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Posts from the ‘Judges’ Category

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)

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

Judge who is (or will be subject) to a Restraining Order after challenging public defender to fist fight to lose his job – video

Wednesday’s Video Clip: Judge who is (or should be subject) to a Restraining Order after challenging public defender to fist fight to lose his job

We first took a look at this video in an previous blog. The ABA Journal reports:

Rejecting a recommended 120-day suspension and $50,000 fine for a Florida judge who challenged a public defender to a fistfight last year, the state supreme court on Thursday removed him from office.

Calling the June 2014 incident in Brevard County Judge John Murphy’s courtroom a “national spectacle” that was “fundamentally inconsistent with the responsibilities of judicial office,” the Florida Supreme Court said removal was the appropriate sanction…

So what do you think?  Was this Judge entitled to have a ‘bad day’ or should he be removed from he bench?

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.

Judges Speak Out About Self-Represented Litigants

loud

Judges Speak Out About Self-Represented Litigants

As family lawyers, we are well-aware of the common criticism by those involved in family disputes and litigation: that hiring a lawyer is expensive.

Although it may seem self-serving to point out the benefits of retaining experienced family law representation for your case, we can do one better: Here are some illustrations of the types of comments made by judges themselves about the difficulties of untangling the merits of a case when self-represented (or otherwise unrepresented) litigants – admirably as they may try – are unable to put forward their best case due to the lack of legal training.

For example, in a case called Leigh v. Milne, the Court of Appeal lamented the slow pace at which the family litigation had proceeded:

The Process

At the outset, let me address [the wife’s] concern about the process, culminating in the order under appeal. This proceeding on appeal is a graphic example of how difficult it is for a self-represented litigant to effectively navigate through the legal system. While the Courts struggle to adapt to the ever-increasing numbers of self-represented litigants, the legal system remains a process which works most effectively for litigants who are represented by lawyers. Judges expect that lawyers will police one another in order to keep a case moving forward at an acceptable pace and, when necessary, seek the assistance of the court to do so. Unfortunately, this leaves proceedings where one and, especially, where both of the litigants are unrepresented, susceptible to being unreasonably delayed by the party who does not want the matter to proceed. This is what occurred here.

In the recent Ontario decision called Szakacs v. Clarke, the court complained about the quality of court documents that had been filed in connection with a family case:

In self-represented litigation, the “pleadings” rarely reflect meaningful details of the issues to be tried. In this case, after reviewing the various orders in the trial record, I ventured further and read the notices of motion and the supporting affidavits leading to those orders for the purpose of learning the specifics of the dispute. This allowed me, when the parties were testifying, to raise certain matters that they had omitted or had wrongly concluded were unimportant. A trial judge should not be put in the position of having to find, present, argue and decide a case. Wearing that number of hats is unbecoming.

Finally, courts are mindful of the potential unfairness to the other side. While being willing to recognize that – out of a sense of judicial and procedural fairness – a self-represented litigant should perhaps be given a little more lee-way in connection with having to follow court rules and procedures to the letter, the court must still ensure that both sides of a family dispute get the fair hearing to which they are entitled. This was pointed out in a case called Baziuk v. Dunwoody, where the court said:

The problem of unrepresented parties, who may not be familiar with law and procedure, is one which is facing courts today with an ever increasing frequency. Courts are mindful of a degree of understanding and appreciation which should appropriately be extended to such parties. However, notwithstanding the difficulty with such parties attempting to properly represent themselves, courts must also balance the issues of fairness and be mindful of both, or all parties. Issues of fairness of course must always be determined in accordance with accepted legal principles and the law which has developed. A sense of fairness and understanding granted to unrepresented parties ought never to extend to the degree where courts do not give effect to the existing law, or where the issue of fairness to an unrepresented litigant is permitted to over ride the rights of a defendant party.

The point to take away from this, is that the decision to represent yourself in your family dispute may seem cheaper financially, but may have hidden costs in connection with the judge’s own perception and assessment of the merits. Make sure you make the right decision for your particular case.

For the full text of the decisions, see:

Leigh v. Milne, 2010 NSCA 36

Szakacs v. Clarke, 2014 ONSC 7487

Baziuk v. Dunwoody (1997), 13 C.P.C. (4th) 156; [1997] O.J. No. 2374 (QL) (Ont. C.J. (Gen. Div.)

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.

Judicial Quips of Mr. Justice Quinn of the Ontario Superior Court of Justice

 quips

 

Judicial Quips of Mr. Justice Quinn of the Ontario Superior Court of Justice

I’ve posted several times about the funny and oh-so-quotable judgments of Mr. Justice Quinn of the Ontario Superior Court of Justice. While Justice Quinn clearly has a good sense of humour, he is certainly not the only member of the Bench who has a way with words.

In the recent decision in Martin v. Czarniecki, 2013 ONSC 46 (CanLII) [Link] http://canlii.ca/t/fvm3h the judgment started with some almost-poetic and poignant observations about the nature of Family Law disputes:

Almost all family law cases involve some degree of sadness – sadness for what was but is no longer, sadness for what might have been, sadness for broken promises and betrayals, sadness for lost opportunities, sadness for wasted time, energy and money, and all too frequently sadness for the battles still to come.

Later in the judgment, the Court was somewhat more direct:

The parties find themselves in this situation due to a litany of significant errors of judgement, misunderstandings, miscommunications, lack of communication, mistrust, and, occasionally, deliberate deceptions.

Another Judge with a literary bent is Mr. Justice Langdon, who was asked to rule on the proper sentence to be imposed in a criminal case called R. v. M.J.O., 2005 CanLII 50809 (ON SC) [URL: http://canlii.ca/t/1mldd]. Justice Langdon began his lengthy opinion with the following:

Introduction

[1.] In 1958 I entered law school. In the 1958-59 academic year I enjoyed the great privilege of being taught criminal law by G. Arthur Martin, Q.C. He was probably the finest criminal lawyer in Canadian legal history. I well remember my surprise when, in his opening lecture, he stated to the class that the least expensive way for society to deal with a car thief would be to give him a car. Of course, he was right. But society simply does not accept as justice that a criminal should be rewarded for his acts. The corollary of that position, however, is that society must pay the cost of due process. That is expensive.

[2.] Hundreds of thousands of dollars have gone south in the prosecution of these proceedings. Nothing would please me more than to have them end here. Sadly, we know that this matter is headed for appellate review. So be it.

[3.] Mr. M.J.O. has taken to these proceedings an inclusive approach to the admission of evidence saying that he wants all the evidence to be heard so that the truth can be discovered. He has testified and has told us his version of the truth. Other witnesses have testified to sometimes very different versions of the truth.

[4.] I have been a lawyer and a judge for 42 years. I do not have a monopoly on being right. On neither of the two occasions when I was appointed a judge, was I given a crystal ball that enabled me, either to look back, and find the truth infallibly, or to look forward and predict the future infallibly. I have been listening to witnesses for 31 years. I try to do so carefully and thoughtfully. I cannot promise to Mr. M.J.O. that what I have found is the absolute truth completely free of error. I have struggled to do that. However, unless I completely misapprehend the evidence, what I have found is the truth that the legal system will accept.

[5.] There is an old saying to the effect that one should be careful about what one asks for, lest one receive it. Because of the volume of material that I have to deal with, I must necessarily paint with a broad brush. What follows is the truth about the life of M.J.O., as I find it.

Court cases are not always the most interesting to read. Some cases offer pleasant little literary surprises.

 

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

cut and paste

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

Just this past week, the Supreme Court of Canada considered an interesting question: In writing their judgments after a trial or hearing, are judges allowed to do large-scale cutting-and-pasting of other people’s written argument?
The answer is – apparently – “yes”.

The factual background of the case involved a negligence action in which a baby suffered brain damage during birth, and developed cerebral palsy subsequently. The mother had delivered a first child C-section; the second baby was delivered via an induced vaginal birth. This decision put her into a high-risk category, and the legal issue was whether she had given informed consent.

At trial, three doctors were found liable in negligence, and the mother was awarded $4 million in damages.

However in written award to that effect, the trial judge’s reasons consisted largely of reproduced portions of the submissions of the mother’s lawyer. Of the 368 paragraphs of the written decision, 321 were cut-and-pasted, and only 47 were in the judge’s own words, including the final conclusions.

On appeal, the Court set aside the trial judge’s reasons because of the extensive copying, and ordered a new trial.  A later appeal went all the way to the Supreme Court of Canada.

The Supreme Court of Canada pointed out that it is not prohibited for judges to include the work of others in their reasons. Indeed, it concluded that judicial copying was a “longstanding and accepted practice”, and was becoming easier to do with the introduction of the computer and the use of electronic submissions by lawyers.

The Court pointed out that it was not the copying per se that makes the process of judgment-writing unfair: it is the impression that the judge failed to independently and comprehensively assess the issues and arguments raised. The court wrote:

In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside. However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

After looking at all the elements of the negligence case before it, the Supreme Court of Canada ultimately held that despite the trial judge’s very extensive copying, the decision should not be set aside. There was nothing to suggest that the judge was not impartial or that judicial integrity was not maintained. The award was overturned for other unrelated reasons, however).

How would you feel if the judge’s decision in your Family Law was mainly a cut-and-paste job?

Should judges be prevented from doing this?

For the full text of the decision, see:

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII)  http://canlii.ca/t/fxkwj

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.

Family Matters Season 2 Trailer is Out

Family Matters Season 2 Trailer is Out

 
In its second season Family Matters with Justice Harvey Brownstone, is the only TV show ever hosted by an actual sitting judge. Justice Brownstone is the author of the bestseller: Tug of War: a Judge’s Verdict on Separation, Custody Battles, and the Bitter Realities of Family Court. He is considered the ‘face and voice of the Canadian justice system;’ and is likely the most recognizable judge in the country.

Family Matters focuses on the relationship between modern family issues and the justice system, covering topics such as Internet dating, spousal and child support, addictions, parenting, social media, bullying, domestic violence, same-sex marriage/parenting, adoption, child protection, and infidelity. Justice Brownstone interviews social workers, lawyers, mediators, judges, psychologists, and everyday people to inform and entertain viewers on topics usually not discussed in a sophisticated, intelligent manner on TV.

To learn more visit Family Matters online.

Some Canadian Media Outlets Are Shutting Out Justice Brownstone and Family Matters TV

FMTV

Some Canadian Media Outlets Are Shutting Out Justice Brownstone and Family Matters TV

Family Matters TV offered their episodes to all the national broadcasters in Canada for free last season and this season, and that all of them turned them down, most recently the CBC.   The Vancouver Sun recently picked up on this story.

Justice Brownstone and Family Matters TV provides valuable access to Justice system and much-needed common sense and information about the family court system.

The public has a craving for quality and accurate information about the family courts and divorce. This show needs to be promoted and distributed by the tv networks and all levels of government.

The public can still access Family Matters TV online  and the first air dates for the show are: CHCH May 4 @1:30pm (then each Sat @1:30pm afterwards for 16 weeks (different time slot for the Fall); CHEK May 4 @6:30pm and May 6th @9pm then each Sat and Mon for 16 weeks.

Hopefully other private and public broadcasters will have a change of heart and decide to air this important TV series.

Wednesday’s Video Clip: Family Court Judge Has a Bad Day and Gets Himself in Trouble

 

 

Wednesday’s Video Clip: Family Court Judge Has a Bad Day and Gets Himself in Trouble

Putnam County Circuit Court Family Law Judge William M. Watkins III had a bad day in court and his angry rant resulted in his suspension from the bench without pay for the remaining years of his term by the Judicial Investigation Commission a decision later  confirmed by the West Virginia Supreme Court of Appeals.

Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

lawyer

Are Canadian Judges Ready for to Face Lawyer Criticisms? (And is T.V-Style Courtroom Drama Next?)

Many people form their impressions of how the Family Court system works from watching T.V. shows or movies, namely overwrought legal dramas or courtroom reality shows. The truth is that Family Law process is considerably more mundane; for example in Canadian law there are no “surprise” witnesses who emerge at the eleventh hour to derail the proceedings and save the day for the underdog plaintiff. Courtroom antics are frowned upon in favour of civility and decorum. And while tempers can certainly flare, volleys of insults and dramatic shouting-matches between opposing counsel are generally not tolerated. Moreover, judges have historically been immune to criticism by the lawyers who appear before them.

But should judges be? That was the question recently addressed by the Supreme Court of Canada.

The case called Doré v. Barreau du Québec involved the specific issue of whether lawyers should be at liberty to criticize judges. The case involved a Quebec lawyer named Gilles Doré, who in 2001 represented a client before a judge of the Quebec Superior Court. During the hearing, the judge rebuked Doré for some of his submissions on his client’s behalf, adding that “an insolent lawyer is rarely of use to his client.” He also stated that Doré’s style was full of “bombastic rhetoric and hyperbole,” and that some of his submissions were “ridiculous”.

In response, Doré wrote the judge a private letter, which read in part:

I have just left the court. Just a few minutes ago, as you hid behind your status like a coward, you made comments about me that were both unjust and unjustified, scattering them here and there in a decision, the good faith of which will most likely be argued before our Court of Appeal.

If no one has ever told you the following, then it is high time someone did…
Your deliberate expression of these character traits while exercising your judicial functions, however, and your having made them your trademark concern me a great deal, and I feel that it is appropriate to tell you.

Your legal knowledge, which appears to have earned the approval of a certain number of your colleagues, is far from sufficient to make you the person you could or should be professionally. Your determination to obliterate any humanity from your judicial position, your essentially non-existent listening skills, and your propensity to use your court — where you lack the courage to hear opinions contrary to your own — to launch ugly, vulgar, and mean personal attacks not only confirms that you are as loathsome as suspected, but also casts shame on you as a judge, that most extraordinarily important function that was entrusted to you.
I would have very much liked to say this to your face, but I highly doubt that, given your arrogance, you are able to face your detractors without hiding behind your judicial position. …
Worst of all, you possess the most appalling of all defects for a man in your position: You are fundamentally unjust. I doubt that that will ever change.

Doré also wrote to Quebec Chief Justice the next day, asking to be excused from having to appear before that same judge in the future, since he would be unable to fairly represent his clients before him. Doré also complained to the Canadian Judicial Council about the judge’s conduct (which Council ultimately found in Doré’s favour, incidentally; it ruled that the judge had made insulting and unjustifiably derogatory comments, and adding that the judge had displayed a propensity for making personal attacks on lawyers in other cases as well).
Still, Doré himself was found by a disciplinary council of his province’s Bar Association to have engaged in professional misconduct, based on the letter to the judge which was deemed “rude and insulting”. He was suspended from the practice of law for 21 days. That suspension was later heard by an Appeal Court and upheld.

The matter then came before the Supreme Court of Canada on further appeal. In a unanimous 7-0 ruling, the Court held that the Canadian judiciary should indeed be accountable and open to censure, and that “[l]awyers should not be expected to behave like verbal eunuchs.” In particular, under Charter principles there is a public benefit to allowing lawyers to express themselves in a constructive manner, not only about the justice system in general, but about individual judges in particular. Furthermore, disciplinary bodies were expected to tolerate “a degree of discordant criticism” by members of the Bar toward the judiciary.

With that said, the Supreme Court cautioned that lawyers are still expected by the public to display a certain reasonable level of professionalism and “dignified restraint”, and that they could certainly be subjected to professional discipline if their conduct exceeds that threshold.

In Doré’s specific case, however, the line of tolerance had been crossed; his conduct had gone beyond what the public would expect in terms of proper conduct by a lawyer. The Supreme Court added: “His displeasure with the judge was justifiable, but the extent of the response was not.”

Your thoughts?

For the full text of the decision, see:

Doré v. Barreau du Québec, 2012 SCC 12  http://www.canlii.org/en/ca/scc/doc/2012/2012scc12/2012scc12.pdf

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 http://www.russellalexander.com/practice/