Archive for the ‘Courts of Justice Act’ Category

No Harm, No Foul?

March 14, 2013

Here’s something that made me do a double-take:

[6]          First, the appellant contends that the trial judge erred in relying on evidence given by counsel (Mr. Callahan) during his submissions.

[7]          We do not accept this submission.  Although Mr. Callahan was a named respondent in the application, the appellant consented to his appearance as counsel.  Moreover, on our review of the record, to the extent that Mr. Callahan’s submissions went beyond the record on factual issues, they were not relied on by the application judge.

…

[12] This is not a case for costs. Although we appreciate that the respondent did not object to Mr. Callahan appearing as counsel either here or below, the reality is that he was a named respondent and that his conduct was central to the factual circumstances giving rise to both the application and this appeal. He should not have appeared as counsel in either forum.

Huh? Did I read that excerpt correctly?

The respondent, a lawyer, appearing as counsel below and before the appeal panel does not constitute a palpable and overriding error?

The reason?

The appellant’s consent?

What about procedural fairness and the court’s inherent jurisdiction in controlling its own process and avoiding bringing the administration of justice into disrepute?

How about the fact that the lawyer is an officer of the court and under the Rules of Professional Conduct owes a duty to uphold the integrity of the legal profession and the public administration of justice by avoiding real or apprehended conflicts of interest?

What about the prohibition against appearing as counsel in one’s own cause?

Ricciuto v. Somers, 2013 ONCA 153 (Ont. C.A.) per curiam: Doherty, MacPherson and Watt JJ.A.

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Posted in conflict of interest, costs, Court of Appeal for Ontario, courts, Courts of Justice Act, due process, ethics, procedural fairness, Procedural Justice, procedure, professional, reasonable apprehension of bias | Leave a Comment »

Elizabeth F. Judge, “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”

January 10, 2013

Elizabeth F. Judge (University of Ottawa – Faculty of Law (Common Law)) has posted “Curious Judge: Judicial Notice of Facts, Independent Judicial Research, and the Impact of the Internet”, Annual Review of Civil Litigation, pp. 325-350, Honourable Mr. Justice Todd L. Archibald Superior Court of Justice (Ontario) and the Late Honourable Mr. Justice Randall Scott Echlin, eds., 2012. The abstract reads:

Judicial notice allows uncontroversial facts to be established without evidentiary proof. The facts must either themselves be beyond dispute because they are “notorious” (that is, generally known within the community) or they must be able to be referenced in easily accessed sources whose accuracy is beyond dispute. Judicial notice is an especially vexing topic because it goes to the heart of the epistemological inquiry of the adversarial process and the nature of the judicial function. Judicial notice implicates the allocation of responsibilities for fact finding between the parties and the court, between the judge and the jury, between the court of first instance and the appellate bodies, and between the courts and the legislature; how fact finders engage in ordinary reasoning processes to decide what a fact is; the distinction between adjudicative and legislative facts and their respective roles; and due process concerns for one or both parties. The rules governing judicially noticed facts are especially sensitive because whenever a fact is judicially noticed it is not subject to the ordinary processes for testing evidence, such as oaths and cross examination, and thus the rules implicate concerns about fairness to the parties and accuracy. For a common law precedential system, these concerns are particularly acute.

Drawing on American and Commonwealth commentators, this article provides a detailed analysis of the general theory and policy of judicial notice and the role of judicial notice in the adversarial system. The article then turns to a discussion of the practice of independent judicial research and an examination of the impact of the internet on judicial notice. The article analyses the laws and policies governing judicial notice of facts and independent judicial research in Canada and the Supreme Court of Canada’s legal framework. It examines independent judicial research and, most pertinently for modern practices of judicial notice, appropriate uses of internet search tools and online sources in the context of judicial notice. It considers how the internet is affecting key aspects pertaining to the judicial notice of facts: first, what “notoriety” and “community” mean; and second, what counts as an authoritative reference. The paper concludes by addressing how the internet, including search engines and online content, may affect the traditional framework for judicial notice of facts.

A copy of the paper is available for download via SSRN here.

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Posted in Civil Litigation, courts, Courts of Justice Act, evidence, internet, internet law, Judge, judging, judgments, judicial decision-making, judicial discretion, judicial notice, procedural rights, procedure, Procedure vs. Substance, social media | Leave a Comment »

Compare and Contrast

November 24, 2011

Compare and contrast the following two decisions vis-à-vis standing, jurisdiction and the employment relationship:

Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728 (Ont. C.A.) per Laskin, J.A.:

[20] The Roman Catholic Church is a self-governing organization. Its canon law provides an internal review process for ecclesiastical disputes. The expert evidence before the motion judge showed that where an administrative decree may affect the rights of a party, canon law requires that the party be given notice, an opportunity to respond and an unbiased tribunal. Canon law also provides a broad range of remedies, including the substitution of a different decree, monetary compensation and even a trial.

[21] The motion judge found that the internal review process under canon law meets the requirements of natural justice. Father Hart does not suggest otherwise. Was he then bound to follow the internal review process instead of suing in the Superior Court?

[22] The answer to that question turns on the nature of his dispute with the Archdiocese. The nature of the dispute is determined not by its legal characterization – as breach of an employment contract or a claim for constructive dismissal – but by the facts giving rise to it: see Weber, at p. 955.

[23] The facts show that at its core Father Hart’s dispute with the Archdiocese is ecclesiastical in nature and subject to canon law. When he was appointed pastor, his appointment was expressly subject to canon law. The experts who testified on the motion agreed that the office of pastor is ecclesiastical. Canon law creates the office, provides for the office’s duties and responsibilities, and describes the circumstances under which the office can be brought to an end. Under canon law the church can remit a matter to the civil law but it has never remitted a pastor’s removal from office.

[24] Therefore, even though some aspects of Father Hart’s dispute with the Archdiocese concern matters of property, for example his loss of lodging, at its essence this dispute is ecclesiastical. Redress must be sought through the internal review process established by canon law for disputes of an ecclesiastical nature. Father Hart does not contest that this review process accords with the rules of natural justice. However, even though he did not invoke this review process he submits that the Archdiocese treated him unfairly because it refused his request for a hearing.

vs.

John Doe v. Bennett, [2004] 1 S.C.R. 436, 2004 SCC 17 (S.C.C.) per C.J. McLachlin:

35 The Roman Catholic Church is a religious organization operating in many countries of the world, including Canada. It possesses a hierarchical structure with the Pope at its apex, and works through diverse orders, groups and individuals. On the record before us, it is impossible to answer the questions as to procedure and remedies for recovery which the claim against the Church raises. The record does not provide the clear picture of the details of the Church’s hierarchy or of the relationship between the Church and its constituent parts, necessary to delineate the boundaries of the institution, the nature of its legal status, and its potential liability. Nor does the record offer much assistance on the procedural questions that would need to be answered before the Church, as a global institution, could be found liable for the wrongs committed by Father Bennett in the diocese of St. George’s. Although named as a party, the Church was not represented during the proceedings in this case, and issues relating to procedure and remedies for recovery were left unexplored.

36 Without suggesting that the full organizational structure of the Roman Catholic Church and its relations with its various constituent organizations must be apparent on the evidence before a finding of Church liability could be made, I am satisfied that the record before us is too weak to permit the Court in this case to responsibly embark on the important and difficult question of whether the Roman Catholic Church can be held liable in a case such as this.

See also, via The Telegraph, Vicar ‘sues God’ over campaign of hate: A vicar who moved to an “idyllic” rural parish claims that locals subjected him and his family to a four-year-reign of intimidation and terror:

Yesterday Rev Sharpe, who is being supported by the faith workers section of the Unite union, claims he was effectively forced out of his parish and that the bishop and diocese of Worcester did nothing to protect him.

He is asking employment judges whether he is entitled to bring a claim against the Diocese, claiming he had assumed that being an officer of the church would provide him the same rights as an employee.

“I can’t say I thought about it at first,” he said. “I think I always assumed it was the same as being an employee.

“I know there was some kind of debate in the church when I joined about it but I didn’t take an active role. I always thought by being ordained at York Minster that was some kind of employment contract.”

Currently the law states that Church of England clergy, as office holders, are “employed by God” and not eligible to bring actions for unfair dismissal. In a move reminiscent of the Billy Connolly film ‘The Man Who Sued God, Rev Sharpe is now asking to be allowed to sue for constructive dismissal.

The diocese has previously “wholly denied” all Rev Sharpe’s allegations. It conceded in 2008 that Mr Sharpe was a worker entitled to bring a claim but they are now asking the employment judge for permission to withdraw that concession.

Related articles

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Posted in courts, Courts of Justice Act, jurisdiction, Standing, Vatican | 1 Comment »

“Masters Of Their Own Domain”: Masters’ Association of Ontario v. Ontario

March 30, 2011

The Court of Appeal for Ontario released its reasons today in Masters’ Association of Ontario v. Ontario, 2011 ONCA 243, affirming that the current process for setting the remuneration of Case Management Masters is unconstitutional and declaring that certain legislative provisions relating to the tenure and remuneration of Case Management Masters is violative of the principle of judicial independence.

At issue was the enactment of Order-in-Council 458/2003, which provided for the salaries of Case Management Masters adjusted between 2002 and 2009 as follows:

Effective Date Salary ($)

April 1, 2002             155,000

April 1, 2003             164,341

April 1, 2004             164,341

April 1, 2005             174,721

April 1, 2006             174,721

April 1, 2007             184,928

April 1, 2008             190,463

April 1, 2009             190,463

According to Justice MacPherson  (Gillese and LaForme JJ.A. concurring):

[12]         In the same time frame, the salary of traditional Masters, pegged by law to the salary of provincial court judges, has risen from $172,210 to $248,057. In other words, the salary of Case Management Masters has risen just over $35,000 whereas the salary of traditional Masters has risen about $76,000 in the same seven-year period.

The application judge, Platana, J. had suspended the declaration of invalidity for a period of 12 months, to August 5, 2011, “to allow the government to make legislative changes to create an independent, effective and objective process for determining the remuneration and tenure of Case Management Masters.”

The Crown sought an order setting aside the remuneration-related elements of Platana J.’s judgment, failing which the Crown sought an extension of the stay period to 12 months after the release of this decision. The Masters’ Association cross-appealed the remedy of declaration of invalidity made by the application judge, submitting that “remedies of severance and reading in should be applied to give Case Management Masters and traditional Masters the same level of judicial independence (and salary and benefits).”

The Court of Appeal dismissed the appeal and cross-appeal, with the exception that para. 1 of the formal Judgment be amended by substituting “Order-in-Council 458/2003” for “paragraph 53(1)(b) of the Courts of Justice Act, R.S.O. 1999, c. 43”. MacPherson J.A. also ordered an extension of the suspension of the declaration of invalidity in para. 3 of the formal Judgment to “a period of 12 months from the date of the release of this decision”.

With respect to judicial independence, Justice MacPherson reviewed the leading authorities and held that:

“…the constitutional principle of judicial independence requires a “special process” for dealing with the question of judicial remuneration, that the goal of the process is to be “independent, effective and objective”, and that there must be an “independent body” involved in, at a minimum, making recommendations to governments about judicial remuneration.” (at para.31).

The learned justice adds,

“[42]         I share the view of the application judge that this is what is missing in the special process set out for Case Management Masters in Order-in-Council 458/2003. There is no “body” or “entity” or “commission” or “person” between the government and the judiciary; there is no “institutional sieve”.

[43]         The Crown contends that the institutional sieve is the SMG3 classification. However, that cannot be. The SMG3 classification is established and controlled by the government; it is the precise opposite of an intermediary at arm’s length from the government.

[44]         Moreover, to my eyes, there is a glaring irony in the Crown’s anchor for its submissions, the need for flexibility in the design of “special processes” for dealing with judicial remuneration, and the Crown’s proposed outcome flowing from such flexibility, a linkage in perpetuity between the salaries for Case Management Masters and a single classification in the Ontario public service, the SMG3 classification.

…

[47]         The linkage, in perpetuity, between Case Management Masters’ salaries and the SMG3 classification does not permit the process described in these two cases to develop, unfold and deliver.

[48]         The perpetuity point is also a complete answer, in my view, to the Crown’s assertion that ODJA and other cases permit reliance on an objective comparator in the “special process” for setting judicial remuneration. I have no trouble with the government and the judiciary identifying and relying on comparators, including comparators from the public sector, in the “special process”. However, what ODJA contemplated, and what is constitutionally permissible and valuable at a policy level, is the use of a comparator as a factor, even an important factor, in the “special process”. That said, a comparator cannot be the sole factor and it certainly cannot be the sole factor in perpetuity.

[49]         On this point, I agree with the application judge, who said:

Selecting a comparator, and assuming that it will be appropriate for all eternity, is short sighted and doomed to fail if there is no process in place through which judicial officers can challenge the appropriateness of that comparator in the future.

[50]         To this I would simply add that it should be open to governments as well to argue that changing conditions render continuing adherence to a particular comparator inappropriate.

Posted in courts, Courts of Justice Act, Judge, judicial power, Master | Leave a Comment »

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