Archive for the ‘courts’ Category
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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Tags:Appeal, Counsel, Court of Appeal for Ontario, Judicial, Law, Respondent, Trial court
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 »
March 14, 2013
In Brown v. Belleville (City), 2013 ONCA 148 (Ont. C.A.), the Court of Appeal for Ontario has signalled that the common law doctrine of privity of contract, while not yet pronounced dead, struggles on life support. (more…)
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Tags:Canada, Canadian Contract Law, London Drugs, Privity of contract, Supreme Court
Posted in commercial law, commercial litigation, Common law, contract, contract interpretation, Court of Appeal for Ontario, courts, privity | 1 Comment »
March 14, 2013
[1] The motion judge found that there was overwhelming evidence that the appellants were personally served and that they decided to ignore the process. There is ample evidence, including video recordings, to support the finding. It is established that a conscious decision not to participate in the proceedings bars consideration of a defence for the merits, even if one exists: Schill & Beninger Plumbing & Heating Ltd. v. Gallagher Estate (2001) 140 OAC 353.
Sunlife Assurance Company of Canada v. Premier Financial Group Incorporated (Premier Financial), 2013 ONCA 151 (Ont. C.A.) per curiam: Sharpe, Epstein and Pepall JJ.A.
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Tags:appeals, Court of Appeal for Ontario
Posted in appeals, Court of Appeal for Ontario, courts, merits, Procedural Justice, procedural rights, Procedure vs. Substance, process-based, substantive justice | Leave a Comment »
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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Tags:Canada, Civil procedure, Internet, Judges, Judicial Notice, Jurisdiction, Law, Social media
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 »
January 8, 2013
Matthew J. Wilson (University of Wyoming – College of Law) has posted “Improving the Process: Transnational Litigation and the Application of Private Foreign Law in U.S. Courts”, New York University Journal of International Law and Politics (JILP), Vol. 45, 2013, forthcoming. The abstract reads:
Due to the current and anticipated stream of foreign law issues in U.S. courts and arbitration proceedings, it is necessary to explore additional ways to ensure accuracy and improve current procedures in applying foreign law. At the same time, it is also important to understand the issues and concerns underlying the application of foreign law in U.S. courts. In recent years, foreign law has increasingly gained greater public attention and political discourse has progressively focused on the use of foreign law by U.S. courts. Some of this attention has been politically charged and quite unfavorable. In fact, policymakers across the U.S. have advocated measures that would prohibit courts from using or relying on foreign law in certain instances. In many respects, much of the negative sentiment towards foreign law has been misdirected resulting in public confusion. Accordingly, an examination of the boundaries of the ongoing debate is necessary to clarify those areas in which foreign law can and should be applied without issue. To accomplish the above objectives, this article focuses on the legal requirements, practical aspects, and possible improvements of proving the law of a foreign country in U.S. courts. Before delving into these areas though, it is worthwhile to breakdown the opposition to the use and application of foreign law in U.S. courts to gain a better understanding of the attendant issues.
A pdf copy of the paper is available for download on SSRN here.
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Tags:Arbitration, Courts of the United States, Law, Products, U.S. courts, United States, United States Constitution, University of Wyoming College of Law
Posted in arbitration, courts, expert witnesses, foreign law, International, international arbitration, international dispute resolution, international law, international litigation, Judge, judging, judgments, litigation, Transnational, Transnational Law | Leave a Comment »
Antonin I. Pribetic
