The Supreme Court of Canada has just released a significant decision on issue estoppel and police disciplinary proceedings in Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 (SCC). (more…)
Archive for the ‘procedure’ Category
Issue Estoppel and Police Disciplinary Proceedings: Penner v. Niagara (Regional Police Services Board) (SCC)
April 5, 2013No Harm, No Foul?
March 14, 2013Here’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.
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.
SCC: Electronic Filing of Memoranda of Argument in Leave Applications
July 11, 2012Via the Supreme Court of Canada website (with my annotation in RED):
Emir Crowne et al. “‘Fully Appreciating’ the Ontario Court of Appeal’s Views on the Summary Judgment Rule”
April 13, 2012
Civil Procedure Rules (Photo credit: septuagesima)
Emir Crowne (University of Windsor – Faculty of Law), Varoujan Arman (Blaney McMurtry LLP) and Terry Reid (Gardiner Roberts LLP) have posted “‘Fully Appreciating’ the Ontario Court of Appeal’s Views on the Summary Judgment Rule”, Advocates’ Quarterly, Vol. 39, No. 3, February 2012. The article analyzes the five combined appeals heard by the Ontario Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, which issued guidelines to first instance judges when faced with motions for summary judgment.
Download a pdf copy of the article from SSRN here.
See also my previous post: “Ontario Court of Appeal Introduces New “Full Appreciation” Test for Summary Judgment”
Antonin I. Pribetic
