Archive for the ‘judicial power’ 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.

Cut-and-Paste Justice

November 20, 2012

I previously blogged about Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center2011 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 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…)

The Virtues of Judging

April 11, 2012

In his “Essays—of Judicature (1612),” Sir Francis Bacon—the English philosopher, statesman, writer and founder of modern Jurisprudence— wrote:

Judges ought to be more learned than witty, more reverent than plausible, and more advised than confident. Above all things, integrity is their portion and proper virtue.”

After reading the following excerpt from today’s judgment in MacGregor v. Potts, 2012 ONCA 226 (Ont. C.A.), one cannot deny that that The Honourable Justice James C. MacPherson, of the Court of Appeal of Ontario possesses all of these judicial qualities:

[3] The consequences of a medical misfortune for the person injured and often their families can be devastating and life-altering. The same can be true for the medical professional who may have caused the injury. In the medical area, this shared result is very painful because the doctors, nurses and hospitals involved are passionately dedicated to preserving life and health.

[4] The doctor defendant here is a fine professional man who has devoted his life to the care of mothers and children. The MacGregor family must endure and respond forever to Matthew’s injuries and precarious situation. In this sad context, a judge can – and I do – express my genuine sympathy to the MacGregor family and to Dr. Potts.

Duty of Judges to Give Written Reasons: Harrison v. Burns (Ont. C.A.)

October 25, 2011

The Court of Appeal for Ontario decision in  Harrison v. Burns, 2011 ONCA 664, deals with procedural justice and the duty of judges to give written reasons. (more…)

Trust, but verify: Why reasons are required in leave application process

May 9, 2011
Supreme Court of Canada

Image via Wikipedia

In today’s Canadian Lawyer article, “Trust not reasons, required in leave application process: A response to Philip Slayton“,  Jean-Marc Leclerc responds to Phillip Slayton’s Canadian Lawyer article entitled Justice is in the details.  Slayton’s key argument rests on lack of judicial transparency: (more…)


Follow

Get every new post delivered to your Inbox.

Join 2,067 other followers

%d bloggers like this: