Archive for the ‘judgments’ Category
February 1, 2013
[38] I have no hesitation in concluding that an award of full indemnity costs is required in the circumstances of this case. I find that the plaintiffs’ conduct, in faking a judgment of this court, constitutes a scurrilous and fraudulent attack on the administration of justice. The plaintiffs’ actions amount to a contemptuous and reckless disregard for the judicial process and were calculated to obstruct or interfere with the due course of justice in these proceedings. The plaintiffs’ behaviour was “reprehensible, scandalous and outrageous.” Such reckless attacks on the administration of justice clearly constitute conduct requiring chastisement and deterrence.
[39] I find that the defendants are entitled to full indemnity costs, payable by the plaintiffs D’Souza and D’Gama forthwith. Costs are awarded as follows:
Woldanskas $14,974.60
Linton/Jagielski $10,659.35
Gills $14, 617.97
inclusive of disbursements and HST.
[40] The plaintiffs are prohibited from taking any fresh step in these proceedings until these costs have been paid in full.
Master Dash Order
[41] There is a subsidiary issue involving an order of Master Dash on April 26, 2011, obtained without notice, granting leave to the plaintiffs to register a certificate of pending litigation against the Property (the CPL order). No CPL has been registered as yet.
[42] The plaintiffs have refused or been unable to produce the original of Master Dash’s order. The court record apparently contains no original order or endorsed motion record.
[43] It appears that the CPL order of Master Dash may also be a fake.
[44] In any event, it was obtained without notice. The noting in default of the Gills was improper and constituted sharp practice.
[45] In the circumstances, my order shall issue setting aside the CPL order of Master Dash dated April 26, 2011.
Read the decision of Penny J. in John Joseph AKA John D’Souza and Peter D’Gama v. Ritchie James Linton, et al. 2013 ONSC 70 here.
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Tags:Defendant, Law, Lawsuit, Plaintiff
Posted in Civil Litigation, civil procedure, fair trial, fraud, fundamental justice, Judge, judging, judgments, Ontario, Ontario Rules of Civil Procedure, paralegal | 2 Comments »
January 23, 2013
Samuel P. Baumgartner (University of Akron – School of Law) has posted “Understanding the Obstacles to the Recognition and Enforcement of U.S. Judgments Abroad”, New York University Journal of International Law and Politics (JILP), Vol. 44, 2013/U of Akron Legal Studies Research Paper No. 13-01. Here’s the abstract:
Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to adopt federal legislation on the question of recognizing and enforcing foreign judgments in the United States. And at the Hague Conference of Private International Law, the project – begun in the 1990s and later shelved – to enter into a world-wide convention on the recognition of foreign judgments, has just been put on the agenda for further study.
In this Article, I focus on the major obstacles U.S. judgment holders have encountered abroad as a matter of foreign recognition doctrine and to analyze the reasons underlying those obstacles. This should help lawmakers and treaty negotiators better understand what sorts of problems U.S. judgments holders are likely to encounter and why. I propose that we distinguish those obstacles on the basis both of the purpose they are meant to serve and of the way in which they have developed. Thus, I submit that the doctrinal obstacles identified pursue three distinct purposes: the protection of the sovereignty of the recognition state; the protection of other public interests of the recognition state; and the protection of the party against whom the U.S. judgment is to be used from what the recognition state views as substandard legal norms or procedural treatment. I further suggest that we separate the doctrinal obstacles encountered by U.S. judgments holders abroad into two categories on the basis of how they have developed. The first category consists of doctrines that were set in place some time ago and that apply to all judgments from jurisdictions with which the relevant country does not have a recognition treaty, including the United States. The second category consists of slight changes to existing recognition doctrine that some foreign jurisdictions have adopted specifically in reaction to litigation in the United States. This second category has come about, I argue, through the operation of four factors: power politics, domestic legal and procedural culture, the preferences of groups and individuals inside and outside the state apparatus, and relevant information asymmetries.
A copy of the paper is available for download at SSRN here.
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Posted in civil procedure, comparative law, conflict of laws, international law, international litigation, judgments, recognition, recognition and enforcement, Transnational, Transnational Law, transnational litigation | 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 »
November 20, 2012
Image via elliemencer.com
I previously blogged about Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center, 2011 BCCA 192, where the British Columbia Court of Appeal ordered a new trial and overturned a five million dollar judgment awarded to an infant plaintiff who suffered brain damage during his birth at the BC Women’s Hospital and Health Care Center. The Supreme Court of Canada subsequently granted leave to appeal and the the Court’s decision is under reserve following oral arguments on November 13, 2012.
The issues before the Court in Cojocaru are:
If a trial judge adopts the submissions of only one party into his or her reasons for judgment, is the presumption of judicial integrity and impartiality so fundamentally displaced so as to render the trial unfair (or a nullity) in the absence of cogent evidence of bias?
Whether the trial judge committed a palpable and overriding error by failing to conduct an independent assessment of the evidence and in failing to consider the respondents’ causation defence.
Is this an isolated incident or is there a judicial trend toward “cut-and-paste justice”? (more…)
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Tags:Alberta, Appeal, British Columbia, British Columbia Court of Appeal, Cojocaru, Supreme Court of Canada
Posted in ethics, Judge, judging, judgments, judicial decision-making, judicial discretion, judicial power, justice | Leave a Comment »
Antonin I. Pribetic
