed as well.

For the full text of the decisions, see:

Filanovsky v. Filanovsky, 2017 ONCA 28 (CanLII)

Dovbush v. Mouzitchka, 2016 ONCA 381 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com

Judge Orders Mother to Stop Putting Father’s E-mails in the Junk Folder, and Other Things

junk-folder

Judge Orders Mother to Stop Putting Father’s E-mails in the Junk Folder, and Other Things

We wrote recently about a decision in “When a Judge “Breaks Up” with a Squabbling Couple”, where a judge decided that the squabbling former spouses who were appearing before him in court would be better served if their matter was switched to a new judge, one who could view their disputes afresh and without regard to the regrettable back-story of acrimony.

That case involved another interesting feature: the judge issued a series of admonishments directing the couple on how to get along.

First, the judge cautioned them not to use the court process to try to strong-arm each other:

There is to be a minimum two years’ peace between these two parents during which they can practise their compromising skills … The litigation process is not to be used by one to either bully or seek control over the other.

Next, the judge ordered the couple to communicate by e-mail, and more to the point directed the mother to actually read the father’s correspondence:

I note in passing that the Mother must read the Father’s emails, as this is the mode I am ordering them to use to deal with all changes in parenting time in future. Her current methodology of putting them in her junk file in her computer is sheer nonsense, in my view, and must end immediately.

Finally, the judge gave the father pointed instructions on being mindful of the tone and frequency of his that correspondence to the mother:

The Father must, for his part, appreciate that his emails are to be polite and not bullying in content. Judges regularly get to read parents’ emails, and if they are wretched in content or overly frequent in transmission, judges can form negative opinions of their authors.

Is the judge on the right track with this very specific guidance and admonishment? Should more judges to this? What are your thoughts?

For the full text of the decision, see:

Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

When a Judge “Breaks Up” with a Squabbling Couple

judge-with-couple

When a Judge “Breaks Up” with a Squabbling Couple

The scenario was not atypical: The parents of a now four-year-old girl had spent the past several years since their separation making numerous trips to court to resolve various custody and access issues. Historically, these disputes had involved significant issues around custody and access, but lately had included clashes over more minor things like whether the girl was getting regular naps when with the father, and whether continued breastfeeding and co-sleeping with the mother was impacting her relationship with both of them.

Indeed, each parent’s complaints about the other sometimes drifted into the more petty and mundane: The mother, for instance, had complained that when the girl was on overnight visits with her father, she was distracted during their bedtime FaceTime sessions, because she had been allowed to watch cartoons immediately beforehand. In turn, the father had objected that the mother routinely sent his emails to her junk folder unread (which the judge decried as “sheer nonsense” which “must end immediately”).

Against the backdrop of these unresolved matters – and after making orders to specifically address those already before him – the judge essentially opted out of making any further rulings in the case between this particular couple. The judge wrote:

I believe the time has come for me to direct that I will not in future hear matters pertaining to these parties, unless there is some emergent situation and no other judge is available. I say this because I now have a real concern that rather than struggle to reach a fair compromise on issues, these parties, and particularly the Father, will elect to have someone who knows all about them resolve the issue. In a sense, I am a known quantity. I believe the time has come for these parties to face perhaps an unknown quantity, a new judge in this court, if they cannot, including with the help of, for example, a parenting coordinator, reach agreement themselves.
I think having to face a new judge who knows nothing about them will add a strong incentive or impetus to their resolving issues outside court, rather than litigating them before a known judge.

In other words, the judge decided that it was in everyone’s best interests, most especially that of the 4-year-old girl, that he step away from adjudicating on the dispute in order to give another judge a “fresh eye”, and to encourage the parties themselves to settled their differences without court interventions.

Was the judge’s idea a good one? What are your thoughts?

Z.S.R. v. R.S., 2016 BCPC 200 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

Custody Battle

Wise Words from an Ontario Judge: A Custody Trial “Speaks Volumes About the Parents”

In a decision from earlier this year called Jackson v. Mayerle, seasoned family court judge Mr. Justice Pazaratz began his judgment with these perceptive and disheartened-sounding comments:

1. Why would we need a 36-day custody trial where the basic facts are pretty straightforward?

a. One child. A delightful eight-year-old girl with minor academic issues but no special needs.

b. She loves both parents equally. She wants to spend as much time as possible with each of them.

c. Both parents are equally capable and dedicated to meeting all her needs.

d. But the parents can’t get along or communicate with one another. Not at all.

2. Not such a tough set of facts, really. Nothing we don’t see in family court every day.

3. So why did we need a 36 day trial?

4. Why did we need 20 witnesses, including teachers, a principal and vice-principal, CAS workers, a family doctor, and a custody/access assessor?

5. Why did parents of modest means choose to impoverish themselves – and their daughter’s future — for a needlessly destructive three-year court battle?

6. For the sake of the child?

7. Not a chance.

8. Custody trials are supposed to be about children. But 36 days – that speaks volumes about the parents.

(And the emphasized words are those of the justice himself).

Indeed, it’s common knowledge that there is no shortage of high-conflict family law disputes in our society, and not merely those that end up in court. Virtually everyone knows someone first-hand – be it a family member, friend or acquaintance – who is embroiled in seemingly-endless and costly divorce or custody litigation. It almost seems to be the rule, rather than the exception these days.

Is Justice Pazaratz right? Is acrimonious child custody litigation more about the parents, i.e. their own egos and latent agendas, rather than the best interests of the child? Is it just a thinly-veiled battle between the parents, in the guise of asserting their respective rights in relation to the care of child?

What are your thoughts?

For the full text of the decision, see:

Jackson v. Mayerle, 2016 ONSC 72 (CanLII)

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Judge may ascertain child’s views and preferences through a judicial meeting

child 3

Judge may ascertain child’s views and preferences through a judicial meeting

Our summer Student Amelia Rodin recently researched the issue of Judicial Interviews of children, she notes that decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process.

Representation of the child by a lawyer is perhaps the most prevalent method, and children are often assigned a lawyer from the Office of the Children’s Lawyer to represent their interests. Expert reports written by professionals such as social workers or psychologists are also used to communicate the child’s preferences to the court in an unbiased manner. Perhaps the least common method of ascertaining a child’s views and preferences is through judicial interviews, or meetings between a judge and child . Judicial interviewing has historically been a controversial method for determining a child’s views, and whether the court embraces this approach is largely based on the judges comfort level and training.

However, in appropriate situations, judicial interviewing may be an important supplement to legal representation and expert reports . In G. (L.E.) v. G. (A.) the court identified three main purposes for judicial interviews with children:

Obtaining the wishes of children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.

An interview can occur at many different stages of a case, and in G. (B.J.) v. G. (D.L.), the court held that:

Judicial interviews can take place both at the more informal judicial dispute resolution stage, such as at a family case conference or a settlement conference, and during more formal court hearings and trials.

In the Ontario case P.L.M. v. L.J., Justice R.J. Harper conducted a judicial interview with a 12-year-old child for the purpose of hearing her wishes in regards to custody issues.

In this case, the child was not represented by a lawyer from the Office of the Children’s lawyer, but had seen a therapist who had submitted a report to the court. Despite the therapist’s records, there were concerns that the child did not feel heard by the court.

The interview was held privately in the judge’s chambers and recorded. In addition to the judge and the child, the court reporter, court services officer, and the child’s therapist were present.

Throughout the interview, the child was able to express feelings of parental alienation, and describe situations of deep conflict between her mother and herself. In consideration of the insights provided by the interview, as well as the totality of the evidence presented throughout the case, the judge ordered custody to the father.

For the full text of the decision, see:

P.L.M. v. L.J., 2008 CanLII 35923 (On S.C.).

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.

Disgruntled Dad Jailed for 18 Months for Sending Nasty E-mails About Judge

Angry male judge in a courtroom striking the gavel and pronounces sentence. Focus at front y very shallow depth of field

Disgruntled Dad Jailed for 18 Months for Sending Nasty E-mails About Judge

In an interesting U.S. case from Connecticut, the husband in a divorce proceeding was evidently unhappy with the way in which the case was being handled by the judge assigned to his matter. In a moment of unbridled anger, he sent a private e-mail about the judge to several of his friends, essentially threatening to shoot her. The e-mail described where the judge lived “with her boys and nanny”, and added that there are:

“…245 yards between her master bedroom and a cemetery that provides cover and concealment”.

The e-mail continued:

“They can steal my kids from my cold dead bleeding cordite filled fists….as my 60 round mag falls to the floor and I’m dying as I change out to the next 30 rd.”

The father had also written disparaging comments about courthouse officials, whom he called “evil, self-appointed devils”, and had warned in the e-mail that when those officials “figure out that they are not protected from bad things and their families are taken from them … then the system will change.”

Although the judge did not receive the threatening e-mail directly, it came to her attention through a lawyer who had been forwarded parts of it by a client, and who contacted the courthouse about it.

The father was arrested, and criminally charged with first-degree threatening, disorderly conduct, and breach of peace. The evidence at his subsequent criminal trial showed that he had voiced “strong sentiments” against the judge in the past, by way of other e-mails, in a radio interview, and in his Facebook posts. It also established that he owned four guns that were capable of shooting longer distances.

The father defended his conduct by stating that his e-mail was merely intended to vent his frustrations with the family courts and investigating police, adding that his life and career are ruined due to his divorce and related proceedings. He also raised various arguments based on freedom of speech, but those were rejected at the criminal trial; the court found that although distasteful, crude, and obnoxious words might be protected by the U.S. Constitution, words that amount to a threat that “carries fear and disrupts a person’s sense of safety and security” will still be criminally punishable.

Although the 50-year old father of two was described as a loving dad, hardworking, intelligent, and an active volunteer in the community, his lawyer’s calls for leniency were rejected partly because had had shown no remorse over his conduct. He was ultimately sentenced to five years’ imprisonment, with all but 18 months suspended.

In response to his sentence, the father stated: “I’m OK with what I have to face,” adding that “It’s my children that are suffering.”

For the full text of this U.S. decision, read here:

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

puzzeled

Was Judge Correct in Assessment of Litigants, Lawyers, and the Legal System?

In a recent Ontario family case called Hutton v. Hutton, I read a few passages from the judge’s reasons that gave me pause.

There, the wife was representing herself in what was otherwise a routine proceeding for divorce and the equalization of net family property. The husband took the relatively-unusual step of bringing a motion to strike out about 10 paragraphs of the wife’s pleading, claiming that they were irrelevant, prejudicial, scandalous, embarrassing, and will delay the fair trial.

The motion judge said:

The law in family law cases concerning pleadings is the same as in non-family civil matters — that is to say – relevance. However, in view of the personal emotional issues that generally drive the legal issues, the courts have taken a more relaxed approach and tolerate an expanded view. The dramatic increase in non-legally trained self-represented litigants has hastened this relaxed approach to the point that lawyers are frequently persuaded by their clients to adopt a stance that the opposite party must be portrayed as an evil person in order to guarantee success. This inevitably requires that every real or imagined slight or disagreement is seen to take on major significance in support of the description of the opposite party. As might be expected, the opposite party feels obliged to retaliate. The real issues become lost in the accusations, denials, counter-accusations, and counter denials. Each party’s perceived baggage and the rights and wrongs of it all become the cross the court must bear – running the risk of obscuring the real issues. In other words, the battle becomes the central focus – not the outcome.

Whether to the average member of the public this comes off as insightful or else disheartening, it struck me as being unusually candid for a judge. The judge also turned his scrutiny to the members of the legal profession: In the context of pointing out that a motion to strike pleadings is relatively uncommon in family law matters, the motions judge continued:

On the one hand, it can be argued that family law disputes for the most part are so fraught with emotion that we should patiently focus on the issues without regard to the clear violations of the rules. On the other hand, lawyers must take some responsibility and resist the temptation to be the hired gun whose mandate is to destroy the reputation (if not all the worldly goods) of the opposite party. I accept that a lawyer who adopts this principled legal approach may have an unhappy client. However the alternative demeans our legal institutions and those who tirelessly work to make it the backbone of our democratic society.

Ultimately, the judge ruled that 6 of the 10 impugned paragraphs in the wife’s pleadings should indeed be struck, but in doing so he took the unusual step of peeling away a little bit of the veil of idealism over the legal system.

Is the judge right? What are your thoughts?

For the full text of the decision, see:

Hutton v. Hutton, [2015] O.J. No. 5606, 2015 ONSC 6683

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at www.RussellAlexander.com

In a Rare Ruling, Appeal Court Declares Ontario Judge Was Biased

A statue entitled 'Justice' in front the Supreme Court of Canada is framed with the Peace Tower on Parliament Hill in Ottawa April 24, 2014. The Supreme Court of Canada will deliver its opinion Friday on how Canada's unelected Senate can be reformed or abolished. REUTERS/Chris Wattie (CANADA - Tags: POLITICS) - RTR3MJ6J

In a Rare Ruling, Appeal Court Declares Ontario Judge Was Biased

Virtually anyone who has been involved in (or dragged through) litigation will get the feeling – at some point or the other – that the process is not fair.

But in an uncommon ruling in one case, that suspicion was confirmed: the Ontario Court of Appeal ruled that an experienced judge (Justice David L. Corbett) who had heard various motions in a dispute over franchise agreements, had likely been biased against one of the parties to the litigation, to the point where a new hearing had to be ordered.

In Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, the case involved numerous plaintiffs and numerous defendants in a dispute over the alleged breach of various franchise agreements and breaches of legislation governing franchises. The Ontario judge was asked to hear and decide certain jurisdictional issues, most notably on the question of whether a single proceeding would be the best way to resolve the disputes between all the parties, and whether it was most appropriate to litigate the dispute in Ontario, or else in California.

In this context, there were several hearings to determine the proper jurisdiction and method of proceeding. However – as the Ontario Court of Appeal later confirmed – the judge through his conduct and various conduct demonstrated a clear bias towards some of the parties.

In its ruling the Appeal Court illustrated some of the mis-steps by the judge throughout the proceedings:

• He openly found fault with some of the parties and their counsel for the manner in which the motion – which he declared as being “a colossal waste of time” – was being brought. For example, at one point the judge said:

A lick of common sense should have made it clear that this motion, as framed, was doomed from the outset. So why bring it? If the honestly held belief was that this case ought to be pursued in California, all I can say to the defendants is “give your heads a shake”.

• He made various derisive comments throughout the motion hearings, and repeatedly criticized a lawyer’s advocacy skills, knowledge of the law, and the handling of the matter.

• He appeared to go out of his way to assist the opposing parties, by subtly curtailing the presentation of the case against them. For example, at various points in the proceedings he rhetorically asked counsel “what was the point?” of his line of questioning and intimated that the cross-examinations were “frustrating” and “interminably, circling around and about, in and around.”

There were other procedural irregularities which called the judge’s impartiality into question. For example:

• He adjourned a motion on his own initiative, to give some of the parties a chance to correct a flaw that he identified as being “fatal” to their position.

• He arbitrarily cut short a motion at the half-day point, even though it had been scheduled for a full day and even though some of the parties had not had a chance to give their oral arguments.

• He took nine months to release one of his rulings on the motion, and it contained after-the-fact reasoning designed to forestall arguments that he knew would be raised on a later appeal.

The evident bias did not end with the proceedings or even the ruling on the motion itself: The Judge also penalized some of the parties with $50,000 in costs, having found that their motion was so devoid of merit, and was brought in so time-consuming, expensive and impractical a manner, that elevated costs were appropriate.

In the end, and after reviewing the proceedings and considering the cumulative effect of the judge’s improprieties, the Appeal Court arrived at an uncommon conclusion that judicial bias and lack of impartiality had been evident. As the Court wrote:

I have no doubt that the motion judge was well-intentioned. I have no doubt that he put a great deal of effort into resolving the jurisdiction issue. However, my review of the three endorsements leads me to conclude that the motion judge’s actions gave rise to a reasonable apprehension of bias. He made unwarranted negative comments about the appellants – their counsel, their position, and their arguments – prior to the conclusion of argument and arbitrarily curtailed argument. He then wrote reasons that went beyond reflecting the reasoning process and entered the fray as an advocate for his actions and decisions in the Second Endorsement.

In my opinion, the cumulative effect of the motion judge’s conduct is that an informed, reasonable observer, viewing the proceedings as a whole, would conclude that the appellants did not receive the fair hearing to which they were entitled.

I am therefore of the view that the decision must be set aside.

For the full text of the decision, see:

Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 60 (CanLII)

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