Archive for the ‘adversarial system’ Category

A Judicial Do-Over

January 2, 2014

I have long thought that an appeal court is more than merely a forum of last resort , a venue for judicial review, or a chamber of sober second thought.

The intrinsic value of appellate review lies within an appellate court’s power to correct errors of law: lower courts are best suited to be triers of fact. Let the evidentiary chips fall onto the table of justice, where they may.

Many trial lawyers appreciate the difference between the conduct of a trial and that of an appeal. Preserving the record on appeal is vitally important: objections must be stated clearly and unequivocally, but ultimately silence is an admission when it comes to raising grounds for appeal. Equally important is the fact that all cases are framed by the pleadings. If a trier of fact decides a case outside the bounds of the causes of action and defences pleaded, this constitutes a denial of natural justice and procedural fairness and strikes at the very root of the adversarial system: both the plaintiff and the defendants are entitled to know what the dispute is about and raise all arguments and adduce any evidence in support of their respective legal positions.

However, no one likes legal “technicalities”, not even lawyers. Depending on your views of the judicial decision-making process as deductive, inductive or reductive; a court must fairly, impartially and rationally use the process of judicial reasoning to resolve a dispute on its merits.

There is an “escape clause” built into the civil justice system: the fusion of law and equity that reflects the historical compromise of the exercise of judicial power over individuals (jurisdiction in the traditional sense of “juris” (the law”) and diction (“speaks) and that justice not only be done, but also be seen to be done. Consider section 96 of the Courts of Justice Act R.S.O. 1990, c. C.43 (as am) which reads:

Common Law and Equity

Rules of law and equity

96.(1)Courts shall administer concurrently all rules of equity and the common law. R.S.O. 1990, c. C.43, s. 96 (1); 1993, c. 27, Sched.

Rules of equity to prevail

(2)Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails. R.S.O. 1990, c. C.43, s. 96 (2); 1993, c. 27, Sched.

Jurisdiction for equitable relief

(3)Only the Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may grant equitable relief, unless otherwise provided. 1994, c. 12, s. 38; 1996, c. 25, s. 9 (17).

 Section 96 of the CJA is what I like to call the “judicial do-over”.

Let’s say you’re plaintiff’s counsel and you’ve persuaded the trial judge of the defendant’s liability, but proving the plaintiff’s damages poses to be a problem. Do you take your chances and hope the trial judge will award the plaintiff damages based upon a theory without expert evidence, or much evidence, for that matter? What do you do? Do you take your chances and hope the Court of Appeal will uphold the the trial judge’s assessment of damages, or will only nominal damages be awarded?  Is the fair and just result to order a new trial on the assessment of damages?

Read today’s decision of the Court of Appeal for Ontario in TMS Lighting Ltd. v. KJS Transport Inc., 2014 ONCA 1, per Cronk J.A. (Blair and Strathy JJ.A. concurring).and you be the judge:

(f) The question of remedy

[81] The appellants argue that any award of damages for TMS’s lost productivity should be nominal, at best. They submit that because the respondents’ nuisance-based damages theory was justifiably rejected at trial, and the trial judge’s substituted approach for the quantification of lost productivity damages is fatally flawed, the respondents must bear the consequences for their failure to lead the necessary evidence to establish the quantum of their damages. They rely, in this regard, on the trial judge’s findings that the respondents failed to adduce available evidence at trial that bore on their theory of lost productivity damages and that, as a result, an adverse inference should be drawn against the respondents regarding the utility of any such evidence. As a result of these factors, the appellants say, an award of only nominal damages is mandated.

[82] In the particular circumstances of this case, I would not accede to this argument.

[83] It is well-established that where the absence of evidence renders it impossible to assess damages, a plaintiff may be entitled to only nominal damages. Goldfarb, for example, says so. But this is not invariably the case. Where a plaintiff proves a substantial loss and the trial judge errs in the assessment of damages arising from that loss, the interests of justice may necessitate a new trial on damages. Although the quantification of damages flowing from the established loss may prove difficult, nonetheless the injured plaintiff is entitled to compensation.

[84] Goldfarb itself is a case in point. Goldfarb involved a claim for damages for breach of fiduciary duty advanced by the client of a law firm against the firm and the involved firm lawyer. This court held that there was inadequate cogent evidence to support the substantial award of damages made by the trial judge. Justice Finlayson explained, at para. 67:

[The plaintiff/client] failed to prove the losses through appropriate evidence. The trial judge’s award of damage is speculative at best, and does not reflect with much precision real losses flowing from the breach, notwithstanding that the plaintiff bore the burden of proving the losses in the normal course.

[85] Notwithstanding that the proffer of relevant evidence was “fully within the control of [the plaintiff]”, the Goldfarb court rejected the remedy of nominal damages and concluded that a new assessment of damages was necessary because the plaintiff had demonstrated a substantial personal loss although evidence proving the quantum of that loss was lacking: Goldfarb at paras. 80, 83 and 84. See also Rosenhek v. Windsor Regional Hospital, 2010 ONCA 13, 257 O.A.C. 283, at paras. 37-38, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 89.

[86] This reasoning is apposite here. On the trial judge’s findings, the respondents suffered a substantial and unreasonable interference with the use and enjoyment of their lands, as well as trespass to those lands. The appellants’ nuisance and trespass were neither trivial nor transitory. To the contrary, they occurred over a sustained period and interfered, to a significant extent, with the respondents’ use and enjoyment of their lands for the purpose of TMS’s manufacturing operations. For approximately five years, disruption of TMS’s manufacturing operations led to reduced business productivity. This is a real wrong, which caused real loss.

[87] Damages, including damages for loss of revenues or profits, may be measured in various ways including, where appropriate, based on expert opinion evidence. That the manner of proof of lost productivity damages posited by the respondents at trial failed, does not mean that no proof is available. In all the circumstances, in my view, a new assessment of TMS’s lost productivity damages arising from the appellants’ proven nuisance and trespass is required in the interests of justice.

The Do’s and Don’ts of Examination for Discovery: Refusals Edition

November 12, 2013

[5] Plaintiff’s counsel is not a litigation lawyer. She was retained by the plaintiffs “as a favour” because they all speak Serbian. This was plaintiff’s counsel’s first examination for discovery of her career. It is her evidence that she was not obstructionist. In her view, she was simply attempting to protect Tondera, whose deceased grandfather was found, based on documents notarized by the defendant Dorothy Fox (“Fox”), to have died intestate. The grandfather had held property in Montenegro which, according to the plaintiff, was allegedly transferred based on fraudulent documents.

[6] Her further evidence is that because Tondera kept saying “I guess” or “I don’t remember” counsel was following up her client’s evidence by asking “Do you know?, to ensure that the transcript would be clear. Counsel also objected to the repetitive nature of defence counsel’s questions. Plaintiffs’ counsel asserts that the examination for discovery was improperly terminated. It is her submission that the examination should have continued and thereafter the defendants could have moved on the refusals, if they chose to do so.

[8] Rule 34.14(1) states that an examination may be adjourned when there are improper interruptions, when the examination is being conducted in bad faith, when the party being questioned is unresponsive or when there are improper refusals to produce documents. Master Dash in Madonis v Dezotti 2010 ONSC 2180 (CanLII), 2010 ONSC 2180 details a set of principles for proper conduct at an examination. They may be summarized as follows:

(a) An examining party has a right to ask questions at an examination for discovery without unnecessary interruptions.

(b) The lawyer for a party being examined may interrupt the proceeding for the purpose of objecting to an improper question, placing the objection on the record and directing the party, either to not answer or, to answer under objection.

(c) The lawyer for the party being examined may interrupt the examiner if necessary to ensure that the witness and counsel understand the question.

(d) It is the party who is being examined and not his other lawyer.

(e) There is often a spirit of co-operation at an examination for discovery where counsel allow some latitude and permit the lawyer for the witness to offer assistance.

(f) It is the duty of the party and not the lawyer to correct an answer given even if the answer given by the party is wrong.

(g) Counsel must not communicate with his or her client during the examination except on the record and even then, only sparingly so as not to interfere with the flow of the examination.

[9] As Case Management Master, I have had some history with this action. In my view, much of the difficulty thus far in this action stems from plaintiff’s counsel’s lack of familiarity with the litigation process. As opposed to finding her behavior obstructionist, I find it obtuse, but with good intention – that being to protect her client. Plaintiff’s counsel has, throughout the proceedings, been not only critical, but also suspicious of defence counsel. Defence counsel, in response, has taken a particularly hard line.

[10] Plaintiff’s counsel clearly failed to accept the relevance of the questions asked to the claim and/or to the defence. She should have simply refused to answer the questions. If she was of the view that there was duplication, or multiple confusing questions which I believe there were, she should have simply stated on the record that the question has already been asked and answered, leaving it to a Master on a motion to determine whether the questions are proper. An experienced litigation lawyer would have done so.

[11] There is a clear distinction to be drawn between questions refused on an examination and improper conduct. Although plaintiff’s counsel’s interruptions were annoying, I find them to be based on lack of experience and her feeling of necessity to be overly protective. She was instructing her client to answer questions truthfully based on her recollection. Perhaps her demeanour was somewhat aggressive rather than particularly civil. The Principles of Civility provide lawyers with some guidance in litigation where it is stated that “counsel, during examinations for discovery, should at all times conduct themselves as if a Judge were present”. I do not find based on the principles outlined above, that there has been improper conduct on the part of plaintiff’s counsel.

[12] As Tondera’s examination is incomplete, it is ordered that Tondera shall re-attend for her examination. In an effort to assist the parties to keep this action moving forward, I will make myself available by telephone at the re-attendance of Tondera’s examination for discovery and at the examination of Maryon Tondera, to make rulings on questions in ‘real time’. All counsel are urged to operate with a spirit of co-operation! This action is crying out for resolution so the sooner the parties can get through the discovery process to reach a mediation or pre-trial, the better all parties will be served.

[13] With respect to costs, each party shall bear their own expense for costs thrown away and for costs for re-attendance and for costs of this motion. None of the parties’ hands are completely clean. [emphasis added]

Supreme Court of Canada: Canadian lawyers must turn the other cheek when bench slapped

March 22, 2012

Today’s decision by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12 provides an insight into the bounds of incivility within the legal profession and the constitutionally defined limits of lawyers’ freedom of expression to criticize judges under section 2(b) of the Canadian Charter of Rights & Freedoms. The Court affirms that the administrative law approach, not the s.1 Oakes analysis, is the proper form of judicial review in determining whether administrative decision-makers have exercised their statutory discretion in accordance with Charter protections, based upon the standard of review of reasonableness. (more…)

The Criminal Justice System and Prosecutorial Immunity: Time to Upset the Apple Cart

March 31, 2011

Following up on my recent post: “Whither Malicious Prosecution“, an unanswered question is whether absolute or qualified immunity for prosecutors in the criminal justice system is legally and morally (if not ethically) justified in a modern society.

In the end, the U.S. Supreme Court decision in Connick v. Thompson slams the door on imposing any §1983 liability on local governments for civil damages arising from a wrongful conviction based upon an action pursuant to “official municipal policy”.  Essentially,  the U.S. Supreme Court, by a 5-4 margin, rejected establishing a negligence-based “failure-to-train” standard against prosecutors for failing to comply with the Brady v. Maryland, 373 U. S. 83 constitutional requirement of disclosure of exculpatory evidence to the defence.

“Why”, as one commenter, Ted Folkman asked “was the prosecutor who was the actual wrongdoer not liable?” Could not the plaintiff simply have sued the prosecutor who intentionally withheld the evidence of the crime lab report? Even Justice Scalia’s concurrence refers to the “miscreant prosecutor Gerry Deegan’s willful suppression of evidence…in an effort to railroad Thompson”.

The short answer is No. In Imbler v. Pachtman, 424 U.S. 409 (1976), the U.S. Supreme Court established absolute immunity for district attorneys or prosecutors  from civil suits resulting from their government duties. See Mike Cernovich’s excellent summary of prosecutorial immunity here.

Some will argue that Imbler does not go so far, as prosecutors are subject to criminal prosecution or professional discipline by state bar associations for suppressing evidence or otherwise putting the administration of justice into disrepute.

No. Not really. (more…)

Kent Roach on "Wrongful Convictions: Adversarial and Inquisitorial Themes"

July 28, 2010
Wilbert Coffin. David Milgaard. Guy Paul Morin. Donald Marshall. Thomas Sophonow. Stephen Truscott. A tragic coterie of the wrongfully convicted in Canada.
In the United States, according to The Innocence Project:
“There have been 255 post-conviction DNA exonerations in the United States.

• The first DNA exoneration took place in 1989. Exonerations have been won in 34 states; since 2000, there have been 189 exonerations.
• 17 of the 255 people exonerated through DNA served time on death row.
• The average length of time served by exonerees is 13 years. The total number of years served is approximately 3,245.
• The average age of exonerees at the time of their wrongful convictions was 27.”

What are the root causes of wrongful convictions and how can they be avoided in the future? Professor Kent Roach (University of Toronto – Faculty of Law) considers these issues in a new paper on SSRN entitled: Wrongful Convictions: Adversarial and Inquisitorial Themes appearing in the North Carolina Journal of International Law and Commercial Regulation, Vol. 35, 2010.  Here is the abstract: 
The discovery of wrongful convictions in Anglo-American systems over the last twenty years has shaken confidence in the adversarial system of criminal justice. The first part of this article will assess the main identified causes of wrongful convictions in Anglo-American systems through the lens of what they reveal about the limits of the adversary system. Six main causes will be discussed, namely mistaken eyewitness identification, lying witnesses, false confessions and false guilty pleas, faulty forensic evidence, tunnel vision or confirmation bias, and inadequate defense representation. The second part of this article will assess possible remedies for wrongful convictions in Anglo-American systems through the lens of the extent to which they attempt to improve the adversarial system and the extent to which they adopt practices that use inquisitorial methods of investigation.

The third part of the article will discuss reform proposals for preventing and remedying wrongful convictions that explicitly or implicitly draw on inquisitorial ideals. It will be suggested that many adversarial systems can easily accommodate inquisitorially inspired reforms. Finally, this article will draw some conclusions about what wrongful convictions can tell us about adversarial and inquisitorial systems. The weaknesses and blind spots of each system will be examined as a prelude to suggesting that combining aspects of adversarial and inquisitorial systems can best prevent and remedy wrongful convictions. Each system can and should learn from the other in order to better prevent and remedy wrongful convictions.


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